Category: Rule 38

Ninth Circuit Awards Fees Under Appellate Rule 38 and Section 1927


Rule 38 allows a court to award sanctions for a frivolous appeal. In this case, the Ninth Circuit ordered the plaintiff and his attorney to pay the legal fees the defendants incurred in defending what it found to be a frivolous appeal. The court held that Rule 38 allows the court to award “just damages” for a frivolous appeal. Rule 38 does not allow a court to award the fees incurred in preparing the motion for sanctions or in preparing the attorney affidavits required to obtain sanctions.

The explanation:

The award of fees and costs under Rule 38 thus must be limited to appellees’ direct fees and costs for defending against the frivolous appeal, and may not include the fees and costs incurred regarding the imposition of sanctions. See Cooter & Gell, 496 U.S. at 406-07; Sunbelt, 608 F.3d at 466-67 & n.4; Lyddon, 996 F.2d at 214; Lockary, 974 F.2d at 1178; see also Haeger, 813 F.3d at 1242, 1254(affirming award of attorneys’ fees and costs incurred after a misleading discovery response as a sanction under court’s inherent power to compensate party for losses sustained as a result of misconduct).

However, the Ninth Circuit also awarded fees against the attorney under 28 USC Section 1927, under which the court may sanction an attorney who vexatiously multiplies the proceedings. Under 1927 the Ninth Circuit awarded the legal fees for preparing the sanctions motions and attorney bills that it could not award under Rule 38.

In sum, this case is unusual because it awarded fees and sanctions under Rule 38 and 28 USC § 1927. The ruling allowed the defendants to recover almost all of their costs in defending the appeal and in seeking sanctions and proving up attorney fees.

Source: BLIXSETH v. YELLOWSTONE MOUNTAIN CLUB, LLC, Court of Appeals, 9th Circuit 2017 – Google Scholar