E. Requirement That All Appeals and Arguments Be Well Grounded;
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Counsel are advised to evaluate their appeal most carefully before proceeding in the court of appeals. Appellants must assure that any argument presented to this court, whether in motions, memoranda, or briefs, is well grounded in both law and fact. Frivolous appeals abuse the right of access to the court, cause needless delay and ex-
pense, and can result in sanctions. See, e.g., Rumsavich v. Borislow, 154 F.3d 700, 703–704 (7th Cir. 1998).
Federal Rule of Appellate Procedure 38 provides that “[i]f a court of appeals shall determine that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee.” Rule 38 is taken most seriously in this circuit. The rule serves to compensate prevailing parties in district courts for defending against meritless arguments on appeal and deters such appeals so that the court has adequate time to consider non-frivolous appeals. See A.V. Consultants, Inc. v. Barnes, 978 F.2d 996, 1003 (7th Cir. 1992); A-Abart Elec. Supply, Inc. v. Emerson Elec. Co., 956 F.2d 1399, 1406 (7th Cir. 1992). The court applies a two-part test for Rule 38 sanctions: (1) is the appeal frivolous and (2) are sanctions appropriate. Lorentzen v. Anderson Pest Control, 64 F.3d 327, 331 (7th Cir. 1995). An appeal is frivolous if the result is foreordained by a lack of substance of appellant’s arguments. Ashkin v. Time Warner Cable Corp., 52 F.3d 140, 146 (7th Cir. 1995); East St. Louis v. Circuit Court, 986 F.2d 1142, 1145 (7th Cir. 1993). An appeal that is not necessarily groundless but was filed for an improper purpose, such as delay, is an abuse of process and is also sanctionable under the rule. In re Hendrix, 986 F.2d 195, 201 (7th Cir. 1993). Rule 38 sanctions are appropriate if an appeal is perfunctory and makes no more than a cursory effort in challenging the district court’s decision, Clark v. Runyon, 116 F.3d 275, 279 (7th Cir. 1997), is prosecuted with no reasonable expectation of altering the district court’s judgment and for purposes of delay or harassment, or out of sheer obstinacy, Smith v. Blue Cross & Blue Shield United, 959 F.2d 655, 661 (7th Cir 1992), or when there is some evidence of bad faith. See Ross v. Waukegan, 5 F.3d 1084, 1090 (7th Cir. 1993); Preze v. Board of Trustees, Pipefitters Welfare Fund Local 597, 5 F.3d 272, 275 n.6 (7th Cir. 1993); Koffski v. North Barrington, 988 F.2d 41, 45 n.8 (7th Cir. 1993).
Although Fed. R. Civ. P. 11 does not apply to pleadings filed in the court of appeals, the provisions of that rule prohibiting groundless assertions and allowing severe penalties for noncompliance are looked to in interpreting Fed. R. App. P. 38. See Sparks v. NLRB, 835 F.2d 705, 707 (7th Cir. 1987); Thornton v. Wahl, 787 F.2d 1151, 1153 (7th Cir. 1986).
Rule 38 sanctions can be imposed either on motion of the appellee or on the court’s own motion, and counsel can be sanctioned personally when it is clear that the appellant is not at fault in filing a frivolous appeal. Osuch v. Immigration & Naturalization Service, 970 F.2d 394, 396 (7th Cir 1992). Fed. R. App. P. 38 provides that before imposing sanctions, the court will give reasonable notice to the persons that it is contemplating sanctioning and will allow them an opportunity to respond. When appellees request sanctions in their brief, the court will give notice that it is contemplating sanctions and an opportunity to respond before imposing sanctions. McDonough v. Royal Caribbean Cruises, Ltd., 48 F.3d 256, 258 (7th Cir. 1995).
In extreme cases where a litigant has so abused his or her access to the court and monetary or other sanctions have proven ineffective, the court may bar that litigant from filing any pleading (other than as a defendant in a criminal action or habeas corpus action involving the litigant) in any federal court in the circuit. In such case, the court will direct the clerks of federal courts in the circuit not to accept filings from the litigant until the litigant complies with all prior sanction orders. See Support Systems International, Inc. v. Mack, 45 F.3d 185 (7th Cir. 1995).
Federal Rule of Appellate Procedure 46(c) authorizes the court to discipline any attorney for conduct unbecoming a member of the bar or for failure to comply with the Federal Rules of Appellate Procedure or any rule of the court. A thoughtful analysis of one’s appeal, careful review of the procedural and substantive rules of practice, and compliance with those rules fosters a smooth and effective appeal process. Attorneys practicing in this court must proceed accordingly.
