Awarding attorney's fees to pro se litigants under Rule 11.

AuthorSpector, Jeremy D.
PositionFederal Rules of Civil Procedure

INTRODUCTION

Among the myriad rules and statutes designed to curb litigation abuse, Rule 11 of the Federal Rules of Civil Procedure ("FRCP") is "the most widely used and most controversial of the sanctions rules."(1) The increased use of Rule 11(2) during the last fifteen years(3) and the recent proliferation of fee-shifting provisions in federal statutes(4) have led to an onslaught of motions for attorney's fees in the federal district courts.(5) Simultaneously, these courts are seeing an increasing number of pro se litigants appear before them.(6) The confluence of these two trends has produced the seemingly paradoxical result of pro se parties seeking attorney's fees awards.(7)

Over the past twenty years, pro se litigants have attempted to avail themselves of the attorney's fees provisions contained in such statutes as the Equal Access to Justice Act ("EAJA"),(8) the Freedom of Information Act ("FOIA"),(9) and the Civil Rights Attorney's Fees Awards Act ("[sections] 1988").(10) They have met with limited success.(11) Very few pro se parties, however, have sought similar awards under FRCP 11.(12) For this reason, the question of whether a court can award fees to a pro se party under Rule 11 has had little opportunity to percolate in judicial opinions and academic literature.

In the three cases in which courts have examined this issue, the decisions are split as to whether or not to award the fees.(13) As with the statutory fee-shifting provisions, the debate in the Rule 11 context pits arguments based on policy against arguments based on language. Those who support the award contend that granting attorney's fees furthers Congress's intent of deterring conduct that violates Rule 11; those who disfavor the award assert that the words attorney's fees necessarily contemplate the existence of an attorney-client relationship. Therefore, they conclude, by definition a pro se litigant is not entitled to the fees award.

This Note argues that courts should grant a pro se litigant reasonable attorney's fees when the opposing party has violated Rule 11.(14) Part I examines the goals of Rule 11 and concludes that Congress intended deterrence of abusive practices to drive the Rule 11 inquiry. Other, less important goals that inform the analysis include compensation of the offended party and punishment of the offending party. Part II discusses the factors that influence a judge in choosing a particular sanction and demonstrates that both practical and policy-oriented criteria support an award of attorney's fees even when the movant acts pro se. Part III contrasts the policy of Rule 11 with the goals of the fee-shifting provisions in three federal statutes.(15) Part III concludes that, although courts almost uniformly deny pro se litigants fees under those statutes, the policies behind the fee-shifting provisions do not implicate the concerns addressed by Rule 11; therefore, courts are not bound by the cases denying fees under those statutes. Finally, Part IV suggests a means of calculating the ultimate award to the pro se litigant.

  1. THE GOAL(S) OF RULE 11

    Deterrence must underlie any Rule 11 decision because "the purpose of Rule 11 sanctions is to deter" abusive practices and frivolous arguments.(16) The 1983 amendments to the rule reinforced this notion by adding the word "sanctions" to the rule's title.(17) In making this change, the committee intended to "stress[ ] a deterrent orientation" for courts addressing violations of Rule 11.(18) Finally, the Supreme Court has recently declared that "the central purpose of Rule 11 is to deter baseless filings."(19)

    The Supreme Court may recognize punishment as an additional rationale for imposing a Rule 11 sanction,(20) even though its recent cases have emphasized deterrence. Moreover, the advisory committee has previously noted that "punishment of a violation . . . is part of the court's responsibility for securing the system's effective operation."(21) Though several lower courts and commentators have echoed this position,(22) they have not always seen punishment as a goal in and of itself as much as a means of achieving the deterrence objective.(23) Given that view, and considering the Court's and advisory committee's hesitancy to rely solely on a punishment-based theory, courts should consider punishment only as a secondary factor in the Rule 11 sanction analysis.

    Though also subordinate to the deterrence goal, a third, compensatory objective inheres in the rule as well.(24) Providing for a sanction such as attorney's fees -- whose amount correlates to the expenses incurred by the offended party -- appears to suggest a policy more akin to compensation than deterrence.(25) The committee note makes clear, however, that a Rule 11 sanction, though potentially calculated on the basis of the movant's monetary expenditures, still has deterrence as its primary objective.(26) Thus "a district court may take into account compensation of other parties and punishment of the offender, but deterrence remains the touchstone of the Rule 11 inquiry."(27)

    When the movant acts pro se, emphasizing deterrence over compensation makes all the difference: because an unrepresented party's expenses will be relatively low, little if any deterrent effect would accrue from forcing the nonmovant to reimburse only those expenses. Were a court to focus on compensation, it would transform Rule 11 into a fee-shifting statute, thereby undermining the Supreme Court's insistence that the rule remain a mechanism for preventing litigation abuse.(28) With deterrence as the overriding theme, the actual amount of fees incurred becomes less important than the size of sanction required to send an effective message both to the offender and to the bar in general.(29)

  2. DETERMINING THE APPROPRIATE SANCTION

    A grant of attorney's fees to a pro se litigant follows directly from the legislative objective of deterrence. This Part illustrates the reasons for, and addresses the potential objections to, making an attorney's fees award to an unrepresented party. Section II.A explains that while trial judges have significant discretion in determining the type and severity of sanctions that they can impose under Rule 11, attorney's fees are by far the most frequent and most logical choice. Section II.A concludes that courts should make that same choice when the movant acts pro se. Section II.B refutes arguments against making the award -- including those based on statutory language and on fears of granting movants potential windfalls -- in favor of honoring the deterrence rationale that controls Rule 11.

    1. Why Choose Attorney's Fees?

      Among all the sanctions a trial judge could choose, only attorney's fees will fulfill the goals of Rule 11.(30) Only if a court imposes a substantial monetary sanction -- only if it "hits them where it hurts" -- will parties be dissuaded from violating the rule's prescriptions. A sanction imposing the mere costs incurred by a pro se litigant -- for example, filing and copying costs -- would be insignificant and thus would not deter future abusive conduct.(31) A fees award, on the other hand, carries a large enough price tag that it will serve the appropriate deterrent effect.

      As an alternative, one might suggest assessing a fine payable directly to the court.(32) This approach would provide the same deterrent effect as a fees award and simultaneously would avoid awarding fees when none were incurred. Such a route, however, would be unfavorable for several reasons. First, judges should strive to treat represented and unrepresented parties consistently -- that is, they should impose similar sanctions for similarly offensive conduct, regardless of who the offended party might be. Because represented parties whose opponents violate Rule 11 are almost always granted attorney's fees,(33) pro se litigants should receive that same award.(34) Second, requiring the nonmovant to pay the fine into court would deprive the pro se litigant of any compensation, which is a lesser yet significant goal of the rule.(35) This litigant, after all, did experience some compensable harm -- whether in terms of opportunity costs or in terms of the administrative costs of responding to the offensive paper.(36) Third, the advisory committee itself suggests that there exist some circumstances in which the objectives of Rule 11 can be achieved only if the sanction is paid directly to the other party and not into court.(37) Fourth, and perhaps most important, denying the unrepresented litigant any award, or compensating him solely for his costs, would reduce the incentive pro se parties have to bring Rule 11 actions -- and thus would reduce enforcement of the rule itself. Once a litigant is aware that her pro se adversary is unlikely to institute a Rule 11 proceeding, that litigant may become more lax in monitoring and curbing her own potentially violative behavior.(38)

      When a party does violate Rule 11, the sanction should be only as severe as necessary to deter the offending party and the bar.(39) A fees award therefore might not be necessary if a court could meet the deterrence goal through other, nonmonetary sanctions.(40) The reverse, however, is also true. A court may impose a sanction in excess of the movant's attorney's fees if the court believes that such a sanction is necessary to deter further violative conduct.(41)

      Consider the Case of Rynkiewicz v. Jeanes Hospital.(42) There the defendants moved to dismiss the pro se plaintiff's ADEA claim even though there waS no legal basis for that motion.(43) In denying the motion and imposing sanctions, the trial judge wrote, "I see no reason why the fact that plaintiff is proceeding pro se should redound to the benefit of defendants' attorney insofar as Rule 11 sanctions are concerned." That no fees were incurred was immaterial. The Court therefore awarded the pro se litigant the amount of a reasonable attorney's fee.(44)

      Because trial judges are entrusted with...

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