'I know a frivolous appeal when I see one'

March 12, 2012 Published Work
The National Law Journal

The concept of summary disposition was first raised by the U.S. Court of Appeals for the D.C. Circuit in U.S. v. Allen, 408 F.2d 1287 (D.C. Cir. 1969). One commentator questioned the benefits of that court's use of summary disposition and noted — 25 years ago — that the practice had not been "universally embraced" by other circuits. Stephen Bennett, "Summary Disposition of Appeals: Lessons from the D.C. Circuit," 30 St. Louis U.L.J. 463, 466-70 (1986). But most of the federal circuits today do embrace some form of summary disposition — affirming, dismissing and occasionally reversing appeals before briefing or argument on the merits. The local rules, procedures and standards for summary disposition, however, vary from circuit to circuit, as the courts have tried to balance the need for judicial efficiency with the importance of ensuring that litigants feel they have had a fair opportunity to present their case on appeal.

The Federal Rules of Appellate Pro­cedure do not include a rule on summary disposition. Some courts have found authority for summary disposition in Rule 2, which provides that, "on its own or a party's motion, a court of appeals may — to expedite its decision or for other good cause — suspend any provision of these rules in a particular case." See, e.g., U.S. v. Monsalve, 388 F.3d 71, 73 (2d Cir. 2004) (Rule 2 authorizes summary affirmance if appeal presents only frivolous issues). Most of the circuits, however, have addressed summary disposition in their local rules.

Every circuit allows for jurisdictional dismissals before briefing on the merits of an appeal, and some local rules also expressly provide for summary disposition based on a "subsequent precedent or a change in circumstances" (3d Cir. R. 27.4) or "a supervening change of law or mootness" (10th Cir. R. 27.2(1)).

As to the broader problem of dealing with appeals that do not present any meaningful merits issues, the circuits have adopted similar, but not identical, standards for summary disposition. For example, the 1st and 3d Circuit rules allow for summary affirmance when "no substantial question is presented." 1st Cir. R. 27.0(c); 3d Cir. R. 27.4. Other circuit rules similarly provide for summary action when the appeal "is frivolous and entirely without merit" (8th Cir. R. 47A; 11th Cir. R. 42-4) or when "it is manifest that the questions on which the decision in the appeal depends are so insubstantial as not to justify further proceedings" (9th Cir. R. 3.6(b)). The D.C. Circuit's rules do not spell out a standard, but its case law requires that a party seeking summary disposition must "establish…that the merits of his case are so clear that expedited action is justified" and that "no benefit will be gained from further briefing and argument of the issues presented." Walker v. Washington, 627 F.2d 541, 545 (D.C. Cir. 1980); Taxpayer's Watchdog Inc. v. Stanley, 819 F.2d 294, 297-98 (D.C. Cir. 1987).

These standards are so similar that it is difficult to distinguish among them, and one is tempted to draw the comparison to Justice Potter Stewart's famous "I know it when I see it" adage about pornography. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring). However, although all of the circuits can undoubtedly identify a truly frivolous appeal when they see it, there are differences in their tolerance levels for weak appeals and their willingness to entertain parties' motions for summary disposition.

Summary disposition has become an important and respected part of D.C. Cir­cuit practice. The circuit's Handbook of Practice & Internal Procedures, § VIII.G (December 2011) specifically provides that "[p]arties are encouraged to file such motions where a sound basis exists for summary disposition." That official encouragement is limited only by the obvious admonition that "[p]arties should avoid requesting summary disposition of issues of first impression for the Court." Id.

In contrast, while the 4th Circuit uses a standard that is similar to the D.C. Circuit's — allowing summary disposition when "the issues raised on appeal are in fact manifestly unsubstantial and appropriate for disposition by motion" (4th Cir. R. 27(f)) — it nonetheless takes a more cautious approach. The 4th Circuit rules emphasize that motions for summary affirmance or reversal "are reserved for extraordinary cases only" and "are seldom granted," and cautions counsel to "carefully consider" whether a contemplated motion for summary disposition meets the circuit's strict standards. Id.

Other circuits go so far as to preclude parties from moving for summary disposition based on the merits (or more accurately, the lack of merits) of an appeal. The 6th Circuit and the 8th Circuit allow parties to file motions to dismiss for lack of jurisdiction, but allow no other motions for summary disposition (6th Cir. R. 27(d)(3); 8th Cir. R. 47A), and the 10th Circuit allows parties to file motions to affirm or dismiss on a number of bases, but not based on the absence of a substantial merits issue (10th Cir. R. 27.2(A)). In those circuits, it would appear that the court alone can take summary action, sua sponte, based on the merits.

In criminal appeals, courts are likely to be even more hesitant to use summary disposition. "The unique importance of criminal appeals makes the decision to characterize one as frivolous particularly perilous," requiring "extreme care" before "short-circuit[ing]" the appellate process. U.S. v. Davis, 598 F.3d 10, 13, 14 n.3 (2d Cir. 2010). And, although summary reversal is expressly permitted in some circuits' rules — based on "obvious" or "clear" error (1st Cir. R. 27.0(c); 9th Cir. R. 3-6) or based on the same standard used for summary affirmance (3d Cir. R. 27.4(a); 4th Cir. R. 27(f)) — it stands to reason that courts will be more hesitant to reverse, than to affirm, summarily. See Bennett, supra, 30 St. Louis U.L.J. at 476-77.

When a party is appealing in forma pauperis, federal law provides an ­alternative basis for summarily dismissing an appeal that lacks merit. 28 U.S.C. 1915(a)(3) bars an appeal when the district court has certified that the appeal "is not taken in good faith." In addition, the courts of appeals have independent authority to dismiss an in forma pauperis appeal if it is frivolous, fails to state a claim or seeks damages from a defendant who is immune from such relief. Id. § 1915(e)(2)(B).

The timing requirements for filing a motion for summary disposition vary among the circuits as well. Such a motion must be filed in the 3d Circuit before the appellant's brief is due (3d Cir. R. 27.4(b)), but it may be filed any time prior to the completion of briefing in the 9th Circuit (9th Cir. R. 3.6). In the D.C. Circuit, all dispositive motions must be filed within 45 days of the appeal being docketed (D.C. Cir. R. 27(g)(1)). See also 1st Cir. R. 27.0 (motion for summary disposition must be "promptly filed when the occasion appears").

Timing can also affect a court's view of the proper standard for granting summary disposition. In a 2006 decision, the 7th Circuit starkly concluded that motions for summary affirmance should be filed only in emergencies, when arguments in an opening brief are "incomprehensible or completely insubstantial" or when "a recent appellate decision directly resolves the appeal." U.S. v. Fortner, 455 F.3d 752, 754 (7th Cir. 2006). What drove the court's position in that case was the timing of the government's motion for summary affirmance — which was filed just days before its merits brief was due, in effect providing a "self-help extension of time." Id. at 753. The court subsequently clarified its position, limiting Fortner to "last-minute" summary disposition motions, and granted a motion for summary affirmance that did not fall in the limited Fortner categories when the motion was filed "well before the appellant's brief was due." Dupuy v. McEwen, 495 F.3d 807, 808 (7th Cir. 2007).

Summary disposition can provide an efficient vehicle for resolving an appeal that presents no meaningful issues, but practitioners should be attentive to the differences in the local rules and in the circuits' views of summary disposition.

Reprinted with permission from the March 12, 2012 edition of THE NATIONAL LAW JOURNAL © 2012 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, [email protected] or visit www.almreprints.com.