Not Taking Frivolity Lightly: Circuit Variance in Determining Frivolous Appeals Under Federal Rule of Appellate Procedure 38

34 Pages Posted: 14 Oct 2008 Last revised: 22 Sep 2009

Date Written: October 12, 2008


The availability of appellate review is integral to our contemporary justice system and serves important practical and symbolic functions. Appeal as of right, while not constitutionally guaranteed, is assured by statute for the vast majority of final decisions by trial courts, and with good reason. For one, the principle of open access to the courts is a key value of American law. An accessible public forum for the adversary process ensures that grievances are properly heard and fairly disposed of. Accordingly, justice is best served when parties are able to comprehensively litigate their rights at every level of the judicial system. Appellate review allows novel legal theories and untested questions of law to be advanced and considered, and affirms the continuing applicability-or not-of precedent. Additionally, the existence of successive levels of appellate review functions to reassure individual litigants and the general public that decisions of lower court judges are, at least theoretically, accountable to higher authority. The appeals process hence plays an important role in maintaining the stability and trustworthiness of the judicial system at large. Nevertheless, the right to appeal a valid final judgment or appealable order does not presume the propriety of every appeal. "[A] defendant has no right to file a frivolous appeal," and the decision "whether to appeal from an order of the District Court is not a matter to be taken lightly by either a losing party or her counsel." As a consequence, the federal courts of appeal possess the power under Federal Rule of Appellate Procedure 38 (Rule 38) and other sources of authority to sanction appellants who pursue completely meritless or vexatious petitions for review. Historically, though, courts have been reluctant to rigorously announce findings of frivolity or to impose full Rule 38 sanctions, for fear of chilling zealous advocacy or impeding novel claims. And even courts with a greater propensity to sanction under Rule 38 traditionally often have refrained from imposing sanctions on pro se appellants. However, mounting caseloads have increased the pressures on courts of appeal in recent years, leading to increased willingness by courts to identify and penalize frivolous appeals as well as provoking calls by some scholars and practitioners for substantially stricter imposition of Rule 38 sanctions.

In this changing environment, inconsistencies among circuits in determining when an appeal is frivolous and when to impose sanctions carry significant impact for appellants, particularly vulnerable pro se appellants proceeding without the benefit of counsel. While interests of judicial economy are certainly substantial, access to appellate review must be safeguarded for all tenable claims, even those of marginal merit. The assurance of thoughtful consideration by a court of last resort must not, instead, become merely a myth of last resort. This Article argues for adoption of consistent standards across circuits for determining the frivolity of appeals, particularly those by pro se appellants, as well as for consideration of different criteria for sanctioning frivolous appeals by pro se appellants than for attorneys. Part I provides an overview of the function and purpose of Rule 38, and clarifies the relationships among Rule 38, other sources of authority for finding frivolity, and analogous rules such as Federal Rule of Civil Procedure 11, which operates to identify sanctionable frivolous suits at the trial court level. Part II discusses the interest of courts in stemming an "avalanche of appeals," as well as the competing interest in not applying Rule 38 so strictly as to chill legitimate advocacy. Part III explores the implementation of Rule 38 by various circuits and identifies an increasing trend in the federal courts of appeal toward stricter implementation and stronger sanctions for frivolity, including against certain categories of pro se appellants. Part III also notes inconsistencies in how frivolous appeals are determined in general and with respect to pro se appellants, and examines how an appellant's pro se status affects the factors courts consider in deciding whether to exercise their discretion to impose sanctions for filing a frivolous appeal. Part IV argues that indeterminacy and varying standards among circuits hinders both the efficiency of courts and the access of pro se litigants to appellate review. In conclusion, this Article recommends adoption of a standardized process for Rule 38 review based on combined best practices of the circuits. Initial determination of frivolity should be objective, limited to consideration of the merits of the appeal as filed. Then, the decision whether to sanction should take into consideration the totality of the circumstances, including subjective factors such as bad faith on the part of the appellant and whether she is proceeding pro se. In this analysis, there should remain a presumption against imposing sanctions in the case of a pro se appellant, as well as an explicit advance warning requirement before sanctioning pro se appellants. Courts should retain their historical caution and reserve Rule 38 only for cases of objective and unquestionable frivolity, remaining mindful of other avenues for sanctioning for delay or vexatious litigation. Additionally, courts of appeal should consider the alternative of issuing an affirmance without opinion under local court rules providing for summary disposition.

Suggested Citation

Rasch, Meehan, Not Taking Frivolity Lightly: Circuit Variance in Determining Frivolous Appeals Under Federal Rule of Appellate Procedure 38 (October 12, 2008). Arkansas Law Review, Vol. 62, No. 249, 2009, Available at SSRN:

Meehan Rasch (Contact Author)

USC Gould School of Law ( email )

699 Exposition Boulevard
Los Angeles, CA 90089
United States

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