The appeal is dismissed for want of jurisdiction. Treating the
papers whereon the appeal was taken as a petition for writ of
certiorari, certiorari is denied.
Justice STEVENS, with whom Justice BRENNAN, Justice MARSHALL,
and Justice BLACKMUN join, concurring.
Appellant filed a two-count complaint against appellee seeking
to recover damages under two Pennsylvania statutes. [
Footnote 1] The Dis-
Page 470 U.S.
1067 , 1068
trict Court granted a motion to dismiss Count II and appellant
tried to appeal from that order under 28 U.S.C. 1291. The Court of
Appeals for the Third Circuit dismissed the appeal, presumably
because the District Court's dismissal of only one count of the
complaint was not a final order . Appellant has invoked our
appellate jurisdiction under 28 U.S.C. 1254, arguing that
Pennsylvania courts would treat the District Court's dismissal as a
final order and that the federal courts should also treat the
dismissal as final under the collateral-order doctrine of Cohen v.
Beneficial Industrial Loan Corp.,
337 U.S. 541 (1949). I
find no merit to that argument and agree that the appeal should be
dismissed; treating it as a petition for a writ of certiorari, the
petition should be denied.
Appellee filed a nine-page motion to dismiss or affirm in which
it correctly pointed out that a court of appeals does not have
jurisdiction over an appeal from a district court order dismissing
less than all of the claims alleged in a complaint unless the
district court has made the express determination that Rule 54(b)
of the Federal Rules of Civil Procedure requires. [
Footnote 2] In the concluding section of its
printed motion, appellee requests the Court to award it "double
costs and attorneys fees incurred." 3 Because three Members of the
Court have expressed the opinion that the request should be treated
as a formal motion and that it should be granted
Page 470 U.S.
1067 , 1069
"to the extent of awarding appellee $1,000 against Bruce Martin
Ginsburg, Esq., appellant's counsel, pursuant to this Court's Rule
49.2," post, at 1073, it is appropriate to explain briefly why the
request should be denied. [
Footnote
4]
Appellee is entirely correct in pointing to the jurisdictional
defect in this appeal. Moreover, it is a defect that competent
counsel should readily recognize. Nevertheless, this procedural
error is one that has been frequently overlooked by a large number
of experienced attorneys and judges in other cases. [
Footnote 5] It is not the kind of egregious
error that may properly provide the basis for sanctions against an
attorney. There are, moreover, two additional reasons why it would
be unwise judicial administration to grant a motion of this
kind.
Because of the large number of applications for review that are
regularly filed in this Court, the public interest in the efficient
administration of our docket requires that we minimize the time
devoted to the disposition of applications that are plainly without
merit. [
Footnote 6] Any
evenhanded attempt to determine which of the unmeritorious
applications should give rise to sanctions, and which should merely
be denied summarily, would be a time-consuming and unrewarding
task. It would require us either to adopt a procedure for assessing
a fair compensatory damages award in par-
Page 470 U.S.
1067 , 1070
ticular cases, or to impose a somewhat arbitrary penalty
whenever such a motion is granted. Unless there has been a gross
abuse of the judicial process, or demonstrable and significant harm
to a litigant, such action is unwarranted. [
Footnote 7]
Of greater importance than the practical problems associated
with the processing of motions of this kind is the symbolic
significance of the action that THE CHIEF JUSTICE proposes. Freedom
of access to the courts is a cherished value in our democratic
society. Incremental changes in settled rules of law often result
from litigation. [
Footnote 8]
The courts provide the mechanism for the peaceful resolution of
disputes that might otherwise give rise to attempts
Page 470 U.S.
1067 , 1071
at self-help. There is, and should be, the strongest presumption
of open access to all levels of the judicial system. Creating a
risk that the invocation of the judicial process may give rise to
punitive sanctions simply because the litigant's claim is
unmeritorious could only deter the legitimate exercise of the right
to seek a peaceful redress of grievances through judicial means.
[
Footnote 9] This Court, above
all, should uphold the principle of open access.
This is not, of course, to suggest that courts should tolerate
gross abuses of the judicial process. If there is reason to believe
that counsel have pursued unmeritorious litigation merely in order
to generate fees for themselves, for example, judges should bring
the matter to the attention of the appropriate disciplinary
authorities. [
Footnote 10]
Or if it appears that unmeritorious litigation has been prolonged
merely for the purposes of delay, with no legitimate prospect of
success, an award of double costs and damages occasioned by the
delay may be appropriate. [
Footnote 11] But the strong presumption is
Page 470 U.S.
1067 , 1072
against the imposition of sanctions for invoking the processes
of the law.
If the Court has treated appellee's request as a motion under
our Rule 49.2, the Court has correctly denied the motion.
Justice WHITE, believing that there is no final judgment to
review, would dismiss for want of jurisdiction.
Justice POWELL took no part in the consideration or decision of
this case.
Chief Justice BURGER, with whom Justice REHNQUIST and Justice
O'CONNOR join.
I agree that we should dismiss this appeal, but I would go
beyond that. This appeal is an attempt to invoke the Court's
jurisdiction on an utterly frivolous claim. Such efforts should
subject the attorney who filed the jurisdictional statement to the
sanction of Rule 49.2 of this Court,* at least where, as here, the
appellee has moved for an award of costs and fees.
Appellant, the administratrix of her husband's estate, filed a
complaint in state court seeking insurance benefits from appellee.
Count I of the complaint sought benefits under Pennsylvania's
No-fault Motor Vehicle Insurance Act, Pa.Stat.Ann., Tit. 40,
1009.101-.701 (Purdon Supp.1984-1985) (repealed 1984). Count II
alleged that appellee had violated Pennsylvania's Unfair Insurance
Practices Act, id., 1171.1 et seq., and sought statutory
Page 470 U.S.
1067 , 1073
penalties under Pennsylvania's Unfair Trade Practices and
Consumer Protection Law, Pa.Stat.Ann., Tit. 73, 201-9.2 (Purdon
Supp. 1984-1985).
Appellee removed the suit to Federal District Court based on the
parties' diversity of citizenship. On appellee's motion, the
District Court dismissed Count II for failure to state a claim upon
which relief could be granted, holding that the Pennsylvania laws
upon which appellant relied do not provide any private right of
action. Appellant immediately appealed to the United States Court
of Appeals for the Third Circuit. The Court of Appeals granted
appellee's motion to dismiss on the grounds that the District Court
decision was not a final judgment and that the Court of Appeals
thus lacked jurisdiction. Appellant then filed a jurisdictional
statement with this Court, asserting that the Court of Appeals'
dismissal of her appeal was erroneous and a violation of due
process.
The Court of Appeals' action was unquestionably correct. See 28
U.S. C. 1291; Fed.Rule Civ.Proc. 54(b). Not only is appellant's
appeal to this Court completely frivolous on the merits, but also
her attempt to bring the case here by way of appeal is totally
improper; appellate jurisdiction is plainly lacking. See 28 U.S.C.
1254(2).
Appellee has moved for an award of costs and fees for its
expense in responding to this frivolous appeal. We afforded
appellant the opportunity to respond to this motion; appellant's
response provided nothing to meet the claim that the appeal is
demonstrably frivolous. I would grant the motion to the extent of
awarding appellee $1,000 against Bruce Martin Ginsburg, Esq.,
appellant's counsel, pursuant to this Court's Rule 49.2.
It is suggested that two objectives justify the Court's refusal
to apply Rule 49.2 in this and similar cases: (a) efficient use of
the Court's time, and (b) affirmance of the principle of free
access to the courts. Both objectives unquestionably are
commendable, but the perspective is too narrow. Judicious use of
the sanction of Rule 49.2 in egregious cases-and this is an
egregious case-should discourage many of the patently meritless
applications that are filed here each year. In the long run, this
is the more effective way to "minimize the time devoted to the
disposition of applications that are plainly without merit," ante,
at 1069; after all, that is the whole purpose of Rule 49.2.
Further, while freedom of access to the courts is indeed a
cherished value, every misuse of any court's time impinges on the
right of other litigants with valid or at least arguable claims to
gain access to the judicial process. The time this Court expends
examining and processing frivolous applications is very
substantial, and it is time that could be devoted to considering
claims which merit consideration.
Rule 49.2 has a purpose which has too long been ignored; it is
time we applied it. I would apply it here.
Footnotes
Footnote 1 Count I sought
recovery under Pennsylvania's No-fault Motor Vehicle Insurance Act,
Pa.Stat.Ann., Tit. 40, 1009.101-1009.701 (Purdon Supp.1984-1985)
(repealed 1984). Count II sought recovery under Pennsylvania's
Unfair Insurance Practices Act, Pa.Stat.Ann., Tit. 40,
1171.1-1171.15, and Unfair Trade Practices and Consumer Protection
Law, Pa. Stat.Ann., Tit. 73, 201-9.2 (Purdon Supp.1984-1985). The
complaint was originally filed in the state court and removed by
appellee to the Federal District Court because of the parties'
diverse citizenship.
Footnote 2 Rule 54(b),
entitled "Judgment Upon Multiple Claims or Involving Multiple
Parties," provides:
"When more than one claim for relief
is presented in an action, whether as a claim, counterclaim,
cross-claim, or third-party claim, or when multiple parties are
involved, the court may direct the entry of a final judgment as to
one or more but fewer than all of the claims or parties only upon
an express determination that there is no just reason for delay and
upon an express direction for the entry of judgment. In the absence
of such determination and direction, any order or other form of
decision, however designated, which adjudicates fewer than all the
claims or the rights and liabilities of fewer than all the parties
shall not terminate the action as to any of the claims or parties,
and the order or other form of decision is subject to revision at
any time before the entry of judgment adjudicating all the claims
and the rights and liabilities of all the parties."
Footnote 3 Motion to Dismiss
or Affirm 9.
Footnote 4 The desire for
similar action has been expressed in several cases in recent years.
See, e.g., Potamkin Cadillac Corp. v. United States, 462 U.S. 1144
(1983) (BURGER, C.J., and REHNQUIST and O'CONNOR, JJ.); Escofil v.
Pennsylvania, 462 U.S. 1117 (1983) (REHNQUIST and O'CONNOR, JJ.);
In re Rush, 462 U.S. 1117 (1983) (BURGER, C.J., and REHNQUIST and
O'CONNOR, JJ.); Garcia v. United States, 462 U.S. 1116 (1983)
(BURGER, C.J., and REHNQUIST and O'CONNOR, JJ.); Gullo v. McGill,
462 U.S. 1101d 1328 (1983) (BURGER, C.J., and REHNQUIST and
O'CONNOR, JJ.).
Footnote 5 See, e.g., Burney
v. Pawtucket,
728 F.2d
547, 549 (CA1 1984) (per curiam ); Wolf v. Banco Nacional de
Mexico, S.A.,
721 F.2d
660, 661-662 ( CA9 1983); Liskey v. Oppenheimer & Co.,
717 F.2d
314, 321 (CA6 1983); Sandoz v. Crain Brothers, Inc.,
694 F.2d
88, 89 (CA5 1982) (per curiam ); cf. 10 C. Wright, A. Miller,
& M. Kane, Federal Practice and Procedure 2657, pp. 60-61
(1983) ("Unfortunately, it is not always easy to tell whether a
case involves multiple claims (to which Rule 54(b) is applicable)
or a single claim supported by multiple grounds (to which Rule
54(b) is not applicable). The line between deciding one of several
claims and deciding only part of a single claim is sometimes very
obscure") (footnote omitted).
Footnote 6 Cf. Roadway
Express, Inc. v. Piper,
447 U.S. 752, 757, n. 4,
100 S. Ct. 2455, 2459, n. 4 (1980) ("The glacial pace of much
litigation breeds frustration with the federal courts and,
ultimately, disrespect for the law").
Footnote 7 The earliest
version of this Court's Rule 49.2, enacted in 1803, provided:
"In all cases where a writ of error
shall delay the proceedings on the judgment of the circuit court,
and shall appear to have been sued out merely for delay, damages
shall be awarded at the rate of ten per centum per annum, on the
amount of the judgment." Rules and Orders of the Supreme Court of
the United States, 1 Cranch xvi, xviii (1803) (Rule XVII) (
emphasis in original).
Since that time the Rule has been revised and renumbered
numerous times. See Rules of the Supreme Court of the United
States, Revised and Corrected at December Term, 1858, 21 How. V,
XIII (1858) (Rule 23.3); Rules of the Supreme Court Announced
January 7, 1884, 108 U.S. 573, 586 ( 1884) (Rule 23.2); Revised
Rules of the Supreme Court of the United States, 266 U.S. 653, 674
(1925) (Rule 28.2); Revised Rules of the Supreme Court of the
United States, 275 U.S. 595, 617 (1928) (Rule 30.2); Revised Rules
of the Supreme Court of the United States, 346 U.S. 951, 1006
(1954) (Rules 56.2 and 56.4). However, despite the 182-year
existence of Rule 49.2 and its predecessors, it appears that they
have rarely been invoked. See, e.g., Tatum v. Regents of University
of Nebraska, 462 U.S. 1117 (1983); Bohn v. Bohn, 316 U.S. 646, 647
(1942) (per curiam ) ("it appearing that the appeal was frivolous
and taken merely for delay "); Roe v. Kansas,
278 U.S.
191, 193 (1929); Slaker v. O'Connor,
278 U.S.
188, 190, 159 ( 1929); Wagner Electric Mfg. Co. v. Lyndon,
262 U.S.
226, 232, 591 (1923) ("We are asked by counsel for appellees to
impose a penalty on the appellant for delay. The history of the
case and the conduct of the Wagner Company leave no doubt that the
litigation in the federal jurisdiction and the successive appeals
have been prosecuted solely for delay"); Deming v. Carlisle Packing
Co.,
226
U.S. 102, 106, 82 (1912) ("That the unsubstantial and frivolous
character of the only Federal question relied upon of necessity
embraces the conclusion that the writ was prosecuted for delay is
in our opinion indubitable"); cf. Gibbs v. Diekma, 131 U.S.App.
clxxxvi, clxxxvii (1880) ("[I]t is so apparent the appeal was
vexatious and for delay only, that we adjudge to the appellees five
hundred dollars as just damages for their delay").
Footnote 8 See, e.g., Abney
v. United States,
431
U.S. 651 (1977); Cox Broadcasting Corp. v. Cohn,
420 U.S. 469 (1975);
Cohen v. Beneficial Industrial Loan Corp.,
337 U.S. 541 (1949).
Footnote 9 Justice Field
eloquently penned this point on the occasion of the announcement of
his retirement: "As I look back over the more than a third of a
century that I have sat on this bench, I am more and more impressed
with the immeasurable importance of this court. Now and then we
hear it spoken of as an aristocratic feature of a Republican
government. But it is the most Democratic of all. Senators
represent their States, and Representatives their constituents, but
this court stands for the whole country, and as such it is truly
'of the people, by the people, and for the people.' It has indeed
no power to legislate. It cannot appropriate a dollar of money . It
carries neither the purse nor the sword. But it possesses the power
of declaring the law, and in that is found the safeguard which
keeps the whole mighty fabric of government from rushing to
destruction. This negative power, the power of resistance, is the
only safety of a popular government. . . ." Letter of Resignation
of Justice Stephen J. Field, 168 U.S.App. 716 (1897) (emphasis
added).
Footnote 10 See Model
Rules of Professional Conduct and Code of Judicial Conduct, Rule
1.5 (1983) ("A lawyer's fee shall be reasonable").
Footnote 11 This Court's
Rule 49.2 provides: "When an appeal or petition for writ of
certiorari is frivolous, the Court may award the appellee or the
respondent appropriate damages." This Court's Rule 50.7 states that
"[i]n an appropriate instance, the Court may adjudge double costs."
Cf. Model Rules of Professional Conduct and Code of Judicial
Conduct, Rule 3.2 (1983) ("A lawyer shall make reasonable efforts
to expedite litigation consistent with the interests of his
client"). The comment following this rule states: "Dilatory
practices bring the administration of justice into disrepute. Delay
should not be indulged merely for the convenience of the advocates,
or for the purpose of frustrating an opposing party's attempt to
obtain rightful redress or repose. It is not a justification that
similar conduct is often tolerated by the bench and bar. The
question is whether a competent lawyer acting in good faith would
regard the course of action as having some substantial purpose
other than delay. Realizing financial or other benefit from
otherwise improper delay in litigation is not a legitimate interest
of the client."
See also id., Rule 3.1 ("A lawyer shall not bring or defend a
proceeding, or assert or controvert an issue therein, unless there
is a basis for doing so that is not frivolous, which includes a
good faith argument for an extension, modification or reversal of
existing law"). The comment to that rule, in pertinent part,
states: "[T]he law is not always clear and never is static.
Accordingly, in determining the proper scope of advocacy, account
must be taken of the law's ambiguities and potential for change. .
. . [An] action is not frivolous even though the lawyer believes
that the client's position ultimately will not prevail. The action
is frivolous, however, if the client desires to have the action
taken primarily for the purpose of harassing or maliciously
injuring a person or if the lawyer is unable either to make a good
faith argument on the merits of the action taken or to support the
action taken by a good faith argument for an extension,
modification or reversal of existing law."
[
Footnote *] Rule 49.2 provides:
"When an appeal or petition for writ of certiorari is frivolous,
the Court may award the appellee or the respondent appropriate
damages."
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