Hail Marys And Sent Messages

Six Circuit Judges of the United States Court of Appeals for the Ninth Circuit dissented from the denial of en banc review of sanctions imposed on attorneys who had pursued challenges to the 2020 election results

VANDYKE, Circuit Judge, joined by CALLAHAN, R. NELSON, COLLINS, LEE, and BUMATAY, Circuit Judges, dissenting from the denial of rehearing en banc:

The panel decision in this case upheld a sanctions order under Rule 11 of the Federal Rules of Civil Procedure and 28 U.S.C. § 1927 against attorneys Andrew Parker and Kurt Olsen. Parker and Olsen (collectively, “Lead Attorneys”) represented plaintiffs Kari Lake and Mark Finchem in election-related litigation. As the district court candidly acknowledged, the sanctions were intended to “send a message” to similar litigants in election-based lawsuits and to discourage litigation disfavored by the court. Zealous to safeguard the “public trust,” the district court read plaintiffs’ complaint out of context and in the light least favorable to plaintiffs; imposed a heightened requirement that Lead Attorneys conduct “significant” pre-filing inquiries on the basis of their clients and their cause; levied sanctions on the ground that plaintiffs made claims that, as even the district court itself recognized, the complaint never actually stated; and badly misapplied the governing legal standards. Lake v. Hobbs, 643 F. Supp. 3d 989, 998, 1013 (D. Ariz. 2022), aff’d in part, rev’d in part sub nom., Lake v. Gates, 130 F.4th 1054 (9th Cir. 2025), and aff’d sub nom., Lake v. Gates, 130 F.4th 1064 (9th Cir. 2025).

This case involved legal claims that might charitably be characterized as aggressive. It was a Hail Mary legal theory, especially as to standing. But we encounter Hail Mary legal theories regularly in our court in a variety of contexts, and while they almost always lose, they don’t get sanctioned just because they are longshots. Cf. Nuclear Regul. Comm’n v. Texas, 145 S. Ct. 1762, 1776 (2025) (characterizing a particular legal claim as “essentially a Hail Mary pass—and in court as in football, the attempt rarely succeeds” (quoting Nyunt v. Chairman, Broad. Bd. of Governors, 589 F.3d 445, 449 (D.C. Cir. 2009))). Many cases are dismissed because the asserted injuries are too speculative to support Article III standing. A great many more are dismissed for failure to state a claim on which relief can be granted. The law has no lack of tools short of sanctions to deal with speculative claims, adventurous legal theories, and imprecisely drafted complaints. Again, our circuit entertains cases with exceedingly improbable claims on a routine basis, which are usually (but not inevitably, which is probably why hope springs eternal) dispatched using any of the panoply of available mechanisms. If the run-of-the-mill Hail-Mary claims we routinely encounter are not sanctionable, neither were the claims in this case.

Two reasons independently made this case worthy of en banc review. First, the district court and the panel badly misapplied the standards for finding attorney conduct sanctionable. The district court flatly misread the allegations in plaintiffs’ complaint. While the complaint never actually said that Arizona did not use paper ballots—a fact that the district court even acknowledged in its sanctions order—the district court nevertheless found such a claim implied in the complaint (and thus sanctionable). But the context of the complaint confirms what its plain language makes clear: The attorneys never argued that Arizona did not use paper ballots. Although the complaint may not have been drafted with perfect precision, the district court reached the alternative conclusion only by repeatedly going out of its way to construe the complaint in the light least favorable to plaintiffs. Read in context, the complaint cannot be plausibly construed as asserting what it never said. Penumbras, emanations, and acontextual implications should be insufficient to warrant sanctions under Rule 11, and the district court abused its discretion in concluding otherwise. The panel majority ratified those errors, and in doing so reinforced the district court’s departure from the Rule 11 standard and our case law interpreting that Rule.

Second, the district court boldly proclaimed that it levied sanctions on Lead Attorneys with the hope that doing so would “send a message” to deter future litigants with similar claims—or, put bluntly, to deter a specific type of election litigation. Setting aside the myriad legal problems posed by this action—not the least of which is making a hash of the Rule 11 standard—that just looks bad. And even if the inference is unwarranted, this court’s refusal to grant en banc review will be construed by many as implicitly blessing the district court’s weaponization of sanctions to chill politically disfavored litigation.

Who could blame them? Cudgeling attorneys into abandoning unpopular claims and clients is not what sanctions are for.

Cause for concern

I cannot emphasize this enough: The district court was transparently wrong in its characterization of the Lead Attorneys’ allegations regarding how Arizona used and counted paper ballots. The district court sanctioned Lead Attorneys based on its own blatant misreading of their complaint. This is egregious. After all, if sanctioning Lead Attorneys on the grounds that their complaint alleged something that—by the district court’s own admission— cannot actually be found in the text of the complaint does not qualify as abusing one’s discretion, what does? For better or worse, we live in a time when many citizens believe (rightly or wrongly) that there is rampant election fraud and abuse. We cannot afford the perception that our federal courts are anything but scrupulously impartial in those partisan (and often heated) disputes. Our refusal to correct this error will generate precisely the opposite perception.

Sending a message

…the district court erred clearly and egregiously by imposing sanctions on Lead Attorneys. But that is not what makes this case truly remarkable. What makes this case most remarkable is that the district court acknowledged that it was imposing sanctions to “send a message” to attorneys who might file a particular type of lawsuit that the court viewed with disfavor. Specifically, the court stated that it wanted to “send a message to those who might file similarly baseless suits in the future”—suits that, in the court’s view, “further[] false narratives that baselessly undermine public trust at a time of increasing disinformation about, and distrust in, the democratic process.” Lake, 643 F. Supp. 3d at 1013. The district court proclaimed that it would “not condone litigants ignoring the steps that Arizona has already taken toward” the goal of “ensur[ing] that our elections are secure and reliable.” Id. There is thus no meaningful debate that the district court imposed sanctions, based on a clearly misconstrued complaint, after noting its desire to chill litigation that the district court simply disfavored.

The district court’s desire to impose sanctions to chill litigation that it disfavors flagrantly violates both the text and purpose of Rule 11.

Conclusion

Unfortunately, the panel majority ratified the district court’s many abuses of discretion, and in doing so departed from the Rule 11 standard while implicitly blessing the district court’s weaponization of sanctions against unpopular  claims and disfavored clients. Because I believe that Rule 11 demands more, and the integrity of our judicial system as an impartial arbiter deserves more, I respectfully dissent from the denial of rehearing en banc.

(Mike Frisch)