Sanctions for Municipal “Lawfare”: Pattern-Based Frivolousness Under § 1927 and § 1988, and Broad Fee-Shifting Under T.C.A. § 29-20-113

I. Introduction

In Glenn Whiting v. City of Athens, Tennessee (consolidated Nos. 24-5918/5919 and 25-5424), the Sixth Circuit addressed a recurring situation in public-law litigation: a plaintiff and counsel repeatedly suing a municipality and officials over a continuing civic dispute and then challenging fee awards and recusal rulings after losing (or after an appeal is dismissed).

The underlying controversy arose from an Athens, Tennessee fireworks event during the COVID-19 period (2022) and subsequent public statements by city officials about litigation and settlement. Whiting brought multiple suits asserting (among other theories) defamation and First Amendment retaliation. Across the cases, the district court dismissed claims, entered summary judgment, denied recusal motions, and awarded attorneys’ fees/sanctions under 28 U.S.C. § 1927, 42 U.S.C. § 1988, and Tenn. Code Ann. § 29-20-113.

The core issues on appeal were: (1) whether the district judge and magistrate judge should have been recused; (2) whether prior appellate dismissals and a defective notice of appeal limited appellate review; and (3) whether the fee awards were permissible and supported by findings that Whiting’s claims were frivolous and that counsel unreasonably multiplied proceedings.

II. Summary of the Opinion

The Sixth Circuit affirmed in full. It held:

  • Recusal: No abuse of discretion; identical recusal motions had already been rejected in Whiting v. City of Athens, 23-6082, 2024 WL 3537651 (“Whiting I”), and “like cases should generally be treated alike,” citing Epic Sys. Corp. v. Lewis.
  • Scope of review constrained: A prior appeal dismissed for failure to prosecute precluded revisiting summary judgment/discovery issues (Bragg v. Flint Bd. of Educ.), and a defective notice of appeal barred review of a dismissal order (Isert v. Ford Motor Co.), though the court could still consider recusal sua sponte (United States v. Schrank).
  • Sanctions/fees affirmed: Fees were properly awarded under § 1927 (for unreasonably pursuing frivolous claims and multiplying proceedings), § 1988 (prevailing defendants against frivolous § 1983 claims), and T.C.A. § 29-20-113 (successful defenses by government employees sued individually for acts under color of law).

A notable feature of the court’s approach is its contextual assessment: sanctions were evaluated not only claim-by-claim, but also in light of an asserted broader pattern of harassing, repetitive litigation against a municipality and its officials.

III. Analysis

A. Precedents Cited

1. Procedural preclusion, jurisdiction, and waiver/forfeiture

  • Bragg v. Flint Bd. of Educ.: The court relied on this to hold that dismissals for failure to prosecute can carry preclusive effect, preventing re-litigation of issues that were (or could have been) raised in the dismissed appeal.
  • Daunt v. Benson: Reinforced the law-of-the-case principle: after affirming dismissal in Whiting I, the merits would not be reconsidered, though the court could examine frivolousness insofar as it informed sanctions.
  • Isert v. Ford Motor Co.: Applied to deny jurisdiction to review an order not listed in the notice of appeal—illustrating strict appellate jurisdictional rules.
  • United States v. Schrank: Used to support the proposition that the court may consider recusal sua sponte despite defects that might otherwise limit review.
  • White Oak Prop. Dev., LLC v. Washington Township: Invoked by appellees for the principle that an appellant must challenge all independent bases for affirmance; the panel nonetheless found Whiting’s arguments sufficient to allow partial-review possibilities.
  • United States v. Clariot (quoting Blackmon- Malloy v. U.S. Capitol Police Bd.): The panel rejected forfeiture arguments because the district court addressed merits; “there can be no forfeiture where the district court nevertheless addressed the merits of the issue.”
  • Jolivette v. Husted and Buetenmiller v. Macomb Cnty. Jail: Cited to reject arguments not raised below or not adequately briefed (fraud allegations and “block billing” challenge).

2. Standards of review and sanctions review methodology

  • Ullmo ex rel. Ullmo v. Gilmour Acad. and First Bank of Marietta v. Hartford Underwriters Ins. Co.: Anchored abuse-of-discretion review for recusal and sanctions.
  • Cole v. City of Memphis (quoting In re Whirlpool Corp. Front- Loading Washer Prods. Liab. Litig.): Supplied the definition of abuse of discretion (wrong legal standard, misapplication, clear error of judgment, etc.).
  • Cooter & Gell v. Hartmarx Corp.: Critical to the panel’s framework: when sanctions rest on an erroneous view of law, that is itself an abuse of discretion; thus, “frivolousness” can be reviewed de novo to the extent it is legal. The opinion also cites Gregory P. Joseph, Sanctions: The Federal Law of Litigation Abuse to reinforce this interpretation.
  • Brand v. Motley: Used by analogy for de novo review of frivolousness determinations under certain legal standards.

3. Recusal consistency and “treat like cases alike”

  • Epic Sys. Corp. v. Lewis: The court leaned on the maxim that “like cases should generally be treated alike” to avoid re-litigating identical recusal issues already resolved in Whiting I.

4. Pattern-of-litigation context for sanctions

  • Trump v. Clinton, 653 F. Supp. 3d 1198 (“Trump I”) and Trump v. Clinton, 161 F.4th 671 (“Trump II”): The panel cited these to validate looking at a broader course of conduct—“a pattern of misusing the courts”—when evaluating whether sanctions are warranted, especially where litigation appears harassing rather than remedial.
  • BDT Prods., Inc. v. Lexmark Int'l, Inc.: Cited to note that some sanction regimes (e.g., inherent power) require bad faith; the panel contrasted this with the broader contextual approach it applied here.

5. § 1927 standards and what counts as “frivolous”

  • Bojicic v. DeWine (quoting Hall v. Liberty Life Assur. Co. of Bos.): Provided the articulated § 1927 triggers: pursuing frivolous claims, tactics that needlessly obstruct, or conduct falling below a lawyer’s obligations.
  • King v. Whitmer (quoting Salkil v. Mount Sterling Twp. Police Dep't): Supported the “officer of the court” framing and also the proposition (later invoked) that suing defendants protected by absolute immunity can be frivolous as a matter of law.
  • Larry E. Parrish P.C. v. Bennett: Emphasized the objective nature of § 1927 in the Sixth Circuit.
  • Stalley ex rel. United States v. Mountain States Health All. and Stalley v. Methodist Healthcare: Used to reinforce that losing is not enough; frivolousness is required, including when a party knows a claim is meritless and pursues it anyway.
  • Hogan v. Jacobson: Cited for the caution that sanctions should not punish genuinely creative, good-faith legal arguments—though the panel found counsel’s arguments here not plausibly developed.
  • CFE Racing Prods., Inc. v. BMF Wheels, Inc.: Supported the panel’s harmless-error reasoning: even if one sanctions basis were mistaken, another independent basis (here, § 1988) could sustain the outcome.

6. Tennessee defamation law: opinion, truth, and privileges

  • Brown v. Christian Bros. Univ., Stones River Motors, Inc. v. Mid-S. Pub. Co., and Burns v. State: Establish core Tennessee defamation limits—true statements, opinion, and privileged statements are not actionable.
  • Unarco Material Handling, Inc. v. Liberato and Simpson Strong-Tie Co. v. Stewart, Estes & Donnell: Provided the scope of Tennessee’s litigation privilege (including statements related to pending/impending proceedings, and not strictly limited to in-court statements).
  • Issa v. Benson: Central to the panel’s conclusion that the defamation claim was frivolous: Tennessee legislative privilege barred defamation based on statements in the course of legislative functions, and Issa also illustrated overlap with litigation privilege when legal action is threatened.
  • Innovation Ventures, LLC v. Custom Nutrition Lab'ys, LLC: Used to justify reliance on intermediate state appellate decisions as strong predictors of how state law applies in federal court.

7. First Amendment retaliation: elements, adverse action, motive, and immunities

  • Thaddeus-X v. Blatter and Holzemer v. City of Memphis: Supplied the elements and the “intensely context-driven” nature of retaliation analysis.
  • Nicholson v. City of Westlake and Wheeler v. Dayton Police Dep't: Confirmed that filing lawsuits can be protected activity—while the panel stressed that frivolous suits are not protected, citing United States v. Miller and Wolfe v. George (and analogizing to abusive grievances in Smith v. Campbell).
  • Maben v. Thelen (quoting Spies v. Voinovich), plus Hill v. Lappin (quoting Bell v. Johnson), and Wurzelbacher v. Jones-Kelley: These cases shaped the panel’s “ordinary firmness” / de minimis adversity / not-every-emotional-injury framework; they also supported the relevance (though not dispositiveness) of the plaintiff’s continuing undeterred conduct.
  • Kubala v. Smith and Mezibov v. Allen: Underpinned the conclusion that public disagreement and responsive speech generally do not constitute retaliation; Mezibov was used for the “thicker skin” concept for those who place themselves in public controversy.
  • Fritz v. Charter Twp. of Comstock and Dean v. Byerley: Provided contrast examples of genuinely adverse retaliatory threats (e.g., threats to livelihood) and the notion that context and a person’s position can affect what qualifies as deterrence.
  • Nieves v. Bartlett (citing Hartman v. Moore): Supported the panel’s emphasis on causation: plaintiff must show 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): Grounded the legislative immunity holding: local legislators and those acting in legislative capacities are immune from § 1983 claims for actions “in the sphere of legitimate legislative activity,” even when a plaintiff alleges intimidation or chilling.
  • Houston Cmty. Coll. Sys. v. Wilson: Helped frame the core “shield not sword” theme: the First Amendment protects citizens from censorship, but it also protects officials’ speech responses; the government’s counterspeech is often the constitutionally preferred remedy.
  • Venema v. West: Cited to reject the attempt to use tort concepts to impose municipal-style vicarious liability for constitutional claims (respondeat superior limits).
  • Osunde v. Delta Med. Ctr.: Cited to explain what res ipsa loquitur is, while the panel found it inapposite to the alleged facts.
  • McMann v. Doe: Cited as an example of suing “John Doe” defendants and using discovery to identify unknown parties, contrasting with Whiting’s approach of suing many city employees without evidentiary basis.

8. § 1988 fee-shifting and “prevailing party”

  • Fox v. Vice (quoting Christiansburg Garment Co. v. EEOC): Supplied the standard for awarding defendants’ fees: claims must be “frivolous, unreasonable, or without foundation,” and fees may be shifted to compensate defendants for costs attributable to frivolous charges.
  • Lackey v. Stinnie: Used to confirm appellees were prevailing parties because they successfully defended and obtained final merit-based termination.
  • Bowman v. City of Olmsted Falls: Reinforced that fee awards to defendants may be appropriate where plaintiffs knew (or should have known) claims were barred.

9. Tennessee fee-shifting for government employees sued individually

  • Aylor v. Carr: Interpreted T.C.A. § 29-20-113 broadly, and the panel used it to uphold fee awards where officials prevailed in individual-capacity suits arising from actions under color of law.
  • Hayward v. Cleveland Clinic Found.: Used to deem waived an argument presented without supporting authority.

10. Public-interest rationale for sanctions against repeat frivolous suits

  • Williams v. Shelby Cnty. Sch. Sys.: Cited for the policy concern that frivolous suits against public bodies waste taxpayer resources and impair public services—supporting sanctions as a protective measure for the public.
  • Whiting v. Trew: Offered background to the panel’s view that the current litigation fit into a longer arc of disputes and lawsuits involving Whiting and Athens.

B. Legal Reasoning

1. The court’s “gated review”: preclusion and jurisdiction first

The panel began by strictly delimiting what it could review. In No. 25-5424, it refused to re-open summary judgment and discovery disputes because the earlier appeal was dismissed for failure to prosecute, and Bragg v. Flint Bd. of Educ. treats such dismissals as having preclusive effect. In No. 24-5919, it refused to review a dismissal order not listed in the notice of appeal, following Isert v. Ford Motor Co..

Yet the panel preserved a narrow channel to evaluate the merits of underlying claims: it could consider them insofar as they bore on whether sanctions were warranted (i.e., whether claims were frivolous and whether litigation tactics were objectively unreasonable).

2. Recusal: identical motions, identical outcome

Recusal was treated largely as a stare decisis/law-of-the-case issue. Because Whiting I already affirmed denial of recusal, and the motions/orders in the later cases were “identical,” the panel applied the “treat like cases alike” principle from Epic Sys. Corp. v. Lewis.

3. Sanctions: the opinion’s central move—context plus claim-by-claim frivolousness

The court’s sanctions analysis proceeds on two levels:

  1. Macro level (context): The court explicitly validated viewing sanctions through the lens of a broader campaign of harassing litigation, citing Trump I and Trump II. It emphasized that what might be “isolated incidents” can become sanctionable when they form a repeated pattern directed at draining resources and burdening opponents and courts.
  2. Micro level (doctrine): It assessed whether specific claims were frivolous under governing legal standards (privilege and immunity for defamation; elements of First Amendment retaliation; absolute immunities), and whether counsel’s conduct unreasonably multiplied proceedings under an objective § 1927 standard.

4. Defamation (No. 24-5919): privilege and opinion made the claim untenable

The defamation allegations targeted statements by Mayor Sherlin about settlement discussions and Whiting’s conduct. The panel treated Tennessee law as decisive: opinions are not defamatory (Stones River Motors, Inc. v. Mid-S. Pub. Co.), and both litigation privilege (Simpson Strong-Tie Co. v. Stewart, Estes & Donnell; Unarco Material Handling, Inc. v. Liberato) and legislative privilege (Issa v. Benson) barred the claim.

The court’s “frivolousness” conclusion rested not merely on the eventual failure of the claim, but on counsel’s litigation conduct:

  • Failure to do basic research that would have uncovered Issa v. Benson.
  • Continuing to litigate despite concessions suggesting the case was meritless or should be dismissed.
  • Filing within a visible pattern of repetitive lawsuits—supporting the inference of harassment rather than redress.

5. First Amendment retaliation: “adverse action” and causation were missing, and immunity barred core targets

Applying Thaddeus-X v. Blatter and the “ordinary firmness” line of cases (Hill v. Lappin; Maben v. Thelen; Wurzelbacher v. Jones-Kelley), the panel concluded Whiting’s retaliation theories were frivolous:

  • Fireworks-show confrontation (No. 25-5424): The facts did not show government “adverse action” of a kind likely to deter a person of ordinary firmness, and causation failed because the record showed the motivation was concern about filming children, not retaliation for protected activity. The attempt to use res ipsa loquitur was deemed inapposite (Osunde v. Delta Med. Ctr.), and suing many uninvolved city employees was unreasonable, with the court suggesting John Doe practice as the proper alternative (McMann v. Doe).
  • Public explanation for canceling fireworks (No. 24-5918): Answering media questions was treated as non-retaliatory counterspeech, consistent with Kubala v. Smith and the broader counterspeech concept in Houston Cmty. Coll. Sys. v. Wilson. The court also noted Whiting’s own conduct (continued lawsuits) undercut any claim of deterrence.
  • Statements about settlement negotiations (No. 24-5919): Officials’ responsive statements to a public critic were not “adverse action.” Further, legislative immunity (federal) barred § 1983 claims targeting legislative activity (Kent v. Ohio House of Representatives Democratic Caucus; Bogan v. Scott-Harris; Tenney v. Brandhove), and counsel had effectively acknowledged the immunity problem.

6. Statutory bases for fees: § 1927, § 1988, and T.C.A. § 29-20-113

The court affirmed three overlapping fee regimes:

  • 28 U.S.C. § 1927: Sanctions may be imposed for objectively unreasonable litigation that multiplies proceedings, including pursuit of frivolous claims (Bojicic v. DeWine; Larry E. Parrish P.C. v. Bennett). The panel rejected arguments that bad faith was required and emphasized the district court sanctioned counsel (Irion), not Whiting.
  • 42 U.S.C. § 1988: Prevailing defendants can recover fees when § 1983 claims are frivolous (Fox v. Vice; Christiansburg Garment Co. v. EEOC). The panel also approved the district court’s handling of mixed federal/state claims through reductions/overlap reasoning consistent with Fox v. Vice.
  • T.C.A. § 29-20-113: A mandatory fee award on motion when a government employee sued individually for acts under color of law prevails. Relying on Aylor v. Carr, the panel emphasized the statute’s breadth and found it satisfied where officials obtained final merits-based termination. The panel expressly noted it did not decide preemption/constitutionality questions (footnote 5).

C. Impact

  • Stronger tools against repetitive municipal harassment: By endorsing a sanctions analysis that explicitly considers a broader “pattern of misusing the courts” (with citations to Trump I and Trump II), the opinion encourages district courts to treat repetitive, related suits as potentially part of a sanctionable course of conduct—especially where public resources are repeatedly targeted.
  • Privilege/immunity as a frivolousness accelerator: The opinion reinforces that claims running into clear privileges (litigation/legislative privilege under Tennessee law) and absolute immunities (legislative immunity under federal law) can be deemed frivolous—raising risk for plaintiffs’ counsel who fail to screen such defenses early.
  • Counterspeech over constitutional tort: The decision aligns retaliation doctrine with a robust view of government counterspeech: public officials’ responses to criticism—especially in legislative and public-meeting contexts—will rarely qualify as actionable “adverse action,” absent threats or concrete coercive conduct.
  • State fee-shifting in federal court remains potent: The application of T.C.A. § 29-20-113 shows that state-law fee entitlements for government employees sued individually can materially increase exposure in federal civil-rights litigation (subject to unresolved preemption/constitutionality questions reserved by the panel).

IV. Complex Concepts Simplified

  • 28 U.S.C. § 1927: Lets courts make an attorney pay the opponent’s extra fees when the attorney unreasonably drags out or multiplies the litigation. In the Sixth Circuit, it is largely an objective standard (what a reasonable lawyer should have known/done).
  • 42 U.S.C. § 1988 (defendant fees): Although fee-shifting usually helps civil-rights plaintiffs, defendants can recover fees when the plaintiff’s § 1983 claims are frivolous.
  • “Adverse action” (retaliation): Not every insult, disagreement, or negative comment is actionable. The action must be serious enough that it would likely deter an ordinary person from exercising the right.
  • Legislative immunity (federal): Legislators (including many local officials acting legislatively) cannot be sued for damages under § 1983 for legitimate legislative acts—even if the plaintiff claims the act was meant to intimidate or chill speech.
  • Litigation privilege / legislative privilege (Tennessee defamation): Certain statements tied to litigation or made as part of legislative functions are protected from defamation liability, to preserve candid participation in those processes.
  • Res ipsa loquitur: A tort doctrine that infers negligence from the type of accident; it does not substitute for evidence of retaliatory motive or supervisory direction in a constitutional claim.
  • “John Doe” defendants: A pleading device used when a plaintiff cannot yet identify the responsible person; discovery can later reveal the identity, avoiding the shotgun approach of naming many uninvolved defendants.

V. Conclusion

The Sixth Circuit’s decision in Whiting v. City of Athens, Tennessee is a firm affirmation of district-court discretion to police abusive litigation, particularly where a municipality and its officials are repeatedly targeted. The opinion synthesizes procedural constraints (preclusion and jurisdiction), reinforces that privileges and absolute immunities can render claims frivolous, and treats officials’ responsive public speech as generally non-retaliatory. Most significantly, it approves a pattern-sensitive sanctions analysis: when repetitive suits function as harassment rather than redress, fee-shifting under § 1927, § 1988, and T.C.A. § 29-20-113 can operate together to protect defendants, courts, and the public fisc.