In Scherer v. JP Morgan Chase & Company, the Sixth Circuit affirmed the district court’s judgment based on the application of collateral estoppel, and it then turned to the issue of sanctions for pursuit of a frivolous appeal. The Court began by noting that it had authority to impose sanctions under 28 U.S.C. § 1927 (which provides sanctions on an attorney “who . . . multiplies the proceedings in any case unreasonably and vexatiously”) or under Federal Rule of Appellate Procedure 38 (which concerns frivolous appeals). The Court acknowledged that, based on its prior cases, “Rule 38 should doubtless be more often enforced than ignored in the face of a frivolous appeal.” After surveying the legal standard as well as counsel’s apparent pursuit of an appeal that appeared frivolous in the Court’s eyes, the Court ordered appellant’ s counsel to show cause why, pursuant to Section 1927 or Rule 38, he should not be sanctioned for filing the appeal.
The opinion, although unpublished, is notable in its invocation of the appellate sanctions mechanism. The Sixth Circuit rarely utilizes this mechanism, as the Court seemed to acknowledge by citing precedent to that effect. It will be interesting to see whether this case is simply an exception to the rule or perhaps indicative of a new trend. Regardless, it certainly counsels an appellant to think long and hard about whether to pursue an appeal of dubious character.