Rule 38 Sanctions for GenAI-Hallucinated Citations and Misquoted Authority in an Appeal

Introduction

In Amarsingh v. Frontier Airlines, Inc. (10th Cir. Feb. 9, 2026), the Tenth Circuit affirmed the Rule 12(b)(6) dismissal of Kusmin L. Amarsingh’s claims against Frontier Airlines arising from an overbooked flight in which she was not boarded. Amarsingh, a licensed attorney representing herself, alleged (i) breach of contract and the covenant of good faith and fair dealing and (ii) race discrimination under 42 U.S.C. § 1981, asserting she was treated adversely because she “was not or did not appear[] to be African American.”

While the merits involved familiar pleading and § 1981 causation principles, the decision’s principal forward-looking significance lies in the court’s sanctions ruling: the panel imposed sanctions under Federal Rule of Appellate Procedure 38 for “frivolous as argued” briefing where the opening brief contained multiple fabricated case citations and misattributed quotations generated through careless use of a generative artificial intelligence tool (ChatGPT). The court also directed referral to Maryland’s attorney-disciplinary authority.

Summary of the Opinion

  1. Merits—§ 1981: The court affirmed dismissal because the complaint did not plausibly allege that race was the but-for cause of the alleged contractual interference, as required by Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media. The pleaded facts suggested race-neutral explanations (including efforts to keep parties together) and, critically, alleged that an African American passenger was also bumped while non–African American passengers (an Asian woman and child) boarded.
  2. Merits—contract claim: The panel held the contract claim issues were waived on appeal because Amarsingh did not challenge the district court’s decision declining supplemental jurisdiction after dismissal of the only federal claim (citing waiver principles from Sawyers v. Norton).
  3. Sanctions: After a show-cause process, Amarsingh admitted she used ChatGPT and failed to verify whether cited authorities existed or whether quotations were accurate. The court deemed the appeal “in part, frivolous as argued” and imposed Rule 38 sanctions: (a) $1,000 payable to Frontier within 30 days with a sworn certification of payment, and (b) referral of the order to the Maryland attorney-disciplinary authority. The court denied leave to file a corrected opening brief.

Analysis

Precedents Cited

1) Pleading posture and plausibility

  • Mobley v. McCormick: Cited for the Rule 12(b)(6) proposition that a motion to dismiss tests the sufficiency of allegations within the complaint’s four corners, taken as true.
  • Thomas v. Kaven and Ashcroft v. Iqbal: Used to frame de novo appellate review and the requirement that the complaint plead sufficient factual matter to state a plausible claim.

2) Treatment of self-represented attorneys

  • Garrett v. Selby, Connor, Maddux, & Janer: Recognizes liberal construction for pro se filings generally.
  • Mann v. Boatright: Supports denying nonlawyer-style pro se leeway when the self-represented party is an attorney; the panel relied on this to hold Amarsingh to professional standards.

3) § 1981 elements and causation

  • Reynolds v. Sch. Dist. No. 1: Quoted for § 1981’s coverage of contract “making” and “enjoyment of all benefits” and for the requirement of intentional discrimination.
  • Khalik v. United Air Lines: Emphasizes that while a complaint need not establish a prima facie case, the elements inform plausibility.
  • Hampton v. Dillard Dep’t Stores, Inc.: Sets out the prima facie elements (protected class; intent; interference with protected activity).
  • Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media: Central authority requiring § 1981 plaintiffs to plead and ultimately prove but-for race causation for the loss of a legally protected right.
  • McDonnell Douglas Corp. v. Green: Invoked by Amarsingh to argue inference-drawing, but the court rejected her attempt to convert speculative inferences (e.g., “confirming” race) into plausible pleaded facts.

4) Appellate waiver

  • Sawyers v. Norton: Cited for the rule that issues not raised in the opening brief are waived; the panel applied this to the unchallenged supplemental-jurisdiction dismissal of the contract claim.

5) GenAI “hallucinations” and the ethics of citation accuracy

  • Wadsworth v. Walmart, Inc. and Jones v. Kankakee Cnty. Sheriff’s Dep’t: Cited to define “AI hallucination” as fake or fictional outputs from large language models.
  • Mata v. Avianca, Inc.: Cited for the broader judicial concern that fabricated authorities waste resources and undermine the legal system.
  • Mid Cent. Operating Eng’rs Health & Welfare Fund v. HoosierVac LLC: Quoted for the maxim that AI use must be paired with “actual intelligence,” i.e., lawyer verification and judgment.
  • Park v. Kim: Used to characterize reliance on fake opinions as an abuse of the adversary system and to underscore the baseline duty to read and confirm authorities.

6) Rule 38 standards and “frivolous as argued” framing

  • Cooter & Gell v. Hartmarx Corp.: Cited for the proposition that appellate conduct is governed by Federal Rule of Appellate Procedure 38.
  • Braley v. Campbell: Defines that “just damages” can include attorney’s fees and articulates an objective test—intentional or reckless disregard of duties to the court—rather than subjective bad faith.
  • Finch v. Hughes Aircraft Co.: Supplies the taxonomy distinguishing “frivolous as argued” (bad contentions/briefing) from “frivolous as filed” (no arguable basis for the appeal itself). The panel expressly found this appeal “in part” frivolous as argued, but “not frivolous as filed.”

7) Sanction comparators and disciplinary referral

  • United States v. Hayes: Cited as a collection of sanction approaches courts have taken for fabricated citations and related misconduct.
  • Benjamin v. Costco Wholesale Corp. and Jackson v. Auto-Owners Ins. Co.: Cited as examples supporting a $1,000 monetary sanction tailored to GenAI-related citation failures, sometimes with fees/costs components.
  • Johnson v. Dunn: Cited for the view that referral to licensing authorities may be a “bare minimum” when a lawyer “make[s] things up.”

Legal Reasoning

1) The merits: why the § 1981 claim failed at the pleading stage

The panel applied modern § 1981 pleading requirements, with Comcast as the controlling causation rule. Even accepting all pleaded facts as true, the court concluded the complaint did not support a plausible inference that race was the but-for reason Amarsingh was denied boarding. Two pleaded features drove the result:

  • Comparator facts undercut the race-only theory: The complaint alleged that a non–African American party (an Asian woman and child) boarded while a single African American man was not boarded. That pleading fact made it difficult to plausibly claim the dispositive criterion was “not African American.”
  • Race-neutral selection inferences: The allegations permitted a reasonable inference that gate agents sought to keep groups together, a “legitimate permissible” criterion. Even offensive behavior (mocking an accent directed at another passenger) did not bridge the gap to but-for causation as to Amarsingh’s own non-boarding decision.

The court also rejected attempts to turn ambiguous conduct into definitive discriminatory purpose (e.g., speculation that writing on a passenger log was to “confirm” race). At the 12(b)(6) stage, plausibility requires factual content, not conjecture layered onto neutral acts.

2) Waiver and jurisdictional housekeeping for the contract claim

The district court dismissed the contract claim after dismissing the federal claim and declining supplemental jurisdiction. On appeal, because Amarsingh did not contest that discretionary jurisdictional ruling, the panel treated it as waived under Sawyers v. Norton. This underscores a procedural point: even if an appellant believes the merits are intertwined, failure to challenge the distinct jurisdictional basis for dismissal forfeits review.

3) The sanctions holding: GenAI misuse as “frivolous as argued” under Rule 38

The opinion’s doctrinal contribution is its structured pathway from GenAI-citation failures to Rule 38 sanctions:

  • Notice and opportunity to respond: The court identified suspect citations, ordered production of accurate copies, and issued a show-cause order—satisfying Rule 38’s procedural prerequisites.
  • Objective misconduct standard (recklessness): Applying Braley v. Campbell, the court held the question is not subjective intent but whether conduct shows intentional or reckless disregard of duties to the court. Total failure to verify whether cited cases exist and whether quotes are accurate was deemed reckless.
  • “Frivolous as argued” fit: Using Finch v. Hughes Aircraft Co., the panel characterized the appeal as partly “frivolous as argued”: even if the case had arguable issues, the manner of argument—nonexistent authorities and misattributions—was itself sanctionable.
  • Tailored remedy: The court declined the harshest sanction (dismissal of the appeal), but imposed (i) $1,000 to compensate Frontier for fees/costs incurred responding to the defects and (ii) disciplinary referral—anchored in comparative GenAI sanction cases (Benjamin, Jackson) and broader authority emphasizing the gravity of fake-citation advocacy (Park v. Kim).

Impact

1) Appellate practice: verification duties are nondelegable—even when GenAI is used

The decision reinforces a bright-line professional obligation: lawyers must confirm the existence, relevance, and accuracy of cited authority and quotations. GenAI-assisted drafting does not dilute that duty; it increases the need for validation. The court’s emphasis on judicial-resource waste and damage to institutional credibility signals that “I used ChatGPT” will not function as mitigation absent robust verification practices.

2) A practical enforcement model for appellate courts

The court provides a replicable sanctions template: (i) targeted identification of suspect citations, (ii) an order to produce the cases or explain, (iii) a Rule 38 show-cause process, (iv) an objective recklessness finding under Braley, (v) classification as “frivolous as argued” under Finch, and (vi) a calibrated monetary award plus disciplinary referral. This structured approach is likely to be persuasive across circuits confronting GenAI-driven “hallucination” citations.

3) Substantive civil-rights pleading: the continuing tightening effect of Comcast

On the merits, the case is another illustration of how Comcast shapes § 1981 litigation at the pleading stage: allegations supporting multiple plausible, race-neutral explanations can defeat but-for causation unless the complaint includes concrete facts tying the adverse decision to race as the decisive factor.

Complex Concepts Simplified

  • Rule 12(b)(6) dismissal: A claim can be dismissed early if, assuming the pleaded facts are true, the complaint still does not state a legally plausible claim for relief.
  • Plausibility (Iqbal): Courts require enough factual detail to make liability a reasonable inference, not mere possibility or speculation.
  • § 1981 “but-for” causation (Comcast): The plaintiff must plausibly allege that the adverse outcome would not have happened “but for” race—i.e., race was the determining reason, not merely one possible factor among others.
  • “Frivolous as argued” vs. “frivolous as filed” (Finch): An appeal can involve arguable issues yet still be sanctionable if the briefs advance arguments in an abusive or recklessly inaccurate manner (fake cases, misquotes, misstatements).
  • GenAI “hallucination”: When an AI tool generates confident-sounding but fictional case citations, quotations, or facts. Lawyers must treat AI output as unverified until independently confirmed.
  • Rule 38 sanctions: If an appeal (or the way it is argued) is frivolous, the court of appeals may award “just damages” (including attorney’s fees) and costs to the appellee after notice and an opportunity to respond.

Conclusion

Amarsingh v. Frontier Airlines, Inc. affirms that § 1981 claims must satisfy Comcast’s but-for causation at the plausibility stage and that appellants waive review of jurisdictional dismissals they do not brief. More significantly, it establishes—at least as persuasive authority in the Tenth Circuit’s nonprecedential format—a clear appellate sanctions framework for GenAI-driven fabricated citations: lawyers who submit hallucinated authorities and misquoted cases, without verification, act recklessly and may face Rule 38 monetary sanctions and referral to disciplinary authorities. The opinion’s core message is institutional as much as doctrinal: GenAI can be used, but not as a substitute for the lawyer’s duty of accuracy.