Unpleasant duties: imposing sanctions for frivolous appeals.

• Author: Kravitz, Mark R.

Faced with ever growing caseloads, federal and state appellate judges often decry the number of truly frivolous appeals that lawyers file each year. Frivolous appeals clog dockets, divert increasingly scarce judicial resources from meritorious appeals and inflict unnecessary expense and burden on those who must defend against them. Though federal and state courts possess ample authority to impose sanctions for frivolous appeals--in order to punish those who file them, deter others from doing likewise, and compensate the victims of such tactics--appellate judges have long shown a surprising reluctance to use the tools at their disposal. As Judge Roger J. Miner of the Second Circuit has observed of his colleagues: "[I]t is a rare case in which we sanction even those who take frivolous appeals." (1) Moreover, when appellate courts do impose sanctions, their awards often fail adequately to compensate the party that has had to defend against the frivolous appeal. In particular, awarding "double costs" alone--a relatively common sanction--has absolutely no deterrent, punitive or compensatory value. Such minimal awards only contribute to a nagging sense that seeking sanctions for a frivolous appeal may be more trouble (and expense) than it is worth. (2)

Doubtless, some of this judicial reluctance to impose meaningful sanctions for frivolous appeals rightly derives from a desire not to deter legitimate appeals or penalize those who seek to convince courts to adopt new principles or novel positions. Justice John Paul Stevens has thus cautioned, "Creating a risk that the invocation of the judicial process may give rise to punitive sanctions simply because the litigant's claim is unmeritorious could only deter the legitimate exercise of the right to seek a peaceful redress of grievances through judicial means." (3) Appellate courts are properly leery of allowing parties to abuse the rules governing appellate sanctions in the same manner in which Rule 11 was once misused. (4) Difficulties in defining frivolity with precision may also contribute to an unwillingness to penalize parties or lawyers for pursuing an appeal of right. (5)

However, the case law--much of which involves truly egregious conduct in briefing or argument, or claims that are completely without merit under any standard--suggests that other factors are also at work. Certainly, the judiciary's well known distaste--dare I say disdain?--for the task of adjudicating requests for sanctions plays some rule. One need not be a cynic to come away from the case law with at least a slight suspicion that some appellate judges view the imposition of sanctions as an unpleasant (perhaps even demeaning) task that they would prefer to avoid. As one judge has candidly written, "Of all the duties of the judge, imposing sanctions on lawyers is perhaps the most unpleasant. A desire to avoid doing so is understandable." (6)

A related factor appears to be a seeming unwillingness among appellate judges to appreciate (or at least acknowledge in a tangible way) the real costs that frivolous appeals inflict on parties forced to respond to them. Courts are not the only victims of frivolous appeals and the mere fact that an appeal lacks all merit does not mean that it was, or even should have been, easy and inexpensive to defend. Yet, often judges seem to forget this simple truth. Even if appellate courts are reluctant to protect their own institutional interests and values by punishing and deterring those who file frivolous appeals, they should at least provide a greater measure of justice for the parties who were compelled to bear the costs of defending against those appeals. (7)

I do not speak of close questions, arguable claims or borderline cases but, rather, of patently frivolous appeals. Much has been written by commentators and courts about the standards for determining whether an appeal is frivolous, a topic that is beyond the scope of this essay. (8) Suffice it to say that although "frivolity, like obscenity, is difficult to define," (9) most of us know it when we see it. For purposes of this essay, an appeal can be frivolous in two respects--either as filed or as argued. By the former, I mean that an appeal can be frivolous because the judgment below is so clearly correct and the legal authority so overwhelmingly contrary to the appellant's position that there really is no legitimate basis on which to file the appeal in the first place. By the latter, "as argued" category, I mean that regardless whether arguable grounds for reversal exist at the time the appeal is filed, the conduct of the appeal itself may also support an award of sanctions when, for example, the appellant--or more likely, appellant's counsel--fails to make any coherent argument, misrepresents facts or case law or fails to bring contrary authority to the court's attention. In either case, the standard for frivolity is properly quite high, (10) and merely losing on appeal, even badly, is not a sufficient basis for labeling an appeal frivolous.

State and federal appellate courts possess ample authority to impose sanctions on parties and lawyers who file frivolous appeals or pursue frivolous arguments and accordingly, to compensate the victims of those tactics. The sources of that authority are varied--from statutes and appellate rules to the inherent power of all appellate courts to control the judicial process and the parties who appear before them. In federal courts, the principal vehicles for imposing appellate sanctions are Rule 38 of the Federal Rules of Appellate Procedure and 28 U.S.C. [section] 1912. (11) Rule 38 has existed for 65 years; section 1912 traces its roots to the Judiciary Act of 1789. (12)

By their terms, both the rule and the statute are permissive, not mandatory. Rule 38 provides that "[i]f a court of appeals determines that an appeal is frivolous, it may ... award just damages and single or double costs to the appellee." Section 1912 allows a court of appeals "in its discretion" to "adjudge to the prevailing party just damages for his delay, and single or double costs." Although the statute and rule differ slightly--the latter speaks of "delay" while the former refers to "frivolous" appeals--courts have long ignored this distinction and construed both as authorizing sanctions for frivolous appeals. (13) No showing of delay is needed. As a result, most federal courts routinely cite both section 1912 and Rule 38 and treat them identically. They seem also to agree that the "just damages" that federal appellate courts may award under either the rule or the statute may include reasonable attorneys' fees as well as "double costs." (14)

For a time there was some question whether Rule 38 and section 1912 applied to lawyers, but courts now construe these provisions as authorizing sanctions against either appellants (including pro se appellants) or their counsel, or both. (15) Appellees, however, cannot be punished under Rule 38 or section 1912, no matter how frivolous their position on appeal, a regrettable anomaly in the federal rules. (16)

A large and increasing number of state appellate courts also now recognize their authority to levy sanctions, including attorneys' fees, for a frivolous appeal, gleaning their authority from statutes, court rules and their own inherent power. (17) Thus, in a decision fairly typical of state court rulings on appellate sanctions, the Idaho Supreme Court recently noted that "[r]easonable attorneys fees ... ordinarily will be awarded to the prevailing party on appeal when this Court is left with the abiding belief that the appeal was brought, pursued or defended frivolously, unreasonably, or without foundation." (18) Many state appellate courts also have held that they possess discretion to impose sanctions not only on parties but also on lawyers who bring or pursue frivolous appeals or positions. (19) However, unlike federal courts, some state appellate courts are restricted by statutory or rule-based limits on the amount of sanctions, particularly attorneys' fees, they may award. (20)

Both state and federal courts have repeatedly proclaimed that an award of sanctions is supposed to serve three purposes. At the most basic level, an award of sanctions imposes punishment for appellate misconduct or for causing appellate judges and parties to waste their valuable time on claims that should never have been pursued. When he was a federal circuit judge, Justice Stephen G. Breyer explained in an oft-cited decision the institutional reasons for levying penalties against frivolous appeals:

[W]e believe that penalizing frivolous appeals, or those interposed for purposes of delay, may help, at least marginally, with the burden that an increasing case load has placed on the courts of appeals. The nature of this "burden" is sometimes...