Pattern-of-Lawfare Sanctions: Sixth Circuit Affirms Fees Under § 1927, § 1988, and T.C.A. § 29-20-113 for Frivolous Speech-Retaliation/Defamation Suits

I. Introduction

Glenn Whiting v. City of Athens, Tennessee (consolidating Nos. 24-5918/5919 and 25-5424) arises from a cascade of lawsuits Whiting filed against the City of Athens, Tennessee and various officials after disputes connected to the City’s annual fireworks show. In 2022, the City limited attendance to employees and their families; Whiting attended to protest and recorded at the event, prompting confrontations and a warning that he could be removed for causing a disturbance.

Whiting then brought multiple actions asserting, among other theories, defamation and First Amendment retaliation. After merits rulings (including a prior appeal dismissed for failure to prosecute and another affirmed dismissal), the district court entered sanctions/attorneys’ fee awards and denied motions to recuse. Whiting and his attorney, Van Irion, appealed the recusal denials and sanctions orders.

The Sixth Circuit’s published opinion is significant less for changing substantive First Amendment doctrine than for its concrete application of sanctions standards to a pattern of repetitious litigation, emphasizing that courts may evaluate frivolousness and fee-shifting in context, and affirming layered fee authority under 28 U.S.C. § 1927, 42 U.S.C. § 1988, and Tenn. Code Ann. § 29-20-113.

II. Summary of the Opinion

  • Scope limits and preclusion: The court refused to revisit merits rulings already covered by a prior appeal dismissed for failure to prosecute, holding such dismissals have preclusive effect under Bragg v. Flint Bd. of Educ.
  • Jurisdictional limitation: In No. 24-5919, the court held it lacked jurisdiction to review the underlying dismissal because the dismissal order was not designated in the notice of appeal, applying Isert v. Ford Motor Co.
  • Recusal: The court affirmed denials of recusal motions, treating prior resolution in Whiting v. City of Athens, 23-6082, 2024 WL 3537651 (“Whiting I”) as controlling for identical motions, relying on the “like cases should generally be treated alike” principle from Epic Sys. Corp. v. Lewis.
  • Sanctions/fees affirmed: The court affirmed attorneys’ fees awards under:
    • 28 U.S.C. § 1927 (against counsel) for pursuing frivolous defamation and First Amendment retaliation theories;
    • 42 U.S.C. § 1988 (prevailing defendants) for frivolous federal civil-rights claims, with appropriate handling of fee allocation under Fox v. Vice;
    • T.C.A. § 29-20-113 (government employees sued individually), applying it broadly consistent with Aylor v. Carr.

III. Analysis

A. Precedents Cited

1. Appellate scope, preclusion, and jurisdiction

  • Bragg v. Flint Bd. of Educ. (570 F.3d 775): The court used Bragg to hold that a prior appeal’s dismissal for failure to prosecute carries preclusive effect, blocking relitigation of the underlying merits and interlocutory rulings in No. 25-5424.
  • Daunt v. Benson (999 F.3d 299): Cited for the proposition that the court will not reconsider issues previously decided—reinforcing finality as to merits affirmed in Whiting I.
  • Isert v. Ford Motor Co. (461 F.3d 756): Controlled the holding that failure to list an order in the notice of appeal deprives the appellate court of jurisdiction to review that order.
  • United States v. Schrank (975 F.3d 534): Noted to explain that, even if jurisdiction over recusal were questionable, the court may consider recusal/reassignment issues sua sponte.

2. Recusal and standard of review

  • Ullmo ex rel. Ullmo v. Gilmour Acad. and First Bank of Marietta v. Hartford Underwriters Ins. Co.: Anchored the abuse-of-discretion review for recusal and sanctions.
  • Cole v. City of Memphis (quoting In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig.): Provided the Sixth Circuit’s general abuse-of-discretion definition.
  • Epic Sys. Corp. v. Lewis: Supplied the “treat like cases alike” rationale to adhere to Whiting I on identical recusal motions.

3. Sanctions doctrine (federal)

  • Cooter & Gell v. Hartmarx Corp.: Used to justify de novo review of legal predicates for “frivolousness” because sanctions based on an erroneous legal view are per se an abuse of discretion.
  • Bojicic v. DeWine, Hall v. Liberty Life Assur. Co. of Bos., King v. Whitmer, Salkil v. Mount Sterling Twp. Police Dep't, Larry E. Parrish P.C. v. Bennett: Established the Sixth Circuit’s § 1927 framework (objective unreasonableness; frivolous claims; tactics obstructing litigation; failure to meet bar obligations).
  • Stalley ex rel. United States v. Mountain States Health All. and Stalley v. Methodist Healthcare: Employed to emphasize that losing is not enough; the claim must be frivolous and sometimes knowingly meritless.
  • BDT Prods., Inc. v. Lexmark Int'l, Inc.: Cited for the idea that certain sanction powers (e.g., inherent power) require bad faith—then contrasted with § 1927’s objective standard.
  • Trump v. Clinton (district court and Eleventh Circuit affirmance): Used persuasively (not as binding precedent) to validate evaluating sanctions in the broader context of “harassing litigation” and “pattern of misusing the courts.”

4. State-law defamation privileges (Tennessee)

  • Brown v. Christian Bros. Univ., Stones River Motors, Inc. v. Mid-S. Pub. Co., Burns v. State: Provided Tennessee rules that truth, opinion, and privilege are defenses to defamation.
  • Unarco Material Handling, Inc. v. Liberato and Simpson Strong-Tie Co. v. Stewart, Estes & Donnell: Cited for Tennessee’s broad litigation privilege protecting statements related to legal proceedings.
  • Issa v. Benson: Crucial to the court’s view that both legislative privilege and litigation privilege would bar Whiting’s defamation theory about statements made by a city official in response to threatened/ongoing litigation.
  • Innovation Ventures, LLC v. Custom Nutrition Lab'ys, LLC: Used for the principle that federal courts applying state law should follow state intermediate appellate decisions absent strong reasons to think the state supreme court would disagree—making Issa highly predictive.

5. First Amendment retaliation standards and immunities

  • Thaddeus-X v. Blatter and Holzemer v. City of Memphis: Supplied the core elements and the “intensely context-driven” nature of retaliation analysis.
  • Nicholson v. City of Westlake and Wheeler v. Dayton Police Dep't: Recognized the First Amendment right to file lawsuits (petition clause activity).
  • United States v. Miller and Wolfe v. George (and Smith v. Campbell by analogy): Supported the limitation that frivolous petitioning is not protected in the same way.
  • Maben v. Thelen (quoting Spies v. Voinovich): Prevented the “everything thereafter is retaliatory” theory and emphasized ordinary-firmness deterrence.
  • Hill v. Lappin (quoting Bell v. Johnson) and Wurzelbacher v. Jones-Kelley: Guided “ordinary firmness,” de minimis harms, and the relevance of whether the plaintiff was actually chilled.
  • Kubala v. Smith and Mezibov v. Allen: Supported the proposition that public disagreement, criticism, or responsive public speech by officials is generally not actionable retaliation (especially for individuals who place themselves in public controversy).
  • Fritz v. Charter Twp. of Comstock and Dean v. Byerley: Provided comparative benchmarks for what can qualify as sufficiently serious adverse action (e.g., threats to livelihood).
  • Nieves v. Bartlett (citing Hartman v. Moore): Reinforced causation requirements—no liability unless the action would not have occurred absent retaliatory motive.
  • Kent v. Ohio House of Representatives Democratic Caucus, Bogan v. Scott-Harris (quoting Tenney v. Brandhove): Underpinned legislative immunity for local/regional legislators and its breadth even in alleged speech-chilling scenarios.
  • Houston Cmty. Coll. Sys. v. Wilson: Used to frame the principle that the First Amendment protects robust counterspeech by government actors; it is not a tool to silence them.

6. Fee-shifting and allocation

  • Fox v. Vice and Christiansburg Garment Co. v. EEOC: Provided the governing § 1988 standard for awarding fees to prevailing defendants only when claims are frivolous, unreasonable, or without foundation, and for limiting fees to costs caused by frivolous claims.
  • Lackey v. Stinnie: Cited for the definition of “prevailing party,” applied here because defendants obtained final favorable dispositions.
  • Bowman v. City of Olmsted Falls: Supported fee awards where plaintiffs knew claims were barred in part.

7. Tennessee’s mandatory employee-fee statute

  • Aylor v. Carr: Central to the court’s broad reading of “successful defense” under T.C.A. § 29-20-113, making fee awards available upon prevailing, without narrow limitations.

B. Legal Reasoning

1. Recusal: identical motions, identical outcome

The court treated the recusal issue as effectively settled by Whiting I because the later motions and orders were “identical.” Invoking Epic Sys. Corp. v. Lewis, it emphasized adjudicative consistency: absent a meaningful difference in facts or law, the same recusal arguments should not be relitigated across companion cases.

2. The sanctions centerpiece: objective frivolousness within a wider pattern

The opinion’s most consequential move is methodological: it expressly situates the sanctions in a “continued course of harassing litigation,” borrowing the “pattern” framing from Trump v. Clinton. While the court acknowledged that isolated missteps may not warrant sanctions, it affirmed the district court’s authority to assess cumulative conduct—especially where claims repeatedly collide with clear immunities/privileges and where litigation functions as “lawfare” rather than injury-redress.

3. § 1927: frivolous claims and unreasonable lawyering choices

Applying Bojicic v. DeWine, King v. Whitmer, and related precedents, the court stressed that § 1927 is an objective standard: counsel may be sanctioned when they “know or reasonably should know” a claim is frivolous or when their conduct falls short of professional obligations.

  • Defamation (No. 24-5919): The claim was frivolous because the challenged statements were largely opinion and, more decisively, were barred by Tennessee’s litigation privilege (Simpson Strong-Tie Co. v. Stewart, Estes & Donnell; Unarco Material Handling, Inc. v. Liberato) and legislative privilege (Issa v. Benson). The court highlighted counsel’s failure to perform even cursory research that would have surfaced Issa, and noted counsel’s own concession language indicating awareness of fatal defenses.
  • First Amendment retaliation (Nos. 25-5424, 24-5918, 24-5919): Using Thaddeus-X v. Blatter and “ordinary firmness” cases, the court found a consistent failure on (a) adverse action and (b) causation/motive:
    • In the fireworks-show confrontation claim (No. 25-5424), mere requests to stop filming and concerns about children’s recordings did not amount to adverse action comparable to threats like those in Dean v. Byerley, and Whiting lacked evidence of retaliatory motive under Nieves v. Bartlett.
    • In the “fireworks cancelled due to lawsuit” media statement claim (No. 24-5918), answering media inquiries was treated as insufficiently adverse and closer to protected counterspeech under Kubala v. Smith; Whiting’s own relentless filing history undermined any “chilling” narrative under Wurzelbacher v. Jones-Kelley.
    • In the “blaming Whiting for settlement failure” claim (No. 24-5919), the court deemed the statements responsive speech on matters of public concern and, independently, barred by legislative immunity under Bogan v. Scott-Harris and Tenney v. Brandhove.

The court also endorsed sanctions-related criticism of tactical choices: suing numerous city employees without identifying who was involved (instead of using John Doe pleading and discovery), and bringing allegations contradicted by video evidence in the plaintiff’s possession—both viewed as objectively unreasonable pre-filing diligence.

4. § 1988: prevailing defendants and allocation discipline

Under Christiansburg Garment Co. v. EEOC and Fox v. Vice, a defendant can recover fees only for frivolous civil-rights claims. The Sixth Circuit found the defendants were “prevailing” under Lackey v. Stinnie, and agreed the federal claims were frivolous. Importantly, it upheld the district court’s approach to separating/discounting fees attributable to state-law claims:

  • In No. 25-5424, the court approved a percentage reduction (60%) to account for overlap.
  • In Nos. 24-5918 and 24-5919, it accepted that much of the work would have been required even absent state claims (a common Fox allocation approach when defenses are intertwined).

5. T.C.A. § 29-20-113: mandatory fee shifting for individual-capacity suits

The court affirmed awards under Tennessee’s statute requiring fees and costs for governmental employees sued individually for acts under color of law when they prevail. Relying on Aylor v. Carr, it read “successful defense” broadly: obtaining a final merits disposition suffices. The panel explicitly declined to opine on constitutionality or preemption, cabining the decision to straightforward statutory application.

C. Impact

  • Pattern-sensitive sanctions in repeat municipal litigation: The opinion signals that, where a plaintiff repeatedly sues a municipality and its officials, courts may legitimately weigh the broader litigation campaign when deciding whether fees are an appropriate deterrent—particularly when claims repeatedly ignore clear privileges and immunities.
  • Immunity/privilege as a frivolousness accelerant: Echoing King v. Whitmer, the court reinforces that claims colliding with obvious absolute immunities/privileges are strong candidates for a frivolousness finding and fee shifting.
  • Practical pleading/diligence expectations: The decision implicitly raises the bar for pre-filing investigation where key evidence (e.g., recordings) is in the plaintiff’s possession and for defendant identification (use of John Doe defendants rather than “sue everyone”).
  • State employee-fee statute in federal court: The application of T.C.A. § 29-20-113 in a federal forum—without narrowing constructions—will likely encourage governmental employees in Tennessee to invoke it when sued individually in federal civil-rights cases that also plead state theories.

IV. Complex Concepts Simplified

  • Recusal: A judge must step aside if impartiality can reasonably be questioned. Here, the court found the same recusal arguments had already been rejected and the later motions were identical.
  • Preclusive effect (from dismissal for failure to prosecute): If an appeal is dismissed because the appellant fails to pursue it properly, that dismissal can block later attempts to re-raise the same issues.
  • 28 U.S.C. § 1927: A statute that can make lawyers pay excess fees if they unreasonably and vexatiously multiply proceedings. It is largely objective—courts ask what a reasonable attorney should have known/done.
  • 42 U.S.C. § 1988: Allows prevailing parties in civil-rights litigation to recover attorney’s fees. Defendants get fees only when the plaintiff’s claims were frivolous.
  • Litigation privilege vs. legislative privilege/immunity:
    • Litigation privilege (state defamation context) protects statements related to legal proceedings.
    • Legislative privilege (state defamation context) and legislative immunity (federal § 1983 context) protect legislators for acts within legitimate legislative activity.
  • First Amendment retaliation “ordinary firmness” test: Not every unpleasant interaction is actionable; the challenged act must be serious enough that it would deter an ordinary person from continuing to speak or petition.
  • Res ipsa loquitur: A negligence doctrine allowing an inference of negligence from an accident that ordinarily does not occur without negligence; the court viewed it as inapposite to proving a retaliatory instruction or motive.
  • John Doe defendants: A procedural tool allowing suit against unknown defendants temporarily, then identification through discovery—contrasted with naming large numbers of uninvolved individuals.

V. Conclusion

The Sixth Circuit affirmed the denial of recusal and upheld sanctions/attorney-fee awards against Whiting and (especially) his counsel by treating frivolous defamation and First Amendment retaliation claims not as isolated misjudgments but as components of a larger, vexatious litigation pattern. The decision underscores three durable lessons: (1) obvious privileges and immunities can render claims frivolous; (2) fee-shifting under § 1988 and § 1927 will be sustained when plaintiffs and lawyers pursue objectively baseless theories; and (3) Tennessee’s T.C.A. § 29-20-113 provides an additional, mandatory fee remedy for governmental employees sued individually, reinforcing deterrence against repetitive, harassment-driven litigation.