United States Court of Appeals 

For the First Circuit 

No. 14-2151 

IN RE KEVIN CHARBONO, 

Debtor. 

__________________ 

KEVIN CHARBONO, 

Appellant, 

v. 

LAWRENCE P. SUMSKI, Trustee, 

Appellee. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW HAMPSHIRE 

[Hon. Steven J. McAuliffe, U.S. District Judge] 

[Hon. J. Michael Deasy, U.S. Bankruptcy Judge] 

Before 

Howard, Selya and Kayatta, 

Circuit Judges. 

 Michelle Kainen, with whom Kainen Law Office, PC was on brief, 

for appellant. 

 Tara Twomey, Ray DiGuiseppe, and National Consumer Bankruptcy 

Rights Center on brief for National Association of Consumer 

Bankruptcy Attorneys, amicus curiae. 
 Lawrence P. Sumski for appellee. 

June 15, 2015 

 
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SELYA, Circuit Judge. This appeal poses the question 

of whether a bankruptcy court has inherent power to sanction 

parties for noncompliance with court orders. We hold that it 

does — and we reject the debtor's attempt to subsume this power 

within the bankruptcy court's authority to punish for criminal 

contempt. After placing the sanction imposed by the bankruptcy 

court in perspective, we conclude that the district court did 

not err in upholding it. 

I. BACKGROUND

 Facing straitened circumstances, Kevin Charbono (the 

debtor) filed a voluntary petition for relief under Chapter 13 

of the Bankruptcy Code. See 11 U.S.C. §§ 1301-1330. The 

bankruptcy court appointed Lawrence P. Sumski as Trustee, and 

the court confirmed the debtor's Chapter 13 plan (the Plan) on 

August 21, 2012. 

 The Plan was filed using the standard form, see Bankr. 

D.N.H. LBR 3015-1; Bankr. D.N.H. LBF 3015-1A, which contains a 

tax return production requirement that makes pellucid the 

debtor's "ongoing obligation to provide a copy of each federal 

income tax return (or any request for extension) directly to 

the Trustee within seven days of the filing of the return (or 

any request for extension) with the taxing authority." The 

bankruptcy court's decree confirming the Plan incorporated the 
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tax return production requirement and, thus, that requirement 

became an order of the court. See 11 U.S.C. § 1327(a) ("The 

provisions of a confirmed plan bind the debtor and each 

creditor . . . ."). 

 The debtor's 2012 federal income tax return was due 

April 15, 2013. See 26 C.F.R. § 1.6072-1(a)(1). In January, 

the Trustee sent the debtor a letter reminding him of his 

obligation to furnish a copy of his return or any request for 

extension of the filing date within the time parameters 

specified in the Plan. As April 15 approached, the debtor's 

wife, acting on his behalf and with his knowledge, filed a 

request for an extension of the filing deadline with the 

Internal Revenue Service. A copy of this extension request was 

not provided to the Trustee within the mandated seven-day 

period. 

 Not having received a copy of either the debtor's tax 

return or an extension request, the Trustee filed a motion on 

June 13 alerting the bankruptcy court to the debtor's failure 

to comply with the tax return production requirement. The 

Trustee's motion sought alternative relief: dismissal of the 

Chapter 13 bankruptcy or a $200 sanction. The debtor objected 

and belatedly furnished the Trustee with a copy of the by-thenapproved extension request. 
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 When the matter was heard before the bankruptcy court 

on September 20, the Trustee did not press for dismissal.1 He 

argued instead that the debtor's untimely compliance with the 

tax return production requirement was "sanctionable behavior." 

The debtor countered that no sanction was warranted because he 

had by then "purged" his noncompliance. 

 On September 24, the bankruptcy court entered an 

order imposing a $100 sanction on the debtor for his failure to 

comply with the tax return production requirement in a timeous 

manner. The debtor took a first-tier appeal to the district 

court. See 28 U.S.C. § 158(a), (c)(1). That court upheld the 

sanction. See Charbono v. Sumski, No. 13-471, 2014 WL 4922988, 

at *5 (D.N.H. Sept. 30, 2014). This timely second-tier appeal 

followed. 

II. ANALYSIS

 Bankruptcy court orders are subject to two tiers of 

intermediate appellate review. The first tier is through an 

appeal either to the Bankruptcy Appellate Panel or to the 

district court. See 28 U.S.C. § 158(a), (c). A second-tier 

appeal thereafter lies to the court of appeals. See 

 1 The extension ran until October 15, 2013. Accordingly, 

the debtor was in compliance with the tax return production 

requirement at the time of the hearing. 
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id. §§ 158(d)(1), 1291. Because the second-tier appeal 

involves de novo review of the district court's decision, our 

review is in effect direct review of the bankruptcy court's 

order. See Shamus Holdings, LLC v. LBM Fin., LLC (In re Shamus 

Holdings, LLC), 642 F.3d 263, 265 (1st Cir. 2011); HSBC Bank 

USA v. Branch (In re Bank of New Eng. Corp.), 364 F.3d 355, 361 

(1st Cir. 2004). 

 A bankruptcy court's imposition of a sanction 

typically embodies a judgment call, and, thus, review is for 

abuse of discretion. See Jamo v. Katahdin Fed. Credit Union 

(In re Jamo), 283 F.3d 392, 403 (1st Cir. 2002); see also 

Gannett v. Carp (In re Carp), 340 F.3d 15, 23 (1st Cir. 2003). 

This standard, though generally deferential, is not monolithic. 

For example, a material error of law is invariably an abuse of 

discretion. See Berliner v. Pappalardo (In re Sullivan), 674 

F.3d 65, 68 (1st Cir. 2012). Accordingly, if a bankruptcy 

court lacks the authority to impose a particular sanction, the 

imposition of such a sanction will constitute an error of law 

and, thus, demand reversal. See Jamo, 283 F.3d at 403-04. 

 Before us, the debtor questions the bankruptcy 

court's authority to impose the challenged sanction, the 

process by which the sanction was levied, and the selection of 

the sanction itself. We address these matters sequentially. 
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A. The Bankruptcy Court's Authority.

 The debtor first posits that the challenged sanction 

is tantamount to a fine for criminal contempt. That fine, he 

asserts, was beyond the bankruptcy court's authority for two 

reasons: as a jurisdictional matter and as a result of the 

court's noncompliance with the procedural prerequisites for 

such a fine.2 But the premise on which this binary assertion 

rests mischaracterizes the bankruptcy court's action. While 

the challenged sanction shares certain features of a criminal 

contempt fine — after all, the sanction is punitive (that is, 

one imposed to vindicate the authority of the court) rather 

than coercive (that is, one imposed to force compliance with a 

court order) — a criminal contempt fine is not the only type of 

punitive sanction that lies within a court's armamentarium. 

 In United States v. Kouri-Perez, we explicitly 

renounced the proposition that any punitive sanction is 

perforce a criminal contempt sanction. 187 F.3d 1, 8-9 (1st 

Cir. 1999). We recognized that a district court may, in 

appropriate circumstances, impose "punitive non-contempt 

 2 A fine for criminal contempt may only be imposed in 

conformity with the requirements of Federal Rule of Criminal 

Procedure 42. See United States v. Burgos-Andújar, 275 F.3d 

23, 31 (1st Cir. 2001). The bankruptcy court made no effort 

to satisfy these prerequisites. 
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sanctions." See id. at 7. In other words, the contempt power 

is merely one of many inherent powers that a court possesses; 

it is not the only type of inherent power that can be deployed. 

See Chambers v. NASCO, Inc., 501 U.S. 32, 43-44 (1991) 

(describing the power to punish for contempt as one of multiple 

inherent powers of the courts arising out of courts' authority 

to manage their own affairs); United States v. Pina, 844 F.2d 

1, 14 (1st Cir. 1988) (noting that the "contempt power . . . is 

not the only weapon available to a judge to protect the order 

and dignity of the courtroom"). The authority to issue a 

punitive sanction also may reside in "a court's inherent power 

to police itself, thus . . . 'vindicat[ing] judicial authority 

without resort to the more drastic sanctions available for 

contempt of court.'" Chambers, 501 U.S. at 46 (second 

alteration in original) (quoting Hutto v. Finney, 437 U.S. 678, 

689 n.14 (1978)). Exercising this authority, courts may levy 

sanctions (including punitive sanctions) for such varied 

purposes as disciplining attorneys, remedying fraud on the 

court, and preventing the disruption of ongoing proceedings. 

See id. at 43-44 (collecting cases). 

 The courts of appeals, too, have recognized the 

authority of federal courts to impose inherent-power sanctions 

without a finding of contempt. See, e.g., Mark Indus., Ltd. 
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v. Sea Captain's Choice, Inc., 50 F.3d 730, 733 (9th Cir. 1995) 

(explaining that a non-contempt inherent-power sanction can be 

employed to vindicate a court's authority); Harlan v. Lewis, 

982 F.2d 1255, 1259 (8th Cir. 1993) (approving imposition of a 

non-contempt monetary sanction as within district court's 

inherent powers). Indeed, such a principle is part of the warp 

and woof of this court's jurisprudence. See, e.g., United 

States v. Romero-López, 661 F.3d 106, 108 (1st Cir. 2011); Aoude 

v. Mobil Oil Corp., 892 F.2d 1115, 1119 (1st Cir. 1989). 

 For ease in exposition, we will from this point 

forward use the term "inherent-power sanction" as a shorthand 

for a non-contempt inherent-power sanction. Factors relevant 

in distinguishing between contempt sanctions and inherent-power 

sanctions include whether the issuing court made an express 

finding of contempt, whether the underlying conduct evinces a 

criminal mens rea, and whether the order falls within a 

recognized inherent power of the court (other than the contempt 

power). See Romero-López, 661 F.3d at 108; Kouri-Perez, 187 

F.3d at 8-9. Here, these factors point unerringly to the 

conclusion that the bankruptcy court's ukase, though punitive, 

was an inherent-power sanction. The bankruptcy court not only 

made no finding of contempt but also expressly disavowed any 

notion that its order was meant to be a criminal sanction. 
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What is more, the court acknowledged that the debtor's delayed 

compliance was not the product of any malign intent. Last — 

but far from least — the $100 impost fell squarely within the 

long-recognized authority of courts to "impose . . . submission 

to their lawful mandates." Chambers, 501 U.S. at 43 (quoting 

Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 227 (1821)). We 

conclude, therefore, that the bankruptcy court imposed a garden 

variety inherent-power sanction, not a criminal contempt 

sanction. 

 The question remains whether a bankruptcy court, like 

other federal courts, has the authority to impose punitive noncontempt sanctions. The debtor argues that because bankruptcy 

courts are creatures of statute and have limited jurisdiction, 

they lack the inherent power to issue such sanctions. We reject 

this crabbed view. 

 To begin, the Supreme Court has implied that 

bankruptcy courts possess inherent sanctioning powers beyond 

those expressly authorized by statute or rule. See Law v. 

Siegel, 134 S. Ct. 1188, 1198 (2014); see also Marrama v. 

Citizens Bank of Mass., 549 U.S. 365, 375-76 (2007). This 

acknowledgment dovetails with Chambers, in which the Court 

explained that by the very nature of their institution, all 

courts are "necessarily vested" with the inherent power 
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required to carry out their judicial functions to "achieve the 

orderly and expeditious disposition of cases." 501 U.S. at 43 

(internal quotation mark omitted). The Chambers Court stated 

that even though a district court's inherent power "can be 

limited by statute and rule," it would not "lightly assume that 

Congress . . . intended to depart from established principles 

such as the scope of a court's inherent power." Id. at 47 

(internal quotation mark omitted). This reasoning readily can 

be applied to bankruptcy courts, which by the nature of their 

institution must possess inherent power sufficient to "manage 

their own affairs" and "impose . . . submission to their lawful 

mandates." Id. at 43 (internal quotation marks omitted). 

 The proof of the pudding is in the case law. The 

courts of appeals consistently have recognized that bankruptcy 

courts may impose various forms of inherent-power sanctions. 

See, e.g., Isaacson v. Manty, 721 F.3d 533, 538-39 (8th Cir. 

2013); McGahren v. First Citizens Bank & Trust Co. (In re 

Weiss), 111 F.3d 1159, 1171 (4th Cir. 1997); Mapother & 

Mapother, P.S.C. v. Cooper (In re Downs), 103 F.3d 472, 477-78 

(6th Cir. 1996); Caldwell v. Unified Capital Corp. (In re 

Rainbow Magazine, Inc.), 77 F.3d 278, 284 (9th Cir. 1996); 

Glatter v. Mroz (In re Mroz), 65 F.3d 1567, 1575 (11th Cir. 

1995); Fellheimer, Eichen & Braverman, P.C. v. Charter Techs., 
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Inc., 57 F.3d 1215, 1224 (3d Cir. 1995); Citizens Bank & Trust 

Co. v. Case (In re Case), 937 F.2d 1014, 1023 (5th Cir. 1991). 

Our court has joined in this chorus. See Pearson v. First NH 

Mortg. Corp., 200 F.3d 30, 42 n.7 (1st Cir. 1999). We therefore 

hold, without serious question, that bankruptcy courts possess 

the inherent power to impose punitive non-contempt sanctions 

for failures to comply with their orders. 

 There is one loose end. The parties agree that the 

debtor's failure to comply with the tax return production 

requirement was inadvertent and did not exhibit bad faith. 

With this in mind, a colloquy ensued at oral argument in this 

court about whether a finding of bad faith was a prerequisite 

for the imposition of an inherent-power sanction. 

 This argument is procedurally defaulted several times 

over. The debtor did not advance it in the bankruptcy court, 

in the district court, or in his briefing before this court. 

Consequently, the argument has not been preserved. See Limone 

v. United States, 579 F.3d 79, 100 n.11 (1st Cir. 2009). 

 Even if we assume, favorably to the debtor, that the 

argument was forfeited rather than waived, see United States v. 

Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002) (discussing 

distinction between waiver and forfeiture), the challenged 

sanction would still stand. The argument for a bad-faith 
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requirement prescinds from the Supreme Court's review of an 

inherent-power sanction in the form of an award of attorneys' 

fees. See Roadway Express, Inc. v. Piper, 447 U.S. 752, 767 

(1980). The Roadway Express Court noted that "a finding [of 

bad faith] would have to precede any sanction under the court's 

inherent powers." Id. The Supreme Court later clarified this 

holding explaining that "nothing in the other sanctioning 

mechanisms or prior cases . . . warrants a conclusion that a 

federal court may not, as a matter of law, resort to its 

inherent power to impose attorney's fees as a sanction for badfaith conduct." Chambers, 501 U.S. at 50 (emphasis supplied). 

 For the most part, the courts of appeals have read 

these precedents narrowly, limiting them to instances in which 

an inherent-power sanction takes the form of an award of 

attorneys' fees.3 See, e.g., United States v. Seltzer, 227 

F.3d 36, 41-42 (2d Cir. 2000); Republic of the Philippines v. 

Westinghouse Elec. Corp., 43 F.3d 65, 74 n.11 (3d Cir. 1994); 

Harlan, 982 F.2d at 1260. This limitation makes eminently good 

 3 The Fifth Circuit is an outlier. See, e.g., In re 

Thalheim, 853 F.2d 383, 389 (5th Cir. 1988). Even that court 

has acknowledged that its expansive application of the badfaith requirement may be open to question. See Elliott v. 

Tilton, 64 F.3d 213, 217 n.3 (5th Cir. 1995). In any event, 

we join the majority of our sister circuits in rejecting the 

Fifth Circuit's more sweeping use of the bad-faith requirement. 
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sense. The Roadway Express Court's reasoning took into account 

the venerable "American Rule," which provides that litigants 

ordinarily shall pay their own lawyers. See Roadway Express, 

447 U.S. at 765-66; see also Alyeska Pipeline Serv. Co. v. 

Wilderness Soc'y, 421 U.S. 240, 247 (1975). Where an inherentpower sanction has the effect of reversing this rule, that 

sanction demands heightened justification. See Roadway 

Express, 447 U.S. at 765-66. But where an inherent-power 

sanction does not take the form of an award of attorneys' fees 

(and thus does not involve a departure from the American Rule), 

a finding of bad faith is not ordinarily required. See Seltzer, 

227 F.3d at 40-42; United States v. Mottweiler, 82 F.3d 769, 

772 (7th Cir. 1996); Harlan, 982 F.2d at 1260; Mulvaney v. 

Rivair Flying Serv., Inc. (In re Baker), 744 F.2d 1438, 1441-

42 (10th Cir. 1984) (en banc); see also Romero-López, 661 F.3d 

at 108 (affirming imposition of inherent-power sanction, not in 

form of fee award, without requiring showing of bad faith); 

Sacramona v. Bridgestone/Firestone, Inc., 106 F.3d 444, 447 

(1st Cir. 1997) (same). It follows that the absence of bad 

faith does not serve to undermine the inherent-power sanction 

imposed by the bankruptcy court. 

 Of course, the absence of a bad faith requirement 

should not be thought to give the bankruptcy court free reign 
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to impose sanctions without restraint. The admonition that 

"courts [are] to be cautious in using their inherent power to 

sanction" remains true. See Romero-López, 661 F.3d at 108 

(citing Chambers, 501 U.S. at 44). Here, however, we are 

satisfied that the bankruptcy court, in choosing this modest 

sanction (rather than, say, dismissing the Chapter 13 

proceeding in its entirety), opted for "the least extreme 

sanction reasonably calculated to achieve the appropriate 

punitive and deterrent purposes." Kouri-Perez, 187 F.3d at 8. 

B. Due Process.

 It is common ground that a court's inherent powers 

must be exercised circumspectly and with particular regard for 

due process protections. See Roadway Express, 447 U.S. at 767; 

United States v. Horn, 29 F.3d 754, 760 (1st Cir. 1994); 

Boettcher v. Hartford Ins. Grp., 927 F.2d 23, 26 (1st Cir. 

1991). These protections include notice and the opportunity 

to be heard. See Roadway Express, 447 U.S. at 767. Against 

this backdrop, the debtor claims that the bankruptcy court 

transgressed his due process rights by failing to provide notice 

of what he describes as the court's "uniform policy" of imposing 

a monetary sanction for noncompliance with the tax return 

production requirement. 
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 The lack-of-notice claim is empty. "Notice can come 

from the party seeking sanctions, from the court, or from both." 

Glatter, 65 F.3d at 1575. Here, the Trustee's motion made 

plain that the Trustee was seeking a monetary sanction as an 

alternative to dismissal of the bankruptcy proceeding. 

 So, too, the debtor had a full opportunity to be 

heard. His counsel filed a written objection to the Trustee's 

motion and appeared with the debtor at a hearing that aired a 

host of arguments. No more was exigible to safeguard the 

debtor's right to fundamental fairness. See Jensen v. Phillips 

Screw Co., 546 F.3d 59, 65 (1st Cir. 2008); HMG Prop. Investors, 

Inc. v. Parque Indus. Rio Canas, Inc., 847 F.2d 908, 918 & n.14 

(1st Cir. 1988). 

 The debtor nonetheless suggests that the bankruptcy 

court was following a policy that was the functional equivalent 

of a local rule, promulgated without heed to customary 

rulemaking procedures. See Fed. R. Civ. P. 83(a)(1); Fed. R. 

Bankr. P. 9029(a)(1). Building on this foundation, the debtor 

complains that he had no way to know in advance that his 

violation of the tax return production requirement could result 

in a monetary sanction. 

 We agree, of course, that courts should provide 

notice prior to attempting to enforce new rules. See Weisburgh 
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v. Fidelity Magellan Fund (In re Fidelity/Micron Sec. Litig.), 

167 F.3d 735, 737 n.1 (1st Cir. 1999). We have encouraged 

district courts "to avoid incipient problems of this type by 

incorporating standing orders into local rules, or, at least, 

making them readily available in the office of the Clerk." Id. 

Here, however, there was no standing order. Although the 

bankruptcy court did refer to a "policy" of imposing sanctions, 

the court was merely noting its usual practice.4 The fact that 

a court's approach to a particular type of situation is 

predictable or is referred to as a "policy" does not, without 

more, make it the sort of unwritten rule that requires formal 

adoption. 

 What remains of the debtor's lack-of-notice argument 

is foreclosed by our decision in Zebrowski v. Hanna, 973 F.2d 

1001 (1st Cir. 1992). There, the plaintiffs were sanctioned 

for noncompliance with a court order requiring payment into an 

escrow account. See id. at 1001-02. We rejected the 

plaintiffs' lack-of-notice argument, concluding that they could 

not complain about a lack of notice vis-à-vis the possibility 

 4 The transcript of the hearing discloses that the 

bankruptcy court mentioned a "policy" only in reference to its 

aspirational goal of treating similarly situated debtors evenhandedly. The court said that if it "is going to have a policy 

to enforce provisions of confirmation orders," it would "have 

to apply [that policy] with a reasonable degree of uniformity." 
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of sanctions since they were indisputably on notice that the 

failure to fund the escrow was in direct contravention of a 

court order. See id. at 1007 (distinguishing Boettcher, 927 

F.2d at 26). 

C. Appropriateness of the Sanction.

 The debtor submits that the bankruptcy court abused 

its discretion by imposing a $100 sanction without adequate 

regard for the debtor's specific circumstances. These include 

the debtor's eventual compliance with the tax return production 

requirement, his good faith, his impecuniousness, and his 

manifest difficulties in managing his affairs. 

 When a court confronts a violation of its own order, 

"it may choose from a broad universe of possible sanctions." 

Velázquez Linares v. United States, 546 F.3d 710, 711 (1st Cir. 

2008) (internal quotation marks omitted). In exercising this 

considerable discretion, however, the court must give 

"individualized consideration to the particular circumstances," 

id., and "balance a myriad of factors," Young v. Gordon, 330 

F.3d 76, 81 (1st Cir. 2003). In turn, our review of an imposed 

sanction for abuse of discretion requires that we evaluate 

whether "a material factor deserving significant weight was 

ignored, whether an improper factor was relied upon, or whether 

when all proper and no improper factors were assessed[,] the 
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court made a serious mistake in weighing them." United States 

v. One 1987 BMW 325, 985 F.2d 655, 657-58 (1st Cir. 1993) 

(alterations and internal quotation marks omitted). 

 The record shows beyond any hope of contradiction 

that the bankruptcy court paid attention to the debtor's 

individual circumstances in selecting a sanction. The court 

acknowledged that the debtor, by the time of the hearing, had 

complied (albeit belatedly) with the tax return production 

requirement and that his initial noncompliance was inadvertent 

and not driven by a desire to withhold information from the 

Trustee. The court further acknowledged that the debtor was 

unlikely to receive a tax refund for the calendar year 2012, so 

the delay did not have the effect of withholding funds from 

creditors. 

 Similarly, the court factored into the equation the 

debtor's "dire straits." Although the court ultimately 

concluded that a sanction was warranted to send a message to 

the debtor and others regarding the importance of timely 

compliance with the tax return production requirement,5 it 

 5 The bankruptcy court explained that certain basic 

requirements must be met in order to receive the benefit of the 

Chapter 13 process. It ranked the tax return production 

requirement among those obligations. And the court said that 

this debtor — like others similarly situated — must face some 

consequence for noncompliance. 
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exhibited some flexibility and invited the debtor to suggest an 

alternative sanction. In the end, the court halved the $200 

sanction requested by the Trustee because the debtor had a cashflow problem. For this same reason, the court made the sanction 

payable on January 15, 2014 — more than three months after the 

date of the order. In light of the court's careful assessment 

of the full range of circumstances, we cannot say that the 

challenged sanction fell outside the wide encincture of its 

discretion. 

III. CONCLUSION

 We need go no further. For the reasons elucidated 

above, we reject the debtor's challenge to the sanction. 

Affirmed.