Pattern-of-Lawfare Context and Absolute Immunities Support § 1927 / § 1988 Sanctions; Tennessee’s Mandatory Fee-Shifting Applies to Individually Sued Public Employees

I. Introduction

Glenn Whiting v. City of Athens, Tennessee (consolidated with related appeals) arose from a series of disputes between Glenn Whiting and City of Athens officials following an annual fireworks event and subsequent public controversy. After Whiting protested the City’s COVID-era attendance limits and recorded at the event, he filed multiple lawsuits asserting defamation, First Amendment retaliation, and related tort theories against the City and various officials.

The Sixth Circuit’s March 13, 2026 opinion addresses two procedural and remedial flashpoints that often accompany serial public-law litigation: (1) whether the district judge and magistrate judge should have been recused, and (2) whether the district court properly awarded sanctions and attorney’s fees under 28 U.S.C. § 1927, 42 U.S.C. § 1988, and Tenn. Code Ann. § 29-20-113. A key backdrop is Whiting’s repeated suits against the City (the City represented he sued fourteen times in five years), which the panel treated as relevant context for assessing vexatiousness and frivolity.

II. Summary of the Opinion

The Sixth Circuit affirmed across the board. It held:

  • Prior appellate dismissal for failure to prosecute carried preclusive effect, barring re-litigation of underlying merits rulings in one case (Bragg v. Flint Bd. of Educ.).
  • Whiting’s failure to designate the dismissal order in one notice of appeal created a jurisdictional defect preventing merits review (Isert v. Ford Motor Co.).
  • Recusal denials were affirmed—where motions and rulings were identical to those already affirmed in Whiting v. City of Athens, 23-6082, 2024 WL 3537651 (“Whiting I”), the court applied the “like cases alike” principle (Epic Sys. Corp. v. Lewis).
  • Sanctions/fees were affirmed under:
    • § 1927 (against counsel) for pursuing objectively frivolous defamation and First Amendment retaliation theories;
    • § 1988 (prevailing defendants) because the civil-rights claims were “frivolous, unreasonable, or without foundation” (Fox v. Vice; Christiansburg Garment Co. v. EEOC); and
    • T.C.A. § 29-20-113 as a mandatory fee-shifting rule for government employees sued individually for acts under color of law, once they “successfully defend” (Aylor v. Carr).

III. Analysis

A. Precedents Cited

1. Appellate preclusion, waiver/forfeiture, and jurisdiction

  • Bragg v. Flint Bd. of Educ.: the panel invoked Bragg for the proposition that dismissal of an appeal for failure to prosecute can have preclusive effect, preventing a later attempt to revive review of the same district-court rulings. This framed the court’s refusal to revisit underlying summary-judgment and discovery issues in No. 25-5424.
  • Daunt v. Benson: once the court affirmed dismissal in Whiting I, it would not “reconsider” that merits decision in a later appeal involving the same posture.
  • Isert v. Ford Motor Co.: a notice of appeal that fails to identify an order deprives the court of jurisdiction to review that order—used to bar merits review of a dismissal order in No. 24-5919.
  • White Oak Prop. Dev., LLC v. Washington Township: invoked by appellees for the briefing principle that failing to challenge independent bases for affirmance can require affirmance, though the panel found Whiting’s preserved arguments could still support partial reversal if meritorious.
  • United States v. Clariot (quoting Blackmon- Malloy v. U.S. Capitol Police Bd.): “no forfeiture” where the district court addressed the merits despite an arguably untimely response.
  • United States v. Schrank: acknowledged the appellate court’s ability to consider recusal issues sua sponte in appropriate circumstances.

2. Standards of review for recusal and sanctions; legal-error as abuse of discretion

  • Ullmo ex rel. Ullmo v. Gilmour Acad. and First Bank of Marietta v. Hartford Underwriters Ins. Co.: recusal and sanctions orders are reviewed for abuse of discretion.
  • Cole v. City of Memphis (quoting In re Whirlpool Corp. Front- Loading Washer Prods. Liab. Litig.): articulated the abuse-of-discretion taxonomy (clearly erroneous facts, wrong standard, misapplication, clear error of judgment).
  • Cooter & Gell v. Hartmarx Corp.: central to the court’s framing that sanctions resting on an erroneous view of law are necessarily an abuse of discretion, supporting de novo review of legal premises underlying “frivolousness.”
  • Brand v. Motley: cited by analogy for de novo review of frivolousness determinations when grounded in legal interpretation.

3. “Like cases alike” and law-of-the-case style restraint

  • Epic Sys. Corp. v. Lewis: supplied the maxim that “like cases should generally be treated alike,” used to affirm identical recusal denials previously affirmed in Whiting I.

4. Pattern-of-litigation context and deterrence rationale

  • Trump v. Clinton, 653 F. Supp. 3d 1198 (S.D. Fla. 2023) (Trump I), aff’d Trump v. Clinton, 161 F.4th 671 (11th Cir. 2025) (Trump II): the Sixth Circuit used Trump I/II as persuasive authority supporting the legitimacy of viewing sanctions through the lens of a broader “pattern of misusing the courts.”
  • BDT Prods., Inc. v. Lexmark Int'l, Inc.: invoked to note that certain sanction powers (e.g., inherent power) may require bad faith, but the panel distinguished § 1927’s objective approach while still emphasizing that “collectively” vexatious conduct matters.

5. § 1927: objective unreasonableness and what makes a claim “frivolous”

  • Bojicic v. DeWine (quoting Hall v. Liberty Life Assur. Co. of Bos.): provided the § 1927 framework—sanctions where counsel knows/should know claims are frivolous or tactics needlessly obstruct, under an objective standard.
  • King v. Whitmer (quoting Salkil v. Mount Sterling Twp. Police Dep't): supported sanctions where conduct falls short of obligations owed to the court; also used for the proposition that suits against defendants protected by absolute immunity can be frivolous “as a matter of law.”
  • Larry E. Parrish P.C. v. Bennett: reinforced the objective standard.
  • Stalley ex rel. United States v. Mountain States Health All. and Stalley v. Methodist Healthcare: emphasized that losing is insufficient; frivolity requires more (obvious lack of merit, disregard of authority, or knowledge of meritlessness).

6. Tennessee defamation law and privileges

  • Brown v. Christian Bros. Univ., Stones River Motors, Inc. v. Mid-S. Pub. Co., and Burns v. State: true statements, opinions, and privileged statements are not actionable defamation under Tennessee law.
  • Unarco Material Handling, Inc. v. Liberato and Simpson Strong-Tie Co. v. Stewart, Estes & Donnell: articulated Tennessee’s broad litigation privilege covering statements related to legal proceedings, inside or outside court, pending or impending.
  • Issa v. Benson: critical authority holding both litigation privilege and legislative privilege barred a defamation claim against a city councilman for statements responding to threatened litigation—used as the “cursory research would have found” case demonstrating frivolity here.
  • Innovation Ventures, LLC v. Custom Nutrition Lab'ys, LLC: used to reason that federal courts would follow Tennessee courts’ approach to such claims, undermining any plausible basis to press them.

7. First Amendment retaliation doctrine, “ordinary firmness,” motive, and immunities

  • Thaddeus-X v. Blatter: supplied the Sixth Circuit’s three-part retaliation framework (protected conduct, adverse action that would deter a person of ordinary firmness, and causation).
  • Holzemer v. City of Memphis: emphasized the context-driven nature of the inquiry.
  • Nicholson v. City of Westlake and Wheeler v. Dayton Police Dep't: recognized that filing lawsuits is generally protected conduct.
  • United States v. Miller, Wolfe v. George, and Smith v. Campbell: supported the limiting principle that frivolous petitioning activity is not protected in the same way, analogizing to improper grievance filing.
  • Maben v. Thelen (quoting Spies v. Voinovich): rejected the notion that a litigant can immunize himself by suing and calling everything thereafter “retaliation.”
  • Hill v. Lappin (quoting Bell v. Johnson), Wurzelbacher v. Jones-Kelley, and Maben v. Thelen: elaborated the “ordinary firmness” standard and de minimis adverse actions; also noted that lack of actual deterrence is relevant even if not dispositive.
  • Kubala v. Smith and Mezibov v. Allen: supported the proposition that public disagreement, responsive speech, or criticism (especially of those who put themselves into public controversy) is not actionable retaliation.
  • Fritz v. Charter Twp. of Comstock: recognized that people in certain roles may be expected to endure more.
  • Nieves v. Bartlett (citing Hartman v. Moore): emphasized but-for causation: the adverse action would not have occurred absent retaliatory motive.
  • Kent v. Ohio House of Representatives Democratic Caucus, Bogan v. Scott-Harris (quoting Tenney v. Brandhove), and Tenney v. Brandhove: underscored that federal legislative immunity bars § 1983 claims for acts within legitimate legislative activity—even when plaintiff alleges the intent was to silence or intimidate.

8. Miscellaneous authorities supporting sanctions administration

  • Jolivette v. Husted and Buetenmiller v. Macomb Cnty. Jail: supported waiver/forfeiture rules for arguments not raised or not adequately briefed.
  • CFE Racing Prods., Inc. v. BMF Wheels, Inc.: used for harmless-error reasoning (even if one basis fell, another supports the award).
  • Lackey v. Stinnie: used to define “prevailing party” and to reinforce that defendants who obtain final merits termination may be treated as prevailing.
  • Bowman v. City of Olmsted Falls: cited as similar support for § 1988 fees where a plaintiff knew claims were barred at least in part.
  • Aylor v. Carr: interpreted “successful defense” under T.C.A. § 29-20-113 broadly, supporting mandatory fees once the individually sued public employee prevails.
  • Hayward v. Cleveland Clinic Found.: used to deem an argument waived for lack of supporting authority.

B. Legal Reasoning

1. Recusal: sameness of motions plus prior affirmance

The court treated recusal as essentially settled by Whiting I because the motions and denials were “identical.” Invoking Epic Sys. Corp. v. Lewis, it prioritized adjudicative consistency: absent a meaningful distinguishing fact, the panel declined to revisit the recusal dispute and affirmed.

2. Sanctions: claims were not merely unsuccessful; they were objectively frivolous and pursued in a broader campaign

The opinion’s central move is to connect claim-level deficiencies (privilege, immunity, missing elements) to litigation-level abuse (serial filings, misidentifying defendants, persisting after defects became clear). The court repeatedly stressed that while an isolated misstep might not justify sanctions, “collectively” and in the context of repeated vexatious conduct the fee awards were within discretion—borrowing the “pattern of misusing the courts” framing from Trump v. Clinton (Trump I/II).

3. Defamation in No. 24-5919: privilege/opinion doctrines made the claim untenable

Applying Tennessee law, the court agreed the defamation theory was frivolous because:

  • Many statements were nonactionable opinion (Stones River Motors, Inc. v. Mid-S. Pub. Co.).
  • The litigation privilege covered settlement-related statements connected to legal proceedings (Simpson Strong-Tie Co. v. Stewart, Estes & Donnell; Unarco Material Handling, Inc. v. Liberato).
  • The legislative privilege barred claims for statements made within legislative functions (Issa v. Benson).

The court also highlighted attorney conduct: failure to locate highly analogous Issa v. Benson, and counsel’s own statement effectively conceding immunity—then continuing the litigation rather than withdrawing. That combination supported § 1927 sanctions as objectively unreasonable.

4. First Amendment retaliation: no “adverse action” plus causation failures, and legislative immunity where applicable

Across the retaliation cases, the panel found Whiting could not satisfy core elements from Thaddeus-X v. Blatter:

  • No materially adverse action: Requests to stop filming, public statements responding to Whiting’s accusations, and explaining a fireworks cancellation to the media were not the kind of deterrent action that would chill a person of ordinary firmness under Hill v. Lappin, and were often akin to protected responsive speech under Kubala v. Smith and Mezibov v. Allen.
  • De minimis and “thick skin” context: Because Whiting repeatedly injected himself into public controversy through many lawsuits, the court analogized him to plaintiffs who must tolerate more criticism (Mezibov v. Allen; Fritz v. Charter Twp. of Comstock).
  • Missing retaliatory motive / but-for causation: The court found record support for non-retaliatory motivations (e.g., parents’ concern about filming children) and emphasized the need for evidence of subjective motive and but-for causation (Nieves v. Bartlett; Hartman v. Moore; Hill v. Lappin).
  • Legislative immunity as a categorical bar: Claims targeting mayoral/council speech in a legislative setting were barred by federal legislative immunity (Kent v. Ohio House of Representatives Democratic Caucus; Bogan v. Scott-Harris; Tenney v. Brandhove), making pursuit of those claims particularly sanctionable once the doctrine was apparent.

5. Why multiple fee-shifting routes all held

  • 28 U.S.C. § 1927: Sanctions were directed at counsel and justified on an objective “knew or should have known” standard (Bojicic v. DeWine; Larry E. Parrish P.C. v. Bennett), with the court rejecting arguments that bad faith or a show-cause order was required.
  • 42 U.S.C. § 1988: Defendants were “prevailing” and the civil-rights claims were frivolous (Fox v. Vice; Christiansburg Garment Co. v. EEOC; Lackey v. Stinnie). The court also accepted the district court’s allocation approach to avoid awarding fees for purely state-law work, consistent with Fox v. Vice.
  • T.C.A. § 29-20-113: The statute was treated as mandatory once a government employee sued individually for acts under color of law “successfully defends” (Aylor v. Carr), and the court affirmed fee awards to individually sued officials who obtained final merits termination. The panel expressly declined to address constitutionality or preemption concerns (footnote 5).

C. Impact

  • Sanctions analysis may consider litigation “campaign” context: The opinion reinforces that courts may evaluate frivolity and unreasonableness not only claim-by-claim but also in light of a litigant’s repeated, harassing pattern—making sanctions more likely where conduct forms part of sustained “lawfare,” consistent with the persuasive reasoning in Trump v. Clinton (Trump I/II).
  • Absolute immunities/privileges are “frivolity accelerants”: By treating claims plainly barred by legislative immunity, legislative privilege, or litigation privilege as effectively frivolous once apparent, the decision signals heightened risk for plaintiffs’ counsel who press such claims without a serious limiting theory.
  • Government responsive speech is unlikely to qualify as retaliation: Reliance on Kubala v. Smith, Mezibov v. Allen, and Houston Cmty. Coll. Sys. v. Wilson (cited in the opinion’s reasoning) strengthens the proposition that officials may publicly rebut accusations without thereby committing “adverse action.”
  • Tennessee fee-shifting for individually sued employees has real bite in federal court: The court’s straightforward application of T.C.A. § 29-20-113 (while reserving preemption questions) encourages Tennessee public employees to pursue mandatory fee recovery when sued individually for official acts and they prevail.

IV. Complex Concepts Simplified

  • 28 U.S.C. § 1927 (attorney sanctions): A rule allowing courts to make a lawyer pay the other side’s fees when the lawyer unreasonably multiplies proceedings—measured by what the lawyer objectively should have known, not necessarily subjective bad faith.
  • 42 U.S.C. § 1988 (civil-rights fee shifting): Allows a prevailing defendant to recover fees when the plaintiff’s civil-rights case is frivolous—meant to compensate defendants for the cost of baseless civil-rights allegations.
  • “Ordinary firmness” adverse action: In retaliation law, the defendant’s conduct must be serious enough that it would deter a typical person from exercising the right—minor slights, rebuttals, or criticism often do not qualify.
  • Legislative immunity / privilege: Protects legislators (including local legislators) from liability for actions within legitimate legislative activity. It is designed to prevent courts from policing legislative debate and motives.
  • Litigation privilege: Shields statements connected to litigation or anticipated litigation from defamation liability, to encourage candid communications related to legal disputes.
  • Preclusive effect of dismissal for failure to prosecute: If an appeal is dismissed because the appellant did not follow through, the appellant generally cannot later relitigate the same issues as though the appeal had been properly pursued.

V. Conclusion

The Sixth Circuit’s decision in Glenn Whiting v. City of Athens, Tennessee is a forceful reaffirmation that repetitive, privilege- and immunity-barred lawsuits—especially when pursued as part of a broader campaign against public officials—can justify substantial fee shifting under § 1927, § 1988, and state-law fee mandates like T.C.A. § 29-20-113. The opinion’s practical lesson is clear: courts will not treat serial litigation as insulated “petitioning,” and counsel who press objectively untenable theories in the face of clear privileges and immunities risk personal monetary consequences.