Pimentel-Soto v. v. ( 2020 )

United States Court of Appeals
For the First Circuit
No. 17-1967
KENDYS PIMENTEL-SOTO,
Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Howard, Chief Judge,
Thompson and Kayatta, Circuit Judges.
Kendys Pimentel-Soto, pro se.
Mariana E. Bauzá-Almonte, Assistant United States Attorney,
Chief, Appellate Division, with whom Rosa Emilia Rodríguez-Vélez,
United States Attorney, was on brief, for the United States.
April 23, 2020
KAYATTA, Circuit Judge. Attorney Kendys Pimentel-Soto
appeals from the district court's order sanctioning her for failing
to appear at a status conference. For the reasons that follow, we
reverse the issuance of the sanction.
I.
The District Court for the District of Puerto Rico
appointed attorney Pimentel-Soto to represent a single defendant
in a criminal case under the Criminal Justice Act on September 1,
2015.1 Two weeks later, Pimentel-Soto failed to appear at a status
conference scheduled for September 16, 2015. The district court
opened the conference by imposing a one-hundred-dollar monetary
sanction on Pimentel-Soto for her failure to appear. In her
absence, the government provided updates on the case, and the court
set the dates for a pretrial conference and trial.
Hours after the district court imposed its sanction,
Pimentel-Soto filed a motion for reconsideration asking the court
to excuse her non-appearance. She explained that her absence was
due to "mistake," because she "scheduled the hearing in her
electronic calendar for [the following day] September 17th, 2015,
at 9:00 a.m." According to her, at the time of the hearing, she
was meeting with her client in preparation for the hearing, which
she believed was to be held the next day. She pointed the court
1 Pimentel-Soto was appointed in case United States v.
González-Seda, 224 F. Supp. 3d 128 (D.P.R. 2016).
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to evidence of her "active attention to th[e] case," including her
prompt and timely filing of motions upon her recent appointment.
The district court denied the motion for reconsideration
on the same day, and ordered that payment be made in two days.
Pimentel-Soto then filed a second motion for reconsideration, also
on the same day. This time, she insisted that the district court
grant her a hearing so that she might show cause for why her
failure to appear "[did] not merit this type of sanction," in light
of the "punitive character of such sanction and its stigma on [her]
professional reputation and record." In support of her motion,
Pimentel-Soto attached a copy of the calendar she used, showing
the scheduling error she had made. She also noted that this was
the first occasion on which her punctuality at court had been
criticized. The district court denied the second motion for
reconsideration without holding any hearing.
On September 18, 2015, Pimentel-Soto asked the district
court to stay payment of the sanction pending her appeal to this
court. The district court denied this request. Pimentel-Soto
paid the fine and filed a motion indicating that she did so under
protest. In her appeal, she alleges continuing harm to her
reputation as a result of the sanction.
II.
Pimentel-Soto first contends that the district court
abused its discretion by not providing a justification for imposing
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its sanction. Second, she asserts that the district court had no
ability to sanction her given that her absence was a mistake, and
she did not act in bad faith, recklessly, or with willful
disobedience of a court order. Third, she claims that the district
court imposed a monetary sanction "without prior notice and
opportunity to be heard," such that the court's actions
"constituted an abuse of discretion and violated her Fifth
Amendment right to due process." Fourth, she argues that the
decision to sanction her was "arbitrary and capricious." In
support of her last two arguments, she points to other cases in
the District of Puerto Rico in which attorneys have failed to
appear at status conferences under similar circumstances but have
not been sanctioned, or where the district court has offered an
opportunity for the attorneys to show cause, or both.
We begin our response to these arguments by reiterating
our previously-stated admonition: Counsel "have an obligation to
remain informed about the status of their cases and comply with
applicable scheduling orders issued by the court." United States
v. Romero-López, 661 F.3d 106, 108 (1st Cir. 2011) (citing
Rosario-Diaz v. Gonzalez, 140 F.3d 312, 314 (1st Cir. 1998)
(recognizing that "parties are 'fully chargeable with knowledge of
what the docket disclosed'")). In this case, the district court's
scheduling order clearly provided that "[c]ounsel's timely
attendance is expected at each scheduled in-court conference," and
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that "[f]ailure to attend or be fully prepared . . . may entail
sanctions." The district judge's Amended Standing Order also
plainly indicated that proceedings commence sharply at 9:00 a.m.
and that failure to comply with this order "may result in
sanctions."
The district court's inherent power to control and
regulate proceedings, see Romero-López, 661 F.3d at 107-08; United
States v. Kouri-Pérez, 187 F.3d 1, 7 (1st Cir. 1999), includes the
power to impose reasonable sanctions for failures to comply with
scheduling orders and attendance requirements, see Romero-López,
661 F.3d at 107-08; see also Santiago-Díaz v. Laboratorio Clínico
y de Referencia del Este, 456 F.3d 272, 275 (1st Cir. 2006)
(affirming a sanction for failure to comply with case-management
orders and other imposed deadlines). As we have done in the past,
we therefore review the sanctions issued pursuant to this inherent
power for an abuse of discretion. See In re Plaza Martínez, 747
F.3d 10, 13 (1st Cir. 2014) (citing Chambers v. NASCO, Inc., 501
U.S. 32, 55 (1991)).
Our case law gives considerable latitude to district
courts in issuing sanction orders. See id. at 13 (recognizing
that "trial judges have appreciable leeway in managing their
crowded dockets and in determining the appropriateness of
sanctions"). We have not imposed the substantive limitation asked
for by Pimentel-Soto, namely that the court only issue a sanction
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under its local rules where the lawyer's conduct is defiant of the
court, vexatious, or willful, as opposed to merely negligent or
unintentional. See Charbono v. Sumski, 790 F.3d 80, 88 (1st Cir.
2015) (explaining that the "absence of bad faith does not serve to
undermine" sanctions imposed under a court's "inherent power," and
distinguishing situations in which this general principle would
conflict with a more specific rule, such as an award of attorney's
fees); Romero–López, 661 F.3d at 108 (finding that a sanction was
based on the court's inherent power precisely because it was not
based on contempt); In re Smothers, 322 F.3d 438, 443 (1st Cir.
2003) (noting that "[d]istrict judges routinely impose monetary
penalties for tardiness without resorting to a finding of criminal
contempt"); Kouri-Pérez, 187 F.3d at 8 (recognizing that
"non-contempt sanctions normally suffice in circumstances
involving less culpable states of mind"). But cf. In re Plaza
Martínez, 747 F.3d at 13 ("In general, a court may levy . . . a
sanction 'upon finding that a party has "acted in bad faith,
vexatiously, wantonly, or for oppressive reasons."'" (quoting
F.A.C., Inc. v. Cooperativa de Seguros de Vida de P.R., 563 F.3d
1, 6 (1st Cir. 2009) (reviewing an inherent-power sanction ordering
payment of attorney's fees and costs)); Lamboy-Ortiz v. Ortiz-
Vélez, 630 F.3d 228, 245-46 (1st Cir. 2010) (explaining that
sanctions under 28 U.S.C. § 1927 are not applicable in
circumstances of "[g]arden-variety carelessness or even
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incompetence," and that they instead require "a studied disregard
of the need for an orderly judicial process, or . . . reckless
breach of the lawyer's obligations as an officer of the court"
(first alteration in original) (quoting Jensen v. Phillips Screw
Co., 546 F.3d 59, 64 (1st Cir. 2008))). Nonetheless, even at its
most robust, "a judge's power to sanction an attorney is not
unbridled." In re Plaza-Martínez, 747 F.3d at 13 (quoting United
States v. Figueroa-Arenas, 292 F.3d 276, 279 (1st Cir. 2002)).
In this case, three aspects of the district court's use
of sanctions, when combined, give us pause. First, as one might
expect, the presiding district judge in this case does not
uniformly sanction all counsel who fail to appear. To the
contrary, the court's standard form scheduling order states that
sanctions for failure to appear "may" be issued. And the district
judge confirms that he "imposes sanctions sparingly and in the
context of each case." Written Statement of the United States
District Court for the District of Puerto Rico at 17,
Pimentel-Soto, No. 17-1967 (1st Cir. Oct. 7, 2019), ECF No. 48.
Data provided by Pimentel-Soto and the government further suggest
that there are indeed quite a few cases in which lawyers who fail
to appear are not sanctioned.
Second, we cannot discern what criteria determine which
non-appearing attorneys are sanctioned and which ones are not.
There may be some inclination towards not sanctioning lawyers for
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their first failure to appear, although this case makes clear that
any such dispensation is not uniformly applied. Overall, the data
do not reveal a pattern sufficient to inform lawyers of the
circumstances in which they will, or will not, incur sanctions due
to non-attendance. We suspect that the criteria may be something
like good cause. But then it is difficult to see how there could
be many failures to appear that are more innocent than this one,
where counsel's neglect was in failing to take sufficient care in
entering the conference date on an office calendar. There is no
hint in either the local rules, the standing order of any judge,
or case law indicating what criteria differentiate this failure
from those not sanctioned.
In previous cases, we have reversed sanctions where we
have found that the attorney did not have adequate notice of the
rule forming the basis of a sanction. See, e.g., United States v.
Agosto-Vega, 731 F.3d 62, 66 (1st Cir. 2013); Boettcher v. Hartford
Ins. Grp., 927 F.2d 23, 26 (1st Cir. 1991); In re Richardson, 793
F.2d 37, 41 (1st Cir. 1986). The lack of notice that concerns us
here is partial and implicit: The specter of a fine is disclosed,
but no hint is provided as to why it is imposed sometimes and often
not others. Clarity about a rule requires clarity about available
excuses or exceptions to it. As our due process case law has
recognized, some reasonable notice as to what circumstances result
in a fine and what circumstances do not ensures that persons have
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a "reasonable opportunity to understand what conduct [the rule]
prohibits" in the first place. Hill v. Colorado, 530 U.S. 703,
732 (2000). That notice also guards against arbitrariness in
application and enforcement, thus warding off claims of the sort
raised here. Id.
Third, the district court fined counsel without first
giving her a chance to show cause or explain her failure to appear.
We have repeatedly urged district courts to listen before
sanctioning. "[W]hen 'a court is considering invoking its inherent
power to sanction, the much better practice is for the court to
hear from the offending attorney before imposing any sanctions.'"
Agosto-Vega, 731 F.3d at 66 (quoting Romero-López, 661 F.3d at
108); see also Kouri-Pérez, 187 F.3d at 13-14 (explaining that
when imposing sanctions district courts may not simply overlook
relevant due process considerations). We have recognized an
exception when the conduct calling for a sanction occurs in the
judge's presence. See Agosto-Vega, 731 F.3d at 66. Here, the
non-appearance itself occurred in the judge's presence. But the
reason for the non-appearance was not known to the judge when he
issued the sanction. And as we have just explained, and as best
we can tell, it might be something about the reason for an
attorney's absence that accounts for why some attorneys are not
sanctioned for failing to appear.
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We do not doubt that the district court has in mind fair
criteria or factors by which it differentiates its treatment of
lawyers who fail to appear. But without notice of these criteria,
the bar and public may think otherwise. Unequal treatment without
an opportunity to be heard before a sanction is imposed and the
absence of any explanation for that inequality may cause observers
to suspect irrationality or worse. And our own confidence that
such suspicions are unwarranted serves as too pat a reassurance.
To be clear, sanctions for non-appearance may be
imposed. A small fine uniformly applied with strict liability
would at least not appear capricious in its application. But we
doubt that district court judges would want to impose sanctions in
the absence of any fault at all, such as (for example) where
counsel suffers a heart attack on the way to court. It is
presumably for this good reason that strict liability is apparently
not the current practice.
A rule that a fine will be imposed absent a showing of
no neglect would also plainly work. Of course, a fine under such
a rule would not be imposed before the court learned the facts
upon which issuance of the sanction hinged. Rather, an order to
show good cause would issue, in response to which most counsel
would likely simply send in the fine (perhaps with an apology)
absent some good excuse other than neglect. And contrary to what
Pimentel-Soto fears, an uncharacteristic and unintentional error
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of this sort would not normally reflect adversely on the lawyer's
ethics or customary reliability.
While reaffirming the inherent power of the district
court to issue sanctions on counsel, we reiterate that these powers
must be "exercised with restraint and circumspection." United
States v. Horn, 29 F.3d 754, 760 (1st Cir. 1994); see also
Romero-López, 661 F.3d at 107 ("Because of their very potency,
inherent powers must be exercised with restraint and discretion."
(alteration omitted) (quoting Chambers, 501 U.S. at 44)). Where
the facts that are apparently decisive in determining whether
conduct will be sanctioned are unknown to the judge until counsel
is heard from, issuance of a sanction without any opportunity to
be heard beforehand "increases the likelihood of error and the
appearance of unfairness." Agosto-Vega, 731 F.3d at 66.
III.
For the foregoing reasons, and exercising our
supervisory authority, see United States v. Curran, 926 F.2d 59,
63 (1st Cir. 1991) (citing Thomas v. Arn, 474 U.S. 140, 146-47
(1985)), we reverse the sanction in this case.
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