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UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NOS. 96-7385, 96-7386, 96-7387, 96-7388 96-7389, 96-7390, 96-7391, 96-7392

IN RE: TUTU WELLS CONTAMINATION LITIGATION

ESSO STANDARD OIL S.A. LTD.; ESSO VIRGIN ISLANDS, INC.; ESSO STANDARD OIL CO., (PUERTO RICO)

APPELLANTS IN NO. 96-7385

GOLDMAN, ANTONETTI & CORDOVA; FRANCIS TORRES, ESQUIRE; JOSE CEPEDA, ESQUIRE
APPELLANTS IN NO. 96-7386

EUGENIO C. ROMERO, AN ATTORNEY AT LAW,
APPELLANT IN NO. 96-7387

L'HENRI, INC.,

APPELLANT IN NO. 96-7388

RHODA HARTHMAN; CHARLOTTE A. LABARRE; ALBERT E. HARTHMAN; ARTHUR E. HARTHMAN; AUSTIN E. HARTHMAN; EDGAR A. HARTHMAN; SAMMY E. HARTHMAN; P.I.D., INC.; TUTU SERVICES, LIMITED,
APPELLANTS IN NO. 96-7389

RAMSAY MOTORS, INC.,
APPELLANT IN NO. 96-7390

TEXACO INC.; TEXACO CARIBBEAN, INC.; VERNON MORGAN,
APPELLANTS IN NO. 96-7391

FOUR WINDS PLAZA PARTNERSHIP,
APPELLANTS IN NO. 96-7392On Appeal From the United States District Court

of the Virgin Islands

Division of St. Thomas (D.C. Civ. No. 89-cv-00107)

Argued: March 11, 1997

Before: BECKER, SCIRICA, and ALITO, Circuit Judges

.

(Filed July 22, 1997)

KELL M. DAMSGAARD, ESQUIRE (ARGUED) TERRI JACOBSEN, ESQUIRE Morgan, Lewis & Bockius LLP 2000 One Logan Square Philadelphia, PA 19103-6996

DOUGLAS L. CAPDEVILLE,
ESQUIRE 2107 Company Street

Lot No. 4 Christiansted, St. Croix, VI 00820

Attorneys for Appellants Esso Standard Oil S.A. Ltd., Esso Virgin Islands, Inc., Esso Standard Oil Co. (Puerto Rico)

2DANIEL RIESEL, ESQUIRE

Sive, Paget & Riesel, P.C.

460 Park Avenue New York, New York 10022

VINCENT J. APRUZZESE, ESQUIRE (ARGUED) Apruzzese, McDermott, Mastro & Murphy Somerset Hills Corporate Center 25 Independence Blvd. Liberty Corner, New Jersey 07938

EDWARD H. JACOBS, ESQUIRE Jacobs & Brady

7 Church Street Christiansted, St. Croix U.S. Virgin Islands 00820

Attorneys for Appellants Goldman, Antonetti & Cordova, Francis Torres, Esquire, and Jose A. Cepeda, Esquire

JOEL H. HOLT, ESQUIRE (ARGUED)

Holt & Russell 2132 Company Street, Suite 2 Christiansted, St. Croix U.S. Virgin Islands 00820

Attorney for Appellant Eugenio C. Romero

3NANCY D'ANNA, ESQUIRE

(ARGUED) Law Office of Nancy D'Anna

P.O. Box 8330 St. John, U.S. Virgin Islands 00831

Attorney for Appellants L'Henri, Inc., Rhoda J. Harthman, Charlotte A. Lebarre, Albert E. Harthman, Austin E. Harthman, Edgar A. Harthman, Sammy E. Harthman PID, Inc., Water Services, Limited and Tutu Park, Limited

CAROL ANN RICH, ESQUIRE (ARGUED) Campbell, Areliano & Rich 4A&B Kongens Gade

P.O. Box 11899 Charlotte Amalie, St. Thomas U.S. Virgin Islands 00820

Attorney for Appellant Ramsay Motors, Inc.

JOHN K. DEMA, ESQUIRE (ARGUED) CAREY-ANNE MOODY, ESQUIRE Law Offices of John K. Deman, P.C. 1236 Strand Street, Suite 103 Christiansted, St. Croix U.S. Virgin Islands 00820-5008

Attorneys for Four Winds Plaza Partnership

4ADDISON J. MEYERS, ESQUIRE

(ARGUED) O'Connor & Meyers, P.A. 2801 Ponce de Leon Blvd., 9th Floor Coral Gables, Florida 33134

Attorneys for Appellants Texaco Inc.
and Texaco Caribbean Inc.

JOHN ZEBEDEE, ESQUIRE Hymes & Zebedee, P.A.

P.O. Box 990 Emancipation Garden Station Charlotte Amalie, St. Thomas U.S. Virgin Islands 00804-0990

Attorneys for Vernon Morgan

JOHN R. COON, ESQUIRE (ARGUED) Wright, Coon & Cunningham, P.A.

377 Fore Street

P.O. Box 7526 Portland, Maine 04112-7526

Attorneys for Appellee Western Auto Supply Co.

JULIO A. BRADY, ESQUIRE Attorney General Government of the Virgin Islands Department of Justice 6040 Castle Coakley Christiansted, St. Croix U.S. Virgin Islands 00820

Attorneys for Amicus Curiae

5OPINION OF THE COURT

BECKER, Circuit Judge

.

This is an appeal from an order of the district cou rt imposing heavy sanctions upon a law firm, several o f its partners, and its client for discovery violations i n connection with a large environmental lawsuit. The client, Esso, is charged in the underlying complaint with h aving poisoned "the wells" in the Estate Tutu area in the eastern end of St. Thomas by releasing from the Esso Tutu s ervice station petroleum hydrocarbons and chlorinated hydrocarbons into the Tutu aquifer which supplies d rinking

water to much of the east end of the island. The di scovery abuse primarily involves the alleged suppression by Esso's former counsel in the litigation, the San Juan, Pue rto Rico law firm of Goldman, Antonetti, Ferraiuoli & Axtmay er, of a report by Jose Agrelot, a professional engineer, summarizing the results of soil and liquid tests he had performed at the Esso Tutu site in December 1989. T he suppression of this report is claimed to have drama tically increased the discovery time and expense for other parties in connection with their prosecution of the case. T here are also other alleged, though less aggravated, instanc es of obdurate discovery-related behavior.

What specially marks this case is the character and magnitude of the sanctions imposed. Eschewing the auspices of Fed. R. Civ. P. 37, which authorizes sa nctions for failure to make disclosure or cooperate in disc overy, the district court imposed the challenged sanctions und er its inherent power. The sanction imposed on the lawyers was suspension from practice in the District Court of t he Virgin Islands: Jose Cepeda and Francis Torres for three y ears, and Eugenio Romero for one year. The sanction impos ed upon Esso was the payment of $750,000 to a "Communi ty
Service Sanction Account" to be utilized to fund construction of a halfway house on St. Thomas, the training of inmates, and renovation of the St. Thom as Criminal Justice Complex. The sanction imposed upon Goldman Antonetti was the payment of $250,000 to th e

6Community Service Sanction Account (for the same

purpose), and the sum of $120,000 as counsel fees a nd costs ($30,000 incurred by each of four moving part ies for time they spent in connection with the sanctions proceedings themselves). Esso was similarly assesse d a sanction of $30,000 to be paid to each of four othe r movants, but Esso has paid that sum and does not challenge it on this appeal.

Goldman Antonetti, its three named partners, and Es so appeal the sanctions imposed against them on a vari ety of grounds. The parties who were awarded sanctions to compensate them for the time expended in the sancti ons hearings have cross-appealed, alleging that they ar e entitled to sizable additional sanctions for discovery misco nduct that caused harm in other phases of the lawsuit, an d that
the district court abused its discretion in summari ly dismissing these other sanctions requests on the gr ounds that the moving papers were insufficiently specific . Finally, several parties against whom Esso has brought claim s for contribution in the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA") aspect of the underlying district court proceeding (that is all that remains, since the common law claims have been settled) have cross-appealed from the district cour t's refusal to dismiss those claims as a sanction against Esso for its discovery misconduct.

We will vacate the suspensions imposed upon Cepeda, Torres, and Romero for procedural reasons. They did not receive notice prior to the sanctions hearing that suspension was being considered as a possible sanct ion. Concomitantly, they did not have the opportunity to properly defend against such a sanction and introdu ce mitigating evidence. As a result, the court's impos ition of sanctions against Cepeda, Torres, and Romero violat ed due process requirements.

We will also vacate the provision of the district c ourt's order requiring Esso and Goldman Antonetti to pay a total of $1,000,000 to the Community Service Sanction Acc ount. The court simply had no power to order Esso and Gol dman Antonetti to pay money to benefit the St. Thomas pe nal system.

7We do, however, affirm the sanction of $120,000 aga inst

Goldman Antonetti. Although Goldman Antonetti has m ade quite forceful arguments that its discovery miscond uct with respect to the Agrelot summary memo could not have caused all of the costs and expenses claimed by the movants, particularly in view of its having disclos ed the 800 pages of technical material on which the memo was b ased, we cannot say, reviewing the record as a whole, tha t the district court abused its discretion in awarding sa nctions of $120,000. We also reject Goldman Antonetti's conten tion that it is relieved of the obligation to pay this s anction by a release by which several of the parties gave up c laims against Esso and its attorneys. The district court did not clearly err in concluding that the language in the release was not broad enough to cover Goldman Antonetti, Es so's former attorneys, and that the context of the relea se did not suggest otherwise.

We are also satisfied that the district court did n ot abuse its discretion in refusing to award additional sanc tions because of the failure of the movants to provide pa pers adequate to assess the harm caused by the violation

. District courts, which are extremely busy, should n ot be burdened with re-inventing the wheel in incredibly complex litigation in order to sort out voluminous sanction s claims.

The foregoing threshold summary effectively dispose s of all appeals except the cross-appeals seeking dismis sal of the claims for contribution. However, we do not hav e appellate jurisdiction over these cross-appeals. Be cause our review of that aspect of the district court's order would necessarily involve an analysis of the merits of th e underlying dispute and because the district court's order is reviewable only after final judgment, we do not hav e jurisdiction over this non-final order under the on ly potentially viable basis therefor -- the collateral order
doctrine. See Cohen v. Beneficial Indus. Loan Co. , 337 U.S. 541 (1949). We note in this regard that this aspect of the case differs from the appeal of Goldman Antonetti. Under Eavenson, Auchmuty & Greenwald v. Holtzman , 775 F.2d 535 (3d Cir. 1985), we have appellate jurisdiction over an order that finally resolves the imposition of sanct ions against attorneys no longer in the underlying case. We also

8review those aspects of the appeal not brought by, but

inextricably intertwined with, the issues raised by Goldman Antonetti, i.e., Esso's contentions pertaining to t he Community Service Sanction Account and the claims o f other parties pertaining to the level of monetary s anctions awarded them, under the doctrine of pendent appella te jurisdiction. See Kershner v. Mazurkiewicz , 670 F.2d 440 (3d Cir. 1982).

We would prefer to be able to adjudicate the crossappeals concerning the contribution claims because we have spent a great deal of time both in brief readi ng and at oral argument in familiarizing ourselves with the c ase. However, as a court of limited jurisdiction, we do not dispose of matters that are not properly the subjec t of appellate jurisdiction. We also do not encourage a§ 1292(b) certification because the complexion of the issues involved in these other appeals may change as matters procee d before the district court. The extraordinarily able district judge, who has been adroitly managing this complex and vexatious case for a number of years now, may be ab le, by subsequent rulings, to put these matters in a suffi ciently different light as to render them susceptible to mo re facile disposition down the road.

I. FACTS AND PROCEDURAL HISTORY

A. Background And Overview

In the summer of 1987, a water well owner noticed t he smell of gasoline emanating from his well. He conta cted local environmental officials who, with the help of the federal government, began an investigation into pos sible contamination of the Tutu aquifer. Investigators di scovered the presence of gasoline and chlorinated organics i n the aquifer. Government officials thereafter closed man y of the

wells.

The discovery of the contamination led to a number of private lawsuits. Detailed explication of the anato my of the various suits is unnecessary; it is sufficient to n ote that the private litigation seeks to assign responsibility f or the contamination between and among a number of possibl e

9contaminators, including but not limited to two aut omobile

service stations, an automobile dealer, a shopping plaza, a dry cleaner, and a former textile plant. That priva te litigation also includes claims for contribution un der CERCLA. The parties in the litigation include both possible contaminators and businesses and landowners alleged ly harmed by the contamination.1 The law firm of Goldm an, Antonetti, Ferraiuoli & Axtmayer ("Goldman Antonett i") represented Esso for much of the period in question but no longer does so.2

Discovery began in 1989. During this discovery, Ess o and Goldman Antonetti employed practices the district c ourt found to be sanctionable. In its three opinions reg arding the sanctions, the district court grouped the disco very violations into three categories. First, the court found that Esso and its attorneys engaged in a strategy that k ept the various other parties in the litigation from obtain ing needed information in a timely fashion. See In re Tutu Wel ls Contamination Litig. , 162 F.R.D. 46, 70-71 (D.V.I. 1995) [hereinafter "Tutu I" ]. Without delving into the specifics of individual abuses, the court noted that Esso and Go ldman Antonetti met many discovery requests with legal ta ctics intended to delay, oppress, or harass their opponen ts. Often, Esso and Goldman Antonetti would refuse to t urn over requested documents until forced to do so by c ourt

___________________________________________________ ______________

1. The parties relevant to our discussion, are Esso Standard Oil, S.A. Ltd., Esso Virgin Islands, Inc., and Esso Standard Oil Co. (Puerto Rico) (collectively "Esso"); Rhoda Harthman, Charlotte La barre, Albert Harthman, Arthur Harthman, Austin Harthman, Edgar H arthman, Sammy Harthman, P.I.D., Inc., and Tutu Services Lim ited (collectively "PID/Harthman") (owners of a shopping center); Texa co, Inc. and Texaco Caribbean, Inc. (collectively "Texaco"); Vernon Mor gan; Laga Industries, Ltd., Duplan Corp., Panex Company, Paul Lazare, and Andreas Gal (collectively "the Laga Defendants") (operators of a former textile plant); Four Winds Plaza Partnership ("Four Winds") (owners of a shopping center); Ramsay Motors, Inc. ("Ramsay Motors"); L'H enri, Inc. ("L'Henri") (a dry cleaner); and Western Auto Supply Company (" Western Auto"). Excluded from this list are the plaintiffs from the so-called Total Vision case. None of the plaintiffs in that case are invol ved in the sanctions dispute.

2. Goldman Antonetti has since changed its name, an d is now called Goldman, Antonetti & Cordova.

10order. According to the court, the level of judicia l

involvement in the discovery process was consequent ly unusually high, requiring the court unnecessarily t o devote significant resources to resolving ordinary discove ry disputes.

Second, the court focused on the handling of the so called Agrelot memorandum. In December 1989, Soil T ech, a company that specializes in environmental analyse s of soil, took samples from the soil at the Esso Tutu S ervice Station ("ETSS") and from liquid in a holding tank at ETSS. Soil Tech sent those samples to the Environmental T esting and Certification Corp. ("ETC") for analysis. ETC r eturned the results of the investigation to Soil Tech short ly
thereafter. The results revealed some contamination . Jose Agrelot, President of Soil Tech, received the preli minary results and summarized them in a memorandum, which he forwarded to Goldman Antonetti in anticipation of a meeting in January 1990. ETC produced the final res ults of the testing shortly after the meeting had occurred. Agrelot
testified that he discussed the memorandum with att orneys at Goldman Antonetti, including Jose Cepeda and Fra ncis Torres. It is not clear from the record, however, w hether Cepeda ever actually saw the Agrelot memorandum at that time. The results were also discussed at a May, 199 0 meeting at which Eugenio Romero was present along w ith Cepeda, Torres, and Agrelot, among others.

Although for the most part the Agrelot memorandum merely summarized the information contained in the ETC findings, the memorandum did include a map pinpoint ing the locations of the soil borings from which the te sted soil was taken. It appears from the record that, without the Agrelot memorandum, someone examining the ETC data could not determine with precision the location of the borings. The record does, however, give some indica tion that there is enough information in the ETC support ing

data that was made available to determine that the ETC analyzed soil from ETSS rather than from some other location above the Tutu aquifer. Esso and its attor neys

11produced the full ETC report on which the Agrelot

memorandum was based.3

However, neither Esso, Goldman Antonetti, nor Soil Tech turned over the Agrelot memorandum during discovery until October 1993. Prior to that time, various par ties had specifically requested all reports generated from s oil and groundwater testing in the Tutu area, but the respo nses to such requests, either signed by or reviewed by Esso employees or Goldman Antonetti attorneys, made no mention of the Agrelot memorandum. The reasons for this omission are not clear. Lawyers from Goldman Antone tti testified that the Agrelot memorandum had been inde xed incorrectly in their computer database; Agrelot him self
testified that the memorandum had been labeled inco rrectly
and therefore misfiled in his office. The district court found that the failure to produce the Agrelot memorandum was intentional. See Id. at 65-66. At all events, only after Agrelot

had searched his files in the fall of 1993 to assis t Esso in negotiating a case management order did he find the memorandum and turn it over to Esso, who revealed i t to
its new counsel Archer & Greiner. It was Archer & G reiner that finally notified the other parties of its exis tence.

The third category of violations occurred in connec tion with an attempted inspection underneath the surface of the ETSS site. In particular, the plaintiffs wished to determine whether an underground storage tank was located on the

___________________________________________________ ______________

3. It is also not clear from the record, and the pa rties disagreed at oral argument, when each of the parties received the ETC data and whether Esso and its attorneys complied with court orders g overning the production of such material. It seems that the conf usion arises because Esso and its attorneys apparently did not physicall y produce the ETC data to each and every party who may have requested it. However, at oral argument Esso and its attorneys plausibly asse rted that court orders managing discovery envisioned that the parti es seeking such reports would coordinate among themselves examinati on of such reports. According to Esso and its attorneys, to avoid dupli cative and unnecessary production of lengthy documents (for ex ample, the ETC report exceeds 800 pages) they needed only produce to late-coming parties a list or catalogue of reports already prod uced, and those parties could then examine the reports in the possession of other parties. We do

not resolve this issue here.

12site, and also to trace the pipes leading out of th e oil/water

separator located on the site. The parties refer to this aspect of the discovery as the "anomaly investigati on." In May, 1992, the plaintiffs employed ground penetrati ng radar ("GPR") to examine the area beneath the ETSS. The GPR turned up an anomalous shadow in the corner of the site, possibly indicating the presence of an underg round storage tank. Esso claimed that the GPR produced a false result because of interference from overhead power lines or from a reinforcing bar in a nearby retaining wall. The magistrate judge ultimately ordered an excavation o f the
site to determine once and for all if such a tank e xisted. It

did not.

Excavation of the site was to occur in accordance w ith the magistrate judge's order. However, according to the district court, Esso failed to comply with this ord er. See Id. at 52-53. Instead, Esso began the excavation after a delay of several hours and did not have the necessary too ls or machinery ready for the investigation. Further, Ess o did not adequately conduct the pipe tracing phase of the investigation. This failure led to months of wrangl ing among the parties and between Esso and the court until Es so finally conducted the investigation to the satisfac tion of the court, nearly 10 months after the investigation was scheduled to be completed.

B. The District Court's Opinions and Orders

In three separate opinions, the district court disc ussed its findings with respect to these violations and i ssued orders imposing sanctions for them. In the first of the three opinions, the court began by detailing the anomaly investigation, see id. at 51-54, and the Agrelot memorandum affair, see id. at 54-62. The court went on to describe briefly the sources of law on which it pla nned to rely in imposing sanctions: its inherent powers; Fe deral Rules of Civil Procedure 11, 26(g), and 37; and 28 U.S.C. § 1927. See id. at 62-63. The court next found that the failure to produce the Agrelot memorandum was not inadvertent and that this failure was non-responsiv e to discovery requests, notwithstanding the fact that t he ETC

13 data on which the memorandum relied was actually produced. See id. at 65-71.

Finally, the court examined the possible sanctions. It observed that monetary awards for the fees and cost s associated with the attempts to find evidence of th e release of contaminants from the ETSS, the investigation co sts resulting from the failure to produce the Agrelot memorandum, and the fees and costs incurred as part of the sanctions proceedings were all potentially reco verable.See id. at 72-73. After reviewing the controlling case of

Poulis v. State Farm Fire & Cas. Co. , 747 F.2d 863 (3d Cir. 1984), the court reasoned that dismissal of Esso's CERCLA contribution claims against the other parties was a lso possible. See id. at 73-78. It concluded its discussion of possible sanctions by finding that Cepeda, Romero, and
Torres could be sanctioned for their role in the di scovery violations. See id. at 78-80.

Instead of imposing sanctions at that time, the cou rt ordered that Esso, Goldman Antonetti, Cepeda, Romer o, and Torres show cause why the court should not sanc tion them for their actions. The court also provided the parties with the opportunity to negotiate a mutual resoluti on of the monetary sanctions prior to the hearing to show cau se. See
id. at 81.

In its next opinion on the matter, the court dispos ed of motions from Esso, Goldman Antonetti, Cepeda, Romer o, and Torres seeking clarification, reconsideration, and modification of its earlier orders. First, the cour t disposed of claims that its hearings with respect to sanctio ns were conducted without due process. The court engaged in a detailed review of the orders, discussions, and hea rings leading up to the sanctions proceedings and conclud ed that, taken together, the process provided ample no tice of and opportunity to be heard regarding the sanctions faced by the various parties. See In re Tutu Wells Contam ination Litig. , 162 F.R.D. 81, 83-88 (D.V.I. 1995) [hereinafter " Tutu

II "]. Next, the court held that the moving parties ha d produced no evidence sufficient to warrant a reexam ination of its earlier factual findings. See id. at 88-89. Finally, the court rescribed its earlier holding that the action s of the moving parties prejudiced the other parties. See id

. at 90-

1491. Esso, Goldman Antonetti, Cepeda, Romero, and To rres

therefore still were required to show cause why mon etary sanctions and dismissal of claims should not be imp osed
on them. See id. at 91.

In its third and final opinion on the matter, the c ourt decided what sanctions to impose on each of the par ties. It began by finding that neither Esso, Goldman Antonet ti, Cepeda, Romero, nor Torres had shown sufficient cau se for the court not to impose some sanction on each of th em. See In re Tutu Wells Contamination Litig. , 166 F.R.D. 331, 334- 39 (D.V.I. 1996) [hereinafter "Tutu III "]. Instead, the court
found that severe sanctions were merited. Because o f the need to impose such severe sanctions, the court dec ided to rely exclusively on its inherent power to sanction. See id. at 337. As for non-monetary sanctions, the court first held that dismissing the CERCLA contribution claims woul d be inappropriate because doing so would place too grea t a burden on Esso to clean up the contamination of the aquifer (the court apparently believed that other p arties shared responsibility for the contamination). Inste ad, the court reasoned that monetary sanctions would be ade quate to achieve the goals of sanctioning. See id. at 339-40. Next, the court suspended Cepeda, Romero, and Torres from practicing before the District Court of the Virgin Islands.
See id. at 339-41.4 Cepeda and Torres received three-year suspensions. Because of contrition expressed to the court, Romero received a suspension of only one year. See id. at
341.

As for monetary sanctions, the court declined to aw ard substantial sanctions in favor of the parties to th e lawsuit (who had been unable to settle the monetary sanctio ns).
See id. at 341-45. The parties to whom sanctions might be paid had submitted their requests for fees and cost s to the court for review. The court found, however, that th e submissions, which were voluminous but quite genera lized, failed to make clear the basis for the parties' cla ims and

___________________________________________________ ______________

4. Romero and Torres were admitted to practice befo re the court pro hac
vice . There is some dispute as to whether Cepeda was te chnically admitted. Because of the particular manner in which we resolve the appeal of the suspensions, we do not resolve this i ssue here.

15failed to provide records sufficient to justify the requested

awards as sanctions. Instead of examining the submi ssions line-by-line, which the court did not feel obliged to do given the failure of the parties to be sufficiently speci fic, the court denied the bulk of the requests. See id. at 342-43. However,

the court did believe that some sanction was warran ted. It
held that the costs associated with the sanctions proceedings themselves would be an appropriate sanc tion. To determine those costs, the court, expressing adm iration for the stewardship of Nancy D'Anna, counsel for L' Henri,

used the submissions of L'Henri as a model.

L'Henri sought approximately $30,000 as costs for t he sanctions proceedings. The court decided that such an award was reasonable, and awarded all eight parties seeking monetary sanctions $30,000 each. See id. at 344. Because Esso and Goldman Antonetti were equal partn ers in the discovery violations, the court reasoned, ea ch should bear equally the burden of the sanction. See id. Therefore, the court ordered Esso to pay $30,000 each to Ramsa y Motors, L'Henri, PID/Harthman, and Vernon Morgan. S ee id. Since Esso had already negotiated a settlement wit h these four parties as to monetary sanctions, and pa id them a total of approximately $170,000, the court consid ered this portion of Esso's sanction to be satisfied. Se e id. at 344 n.13. The court ordered Goldman Antonetti to pay $3 0,000 each to the other movants, Four Winds, the Laga Defendants, Western Auto, and Texaco. See id. at 344.

Finally, the court determined that additional sanct ions against Esso and Goldman Antonetti were required. S ee id. at 345-52. Recognizing that it was adopting a novel approach to sanctioning, the court ordered Esso to pay $750,000 and Goldman Antonetti to pay $250,000 to a Community Service Sanction Account that would be us ed to fund construction of a halfway house on St. Thom as, the training of inmates, and renovation of the St. Thom as Criminal Justice Complex. See id. The court opined that the parties truly harmed by the contamination of the Tu tu aquifer and the delay in resolving responsibility o ver the contamination were the citizens of the Virgin Islan ds. Therefore, the most appropriate beneficiary of a sa nction award, it reasoned, would be the Virgin Islands its elf. And,

16because the Criminal Justice Center was in such gre at

need of additional resources, it would be, the cour t believed, a suitable project towards which the fund s could
be directed.

C. Anatomy of the Appeals

These appeals ensued. The following is a capsule summary of those appeals. Esso and Goldman Antonett i appeal the court's decision to use its inherent pow ers to require that they pay a total of $1,000,000 towards the Criminal Justice Center. Goldman Antonetti also app eals the imposition of the $120,000 monetary sanction pa yable to the other parties in the case. Cepeda, Romero, a nd Torres appeal their suspensions from practicing law in the Virgin Islands. Four Winds, L'Henri, Vernon Morgan, PID/Harthman, Ramsay Motors, and Texaco appeal the court's decision to award only $30,000 to each of t hem as a sanction from either Esso or Goldman Antonetti; a ll of these parties argue that they are entitled to addit ional awards. Neither the Laga Defendants nor Western Aut o has appealed, though Western Auto argues that should we determine that parties are entitled to additional s anctions, it should be similarly entitled.5 The Department of Justice of the Virgin Islands has submitted an amicus curia e brief urging us to uphold the sanction award directed tow ards
the Criminal Justice Center.

Some aspects of our appellate jurisdiction over thi s matter are complicated. Because our jurisdiction in this case depends on the particular aspect of the appeal that we are examining, we will discuss jurisdiction togethe r with each aspect of the merits.

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5. Because we find that no party is entitled to add itional sanctions, we do not reach the question whether Western Auto woul d be entitled to additional sanctions even though it has not appeale d.

17II. SUSPENSIONS OF ATTORNEYS CEPEDA,

ROMERO, AND TORRES

A. Appellate Jurisdiction

Appellate jurisdiction over the appeals of Cepeda, Romero, and Torres arises from 28 U.S.C. § 1291, wh ich provides that the United States Court of Appeals fo r the Third Circuit has jurisdiction over appeals of fina l decisions of the District Court of the Virgin Islands. "[A] d ecision is ordinarily considered final and appealable under § 1291 only if it `ends the litigation on the merits and l eaves nothing for the court to do but execute the judgmen t.' " Quackenbush v. Allstate Ins. Co. , ___ U.S. ___, 116 S. Ct. 1712, 1718 (1996) (quoting Catlin v. United States , 324 U.S. 229, 233 (1945)). In this case, the decision to sus pend Cepeda, Romero, and Torres is not final in the usua l sense. The claims for CERCLA contribution still exist; the refore, the litigation on the merits has not ended and the court has more to do than simply execute the judgment.6

Under the collateral order doctrine, however, an otherwise non-final decision can be appealed if it finally and conclusively determines the disputed question, resolves an important issue separate from the underlying mer its, and is effectively unreviewable after final judgmen t. See

Cohen , 337 U.S. at 546. It is unquestionable that the or der from which Cepeda, Romero, and Torres appeal finall y and conclusively determines the issue of their suspensi ons. We turn to whether the order resolves an important iss ue completely separate from the merits that is effecti vely unreviewable after final judgment.

Addressing these issues slightly out of order, we b egin with the question whether the order suspending Cepe da, Romero, and Torres is effectively reviewable after final judgment. Subsequent to the actions that gave rise to their suspensions, their former client, Esso, retained ot her counsel. Cepeda, Romero, and Torres are no longer i n the underlying litigation at all. In Eavenson, Auchmuty &

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6. The claims for CERCLA contribution were separate d from the common-law claims and have been stayed.

18Greenwald v. Holtzman , 775 F.2d 535 (3d Cir. 1985), we

held that an order imposing Rule 11 sanctions again st an attorney no longer representing a party in a case w as collaterally final under Cohen . See id. at 538-40. In that case, we reasoned that the attorney could not effec tively appeal the sanctions after final judgment because t he parties to the suit might not appeal, leaving open the possibility that the attorney would be unable to ap peal his sanction, and, even if he were able to appeal, the attorney may be unaware of the entry of final judgment, leav ing open the possibility that he would be unable to fil e a timely notice of appeal. See id. at 538-39. Eavenson Auchmuty therefore controls our inquiry and leads us to conc lude that the order from which Cepeda, Romero, and Torres app eal is effectively unreviewable after final judgment.

The next question is whether our review of the orde r imposing sanctions will force us to examine the mer its of the underlying case thereby rendering the appeal no t completely separate from the merits. We have follow ed the rule that a "finding of separateness [in this regar d] is dependent on the facts" in any given case. Martin v . Brown , 63 F.3d 1252, 1261 n.11 (3d Cir. 1995).7 Here, our review of the order suspending Cepeda, Romero, and Torres would
not force us to examine the merits of the case at a ll. Cepeda, Romero, and Torres each argue that the dist rict court failed to afford them due process of law. Rev iewing such a claim would require our examining the notice the court gave to Cepeda, Romero, and Torres, and the opportunity it gave them to be heard on the matter. This

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7. The rule in Martin is derived in part from two of our prior cases. In Eavenson Auchmuty , the Rule 11 sanction arose from the alleged violation of a court order, and resolution of the s anctions issue therefore did not touch on the merits of the underlying case. Rather, the sanctions issue turned on the interpretation of the order. Se e id. at 538, 541-43. We distinguished the facts of Eavenson Auchmuty from those in Eastern Maico Distribs., Inc. v. Maico-Fahrzeugfabrik, G.m. b.H. , 658 F.2d 944 (3d Cir. 1981), where the validity of the sanction turn ed in part on whether the material requested during discovery was relevan t to the merits of the litigation. See id. at 947. Neither Eastern Maico nor Eavenson Auchmuty adopted a bright-line rule. Rather, taken together, the two cases suggest that a determination of separateness in this contex t must be on a caseby-case basis.

19review of the process by which the court imposed th e

sanctions in no way touches on the merits.

Finally, we must consider whether the process due a n attorney prior to a court's suspending him is impor tant in

the Cohen sense. "[A]n issue is important if the interests that would potentially go unprotected without immed iate appellate review of that issue are significant rela tive to the efficiency interests sought to be advanced by adher ence to the final judgment rule." In re Ford Motor Co. , 110 F.3d 954, 959 (3d Cir. 1997). We addressed this very iss ue in

Martin , and concluded that protection of the constitutionally recognized right of due process in this context is sufficiently important to warrant immedi ate appeal. See Martin , 63 F.3d at 1261. This is especially true where, as here, the sanction imposed is not a mere monetary fine but the more severe sanction of the suspension of an attorney from practicing before a court. Suspension, much more than a fine, "impose[s] signi ficant burdens on the reputation and career opportunities of the sanctioned attorney." Id. Therefore, relying on Martin , we hold that the issue raised by Cepeda, Romero, and T orres on appeal satisfies the importance prong of the Coh en test.

In sum, because we believe that the order suspendin g Cepeda, Romero, and Torres is collaterally final un der

Cohen , we hold that we have jurisdiction over the appeal of

that order.

B. The Process Due Prior to Suspending an Attorney

Cepeda, Romero, and Torres submit that their suspensions cannot stand because the district court did not afford them particularized notice of the form o f the sanctions they faced. They had no way of knowing, t hey contend, that the possibility of suspension as a sa nction existed. Therefore, they conclude, their right to d ue process was infringed. Our review is plenary. See Martin , 63 F.3d at

1262.

In considering the suspension of an attorney as a sanction, courts must provide the attorney with due process. Eash v. Riggins Trucking, Inc. , 757 F.2d 557, 570 (3d Cir. 1985) (noting that the imposition of a san ction on

20an attorney, including disbarment and other discipl inary

actions, implicates due process concerns); cf. Road way Express, Inc. v. Piper , 447 U.S. 752, 767 (1980) ("Like other sanctions, attorney's fees certainly should not be assessed lightly or without fair notice and an opportunity f or a hearing on the record."); Rogal v. American Broad. Cos., 74 F.3d 40, 44 (3d Cir. 1996) ("The imposition of mone tary sanctions by a court implicates fundamental notions of due process . . . ."). Although the precise contours of the process that is due varies given the particular con text, "the fundamental requirements of due process -- notice a nd an opportunity to respond -- must be afforded before a ny sanction is imposed." Martin , 63 F.3d at 1261. Similarly, prior to the suspension of an attorney from practic ing before the District Court of the Virgin Islands bec ause of misconduct as defined by local rule, an attorney mu st be provided "notice and an opportunity to be heard." D .V.I. R. 83.2(b)(4)(A).

The party against whom sanctions are being consider ed is entitled to notice of the legal rule on which th e sanctions would be based, the reasons for the sanctions, and the form of the potential sanctions. See Simmerman v. Corino , 27 F.3d 58, 64 (3d Cir. 1994). Without such notice, th e opportunity to be heard would be meaningless: "[o]n ly with this information can a party respond to the court's concerns in an intelligent manner." Id. In other words, a party cannot adequately defend himself against the imposition of sanctions unless he or she is aware o f the
issues that must be addressed to avoid the sanction s. As one treatise writer has explained, "[d]ramatic diff erences in the relief being considered by the district court m ay lead to substantially different (e.g., more detailed, diffe rently directed) responses by the alleged offender." Grego ry P. Joseph, Sanctions: The Federal Law of Litigation Ab use § 17(D)(1)(d), at 343 (2d ed. 1994) (discussing Rul e 11 sanctions in particular).

A brief examination of three of our cases illustrat es the operation of this notice rule and the policy justif ications supporting it. In Fellheimer, Eichen & Braverman, P .C. v. Charter Technologies, Inc. , 57 F.3d 1215 (3d Cir. 1995), we rejected a party's argument that he was denied adeq uate

21notice because of the failure to notify him that sa nctions

under 28 U.S.C. § 1927, in addition to those under Rule 11, were being considered. We noted that a showing of b ad faith conduct is required to impose sanctions under § 1927 but is not required under Rule 11. See id. at 1225. Without notice that possible § 1927 sanctions were at stake , a party might not employ his opportunity to be heard to reb ut charges of bad faith. However, our examination of t he context and the factual background of the case reve aled that the party was well aware that he was being cha rged
with bad faith conduct. See id. at 1226-27. That he was unaware of the possible § 1927 sanctions was immate rial,

for he knew that he would need to confront the char ge of
bad faith conduct to defend himself in the sanction proceeding. In short, our concern in Fellheimer was that the party in fact had the opportunity to mount a meanin gful
defense. When it became evident that under the circumstances he did, we determined that the notice had been adequate.

In our discussion in Fellheimer , we distinguished Jones v. Pittsburgh National Corp. , 899 F.2d 1350 (3d Cir. 1990). In

Jones , the party was not explicitly notified of the poss ibility of § 1927 sanctions, nor did the context or factual background of the case suggest that he was charged with

bad faith conduct. See id. at 1357. Because the party was not "on notice as to the particular factors that he must address if he is to avoid sanctions," notice was in adequate.
See id.

Although in both Fellheimer and Jones we focused on notice as to the legal rule on which the sanctions were based, particularized notice must also be given as to the form of the contemplated sanction, as is illustrate d in Gagliardi v. McWilliams , 834 F.2d 81 (3d Cir. 1987) (per curiam). In Gagliardi , the party moving for sanctions under Rule 11 sought attorney's fees, dismissal of the un derlying claim, and other relief the court might deem approp riate.

See id. at 83. The court granted the sanctions in the form of an injunction. We explained that the general req uest for other appropriate relief did not put the party on n otice that injunctive relief was possible. See id. 8 Therefore, we vacated the award of sanctions and remanded so that the par ty

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8. We noted that the party against whom sanctions w ere imposed was proceeding pro se; however, we also noted that "[e] ven an experienced attorney would not have expected this type of injun ctive sanction without some more specific notice." See Gagliardi , 834 F.2d at 83.

22could be notified of the possibility of an injuncti on and

respond accordingly. See id.

In the present case, neither Cepeda, Romero, nor To rres received particularized notice that the court was contemplating suspending them from practicing law a s a sanction. Although the court made clear the legal r ules on
which it would base sanctions and the reasons for t he sanctions, the court limited its discussion of the form of the possible sanctions to monetary sanctions and dismis sal of claims. See, e.g. , Tutu II , 162 F.R.D. at 91. As far as we can tell, the possibility of suspension arose for the f irst time in the court's third and final published opinion on th e matter, when the court actually imposed the suspensions. Ne ither did the parties moving for sanctions seek suspensio n; their papers before the district court sought only moneta ry sanctions and dismissal.9

A number of parties have pointed to two judicial pronouncements that they contend should have put Cepeda, Romero, and Torres on at least constructive notice of the possibility of suspension. Even assuming tha t constructive notice would be sufficient, a doubtful proposition, we find these pronouncements to be inadequate. First, the court did mention, in passin g during an October 28, 1993, hearing, the possible "breach of the
Canon of Ethics." The court did not elaborate nor d id it ever again raise the "Canon of Ethics." This mention is simply too vague, inconclusive, and preliminary to put Cep eda, Romero, or Torres on notice of the possible sanctio n of suspension.

Second, the court noted that it planned to utilize its inherent powers as a basis for sanctions. A number of parties submit that, because a court may employ its inherent powers to suspend an attorney, Cepeda, Rom ero, and Torres should therefore have been on notice tha t the court was considering suspension. We are unpersuade d. As
we discuss infra , a court's inherent powers put at its disposal a wide range of possible sanctions. Surely we cannot expect a party to defend against each and ev ery one

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9. We are here relying on the assertions of Romero in his Brief of Appellant, and no party has asserted anything to th e contrary.

23of these possible sanctions simply because a court signals

its intention to rely on such powers. Rather, more particularized notice is required. In this respect, we rely upon Gagliardi , 834 F.2d at 83. Just as in Gagliardi , in which we held that a request for any remedy the cou rt might deem appropriate was too general to put a par ty on notice that an injunction might issue, we hold that the mere mention of a court's inherent powers does not put a party on notice that suspension is a possible sanct ion.

Knowing that they faced possible suspension as well as possible monetary sanctions would have been vitally important to Cepeda, Romero, and Torres as they pre pared for the sanctions proceedings. In addition to prese nting legal and factual arguments pertaining to the parti cular conduct that gave rise to the sanctions proceedings and their individual culpability, the attorneys likely would have presented evidence concerning their professional ca reers, their contributions to the legal profession and the community, their character, and the like. The proce edings would have followed a different path as the alleged offenders led the court to consider a wider array o f information. Put differently, had Cepeda, Romero, a nd Torres been on notice that they faced suspension, t hey doubtless would have utilized their opportunity to be heard to raise different matters. As it happened, because of the lack of notice, the attorneys' opportunity to be he ard was less than meaningful; they were not given the appro priate opportunity to present relevant defenses to the pen alties which they were ultimately assessed.

We conclude that neither Cepeda, Romero, nor Torres received the particularized notice to which they we re entitled. Because their rights to due process were violated, we will vacate that portion of the order on appeal suspending them from practice in the District Court of the Virgin Islands.10

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10. Any suspension from practice, even in a jurisdi ction in which an attorney does not regularly practice, would leave a n indelible and deleterious imprint on the attorney's career, reput ation, and future opportunities. Although we do not reach the questio n, we do express our doubt that, even on the record as developed, the ex treme sanction of

24III. THE COMMUNITY SERVICE SANCTION

A. Appellate Jurisdiction

As we discussed supra , part II, section A, although the order from which Esso and Goldman Antonetti appeal, which imposes on them a monetary sanction payable t o the Community Service Sanction Account, is not final fo r the purposes of § 1291, the order as to Goldman Antonet ti is collaterally final under the Cohen doctrine, for the same reasons the appeal of Cepeda, Romero, and Torres wa s collaterally final. See supra part II, section A.11 However, the collateral order doctrine does not provide us juris diction over Esso's appeal. Esso remains a party in the und erlying litigation and can therefore bring an effective app eal after final judgment. In other words, Esso does not fall within the ambit of Eavenson, Auchmuty , and its appeal fails the third prong of the Cohen test. However, as we shall explain, we have pendent appellate jurisdiction over Esso's appeal.

The doctrine of pendent appellate jurisdiction, in its broadest formulation, allows an appellate court in its discretion to exercise jurisdiction over issues tha t are not independently appealable but that are intertwined w ith issues over which the appellate court properly and

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suspension from practice was justified for the indi vidual actions (or inactions) of Cepeda, Romero, and Torres. It would unduly prolong an already lengthy opinion to detail our reasons for t his doubt, predicated as it is on a large record. We do, however, note th at we do not suggest that district judges should never use suspension as a sanction. We also do not reach the issue whether Cepeda's pro hac vic e status, see supra note 4, has any bearing on the ability of the court to suspend him.

11. The only difference is whether the issue is imp ortant in the Cohen

sense. We have held that resolution of a serious an d unsettled question of law satisfies the importance criterion of Cohen . See In re Ford , 110 F.3d at 961. Here, Esso and Goldman Antonetti appea l the district court's use of its inherent powers to require them to fund a Community

Service Sanction Account for the benefit of the Vir gin Islands, a third party to the litigation. We are unaware of any appe llate decision that addresses this question. And, without guidance, the novel approach adopted by the district court might be emulated. Th e appeal, therefore, implicates a serious and unsettled question.

25independently exercises its jurisdiction. See, e.g. , 16

Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper,
Federal Practice and Procedure § 3937, at 684-85 (2d ed. 1996). We recognize the doctrine of pendent appella te jurisdiction and have on a number of occasions disc ussed its scope. See, e.g. , Nat'l Union Fire Ins. Co. v. City Sav.

F.S.B. , 28 F.3d 376, 382-83 & n.4 (3d Cir. 1994); Hoxwort h v. Blinder, Robinson & Co. , 903 F.2d 186, 208-09 (3d Cir. 1990); United States v. Spears , 859 F.2d 284, 287 (3d Cir. 1988); Kershner v. Mazurkiewicz , 670 F.2d 440, 445-59 (3d Cir. 1982).

We have held that the discretionary exercise of pen dent appellate jurisdiction is appropriate when the issu e over which we have jurisdiction cannot be resolved witho ut reference to the otherwise nonappealable issue. See

Kershner , 670 F.2d at 449. In that sense, the exercise of pendent appellate jurisdiction ensures that our rev iew of the independently appealable issue is meaningful. S ee Nat'l
Union Fire , 28 F.3d at 382. Unfortunately, our jurisprudence in this area is not systematic, and i t is not clear how broadly the doctrine applies in our circu it. It does, however, apply here.12

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12. There are other matters that need mention with respect to our exercise of pendent appellate jurisdiction. The app eal in question here is pendent to a collaterally final order, rather than to an order the interlocutory appeal of which is permitted by statu te. The Supreme Court has stated that pendent appellate jurisdictio n in such cases and under certain circumstances is not permitted. See S wint v. Chambers County Comm'n , ___ U.S. ___, 115 S. Ct. 1203, 1209-11 (1995); Ab ney v. United States , 431 U.S. 651, 663 (1977). However, those cases de al with pendent issues, not pendent parties. And, at least in Swint , the Court made clear that its holding did not necessarily ext end to circumstances in which the issues on appeal were "inextricably in tertwined" or in which review of the otherwise nonappealable issue "was ne cessary to ensure meaningful review of the" independently appealable issue. Swint , 115 S. Ct. at 1212. In Spears , we employed the doctrine of pendent appellate jurisdiction in a case in which the independently a ppealable order was appealable only because of the collateral order doc trine. See Spears , 859

F.2d at 286-88. We noted there that there was suffi cient overlap in the

facts relevant to the issues to allow us to exercis e pendent appellate jurisdiction. See id. at 287-88.

26This case presents for our consideration two appeal s

raising the identical legal challenge, one appeal t hat is collaterally final (Goldman Antonetti's) and one th at is not (Esso's). Should we decline to exercise jurisdictio n over Esso's appeal, we would surely face the issue again , after final judgment, at which time our resolution of Gol dman Antonetti's appeal -- either because of collateral estoppel, the doctrine of the law of the case, or our own pre cedent -- would govern the outcome. In other words, for all p ractical purposes, our resolution of Goldman Antonetti's app eal resolves Esso's appeal. It makes little practical s ense, then, to dismiss Esso's appeal for lack of jurisdiction, and we shall not do so. See Spears , 859 F.2d at 288 ("In these circumstances, considerations of judicial economy, the litigant's interests, and practicality demand that we exercise jurisdiction over the [otherwise nonappealable] app eal.").

As a final note on this subject, the use of the doc trine here would constitute pendent party appellate juris diction.

See 16 Wright, Miller & Cooper, supra , § 3937, at 690-96. Pendent appellate jurisdiction has heretofore only beenemployed to allow our review of an otherwise nonappealable issue related to an appealable issue, bo th issues having been appealed by the same party. Here, we em ploy pendent appellate jurisdiction to allow our review of related issues that have been appealed by two different par ties. However, the case for exercising pendent (party) ap pellate jurisdiction here is so compelling and the circumst ances of this appeal so unusual that we do not extend the la w by much in holding that pendent appellate jurisdiction applies.

B. The Appropriateness of the Community

Service Sanction

As previously noted, the district court employed it s inherent powers to sanction Esso and Goldman Antone tti. A threshold question, then, might be whether the co urt's resort to the inherent powers, in lieu of the rule- based and statute-based sanctions -- e.g., Fed. R. Civ. P. 11 , 16, and 37, or 28 U.S.C. § 1927 -- was appropriate.13 We ne ed not

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13. In Chambers v. NASCO, Inc. , 501 U.S. 32 (1991), the Supreme Court discussed at length the inherent powers of a court to sanction and their

27reach this question, however. As we shall discuss m ore

fully below, the court had no authority under its i nherent powers to impose the type of sanction it did. We ar e here reviewing a pure question of law; therefore, our st andard of review is plenary. See Public Interest Research Gro up of New Jersey, Inc. v. Windall , 51 F.3d 1179, 1184 (3d Cir. 1995) [hereinafter "PIRG "].

The permissible scope of inherent powers is somewha t unclear; we have earlier observed that "the notion of inherent power has been described as nebulous, and its bounds `shadowy.' " Eash v. Riggins Trucking Inc. , 757 F.2d 557, 561 (3d Cir. 1985) (en banc) (citation omitted ). However, "courts under their inherent powers have developed a wide range of tools to promote efficien cy in their courtrooms and to achieve justice in their re sults." Id. at 564. The Supreme Court has furnished us with at least a partial list of a court's inherent powers. Employ ing its inherent powers, a court can control admission to i ts bar, discipline attorneys, punish for contempt, vacate i ts own judgment upon a finding of fraud, bar a criminal de fendant from a courtroom for disruptive behavior, dismiss a suit on

forum non conveniens grounds or for failure to prosecute, and assess attorney's fees. See Chambers v. NASCO, Inc. , 501 U.S. 32, 43-46 (1991).

In addition to those mentioned by the Supreme Court , other inherent powers include the power to fine, to disqualify counsel, to preclude claims or defenses, and to limit a litigant's future access to the courts. See Joseph,

supra § 28, at 440-47; see also Republic of the Philippi nes v. Westinghouse Elec. Corp. , 43 F.3d 65, 73 n.10 (3d Cir. 1994) (listing the inherent powers available to a c ourt). With these many bows in their sanctioning quivers, courts

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relationship to rule-based and statute-based powers to sanction, e.g., Rule 11, Rule 16, Rule 37, and § 1927. To oversimpl ify somewhat, the

Court held that the existence of rule-based or stat ute-based powers does not preclude a court's employing its inherent power s. See id. at 46-51. The Court observed, but apparently did not require, that normally a
court should look first to those rule-based or stat ute-based powers before turning to its inherent powers, reserving th e inherent powers for

instances in which the rule-based or statute-based powers are not "up
to the task." See id. at 50.

28have frequently invoked their inherent powers "to r egulate

the conduct of the members of the bar as well as to provide tools for docket management." Eash , 757 at 561.

Notwithstanding the variety of tools available to a court under its inherent powers, we believe that an order directing a party to the litigation to remit funds to a third party is outside the scope of a court's inherent po wers. We begin our analysis by noting that "[b]ecause of the ir very potency, inherent powers must be exercised with res traint

and discretion." Chambers , 501 U.S. at 44. That "inherent powers are shielded from direct democratic controls " makes
this exercise of restraint and discretion even more important. Roadway Express, Inc. v. Piper , 447 U.S. 752, 764 (1980).

"A primary aspect of that discretion is the ability to fashion an appropriate sanction for conduct which abuses the judicial process." Chambers , 501 U.S. at 44-45 (emphasis added). Whether creation of the Community Service Sanction Account before us here is appropri ately within the scope of a court's inherent powers turns on the source of a court's inherent powers. The Supreme Co urt discussed the genesis and nature of inherent powers in

Chambers . Inherent powers derive from the very nature of courts of justice. See id. at 42. Necessarily incident to the act of creating courts is the act of imbuing these institutions with certain indispensable powers to " `manage their own affairs so as to achieve the orderly and expeditious disposition of cases.' " Id. (quoting Link v.

Wabash R.R. Co. , 370 U.S. 626, 630-31 (1962)). Inherent powers are sometimes described, in other words, as those "necessary to the exercise of all others." Id. (quoting United

States v. Hudson , 11 U.S. (7 Cranch) 32, 34 (1812)). In

Eash , we described the source of inherent powers in slightly different words. We suggested that inheren t powers fall into three distinct categories: powers arising from Article III, powers arising from the nature of the court, and powers arising from historical notions of the court s of equity. See Eash , 757 F.2d at 562-64.14

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14. Because Eash 's categorization scheme was intended largely as a means of explaining the relationship between inhere nt judicial powers

29No matter where one places their origin, it is clea r that

the power exercised in this case cannot be derived from a court's inherent powers. The district court's actio ns are essentially legislative in nature. Although we reco gnize that the line between a judicial act and legislative act is difficult to fix with certainty, see, e.g. , Mistretta v. United States , 488 U.S. 361, 380-408 (1989); see also Clinton v. J ones , ___ U.S. ___, ___ S. Ct. ___, No. 95-1853, 1997 WL 2736 79, at *10 (U.S. Sup. Ct. May 27, 1997) ("Of course the li nes between the powers of the three branches are not al ways neatly defined."), the district court's sanction he re falls on the legislative side of whatever line we may draw. The court ordered the reallocation of resources from private entities to an agency of the public sector not a party in the c ase.15 It

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and legislatively granted judicial powers, and beca use it is not necessary to tackle the difficult question of that relationsh ip, see supra n.12, we have no occasion to revisit this categorization her e. See also Chambers , 501 U.S. at 47 n.12 (describing Eash 's categorization scheme and concluding that discussion of it is unnecessary).

15. We have addressed a similar question in the cri minal context. See, e.g., United States v. John Scher Presents, Inc. , 746 F.2d 959 (3d Cir. 1984). In that case, we rejected a district court's conditioning probation on the donation of $100,000 to charity. We held tha t the power of the court to place a defendant on probation arose from the probation statute, not from inherent powers. See id. at 961. We further held that the probation statute did not give courts the power to condition probation on the donation of money to a charity. Se e id. at 963-64. This

decision was consistent with the decisions of other circuits addressing the same issue. See, e.g. , United States v. Missouri Valley Constr. Co. , 741 F.2d 1542, 1546-51 (8th Cir. 1984) (en banc); U nited States v. Wright Contracting Co. , 728 F.2d 648, 650-53 (4th Cir. 1984).

Although decided on facts somewhat analogous to tho se presented here, these cases provide little guidance. They do not discuss the scope of a court's inherent powers except to note that th e power to suspend a criminal sentence and impose probation is not a pow er inherent in the courts. Rather, the focus of these cases is on whet her the statutory grant of power to impose probation allows the courts to c ondition probation on a payment of charity. Here, by contrast, we know th at the power to
sanction is inherent in the courts. We are thus con cerned with the scope of inherent, not statutory, powers. Therefore, that a district court cannot condition probation on the payment of charity does not control whether a district court can require the payment of charity as a sanction. Put differently, the existence of a limit on a court's statutory powers does not necessarily mean that there is a corresponding limi t on a court's inherent powers.

30chose from whom the resources would be taken and to

whom the resources would redound, without regard to the anatomy of the case before it. In so doing, the cou rt ventured well beyond the case and controversy befor e it.16

We do not find persuasive the argument that a court 's inherent powers include the wielding of what is ess entially a legislative power. We believe that it is not in t he nature of courts of justice normally to engage in the redistr ibution of wealth to parties outside of the litigation. We fin d nothing in Article III that allows for such a power. Furthe r, we do not believe that such a power is necessary for the efficient functioning of a court. Fines made payable to the c ourt would do just as well in ensuring that parties do n ot interfere with that functioning. From the standpoin t of the sanctioned party, the disciplining effect of a fine made payable to the court is no different from the disci plining effect of a sanction made payable to some third par ty; the sanctioned party is out of pocket the same amount e ither way. Finally, we have been directed to no historica l evidence demonstrating that courts of equity had th is power, and given that the inherent powers must be exercised with restraint, we see no reason to permi t this

power now.

As our discussion makes clear, the court redistribu ted a portion of the wealth in the Virgin Islands, not fr om one party in the litigation to another, but from one pa rty in the litigation to another party of the court's choosing . We acknowledge that this reallocation occurred under t he aegis of a sanctions proceedings; however, we may not be

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16. In the context of administrative law, commentat ors have drawn the line between legislative and adjudicative functions by referring to the factual evidence on which the relevant government b ody relies in making

its decision. See 2 Kenneth Culp Davis & Richard J. Pierce, Jr.,

Administrative Law Treatise § 9.2, at 7-8 (3d ed. 1994). "[L]egislative facts are the general facts that help a government instit ution decide questions of law, policy, and discretion." Id. These are facts that concern more than just an individual. See id. Here, the court had to rely on facts outside of those provided it by the parties to dete rmine that the Virgin Islands prison system was an appropriate recipient of funding. In that sense, the court was searching for legislative fact s. It was, in that same sense, engaging in a nonadjudicatory function.

31prevented from looking beyond mere labels to the

underlying reality of the particular exercise of go vernmental power. See Mistretta , 488 U.S. at 393. The reality in this case involved the exercise of legislative power.

We appreciate the sense of outrage that motivated t he district court's decision to impose the community s ervice sanction. The contamination of the Tutu aquifer was tragic, and the delay in determining responsibility for tha t contamination is doubtless frustrating. The communi ty service sanction, at least on its face, is attracti ve because it seeks to punish those who have caused, at least in part, that delay and assist those who might have been har med by the contamination. In that sense, the district c ourt's actions were admirable. However, a court does not a lways do well by doing good. Though we applaud the distri ct court's motives, we are constrained to find fault w ith its remedy.17

In sum, we hold that the district court's inherent powers can not support the imposition of the community ser vice

sanction.18

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17. Our conclusion that the creation of the Communi ty Service Sanction Account was beyond the powers of the district court is bolstered by our

canvass of the law of our sister circuits. We are u naware of any court of appeals that has imposed this type of community ser vice sanction. Nor do we find helpful the sources to which the distric t court cites for support of its proposed sanction. The district cour t could cite only to a

law review article. See Brent Fisse, Reconstructing Corporate Criminal Law: Deterrence, Retribution, Fault, and Sanctions , 56 S. Cal. L. Rev. 1141 (1983). The article itself cited to two distri ct court criminal cases in which, the article claimed, the courts imposed m onetary sanctions directed to a community service project. See United States v. Olin Corp. , Crim. No. 78-30, slip op. (D. Conn. June 1, 1978); United States v. Allied Chem. Corp. , 420 F. Supp. 122 (E.D. Va. 1976). We find no supp ort in those cases for imposing such a sanction here. The opinions themselves do not discuss the sanctions at all, though the law review article claims that the monetary sanctions were imposed as conditi ons for probation or nonprosecution. We cannot say for certain because o f the lack of discussion by each of the courts on the matter, but we suspect that the courts' actions would be impermissible under the (o ld) probation statute. See supra note 15.

18. Moreover, we have serious doubts that one could plausibly argue that Congress provided the courts -- by statute or by rule -- the power

32IV. MONETARY SANCTIONS

A. Appellate Jurisdiction

We have jurisdiction over Goldman Antonetti's appea l challenging the imposition of the monetary sanction s directed to the other parties in the litigation pur suant to Eavenson Auchmuty . See supra part II, section A; part III, section A.19 As for the appeals of the remaining pa rties, we believe that we have jurisdiction over these appeal s under the pendent appellate jurisdiction doctrine.20

As we discuss more fully infra part IV, section B, the remaining appeals (other than Goldman Antonetti's) contend that in imposing those sanctions the distri ct court
failed to account for the full extent of the harm c aused by Esso's and Goldman Antonetti's discovery violations . These appeals are closely intertwined with Goldman Antone tti's appeal. The appropriate level of monetary sanctions for discovery abuse payable to a party in the litigatio n (the substance of the remaining parties' appeals) is, in part, dependent on the costs associated with the conduct giving

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to impose the type of sanction imposed here. In ord er to provide such power, we believe three criteria must be satisfied: (1) this must be a power that Congress can constitutionally delegate t o a coordinate branch; (2) Congress must clearly indicate its inte nt to delegate this power; and (3) Congress must provide intelligible p rinciples to guide the courts in the exercise of this power. None of these criteria is satisfied

here."

19. The substantive issues we will discuss here, se e infra part IV, section B, are separate from the merits of the case. Theref ore, there is no concern that the second prong of the Cohen test, which includes the requirement that the issue on appeal be separate fr om the merits of the underlying dispute, is not satisfied. The issues we discuss concern primarily the propriety of basing a sanction award on the costs associated with the sanctions proceedings themselve s and the responsibility an aggrieved party has to detail for the court the harm a discovery violation caused him. Neither of these is sues touches the merits of the underlying dispute. Further, because the circuit law on these subjects is somewhat unsettled, we believe th at the substantive issues are important enough for immediate review.

20. As we noted above, Esso does not appeal from th at part of the order imposing monetary sanctions on it.

33rise to the sanctions (the substance of the Goldman

Antonetti appeal). We therefore cannot conclusively and finally determine whether the sanctions imposed on

Goldman Antonetti are too harsh without also determ ining whether those same sanctions adequately accounted f or the harm caused to the other parties.

In exercising jurisdiction here, we are exercising jurisdiction over the appeals by the parties to who m Esso was directed to pay sanctions. Because Esso has not appealed this aspect of the district court's order, the reasons for our use of pendent appellate jurisdicti on are slightly different from the reasons for our use of that doctrine to review the appeals of the parties to wh om Goldman Antonetti was directed to pay sanctions. Fi rst, the harm, if any, caused by Goldman Antonetti's discove ry violations affected all of the parties, though to a varying degree; that some of those parties were to be paid by Esso rather than Goldman Antonetti had nothing to do wit h
whether Esso or Goldman Antonetti had harmed them. Put differently, the question whether Goldman Antonetti 's discovery violations caused harm affects all the pa rties to whom sanctions were directed. Therefore, for the sa me reasons that Goldman Antonetti's appeal and the app eals of the parties to whom Goldman Antonetti was directed to pay sanctions are closely intertwined, so too are the a ppeals of the parties to whom Esso was directed to pay sancti ons closely intertwined with Goldman Antonetti's appeal

.

Second, we resolve these appeals, see infra part IV, section B, by reference to the same issue that gove rns the appeals of the parties to whom Goldman Antonetti wa s directed to pay sanctions, namely, the responsibili ty an aggrieved party has to specify for the court the ha rm caused by a discovery violation. Therefore, as with our review of the district court's use of inherent powe rs, see

supra part III, section A, practical realities strongly suggest that we exercise jurisdiction over all the appeals here. Otherwise, as above, we would surely face the issue again, after final judgment, at which time our resolution of the appeals of the parties to whom Goldman Antonetti wa s directed to pay sanctions -- either because of coll ateral estoppel, the doctrine of the law of the case, or o ur own

34precedent -- would govern the outcome as to the par ties to

whom Esso was directed to pay sanctions.

In sum, our resolution of these appeals resolves th e remaining appeals. It makes little practical sense to dismiss some of these appeals for lack of jurisdiction, hen ce we shall not do so. See Spears , 859 F.2d at 288 ("In these circumstances, considerations of judicial economy, the litigant's interests, and practicality demand that we exercise jurisdiction over the [otherwise nonappealable] app eal."). As in part III, section A, the case for exercising pen dent (party) appellate jurisdiction here is so compelling and th e circumstances of this appeal so unusual that we do not extend the law by much in holding that pendent appe llate jurisdiction applies here. We therefore will review that part of the district court's order imposing monetary san ctions directed to parties to the litigation.

B. Was the Monetary Sanction Appropriate ? 21

1. Introduction and Standard of Review

Our review of the award of monetary sanctions must address dual concerns. First, we must examine the sanctions award from the standpoint of Goldman Anto netti, which contends that the district court erred in imp osing sanctions at all. Second, the parties to whom the c ourt awarded sanctions argue that the sanctions were inadequate to account for the full scope of the har m they

suffered as a result of Esso's and Goldman Antonett i's discovery violations.

The standard governing the district court's award o f sanctions is a legal question subject to plenary re view. See

PIRG , 51 F.3d at 1184; cf. Martin , 63 F.3d at 1262 (subjecting a claim that a sanction proceeding viol ated due process requirements to plenary review). If a distr ict court applies the proper legal standard, then the award o f

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21. The analysis that follows in the text does not make a distinction between inherent powers sanctions and statute-based or rule-based sanctions. In respects relevant to our discussion, the sanctioning tools

are the same.

35sanctions, including the extent of those sanctions, is within

the discretion of the district court. See PIRG , 51 F.3d at 1184; see also Chambers , 501 U.S. at 55 ("We review a court's imposition of sanctions under its inherent powers for abuse of discretion."). "An abuse of discretion is a `clear error of judgment,' and not simply a different resu lt which can arguably be obtained when applying the law to t he facts of the case." United Telegraph Workers, AFL-C IO v. Western Union Corp. , 771 F.2d 699, 703 (3d Cir. 1985) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe , 401 U.S. 402, 416 (1971)). To determine whether a distr ict court abused its discretion, "we evaluate the court's fac tual determinations, legal conclusions, and choice of an `appropriate sanction' with substantial deference, considering not whether we would make the same prec ise determinations, but only whether those determinatio ns are contrary to reason or without a reasonable basis in law and
fact." Simmerman , 27 F.3d at 62.

2. Did the District Court Abuse its Discretion in Sanctioning Goldman Antonetti?

Goldman Antonetti submits that the district court m ade a number of factual and legal errors serious enough to warrant our reversing its decision to impose sancti ons. First, the firm argues that costs and expenses asso ciated with the sanctions hearings themselves are not reco verable as sanctions. Next, it contends that the district c ourt failed to identify the individual acts for which it is lia ble for sanctions. Even assuming that there were individual acts that might be sanctionable, Goldman Antonetti furth er contends that such acts caused the moving parties n o prejudice. At all events, it concludes, the parties seeking sanctions had already released the firm from liabil ity.

a. Can Sanctions be Based on the Costs of Sanctioning Proceedings?

Goldman Antonetti argues that the district court impermissibly awarded sanctions based on the costs and expenses arising from the sanctions proceedings themselves. In the firm's submission, such an award

36constitutes improper fee shifting. We disagree. It is beyond

dispute that attorney's fees are, in certain circum stances, properly awarded as a sanction. We are unaware of precedent in this circuit that categorically exclud es from such an award attorney's fees arising from the sanc tions proceedings themselves (though, as we discuss below , there is precedent in other circuits that bears on this i ssue).22 Nor do we believe such a categorical exclusion is w ise. The time, effort, and resources expended in bringing sanctionable conduct to light would have been unnec essary had the sanctionable conduct never occurred. These costs are as much a harm to a party in the litigation as is the delay in the litigation or the substantive prejudic e caused by the conduct. If we exclude from a possible award the costs of sanctions proceedings, we would undermine the compensatory goal of a sanctions award.

Further, if a party is aware ex ante that the costs he incurs in exposing sanctionable conduct will never be recouped, that party may decide to forgo a sanction s proceeding altogether. In doing so, however, that p arty might allow otherwise sanctionable conduct to go unaddressed. In such cases, the deterrent goal of a sanction award has been lost; parties who know that the likelihood of facing a sanction proceeding are low may engage in sanctionable conduct more often. Therefor e, we believe a district court, in the exercise of its di scretion, may award attorney's fees arising from sanctions procee dings.

We are aware of precedent in other circuits that ha s disallowed such awards in the Rule 11 context. See, e.g. , Zimmerman v. Bishop Estate , 25 F.3d 784, 790 (9th Cir.

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22. In Chambers , in which the Supreme Court affirmed in all respec ts the award of sanctions in the case, see Chambers , 501 U.S. at 55-58, the district court employed its inherent powers to award sanctions based in part on the costs associated with the sanctions proceedings themselves. See NASCO, Inc. v. Calcasieu Television & Radio, Inc. , 124 F.R.D. 120, 143 (W.D. La. 1989), aff'd , 894 F.2d 696 (5th Cir. 1990),

aff'd sub nom. , Chambers v. NASCO, Inc. , 501 U.S. 32 (1991). Although the Supreme Court did not directly address the prec ise issue we address here, and there is no indication that the parties r aised it, the Court at least implicitly approved of a sanction award based on the costs associated with the sanctions proceedings themselve s.

371994); Pan-Pacific and Low Ball Cable Television Co . v.

Pacific Union Co. , 987 F.2d 594, 597 (9th Cir. 1993); Lockary v. Kayfetz , 974 F.2d 1166, 1177-78 (9th Cir. 1992); Brubaker v. City of Richmond , 943 F.2d 1363, 1387 (4th Cir. 1991); Blue v. United States Dept. of the Army , 914 F.2d 525, 548-49 (4th Cir. 1990).23 However, better reasoned precedent in still other circuits supports our view that the costs associated with the sanctions procee dings themselves can be recoverable. See, e.g. , Kirk Capital Corp. v. Bailey , 16 F.3d 1485, 1491 (8th Cir. 1994); Silva v.

Witschen , 19 F.3d 725, 733 n.15 (1st Cir. 1994); Brandt v. Schal Assocs., Inc. , 960 F.2d 640, 649-51 (7th Cir. 1992); In re Stauffer Seeds, Inc. , 817 F.2d 47, 50 (8th Cir. 1987) (Rule 37).

In addition, in 1993, Rule 11 was amended to add language that would allow sanctions for the costs associated with presenting or opposing a motion for Rule
11 sanctions. See Joseph, supra , § 16(B)(17), at 278. The

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23. A number of these cases take guidance from Coot er & Gell v. Hartmarx Corp. , 496 U.S. 384 (1990), in which the Supreme Court h eld that Rule 11 does not allow the recovery of the cos ts associated with defending a sanction award on appeal. See id. at 406-09. We believe that

reliance on Cooter & Gell to hold that Rule 11 does not allow recovery of the costs associated with the sanctions proceedings themselves is misplaced. The Court in Cooter & Gell was moved by a number of context-based factors. First, the Court noted that Rule 11 does not apply to appeals, and that applying Rule 11 to appeals wo uld upset the scheme, contained in the Federal Rules of Appellate Procedure, for sanctioning frivolous appeals. See id. at 406, 408. Allowing a Rule 11 award based on the sanctions proceedings themselves , would not, however, implicate the Rules of Appellate Procedure at all because such proceedings inhere in the district court. Further, borrowing from the proximate cause theories of tort law, the Court not ed that costs on appeal were a result of the sanction itself and the appeal, not a result of the improper filing. See id. at 406-07. The costs of the sanctions proceedings, however, are more properly characteriz ed as the result of the improper filing. Finally, the Court feared that allowing recovery of the costs of appeal would discourage sanctioned parties from pursuing meritorious appeals. See id. at 407. Allowing recovery of the costs associated with the sanctions proceedings has no ef fect on the pursuit of meritorious appeals and, as we note in the text, allowing such recovery might encourage parties to bring sanctiona ble conduct to light.

38language in Rule 11 now states that "the court may award

to the party prevailing on the motion the reasonabl e expenses and attorney's fees incurred in presenting or opposing the motion." Fed. R. Civ. P. 11(c)(1)(A). That amendment seems to have effectively overruled cases that
held that it is an abuse of discretion to award san ctions based on the costs of sanctions proceedings.24

b. Actions Giving Rise to Sanctions Against

Goldman Antonetti

Goldman Antonetti is correct in pointing out that t he district court did not identify with specificity ma ny of the
acts that caused it to infer that Esso and Goldman Antonetti were engaged in a pattern of delay. The c ourt did, however, make extensive findings as to the Agrelot memorandum and the anomaly investigation. With resp ect to both of those matters, the district court's find ings were not unreasonable. The undisputed fact is that the A grelot
memorandum did not surface until well after discove ry had begun and until well after parties to the litigatio n had made repeated requests that clearly covered the document

.

Goldman Antonetti advances a plausible explanation for why the Agrelot memorandum was produced so late in the litigation. It is certainly possible that no attorn ey from Goldman Antonetti knew of the Agrelot memorandum un til it was found in October 1993, notwithstanding testi mony to the contrary; it is equally possible that the Agrel ot memorandum was misfiled by both Soil Tech and by Goldman Antonetti. That is not to say, however, tha t the court's findings, which are based on an inference t hat Goldman Antonetti intentionally withheld the Agrelo t memorandum, are unreasonable. There is evidence in the record that Goldman Antonetti attorneys knew of the memorandum's existence. Those same attorneys respon ded to the discovery requests covering such memorandum, and yet the document was not produced.

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24. We are aware of only one case decided after the 1993 amendment to Rule 11 that disallowed such an award; however, the opinion did not cite the amendment and uncritically applied prior circui t precedent. See
Zimmerman , 25 F.3d at 790 (citing Lockary ).

39With respect to the anomaly investigation, our anal ysis is

similar. Goldman Antonetti relies on a report by a magistrate judge concluding that the firm's actions during the investigation amounted to nothing more than zea lous advocacy in representation of its clients and there fore did

not warrant sanctions. The firm submits that the di strict court had no basis to disagree with the magistrate judge's conclusions. However, the district court in that in stance did not owe the magistrate judge any deference. Further , the undisputed evidence makes it clear that it was not

unreasonable for the district court to conclude tha t the delays in the investigation were willful and in bad faith. The investigation began late, was aborted prematurely b ecause of the failure of the parties to arrive with approp riate equipment, and was not completed for many months.

Goldman Antonetti's next argument -- that the failu re to produce the Agrelot memorandum caused no harm to th e other parties in the litigation -- suffers the same fate. The firm here stresses that it produced the entire ETC report, of which the Agrelot memorandum was merely a summary. If, Goldman Antonetti questions, a full report has been produced, how can the failure to produce a summary of the report cause any harm to a party that can easily summarize the report for itself? The firm has a goo d point,

but it does not mean that the district court's conc lusion was contrary to reason. The ETC report was both com plex and voluminous. Examining it required significant c osts. A summary prepared by an expert would have reduced th ese costs and identified the problems that could only h ave been discovered by imposing a considerable burden on tho se examining the report for the first time. We concede , as did the district court, that the summary, timely produc ed, might have provided the parties to the litigation w ith less assistance than they claim. Still, it would have pr ovided assistance, and that is the crux of the harm caused by the failure of Esso and Goldman Antonetti to produce th e Agrelot memorandum.

c. Was Goldman Antonetti Released from Sanctions?

Goldman Antonetti also argues that three of the par ties seeking sanctions from it -- Four Winds, Laga, and Western

40Auto Supply -- have already released the firm from liability.

Goldman Antonetti bases this argument on the settle ment agreement reached between Esso and these parties in which the parties settled the underlying litigation and released Esso and "their . . . attorneys" from liab ility. Because Goldman Antonetti served as Esso's attorney s, it follows, Goldman Antonetti reasons, that the settle ment agreement eliminates the possibility that these par ties can

collect a sanctions award from Goldman Antonetti. T he district court disagreed. "Because the interpretati on of contractual language to discern contractual intent is a question of fact, our review is limited to a determ ination whether the district court's findings are clearly e rroneous."
Painewebber Inc. v. Hartmann , 921 F.2d 507, 510 (3d Cir. 1990).

The issue, then, is whether the parties intended th e term "attorneys" in the settlement agreement to refer on ly to counsel representing Esso at the time of the signin g of the agreement, or also to refer to counsel who had repr esented Esso previously. The district court held that the r elease --
a contract -- does not cover Goldman Antonetti for two reasons. First, by the time the settlement agreemen t came into force, Esso had already severed its relationsh ip with Goldman Antonetti. Because the term "attorneys" pla inly refers only to counsel representing Esso at the tim e of the settlement agreement, the term must not encompass Goldman Antonetti. Second, even assuming that the examination of extrinsic evidence is appropriate he re either to explain the term "attorneys" or to show that the parties attached some special meaning to "attorneys," there is no extrinsic evidence that the parties to the settleme nt
intended it to cover Goldman Antonetti. Goldman Ant onetti offers and our review of the record suggests nothin g-- save the language of the settlement agreement, which doe s not, by its terms, cover Goldman Antonetti -- that would lead us to conclude that the district court's findings w ere clearly erroneous under any legal standard governing interpretation of a contractual term.

In sum, we are satisfied that the district court di d not abuse its discretion in concluding that Goldman Ant onetti is subject to some form of sanction and that $120,0 00 was an appropriate sanction.

413. The Process of Determining the Extent of Harm

Caused by Discovery Violations

The movants appeal the measure of the sanctions the court awarded to them. They argue that the process the
court undertook to determine the extent of the harm caused by the sanctionable conduct was in error, fi rst
because the district court ruled that their submiss ions detailing their harm were inadequate, and second be cause the district court awarded a uniform level of sanct ion based on the submission of one party. It would be useful, then, to begin by briefly describing that process.

Having held that the discovery violations caused ha rm, the court examined the papers these parties submitt ed that purported to describe the extent of that harm. The court believed that the papers "suffer[ed] from two short comings."

Tutu III , 166 F.R.D. at 342. First, the papers did not adequately categorize the claimed harm within the framework the court had created for addressing the

sanctionable conduct. The court found it difficult to determine whether the moving parties were seeking c osts and expenses from (1) discovery violations related to the search for evidence of contamination at ETSS; (2) t he failure to disclose the Agrelot memo; or (3) the sa nctions proceedings themselves, the three broad areas into which the court held sanctionable conduct fell. Second, t he court faulted the parties for their general failure to pr ovide it with documentation "that adequately and efficiently expl ained to the court how those expenses could be justified as a sanction." Id.

These shortcomings led the court to award only a po rtion of the sanctions sought. The court declined to scru tinize the voluminous submissions of the parties in order to perform the categorization it had requested the par ties to perform. Instead, the court simply denied the award of sanctions arising from (1) discovery violations rel ated to the search for evidence of contamination at ETSS; and ( 2) the failure to disclose the Agrelot memo. The court did , however, award sanctions arising from the sanctions proceedings themselves. The court set a uniform lev el of sanction award based on L'Henri's request. The cour t did so

42because it believed that L'Henri's request was clea r, well

supported, and, in all, "unassailable."

a. The Failure of the Submission

We believe that the district court was well within its discretion to deny the requested sanctions based up on the parties' submissions. Our independent review of the submissions generally confirms the district court's view that they are less than helpful. The submissions ar e voluminous, are not well organized, and, at bottom, are unclear. It would take an enormous effort to impres s upon them the order necessary for a reasoned decision, i ncluding the making of a reasoned judgment as to the validit y of the requests contained therein. Although we suspect tha t, had
the district court chosen to undertake such an effo rt, the material submitted might ultimately have supported the award of additional sanctions, we do not believe th at it was unreasonable or a clear error of judgment for the d istrict court to refuse such a huge task.

Engaging the submissions on their own terms would cause great delays in a complex case already delaye d by discovery violations and already taxing judicial re sources. In short, the district court exercised its discreti on in such a manner so as to prevent "a second major litigatio n." Hensley v. Eckerhart , 461 U.S. 424, 437 (1983) (discussing a request for attorney's fees in civil rights litig ation). We do not believe that by doing so the district court abu sed its

discretion.

Instructive in this regard are cases addressing req uests for attorney's fees under civil rights or other sim ilar statutes that allow for fee shifting in certain cir cumstances. These cases make clear that the applicant for fees has an affirmative responsibility to assist the court in s orting through, organizing, and evaluating a fee request. The Supreme Court has stated that in such cases the "fe e applicant bears the burden of establishing entitlem ent to an award and documenting the appropriate hours expe nded and hourly rates." Id. In submitting an application, the applicant must exercise "billing judgment" by makin g a "good-faith effort to exclude from a fee request ho urs that

43are excessive, redundant, or otherwise unnecessary. " Id. at

434. As we stated in Hall v. Borough of Roselle , 747 F.2d 838 (3d Cir. 1984), "members of the bar are quasi-o fficers of the court and they are expected to be careful . .. in their representations to the court." Id. at 841-42. Busy district judges cannot be expected to do lawyers' work.

In sum, as with requests for attorney's fees, in as sessing the harm discovery violations may have caused to li tigants,

district courts deserve the conscientious assistanc e of lawyers. Although a court is free to do so, it is n ot incumbent upon a district court to devote its own v aluable time, energy, and resources to remedy the shortcomi ngs of
movants' submissions if that assistance falls short . Nor will we require the court to do so here. We thus do not believe

the district court abused its discretion in refusin g to award
sanctions based on the submissions of the movants.

b. Basing the Sanctions on L'Henri's Request

We also believe that the district court was within its discretion to award each party a uniform level of s anction to compensate the parties for their participation i n the sanctions proceedings, and to base that uniform lev el on the submission of L'Henri. The decision to impose a uniform level of sanction suggests that the court b elieved that the amount of effort appropriately expended in preparing for and participating in the sanctions pr oceedings was uniform across the various parties. Such a beli ef was not unreasonable here since the parties were simila rly
situated.

According to the court, L'Henri's counsel, Nancy D' Anna, submitted well-reasoned, thoroughly researched, and adequately documented material to the court through out the sanctions proceedings. What is more, the court continued, L'Henri produced such material efficient ly and relatively cheaply. In deciding to base the uniform level of sanction on L'Henri's request, the district court i mplicitly found that each party could have produced similarly wellreasoned, thorough, and adequately documented mater ial for no greater cost than that incurred by L'Henri. We
believe that it is not an abuse of discretion for t he district

44court to assume that all parties can produce work o f

L'Henri's quality for approximately the same cost.

In sum, we believe the district court acted within its discretion in awarding only a portion of the moneta ry sanctions sought by the moving parties.

V. CLAIMS FOR CERCLA CONTRIBUTION

Unfortunately, we have no appellate jurisdiction ov er that portion of the district court's order rejecting the motion to

dismiss Esso's claims for CERCLA contribution as a

sanction under Poulis v. State Farm Fire and Casual ty Co. , 747 F.2d 863 (3d Cir. 1984). Poulis sets out a six-factor balancing test to guide a court's analysis as to wh ether to
dismiss a claim as a sanction. See id. at 868. One of those factors requires that we examine the "meritoriousne ss of the
claim or defense." Id. (emphasis in original). However, the CERCLA claims have never been filed, though they undoubtedly will be. The district court, in an effo rt to stem the voluminous paper flow, has apparently asked cou nsel to withhold moving forward on the CERCLA claims unt il a more propitious point in the litigation. Therefore, under the current posture of the case we would be hard presse d to find some means to review contentions with respect to
these claims.

If this problem did not exist, the parties might ar gue that we have jurisdiction over the Poulis claim under the

collateral order doctrine as set forth in Cohen .25 However,

the Cohen test would allow us to exercise jurisdiction only if, inter alia, our review would not require us to examine the merits of the underlying litigation that remain s to be adjudicated. To review the Poulis claim, we would need to do just that because Poulis requires us to examine the merits of the underlying CERCLA litigation.

Additionally, the Cohen test does not allow our exercise of appellate jurisdiction over a non-final order if th e order can be appealed effectively after final judgment. Here, there can be little dispute that the parties can appeal the P oulis claim

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25. As we explain supra section II, part A, the district court's order is not final for appellate jurisdiction purposes.

45after final judgment, by which time the claim will likely be

better defined. We therefore have no jurisdiction o ver that part of the district court's order denying the moti on to
dismiss Esso's claim for contribution as a sanction , and will dismiss the appeals challenging that part of t he order.

VI. CONCLUSION

The order of the district court will be affirmed in sofar as it imposes a $120,000 sanction on Goldman Antonetti and insofar as it rejects the claims for additional san ctions against Esso and Goldman Antonetti, but will be rev ersed insofar as it orders the suspension of Cepeda, Rome ro, and Torres and insofar as it requires Esso and Goldman Antonetti to fund a Community Service Sanction Acco unt. The appeals relating to the refusal of the district court to
dismiss Esso's claims for contribution will be dism issed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

46