Lucas v. Duncan

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 11, 2008 Decided July 31, 2009

No. 07-5264

THEODORE R. LUCAS, ET AL.,
APPELLANTS

v.

ARNE DUNCAN, IN HIS OFFICIAL CAPACITY AS SECRETARY,
U.S. DEPARTMENT OF EDUCATION, HIS AGENTS AND
SUCCESSORS,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 01cv02393)

John F. Karl, Jr. argued the cause and filed the briefs for
appellant.

Richard R. Renner was on the brief for amicus curiae
National Employment Lawyers Association in support of
appellant.

Mercedeh Momeni, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Jeffrey A. Taylor,
U.S. Attorney, and R. Craig Lawrence and Yule Kim, Assistant
U.S. Attorneys.
 2

Before: GINSBURG, GARLAND, and KAVANAUGH, Circuit
Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge: This is an appeal from an order
imposing sanctions against an attorney under Rule 11 of the
Federal Rules of Civil Procedure. A magistrate judge imposed
the sanctions for statements that the attorney made in pleadings
he filed on behalf of his client, the plaintiff in an employment
discrimination suit. For the reasons stated below, we vacate the
sanctions order.

I

Attorney John F. Karl, Jr.’s client, Theodore Lucas, was an
employee in the Department of Education’s Office of Civil
Rights. In 1998, Lucas applied for a promotion to a position as
a management and program analyst. At that time, he was 61
years old and had both a law degree and more than 25 years’
experience in civil rights enforcement. The promotion went to
Jerelyn Berry, a 43-year-old high school graduate, who had
never attended college and who had previously worked as
Lucas’ secretary.

On November 16, 2001, Lucas sued the Secretary of
Education under the Age Discrimination in Employment Act
(ADEA), 29 U.S.C. §§ 621 et seq., alleging that he was denied
the promotion because of his age. Pursuant to 28 U.S.C.
§ 636(c)(1), the parties consented to proceed before a United
States magistrate judge for all purposes. Following discovery,
the Department filed a Motion for Summary Judgment and a
Statement of Material Facts Not in Dispute. The Department’s
motion asserted that Berry’s selection was based principally on
 3

interviews with the candidates and that Berry had outperformed
Lucas in those interviews.

Karl filed an opposition on Lucas’ behalf. The opposition
consisted of the following: a 35-page memorandum, entitled
Plaintiff’s Opposition to Defendant’s Motion for Summary
Judgment; a 104-paragraph document, entitled Plaintiff’s
Statement of Material Facts in Dispute and Material Facts
Omitted by Defendant; an affidavit by Lucas; and numerous
supporting exhibits. Lucas’ papers asserted that there was direct
evidence of discrimination: he said that at his selection panel
interview, the selecting official -- Dr. Paul Fairley -- called
Lucas an “old timer” and told him, “[y]ou know what this is all
about.” Pl.’s Statement of Material Facts in Dispute and
Material Facts Omitted by Def. ¶ 78 [hereinafter Pl.’s Rule 7(h)
Statement]. But Lucas primarily relied on circumstantial
evidence, including that he was substantially more qualified than
Berry and that she had been preselected before the interviews.
As to the latter, Lucas contended that there was evidence
indicating that Berry had received interview questions in
advance and had been coached regarding how to respond, and
that Fairley had created after-the-fact interview notes to support
the preordained result.

On September 28, 2004, the magistrate judge issued an
order requiring Karl to show cause why he had not violated
Federal Rule of Civil Procedure 11(b)(3). That rule obligates an
attorney to certify as to any written submission that, “to the best
of the person’s knowledge, information, and belief, formed after
an inquiry reasonable under the circumstances: . . . (3) the
factual contentions have evidentiary support or, if specifically so
identified, will likely have evidentiary support after a reasonable
opportunity for further investigation or discovery.” FED. R. CIV.
P. 11(b)(3). The magistrate judge identified twelve statements
in the papers Karl filed on behalf of Lucas that the judge
 4

believed ran afoul of Rule 11(b)(3). The order was issued sua
sponte, without a motion from the defendant suggesting that
there was a Rule 11 problem in the plaintiff’s pleadings. Karl
filed a response to the order to show cause on December 2,
addressing each of the statements that the order had highlighted
as problematic.

On January 10, 2006, the magistrate judge issued a
Memorandum Opinion and Order, in which he accepted Karl’s
explanation of a proofreading mistake in one of the twelve
statements, but imposed sanctions on the basis of the other
eleven. Lucas v. Spellings, 408 F. Supp. 2d 8 (D.D.C. 2006).
The judge held, inter alia, that “Karl’s statements obliterate
again and again the distinction between drawing an inference
and stating a fact and must therefore be condemned as a
violation of the requirement of Rule 11 that the factual
allegations in a document have evidentiary support.” Id. at 13.
The judge imposed a monetary sanction of $3000 and referred
Karl to the United States District Court’s Committee on
Grievances to determine whether he violated the District of
Columbia Rules of Professional Conduct.1 Id. at 26-27.

1
Appellant’s brief represents that the District Court Committee on
Grievances has advised Karl that the committee “decided, after careful
review, that no further action is warranted as a result of the January
13, 2006 referral.” Appellant’s Br. 6 n.3. The brief further represents
that the D.C. Office of Bar Counsel has advised Karl that: (1)
“Because you filed an appropriate pleading to challenge the
defendant’s motion seeking to have your client’s civil suit dismissed,
we are unable to conclude by clear and convincing evidence that your
conduct violated Rule 8.4(d)”; and (2) “there is insufficient evidence
to support a finding that your conduct in drafting and filing the
plaintiff’s opposition to the motion for summary judgment violated
Rule 3.1.” Id.
 5

The magistrate judge subsequently denied the Department
of Education’s summary judgment motion, and the case went to
trial. At the close of the bench trial, the judge ruled in favor of
the Department, and the plaintiff has filed an appeal that brings
before us the interlocutory rulings that preceded the court’s final
judgment. See Ciralsky v. CIA, 355 F.3d 661, 668 (D.C. Cir.
2004). Lucas does not challenge his loss on the merits, and the
sole issue on appeal is the appropriateness of the Rule 11
sanctions imposed on attorney Karl.

II

In Cooter & Gell v. Hartmarx Corp., the Supreme Court
held that appellate courts “should apply an abuse-of-discretion
standard in reviewing all aspects of a district court’s Rule 11
determination.” 496 U.S. 384, 405 (1990). The Court noted,
moreover, that “[a] district court would necessarily abuse its
discretion if it based its ruling on an erroneous view of the law
or on a clearly erroneous assessment of the evidence.” Id.; see
FED. R. CIV. P. 11, Advisory Comm. Notes (1993) (same).

Cooter & Gell involved sanctions imposed by the court
upon motion of the opposing party. See FED. R. CIV. P. 11(c)(2).
This case, by contrast, involves sanctions imposed by the court
sua sponte, without motion of the opposing party. See FED. R.
CIV. P. 11(c)(3). In recognition of the unusual position of the
trial court in such circumstances, serving at once as both
prosecutor and judge, the circuit courts have utilized different
linguistic formulations to express the same idea: when the trial
court imposes sanctions sua sponte, the reviewing court should
engage in “careful appellate review” to assess whether there was
an abuse of discretion. Young v. City of Providence ex rel.
Napolitano, 404 F.3d 33, 40 (1st Cir. 2005); see Kaplan v.
DaimlerChrysler, A.G., 331 F.3d 1251, 1255 (11th Cir. 2003)
(holding that “[s]ua sponte Rule 11 sanctions . . . must be
 6

reviewed with particular stringency” (internal quotation marks
omitted)); Hunter v. Earthgrains Co. Bakery, 281 F.3d 144, 153
(4th Cir. 2002) (holding that, where a sanction “was imposed
sua sponte, we must examine the court’s assertion that [the
plaintiff’s] legal contention was frivolous with particular
stringency” (internal quotation marks omitted)).

Although both Karl and the Department of Education agree
that this court should review the magistrate judge’s order for
abuse of discretion with particular care, see Oral Arg. Recording
at 32:15-32:30, they disagree as to the substantive standard that
the judge should himself have applied. Karl notes that Rule
11(c)(2), which governs Rule 11 sanctions initiated upon a
party’s motion, contains a “safe harbor” provision that permits
the filer to avoid sanctions by withdrawing or correcting the
challenged pleading within 21 days. Rule 11(c)(3), which
governs sanctions imposed on the court’s own initiative, does
not contain such a provision. In light of this difference, and
citing language in the Advisory Committee notes, Karl argues
that only actions “akin to a contempt of court” should be subject
to the sua sponte imposition of Rule 11 sanctions.2 Citing the
language of the rule itself,3 which does not distinguish between
sanctions imposed after motion or sua sponte, the Department
argues that the standard under which an attorney’s actions must
be measured is in all cases “an objective standard of

2
See FED. R. CIV. P. 11, Advisory Comm. Notes (1993) (“Since
show cause orders will ordinarily be issued only in situations that are
akin to a contempt of court, the rule does not provide a ‘safe harbor’
to a litigant for withdrawing a claim, defense, etc., after a show cause
order has been issued on the court’s own initiative.”).
3
See FED. R. CIV. P. 11(b) (In presenting a pleading, an attorney
certifies that “to the best of the person’s knowledge, information, and
belief, formed after an inquiry reasonable under the circumstances,”
the factual contentions have evidentiary support.).
 7

reasonableness under the circumstances.” Appellee’s Br. 6
(citing Bus. Guides v. Chromatic Commc’ns Enters., Inc., 498
U.S. 533, 551 (1991)). That is the standard the magistrate judge
applied. See Lucas, 408 F. Supp. 2d at 11 (“Rule 11 requires . . .
a determination as to whether, judged by the standard of a
reasonable party or lawyer, the party or lawyer offended one of
the rule’s provisions. . . . Rule 11 . . . is based upon an objective
evaluation of the lawyer’s conduct.”).

Both sides have support for their positions in the case law.4
We need not enter this debate, however, because the sanctions
order requires reversal regardless of which standard applies. As
discussed below, the determination that the eleven statements
violated Rule 11 was premised on two legal errors. And a trial
court “necessarily abuse[s] its discretion if it base[s] its ruling
on an erroneous view of the law.” Cooter & Gell, 496 U.S. at
405.

A

As the magistrate judge explained, the principal basis upon
which he imposed sanctions was his finding that many of the
eleven statements that Karl drafted were “classic examples of
inferences disguised as statements of fact.” Lucas, 408 F. Supp.
2d at 12. “[A] classic misstatement,” he said, “is one in which
an inference that might or might not be drawn from the facts is
stated as a fact itself.” Id. The judge illustrated this point
with the following example:

4
Compare cases adopting the “akin to contempt” standard, e.g.,
Kaplan, 331 F.3d at 1256; In re Pennie & Edmonds LLP, 323 F.3d 86,
90 (2d Cir. 2003), with cases applying an objective reasonableness
standard, e.g., Jenkins v. Methodist Hosps. of Dallas, 478 F.3d 255,
264 (5th Cir. 2007); Young, 404 F.3d at 39.
 8

[T]hat a man walks into a room with a wet umbrella
might permit the inference that the man was recently
outside and that it was raining. It might also be true
that the man decided to wash the umbrella. Given
these facts, an advocate cannot first say “it was
raining” but later, when challenged, explain that what
was originally stated as a fact was actually only an
inference that could have been drawn from the fact that
the umbrella was wet. The statement, “it was raining”
is objectively false. It asks the reader to believe that
what is merely an inference that may be drawn from a
set of facts is itself a fact.

Id. at 12-13. Citing a Ninth Circuit decision, which in turn
quoted a 1954 New Jersey Supreme Court opinion, the
magistrate judge held that “[w]hen he is indulging, as he has
every right to do, in inferences or reasoning from the facts, [an
attorney] must say so.” Id. at 13 (quoting In re Curl, 803 F.2d
1004, 1006 (9th Cir. 1986) (quoting In re Greenberg, 104 A.2d
46, 47-48 (N.J. 1954))).5

5
The magistrate judge quoted Karl’s statements and then
explained why he found that they improperly conflated inferences and
facts. For example, Karl stated that “[e]xamination of the interview
notes certainly supports a finding that Ms. Berry was given the
interview questions” in advance. 408 F. Supp. 2d at 14. The judge
imposed sanctions on the ground that “[e]quating what counsel claims
is a fact -- that the notes show that Berry had the questions -- with a
series of inferences drawn from all the other evidence (including the
notes) is the very vice condemned as sanctionable conduct.” Id. In
another statement, Karl said that “Fairley refused to respond” to
interrogatories. Id. at 17. For that statement, the judge imposed
sanctions on the ground that, although “at one point Fairley failed to
answer[,] . . . [t]o derive from his not answering the declaratory
statement that he refused to answer . . . states as a fact what may or
may not be true.” Id. at 18. Karl also stated that “[t]here is
 9

There is no basis in the text of Rule 11(b)(3) for the legal
proposition that an attorney must separately identify “fact” and
“inference.” The Rule merely requires an attorney to certify that
the factual contentions in a paper he presents to the court “have
evidentiary support.” FED. R. CIV. P. 11(b)(3). “Inferences” --
which are commonly described as “circumstantial evidence” --
are as capable of providing evidentiary support as “facts” --
which are commonly described as “direct evidence.”6 See U.S.
Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714 n.3
(1983) (“As in any lawsuit, the plaintiff may prove his case by
direct or circumstantial evidence.”); Doe v. U.S. Postal Serv.,
317 F.3d 339, 343 (D.C. Cir. 2003) (“[W]e generally draw no
distinction between the probative value of direct and
circumstantial evidence.”). As a consequence, “juries are

circumstantial evidence sufficient to create an inference that the
interview notes” that Fairley ultimately produced “were manufactured
after the fact to justify a decision previously made on discriminatory
grounds.” Id. The magistrate judge sanctioned Karl on the ground
that the statement impermissibly “equate[d] a fact -- that Fairley did
not take contemporaneous notes -- with a conclusion -- that Fairley
concocted notes afterwards to hide his preference for Berry because
she was younger than” Lucas. Id. at 19. Karl was also sanctioned for
stating that “the requirements of the job [were] watered down . . . in
order to make Ms. Berry appear to be qualified,” because the judge
found that statement was based only on an inference from the fact that
the requirements “were modified to uniformly reduce the value of all
the [prior] criteria by 0.5 in order to permit the addition of a new
category for evaluation.” Id. at 15.
6
See BAR ASS’N OF D.C., STANDARDIZED CIVIL JURY
INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA (rev. ed. 2002) § 2.10
(“Direct evidence is the direct proof of a fact, such as the testimony of
an eyewitness. Circumstantial evidence is indirect evidence of a fact
which is established or logically inferred from a chain of other facts
or circumstances.” (emphasis added)).
 10

routinely instructed that ‘[t]he law makes no distinction between
the weight or value to be given to either direct or circumstantial
evidence.’” Desert Palace, Inc. v. Costa, 539 U.S. 90, 100
(2003) (quoting 1A K. O’MALLEY, J. GRENIG & W. LEE,
FEDERAL JURY PRACTICE AND INSTRUCTIONS, CRIMINAL § 12.04
(5th ed. 2000)). “The reason for treating circumstantial and
direct evidence alike,” the Supreme Court has explained, “is
both clear and deep rooted: ‘Circumstantial evidence is not only
sufficient, but may also be more certain, satisfying and
persuasive than direct evidence.’” Id. (quoting Rogers v. Mo.
Pac. R.R. Co., 352 U.S. 500, 508 n.17 (1957)).

It is also relevant that Karl filed his opposition to summary
judgment pursuant to Local Rules 7(h) and 56.1. Those rules
require that “[a]n opposition to such a motion shall be
accompanied by a separate concise statement of genuine issues
setting forth all material facts as to which it is contended there
exists a genuine issue necessary to be litigated, which shall
include references to the parts of the record relied on to support
the statement.” D.D.C. LOCAL RULE 7(h) (emphasis added); id.
56.1 (same). Karl adhered to the rules, and each of the criticized
sentences in Karl’s Rule 7(h) Statement was followed by record
citations indicating which evidence Karl thought supported the
statement.7 Thus, there was no hiding of the ball. Even if it
mattered whether the supporting evidence was direct or
circumstantial (and it does not), there was no possibility that the
reader would be misled.

7
Five of the sentences that the magistrate judge criticized were
included in Karl’s Opposition memorandum, rather than in the
Statement, and hence arguably were not subject to Rule 7(h).
Nonetheless, two of the five were followed by record citations, two
referenced attached exhibits, and the last simply asserted a failure of
explanation on the part of the agency.
 11

There is, then, nothing in Rule 11 that required Karl’s
pleadings to distinguish between direct and circumstantial
evidence. Nor does judicial precedent require such a distinction.
The quotation from the 1954 New Jersey Supreme Court opinion
is inapplicable, as that court was applying canons of professional
responsibility and not a Federal Rule. See In re Greenberg, 104
A.2d at 48-49. Likewise inapposite is the Ninth Circuit’s
opinion in Curl, which contains the quotation from the New
Jersey court: in Curl, the circuit admonished an attorney for
misrepresenting the content of a Mexican judicial decision, not
for failing to distinguish between kinds of evidence. In re Curl,
803 F.2d at 1006 (finding that the attorney represented that a
Mexican appellate court had “affirmed the lower court,” when
it had not).8 And even if a code of professional responsibility
did require making such a distinction (although the District of
Columbia’s code apparently does not, see supra note 1), Rule 11
does not incorporate such codes,9 and the magistrate judge

8
Also inapplicable are the other precedents the magistrate judge
cited for the proposition that Rule 11 requires a lawyer to “distinguish
a fact from an inference he seeks to press on the court.” Lucas, 408 F.
Supp. 2d at 13 (quoting Skycom Corp. v. Telstar Corp., 813 F.2d 810,
819 (7th Cir. 1987)). See Skycom, 813 F.2d at 819 (stating that “[i]t
is unprofessional conduct to represent inferences as facts” (emphasis
added)); In re Kelly, 808 F.2d 549, 551 (7th Cir. 1986) (imposing
discipline for “conduct unbecoming a member of the bar” under
Federal Rule of Appellate Procedure 46(c), for presenting “a shot in
the dark, a guess, . . . as positive fact, though [the attorney] made no
effort to determine whether it was fact”); see also In re: Cent. Ice
Cream Co., 836 F.2d 1068, 1073 (7th Cir. 1987) (indicating that
counsel violates Rule 11 by presenting “as a fact what counsel thinks
should have occurred” (emphasis added)).
9
See Zaldivar v. City of Los Angeles, 780 F.2d 823, 829-30 (9th
Cir. 1986) (“Rule 11 is not a panacea intended to remedy all manner
of attorney misconduct occurring before or during the trial of civil
 12

stressed that he based his authority “to punish [Karl] solely on
Rule 11.” Lucas, 408 F. Supp. 2d at 11.

In short, the basic legal premise upon which sanctions were
imposed was incorrect. To take the magistrate judge’s example:
If an attorney has evidence that a man “walked into a room with
a wet umbrella” at a certain time, the attorney does have
“evidentiary support” for the “factual contention” that “it was
raining” at that time. Id. at 12.10 He may not have proof by a
preponderance, but he certainly has “support.” Accordingly, a
lawyer does not violate Rule 11 by saying so.

B

The magistrate judge also imposed sanctions on the premise
that, when an attorney makes a factual contention, he must
simultaneously disclose evidence that is contrary to that
contention. The judge thought that Karl’s failure to do so
violated Rule 11, notwithstanding that he did have affirmative
evidentiary support for his contentions.

For example, as evidence to show that Berry’s promotion
was not based on a fair competition, Karl stated: “Ms. Berry
received the interview questions and coaching from
[Management and Program Analyst] Art Besner prior to her

cases.”).
10
Cf. STANDARDIZED CIVIL JURY INSTRUCTIONS FOR THE
DISTRICT OF COLUMBIA § 2.10 (“For example, direct evidence of
whether an animal was running in the snow might be the testimony of
a person who actually saw the animal in the snow. Circumstantial
evidence might be the testimony of a person who saw the tracks of the
animal in the snow, rather than the animal itself. . . . The law makes
no distinction between the weight to be given [to] either . . . .”).
 13

interview.” Pl.’s Rule 7(h) Statement ¶ 85. In support, Karl
cited evidence, which the magistrate judge described as follows:

Both Mr. Lucas and [fellow employee] Ms. Powell
heard Ms. Berry thank Mr. Besner for giving her the
interview questions prior to the interview and telling
her how to prepare for the interview. Mr. Lucas heard
Mr. Besner tell Ms. Berry that he “hoped” he “helped
her” prepare for the interview, and Ms. Berry replied
that he did, and “thank you very much.”

Lucas, 408 F. Supp. 2d at 23 (internal citations omitted)
(quoting Pl.’s Rule 7(h) Statement ¶ 86). The magistrate judge
did not disagree that Karl had such evidence, and in fact he
did.11 But the judge imposed sanctions because “the reader is
never told about the information that, at the barest minimum,
indicates that there are serious reasons to doubt the truthfulness
of the assertion that Besner gave Berry the questions: the
inconsistencies in plaintiff’s testimony and Besner’s insistence,
confirmed by [selection panel member Jan] Gray, that Besner’s
questions were not the ones used in the interview.” Lucas, 408
F. Supp. 2d at 24.

In a similar vein, Karl asserted that Berry had been
preselected for the position before Lucas was interviewed. See

11
In his deposition, Lucas testified that he overheard a
conversation in which Besner asked Berry, “Did the material or did
the questions help you in the interview[?]” Lucas Dep. 142 (Dec. 20,
2002); see also id. at 143-44. Powell’s sworn declaration states that
she overheard a conversation between Besner and Berry in which,
“Ms. Berry thanked Mr. Besner for his assistance in giving her the
information he had given to her prior to the interview and telling her
what to study and how to prepare for the interview.” Powell Decl.
¶ 13 (Dec. 6, 1999).
 14

Goostree v. Tennessee, 796 F.2d 854, 861 (6th Cir. 1986)
(“Evidence of preselection operates to discredit the employer’s
proffered explanation for its employment decision.”). In the
Rule 7(h) Statement, Karl wrote: “Dr. Fairley told Ms. Berry at
her interview that she had been selected for the position, even
though she was interviewed more than an hour before Mr.
Lucas.” Pl.’s Rule 7(h) Statement ¶ 78. To support this
assertion, Karl cited Berry’s deposition testimony wherein, as
the magistrate judge recounted,

Berry testified that during her interview, Fairley told
her that the interviewing panel had selected her and
that he then congratulated her. Karl then asked her:
“So, presumably, he was telling you at that time you
got the promotion.” Berry responded yes.

Lucas, 408 F. Supp. 2d at 21 (internal citations omitted). Again,
the judge did not dispute that Berry so testified, but imposed
sanctions because the assertion of preselection did not take
account of Berry’s testimony on redirect examination that
“Fairley told her she was the first choice of the interviewing
panel but did not tell her she had received the position,” and of
the government’s position that selection by the panel was not the
same thing as selection by Fairley. Id.; see Berry Dep. 77-80
(Oct. 1, 2002).

The magistrate judge also criticized Karl for asserting that
“Dr. Fairley refused to respond to the interrogatories from [an]
EEO investigator and refused to turn over the notes during the
first stages of the administrative process.” Lucas, 408 F. Supp.
2d at 17 (quoting Pl.’s Opp’n to Def.’s Mot. for Summ. J. at 26).
Again, there is no doubt that Karl had support for this assertion.
The EEO investigation report itself stated: “Mr. Fairley refused
to provide the successful candidate’s and the other candidates[’]
responses to the interview questions.” Investigation Report at
 15

4. A memo attached to the report further stated that Dr. Fairley
“failed to provide responses to the Interrogatories” after being
“asked to respond to the Interrogatories on the record.”
Memorandum from Gertrude Brittingham-Bowman (EEO
Investigator). Nonetheless, the magistrate judge thought it a
“half-truth to tell the reader that Fairley refused to turn over the
notes but then not tell the reader why and then how the notes
were turned over.” Lucas, 408 F. Supp. 2d at 18. Karl violated
Rule 11, the judge said, by failing to include Fairley’s
explanation -- that he had turned over some notes and did not
turn over others because his counsel told him not to. Id. at 17.

There is nothing in the text of Rule 11(b)(3) to suggest that
any of these statements violated that rule. In each case, the
“factual contentions” in Karl’s pleadings had “evidentiary
support,” and that is all the rule requires. See Navarro-Ayala v.
Hernandez-Colon, 3 F.3d 464, 467 (1st Cir. 1993) (“Rule 11
normally does not require one party to uncover and to set forth
the facts that support the other side’s position.”). This is not to
say that it may never be misleading to assert that something has
evidentiary support without advising the court of contrary facts.
But once again, context is relevant.

The pleading at issue here was an opposition to the
defendant’s motion for summary judgment. The defendant’s
motion asserted that “there is no genuine issue of material fact
precluding the entry of judgment for defendant as a matter of
law.” Def.’s Mem. in Supp. of Its Mot. for Summ. J. at 1.
Under Local Rules 7(h) and 56.1, Karl’s obligation in opposing
the defendant’s motion was to file a separate statement “setting
forth all material facts as to which it is contended there exists a
genuine issue necessary to be litigated.” To do that, Karl was
obliged to do no more than set forth facts in contravention of the
defendant’s claims. The rules do not require him to rehearse the
government’s evidence, and nothing in Rule 11 imposes that
 16

added burden. Nor could the omission of that evidence have
been misleading to the reader. Many of the facts that the
magistrate judge criticized Karl for failing to disclose in his
opposition were contained in the government motion to which
he was responding.12 Cf. Stitt v. Williams, 919 F.2d 516, 528
(9th Cir. 1990) (“[Rule 11] [p]recedents regarding the filing of
a frivolous complaint are not necessarily controlling in the case
of an opposition to a summary judgment motion. . . . By the time
a summary judgment motion is made, the record is sufficient for
a court to determine frivolity on the basis of what appears before
it, including the papers and documents relied on by the moving
party. If the opposition is truly frivolous, the district judge can
readily grant judgment for the movant . . . .”).

Part of the problem may have been a misapprehension
regarding the nature of the pleading that Karl filed on behalf of
Lucas. At several points, the magistrate judge proceeded as if
it were Karl -- rather than the defendant -- who was asserting
that “there was no genuine issue of material fact.” Lucas, 408
F. Supp. 2d at 22; id. at 23 (same). But Karl’s pleadings did not
contend that there was no genuine issue as to any fact. To the
contrary, his contention was that there was a genuine dispute.
He was opposing summary judgment, not seeking it, and hence
had to show there was a factual dispute. See FED. R. CIV. P.
56(e)(2).13 To accomplish that, he filed an “Opposition to

12
See, e.g., Def.’s Mem. in Supp. of Its Mot. for Summ. J. at
25-30 (regarding plaintiff’s claim that Berry received the questions
and coaching prior to her interview); id. at 5 (regarding plaintiff’s
claim that Berry was preselected before Lucas was interviewed).
13
There was one exception, which Karl made clear. He did seek
“partial summary judgment” for plaintiff on a single point: he asked
the court to rule that Fairley’s comment -- that Lucas was an “old
timer” -- was direct evidence of age discrimination. Pl.’s Opp’n to
Def.’s Mot. for Summ. J. at 33.
 17

Defendant’s Motion for Summary Judgment” and attached a
“Statement of Material Facts in Dispute and Material Facts
Omitted by Defendant.” The second sentence of the Opposition
made its purpose clear: “As we show below, the agency’s
position lacks merit because there are disputes of material fact
as to the real reason Mr. Lucas was denied the promotion at
issue.” Pl.’s Opp’n to Def.’s Mot. for Summ. J. at 1 (emphasis
added). Karl did not have to repeat the government’s factual
contentions in order to make that point or abide by the dictates
of Rule 11.14

III

We have examined each of the eleven statements at issue on
this appeal. In light of the foregoing analysis, we conclude that
none warranted the imposition of Rule 11 sanctions.
Accordingly, the sanctions order is

Vacated.

14
In a footnote, the Department agrees that Karl did not assert that
the “Material Facts in Dispute” listed in the first half of the Rule 7(h)
Statement were undisputed, but claims that he did make that assertion
about the “Material Facts Omitted by Defendant” listed in the
Statement’s second half. Appellee’s Br. 46 n.15. That is incorrect.
The pleading neither suggested that plaintiff believed those material
facts were undisputed, nor sought (rather than opposed) summary
judgment based upon them.