Last week in the WSJ, Alex Kozinski had an op-ed piece discussing a case which took 14 years and $3.6 million in fees to get Homeland Security to admit an error in its "No Fly" list and correct the error. Kozinski offers the case as an example of the lack of accountability of (federal) government lawyers. In the case, the government litigated for years despite knowing that there was no basis for the plaintiff being included on a "No Fly" list. A possible deterrent to and punishment for such conduct, according to Kozinski is a statute that, on a finding of bad faith litigation, awarded the prevailing party costs and fees and imposed 1% to be paid by the lawyers. I don't think the proposal is useful. First, the power to assess fees against counsel (separate from the party represented) already exists in Rule 11 of the Rules of Civil Procedure. In theory, Rule 11 allows a court to require payment of fees in responding to bad faith assertions of law or fact. Rule 11 applies to any and all stages of litigation, and so could justify imposing sanctions directly on counsel. The proposed statute does not do anything more or different than is available under Rule 11 (or possibly available under the text of Rule 11). More importantly, a look at the applications by courts of Rule 11 demonstrates that it has very little value. District courts impose sanctions under Rule 11 only with great reluctance, and almost never come close to awarding the fees incurred. When a Rule 11 award goes up on appeal, the Circuit Courts of Appeal regularly reverse or eviscerate the sanctions. They are particularly loath to permit sanctions against government lawyers. A new statute (or Rule) would do nothing to alter these facts. Courts give lip service to punishing litigation misconduct, but very rarely do anything more. The problem is worse because government lawyers do not have clients paying the bills or controlling the litigation. Private lawyers have clients who get angry about endless litigation and large fees, and there is less reluctance to impose sanctions, although still too rarely for litigation abuse.
Another way to look at it -- what was Kozinski's record reviewing sanctions orders that came before him while he was on the Ninth Circuit?
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