In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-3579

BUDGET RENT-A-CAR SYSTEM, INC.,

Plaintiff-Appellee,

v.

CONSOLIDATED EQUITY LLC,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 C 1772—William T. Hart, Judge.

____________

SUBMITTED OCTOBER 13, 2005—DECIDED NOVEMBER 4, 2005

____________

Before POSNER, ROVNER, and SYKES, Circuit Judges.

POSNER, Circuit Judge. We ordered that sanctions be

imposed on Consolidated Equity for this frivolous appeal,

Fed. R. App. P. 38, and Budget has submitted a statement of

its fees and costs. They are exorbitant. Because the appeal

was dismissed before briefing, Budget’s only appellate

submission was a four-page jurisdictional memo that cites

five cases. Budget claims that the memo cost $4,626.50 to

produce (3.3 partner hours at $425 per hour and 10.4

associate hours at $310 per hour); for so modest a product,

13.7 hours of high-paid professionals’ time are too many.

Budget has also included in its statement of fees and costs
2 No. 05-3579

its fees for preparing its motion for sanctions and the

statement of fees and costs itself—a total, again too high, of

$4,354 (1.2 partner hours and 12.4 associate hours). It is

inconceivable that this is the going market price for such

exiguous submissions.

Budget’s statement of costs, at $198.30, is also too high.

Budget claims in an affidavit to have incurred a $165 “filing

fee,” but there is no fee in this court for filing a jurisdictional

memorandum or a motion for sanctions, and the billing

records reveal that the $165 was actually a fee for the

admission of one of its attorneys to practice before this

court. Budget’s mischaracterization further undermines the

credibility of its submissions.

A number of cases, though none under Rule 38 of the

Federal Rules of Appellate Procedure, which governs the

award of sanctions for misconduct in federal appellate

proceedings, authorize the denial of an otherwise warranted

request for an award of fees because the request is for an

exorbitant amount. Vocca v. Playboy Hotel of Chicago, Inc., 686

F.2d 605, 607-08 (7th Cir. 1982) (per curiam); Brown v.

Stackler, 612 F.2d 1057 (7th Cir. 1980); Peter v. Jax, 187 F.3d

829, 837-38 (8th Cir. 1999); Fair Housing Council of Greater

Washington v. Landow, 999 F.2d 92, 96-97 (4th Cir. 1993)

(accepting contention “that a district court has the discretion

to deny a request for attorneys’ fees in its entirety when the

amount of the request is ‘grossly excessive’ ”); Lewis v.

Kendrick, 944 F.2d 949, 957-58 (1st Cir. 1991) (on rehearing).

When abatement is sought for a sanction based on Rule 11

of the Federal Rules of Civil Procedure, we held in Frantz v.

U.S. Powerlifting Federation, 836 F.2d 1063, 1065-66 (7th Cir.

1987), that the district court must award two separate

sanctions. They may cancel out but the district court must

explain each sanction and its effect on the other one so that
No. 05-3579 3

each party’s wrongful act is punished. See also In re Central

Ice Cream Co., 836 F.2d 1068, 1074-75 (7th Cir. 1987). But this

rule is based on the fact that when Frantz was decided Rule

11 provided that the district court “shall impose

an . . . appropriate sanction” for misconduct specified by the

rule, Brown v. Federation of State Medical Boards, 830 F.2d

1429, 1434 n. 1 (7th Cir. 1987), whereas, as noted in Frantz,

836 F.2d at 1065, the statute at issue in our earlier case of

Brown v. Stackler, supra—42 U.S.C. 1988—uses “may” rather than “shall, “and so does Rule 38 of the appellate rules.

When an award of fees is permissive, denial is an appropriate sanction for requesting an award that is not merely

excessive, but so exorbitant as to constitute an abuse of the

process of the court asked to make the award.

Our previous order granting the motion to award fees and

costs is VACATED and the motion DISMISSED.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—11-4-05