

                      [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]

                  UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT

                                             

No. 97-1343

         SPECIALIZED PLATING, INC. AND PETER D. PREVETT,

                     Plaintiffs, Appellants,

                                v.

          FEDERAL ENVIRONMENTAL SERVICES, INC., ET AL.,

                      Defendants, Appellees.

                                             

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

           [Hon. William G. Young, U.S. District Judge]                                                                

                                             

                              Before

                     Selya, Boudin and Lynch,

                         Circuit Judges.                                                 

                                             

     Peter D. Prevett on brief pro se.                               

                                             

                         October 14, 1997

                                             

          Per Curiam.  Attorney Peter D. Prevett appeals from the                    Per Curiam.                              

imposition of a sanction in the  amount of $5,250, payable to the

court.1   In a previous unpublished opinion, Specialized Plating,                                                                           

Inc. v. Federal Environmental Servs., Inc., No. 97-1343, slip op.                                                    

(1st Cir. July 22,  1997) (per curiam), we retained  jurisdiction

and remanded for a more detailed explanation of the basis for the

monetary sanction.    In response,  the  district court  filed  a

Report dated August 25, 1997.  In the  Report, the district court

identified  two purposes underlying  the monetary sanction:   "to

reimburse the taxpayers for the abuse of the judicial system" and

"to  deter Mr.  Prevett from  further  abuse."   Prevett filed  a

supplemental   memorandum   challenging  the   district   court's

reasoning and findings in various respects.

          We do not dwell on the merits other than to say that we

credit the findings  contained in the Report and  conclude that a

monetary  sanction  is  appropriate to  deter  repetition  of the

conduct which the  district court found to be  unacceptable.  See                                                                           

supra note 1.  We turn, then, to the size of the sanction.               

          Appellate review of the size  of a monetary sanction is

for  abuse of  discretion.   In that  regard, "When  the district

court settles upon a monetary sanction and fixes a dollar amount,

a  reviewing tribunal should  defer, within broad  limits, to the

                                                  

     1The district court apparently imposed the sanction pursuant
to Fed.  R.  Civ. P.  16(f).   The incident  giving  rise to  the
sanction  occurred  when the  attorney  failed  to  appear for  a
scheduled bench  trial (without  any satisfactory  excuse).   The
court  sanctioned him  as  a condition  of  vacating the  ensuing
dismissal.

                                2

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.'   Appellate

review of the appropriateness of  a sanction cannot be allowed to

deteriorate  into a perfunctory ritual."  Navarro-Ayala v. Nunez,                                                                          

968 F.2d 1421, 1426 (1st Cir. 1992) (citation omitted).

          A monetary penalty  payable to the court is  a suitable

sanction  for a  Rule 16(f)  violation that  interferes with  the

court's  management of  its docket.   See Jones  v. Winnepesaukee                                                                           

Realty, 990  F.2d 1,  5 (1st Cir.  1993).   Still, we  think that                

Prevett raises a valid question as to the amount of the impost in

this instance.

          In   assessing  the   reasonableness  of   a  sanction,

"proportionality is often a proxy for appropriateness."  Navarro-                                                                           

Ayala, 968 F.2d at 1427.  In  such purlieus, it is important that               

"the  punishment should  be  reasonably  suited  to  the  crime."

Anderson  v. Beatrice  Foods Co.,  900  F.2d 388,  395 (1st  Cir.                                          

1990).  With  due respect for  the district court's  considerable

discretion, we find the imposition of a $5,250  fine in this case

to be  substantially disproportionate and,  therefore, excessive.

We explain briefly.

          We  believe   that  we   must  evaluate  the   sanction

principally from  the standpoint of  deterrence.2  It  is settled
                                                  

     2While  a  district  court  may  sometimes  tie  a  monetary
sanction  to  specific   non-court  costs  that  bear   a  direct
relationship  to sanctionable  misconduct,  see,  e.g.,  Eash  v.                                                                       
Riggins  Trucking, Inc.,  757 F.2d  557, 560  (3d Cir.  1985) (en                                 
banc), the  district court  here used an  approach to  such costs

                                3

that a "monetary sanction aimed at deterrence is appropriate only

when the  amount of the  sanction falls within the  minimum range

reasonably required  to deter  the abusive  behavior."   Navarro-                                                                           

Ayala, 968 F.2d at 1427; accord In re Kunstler, 914 F.2d 505, 523                                                        

(4th Cir. 1990).  Here, given Prevett's representations about the

extent of his law practice, there is  no reason to believe that a

sum somewhat smaller  than $5,250 would not be  a fully effective

deterrent.    As  in  Navarro-Ayala,  "[t]he  violation  deserved                                             

punishment,  but  the   sting  of  the   lash  could  have   been

communicated  emphatically through a  more modest penalty."   968

F.2d at 1428.

          Where,  as here,  a  monetary  sanction,  viewed  as  a

vehicle for  deterrence against the  backdrop of the record  as a

whole, is excessive  in amount, we have a choice of anodynes.  We

may, of course,  remand to permit the district  court to refigure

the amount of the sanction, but we  are not constrained to follow

such a course.   See id. (citing  Coats v. Pierre, 890  F.2d 728,                                                           

734 (5th Cir.  1989), and Cheek  v. Doe, 828  F.2d 395, 398  (7th                                                 

Cir. 1987) (per curiam)).  In this instance, the record on appeal

is reasonably  complete and too  much judicial  time has  already

been spent on counsel's regrettable lapse.  Accordingly, this may

properly be  classified as  a case in  which an  appellate court,

rather than remanding,  ought simply to recast the  amount of the

sanction.  Believing, as we do,  that an amount of $1,000 "stands

                                                  

that  we  find problematic.    We  therefore concentrate  on  the
district court's alternative ground:  deterrence.

                                4

at the  outer periphery of  permissible sanctions in  this case,"

Navarro-Ayala,  968 F.2d  at 1428,  we reduce  the amount  of the                       

sanction from $5,250 to $1,000.

          We need go  no further.3  We affirm the imposition of a

monetary sanction payable to the  court, but reduce the amount of

the sanction to $1,000.

          Affirmed as modified.  No costs.                    Affirmed as modified.  No costs.                                                    

                                                  

     3Prevett's   request   for  rescission   of   the  so-called
"answering  service" sanction is moot because that requirement is
no longer in effect.

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