Sanction Fee Claims

Sanction Fee Claims

Rule 54(d)(2)(E) closes the rule with a carve-out: "Subparagraphs (A)-(D) do not apply to claims for fees and expenses as sanctions for violating these rules or as sanctions under 28 U.S.C. § 1927."¹ Those four subparagraphs hold the whole procedure the earlier sections described: the motion requirement and its damages exception in (A), the 14-day deadline and content requirements in (B), the adversary submissions and findings in (C), and the local-rule and referral tools in (D). A sanction claim escapes that package. Its timing, contents, and procedure come from the rule or statute that authorizes the sanction, and the question that sorted the earlier claims, whether fees are damages or a collateral prize for winning, never arises for it.

The exception follows from what triggers each kind of claim. A prevailing-party claim is triggered by a result: no one can say who is owed fees until the court decides who won, which is why Rule 54(d)(2) starts its clock at the entry of judgment. A sanction claim is triggered by conduct. It answers a particular violation, and the provision that authorizes the award defines which violations qualify and what standards govern the amount. Laying the Rule 54(d)(2) timetable over those conditions would give one claim two procedures, and the timetable was built around a different event.

Expense-shifting for violations is scattered across the Federal Rules. A footnote in Marek v. Chesny collects a long list. Under the numbering that opinion used, it includes Rule 11 (signing pleadings, motions, or other papers in violation of the rule), Rule 16(f) (noncompliance with rules respecting pretrial conferences), Rule 26(g) (certifying discovery requests, responses, or objections in violation of the rule), Rule 37(c) (expenses on failure to admit), and Rule 37(d) (a party's failure to attend its own deposition, serve answers to interrogatories, or respond to a request for inspection).² Treat the list as a sample of a category. On an exam, the reason the movant gives for the award is what counts: expenses sought because a party broke a Federal Rule fall inside the exception. Several of the listed provisions govern conduct in the middle of a case, in discovery or at a pretrial conference, and a clock that starts at judgment fits such claims poorly.

The exception's second category is a sanction under 28 U.S.C. § 1927. That provision is a statute, not a Federal Rule, so the carve-out names it separately from "these rules."³ The exception names only those two sources, so an answer should rest on its words: is the request for expenses as a sanction for violating the Federal Rules, or as a sanction under § 1927?

The question to put to any fee request is what event the movant says justifies it. A win under a statute or clause that rewards the prevailing party sends the claim to Rule 54(d)(2). A violation of a Federal Rule that shifts expenses, or conduct sanctionable under § 1927, sends it outside subparagraphs (A) through (D). A request filed 30 days after judgment shows the difference. If it is a prevailing-party motion and no statute or order extends the period, it is late. If it is a sanction claim, the 14-day deadline does not decide it, and its timing comes from the provision that authorizes the sanction. The common error is to apply the 14-day deadline to every request for lawyers' expenses because every such request looks like a fee motion.