This may not be a book my new grandson Felix will soon be reading, but it does raise a legitimate question:  When you really, truly, believe a federal appeal is frivolous, and not just garden variety, I know you’re going to lose, please don’t make me spend my client’s money defending, but truly a terrible, horrible, no good, very bad appeal, can you obtain sanctions under Federal Rule 11? If not, what is the most effective way to obtain sanctions for a frivolous appeal?  

The short answer is that you can seek sanctions under Appellate Rule 38 (by separate motion with notice and opportunity to be heard) and possibly 28 USC § 1912, but not under Rule 11.  The only deadlines in the 9th circuit are the deadlines for requesting attorney fees generally, see 9th Cir. R. 39-1.6, and the Rule 39 deadline for costs (14 days after judgment).   Therefore, the separate motion could technically be filed either (1) after the decision, but within the 9th Cir. R 39-1.6 and Rule 39 limits or (2) contemporaneously with the brief.  Further, more detailed, analysis follows:  

Rule 11

The U.S. Supreme Court holds that “[o]n its face, Rule 11 does not apply to appellate proceedings.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 406, 110 S. Ct. 2447, 2461, 110 L. Ed. 2d 359 (1990).  The Court determined that the Federal Rules of Civil Procedure only “govern the procedure in the United States district courts.” Neither the language of Rule 11 nor the Advisory Committee Note suggests that the Rule could require payment for any activities outside the context of district court proceedings.  Id.  Thereafter, the Ninth Circuit applied the Cooter rationale and held that “Circuit Rule 1–1 cannot incorporate Rule 11 by reference. Accordingly, Rule 11 sanctions may no longer be imposed in our circuit on appeal pursuant to the In re Curl incorporation theory.” Partington v. Gedan, 923 F.2d 686, 688 (9th Cir. 1991).  

Rule 38

On appeal, the litigants' conduct is governed by Federal Rule of Appellate Procedure 38. Cooter, 496 U.S. at 407.   The Rule provides that “If a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee.”  Rule 38.  If the appeal of a Rule 11 sanction is itself frivolous, Rule 38 gives appellate courts “ample authority to award expenses”  Cooter, 496 U.S. at 407.  Indeed, the Court held, because the district court has broad discretion to impose Rule 11 sanctions, “appeals of such sanctions may frequently be frivolous.”  Id., citing 9 J. Moore, B. Ward, & J. Lucas, Moore's Federal Practice ¶ 238.03[2], pp. 38–13, 38–14 (2d ed. 1989) (“[W]here an appeal challenges actions or findings of the district court to which an appellate court gives deference by judging under an abuse of discretion or clearly erroneous standard, the court is more likely to find that the appellant's arguments are frivolous”).   The Court determined that Rules 11 and 38 are read together as allowing expenses incurred on appeal to be shifted onto appellants “only when those expenses are caused by a frivolous appeal, and not merely because a Rule 11 sanction upheld on appeal can ultimately be traced to a baseless filing in district court.”  Id. “Limiting Rule 11's scope in this manner accords with the policy of not discouraging meritorious appeals.”  Id. The Court also said that if appellants were “routinely compelled to shoulder the appellees' attorney's fees, valid challenges to district court decisions would be discouraged. The knowledge that, after an unsuccessful appeal of a Rule 11 sanction, the district court that originally imposed the sanction would also decide whether the appellant should pay his opponent's attorney's fee would be likely to chill all but the bravest litigants from taking an appeal.”  Id. at 408, 110 S. Ct. at 2462. This is consistent with what many appellate lawyers know to be true (or suspect): Appellate courts are loathe to sanction the filing of appeals, because they do not want to discourage litigants from filing appeals.   

a. Procedure:  The Rule requires a separately filed motion or notice from the court and opportunity to respond. There is no separate 9th Circuit local rule and no specific requirement for timing or warning to the opposing party.  

b. Frivolous. An appeal is considered frivolous in the Ninth Circuit when the result is obvious, or the appellant's arguments of error are wholly without merit.  Taylor v. Sentry Life Ins. Co., 729 F.2d 652, 656 (9th Cir. 1984); Blixseth v. Yellowstone Mountain Club, LLC, 796 F.3d 1004, 1007 (9th Cir. 2015).  In Taylor, the request for Rule 38 sanctions appears to have been made in the substantive briefs, as the Court addressed the merits and then said appellee sought an award of attorney fees and double costs.   The Court said it exercised its discretion and granted fees on appeal and ordered appellees to file affidavits of fees.   The BlixsethCourt affirmed a bankruptcy court decision, noted the frivolousness of appellant’s claims, and subsequently issued an order to show cause why the appellant and his attorneys should not be sanctioned for pursuing the appeal.  In the published opinion cited above, the Court ruled on its order to show cause, and imposed sanctions against the party and certain of his attorneys.  Other attorneys were not sanctioned because, although they allowed their names to be placed on briefs “that presented frivolous and inflammatory arguments,” “lack of bad faith cuts against sanctioning these four attorneys.” Id. at 1008.  An appeal is not frivolous merely because it is unsuccessful.  McKnight v. General Motors Corp. 511 U.S. 659, 660 (1994). However, the Ninth Circuit has imposed sanctions for arguments on issues that were not properly preserved, General Brewing Co. v. Law Firms of Gordon, Thomas, 694 F.2d 190 (9th Cir. 1982), and for arguments that are completely meritless and which the same appellant or counsel had made unsuccessfully in another court, Coastal Transfer Co. v. Toyota Motor Sales, U.S.A., 833 F.2d 208, 212 (9th Cir. 1987)(“All of the arguments that Coastal makes on appeal, like the arguments that it raised before the district court, are frivolous”)  As the Coastal Court noted:  “By any measuring rod, this appeal is frivolous. In well reasoned and well written dispositions, two district court judges pointed out to Coastal the defects in its approach.” Id. at 210. The Ninth Circuit has also imposed sanctions for briefs that are deficient because they left the court “entirely in the dark” as to what the case was about, Hamblen v. County of Los Angeles, 803 F.2d 462 (9th Cir. 1986) and failed to make references to the record, Mitchel v. General Electric, 689 F.2d 877, 879 (9th Cir. 1982).  

28 U.S.C. §1912

“Where a judgment is affirmed by the Supreme Court or a court of appeals, the court in its discretion may adjudge to the prevailing party just damages for his delay, and single or double costs.” The court has discretion to impose damages against litigants, under both Rule 38 and 28 U.S.C. § 1912 for bringing a frivolous appeal. Maisano v. United States, 908 F.2d 408, 411 (9th Cir. 1990).  Again, “an appeal is frivolous if the results are obvious, or the arguments of error are wholly without merit.”  Id.   

Defective briefs

The Court has discretion to impose sanctions against counsel for failure to comply with the requirements of Rule 28, Fed.R.App.P. and Ninth Circuit Rules 28-1 through 38-3, dealing with the form and content of briefs on appeal.  See Circuit Advisory Committee Note to Rule  46, Fed.R.App.P.   See Mitchel v. Gen. Elec. Co., 689 F.2d 877, 878 (9th Cir. 1982) (“Mitchel's brief on appeal follows the same pattern as his memoranda to the court below. It contains allegation after allegation, all of which are unsubstantiated by sworn affidavits or references to discovery documents.”) 

Rule 38 v. 28 U.S.C. § 1912

The Advisory Committee Note to Rule 38 compares the Rule with 28 U.S.C. §1912, and notes that the Rule allows damages if the appeal is frivolous without requiring a showing that the appeal resulted in delay.   

Notice

The Advisory Committee also notes that before a court of appeals may impose sanctions, the person must have notice and an opportunity to be heard. The Committee says that a request for sanctions in briefs is “so commonplace that it is unrealistic to expect careful responses,” and is not sufficient to provide notice.  The Committee says that “a separately filed motion requesting sanctions constitutes notice.”  “Only a motion, the purpose of which is to request sanctions, is sufficient.”     

Timing

There is nothing in the Rule, the Committee Notes, or the Ninth Circuit local rules as to when a Rule 38 Motion must be filed.   By contrast, 11th Cir. R. 38–1 expressly provides that “Motions for damages and costs pursuant to FRAP 38 must be filed no later than the filing of appellee's brief”; see Consol. Gov't of Columbus, Ga., 438 Fed. Appx. 837, 840 (11th Cir. 2011).  However, 9th Cir. R 39-1.6 generally provides that “[a]bsent a statutory provision to the contrary, a request for attorneys’ fees shall be filed no later than 14 days after the expiration of the period within which a petition for rehearing may be filed, unless a timely petition for rehearing is filed. If a timely petition for rehearing is filed, the request for attorney’s fees shall be filed no later than 14 days after the Court’s disposition of the petition.”  Rule 39 provides that taxable costs must be requested “within 14 days after entry of judgment.”  Rule 38 refers to both “just damages and single or double costs.”  The Fifth Circuit holds that requests for costs and/or attorney fees under Rule 38 must be made within 14 days after the entry of judgment. See Procedure for Awarding Damages, 16AA Fed. Prac. & Proc. Juris. § 3984.3 (4th ed.), citing Sims v. Great-West Life Assur. Co., 941 F.2d 368, 371–373 (5th Cir. 1991). My recommendation as to timing and notice in the 9th Circuit, or any other Circuit that has no specific local rule on timing:  (1) In the last sentence of the answering brief, state “By separate Motion after the decision, and with notice and reasonable opportunity to respond, Appellee intends to seek sanctions under Rule 38, Fed.R.App.P.; and (2) file the separate motion, after the decision but and no later than 14 days. Alternatively,  the motion  could be filed contemporaneously with (but separately from) the answering brief, as this is also technically within the time period of R 39-1.6 (not later than 14 days after expiration. . . ).  As one treatise states, “if an appellee wishes to maximize the chances that such a sanction will be imposed the appellee should file a motion, and should do so without undue delay.” Procedure for Awarding Damages, 16AA Fed. Prac. & Proc. Juris. § 3984.3 (4th ed.).  

My next blog entry will discuss sanctions on appeal in Arizona, and examine the Division 2  standard enunciated in In re $15,379 in U.S. Currency, 2 CA-CV 2015-0166, 2016 WL 7826506 (App. Dec. 22, 2016).  Because sometimes, even in Arizona, we see a terrible, horrible, no good, very bad appeal.