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,

(D.P.R. 2016).

- 2 - 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

- 3 - 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,

(1st Cir. 2011) (citing

Rosario-Diaz v. Gonzalez,

(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

- 4 - 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,

; United

States v. Kouri-Pérez,

(1st Cir. 1999), includes the

power to impose reasonable sanctions for failures to comply with

scheduling orders and attendance requirements, see Romero-López,

; see also Santiago-Díaz v. Laboratorio Clínico

y de Referencia del Este,

(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,

(1st Cir. 2014) (citing Chambers v. NASCO, Inc.,

(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

- 5 - 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,

(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,

(finding that a sanction was

based on the court's inherent power precisely because it was not

based on contempt); In re Smothers,

(1st Cir.

2003) (noting that "[d]istrict judges routinely impose monetary

penalties for tardiness without resorting to a finding of criminal

contempt"); Kouri-Pérez,

(recognizing that

"non-contempt sanctions normally suffice in circumstances

involving less culpable states of mind"). But cf. In re Plaza

Martínez,

("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.,

(1st Cir. 2009) (reviewing an inherent-power sanction ordering

payment of attorney's fees and costs)); Lamboy-Ortiz v. Ortiz-

Vélez,

(1st Cir. 2010) (explaining that

sanctions under

are not applicable in

circumstances of "[g]arden-variety carelessness or even

- 6 - 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.,

(1st Cir. 2008))). Nonetheless, even at its

most robust, "a judge's power to sanction an attorney is not

unbridled." In re Plaza-Martínez,

(quoting United

States v. Figueroa-Arenas,

(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

- 7 - 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,

(1st Cir. 2013); Boettcher v. Hartford

Ins. Grp.,

(1st Cir. 1991); In re Richardson,

(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

- 8 - a "reasonable opportunity to understand what conduct [the rule]

prohibits" in the first place. Hill v. Colorado,

(2000). That notice also guards against arbitrariness in

application and enforcement, thus warding off claims of the sort

raised here.

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,

(quoting Romero-López,

); see also Kouri-Pérez,

(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,

. 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.

- 9 - 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

- 10 - 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,

(1st Cir. 1994); see also

Romero-López,

("Because of their very potency,

inherent powers must be exercised with restraint and discretion."

(alteration omitted) (quoting Chambers,

)). 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,

.

III.

For the foregoing reasons, and exercising our

supervisory authority, see United States v. Curran,

(1st Cir. 1991) (citing Thomas v. Arn,

(1985)), we reverse the sanction in this case.

- 11 -