Commercial Litigation and Arbitration

§ 1927 Sanctions — Attorney Who Files a Frivolous Appeal Remains Subject to Sanction under § 1927 Even If Suspended from Practice and Forced to Proceed Pro Se during Pendency of Appeal

Yan v. Fu, 2014 U.S. App. LEXIS 5062 (9th Cir. Mar. 18, 2014):

Appellees filed a motion under Federal Rule of Appellate Procedure 38 and 28 U.S.C. § 1927 requesting that we impose sanctions on Yan, an attorney, for filing a frivolous appeal. We grant Appellees' motion for sanctions for filing a frivolous appeal pursuant to Rule 38 of the Federal Rules of Appellate Procedure.1 "An appeal is considered frivolous if the result is obvious or the appellant's arguments are wholly without merit." Adriana Int'l Corp. v. Thoeren, 913 F.2d 1406, 1417 (9th Cir. 1990). Yan's position in this appeal is wholly without merit. We therefore impose attorneys' fees and double costs under Federal Rule of Appellate Procedure 38.

1   Yan, although an attorney when the appeal was filed, was later suspended and has proceeded pro se. In view of our application of Rule 38, it is not necessary to rely upon 28 U.S.C. § 1927 (referring to an "attorney or other person admitted to conduct cases" who unreasonably and vexatiously multiplies proceedings) although our precedent would permit such reliance. See Wages v. I.R.S., 915 F.2d 1230, 1235-36 (9th Cir. 1990).

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