Lt. Pedro J. Lamboy-Ortiz; Sgt. Roberto Figueroa-Montalvo; v. Miguel G. Ortiz-Vélez

United States Court of Appeals
For the First Circuit
No. 09-1640
LT. PEDRO J. LAMBOY-ORTIZ; SGT. ROBERTO FIGUEROA-MONTALVO;
ET AL.,
Plaintiffs, Appellants,
v.
MIGUEL G. ORTIZ-VÉLEZ, in his official capacity as Mayor of the
Municipality of Sabana Grande,
Defendant, Appellee,
MIGUEL PEREIRA, in his official capacity as former Superintendent
of Police of Puerto Rico; VICTOR RIVERA, in his official capacity
as Superintendent of Police of Puerto Rico; MIGUEL G. ORTIZ-
VÉLEZ, in his personal capacity as Mayor of the Municipality of
Sabana Grande; MARISOL VARGAS-SANTIAGO, policewoman, in her
personal capacity and in her official capacity as Officer of the
Police of Puerto Rico; COLONEL CESAR GRACIA-ORTIZ, in his
personal capacity and in his official capacity as Assistant
Superintendent of the Police of Puerto Rico; LT. EMIDIO LABOY-
CASTILLO, in his personal capacity and in his official capacity
as Police Commander of the Police of Puerto Rico in Sabana
Grande; JOSÉ SANTANA-PÉREZ, policeman, in his personal capacity
and in his official capacity as member of the Police of Puerto
Rico; UNKNOWN DEFENDANTS A-Z; UNKNOWN EMPLOYER ABC,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Torruella, Lipez, and Howard,
Circuit Judges.

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Francisco J. González-Magaz, with whom Francisco R. González
Law Office was on brief, for appellants.
Johanna M. Emmanuelli Huertas, with whom The Law Offices of
Pedro E. Ortiz Álvarez, PSC was on brief, for appellee.
December 17, 2010

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LIPEZ, Circuit Judge. This appeal involves an award of
close to $130,000 in attorney's fees against unsuccessful civil
rights plaintiffs and over $60,000 in sanctions against plaintiffs'
counsel personally. Plaintiffs, who survived various dispositive
motions and proceeded to a jury trial on their claims, argue that
their lawsuit was not so unfounded or unreasonable as to justify an
award of fees to the defendant in a civil rights lawsuit. We agree
and therefore vacate the fee award.
We conclude, however, that the district court did not
abuse its discretion in imposing sanctions on plaintiffs' counsel,
whose vexatious conduct and manifest disrespect of the district
court proceedings stand out even in the dry pages of the record on
appeal. Still, the amount of the sanction far exceeds what could
be justified in the name of deterrence. We therefore reduce the
sanction to $5,000.
I.
Plaintiffs Pedro Lamboy-Ortiz (Lamboy-Ortiz) and Roberto
Figueroa-Montalvo (Figueroa-Montalvo) were formerly employed as
policemen in the municipality of Sabana Grande, Puerto Rico, and
are members of Puerto Rico's New Progressive Party (NPP). In this
lawsuit, Lamboy-Ortiz and Figueroa-Montalvo alleged that the
defendants, including the Mayor of Sabana Grande and various
members of the Sabana Grande and Puerto Rico Police, each of whom
belongs to the opposition Popular Democratic Party (PDP), conspired

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Because the record designated by the parties for appeal 1
contains only limited excerpts from the trial transcript, we have
relied for this factual recitation on a variety of sources,
including the excerpted trial transcripts, the district court's
orders, and the parties' filings in the district court.
According to Vargas-Santiago, Figueroa-Montalvo referred to 2
Governor Calderón as a prostitute who was cheating on her husband
and neglecting her family (referencing the much-publicized break-up
of the Governor's marriage in 2001). Vargas-Santiago further
claims that Figueroa-Montalvo and Lamboy-Ortiz had made offensive
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to deprive them of their civil rights and effectively remove them
from the local police force.
A. Events Underlying the Plaintiffs' Civil Rights Suit1
The dispute has its roots in an incident that allegedly
occurred on December 15, 2001 in the Sabana Grande police station,
on the day of a visit to Sabana Grande by Sila Calderón, then
Governor of Puerto Rico and leader of the PDP. In anticipation of
the governor's arrival, Mayor Miguel Ortiz-Vélez called the police
station and asked for an officer to be dispatched to the Sabana
Grande City Hall to pick up a framed picture of the governor for
display in the police station. Marisol Vargas-Santiago (Vargas-
Santiago) was on duty at the station's main desk and received the
call. She responded to the Mayor's call by detailing officer José
Santana-Pérez (Santana-Pérez) to retrieve the picture.
What happened upon Santana-Pérez's return is contested.
Officer Vargas-Santiago alleges that Sergeant Figueroa-Montalvo
made offensive comments about Governor Calderón during the
portrait's hanging, and that Lieutenant Lamboy-Ortiz, who was 2

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remarks earlier that day about other members of the Sabana Grande
police force, characterizing policewomen as prostitutes and male
police guards as cuckolds.
The plaintiffs included in an addendum to their opening 3
brief in this appeal a sworn statement from Santana-Pérez, dated
late 2003, recanting his prior corroborating statements and
declaring that Vargas-Santiago had pressured him to lie. We have
been unable to verify whether this statement was ever submitted in
the district court and thus properly can be considered part of the
record on appeal. We note, however, that plaintiffs have
repeatedly made the claim, including in their brief here, that
Santana-Pérez recanted and accused Vargas-Santiago of improper
pressure, and defendants have not disputed it. In any event, this
recantation does not affect our decision on the award of attorney's
fees.
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Assistant Commander of the Sabana Grande District and the officer
responsible for supervising the station at the time, indicated his
agreement with Figueroa-Montalvo's off-color comments. Figueroa-
Montalvo and Lamboy-Ortiz have denied that there were any such
comments. Of the witnesses present at the time of the alleged
comments, the only one who has corroborated Vargas-Santiago's
account -- Santana-Pérez -- appears to have later recanted.3
Nonetheless, Vargas-Santiago filed administrative charges
shortly after the alleged incident, precipitating a comprehensive
internal investigation. Responsibility for the investigation
initially rested with defendant Emilio Laboy-Castillo (Laboy-
Castillo), Commander of the Puerto Rico Police in Sabana Grande,
but was later transferred to an officer from the Office for Public
Integrity. Over the course of several months, the investigators
interviewed more than ten potential witnesses to the alleged

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The signature of defendant Cesar Gracia-Ortiz (then acting 4
as Assistant Superintendent of the Police of Puerto Rico) appeared
on Figueroa-Montalvo's transfer order. This was his only active
role in the defendants' alleged campaign of harassment against the
plaintiffs, although he also made some public comments about the
investigation of the December 15, 2001 incident.
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offensive comments, many of whom were questioned on several
occasions.
Within a month or so of the alleged comments, both
plaintiffs were transferred out of Sabana Grande to different
districts. Lamboy-Ortiz was reassigned to the district of Mayagüez
immediately following the incident, apparently to fill a staffing
need. Figueroa-Montalvo was transferred to Ponce the next month,
after complaints from defendant Vargas-Santiago that she was afraid
of sharing a shift with him.4
In January 2002, in the early stages of the internal
investigation, Commander Laboy-Castillo ordered Lamboy-Ortiz and
Figueroa-Montalvo to meet with the Assistant District Attorney.
Criminal charges were filed against both men the same day, listing
Laboy-Castillo as the accusing witness. Figueroa-Montalvo was
charged with breach of the peace under Article 260 of the Puerto
Rico Penal Code, which criminalizes the use of "vulgar, profane or
indecent language in the presence . . . of women or children."
P.R. Laws Ann. tit. 33, § 4521(c). Lamboy-Ortiz, in turn, was
charged with a violation of Article 214 of the Penal Code,
"noncompliance with duty," for failure to curb Figueroa-Montalvo's

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The officers further appealed their suspension without pay, 5
but the record does not disclose the result of that appeal; it was
still ongoing at the time of the district court's entry of judgment
against the plaintiffs.
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alleged improper behavior. See id. § 4365. Each violation was
punishable by a maximum prison sentence of six months and/or a fine
of up to $500.
Lamboy-Ortiz and Figueroa-Montalvo subsequently received
letters in December 2002 from the Superintendent of the Puerto Rico
Police, defendant Miguel Pereira, informing them that they were
being suspended as a result of the improper conduct allegedly
uncovered by the internal investigation. The letters further
declared the Superintendent's intention to expel them.
The officers were not expelled, however. Lamboy-Ortiz
and Figueroa-Montalvo each appealed their suspension through
administrative channels, and the sanction against each was reduced
in 2003 to five months of suspension without pay. The criminal 5
proceedings also eventually resolved favorably for the plaintiffs:
in January 2004, a commonwealth court found both officers not
guilty of their respective criminal charges.
B. Procedural History
The plaintiffs filed suit in December 2002, naming as
defendants Mayor Ortiz-Vélez and a number of police personnel
involved in the administrative investigations into and actions
taken against the plaintiffs. At the heart of the plaintiffs'

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A fourth claim for deprivation of Fourth Amendment rights 6
was included in the complaint by mistake and copied into various
subsequent pleadings. The claim was voluntarily dismissed in
August 2003.
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complaint was the firm conviction that Mayor Ortiz-Vélez had
orchestrated the various adverse actions taken against them,
purportedly to fulfill a campaign pledge to oust NPP members from
the Sabana Grande police force.
The plaintiffs' suit rested on three interrelated
claims. First, the plaintiffs asserted a claim under 42 U.S.C. § 6
1983 for political discrimination in violation of the First
Amendment, alleging that they were targeted by defendants because
of their association with the NPP. The plaintiffs' second claim,
also under 42 U.S.C. § 1983, alleged deprivation of Fourteenth
Amendment due process rights in connection with the administrative
investigations and actions against them. Third, the plaintiffs
brought a pendent claim under the Puerto Rico Anti-Discrimination
Act (also known as Law 100), which provides a cause of action for,
among other things, employment discrimination on the basis of
political affiliation. See P.R. Laws Ann. tit. 29, § 146.
Defendants filed several dispositive motions prior to the
trial. In April 2003, Mayor Ortiz-Vélez moved to dismiss the suit
under Federal Rule of Civil Procedure 12(b)(6), arguing that the
plaintiffs had failed to allege, inter alia, the Mayor's personal
involvement in the challenged conduct, that he had acted under

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The district court ruled, correctly, that punitive damages 7
are unavailable against a municipality in section 1983 suits. See
City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 258-71
(1981).
The defendants filed two other motions to dismiss. The 8
first, requesting that Lamboy-Ortiz's and Figueroa-Montalvo's wives
and children be dismissed as improper parties in a § 1983 suit, was
denied. The second sought dismissal of the plaintiffs' claim under
the Puerto Rico Anti-Discrimination Act, citing authority holding
that the Act does not apply to governmental bodies and governmental
employees sued in their official capacities. The court granted
dismissal of the claim.
-8-
color of law, or that he was part of a conspiracy in violation of
42 U.S.C. § 1983. The other defendants followed suit with a joint
motion to dismiss shortly thereafter. In a July 2003 order, the
district court largely denied the defendants' motions, granting
dismissal only as to a claim for punitive damages against the
Municipality of Sabana Grande. In all other respects, the 7
district court found that the plaintiffs had adequately pled facts
that could support an actionable § 1983 claim by "outlin[ing] . .
a situation where the Mayor's political animosity against them
served to trigger a series of events, in which the other defendants
willingly participated, and which culminated in adverse employment
actions taken against them within the [Puerto Rico Police
Department]."8
In December 2003, Mayor Ortiz-Vélez filed a motion for
summary judgment, arguing that the plaintiffs lacked any direct
evidence that the Mayor was involved in the adverse employment
actions taken against them, and therefore that there could be no

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The court granted summary judgment on the due process claim 9
as to the Mayor, finding no evidence supporting the Mayor's
involvement in any deprivation of due process. The due process
claim proceeded to trial against the other defendants, who had not
joined the Mayor's motion.
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grounds for a claim of political discrimination or denial of due
process. Plaintiffs filed their opposition to the motion in March
2004. A month later, the court issued a one-page order denying
summary judgment as to the plaintiffs' First Amendment claim,9
finding that "there are genuine issues as to material facts" with
regard to the claim.
The case proceeded to trial on February 15, 2005. The
proceeding was punctuated by the regular exclusion of evidence
offered by the plaintiffs, often due to counsel's failure to heed
basic principles of evidence law or prepare English translations of
Spanish-language materials. Despite these difficulties, the
plaintiffs were able to present a considerable amount of evidence.
In fifteen days of trial -- spread out over four months, due to
various contingencies and the demands of the judge's criminal trial
schedule -- the plaintiffs put on twenty witnesses, including the
plaintiffs, all but one of the defendants, and various individuals
present at the alleged December 15, 2001 incident. The plaintiffs
were also allowed, upon a showing of witness unavailability, to
read into evidence the deposition testimony of a police reservist
who claimed to have heard the Mayor promise to "make [a] cleanup"

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Beyond a passing reference in the district court's fee order 10
to a $10,000 settlement offer by defendants, the record discloses
no details of the actual settlement reached by the parties. In any
event, the settlement apparently did not preclude defendant Ortiz-
Vélez from pursuing attorney's fees as a prevailing party.
Section 1988(b) authorizes an award of "a reasonable 11
attorney's fee" to the prevailing party in a civil rights suit.
For reasons not clearly disclosed by the record, none of the 12
other defendants moved for fees.
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of certain police officers, including Figueroa-Montalvo, who had
been photographed alongside an NPP politician.
The plaintiffs rested their case on June 14, 2005; the
defendants filed a Rule 50 motion for judgment as a matter of law
shortly thereafter. The court granted the motion on October 31,
2005, finding that, "after fifteen days of trial, plaintiffs were
simply unable to prove their case against defendants." Plaintiffs
initially filed an appeal from the judgment, which they
voluntarily dismissed upon reaching a settlement with the
defendants.10
In August 2006, almost ten months after the court granted
the defendants' Rule 50 motion, Mayor Ortiz-Vélez filed a motion
for attorney's fees under 42 U.S.C. § 1988, attaching 11
documentation for $207,507 in fees incurred through the October
2005 judgment. This motion was followed a month later by a 12
request for an additional $19,286 in fees incurred between the
judgment and September 2006. After the plaintiffs filed an
opposition to both requests, the court ordered Mayor Ortiz-Vélez to

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Section 1927 provides: "Any attorney or other person 13
admitted to conduct cases in any court of the United States or any
Territory thereof who so multiplies the proceedings in any case
unreasonably and vexatiously may be required by the court to
satisfy personally the excess costs, expenses, and attorneys' fees
reasonably incurred because of such conduct."
In November 2006, the court ordered Mayor Ortiz-Vélez to 14
resubmit the supporting documentation for the fee request in
different form within ten days. The Mayor's counsel filed the
requested documentation, but failed to comply with the format
specified by the court's order. In an order in December 2006, the
court granted the Mayor an additional five days to file the
documentation in correct form, noting that failure to comply would
"result in denial of attorney’s fees without further
consideration." The Mayor neglected to file anything within the
prescribed period. In July 2007, the court denied the motion for
attorney's fees without prejudice to refiling within a month's
time. Mayor Ortiz-Vélez refiled his motion with corrected
documentation within that period, again including an alternative
request for fees against attorney González under 28 U.S.C. § 1927.
-11-
reply. The Mayor's reply introduced an alternative request for
fees under 28 U.S.C. § 1927, stating, "There can be no doubt that 13
plaintiffs’ attorney, in an annoying fashion, insisted on
continuing this case to its final terms regardless [of] the grave
defects it had . . . . and thus attorney González should personally
compensate [Ortiz-Vélez] for [his] expenses."
Due to various procedural missteps by the Mayor's
counsel, the court did not rule on the substance of the fee request
until a full year had passed. In an order dated September 8, 14
2008, the court granted the fee request, subject to a fifteen
percent reduction to adjust for irregularities in defense counsel's
billing records, and ordered the plaintiffs to pay $194,808 to
Mayor Ortiz-Vélez. The court found the action to be "groundless

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[and] unreasonable" and thus properly subject to an award of
attorney's fees against the plaintiff.
In a separate order filed the same day, the court
addressed the Mayor's alternative request for attorney's fees
against attorney González under 28 U.S.C. § 1927. Reciting
multiple instances of disruptive and vexatious conduct at trial and
in pretrial filings, the court found sanctions warranted under both
28 U.S.C. § 1927 and Federal Rule of Civil Procedure 11. The court
ordered attorney González to personally pay a third of the
attorney's fee award, or $64,936. The award of attorney's fees
against the plaintiffs was thereby reduced to $129,872.
The plaintiffs moved for reconsideration of the two fee
orders, which the court summarily denied. This timely appeal
followed.
II.
We begin our analysis with the court's award of fees
under 42 U.S.C. § 1988. Though the parties to civil litigation are
typically responsible for their own attorney's fees under the so-
called "American Rule," see Alyeska Pipeline Serv. Co. v.
Wilderness Soc'y, 421 U.S. 240, 247 (1975), section 1988 grants
courts the discretion to award a "reasonable attorney's fee" to the
prevailing parties in suits under various civil rights statutes,
including 42 U.S.C. § 1983. See 42 U.S.C. § 1988(b). As we often
have recited, an award of fees in favor of a prevailing plaintiff

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in a civil rights suit is "the rule, whereas fee-shifting in favor
of a prevailing defendant is the exception." Casa Marie Hogar
Geriatrico, Inc. v. Rivera-Santos, 38 F.3d 615, 618 (1st Cir.
1994). A prevailing defendant may be awarded fees only "'upon a
finding that the plaintiff's action was frivolous, unreasonable, or
without foundation, even though not brought in subjective bad
faith.'" Rosselló-González v. Acevedo-Vilá, 483 F.3d 1, 6 (1st
Cir. 2007) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S.
412, 421 (1978)).
This standard for awarding attorney's fees to prevailing
defendants in a civil rights suit is difficult to meet, and rightly
so. Congress granted parties the prospect of a reasonable
attorney's fee under 42 U.S.C. § 1988 to encourage the prosecution
of legitimate civil rights claims; to award fees to prevailing
defendants when the history of a case does not justify it undercuts
that goal and chills civil rights litigation. See Foster v. Mydas
Assocs., Inc., 943 F.2d 139, 146 (1st Cir. 1991). This chilling
effect is particularly acute in the case of large and financially
onerous fee awards, which threaten to "discourag[e] all but the
airtight cases." Arnold v. Burger King Corp., 719 F.2d 63, 68 (4th
Cir. 1983) (citing Christiansburg Garment, 434 U.S. at 422).
We review fee awards for abuse of discretion, Tang v.
State of R.I., Dep't of Elderly Affairs, 163 F.3d 7, 13 (1st Cir.
1998), and thus we will not lightly substitute our judgment for

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that of the district court, reversing only "if we are left with 'a
definite and firm conviction that the court below committed a clear
error of judgment.'" Id. (quoting Schubert v. Nissan Motor Corp. in
U.S.A., 148 F.3d 25, 30 (1st Cir. 1998)). Regrettably, we have
reached that conclusion here.
A. The District Court's Fee Opinion
The district court's explanation of the basis for its
award of fees is brief; the bulk of the twelve-page opinion
granting Mayor Ortiz-Vélez's fee request is devoted to calculation
of the award. After a short summary of the allegations set forth
in the plaintiffs' complaint, the opinion describes the complaint
as "a concoction of conclusions, speculation, and a novelesque
theory of political conspiracy." The opinion states that, "[o]n
the face of the complaint, . . . [the plaintiffs'] action appeared
groundless" (a characterization at odds with the court's pretrial
decision to deny a motion to dismiss). The opinion goes on to
explain that two of the plaintiffs' claims reached trial because of
"artful pleading designed to squeak past dispositive motions, in
which the benefit of the doubt is given to the nonmoving party."
Beyond these conclusory characterizations, the fee
opinion contains no analysis explaining why the plaintiffs' claims
should be considered groundless at the time the complaint was
filed. Instead, the opinion quotes a substantial excerpt from the
October 2005 order granting the defendants' Rule 50 motion for

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judgment as a matter of law. The excerpted text, summarizing the
court's findings that the evidence adduced at trial was
insufficient to ground the plaintiffs' claims, states that "[a]t
the end of plaintiffs' evidence, all there is to support the
political discrimination claims . . . is speculation piled upon
speculation." The discussion draws to a close immediately
following the excerpt, concluding, "Although plaintiffs and their
attorney contend that the action was filed in good faith, it was
nonetheless groundless, unreasonable and a loss of extensive
amounts of time for both the Court and the defense."
The opinion's rejection of the plaintiffs' arguments in
opposition to the fee award is equally terse. Among other things,
the plaintiffs argued that their complaint found support in
evidence that had been excluded by the court at trial, and their
survival of numerous dispositive motions showed the claims to have
some substance. The opinion dismisses the former argument by
simply noting that "the 'evidence' to which plaintiffs refer . . .
was inadmissible under the Federal Rules of Evidence." In response
to the latter, the opinion states that the "multitude of
[dispositive] motions arose from the many threads in the case,
which included claims that were clearly barred by settled law and
jurisprudence."
Though the basis for the court's conclusion that the
plaintiffs' complaint was groundless when filed cannot be

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definitively discerned from the fee opinion's brief discussion, the
court's assessment appears to rest primarily, perhaps exclusively,
on the failure of proof at trial. That fact is apparent not only
in the court's heavy reliance on the rationale and findings of its
Rule 50 order, but as well in the absence of any discussion of why
the facts known to the plaintiffs at the time they filed their suit
were insufficient to provide a reasonable basis for their claims.
Also, the court's focus on the fate of the claims at trial is
evident in the court's refusal to consider evidence excluded at
trial, whether or not that evidence might be relevant to its
assessment of the plaintiffs' basis for filing suit.
Such emphasis on the plaintiffs' inability to support
their claims at trial was undue. As the Supreme Court cautioned in
Christiansburg Garment, the reasonableness of a suit should not be
determined by reference to its ultimate failure:
[I]t is important that a district court resist
the understandable temptation to engage in
post hoc reasoning by concluding that, because
a plaintiff did not ultimately prevail, his
action must have been unreasonable or without
foundation. This kind of hindsight logic
could discourage all but the most airtight
claims, for seldom can a prospective plaintiff
be sure of ultimate success. No matter how
honest one's belief that he has been the
victim of discrimination, no matter how
meritorious one's claim may appear at the
outset, the course of litigation is rarely
predictable.
434 U.S. at 421-22. To combat this danger of "hindsight logic," we
have instructed that a court ruling on a defendant's fee request

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under 42 U.S.C. § 1988 must assess the plaintiff's claims at the
time the complaint was filed. Tang, 163 F.3d at 13. In so doing,
the court must keep in mind that "[e]ven when the law or the facts
appear questionable or unfavorable at the outset, a party may have
an entirely reasonable ground for bringing suit." Christiansburg
Garment, 434 U.S. at 422.
We have said that a court abuses its discretion "'when a
relevant factor deserving significant weight is overlooked, or when
an improper factor is accorded significant weight, or when the
court considers the appropriate mix of factors, but commits a
palpable error of judgment in calibrating the decisional scales.'"
United States v. DeCicco, 370 F.3d 206, 210 (1st Cir. 2004)
(quoting United States v. Gilbert, 229 F.3d 15, 21 (1st Cir.
2000)). Such an error of judgment appears to be present here; the
court's improper emphasis on the failure of proof at trial, coupled
with the absence of any significant discussion of the
contemporaneous support for the plaintiffs' complaint at the time
of filing, seems to reflect a serious miscalibration of "the
decisional scales." Id. Nevertheless, as noted above, the fee
opinion leaves somewhat ambiguous the precise basis for the court's
conclusion that the plaintiffs' complaint was groundless when
filed, and one could read into the opinion a broader view of the
evidence that is not so unduly colored by the court's assessment of
the plaintiffs' case at trial. Because the district court has not

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itself articulated what that broader evidence might be, we proceed
to examine whether the available evidence could support the court's
conclusion that the complaint was unreasonable and groundless when
filed, mindful that the abuse of discretion standard applies.
B. Reasonableness at the Time of Filing
To assess the reasonableness of the suit at the time the
complaint was filed, we must rely inevitably on a record that was
created after the complaint was filed: on deposition transcripts,
on testimony at trial, and on documentary evidence introduced in
support of motions or at trial. In so doing, we make no judgment
about the sufficiency of the evidence to reach a jury; we have not
been asked to do so, nor is it relevant to the task at hand. We
look to the evidence in the record only to the extent that it
reflects the knowledge of the plaintiffs at the time the complaint
was filed.
That record includes evidence deemed inadmissible at
trial on various grounds, including failure to provide certified
English translations of Spanish documents, failure to timely
disclose witnesses, and other violations of basic evidentiary and
procedural requirements by plaintiffs' counsel. These were serious
lapses, and we do not suggest that the evidence should not have
been excluded. We consider this excluded evidence only because of
its relevance to the reasonableness of the plaintiffs' lawsuit at
the time of its filing.

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As mentioned above, only one witness, Santana-Pérez, 15
corroborated Vargas-Santiago's account; it appears that he later
recanted, attributing his prior corroborating statements to a
campaign of intimidation by Vargas-Santiago and another officer.
See note 3 and accompanying text.
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1. Factual Support for the Complaint
Since the plaintiffs knew with certainty whether or not
they actually made the comments attributed to them by Officer
Vargas-Santiago, it would be nonsensical to inquire whether the
facts permitted a reasonable belief that the account was
fabricated. Therefore, the relevant question is whether the
plaintiffs could reasonably expect to marshal evidentiary support
for their version of events. The answer is plainly yes: all but
one of the witnesses to the December 15, 2001 incident testified
that they had not heard any offensive comments from Figueroa-
Montalvo or Lamboy-Ortiz.15
The facts also permitted the plaintiffs to reasonably
infer that Vargas-Santiago was not acting alone in targeting them.
Even if one were to credit Vargas-Santiago's accusations of
undeniably crude and ill-advised criticism of a sitting PDP
governor by two members of the opposing NPP party, this verbal
indiscretion had nothing to do with the plaintiffs' job performance
as police officers. Yet this alleged indiscretion, with little
evidence to corroborate it, resulted in suspension of the officers,
threats of dismissal, and, most incredibly, criminal charges. Such
a disproportionate response to intemperate political speech, led by

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Vargas-Santiago's reference to the Mayor was somewhat 16
cryptic. In a sworn statement to investigators and in testimony at
trial, Vargas-Santiago stated that Lamboy-Ortiz and Figueroa-
Montalvo had been harassing Jose Santana-Pérez for his role in
retrieving Governor Calderón's portrait from City Hall. This
harassment prompted Santana-Pérez to protest that he was just
following orders. Vargas-Santiago allegedly interjected at this
point, "Shut up, . . . you are well recommended by [Mayor Ortiz-
Vélez] and he spoke well of you[] by telephone with me."
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superiors affiliated with the opposing political party, gave rise
to a fair inference by the plaintiffs that the motivation for the
reprisal was political.
Nor was it unreasonable at the outset for the plaintiffs
to suspect the Mayor's involvement in the reprisal. Officer
Vargas-Santiago linked herself to the Mayor in her account of the
December 15, 2001 incident, insinuating that she was on familiar
terms with him. There was also evidence that the Mayor harbored 16
a vendetta against NPP police officers, as plaintiffs alleged in
their complaint. According to the testimony of a police reservist,
Mayor Ortiz-Vélez stopped outside the Sabana Grande police station
during a 2000 campaign event and publicly promised to "make [a]
cleanup" of certain NPP police officers, including Figueroa-
Montalvo, who had appeared in a picture published in a local
newspaper the day before alongside an NPP politician.
Additionally, in deposition testimony, several witnesses described
vitriolic, anti-NPP commentary by the Mayor during public radio

-- 21 of 47 --

The deposition testimony regarding rumors of the mayor's 17
"list" came from Edwin Gonzalez Ramos, an officer in the Sabana
Grande police force. Ramos's testimony was excluded as hearsay at
trial, but the deposition transcript was included as an exhibit to
Mayor Ortiz-Vélez's motion for summary judgment.
-21-
addresses, and one witness testified to rumors that the Mayor
maintained a "list" of NPP police members he intended to oust.17
Overall, it was reasonable for the plaintiffs to
attribute a political motive to the apparent campaign of harassment
against them, given the undisputed hostility between members of the
NPP and PDP in Sabana Grande, the intimations of a connection
between the Mayor and Vargas-Santiago, and the apparent absence of
any legitimate explanation for the excessively punitive response
from the police administration to Vargas-Santiago's allegations
against the plaintiffs. See Anthony v. Sundlun, 952 F.2d 603, 606
(1st Cir. 1991) (noting that absence of legitimate explanation for
employment action against plaintiffs, combined with other
circumstantial evidence, suggested a politically discriminatory
motive).
2. Legal Basis for the Complaint
The facts and inferences available at the time of filing
were sufficient to ground a reasonable belief by the plaintiffs
that they would be able to establish the elements of their three
claims at trial. As for the First Amendment claim, which lay at
the heart of the plaintiffs' suit, it is well established that the
First Amendment "prohibits government officials from taking adverse

-- 22 of 47 --

We have previously noted that liability for a claim of 18
political discrimination need not rest on a finding that the
defendants "knew to a certainty" the plaintiff's political
affiliation where there is other circumstantial evidence of a
politically discriminatory motive. Anthony, 952 F.2d at 606.
While there were facially valid reasons for each of the 19
plaintiffs' transfers -- for Lamboy-Ortiz, to fill a personnel
need, and for Figueroa-Montalvo, to respond to Officer Vargas-
Santiago's complaints that she was afraid of sharing a shift -- it
would not be unreasonable to suspect that the transfers were
-22-
employment action against a non-policymaking government employee
based on the employee's political affiliation." Welch v. Ciampa,
542 F.3d 927, 938 (1st Cir. 2008). To make out a prima facie claim
of political discrimination, a plaintiff must show (1) that the
plaintiff and defendant have opposing political affiliations, (2)
that the defendant is aware of the plaintiff's affiliation, (3)
that an adverse employment action occurred, and (4) that political
affiliation was a substantial or motivating factor for the adverse
employment action. Id.
The circumstances here supported a reasonable belief by
the plaintiffs that they could satisfy each of these elements.
First, it is undisputed that the defendants were members of the NPP
and the plaintiffs were members of the opposing PDP. Second, the
plaintiffs had a reasonable belief, based on the fact that Sabana
Grande is a small community and that the plaintiffs had been
associated with prior NPP administrations, that the defendants were
aware of their political affiliation. Third, the suspension of 18
the plaintiffs and their summary transfers to different districts19

-- 23 of 47 --

politically motivated under the circumstances. This is
particularly true for Figueroa-Montalvo, who was transferred to
Ponce, a district some distance away, despite the fact that,
according to testimony from the officer responsible for the
transfer, he could have been separated from Officer Vargas-Santiago
by transfer to a district much closer to Sabana Grande.
We note that Officer Vargas-Santiago's action in filing an 20
administrative complaint against the plaintiffs -- and Commander
Laboy-Castillo's filing of criminal charges -- would likely support
a claim of political discrimination based on harassment rather than
on a formal employment action. See Welch, 542 F.3d at 937.
In characterizing the evidence of a political motivation as 21
circumstantial, we do not overlook the fact that there is unusually
direct evidence of political hostility on the part of the Mayor
towards members of the opposition party. It is only the connection
between that generalized political animus and the specific actions
taken against the plaintiffs that is circumstantial.
-23-
would qualify as adverse employment actions. See Rodríguez-García
v. Miranda-Marín, 610 F.3d 756, 766 (1st Cir. 2010) ("Employment
actions are sufficiently adverse to support a First Amendment §
1983 claim if those actions, objectively evaluated, would place
substantial pressure on even one of thick skin to conform to the
prevailing political view." (quoting Bergeron v. Cabral, 560 F.3d
1, 8 (1st Cir. 2009) (internal quotation marks omitted))).20
Fourth and finally, as discussed above, there was
circumstantial evidence of a political motivation for the various
actions taken against the plaintiffs. As we have emphasized many 21
times, it is rare that a "smoking gun" will be found in a political
discrimination case, and thus circumstantial evidence alone may
support a finding of political discrimination. Anthony, 952 F.2d
at 605. Moreover, the quantum of circumstantial evidence needed to

-- 24 of 47 --

The district court later dismissed the Puerto Rico Anti- 22
Discrimination Act claim based upon commonwealth authority holding
that the Act does not apply to government officials sued in their
official capacities. Nevertheless, we cannot say that the
plaintiffs' claim under the Act was unreasonable; the majority of
the defendants were sued in their personal as well as official
capacities, and there is room to argue that the Anti-Discrimination
Act allows suit against officials in their personal capacities.
See Rodriguez-Narvaez v. Pereira, 552 F. Supp. 2d 211, 217-18
(D.P.R. 2007) (discussing law and concluding that claims under Act
could proceed against officials in their personal capacities).
-24-
prevail at trial will be considerably greater than that which will
provide a plaintiff with reasonable grounds for filing suit. In
short, the evidence here was sufficient to establish the
reasonableness of the plaintiffs' central political discrimination
claim at the time that they filed their lawsuit.
We also find that the circumstances discussed above were
sufficient to afford reasonable grounds for each of plaintiffs' two
subsidiary claims. The plaintiffs' claim for violation of Puerto
Rico's Anti-Discrimination Act -- which prohibits "discriminat[ion]
against an employee . . . because of his/her . . . political
affiliation," P.R. Laws Ann. tit. 29, § 146 -- rests comfortably on
the same conduct as the claim for First Amendment political
discrimination. As for the Fourteenth Amendment due process 22
claim, an action for deprivation of due process may be brought
based upon bias infecting administrative proceedings. See Esso
Standard Oil Co. v. López-Freytes, 522 F.3d 136, 145-48 (1st Cir.
2008). As discussed above, circumstantial evidence of such bias in

-- 25 of 47 --

-25-
the internal investigation and suspension of the plaintiffs existed
at the time of the complaint's filing.
In sum, our review of the record finds the evidence
available to plaintiffs at the time of filing easily sufficient to
support the reasonableness of their suit. We are left to choose
between one of two possible conclusions concerning the basis for
the district court's contrary assessment. First, the district
court may have failed to give any consideration to the evidence we
have discussed above, relying solely upon the plaintiffs' ultimate
inability to support their case at trial as a proxy for the
reasonableness of their suit at the outset -- in other words, a
pure application of hindsight logic. Second, the court may have
duly considered all available evidence of reasonableness, but
substantially discounted it in light of the failure of proof at
trial. The choice between the two makes little difference. In
either case, it is clear that the court gave significant weight to
a factor that should have received little or no consideration in
its analysis, see Christiansburg Garment, 434 U.S. at 421-22, and
we therefore must conclude that the court abused its discretion.
DeCicco, 370 F.3d at 210.
C. Reasonableness of Continuing Suit Through Trial
While the determination of whether to award attorney's
fees to a prevailing defendant must focus primarily on the claims
at the time that the complaint was filed, see Tang, 163 F.3d at 13,

-- 26 of 47 --

The fact that the district court's analysis focused on the 23
failure of proof at trial betrays some ambivalence about the basis
for its holding, i.e., whether it was based on a finding that the
plaintiffs' claims were groundless when filed or that they became
so during the lead-up to trial. We interpret the court's decision
to be based on the former, but note that there is room for the
latter interpretation.
-26-
fees also may be awarded on rare occasions where "the plaintiff
continued to litigate after [the claims] clearly became [frivolous,
unreasonable, or groundless]." Christiansburg Garment, 434 U.S. at
422 (emphasis added). The district court did not explicitly
address this basis for awarding fees in its opinion. Mayor Ortiz- 23
Vélez, however, argues it here as an alternative basis for the
award, contending that the plaintiffs should have dismissed their
suit at various points when its lack of merit purportedly became
clear (and, particularly, after the district court dismissed the
plaintiffs' due process claims against Mayor Ortiz-Vélez and the
Municipality of Sabana Grande).
Great caution must be taken in assessing whether a claim
"clearly" became untenable prior to the close of suit because of
the particular danger of hindsight logic. It would be all too easy
to assume that, if a claim did not prevail in the end, it must have
become obvious to the plaintiff at some earlier juncture (e.g.,
upon completion of discovery) that the claim lacked support. This
is exactly the sort of reasoning the Supreme Court cautioned
against in Christiansburg Garment. See id. at 421-22. Thus, while
a court need not find bad faith to justify an award of fees for the

-- 27 of 47 --

The subsidiary claim under the Puerto Rico Anti- 24
Discrimination Act was dismissed prior to trial, but, as discussed
above, it was -- and is -- not clear that the claim is barred by
existing law. And, as Mayor Ortiz-Vélez points out, summary
judgment was granted on the due process claim as to the Mayor and
Municipality; however, the claim proceeded to trial against the
remainder of the defendants.
-27-
continuation of a clearly untenable claim, id. at 421, it must at
a minimum find that, following the filing of the claim,
circumstances changed to such an extent that a reasonable person
could not help but conclude that the claim was no longer viable.
Such a change would include, for example, the receipt of evidence
in the course of discovery establishing a complete defense, or a
development in the controlling law that foreclosed the claim.
The record here betrays no significant change in
circumstances prior to trial that reasonably should have caused the
plaintiffs to conclude that their claims were no longer viable. In
fact, the most notable development in the case prior to trial sent
a contrary signal: the court denied the Mayor's post-discovery
summary judgment motion as to the plaintiffs' central political
discrimination claim. While the fact that a claim has survived 24
summary judgment is not, on its own, "entitled to decretory
significance," Foster, 943 F.2d at 144, it has some value in
determining whether a claim was or became unreasonable or without
foundation. See id.; Walker v. NationsBank of Fla. N.A., 53 F.3d
1548, 1559 (11th Cir. 1995) (holding that district court abused its
discretion in finding suit unreasonable and groundless where, inter

-- 28 of 47 --

-28-
alia, the court had denied two prior summary judgment motions);
Jensen v. Stangel, 762 F.2d 815, 818 (9th Cir. 1985) (noting that
earlier denials of defendants' motions to dismiss and for summary
judgment suggested that plaintiff's claims "were not without
merit"); cf. Fed. R. Civ. P. 11 advisory committee's note ("[I]f a
party has evidence with respect to a contention that would suffice
to defeat a motion for summary judgment based thereon, it would
have sufficient 'evidentiary support' for purposes of [satisfying]
Rule 11.").
The significance of a claim's withstanding summary
judgment will depend on the circumstances of the individual case,
and may not always bear a direct relation to its merits. In the
run of cases, however, most claims that would warrant an award of
attorney's fees under section 1988's relatively stringent standards
-- those that are truly "frivolous, unreasonable, or without
foundation," Christiansburg Garment, 434 U.S. at 421 -- will not
survive summary judgment. To overcome a summary judgment motion,
a plaintiff must introduce evidence that creates a "genuine issue
of material fact" as to the substance of her claims, i.e., one that
"could be resolved in favor of either party" and "has the potential
of affecting the outcome of the case." Vera v. McHugh, 622 F.3d
17, 26 (1st Cir. 2010) (internal quotation marks omitted). The
plaintiff's ability to make such a showing surely reflects on the

-- 29 of 47 --

-29-
question of whether the claim was, at the time, clearly frivolous,
unreasonable, or without foundation.
Of course, if it is clear that the court's denial of
summary judgment rested on grounds other than a merits assessment,
such as failure to comply with the procedures required by Rule 56
and its local corollaries, it should carry little or no weight in
assessing the reasonableness of the plaintiff's decision to
continue with suit. Here, however, there is nothing in the record
to dispel the natural inference that denial of summary judgment was
based on a determination of the adequacy of support for plaintiffs'
claims at the time of the summary judgment ruling. The order
denying summary judgment simply states that, "[h]aving considered
the motion, opposition, and supporting documents, the Court finds
that there are genuine issues as to material facts with regard to
the claims brought under the First Amendment" and thus "summary
judgment is not proper on those claims." The fact that the court
later characterized the plaintiffs' claims as having "squeaked by"
summary judgment (as well as an earlier motion to dismiss) reflects
the kind of hindsight logic rejected by Christiansburg Garment.
434 U.S. at 421-22.
Because we find no evidence that plaintiffs were
"clearly" unreasonable in continuing to prosecute their claims to
trial, and some evidence to the contrary, the district court's
award of fees cannot be justified on this ground.

-- 30 of 47 --

-30-
III.
We turn next to the order imposing sanctions on attorney
González personally. As with an award of attorney's fees, we
review a district court's imposition of sanctions for abuse of
discretion. Jensen v. Phillips Screw Co., 546 F.3d 59, 64 (1st
Cir. 2008). Though this standard of review is not "appellant-
friendly," id., we are "conscious of the impact of sanctions on
attorneys and take our oversight role seriously." Nw. Bypass Grp.
v. U.S. Army Corps of Eng'rs, 569 F.3d 4, 6 (1st Cir. 2009). A
reviewing court can find a sanction to be an abuse of discretion in
itself or in amount. Ameriquest Mortg. Co. v. Nosek (In re Nosek),
609 F.3d 6, 9 (1st Cir. 2010).
A. Sufficiency of Notice of Appeal
As a threshold matter, we examine the sufficiency of the
notice of appeal on this issue, which does not specifically
identify attorney González as an appellant. Because the sanctions
were imposed on attorney González personally, his clients have "no
pecuniary or . . . other sufficient interest in the award to confer
standing to appeal," DCPB, Inc. v. City of Lebanon, 957 F.2d 913,
919 (1st Cir. 1992) (alteration in original) (internal quotation
marks omitted); the plaintiffs do not contend otherwise. Defendant
Ortiz-Vélez argues that we thus lack jurisdiction to review the
imposition of sanctions on attorney González.

-- 31 of 47 --

We note that this amendment postdates our decision in DCPB, 25
in which we held under similar circumstances that the failure to
properly name a party's attorney as appellant in the party's notice
of appeal deprived us of jurisdiction to review sanctions levied
against the attorney under 28 U.S.C. § 1927. 957 F.2d at 918-19.
The amendment of Rule 3 plainly abrogated DCBP's holding as it
applies to circumstances analogous to those here and in DCBP
itself, i.e., where a notice of appeal names only the party as
appellant but appeals from an award of sanctions against the
party's attorney. We cannot imagine a set of circumstances in
which it would not be "clear" from such a notice that it was the
attorney who intended to appeal the award of sanctions.
-31-
The filing of a notice of appeal is indeed a
jurisdictional prerequisite, but we liberally construe the notice
requirements set forth in Federal Rule of Appellate Procedure 3.
Sueiro Vázquez v. Torregrosa de la Rosa, 494 F.3d 227, 233 (1st
Cir. 2007). Rule 3 was amended in 1993 to make clear that “[a]n
appeal must not be dismissed . . . for failure to name a party
whose intent to appeal is otherwise clear from the notice.” Fed. 25
R. App. P. 3(c)(4). Rule 3's notice requirement will be satisfied
where the notice of the appeal "provides sufficient notice to other
parties and the courts" of the party's intent to seek appellate
review. Sueiro Vázquez, 494 F.3d at 233 (quoting Smith v. Barry,
502 U.S. 244, 248 (1992)); see also Fed. R. App. P. 3 advisory
committee's note ("If a court determines it is objectively clear
that a party intended to appeal, there are neither administrative
concerns nor fairness concerns that should prevent the appeal from
going forward.").

-- 32 of 47 --

Plaintiffs also cite Rule 44.1 of the Federal Rules of Civil 26
Procedure in their briefing on the appropriateness of sanctions.
Plaintiffs likely mean to refer to Rule 44.1 of the Puerto Rico
Rules of Civil Procedure, which permits sanctions for a losing
party's "stubbornness, obstinacy, rashness, and insistent frivolous
attitude," see Top Entm't, Inc. v. Torrejon, 351 F.3d 531, 533 (1st
Cir. 2003) (internal quotation marks omitted), rather than Federal
Rule of Civil Procedure 44.1, which relates to determinations of
foreign law. Though plaintiffs' counsel surely behaved in an
obstinate and rash manner throughout the trial, Puerto Rico Rule
44.1 was not cited as a ground for sanctions by the court, nor is
it applicable in a case where jurisdiction arises from federal law.
But cf. Dopp v. Pritzker, 38 F.3d 1239, 1252 (1st Cir. 1994)
(Puerto Rico Rule 44.1 applies in diversity cases).
-32-
Though attorney González was not specifically named in
the notice of appeal, the appeal was taken from an order denying
reconsideration of both the award of fees against plaintiffs and
the imposition of sanctions on attorney González. There is no
question from the notice of appeal that attorney González intended
to appeal the imposition of sanctions, and that is sufficient to
satisfy Rule 3.
B. Legal Basis for Sanctions
The district court purported to make its order imposing
sanctions on attorney González under both Federal Rule of Civil
Procedure 11 and 28 U.S.C. § 1927. For several reasons, we hold 26
that only section 1927 affords a defensible basis for sanctions in
these circumstances.
1. Rule 11 Sanctions
Among other factors disqualifying Rule 11 as a basis for
the sanctions here, the court and defendant Ortiz-Vélez failed to

-- 33 of 47 --

An order sanctioning an attorney under Rule 11 may be 27
entered either on a party's motion or on the court's own
initiative. If the court had imposed sanctions on its own
initiative, Rule 11 would have required it to first issue an order
to show cause why the challenged conduct had not violated Rule 11.
Fed. R. Civ. P. 11(c)(3). No such order was issued. Additionally,
the court would have been unable to award fees to defendant, as it
did here, because any monetary sanction imposed by the court sua
sponte must be payable to the court alone. Fed. R. Civ. P.
11(c)(4) and advisory committee's note.
-33-
satisfy the Rule's procedural requirements. The court indicated
that the sanctions here were imposed on the defendant's motion.27
Rule 11 motions are governed by carefully wrought procedures
designed to "stress the seriousness of a motion for sanctions."
Fed. R. Civ. P. 11 advisory committee's note. A Rule 11 motion
must be made "separately from any other motion," Fed. R. Civ. P.
11(c)(2), and "not simply . . . as an additional prayer for relief
contained in another motion." Id., advisory committee's note. The
moving party must furthermore serve the Rule 11 motion on opposing
counsel at least twenty-one days prior to filing with the court so
as to provide the adversary time to withdraw the challenged paper,
claim, contention, or defense. See Fed. R. Civ. P. 11(c)(2);
Radcliffe v. Rainbow Constr. Co., 254 F.3d 772, 789 (9th Cir. 2001)
(reversing award of Rule 11 sanctions where moving party failed to
comply with twenty-one-day "safe harbor" provision).
None of these requirements was met here. Defendant
Ortiz-Vélez's request for fees against attorney González appeared
not as a separate motion, but as an alternative request at the tail

-- 34 of 47 --

The "frivolous appeals" to which the district court referred 28
were the plaintiffs' initial appeal from the judgment, which was
dismissed following settlement, and a November 2006 appeal from two
post-judgment orders (an order taxing costs against the plaintiffs
and an order related to documentation of attorney's fees), which
the plaintiffs also later dismissed.
-34-
end of a motion for attorney's fees under 42 U.S.C. § 1988.
Notably, the request did not even include a specific reference to
Rule 11, citing only 28 U.S.C. § 1927. Nor was attorney González
served with the motion twenty-one days prior to its filing. See
Radcliffe, 254 F.3d at 789 (characterizing twenty-one-day safe
harbor provision as "mandatory").
Even if these procedural safeguards had been satisfied,
Rule 11 could not provide a proper basis for the court's award of
sanctions. The court's order detailed three separate grounds for
sanctions, but only the first of these -- the vexatious conduct of
plaintiffs' counsel -- was adequately supported. The court cited
as additional or alternative grounds (1) the filing of "frivolous
claims . . . with no basis in fact" and (2) the filing of
"frivolous appeals." Our holding that the plaintiffs' suit had 28
adequate foundation at the time of filing forecloses the "frivolous
claims" argument, and the court made no findings sufficient to
support its characterization of plaintiffs' prior appeals as
"frivolous." Moreover, it is Federal Rule of Appellate Procedure
38, not Federal Rule of Civil Procedure 11, that authorizes

-- 35 of 47 --

The district court cited in support of its award of 29
sanctions only one incident of misconduct prior to the start of
trial, dating back to 2003. On that occasion, in response to a
motion by defendants for plaintiffs to "distill" the language used
in their filings with the court, the court admonished plaintiffs to
"refrain from making injurious remarks" and "avoid any unnecessary
rhetoric irrelevant to the issues of the case."
-35-
sanctions for the filing of frivolous appeals. See Fed. R. App. P.
38; Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 406-09 (1990).
Thus, the only viable basis for the court's award of
sanctions was attorney misconduct, the bulk of which occurred
during trial. And, no matter how vexatious or disruptive 29
counsel's conduct was during trial, Rule 11 cannot reach such
misconduct. The Rule applies only to written papers filed with or
submitted to the court, and does not govern the conduct of
litigation more generally. See Fed. R. Civ. P. 11(b) (referring to
"a pleading, written motion, or other paper"); id., advisory
committee's note ("The rule applies only to assertions contained in
papers filed with or submitted to the court."); 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 cases."), abrogated
on other grounds by Cooter & Gell, 496 U.S. 384.
2. Sanctions under Section 1927
Unlike Rule 11, section 1927 applies precisely to the
misconduct underlying the district court's award of sanctions.
Section 1927 authorizes the imposition of sanctions against an

-- 36 of 47 --

-36-
attorney "who so multiplies the proceedings in any case
unreasonably and vexatiously." 28 U.S.C. § 1927. Litigation
conduct qualifies as "vexatious" if it is "harassing or annoying,
regardless of whether it is intended to be so." Cruz v. Savage,
896 F.2d 626, 632 (1st Cir. 1990). We have stated that section
1927 does not apply to "[g]arden-variety carelessness or even
incompetence," but instead requires that the "attorney's actions .
. . evince a studied disregard of the need for an orderly judicial
process, or add up to a reckless breach of the lawyer's obligations
as an officer of the court." Jensen, 546 F.3d at 64 (citation
omitted).
The types of litigation conduct we have previously found
vexatious and unreasonable -- e.g., attempting to introduce
evidence on irrelevant matters in the face of numerous admonitions
to desist, and "engag[ing] in obfuscation of the issues,
hyperbolism and groundless presumptions," Cruz, 896 F.2d at 634 --
pervade the record here. At trial, attorney González repeatedly
ignored evidentiary rulings, pressing forward to ask questions
identical to those barred, often just moments prior, by the trial
judge. On one occasion, attorney González refused to leave the
sidebar when ordered to after an adverse ruling, forcing the judge
to remove the jury from the room and censure the attorney for his
obstinacy and manifest disrespect. Attorney González further
persisted, in contravention of his obligations as an officer of the

-- 37 of 47 --

One such episode involved a tape of an interview with 30
defendant Gracia-Ortiz. Attorney González represented to the
court, in front of the jury, that the tape captured Gracia-Ortiz
making a public promise to terminate the plaintiffs' employment in
January 2002, well before the internal investigation of the
December 15, 2001 incident had concluded. When the court was given
a chance to examine the tape out of the presence of the jury, it
learned that Gracia-Ortiz had actually stated, "Should there be
cause, we will request a summary suspension of Sergeant Figueroa
and [Lamboy-Ortiz]." The court admonished attorney González for
the misrepresentation, but he refused to acknowledge fault, saying,
"Your Honor, that was my interpretation."
-37-
court, in making blatant misrepresentations and referring to
matters not established by evidence in the record. This 30
misconduct evoked a string of warnings from an admirably patient
trial judge, starting with an order near the outset of the case
instructing plaintiffs' counsel to "refrain from making injurious
remarks" and "avoid unnecessary rhetoric irrelevant to the issues
of the case," and proceeding to multiple, on-the-record
admonishments and threats of sanction during trial.
In light of this pattern of vexatious behavior, we hold
that the district court was well within its discretion in finding
attorney González subject to sanctions under section 1927.
Moreover, while we have often noted "the general desirability and
sometime necessity of affording notice and an opportunity to be
heard when monetary sanctions are imposed," Media Duplication
Servs., Ltd. v. HDG Software, Inc., 928 F.2d 1228, 1238 (1st Cir.
1991), we find no abuse of discretion here in the imposition of
sanctions without a hearing. The sanctions were imposed largely on

-- 38 of 47 --

If we had found the sanctions to properly rest on Rule 11 31
grounds and not solely on counsel's vexatious conduct, we would be
considerably more concerned by the absence of an opportunity for
the presentation of "'factual material that might have led
[plaintiffs' counsel] to form a reasonable belief that the'
statements made in [the pleadings] were supportable." Media
Duplication Servs., 928 F.2d at 1239 (quoting Bay State Towing Co.
v. Barge Am. 21, 899 F.2d 129, 131 (1st Cir. 1990)).
-38-
the basis of conduct that occurred within the court's presence (and
in relation to which the plaintiffs' counsel had received numerous
warnings), and thus there were few issues, if any, that could have
been clarified by the presentation of additional evidence or
testimony. See Silverman v. Mut. Trust Life Ins. Co. (In re Big 31
Rapids Mall Assocs.), 98 F.3d 926, 929 (6th Cir. 1996) (“A hearing
is not necessarily required [before the imposition of sanctions]
where the court has full knowledge of the facts and is familiar
with the conduct of the attorneys.”). Moreover, plaintiffs'
counsel had the opportunity to brief the sanctions issue twice,
first in his opposition to defendant Ortiz-Vélez's fee request and
later in a lengthy motion for reconsideration of the sanctions and
fee orders. Cf. Muthig v. Brant Point Nantucket, Inc., 838 F.2d
600, 606-07 (1st Cir. 1988) (briefing process provided adequate
opportunity to present evidence and argument on Rule 11 motion),
abrogated on other grounds by Cooter & Gell, 496 U.S. 384. Given
these circumstances, the district court did not abuse its
discretion in imposing sanctions without affording counsel a
hearing.

-- 39 of 47 --

-39-
C. Amount of the Sanction
The final question before us is whether the district
court strayed outside the boundaries of its discretion in imposing
sanctions totaling more than $60,000 on attorney González. In
examining this question, we look first to the purpose of section
1927.
Unlike Rule 11, which finds its justification exclusively
in deterrence, see Fed. R. Civ. P. 11 advisory committee's note
("[T]he purpose of Rule 11 sanctions is to deter rather than to
compensate."), it is not clear from the face of section 1927
whether the statute is primarily compensatory or deterrent in
nature -- and, accordingly, whether or not the amount of a sanction
must be set, as under Rule 11, at the minimum level necessary to
"deter repetition of the offending conduct or comparable conduct by
others." In re Nosek, 609 F.3d at 9 (citing Fed. R. Civ. P.
11(c)(4)). The legislative history of section 1927, to the extent
it provides any guidance, suggests both deterrent and compensatory
intent. Enacted in 1813, section 1927 was amended in 1980 to
expand the scope of sanctions from the award of "excess costs" to
"excess costs, expenses, and attorneys' fees." The House
Conference Committee report on the 1980 amendment describes the
statute's primary purpose to be "deter[rence of] unnecessary delays
in litigation." H.R. Rep. No. 96-1234, at 8 (1980) (Conf. Rep.),
reprinted in 1980 U.S.C.C.A.N. 2781, 2782. However, the report

-- 40 of 47 --

-40-
also describes the statute's function as one of compensation for
injury caused by litigation delay: "[I]f an attorney does violate
[section 1927's prohibition of dilatory conduct], and by such
conduct causes the other parties to incur expenses or fees that
[they] otherwise would not have incurred, the attorney should be
required to satisfy personally this full range of excess costs
attributable to such conduct." Id.
Based on the Conference Committee report, a number of our
sister circuits have described the primary purposes of section 1927
to be deterrence and punishment of dilatory litigation tactics.
See In re Schaefer Salt Recovery, Inc., 542 F.3d 90, 101 (3d Cir.
2008); Red Carpet Studios Div. of Source Advantage, Ltd. v. Sater,
465 F.3d 642, 646 (6th Cir. 2006); United States v. Int'l
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of
Am., AFL-CIO, 948 F.2d 1338, 1345 (2d Cir. 1991); Beatrice Foods
Co. v. New England Printing & Lithographing Co., 899 F.2d 1171,
1177 (Fed. Cir. 1990). However, deterrence and compensation may be
served simultaneously, see Hamilton v. Boise Cascade Express, 519
F.3d 1197, 1206 (10th Cir. 2008), and we believe that the fairest
reading of section 1927 and its legislative history suggests that
the statute's purpose is both to "deter frivolous litigation and
abusive practices by attorneys and to ensure that those who create
unnecessary costs also bear them." Riddle & Assocs., P.C. v.

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By the same token, though, we have held that a court has 32
discretion to award less than the full amount required to
compensate the injured party. See Cruz, 896 F.2d at 634-35.
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Kelly, 414 F.3d 832, 835 (7th Cir. 2005) (emphasis added) (internal
quotation marks omitted).
Because of this dual purpose, it will not be appropriate
in all cases to limit sanctions under section 1927 to the minimum
level necessary to deter repeated or similar conduct. Accordingly,
a court will not necessarily abuse its discretion by awarding under
section 1927 a sum in excess of what would be required to serve
deterrence, where that sum is calculated to compensate a party for
injury caused by an adversary's dilatory tactics. We caution that 32
any such compensatory sanction imposed under section 1927 must
nonetheless be carefully crafted to avoid "dampen[ing] the
legitimate zeal of an attorney in representing his client." H.R.
Rep. No. 96-1234, at 8. Where sanctions under section 1927 are
not, however, expressly tied by the court to compensation of
quantifiable costs incurred by a party due to an opponent's
dilatory conduct, we will presume the purpose of the award is
deterrent in nature. Such sanctions structured to deter or punish
vexatious behavior must be limited, as under Rule 11, to the
minimum amount necessary to serve that purpose.
In this case, the district court's award of sanctions was
clearly designed to deter and punish counsel's misconduct rather
than compensate for delay, and as such must be limited to the

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minimum sum necessary for deterrence. Though it was no doubt an
incidental effect of attorney González's disruptions at trial,
delay was not highlighted in the court's sanctions opinion. The
opinion focused instead on his vexatious behavior and "flaunting of
the Court's rulings and directions."
The sanction could be considered "compensatory" only in
the sense that it was imposed as a portion of the attorney's fee
award, which in turn was structured to compensate Mayor Ortiz-Vélez
for defense of the entire action, characterized by the court as
frivolous and groundless. We have already rejected the basis for
that compensatory award. Also, the district court made no
separate, particularized assessment of what would be necessary to
actually compensate defendant Ortiz-Vélez for excess costs or
attorney's fees attributable to delay. Rather, the court arrived
at its $64,936 sanction simply by multiplying the total fee award
($194,808) by one third, a multiplier which appears to have been
arbitrarily chosen.
We thus must determine whether the award of $64,936 in
sanctions was sufficiently in excess of what was necessary for
deterrence so as to constitute an abuse of discretion. There
exists no mathematical formula for calibrating sanctions to the
optimal sum that will preserve a deterrent effect while imposing no
more a burden on the parties or attorneys than is necessary. Some
guidance can be found in the Advisory Committee notes to Rule 11,

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which offer a non-exhaustive list of factors relevant to this
determination. Because of Rule 11's focus on deterrence, the
Advisory Committee's list, while not directly applicable to
calculation of sanctions under section 1927, is instructive:
Whether the improper conduct was willful, or
negligent; whether it was part of a pattern of
activity, or an isolated event; . . . whether
the person has engaged in similar conduct in
other litigation; whether it was intended to
injure; what effect it had on the litigation
process in time or expense; whether the
responsible person is trained in the law; what
amount, given the financial resources of the
responsible person, is needed to deter that
person from repetition in the same case; [and]
what amount is needed to deter similar
activity by other litigants.
Several of these factors weigh in favor of a sanction that is not
just a slap on the wrist but carries instead some lasting sting.
First, the conduct at issue was not merely negligent; while a
portion of attorney González's missteps might be attributed to
negligence or poor preparation, not all can be so explained. A
number of the incidents highlighted by the district court in its
sanctions order, particularly attorney González's failure to obey
direct instructions by the judge, involved behavior that was
undeniably willful and disrespectful to the court and its
processes. Second, attorney González is trained in the law and
apparently well traveled in the federal courts, and thus his
mistakes cannot be ascribed to inexperience. Third, attorney
González appeared unable or unwilling to learn from his mistakes,

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See, e.g., In re Nosek, 609 F.3d at 10 (holding sanction of 33
$250,000 under Federal Rule of Bankruptcy Procedure 9011 to be
excessive and reducing to $5,000); Remexcel Managerial Consultants,
Inc. v. Arlequín, 583 F.3d 45, 49 (1st Cir. 2009) (noting district
court's order imposing sanctions of $2,000 under section 1927);
Roger Edwards, LLC v. Fiddes & Son Ltd., 437 F.3d 140 (1st Cir.
2006) (upholding Rule 11 sanction of $4,553.10, and awarding $1,500
in sanctions and double costs under Federal Rule of Appellate
Procedure 38); Nyer v. Winterthur Int'l, 290 F.3d 456 (1st Cir.
2002) (upholding Rule 11 sanctions of $8,690); Pimentel v. Jacobsen
Fishing Co., 102 F.3d 638 (1st Cir. 1996) (imposing sanctions of
$8,406 on counsel, pursuant to Federal Rule of Appellate Procedure
38 and section 1927); O'Ferral v. Trebol Motors Corp., 45 F.3d 561,
564 (1st Cir. 1995) (upholding award of $8,000 in Rule 11
sanctions, while noting that "[n]o one remotely familiar with
lawyer fees can doubt that the defense spent vastly more than
$8,000 on this case"); Mariani v. Doctors Assocs., Inc., 983 F.2d
5 (1st Cir. 1993) (affirming $7,500 in Rule 11 sanctions against
plaintiff's counsel, based on billing records showing that
defendants had spent over $14,000 in defending challenged motion);
Navarro-Ayala v. Nunez, 968 F.2d 1421, 1428 (1st Cir. 1992)
(holding Rule 11 sanction of $20,000 to be excessive and reducing
to $6,500).
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as his pattern of misconduct continued unabated despite numerous
warnings from the court.
There can be no doubt of the need for a sanction that
will signal to attorney González the seriousness of his misconduct
and deter similar behavior in the future. Nonetheless, we find
$64,936 to exceed what is reasonably necessary for these purposes.
The sum lies far outside the mainstream in this circuit, where
sanctions typically amount to less than $10,000. Moreover, the 33
sanction appears likely to impose an unjustifiable hardship on
attorney González, who, according to counsel's representations to
the court, operates a small law office in partnership with his son,
and for whom $64,936 would likely threaten financial disaster.

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The sanctions, though reduced in amount, will remain payable 34
to Mayor Ortiz-Vélez, as required by section 1927. See Prosser v.
Prosser, 186 F.3d 403, 407 (3d Cir. 1999) ("[S]ection 1927 only
allows the court to award costs and attorney fees payable to the
opposing party, not payable to the court."). That the award of
sanctions is paid to the moving party in no way undercuts the
deterrent function of the sanctions.
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Accordingly, we modify the sanction to $5,000, a sum we deem
sufficient to deter similar conduct by attorney González in the
future and place other potential offenders on notice of the
consequences of such conduct.34
IV.
Our decision here should not be interpreted as a
criticism of the district court's handling of the case below, which
was commendable in nearly every respect. As we have noted,
attorney González's conduct was unusually disruptive, vexing, and
difficult to control, and the district court showed admirable
patience throughout. That we have ultimately concluded that we
must vacate the award of attorney's fees and reduce the sanctions
imposed on counsel does not in any way detract from our respect for
the work of the district court, which faced a host of difficult
problems in presiding over this case.
We must, however, exercise particular care in reviewing
fee awards in civil rights cases to prevent the chilling of
meritorious litigation. The district court gave improper and
apparently dispositive weight to the failure of proof at trial in
determining whether the plaintiffs' lawsuit was groundless when

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filed, and the court thereby abused its discretion. Hence, we
vacate the $129,872 fee award. We affirm the court's sanctions,
pursuant to 28 U.S.C. § 1927, of attorney González's vexatious
behavior throughout the trial below, but reduce the sanction to
$5,000. The parties shall bear their own costs on appeal.
So ordered.

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