The US Court of Appeals for the Federal Circuit may “award just damages and single or double costs to the appellee” under the Federal Rule of Appellate Procedure 38 if an appeal is frivolous as filed or as argued. In a non-precedential decision, the Court granted-in-part and denied-in-part a party’s motion for sanctions and request to hold the opposing party’s counsel jointly and severally liable.

Frivolous Claims and Proposed Claim ConstructionsIn Pac-Tec, Inc. v. Amerace Corp., the Federal Circuit considered—and was appalled by—the frivolity of claims made by plaintiff in seeking a declaration of noninfringement of defendant’s patents covering snow-plowable pavement markers.3 In its opinion sanctioning declaratory judgment plaintiff under Fed. R. App. P. 38 and awarding patent-holder its fees and double costs, it seethed:This signifies the end, we trust, of Pac-Tec’s and its counsel’s singularly sanctionable sojourn among the hallowed halls of justice. Throughout this litigation, the conduct of Pac-Tec and its counsel have fouled the judicial nest.

In both cases, the orders issued sua sponte, though they may have been prompted by the appellants’ docketing statements.Order denying attorney fees under Rule 38 – The Federal Circuit denieda motion for attorney fees under Federal Rule of Appellate Procedure 38. That rule allows appellate courts to sanction parties for bringing “frivolous” appeals, a high bar. In the recent order, which followed a mandamus denial, the Court found that the mandamus petitioner hadn’t “raised issues that are beyond the reasonable contemplation of fair-minded people” nor “dealt” unfairly with the Court or “misrepresented the law or facts.”

Progressive Emu Inc. v Anderson Weidner LLC 2019 WL 3798494 (11th Cir Aug 13, 2019) The plaintiff’s counsel waited until the last business day before trial to serve overbroad “trial subpoena” on the defendant’s parent corporation requiring compliance the next business day and outside the 100-mile limitation of Fed R Civ P 45(c)(1)(A). The appellate court upheld an award of attorney fees under Rule 45(d)(1) against the plaintiff’s counsel and added an award of attorney fees against the plaintiff’s counsel for pursuing a frivolous appeal under Fed R App P 38. Anokiwave, Inc. v Rebeiz 2019 WL 3935778 (SD Cal Aug 20, 2019) Despite the district court’s acknowledgment that the non-party had agreed to produce subpoenaed records and the defendant’s lack of standing to quash the subpoena, the court modified the subpoena based on the defendant’s overbreadth and relevancy objections.

district court should have dismissed the amended complaint with prejudice without addressing the merits because “the amended complaint was incomprehensible.”It further held that although normally the district court is required to point out the defects of a pleading to afford the party a proper opportunity to correct them, that was not necessary here where the defendants’ motion for a more definite statement “fully explained the defects” of the complaint and plaintiffs’ counsel agreed to file an amended complaint fixing these defects. But counsel did not then do so. The appellate court chastised plaintiffs’ counsel for “attempting to prosecute an incomprehensible pleading to judgment [and] obstruct[ing] the due administration of justice in the District Court” and then “urging this Court to uphold the sufficiency of the amended complaint.” But the Eleventh Circuit did not stop at affirming the dismissal. Sua sponte, the court held that plaintiffs’ counsel’s appeal was frivolous under Federal Rule of Appellate Procedure 38. Citing his repeated requests for extensions in both the district court and appellate court, the Eleventh Circuit blasted the attorney’s motive to delay or prevent the completion of defendant’s foreclosure, which the court called an abuse of judicial process. The court affirmed the judgment and instructed plaintiffs’ counsel to show cause why he should not pay the appellees double costs and their expenses, including the attorney’s fees. Practice Tip Be careful what you agree to in the district court and what you ask for in the appellate court. If trial counsel agreed to but failed to cure a defective pleading in the trial court, appealing a dismissal with prejudice may not cure the defects. Even worse, counsel or the client may end up owing fees as a result of the appeal.

“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 rulesas towhena Rule 38Motionmustbe filed.By contrast, 11th Cir. R. 38–1expresslyprovides that “Motions for damages and costs pursuant to FRAP 38 must be filed no later than the filing of appellee's brief”; seeConsol. Gov't of Columbus, Ga., 438 Fed. Appx. 837, 840 (11th Cir. 2011).

The Court also issued an order to show cause why the appellant and his various appellate counsel should not be sanctioned for pursuing a frivolous appeal. After considering counsels' responses, the Court invoked Fed. R. App. 38 and 28 U.S.C. § 1927 to impose monetary sanctions against the appellant and one of his counsel for pursuing an appeal that was frivolous and in bad faith, for making accusations without a shred of evidence to support them, for ignoring evidence against them and for relying on facts outside the record. They were ordered to pay the appellees’ attorneys’ fees and costs for defending the appeal and $500 to reimburse the court for its costs.

Consequently, the district court imposed sanctions against the relator and his counsel, jointly and severally, for the defendant’s attorney’s fees and costs in defending the litigation. On appeal, the Sixth Circuit affirmed the lower court’s holding and instructed the relator’s counsel to show cause for why he should not face additional sanctions under 28 U.S.C. § 1927 and Federal Rule of Appellate Procedure 38 for filing a frivolous appeal. Currently, there is a pending fee petition at the district court level in which the defendant is seeking $511,633.

Based on those key facts, the Tenth Circuit affirmed the District Court’s award of $140,571.62 in fees and costs.The Tenth Circuit also held that under Fed. R. App. P. 38, the Court “may award damages and costs if an appeal is frivolous.” Id. at 13.

The case is Gallop v. Cheney, decided on July 7. Summarizing the opinion in Gallop I, the Second Circuit writes:In our opinion, we determined, as the District Court had, that Gallop’s complaint — which alleged that former senior government officials caused the September 11, 2001 attacks against the United States in order to (1) create a political atmosphere in which they could pursue domestic and international policy objectives and (2) conceal the misallocation of $2.3 trillion in congressional appropriations to the Department of Defense—was frivolous. We also ordered Gallop and her counsel to show cause why they should not be sanctioned for filing a frivolous appeal under Federal Rule of Appellate Procedure 38, 28 U.S.C. § 1927, and the inherent power of this Court.Now the lawyer wants the Court of Appeals to either re-hear the appeal or hear it en banc. En banc involves having all the judges on the Court hear the case, beyond the three judges who actually heard the appeal the first time around.