Sufficient Merit to Proceed

When does an appeal or petition have “sufficient merit to proceed” so that a vexatious litigant subject to a pre-filing review order can move forward with it without counsel and without a certification of good faith from the district court? The Ninth realizes in In re Keith Thomas, case no. 01-80091 (9th Cir. Nov. 29, 2007) that it has never quite made it clear:

Because our decisions pursuant to a pre-filing review order are rarely published, we have not yet clarified the standard for determining whether an appeal or petition has sufficient merit to proceed. We take the opportunity to do so now.

The court examines standards in cases of summary affirmance and trial court summary dismissals, then settles on a standard. But the standard is not stated in terms of what makes for sufficient merit. Instead, it is stated in terms of what kind of case lacks sufficient merit, and that test is quite restrictive:

[W]e hold that when we have imposed prefiling requirements, we can preclude an appellant from proceeding with a petition or appeal only when it is clear from the face of the appellant’s pleadings that: (i) the appeal is patently insubstantial or clearly controlled by well settled precedent; or (ii) the facts presented are fanciful or in conflict with facts of which the court may take judicial notice.

I guess this is something lawyers don’t really need to know, since vexatious litigant orders restrain litigation only be self-represented litigants. But I know that non-lawyers stumble across this blog as well, and it’s interesting to see how the Ninth limits access by vexatious litigants.

In this case, Thomas filed 17 appeals or petitions in the Ninth Circuit before the court entered the pre-filing order in 2001, 28 appeals and petitions after the order, and more than 69 separate civil actions in the Eastern District of California alone.

He gets nowhere with this one. Applying the standard it has just announced, the Ninth finds that the appeal lacks sufficient merit to proceed. The appeal is from a magistrate judge’s order recommending dismissal of his lawsuit. The lawsuit? Thomas was suing four district judges “to challenge the judges’ rulings in prior actions filed by [him].”

Why sue the judges instead of appealing? After all, we know the guy has heard of an appeal, having filed 41 appeals or petitions already.