Practice Notes to Rule 38: Frivolous Appeal
Rules of Practice and Internal Operating Procedures of the Federal Circuit — Title VII. General Provisions
Warning Against Filing or Proceeding with a Frivolous Appeal or Petition.
The court’s early decision in Asberry v. United States, 692 F.2d. 1378 (Fed. Cir. 1982), established the policy of enforcing this rule vigorously. Since then, many precedential opinions have included sanctions under the rule. Damages, double costs, and attorney fees, singly or in varying combinations, have been imposed on counsel, parties, and unrepresented petitioners for pursuing frivolous appeals.
Challenging a Frivolous Appeal.
If an appellee or respondent considers an appeal or petition frivolous, the appellee or respondent must file a separate motion with that allegation. The assertion that an appeal is frivolous must be accompanied by citation to the opposing brief or the record below with clear argument as to why those citations establish that the appeal is frivolous. A party whose case has been challenged as frivolous is expected to respond or to request dismissal of the case.
Motions for Sanctions.
Motions for sanctions under this rule are filed in accordance with the requirements of Federal Rule of Appellate Procedure and Federal Circuit Rule 27.