Sanctions — No Appellate Jurisdiction Where Appealed Order Didn’t Include Amount and Subsequent Order Not Appealed From — Substantial Degree of Frivolousness Required for FRAP 38 Sanctions on Pro Se Litigant

McCavey v. Gold, 2015 U.S. App. LEXIS 15761 (11th Cir. Sept. 4, 2015):

William M. McCavey, proceeding pro se, appeals the district court's dismissal of his complaint filed against nine defendants involved in varying degrees with his state divorce action, asserting claims under 42 U.S.C. § 1983 and Georgia state law.

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II.

Next, we conclude that we do not have jurisdiction over the appeal of the district court's order granting appellee Gold's motion for sanctions pursuant to Federal Rule of Civil Procedure 11. We have an obligation to review sua sponte whether we have jurisdiction at any point in the appellate process. Reaves v. Sec'y, Fla. Dep't of Corr., 717 F.3d 886, 905 (11th Cir. 2013). We only have jurisdiction over appeals from "final decisions" of the district courts. See 28 U.S.C. § 1291. A sanction order that awards attorney's fees but does not determine the amount of those fees is not final. Santini v. Cleveland Clinic Fla., 232 F.3d 823, 825 n.1 (11th Cir. 2000) (per curiam).

The district court's order granting Gold's motion for Rule 11 sanctions did not include the amount of attorney's fees. McCavey filed his notice of appeal before the district court entered its order setting the amount of those fees. Therefore, the sanction order was not final [*8]  as of the date McCavey filed his notice of appeal. While the district court did issue a final order and judgment concerning sanctions, McCavey did not appeal it, nor did he attempt to amend his notice of appeal. Therefore, we do not have jurisdiction over McCavey's appeal of the order granting Rule 11 sanctions, and we dismiss his appeal as to that order.

III.

After McCavey and Gold submitted their initial briefs on appeal, Gold filed a motion for just damages and double costs under Federal Rule of Appellate Procedure 38. Gold asserts that this appeal is frivolous and that McCavey knew the appeal was frivolous after sanctions were imposed against him by the district court under Rule 11. However, McCavey's issue on appeal—a challenge to the district court's application of Rooker-Feldman—is not sufficiently frivolous to impose sanctions on a pro se litigant. See Woods v. I.R.S., 3 F.3d 403, 404 (11th Cir. 1993) (per curiam) (noting our reluctance to impose sanctions against a pro se litigant even in a clearly frivolous appeal). Even though McCavey may not have strong arguments, his arguments are not as patently frivolous in the face of established law and "utterly devoid of merit" as in the cases in which this court has sanctioned pro [*9]  se parties. Cf. Bonfiglio v. Nugent, 986 F.2d 1391, 1393-94 (11th Cir. 1993); Stoecklin v. C.I.R., 865 F.2d 1221, 1226 (11th Cir. 1989). Furthermore, McCavey has not advanced any arguments on appeal that we have repeatedly held to be frivolous and worthy of sanctions. See, e.g., United States v. Morse, 532 F.3d 1130, 1132-33 (11th Cir. 2008) (per curiam). Accordingly, Gold's motion for just damages and double costs pursuant to Rule 38 is hereby denied.

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