Unpleasant Duties: Imposing Sanctions for Frivolous Appeals

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. …