Rule 38 “Frivolous-as-Argued” Appeals: Sanctions for Fake Citations, Record Misrepresentation, and Defiance of Show-Cause Orders Under Appellate Inherent Authority

I. Introduction

This recommended-for-publication Sixth Circuit opinion is not principally about the underlying fireworks-incident litigation; it is about the integrity of appellate advocacy. After consolidating three related appeals arising from lawsuits filed by Glenn Whiting against the City of Athens, Tennessee and others, the court обнаружed systemic defects in Whiting’s appellate briefs—over two dozen “fake citations” and clear misrepresentations of fact and law—along with a material misstatement about the procedural basis for district-court sanctions in No. 25-5424.

The court ordered Whiting’s lawyers, Van Irion and Russ Egli, to show cause and to provide basic verification materials (including Westlaw/Lexis copies of cited authorities and an explanation of authorship, ghostwriting, generative AI use, and cite-checking). Counsel refused to comply, instead attacking the legitimacy of the order as “void,” alleging harassment and “illegal ex-parte communications,” and contending that the clerk could not sign the order.

The central issues in this sanctions opinion are therefore: (1) the doctrinal basis for sanctioning appellate misconduct involving fabricated authority and record distortion; (2) whether Rule 38 reaches “frivolous-as-argued” appeals; (3) when inherent authority supplements Rule 38; and (4) what sanctions are warranted to deter and remediate the abuse.

II. Summary of the Opinion

III. Analysis

A. Precedents Cited

The opinion is unusually precedent-dense because it (i) clarifies the doctrinal reach of Rule 38, (ii) justifies inherent-authority supplementation, and (iii) situates “fake citation” misconduct—often associated with generative AI “hallucinations”—within existing sanctions frameworks.

1) Rule 38 and the “frivolous-as-argued” framework

• Waldman v. Stone, 854 F.3d 853 (6th Cir. 2017) (order) (quoting Hill v. Norfolk & W. Ry. Co., 814 F.2d 1192 (7th Cir. 1987)) supports sanctioning an appeal where briefing is “devoted to frivolous argumentation,” even if some colorable points exist. The Sixth Circuit uses this to justify treating the consolidated appeals as effectively frivolous given pervasive briefing defects.
• State Indus., Inc. v. Mor-Flo Indus., Inc., 948 F.2d 1573 (Fed. Cir. 1991), Romala Corp. v. United States, 927 F.2d 1219 (Fed. Cir. 1991), and Finch v. Hughes Aircraft Co., 926 F.2d 1574 (Fed. Cir. 1991) provide the terminology and taxonomy distinguishing “frivolous as filed” from “frivolous as argued,” which the Sixth Circuit adopts and defends against a narrower reading of Rule 38.
• Anderson v. Steers, Sullivan, McNamar & Rogers, 998 F.2d 495 (7th Cir. 1993) supplies the key interpretive move: frivolousness is assessed “in relation to the arguments actually made,” aligning Rule 38 with the adversarial model.
• Bridgeport Music, Inc. v. Smith, 714 F.3d 932 (6th Cir. 2013) illustrates a “frivolous-as-filed” scenario (e.g., a waiver bar), reinforcing that the doctrine reaches different misconduct types.
• Meyer v. U.S. Bank Nat. Ass'n, 792 F.3d 923 (8th Cir. 2015) is used illustratively: an appellant’s misunderstanding of the procedural posture (Rule 12(b)(6) vs summary judgment) can render arguments frivolous.
• Larry E. Parrish P.C. v. Bennett, 989 F.3d 452 (6th Cir. 2021) (quoting Barney v. Holzer Clinic, Ltd., 110 F.3d 1207 (6th Cir. 1997)) supports the proposition that obviously meritless appeals pursued for improper purposes warrant Rule 38 sanctions.
• B & H Med., L.L.C. v. ABP Admin., Inc., 526 F.3d 257 (6th Cir. 2008) (quoting Wilton Corp. v. Ashland Castings Corp., 188 F.3d 670 (6th Cir. 1999)) supplies the “reasonable expectation of altering the judgment” standard for assessing frivolousness.
• Nix v. Major League Baseball, 62 F.4th 920 (5th Cir. 2023) is cited for the point that frivolousness need not be intentional for Rule 38 to apply—important where “hallucinated” citations may be blamed on inadvertence.
• Walker v. Health Int'l Corp., 845 F.3d 1148 (Fed. Cir. 2017) is invoked for the proposition that distorting the record or misrepresenting law can make an appeal frivolous as argued.
• Mitchell v. Bank of New York Mellon, 835 F. App'x 318 (10th Cir. 2020) supports sanctionability where arguments are advanced through misrepresentation even if the case’s face-value posture might appear arguable.

2) Party presentation and the court’s refusal to rescue defective advocacy

• United States v. Sineneng-Smith, 590 U.S. 371 (2020) and Greenlaw v. United States, 554 U.S. 237 (2008) are used to explain why Rule 38 analysis must focus on the arguments advanced: appellate courts are “passive instruments” relying on parties to frame issues.
• Murthy v. Missouri, 603 U.S. 43 (2024) (quoting Gross v. Cicero, 619 F.3d 697 (7th Cir. 2010)) supplies the memorable admonition that judges are not “hunting for truffles” in the record—underscoring why fabricated or unreliable citations are especially corrosive on appeal.

3) Fake citations, generative AI “hallucinations,” and sanctions

• Mata v. Avianca, Inc., 678 F. Supp. 3d 443 (S.D.N.Y. 2023) is the opinion’s centerpiece for the proposition that a fake opinion is not law and citing it is “an abuse of the adversary system.” The Sixth Circuit uses Mata to frame fabricated citations as a paradigmatic sanctionable wrong, regardless of whether some legitimate authority exists elsewhere.
• United States v. McGee, 806 F. Supp. 3d 1264 (S.D. Ala. 2025) is quoted for rejecting any attempt to minimize the harm of hallucinated cases by pointing to other legitimate authorities (“absolutely not; period; end of story; all stop”).
• Noland v. Land of the Free, L.P., 336 Cal. Rptr. 3d 897 (Ct. App. 2025) (quoting In re Richburg, 671 B.R. 918 (Bankr. D.S.C. 2025)) is used to explain why hallucinations may be more likely when no authority supports the requested proposition—while the Sixth Circuit declines to treat fake citations alone as proving “frivolous-as-filed” in this case.
• ByoPlanet Int'l, LLC v. Johansson, 792 F. Supp. 3d 1341 (S.D. Fla. 2025) (quoting Mata) is cited for reputational harms: fake opinions falsely attribute statements to judges and fictional conduct to parties.
• Versant Funding LLC v. Teras Breakbulk Ocean Navigation Enters., LLC, 2025 WL 1440351 (S.D. Fla. May 20, 2025) and Fletcher v. Experian Sols., Inc., 2026 WL 456842 (5th Cir. Feb. 18, 2026) are cited to show courts using inherent authority (and appellate courts sanctioning) misuse of AI that affects adjudication.
• Garner v. Kadince, Inc., 571 P.3d 812 (Utah Ct. App. 2025) (per curiam) and Wadsworth v. Walmart Inc., 348 F.R.D. 489 (D. Wyo. 2025) further show the growing cross-jurisdictional consensus that fabricated legal authorities warrant sanctions.
• Coleman v. Comm'r, 791 F.2d 68 (7th Cir. 1986) is used (by analogy to Rule 11) for the duty to present arguments grounded in law/fact or a colorable argument to change law—something fake citations cannot satisfy.

4) Inherent authority and bad faith standards

• Moist v. Belk, 380 F.2d 721 (6th Cir. 1967) and Chambers v. Colonial Pipeline Co., 408 F.2d 678 (6th Cir. 1969) (per curiam) are cited for the appellate court’s power to sanction frivolous appeals.
• In re Smothers, 322 F.3d 438 (6th Cir. 2003) describes inherent powers as “necessary” for courts to function.
• Chambers v. NASCO, Inc., 501 U.S. 32 (1991) provides the modern framework that inherent power exists to manage proceedings and is not displaced by sanction statutes; it also supports the opinion’s move to use inherent authority because Rule 38 is “not up to the task” when additional punitive/administrative sanctions are needed.
• United States v. Hudson, 11 (7 Cranch) U.S. 32 (1812), Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821), Cooke v. United States, 267 U.S. 517 (1925), Ex parte Robinson, 86 U.S. (19 Wall.) 505 (1873), and Link v. Wabash R. Co., 370 U.S. 626 (1962) anchor inherent power in institutional necessity, dignity, and orderly administration.
• Red Carpet Studios Div. of Source Advantage, Ltd. v. Sater, 465 F.3d 642 (6th Cir. 2006) and BDT Prods., Inc. v. Lexmark Int'l, Inc., 602 F.3d 742 (6th Cir. 2010) (quoting Youn v. Track, Inc., 324 F.3d 409 (6th Cir. 2003)) supply the Sixth Circuit’s requirement of bad faith or conduct “tantamount to bad faith.”
• First Bank of Marietta v. Hartford Underwriters Ins. Co., 307 F.3d 501 (6th Cir. 2002) supports finding improper purpose where parties use courts to force results unavailable under law; the panel applies this directly to counsel’s conduct.
• Am. Unites for Kids v. Rousseau, 985 F.3d 1075 (9th Cir. 2021) is cited to emphasize bad faith can arise from litigation conduct, not only from filing a case.
• Shepherd v. ABC, 62 F.3d 1469 (D.C. Cir. 1995) is cited for the menu of inherent-authority sanctions, including fines and fees.

5) Compliance with court orders and consequences of defiance

• Howat v. Kansas, 258 U.S. 181 (1922), In re Chiles, 89 U.S. (22 Wall.) 157 (1874), Maness v. Meyers, 419 U.S. 449 (1975), and Worden v. Searls, 121 U.S. 14 (1887) are cited for the bedrock principle that court orders must be obeyed unless stayed, even if allegedly erroneous.
• The court notes contempt authority in passing with NLRB v. Bannum, Inc., 93 F.4th 973 (6th Cir. 2024) and Int'l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821 (1994), though it ultimately does not add contempt sanctions.

6) Candor to the tribunal and institutional trust

• Azar v. Garza, 584 U.S. 726 (2018) (per curiam) is invoked for the proposition that courts must be able to rely on representations; without that, the system fails.
• Pemberton v. Bell's Brewery, Inc., 150 F.4th 751 (6th Cir. 2025) is cited for the expectation that lawyers accurately represent the record.
• Dunlap v. Bd. of Pro. Resp. of Sup. Ct. of Tenn., 595 S.W.3d 593 (Tenn. 2020) and the ABA guidance (Disclosure Obligations of a Lawyer Who Discovers that Her Client Has Violated a Court Order During Litigation, ABA Formal Op. 98-412) are used to frame lack of candor as “prejudicial to the administration of justice” and capable of turning litigation into a “sham.”

7) Ghostwriting and related procedural points

• The opinion defines ghostwriting and cites Duran v. Carris, 238 F.3d 1268 (10th Cir. 2001), In re Mungo, 305 B.R. 762 (Bankr. D.S.C. 2003), and Ellis v. Maine, 448 F.2d 1325 (1st Cir. 1971) to explain why ghostwriting is problematic because it can evade accountability.
• The panel references a related disciplinary/ghostwriting finding against Irion in In re Irion, 2025 WL 2319537 (E.D. Tenn. Aug. 4, 2025).
• On the clerk-signature dispute, the panel points to Whiting v. City of Athens, No. 24-5886, 2025 U.S. App. LEXIS 13507 (6th Cir. June 2, 2025), and notes the Supreme Court’s denials in In re Murphy, 146 S. Ct. 286 (2025) and In re Irion, No. 25-785 (U.S. Mar. 9, 2026).

8) Aggravation factors and proportionality references

• For repeat-misconduct aggravation, the panel cites Nevin v. Bd. of Pro. Resp. of Sup. Ct. of Tenn., 271 S.W.3d 648 (Tenn. 2008) and ABA Standards for Imposing Lawyer Sanctions § 8.2 (2d ed. 2019).
• It notes Egli’s prior discipline: In re Egli, No. M2017-00608-SC-BAR-BP (Tenn. Mar. 30, 2017) (per curiam).
• It discusses fee/cost mechanics and deterrence, citing Sun-Tek Indus. v. Kennedy Sky-Lites, Inc., 865 F.2d 1254 (Fed. Cir. 1989), Pac-Tec, Inc. v. Amerace Corp., 903 F.2d 796 (Fed. Cir. 1990), and the “foisted fees” concept from In re Cent. Ice Cream Co., 841 F.2d 732 (7th Cir. 1988).
• It contrasts appellate and district sanction toolkits, citing King v. Whitmer, 71 F.4th 511 (6th Cir. 2023) for broader district-court Rule 11-style remedies (CLE, referrals), while emphasizing Rule 38’s narrower remedial ceiling.
• It references consolidation and docket management, citing Circle City Broad. I, LLC v. AT&T Servs., Inc., 99 F.4th 378 (7th Cir. 2024) and Wright & Miller’s treatise (16A) for consolidation authority.

B. Legal Reasoning

1) The Sixth Circuit’s doctrinal move: Rule 38 reaches “frivolous as argued”

A notable feature of the opinion is its explicit rejection of any cramped view that Rule 38 covers only “frivolous-as-filed” appeals. The panel reasons that:

• Appellate courts are bound by the party presentation model (United States v. Sineneng-Smith; Greenlaw v. United States), and they do not excavate the record or invent arguments for a party (Murthy v. Missouri).
• Therefore, frivolousness must be assessed by reference to the arguments actually advanced (Anderson v. Steers, Sullivan, McNamar & Rogers).
• Fabricating case law is not merely weak advocacy; it is a categorical misrepresentation of law—an “abuse of the adversary system” (Mata v. Avianca, Inc.).

This framing matters because it treats the mode of advocacy—not just the underlying merits—as independently sanctionable appellate wrongdoing.

2) Why inherent authority was necessary in addition to Rule 38

The panel’s remedial design is driven by a perceived mismatch between the severity of the misconduct and Rule 38’s limited remedy set (fees and costs). Relying on Chambers v. NASCO, Inc., the court holds that inherent authority remains available where rule-based sanctions are “not up to the task.”

Critically, the panel makes the “bad faith” finding required in the Sixth Circuit (BDT Prods., Inc. v. Lexmark Int'l, Inc.; Red Carpet Studios Div. of Source Advantage, Ltd. v. Sater) by reasoning that:

• The appeal was meritless in material part because it depended on fabricated authorities and record misstatements.
• Counsel “knew or should have known” the posture was meritless because any competent attorney must verify that cited cases exist.
• Improper purpose was supported both by the nature of the litigation campaign (as characterized by the panel) and by counsel’s refusal to comply with the show-cause order while accusing the court of conspiracy—conduct the panel treated as compounding the abuse.

3) Material record misrepresentation as a stand-alone basis

Beyond fake citations, the panel identifies a concrete, outcome-relevant record distortion: Whiting’s brief alleged the district court imposed sanctions sua sponte, while the record showed the City moved for § 1927 fees. Because the thrust of Whiting’s argument was lack of notice, correcting that fact collapses the argument. The panel thus treats record misrepresentation not as harmless error but as litigation conduct that warps the legal analysis and warrants Rule 38 sanctions.

4) Rejection of counsel’s procedural objections

• Local Rule 46: the panel distinguishes between disciplinary proceedings and litigation sanctions; Local Rule 46 “does not limit” sanction power.
• Privilege: the show-cause order requested verification and process facts (how cite-checking occurred), not attorney-client communications or work product.
• Ex parte allegations: rejected as unsupported; the opinion recounts procedural background and the “must panel” consolidation basis.
• Clerk signature: rejected based on prior Sixth Circuit orders and Supreme Court mandamus denials; the panel expressly states judges personally reviewed motions and drafted the show-cause order.

C. Impact

1) A publishable appellate rule for fabricated-citation misconduct

Although many “fake citation” cases arise in district courts under Rule 11, this opinion is significant because it operationalizes the doctrine at the appellate level: fabricated authorities and systematic mis-citation are treated as making an appeal “frivolous as argued” under Rule 38, and as qualifying for inherent-authority penalties when Rule 38’s remedies are insufficient.

2) Deterrence architecture: compensatory + punitive + disciplinary referral

The sanctions package is layered:

• Compensation (full appellate fees) to make appellees whole for defending a proceeding rendered unreliable by misconduct.
• Deterrence (double costs) to maximize Rule 38’s express deterrent potential.
• Punishment and institutional reimbursement ($15,000 per attorney to the registry) to reflect the court-centered burden of verifying citations and policing integrity.
• Professional regulation (referral to the chief judge for possible Local Rule 46 proceedings) to address longer-run fitness and bar integrity.

3) Practical consequence for appellate practice in the Sixth Circuit

The opinion signals that Sixth Circuit panels will:

• treat citation verification as a non-delegable duty (“read and verified” logic drawn from Noland v. Land of the Free, L.P.), regardless of whether errors stem from AI tools or human sloppiness;
• respond aggressively when misconduct is repeated, spans multiple cases, or is combined with defiance of court orders;
• consider that fabricated citations injure third parties (judges whose names are falsely invoked; parties accused of fictional conduct), not just the opposing litigant.

IV. Complex Concepts Simplified

• “Frivolous as filed” vs “frivolous as argued”:
  • As filed: no reasonable legal path to reversal exists (e.g., appeal barred by waiver).
  • As argued: even if some arguable issue could exist, the arguments actually presented are frivolous or advanced through misconduct (e.g., fake citations, record distortion).
• Federal Rule of Appellate Procedure 38: allows a court of appeals to award “just damages and single or double costs” when an appeal is frivolous. In practice, “damages” commonly include attorneys’ fees incurred on appeal.
• Inherent authority: powers courts possess to protect the integrity and orderly functioning of judicial proceedings; used to sanction bad-faith litigation conduct when rule-based sanctions are inadequate.
• “Joint and several” liability: each sanctioned lawyer is individually responsible for the full amount, allowing the appellee to collect the entire award from either (or both), with allocation disputes left to the sanctioned parties.
• “Double costs” under 28 U.S.C. § 1920: “costs” are a limited category of litigation expenses specified by statute (not all expenses); “double” means the taxable amount is multiplied by two.
• Show-cause order: a directive requiring a party or lawyer to explain why the court should not impose sanctions; ignoring it can itself justify harsher remedies.
• Ghostwriting (in litigation): preparing filings for someone else who signs them without disclosing the true author—problematic because it can evade accountability and mislead the court about who is responsible for representations.
• Generative AI “hallucinations”: fabricated outputs (including invented cases/quotes). The court’s approach is tool-agnostic: the duty is to verify, not to blame the technology.

V. Conclusion

This Sixth Circuit sanctions opinion establishes a clear, publishable appellate principle: an appeal may be sanctioned as “frivolous as argued” under Rule 38 when counsel’s briefing relies on fabricated legal authorities or distorts the record, and the court may invoke inherent authority to impose additional punitive and integrity-protecting sanctions when Rule 38’s fee-and-cost remedies are insufficient.

The decision’s broader significance lies in its institutional emphasis: appellate adjudication depends on trustworthy citations and accurate record representations. When counsel undermine that premise—especially across multiple cases and in defiance of a show-cause order—the court will respond with compensatory, deterrent, punitive, and disciplinary mechanisms designed to protect both the parties and the judiciary itself.