March 31, 1994
                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                           

No. 93-1720

                      RICHARD SILVA, ET AL.,

                      Plaintiffs, Appellees,

                                v.

         PETER WITSCHEN, CITY OF EAST PROVIDENCE, ET AL.,

                      Defendants, Appellees,

                         STEPHEN LINDER,

                            Appellant.

                                           

                              ERRATA

   The opinion of this Court issued on March 24, 1994, is amended as
follows:

   On Page 13, Paragraph 2 on Line 3, please insert "sanction" after
"Rule 11".

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                           

No. 93-1720

                      RICHARD SILVA, ET AL.,

                      Plaintiffs, Appellees,

                                v.

         PETER WITSCHEN, CITY OF EAST PROVIDENCE, ET AL.,

                      Defendants, Appellees,

                         STEPHEN LINDER,

                            Appellant.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF RHODE ISLAND

          [Hon. Ronald R. Lagueux, U.S. District Judge]
                                                      

                                           

                              Before

                    Torruella, Cyr and Stahl,

                         Circuit Judges.
                                       

                                           

   Edward  Greer, Rhode  Island Affiliate, American  Civil Liberties
                                                                    
Union, was on brief for appellant.
   
   William J. Conley, Jr., City Solicitor, for appellee City of East
                         
Providence, Rhode Island.

                                           

                          March 24, 1994

                                           

          CYR, Circuit Judge.  Appellant Stephen Linder, Esquire,
          CYR, Circuit Judge.
                            

challenges  the sanction imposed against him  pursuant to Fed. R.

Civ. P. 11  for filing a groundless complaint against defendants-

appellees.   After careful  review, we affirm  the district court

sanction order in all respects.

                                I

                            BACKGROUND
                                      

          In the fall of 1985, the City of East Providence, Rhode

Island,  announced that  an  independent  testing  service  would

administer a competitive examination for the position of Chief of

Police.   A city ordinance empowered the City Manager, defendant-

appellee  Peter Witschen, to fill the position from among the top

three performers on the examination.  See Civil Service Ordinance
                                         

of  East Providence, R.I.    11-66(c),(d).  It was no secret that

some  members of the City Council, including defendants-appellees

in  this action,  favored  the appointment  of defendant  Anthony

DeCastro.   DeCastro achieved the highest  examination score and,

in January 1986, was appointed by the City Manager.

          Following the appointment,  a rift arose between  Chief

DeCastro and the  Fraternal Order of Police Union (Union).   At a

public  session of the City Council years later, it was disclosed

that  several defendants  had discussed beforehand  with DeCastro

the likelihood  that a competitive examination  would be adminis-

tered and that DeCastro's test-taking skills were weak.  Finally,

it was also disclosed  at the City Council meeting  that DeCastro

                                2

had attended  a preparatory course in  "executive development" on

his own  time, for  which he  was reimbursed  pursuant to a  City

policy permitting reimbursement for "in-service training."

          Present at the City Council meeting were several of the

plaintiffs,  all disappointed  applicants  for the  position, and

appellant Linder, counsel to  the Union.  Shortly after  the City

Council meeting, two of  the plaintiffs met  briefly  with Linder

and discussed  factual grounds  for a possible  lawsuit in  their

behalf.   Thereafter, Linder  conducted limited  discussions with

other plaintiffs along similar lines.

          On January 3, 1990, Linder initiated the present action

under  42 U.S.C.   1983 in  the United States  District Court for

the District of Rhode Island, charging deprivations of plaintiff-

s' due process right to a fair and impartial promotional examina-

tion as provided by  the City ordinance, and of  an alleged right

of  "equal protection" to compete for the position.  Although the

complaint pleaded relevant circumstances which the district court

later  characterized as    "suspicious," see  supra  pp. 2-3,  it
                                                   

neither alleged     nor asserted facts  sufficient to support  an

inference     that the examination  was either "rigged"  to favor

DeCastro or administered or graded unfairly.

          Prior  to  filing the  complaint,  Linder  made a  copy

available to the City  Solicitor, who advised Linder that  it was

"unjustified," and  warned that  the City  was  likely to  demand

attorney fees for defending against it.  Linder was not deterred.

          Ultimately, the district court entered summary judgment

                                3

for  all defendants  on the  ground that  "the complaint  made no

allegations of 'exam  rigging,'" which was the  essence of plain-

tiffs' claim.  Silva v. Witschen,  745 F. Supp. 798, 803 (D. R.I.
                                

1990).1    The  defendants  thereafter  requested attorney  fees,

either under 42 U.S.C.   1988 or as a sanction under Fed. R. Civ.

P. 11.

          In due  course, the district court  conducted a lengthy

hearing to determine whether the fee request should be allowed on
                            

either ground.   The amount of  any fee award was  not before the

court  at the hearing.   Following the hearing,  the court denied

the request for an  award under section 1988, on the  ground that

the plaintiffs  had not  acted in bad  faith.   The court  found,

however,  that Linder was subject  to sanction under  Rule 11 for

filing a  groundless complaint.   The defendants  later requested

fees and costs totalling almost $250,000, which the court reduced

to $75,349.96,  approximately two-thirds of which  was attributed

to  the merits phase and one-third  to the sanctions phase of the

district court litigation.

                                II

                            DISCUSSION
                                      

          All  aspects  of the  Rule  11  sanctions decision  are

reviewed  for abuse  of discretion.   Cooter  &amp; Gell  v. Hartmarx
                                                                 

Corp., 496  U.S. 384,  405  (1990); Metrocorps,  Inc. v.  Eastern
                                                                 

Mass. Junior  Drum &amp; Bugle Corps  Ass'n, 912 F.2d 1,  2 (1st Cir.
                                       

                    

     1The judgment on the merits is not challenged on appeal.

                                4

1990).   As the  party  challenging the  sanctions award,  Linder

bears the formidable burden  of establishing abuse of discretion.

See  Navarro-Ayala v. Nunez, 968 F.2d 1421, 1425 (1st Cir. 1992).
                           

An abuse of discretion occurs only if "'a material factor deserv-

ing  significant weight is  ignored, . . . an  improper factor is

relied  upon, or  . . . all  proper and  no improper  factors are

assessed,  but  the court  makes  a serious  mistake  in weighing

them.'"  Anderson  v. Beatrice Foods Co., 900 F.2d  388, 394 (1st
                                        

Cir.)  (quoting Fashion  House, Inc.  v. K  Mart Corp.,  892 F.2d
                                                      

1076, 1081 (1st Cir. 1989)), cert. denied, 498 U.S. 891 (1990).
                                         

A.   Amended Rule 11
                    

          On December 1, 1993, during the pendency of the present

appeal, an amended version of Rule 11 became effective, governing

"all proceedings in civil cases thereafter commenced and, insofar
                                                                 

as  just and  practicable, all  proceedings in  civil cases  then
                         

pending."   Order Amending Federal Rules  of Civil Procedure, 113

S.  Ct.  CDLXXVIII (Apr.  22,  1993) (emphasis  added).2   Linder

                    

     2The  sanctions provision  in  the pre-amendment  version of
Rule 11 stated:

     If  a  pleading, motion,  or other  paper is  signed in
     violation of this rule, the court, upon motion  or upon
     its own  initiative, shall  impose upon the  person who
                               
     signed it, a represented party, or both, an appropriate
     sanction,  which may  include an  order to  pay to  the
     other  party or  parties the  amount of  the reasonable
     expenses incurred  because of the filing  of the plead-
     ing,  motion,  or other  paper, including  a reasonable
     attorney's fee.

Fed. R. Civ. P. 11 (1987) (emphasis added).

     The  relevant  portion of  the  sanctions  provision in  the

                                5

therefore  contends that amended Rule 11 applies on appeal in the

present case.

          We need  not decide whether  a case  pending on  appeal

December 1, 1993 is subject  to the amended rule.   The promulga-

tion order  precludes  application of  the amended  rule even  in

                    

amended version reads as follows:

     (c)  Sanctions.   If,  after  notice  and a  reasonable
          Sanctions
     opportunity  to  respond,  the  court  determines  that
     subdivision  (b) [Representations  to  Court] has  been
     violated,  the  court may,  subject  to the  conditions
                              
     stated below, impose  an appropriate sanction upon  the
     attorneys,  law firms,  or parties  that  have violated
     subdivision (b) or are responsible for the violation.

          (1)  How Initiated.
               How Initiated
                             

               (a)  By Motion.  A motion for sanctions under
                    By Motion
                              
          this rule . . .  shall describe the specific  con-
          duct alleged to violate subdivision (b).  It shall
          be  served as provided in Rule 5, but shall not be
                                                            
          filed with or presented to the court unless, with-
                                                            
          in 21  days after service  of the motion  (or such
                                   
          other  period as  the  court  may prescribe),  the
                                                            
          challenged  paper,   claim,  defense,  contention,
                           
          allegation, or denial  is not withdrawn or  appro-
                                                            
          priately corrected.  If  warranted, the court  may
                            
          award  to the  part prevailing  on the  motion the
          reasonable expenses and  attorney's fees  incurred
          in presenting or opposing the motion.

          (2)  Nature of  Sanction; Limitations.  A sanction
               Nature of  Sanction; Limitations.
                                                
          imposed for violation of this rule shall be limit-
          ed to  what is  sufficient to deter  repetition of
          such conduct or comparable conduct by others simi-
          larly  situated. . . .  [T]he sanction may consist
          of, or  include, directives of  a nonmonetary  na-
          ture, an order to pay a penalty into court, or, if
          imposed  on motion  and  warranted  for  effective
          deterrence,  an  order  directing payment  to  the
          movant of some or all of the reasonable attorneys'
          fees and  other expenses incurred as  a direct re-
          sult of the violation.

Fed. R. Civ. P. 11 (Dec. 1, 1993) (emphasis added).

                                6

"cases then pending"  insofar as  it would be  unjust or  imprac-
                                                                 

ticable to do so.  Id.  To remand for a district court determina-
                      

tion under amended  Rule 11  in these circumstances  is not  only

infeasible  but would work  an injustice to plaintiffs-appellees.

See Hashemi v. Campaigner Publications, Inc., 784 F.2d 1581, 1584
                                            

(11th Cir. 1986)  (finding no  reason to test  Rule 11  sanctions

under  amendment  to  1983 rule  not  in  effect when  sanctioned

conduct occurred)  (decided   under virtually identical  terms of

1983 promulgation order:   "shall govern . . . ,  insofar as just
   

and practicable,  in proceedings  then pending."   Order Amending

Rules of Civil Procedure,  461 U.S. 1097 (1983)).  Cf.  Freund v.
                                                              

Fleetwood Enters.,  Inc.,  956  F.2d  354, 363  (1st  Cir.  1992)
                        

(declining to apply  amended Fed.  R. Civ. P.  15(c) which  would

work "manifest  injustice");3 Agretti v. ANR  Freight Sys., Inc.,
                                                                

No. 89  C 5492, 1994  WL 46670, at  *1 (N.D. Ill.  Feb. 14, 1994)

(finding  retrospective  application  of  1993  amended  Rule  11

"neither just  nor practicable");  In re Taxable  Mun. Bond  Sec.
                                                                 

Litig., No. MDL 863, 1994 WL 34924, at *4 (E.D. La. Feb. 3, 1994)
      

                    

     3Freund rests upon the  principle that "a court is  to apply
            
the law  in effect at  the time it  renders its decision,  unless
doing so would result in manifest injustice or there is statutory
direction  or legislative history  to the contrary."   Bradley v.
                                                              
Richmond Sch. Bd.,  416 U.S.  696, 711  (1974).   In the  instant
                 
case, such "statutory direction" derives from the Supreme Court's
power to prescribe rules  of procedure.  See generally  28 U.S.C.
                                                      
   2071-2113.    Section 2074(a)  of  Title 28  states  that "the
Supreme Court shall not require the application of such [amended]
rule to further proceedings  then pending to the extent  that, in
                                                                 
the opinion of the  court in which such proceedings  are pending,
                                                                
the application of  such rule  in such proceedings  would not  be
feasible  or would work injustice, in which event the former rule
applies."  28 U.S.C.   2074(a)  (emphasis added).

                                7

(declining to  apply 1993  amended rule where  sanctioned conduct

occurred prior  to Dec. 1,  1993 and pre-amendment  standards had

been  applied at sanctions hearing).4   This is particularly true

since  Linder's sanctionable conduct  was solely  responsible for

the satellite proceedings relating to  Rule 11 sanctions.   More-

over,  it would  be  impracticable, not  only  to undo  the  harm

actually occasioned defendants, but  to review the district court

order  under the  altered standards  established by  amended Rule

                    

     4Linder argues that he would not  have been sanctioned under
the  amended rule, because he would  have withdrawn the complaint
as allowed under the 21-day "safe harbor" provision.  See Fed. R.
                                                         
Civ.  P. 11(c)(1)(A) (Dec. 1, 1993); supra note 2.  Linder cannot
                                          
have it both ways, however.  His argument is based on the assump-
tion  that he  would  have availed  himself  of a  "safe  harbor"
provision had  he received notice of  the particular deficiencies
                                                    
in  the  complaint.   This  retrospective  appraisal ignores  the
reality that Linder flatly disregarded a substantially equivalent
warning from the  City Solicitor  before the  complaint was  ever
filed.  See supra p. 3-4.  Thus, Linder's argument cannot prevail
                 
unless appellees  failed to point out  particular deficiencies in
the complaint.   However, appellees' statement  of relevant facts
on appeal represents,  and Linder  does not deny,  that the  City
Solicitor "informed [Linder] of the pleading deficiencies, and of
                                                         
the  City's probable  attempt  to collect  sanctions, before  the
pleading  was even  filed."   (Appellees'  Br.  at 16)  (emphasis
added).   Since  Linder neither denies  appellees' representation
nor included the relevant  portions of the hearing  transcript to
which  appellees' statement of facts  cites, see Fed.  R. App. P.
                                                
10(b), 11(a) (appellant bears  burden of including material items
in appellate  record), we  will not  indulge an assumption  fore-
closed by the record before us.  It would be unjust to permit yet
a second "safe harbor" refuge for Linder to escape responsibility
        
for the expense occasioned an innocent party which forewarned him
that  the complaint  was unjustified.   Furthermore, even  if the
cost and expense occasioned by Linder's sanctionable conduct were
to be disregarded, it  would be unjust to permit  these satellite
proceedings  to be further extended by  remanding to the district
court to afford Linder the opportunity to "withdraw" a groundless
complaint previously dismissed on the merits.

                                8

11.5   See Hashemi, 784  F.2d at 1583-84  (rejecting claim, under
                  

virtually identical 1983 promulgation order, that amended Rule 11

standards should apply "because the case was pending on appeal by

the plaintiff  at  the  time the  Rule  became  effective");  cf.
                                                                 

Freund, 956 F.2d  at 363  (refusing to apply  amended rule  which
      

would work  "manifest injustice").   Since an  unwarranted remand

would otherwise  be necessary in these  already protracted satel-

lite  proceedings, at  inordinate delay  and expense  to innocent

parties, we  review the district  court sanction order  under the

pre-amendment  Rule 11 standards in  force at the  time the sanc-

tioned conduct occurred.

B.   Appropriateness of Rule 11 Sanctions
                                         

          Prior to December 1,  1993, Rule 11 mandated  sanctions

for  interposing a filing either for an improper purpose or under
                                                           

                    

     5For example,  deterrence was the primary  purpose served by
Rule 11 sanctions prior to December 1, 1983.  See  Cooter &amp; Gell,
                                                                
496 U.S. at 393.  Yet "courts . . . ha[d] noted that compensatory
and punitive purposes also [we]re  served by sanctions [under old
Rule  11]."  Charles A. Wright &amp;  Arthur Miller, 5A Federal Prac-
                                                                 
tice and  Procedure   1336 at 100-101 (1990);  Anderson, 900 F.2d
                                                       
at 394-95.  Under amended Rule 11, however, "the purpose of . . .
sanctions is to deter rather than to compensate . . . ."  Fed. R.
                            
Civ. P. 11  advisory committee's  note (emphasis  added).   Thus,
under amended Rule  11, "if  a monetary sanction  is imposed,  it
should ordinarily be paid  into court as a penalty,"  id., though
                                                         
the court may  award monetary  sanctions to a  party in  "unusual
circumstances," id.  Although  sanctions were mandatory under old
                   
Rule 11, Lancellotti v. Fay, 909 F.2d 15, 19 (1st Cir. 1990), but
                           
are discretionary under the  amended rule, Fed. R. Civ.  P. 11(c)
(Dec. 1,  1993) (if court finds a violation, "the court may . . .
                                                           
impose  an appropriate  sanction"  (emphasis  added)),  in  these
circumstances we believe it would be a gross injustice to deprive
defendants-appellees  of compensation  for  the  costs caused  by
Linder's  reckless  disregard for  the  requirements  of Rule  11
despite the City's advance warning.

                                9

circumstances  in  which  a competent  attorney,  on  objectively

reasonable inquiry, could  not have believed that  the filing was

grounded  in fact and  warranted either by  existing law  or by a
                     

good-faith  argument for the  extension, modification or reversal

of existing law.  Lancellotti  v. Fay, 909 F.2d 15, 19  (1st Cir.
                                     

1990).

     1.   Legal Basis for Action
                                

          Linder "concedes" that the  complaint violated Rule 11,

in  that he  failed  to  make  the objectively  reasonable  legal

inquiry  required under our case  law.  He  argues, however, that

Leatherman v. Tarrant County Narcotics Intelligence and Coordina-
                                                                 

tion Unit,     U.S.    , 113 S. Ct. 1160 (1993),  struck down the
         

heightened pleading requirement previously espoused by this court

in  section 1983  actions.6   Since  Leatherman  should be  given
                                               

retroactive effect, see Harper v. Virginia Dep't of Taxation,    
                                                            

U.S.     ,    , 113 S. Ct.  2510, 2516-17 (1993) (general rule of

retroactivity in  civil  cases), Linder  contends that  sanctions

were improperly imposed.  This argument is a red herring.

          The  district court order neither mentioned nor applied

a  heightened  pleading standard,  nor did  it  cite to  any case

involving  a heightened pleading requirement.   See Silva, 745 F.
                                                         

Supp.  at 801.   Rather, the court  determined that there  was no

                    

     6In Leatherman, the Court rejected the Fifth Circuit's "more
                   
demanding  rule for pleading a complaint  under section 1983 than
for pleading  other kinds of claims  for relief."  113  S. Ct. at
1162-63.

                                10

legal basis whatever  for Linder's reliance  on a federally  pro-

tected property  interest, in  principal part  because plaintiffs

made no allegation of "exam-rigging."  See Burns v. Sullivan, 619
                                                            

F.2d  99, 104  (1st Cir.),  cert. denied,  449 U.S.  893 (1980).7
                                        

Compare Silva, 745 F. Supp.  at 803, with Hermes v. Hein,  511 F.
                                                        

Supp. 123, 125 (N.D.  Ill. 1980) (complaint alleging exam-rigging

states   1983 claim in  circumstances where unwavering custom and

policy is  to promote  applicant achieving highest  score).   The

court  concluded that  the  only protected  property interest  at

issue was plaintiffs' due process right to compete fairly for the

position  of  Chief of  Police,8 and  since  they had  alleged no

facts evidencing such a deprivation the action was  groundless as

a matter of law.  Silva, 745 F. Supp. at 805.  Neither before the
                       

district court, nor on appeal, has Linder raised  doubt as to the

soundness of  the district court ruling that the complaint failed

to state a cause of action.

                    

     7As the district court observed:

     Like the  City Manager in Burns,  City Manager Witschen
                                    
     had discretion to make  an appointment "after interview
     and investigation," from among  "the names of the three
     persons  standing highest  on  the  appropriate  list."
     Since the City Manager could appoint any one of the top
     three  certified candidates,  none of  these candidates
     had a clearly defined property interest in promotion to
     Chief of Police.

Silva, 745 F. Supp. at 803.
     

     8The court rejected the  claim that plaintiffs were deprived
of  "equal  protection"  by  the  dissimilar  treatment  accorded
DeCastro, citing Di Piro v. Taft,  584 F.2d 1, 3 (1st Cir. 1978),
                                
cert. denied,  440 U.S. 914 (1979).   See Silva, 745  F. Supp. at
                                               
805 (finding no evidence of intentional discrimination).

                                11

     2.   Improper Purpose
                          

          The district court further  found that Linder attempted

   by bringing the present action    to intimidate "the City into

terminating DeCastro . . . . [thus] using this case to further an

improper objective."  Silva v. Witschen, C.A.  No. 90-0005L, slip
                                       

op. at 18-19 (D.  R.I. Nov. 5, 1992) (order imposing  sanctions).

Although Linder admits to a "dual motive," he argues that Rule 11

sanctions  may not  be imposed  for commencing  an action  for an

"improper purpose" if  there was  also a proper  motive, in  this

case vindicating  plaintiffs' rights.   The district  court found

that    

          Linder,  who was  also  the attorney  for the
          Union, was  wearing two hats here.   Although
          he purported to  represent the plaintiffs  in
          this case, all his actions were calculated to
                                                       
          achieve the goal of  the Union, the ouster of
                                        
          DeCastro.  While plaintiffs honestly believed
          in their  cause of  action, Linder  was using
          their lawsuit  as a bargaining  chip to pres-
          sure the City on behalf of  the Union to ter-
          minate DeCastro as Chief of Police.

Id. at 19 (emphasis added).
   

          Linder's contention that his  conduct is not sanctiona-

ble because  he intended to  protect plaintiffs' legal  rights is

yet  another red herring.  We are  aware of no authority or other

basis  for the  view  that an  attorney  who files  a  groundless

complaint, for an improper  purpose and without reasonable inqui-

ry, see  Fed. R. Civ. P. 11, is exonerated from sanctions because
       

he was  simply asserting  groundless nonexistent legal  claims in

behalf of his  clients.  Cf.  Lieb v. Topstone Indus.,  Inc., 788
                                                            

F.2d 151, 157 (3d Cir. 1986) ("[P]leader may not escape liability

                                12

because  he did  not intend  to bring  about additional  delay or

expense.   If  reasonable  preparatory steps  would have  avoided

those consequences,  sanctions are appropriate.").   Accordingly,

we uphold the district court finding of improper motive.  Cf. Mir
                                                                 

v. Little  Co. of Mary Hosp.,  844 F.2d 646, 653  (9th Cir. 1988)
                            

(using litigation  to force party to  grant privileges previously

denied is "improper purpose").

C.   Appropriateness, Nature and Severity of Sanctions
                                                      

     1.   Rule 11 Hearing
                         

     The procedure  for determining whether a  sanction should be

imposed and, if so, its nature and severity, is left in the first

instance  to the trial court's sound discretion.  Linder contends

that the district court abused its discretion, see Cooter &amp; Gell,
                                                                

496  U.S. at  405, by  unnecessarily convening  a hearing  on the

request  for Rule  11 sanctions.   See  also Fed.  R. Civ.  P. 11
                                            

advisory committee's note (sanctions procedure depends on circum-

stances and severity of  sanction under consideration); Muthig v.
                                                              

Brant  Point Nantucket, Inc., 838  F.2d 600, 607  (1st Cir. 1988)
                            

(similar).  He argues that there  was no reason to conduct a Rule

11 hearing once the court found no legal basis for the complaint,

see  Silva, 745 F. Supp.  at 803, since  sanctions were mandatory
          

under  the pre-amendment version of Rule 11, Jensen v. Frank, 912
                                                            

F.2d 517, 524 n.6 (1st Cir. 1990).

          Linder  once  again  mischaracterizes  the  proceedings

below.   The grant of summary judgment against plaintiffs did not

preordain the imposition  of any Rule 11 sanction against Linder.

                                13

Rather, the hearing was necessary to determine whether Linder had
                                                      

violated  Rule 11 and, if  so, to determine  an appropriate sanc-
        

tion.   Additionally,  defendants requested  a fee  award against

plaintiffs under 42 U.S.C.   1988 as well, which the court consi-

dered at the same hearing  and later denied.  The claim  that the

district court abused its  discretion by conducting a hearing  to

resolve defendants' fee requests  under Rule 11 and  section 1988

is frivolous.

          Linder  has fallen far short  of a showing  of abuse of

discretion.9   Rule  11  contemplates "giv[ing]  effect to  [its]

central  goal of  deterrence," Cooter  &amp; Gell,  496 U.S.  at 405,
                                             

while  avoiding  unnecessary  satellite  litigation;  the  proper

balance is left to the reasoned discretion of the district court,

id.   Cf. Fashion House, 892  F.2d at 1082 (district  court is in
                       

best position  to determine appropriate remedy).  The hearing was

necessary  for two  reasons:   to determine  whether there  was a
                                                    

proper basis for assessing attorney fees against plaintiffs under

42 U.S.C.   1988,  and whether Linder's filing  of the groundless
                              

complaint  warranted imposition  of a Rule  11 sanction.   Silva,
                                                                

slip op.  at 2-3  (Nov. 5,  1992); Silva,  745 F.  Supp. at  806.
                                        

Thus, among the matters at issue in the Rule 11 sanctions hearing

                    

     9Though hampered by the  absence of a sanction-hearing tran-
script, we have reviewed Linder's claims on the available  appel-
late  record, see United States  v. One Yacht  Named Mercury, 527
                                                            
F.2d  1112,  1113 (1st  Cir.  1975)  (despite incomplete  record,
appellate court reviews merits  as record allows), cognizant that
it was  Linder's burden to  ensure an adequate  appellate record,
see Navarro-Ayala,  968 F.2d at  1425; see also  Fed. R. App.  P.
                                               
10(b), 11(a) (requiring appellant to assemble requisite record).

                                14

were  whether Linder:   (1)  brought the  action for  an improper

purpose and  (2) after  reasonable inquiry,  could have  formed a

reasonable belief  that the complaint  was well grounded  in fact
                 

and "warranted by existing  law or a good faith  argument for the

extension, modification, or reversal of  existing law."  Fed.  R.

Civ. P.  11 (1987); see Lancellotti,  909 F.2d at 19.   The court
                                   

found  that "Linder failed to make a reasonable inquiry to deter-

mine that the complaint was well founded in fact . . . [and] even

more  important [the] lawsuit was  baseless as a  matter of law."

Silva,  slip op.  at  17 (Nov. 5,  1992).   See  Unanue-Casal  v.
                                                             

Unanue-Casal,  898 F.2d  839,  841-42 (1st  Cir.  1990) (Rule  11
            

sanctions against counsel warranted for filing frivolous  removal

petition  with  "no  plausible  legal basis"  and  for  "improper

purpose").10

     2.   Reasonableness of Sanctions
                                     

          Linder's remaining claim is that the attorney fee award

is  excessive.   Compensatory  sanctions  under Rule  11  must be

                    

     10Linder  claims  that the  district court  did not  need to
address the "improper  purpose" prong of Rule 11 once it had been
determined that he had failed to make a "reasonable inquiry."  We
find  no abuse of discretion.   The appellate  record provided by
Linder, see supra note 9, does not indicate which issue was first
                 
decided, why the hearing  proceeded to the second issue,  or even
whether  Linder preserved  this claim by  asserting it  in timely
fashion  below.  Moreover, the further inquiries as to the appro-
priateness and  severity of Rule 11  sanctions were significantly
informed  by  the  court's determination  that  not  one but  two
grounds existed  for sanctioning  Linder.  See  Unanue-Casal, 898
                                                            
F.2d  at 841-42 (Rule  11 sanctions against  counsel warranted by
both prongs of rule).

                                15

reasonable in amount.11   Navarro-Ayala, 968  F.2d at 1427  (cit-
                                       

ing cases).

          a.   Merits Phase
                           

          The  district court  awarded the  City12 $53,528.81  in

attorney fees and costs  incurred during the merits phase  of the

litigation  by  all  defendants,  representing  approximately 487

hours devoted to legal services by counsel appearing for the five

individual defendants, and by the City Solicitor in behalf of the

City  and the same  five individual defendants  in their official

capacities.   Linder does not challenge the individual fee appli-

cations, but asserts that the aggregate hours were not reasonably

required  because  defendants did  not  take  proper measures  to

mitigate  fees by  delegating jointly-required  in-court services

and  submitting unitary filings  to avoid unnecessary duplication

of services.   See Navarro-Ayala, 968 F.2d  at 1427 (compensatory
                                

sanctions  allowed  only for  costs  reasonably incurred)  citing
                                                                 

Thomas v. Capital  Sec. Services,  Inc., 836 F.2d  866, 879  (5th
                                       

Cir.  1988); see also Dubisky v. Owens,  849 F.2d 1034, 1037 (7th
                                      

                    

     11Another Linder claim    that  attorney fees are not allow-
able under Rule 11     directly contradicts the  express language
of Fed. R. Civ. P. 11 ("an appropriate sanction . . . may include
. . . a reasonable attorney's fee").  See also Mariani v. Doctors
                                                                 
Assocs.,  Inc.,  983 F.2d  5, 8  (1st  Cir. 1993);  see generally
                                                                 
Charles  A.  Wright &amp;  Arthur R.  Miller,  5A Federal  Practice &amp;
                                                                 
Procedure,   1336 at 113 (1990) ("attorneys' fees have become the
         
Rule 11 sanction of choice").

     12The  district court found that the City is the "only party
interested in receiving sanctions," Silva, slip  op. at 4 (May 6,
                                         
1993),  because it had agreed to pay the defendants' counsel fees
incurred  in  this action,  id.    Consequently,  it ordered  all
                               
sanctions paid to the City.

                                16

Cir. 1988) (similar).

          The district court rejected Linder's  argument, finding

instead that "if plaintiffs' case had not been so utterly without

merit,  this 'redundant' representation  might have proved essen-

tial to these defendants,"  Silva, slip op. at 13  (May 6, 1993),
                                 

and therefore  that the  employment of multiple  attorneys during

the merits  phrase was reasonably required.  We agree that it was
                  

reasonable for  the five defendants, in  their individual capaci-
                                                                 

ties, to  obtain representation  by their  own counsel  while the
    

merits  of  plaintiffs'  claims  remained  in  litigation,  since

counsel  to the  City  represented the  individual defendants  in

their official  capacities only.   Linder points to  no authority
                          

for  the implicit  assumption that reasonable  mitigation efforts

require that  the  private interests  of  parties sued  in  their

individual capacities  must go  unrepresented.  Cf.  Mariani, 983
                                                            

F.2d  at 8  n.5.  Nor  has he  shown that  the respective private

interests of these individual  defendants during the merits phase

did  not conflict  to the  point that  mutual representation  was

precluded.13        Cf. Brandt v. Schal Assoc., Inc., 960 F.2d at
                                                    

640,  648 (7th  Cir. 1992)  ("[w]e have  little sympathy  for the

litigant  who fires  a big  gun, and  when the  adversary returns

fire, complains because he was only firing blanks").

          The court further found that  "the total time spent  by

                    

     13Although the district court did not describe their precise
nature, Linder does  not challenge  its finding  that there  were
potential  conflicts of  interest  among  the various  individual
defendants.   Thus,  Linder failed  to  demonstrate an  abuse  of
discretion.  See Navarro-Ayala, 968 F.2d at 1425.
                              

                                17

each attorney on the merits was not excessive."  Silva, slip  op.
                                                      

at 13 (Nov. 5,  1992).   The court also  disallowed all fees  for

legal services,  except those  services directly rendered  to the

City,  after the  point  in time  when  it became  clear  that no

conflicts of interest precluded the individual defendants'  joint

representation  by counsel to the City.   See Brandt, 960 F.2d at
                                                    

649  (no failure  to mitigate  where sanctioned  attorney's broad

complaint necessitated  investment of extensive attorney  time in

defense  and district  court carefully  monitored procedure).   A

party is required to mitigate expenses only insofar as is reason-

able.  Our review of the record  discloses no basis for supposing

that  the district  court  abused its  discretion  by allowing  a

$53,528.81 reimbursement to the  City for legal services rendered

during the merits  phase.   See Navarro-Ayala, 968  F.2d at  1426
                                             

("When the  district court settles  upon a monetary  sanction and

fixes a dollar amount, a reviewing  tribunal should defer, within

broad  limits, to the  district court's exercise  of its informed

discretion.  Nevertheless,  the court of appeals  must be careful

not  merely  to  'rubber-stamp  the  decisions  of  the  district

court.'") (citation omitted).

          b.   Sanctions Phase
                              

          The  district court  disallowed  all fees  requested in

relation to  the sanctions  phase  of the  litigation except  for

                                18

those incurred by the  City.14  The  court found that counsel  to

the individual defendants  had been notified in  advance that the

City no  longer believed there  existed any conflict  of interest

precluding   joint representation.   Thus, the court allowed only

$21,821.15 in total fees and costs for 188 out of over 1500 hours

expended  by  all  counsel  representing  defendants  during  the

sanctions phase.  Linder does not challenge the reasonableness of

the fees incurred by the City in the sanctions phase.15

          We therefore affirm the district court judgement.

          Affirmed.
                  

                    

     14The  district court  adjusted for  the additional  hearing
time required on  the section  1988 motion by  allowing fees  for
only 50% of the total time expended by defendants' counsel at the
sanctions hearing, a finding not challenged on appeal.

     15Linder  argues, however,  apparently for  the  first time,
that  the district court abused its discretion by failing to take
into account his financial  ability to respond to the  fee award.
Even assuming this claim has  been preserved, Linder presented no
evidence concerning  his financial condition, nor  has he alleged
financial  inability to satisfy the sanction.  Thus, there was no
abuse  of discretion.  See  White v. General  Motors Corp., Inc.,
                                                                
908 F.2d 675, 685 (10th Cir. 1990) ("[i]nability to pay what  the
court would otherwise regard as an appropriate sanction should be
treated  as reasonably akin  to an affirmative  defense, with the
burden  upon the  parties being sanctioned  to come  forward with
evidence of their financial status"), cert. denied, 498 U.S. 1069
                                                  
(1991).
     We likewise reject Linder's claim that attorney fees reason-
ably incurred in  the sanctions phase may not be made the subject
of  a  Rule 11  sanction.   See Brandt,  960  F.2d at  651 (costs
                                      
incurred in litigating  request for Rule 11 sanctions in district
court  recoverable as part of Rule 11 sanction); Robinson v. Dean
                                                                 
Witter Reynolds, Inc., 129  F.R.D. 15, 22  (D. Mass. 1989).   Cf.
                                                                 
Grendel's Den, Inc.  v. Larkin,  749 F.2d 945,  949-50 (1st  Cir.
                              
1984) (reasonable  fees and  costs incurred in  recovering attor-
ney's fees under   1988 are reimbursable under   1988).
     Finally, although  Linder argues that Rule  11 sanctions may
chill civil  rights actions, we  cannot agree  that a  groundless
civil  rights action is any less appropriate a candidate for Rule
11 sanctions than other groundless actions.

                                19
