Appeal Sanctions/Deadlines: Ninth Circuit Decides That Appeal Sanctions For Frivolous Appeal Under FRAP 38 Must Be Filed Under Time Limits For Filing Request For Appellate Attorney’s Fees Under Ninth Circuit Rule 39-1.6(a)

With Respect To Double Costs For Frivolous Appeal, No Entitlement Unless Timely Costs Bill Filed.

            In In re Westwood Plaza North (Erde v. Bodnar, et al.), No. 17-55655 (9^th Cir. Apr. 9, 2018) (per curiam; published), the Ninth Circuit adopted a “bright line” rule for filing an appeal sanctions request for attorney’s fees under Federal Rule of Appellate Procedure 38, where a frivolous appeal is involved.  It decided that the time limit within which to file such a motion mirrored the deadlines for filing a request for attorney’s fees under Ninth Circuit Rule 39-1.6(a) after winning on appeal, running from possible rehearing triggers but generally 28 days after issuance of the appellate decision.  (Read this decision for the particular deadline triggers.)  That means the frivolous fees request goes to the Ninth Circuit Appellate Commissioner for decision-making, just like normal appellate fee requests after a win.

            However, the appellees also sought “double costs” (routine in nature) for the frivolous appeal.  The problem with this request is that appellees did not file a timely costs bill on appeal such that this request was denied.  (FRAP 39(d); 9^th Cir. R. 39-1.1.)