The split on sanctioning pro se litigants under 28 U.S.C.

• Author: Whitt, Kelsey
• Position: Section

1. INTRODUCTION

   In recent years, an increasing number of pro se (1) litigants have appeared in federal courts. (2) Between October 2003 and September 2004, federal district courts had over 20,000 cases filed by pro se litigants. (3) In fact, "pro se litigants appeared in thirty-seven percent of all cases." (4) The increase of pro se litigation is attributed to several factors, including the rising cost of litigation combined with the decrease of funding for legal services, the negative public perception of lawyers, and the rise of do-it-yourself legal resources. (5) Once pro se litigants enter the federal court system, their presence multiplies the resources spent by the court and by the parties on the proceedings, as pro se litigants generally are unfamiliar with the procedural rules and the substantive law governing their claims. (6)

   At the same time the presence of pro se litigants has been increasing in the federal courts, imposing sanctions under 28 U.S.C. [section] 1927 has also become more common. This statute allows the court to impose sanctions for behavior that multiplies the proceedings. (7) Under 28 U.S.C. [section] 1927, the court may order the offending party to compensate the opponent for excess costs, expenses, and attorneys' fees. (8) In 1998, one scholar observed that attorneys sought, and courts imposed, sanctions under 28 U.S.C. [section] 1927 more frequently since the 1993 amendment to Rule 11. (9) However, because this conclusion was based solely on anecdotal information, a curious scholar empirically tested the observation's accuracy. (10) This study revealed that in the four federal district courts examined, the frequency of imposing 28 U.S.C. [section] 1927 sanctions has risen since 1993. (11)

   These two trends, the increasing number of pro se litigants in federal courts and the increasing use of 28 U.S.C. [section] 1927 sanctions, have collided to create a split in the United States Courts of Appeals as to whether 28 U.S.C. [section] 1927 sanctions may be applied against pro se litigants. While the United States Court of Appeals for the Second Circuit determined that 28 U.S.C. [section] 1927 is inapplicable against pro se litigants, the United States Court of Appeals for the Ninth Circuit held 28 U.S.C. [section] 1927 may be applied against pro se litigants. Although the United States Court of Appeals for the Eighth Circuit has not yet expressed an opinion on the matter, the Federal District Court of Nebraska recently recognized the split and chose to apply 28 U.S.C. [section] 1927 sanctions against pro se litigants. This Note examines the split in the circuits as to whether pro se litigants may be sanctioned under 28 U.S.C. [section] 1927 and proposes that the United States Court of Appeals for the Eighth Circuit should choose the position with textual support, the position that meets Congress' intent, and the position that achieves the proper policy result--the Eighth Circuit should follow the Second Circuit's lead and decline to apply 28 U.S.C. [section] 1927 sanctions against pro se litigants.

2. LEGAL BACKGROUND

   1. Pro Se Litigants

      The Supreme Court of the United States has recognized the constitutional right to come into federal court and sue. (12) Many parties exercise that right while represented by an attorney. However, "[o]ne of the basic principles, one of the glories, of the American system of justice is that the courthouse door is open to everyone," (13) even those who choose to litigate their cases without assistance of counsel. Federal statutory law allows parties to "plead and conduct their own cases" as pro se litigants. (14)

      Once parties decide to represent themselves, they enter the federal court system as "'stranger[s] in a strange land.'" (15) In addition to learning and applying the underlying law to their claims, pro se litigants must comply with the Federal Rules of Civil Procedure and the local rules of the particular district court. (16) While pro se litigants may expect leniency from the court with respect to complying with the procedural requirements, (17) the Supreme Court has granted leniency in only one area - pleadings. (18)

      In Haines v. Kerner, an inmate in the Illinois prison system sought to recover damages for injuries and civil rights deprivations. (19) Prison officials placed the inmate in solitary confinement after he "struck another inmate on the head with a shovel." (20) In his complaint, the inmate alleged that he did not receive due process before being placed in solitary confinement and that he suffered physical injuries as a result of the prison's actions. (21) The district court dismissed the case for failure to state a claim on which relief could be granted. (22) However, the Supreme Court reversed because the inmate's allegations, "however inartfully pleaded, [were] sufficient to call for the opportunity to offer supporting evidence" (23) and decided that pro se complaints are held "to less stringent standards than formal pleadings drafted by lawyers." (24)

      Even at the pleadings stage, pro se litigants must include enough facts to support their allegations (25) and set forth a claim upon which relief may be granted as a matter of law. (26) Beyond the pleadings stage, leniency for pro se litigants in federal court is mixed. The Eighth Circuit has granted leniency to pro se litigants with respect to motions (27) and has determined that "[a] pro se litigant should receive meaningful notice of what is expected of him." (28) Beyond those situations, though, the Eighth Circuit has not treated pro se litigants as favorably. (29)

      Although the Eighth Circuit does not require the federal district courts to treat pro se litigants with more leniency than represented parties, the very presence of a pro se litigant in a case affects the amount of time and resources the court and the parties spend on that case. Judicial efficiency decreases because "[p]ro se litigants are more likely to neglect time limits, miss court deadlines, and have problems understanding and applying the procedural and substantive law pertaining to their claim." (30) In an attempt to understand the procedural rules, pro se litigants usually spend more time than practicing attorneys in the clerk's office asking questions. (31) However, explaining procedures does not end in the clerk's office. In survey responses, judges described how they must explain technical objections to pro se litigants and how pro se litigants' lack of understanding of simple procedures causes delay. (32) In addition, pro se litigants may file "rambling, illogical pleadings, motions, and briefs." (33) Responding to those filings and waiting while the judge explains procedures to the pro se litigant causes the represented litigant to incur higher attorneys' fees and costs. (34) Because no litigant wishes to spend more money than necessary, the represented party might seek sanctions against the pro se litigant for causing excessive costs, expenses, and attorneys' fees. One sanction that the represented party might seek is reimbursement under 28 U.S.C. [section] 1927.

   2. 28 U.S.C. [section] 1927

      Title 28 U.S.C. [section] 1927 allows a court to award "the excess costs, expenses, and attorneys' fees" from "[a]ny attorney or other person admitted to conduct cases ... who so multiplies the proceedings ... unreasonably and vexatiously." (35) The original purpose of the statute was to control the practice of United States Attorneys. (36) Because some United States Attorneys were paid by the number of lawsuits filed, they "filed unnecessary lawsuits to inflate their compensation." (37) Congress wanted to limit "'multiplicity of suits or processes, where a single suit or process might suffice.'" (38) While today's version of the statute may seem compensatory, 28 U.S.C. [section] 1927 is "a penal statute designed to discourage unnecessary delay in litigation." (39) The statute meets its purpose by requiring violators of the statute to personally pay the excess costs caused by their misconduct. (40)

      A party can recover those excess costs by filing a motion with the court to impose 28 U.S.C. [section] 1927 sanctions on the offending attorney. (41) Before a party can recover excess costs under 28 U.S.C. [section] 1927, the court must find that two elements have been met. (42) First, the court must find that the "attorney or other person admitted to conduct cases" (43) multiplied the proceedings, (44) which generally means that the conduct must create "needless proceedings" or "prolong[] litigation." (45) Second, the court must find that the conduct was vexatious as well as unreasonable. (46) The unreasonableness standard poses little difficulty for the courts, but "the issue is not ... the reasonableness of the position asserted." (47) Instead, the inquiry is whether asserting the position is reasonable in the circumstances. (48) The vexatious standard poses more difficulty because courts do not have a single standard to describe what constitutes vexatious conduct. (49) The vexatious standard "requires something more than mere negligence," (50) and conduct that constitutes bad faith is enough to meet the standard in any circuit. (51) In the Eighth Circuit, (52) "[s]anctions are proper ... 'when attorney conduct, viewed objectively, manifests either intentional or reckless disregard of the attorney's duties to the court.'" (53)

      Once the court finds that the two elements are met, the court may require the "attorney or other person admitted to conduct cases ... to satisfy personally the excess costs, expenses, and attorney's fees reasonably incurred." (54) Because the statute only allows the court to award excess costs, expenses, and fees, the court cannot award all costs, expenses, and fees unless the entire proceeding was baseless. (55) Instead, the court will award costs, expenses, and fees that are "incurred in reacting to, and attempting to staunch, the multiplication of the proceedings." (56) The award may...