Kelsey Whitt


In recent years, an increasing number of pro sel litigants have appeared in federal courts. Between October 2003 and September 2004, federal district courts had over 20,000 cases filed by pro se litigants. In fact, "pro se litigants appeared in thirty-seven percent of all cases.' The increase of pro se litigation is attributed to several factors, including the rising cost of litigation combined with the decrease of funding for legal services, the negative public perception of lawyers, and the rise of do-it-yourself legal resources. Once pro se litigants enter the federal court system, their presence multiplies the resources spent by the court and by the parties on the proceedings, as pro se litigants generally are unfamiliar with the procedural rules and the substantive law goveming their claims. At the same time the presence of pro se litigants has been increasing in the federal courts, imposing sanctions under 28 U.S.C. § 1927 has also become more common. This statute allows the court to impose sanctions for behavior that multiplies the proceedings. Under 28 U.S.C. § 1927, the court may order the offending party to compensate the opponent for excess costs, expenses, and attorneys' fees. In 1998, one scholar observed that attorneys sought, and courts imposed, sanctions under 28 U.S.C. § 1927 morefrequently since the 1993 amendment to Rule 11. However, because this conclusion was based solely on anecdotal information, a curious scholar empirically tested the observation's accuracy. This study revealed that in the four federal district courts examined, the frequency of imposing 28 U.S.C. § 1927 sanctions has risen since 1993. These two trends, the increasing number of pro se litigants in federal courts and the increasing use of 28 U.S.C. § 1927 sanctions, have collided to create a split in the United States Courts of Appeals as to whether 28 U.S.C. § 1927 sanctions may be applied against pro se litigants. While the United States Court of Appeals for the Second Circuit determined that 28 U.S.C. § 1927 is inapplicable against pro se litigants, the United States Court of Appeals for the Ninth Circuit held 28 U.S.C. § 1927 may be applied against pro se litigants. Although the United States Court of Appeals for the Eighth Circuit has not yet expressed an opinion on the matter, the Federal District Court of Nebraska recently recognized the split and chose to apply 28 U.S.C. § 1927 sanctions against pro se litigants. This Note examines the split in the circuits as to whether pro se litigants may be sanctioned under 28 U.S.C. § 1927 and proposes that the United States Court of Appeals for the Eighth Circuit should choose the position with textual support, the position that meets Congress' intent, and the position that achieves the proper policy result - the Eighth Circuit should follow the Second Circuit's lead and decline to apply 28 U.S.C. § 1927 sanctions against pro se litigants.

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