In the

United States Court of Appeals

For the Seventh Circuit

No. 98-3394

Berwick Grain Company, Inc.,

and David McCrery, Jr.,

Plaintiffs-Appellants,

v.

Illinois Department of Agriculture,

Rebecca Doyle, Thomas E. Jennings, et al.,

Defendants-Appellees.

No. 99-3880

Berwick Grain Company, Inc.,

and David McCrery, Jr.,

Plaintiffs-Appellants,

v.

Illinois Department of Agriculture,

Rebecca Doyle, Thomas E. Jennings, et al.,

Defendants-Appellees.

Appeal of: John H. Bisbee.

Appeals from the United States District Court

for the Central District of Illinois.

No. 91-C-4105--Michael M. Mihm, Judge.

Submitted May 5, 2000--Decided June 27, 2000

 Before Posner, Chief Judge, and Flaum and

Evans, Circuit Judges.

 Per Curiam. For a third time we are

compelled to take up matters arising from

a 1991 civil rights lawsuit that Berwick

Grain Company, Inc. and its president

brought against several employees of the

Illinois Department of Agriculture. In

1997, we affirmed the grant of summary

judgment for the defendants, Berwick

Grain Co., Inc. v. Illinois Dep’t. of

Agric., 116 F.3d 231 (7th Cir. 1997), and
last year we affirmed the district

court’s denial of a motion by plaintiffs

to reopen the action, Berwick Grain Co.,

Inc. v. Illinois Dep’t. of Agric., 189

F.3d 556 (7th Cir. 1999) ("Berwick II").

Before us now are lingering sanctions

issues precipitated by the plaintiffs’

failed attempt to revive their suit. We

affirm the district court’s award of

sanctions against plaintiffs’ counsel and

impose further sanctions of our own.

 The pending matters are holdovers from

Berwick II. Underlying that appeal was

the plaintiffs’ long-delayed motion,

premised on Federal Rule of Civil

Procedure 60(b), to set aside summary

judgment and revive a case then approach

ing seven years old. The defendants

deemed the Rule 60(b) motion frivolous

and, when it was denied, asked the

district court to impose sanctions under

Federal Rule of Civil Procedure 11. That

motion was heard by the district court

after the plaintiffs already had filed an

appeal from the denial of Rule 60(b)

relief, and so even though the judge

announced in open court his intention to

sanction plaintiffs’ counsel, John H.

Bisbee, the court acceded to Mr. Bisbee’s

request that a formal ruling be withheld

until after we decided Berwick II. Our

mandate in that appeal, case no. 98-3394,

issued on September 20, 1999, and nine

days later the district court entered its

written Rule 11 order sanctioning Mr.

Bisbee with a $5,550 penalty. Mr. Bisbee

has appealed, and we have docketed this

latest appeal as case no. 99-3880.

Meanwhile, before our mandate issued in

Berwick II, the defendants moved for

sanctions under Federal Rule of Appellate

Procedure 38, and we elected to carry

that motion along with Mr. Bisbee’s

appeal of the Rule 11 sanctions. The Rule

11 appeal is now before us, and having

briefed it the defendants also seek Rule

38 sanctions in this newest case.

 We start with the order sanctioning Mr.

Bisbee under Rule 11. The district court,

relying on Rule 11(b)(2) and (c), ordered

Mr. Bisbee personally to pay the Attorney

General of Illinois, who represents the

defendants, $5,550, an amount the court

found to be the reasonable value of

defense counsel’s time devoted to the

district court litigation spawned by the

plaintiffs’ Rule 60(b) motion. In this

appeal Mr. Bisbee takes no issue with

either the amount of the penalty or the
decision to levy it against him

personally. He instead insists that he

engaged in no sanctionable conduct. Rule

11, though, plainly authorizes a district

court to sanction a lawyer who without

reasonable inquiry tenders a submission

that includes legal contentions not

warranted "by existing law or by a

nonfrivolous argument for the extension,

modification, or reversal of existing law

or the establishment of new law." Fed. R.

Civ. P. 11(b)(2), (c); see Retired

Chicago Police Ass’n v. Firemen’s Annuity

and Benefit Fund, 145 F.3d 929, 934 (7th

Cir. 1998); Anderson v. County of

Montgomery, 111 F.3d 494, 501 (7th Cir.

1997). Frivolous or legally unreasonable

arguments, then, may incur penalty,

Independent Lift Truck Builders Union v.

NACCO Materials Handling Group, Inc., 202

F.3d 965, 968-69 (7th Cir. 2000); Fries

v. Helsper, 146 F.3d 452, 458 (7th Cir.),

cert. denied, 525 U.S. 930 (1998), and

for Rule 11 purposes a frivolous argument

is simply one that is "baseless or made

without a reasonable and competent

inquiry," Independent Lift Truck Builders

Union, 202 F.3d at 969 (quotation marks

and citation omitted). Here the district

court labeled as frivolous the Rule 60(b)

motion that Mr. Bisbee filed on behalf of

the plaintiffs, and even were we not

constrained to defer to the court’s

assessment, see Cooter & Gell v. Hartmarx

Corp., 496 U.S. 384, 405 (1990); Kennedy

v. National Juvenile Detention Ass’n, 187

F.3d 690, 696 (7th Cir. 1999), cert.

denied, 120 S.Ct. 1169 (2000), its

sanctions order simply makes explicit

what is readily apparent from our Berwick

II opinion.

 Nothing in Mr. Bisbee’s brief persuades

us differently. In exercising its

discretion under Rule 11, the district

court focused on its earlier conclusion--

one we have already affirmed--that the

plaintiffs’ Rule 60(b) motion was beyond

the court’s power to grant because Mr.

Bisbee filed it too late. Mr. Bisbee

insists he harbored an "objectively

reasonable" belief that the clock was

still running when he filed the motion,

but we settled this question in Berwick

II. All along the plaintiffs have

insisted that our 1997 opinion in their

first appeal disturbed the adverse

summary judgment and triggered a new oneyear period under Rule 60(b)(1), but we

explicitly noted in Berwick II that Mr.
Bisbee had not identified any authority

suggesting that our outright affirmance

of the summary judgment did anything of

the sort. Berwick II, 189 F.3d at 560.

Mr. Bisbee offers by way of excuse that

he looked for support but found none. He

found none because "reasonable and

competent inquiry," see Independent Lift

Truck Builders Union, 202 F.3d at 969,

would have led him to conclude there was

none. The very point of Rule 11 is to

lend incentive for litigants "to stop,

think and investigate more carefully

before serving and filing papers," see

Cooter & Gell, 496 U.S. at 398 (quotation

marks and citation omitted), but when his

quest proved futile Mr. Bisbee,

disregarding the rule, filed anyway.

Having done so, he has no basis to

complain about the district court’s

decision to sanction him.

 We now turn to the question of Rule 38

sanctions. When an appeal rehashes

positions that the district court

properly rejected, A-Abart Elec. Supply,

Inc. v. Emerson Elec. Co., 956 F.2d 1399,

1406-07 (7th Cir. 1992), or when it

presents arguments that are lacking in

substance and "foreordained" to lose,

Mars Steel Corp. v. Continental Bank

N.A., 880 F.2d 928, 938 (7th Cir. 1989)

(en banc), the appeal is frivolous.

Pursuing a frivolous appeal invites

sanctions, including "just damages," see

Fed. R. App. P. 38; Jansen v. Aaron

Process Equip. Co., 207 F.3d 1001, 1005

(7th Cir. 2000); Mars Steel Corp., 880

F.2d at 938, which we may impose in our

considered discretion, in re Generes, 69

F.3d 821, 828 (7th Cir. 1995); Colosi v.

Electri-Flex Co., 965 F.2d 500, 504 (7th

Cir. 1992). How we exercise that

discretion may turn on our perception of

whether an appellant acted in bad faith.

See, e.g., Lorentzen v. Anderson Pest

Control, 64 F.3d 327, 331 (7th Cir.

1995); Depoister v. Mary M. Holloway

Foundation, 36 F.3d 582, 588 (7th Cir.

1994). However, we have defined our power

to sanction by an objective test. See

LINC Finance Corp. v. Onwuteaka, 129 F.3d

917, 924 (7th Cir. 1997); Mars Steel

Corp., 880 F.2d at 938 (stating that the

Rule 38 standard "depends on the work

product: neither the lawyer’s state of

mind nor the preparation behind the

appeal matter").

 We conclude that sanctions are
appropriate in these cases. Before Mr.

Bisbee filed either appeal, it should

have been obvious to him that both are

frivolous. Berwick II is patently so. As

we intimated last August when we

addressed the merits, the plaintiffs

could not possibly have believed in good

faith that we would overturn the

rejection of a Rule 60(b) motion which,

even apart from its lateness, did nothing

to rectify the evidentiary failings that

obliged us to affirm the grant of summary

judgment in the first place. See Berwick

II, 189 F.3d at 560-61. Pressing to

reinstate a lawsuit that cannot be

sustained if revived epitomizes bad

faith, and pursuing the same frivolous

matter on appeal after its rejection with

the promise that Rule 11 sanctions will

follow leads to precisely the "shameful

waste of judicial manpower" that we have

sanctioned in the past and will again

here. See Rennie v. Dalton, 3 F.3d 1100,

1111 (7th Cir. 1993) (quotation marks and

citations omitted).

 Likewise, Mr. Bisbee’s Rule 11 appeal

typifies "the kind of obstinacy that Rule

38 does not countenance." Listle v.

Milwaukee County, 138 F.3d 1155, 1160

(7th Cir. 1998). We have come this far

only because--in his words--Mr. Bisbee

"cannot affect a false air of contrition"

and accept the district court’s finding

that his stated belief in the timeliness

of the Rule 60(b) motion was objectively

unreasonable. We owe substantial

deference to district courts in Rule 11

matters, and when sanctions are

challenged without any "reasonable

prospect of meeting the difficult

standard of abuse of discretion," see

Cooter & Gell, 496 U.S. at 408, the

appeal is necessarily frivolous.

Moreover, Mr. Bisbee concedes that we may

affirm a sanctions award on any basis

supported by the record. Finance Inv. Co.

(Bermuda) v. Geberit AG, 165 F.3d 526,

530 (7th Cir. 1998). Thus, this Rule 11

appeal is particularly frivolous because

whether or not Mr. Bisbee thought the

plaintiffs’ Rule 60(b) motion was timely

he could not have reasonably believed

that it was filed in good faith given its

complete lack of substantive merit.

Again, we said as much in Berwick II, 189

F.3d at 560-61, and since a frivolous

appeal challenging sanctions "is the

capstone of litigation that is hollow in

every particular," Greening v. Moran, 953
F.2d 301, 307 (7th Cir. 1992), a Rule 38

award is appropriate.

 Still, we refuse the defendants’

invitation to add another $13,000 to what

the district court already has ordered.

Proponents of sanctions shoulder an

obligation to mitigate the harm from

frivolous appeals, see Colosi, 965 F.2d

at 504-05; Brooks v. Allison Div. of Gen.

Motors Corp., 874 F.2d 489, 490 (7th Cir.

1992), and so we are puzzled by appellate

counsel’s bill for the 75 hours he spent

defending a Rule 60(b) judgment and Rule

11 sanctions award that his predecessor

won in district court expending only 47

hours (a figure the district judge

believed excessive and reduced to 36

hours). Particularly as to the Rule 11

appeal, where we might naturally be

inclined toward assessing damages because

of Rule 38’s role in encouraging

recipients of Rule 11 sanctions to defend

their awards against frivolous but

expensive appeals, see in re Generes, 69

F.3d at 828; Kale v. Obuchowski, 985 F.2d

360, 362 (7th Cir. 1993); Greening, 953

F.2d at 306-07, we question the

reasonableness of the defendants’ demand

for attorney’s fees incurred in preparing

a brief and Rule 38 motion that took

three months to reach us yet in the main

are lifted from like submissions in

Berwick II. 

 Compounding the costs associated with

frivolous appeals risks loss or reduction

of Rule 38 sanctions, see Kale, 985 F.2d

at 364; Brooks, 874 F.2d at 490. However,

because we do not wish to reward these

frivolous appeals, we will pare rather

than eliminate the defendants’ damages.

We therefore grant the motions for Rule

38 sanctions but in lieu of attorney’s

fees order Mr. Bisbee to pay a $1,000

sanction in each appeal. See Listle, 138

F.3d at 1160; Perry v. Pogemiller, 16

F.3d 138, 140 (7th Cir. 1993). Like the

district court, we assess these sanctions

against Mr. Bisbee, not the plaintiffs

who were misled about the futility of

Berwick II and, of course, have no stake

in the Rule 11 appeal. See Rennie, 3 F.3d

at 1111; Hartz v. Friedman, 919 F.2d 469,

475 (7th Cir. 1990); Mestayer v.

Wisconsin Physicians Serv. Ins. Corp.,

905 F.2d 1077, 1080-81 (7th Cir. 1990).

And lest the plaintiffs or Mr. Bisbee

misconstrue our exercise of restraint, we

hasten to add that this litigation is
over.

 In appeal no. 99-3880 the judgment of

the district court imposing Rule 11

sanctions against attorney John H. Bisbee

is AFFIRMED. In each appeal the

defendants’ motion for Rule 38 sanctions

is GRANTED in part. Within 14 days Mr.

Bisbee shall remit to the Attorney

General of Illinois $2,000 in total

damages, consisting of $1,000 in appeal

no. 98-3394 and $1,000 in appeal no. 99-

3880. Damages are awarded against Mr.

Bisbee personally and shall not be

reimbursed by the plaintiffs. In both

appeals all other pending motions are

DENIED.