Abbs & Wisner v. Principi

• Decision Date: 26 January 2001
• Docket Number: RESPONDENT-APPELLEE,CLAIMANTS-APPELLANTS,No. 99-7112,99-7112
• Citation: 237 F.3d 1342
• Parties: (Fed. Cir. 2001) HERBERT J. ABBS AND PETER J. WISNER,, v. ANTHONY J. PRINCIPI, SECRETARY OF VETERANS AFFAIRS,
• Court: U.S. Court of Appeals — Federal Circuit

Page 1342

237 F.3d 1342 (Fed. Cir. 2001)

HERBERT J. ABBS AND PETER J. WISNER, CLAIMANTS-APPELLANTS, v. ANTHONY J. PRINCIPI, SECRETARY OF VETERANS AFFAIRS, RESPONDENT-APPELLEE.

No. 99-7112

U.S. Court of Appeals, Federal Circuit

January 26, 2001

Appealed from: United States Court of Appeals for Veterans Claims

Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, argued for claimants-appellants.

Christian J. Moran, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, Dc, argued for respondent-appellee.

On the brief were David W. Ogden, Assistant Attorney General; David M. Cohen, Director; Harold D. Lester, Jr., Assistant Director; and John J. Field, Attorney. Of counsel on the brief were Richard J. Hipolit and Martin J. Sendek, Department of Veterans Affairs, of Washington, Dc.

Before Michel, Rader, and Linn, Circuit Judges.

The opinion of the court was delivered by: Michel, Circuit Judge.

Herbert J. Abbs and Peter J. Wisner appeal the United States Court of Appeals for Veterans Claims ("Veterans Court") April 14, 1999 decision denying their application for attorney fees pursuant to the Equal Access to Justice Act ("EAJA"), Pub. L. No. 96-481, Tit. II, 94 Stat. 2321, 2327 (1980), codified at 28 U.S.C. 2412. Their application followed our reversal of a ruling of the Veterans Court in an unrelated case. We heard oral argument in this appeal on December 6, 2000. Because the decision of the Veterans Court was based upon a correct construction of the EAJA, we affirm the Veterans Court decision. Because this appeal is frivolous as filed and as argued, however, we impose sanctions pursuant to Fed. R. App. P. 38 and hold appellants' attorney personally liable to the United States for its costs excluding attorney fees incurred in defending this frivolous appeal.

Background

The facts of Wisner's and Abbs' cases are substantially similar. On April 8, 1997, the Board of Veterans' Appeals ("Board") found that Wisner had failed to present "new and material" evidence to reopen a previously and finally disallowed claim of service-connection for a psychiatric disorder. On May 5, 1997, Wisner appealed pro se the Board's decision. In a separate but related case, on August 15, 1997, Abbs appealed pro se the Board's May 20, 1997 decision finding that new and material evidence had not been presented to reopen his previously and finally disallowed claim for service-connection for a chronic nervous disorder. In both decisions, the Board relied on the test for materiality set forth in Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). In Colvin, the Veterans Court interpreted 38 U.S.C. 5108, Pub. L. No. 100-687, Div. A, Tit. I, 103(a)(1), 3008, 102 Stat. 4107 (1988), renumbered 5108 (as amended), disregarding the applicable regulation, 38 C.F.R. 3.156(a) (1994), to determine the test for new and material evidence. Id. Both claimants appealed the Board's decision.

On September 16, 1998, while the appeals were pending before the Veterans Court, this court, in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998) overruled the Colvin test and held that the Secretary's definition of new and material evidence as set forth in 38 C.F.R. 3.156(a) must be applied in determining whether a veteran has submitted new and material evidence. Id. at 1361. On October 2, 1998, Wisner filed a motion to remand his case back to the Board in light of our decision in Hodge. On October 7, 1998, the Veterans Court vacated the Board's decision and remanded the case. On October 8, 1998, the Veterans Court granted the Secretary's unopposed motion to vacate and remand Abbs' case to the Board.

Wisner filed a timely motion in the Veterans Court for an award of reasonable attorney fees under the EAJA in the amount of $4,627.76 on October 30, 1998. On November 5, 1998, Abbs filed an application seeking attorney fees in the amount of $3,839.50.

On December 29, 1998, the Veterans Court, sua sponte, ordered that Wisner's and Abbs' cases be consolidated for concurrent consideration of the appellants' applications for attorney fees and expenses and submitted to a panel without oral argument. Appellants alleged that because the Veterans Court's position in deciding Colvin directly contravened the Supreme Court's decision in Chevron v. Natural Res. Def. Council, 467 U.S. 837, 842 (1984), requiring deference to an agency's reasonable interpretation of a statute, the position of the Veterans Court was not "substantially justified." ¹ "As a result of the [a]gency's reliance upon Colvin," appellants argued, "it was necessary for the [a]ppellants to appeal their case to the [Veterans Court]. The denial of reopening and the subsequent appeal to the [Veterans Court] would not have been necessary but for the [Veterans Court's] erroneous holding in Colvin." Reply Brief of Appellants at 3.

On April 14, 1999, a three judge panel of the Veterans Court denied appellants' request for attorney fees under the EAJA. The Veterans Court held that the Veterans Court is not an "agency" of the United States for EAJA purposes. The court did not reach the question of whether the Veterans Court's Colvin materiality test regarding the reopening of previously and finally disallowed claims viewed in light of 38 C.F.R. 3.156(a) was "substantially justified." Appellants filed a timely appeal to this court on July 14, 1999. Both appellants are represented by the same attorney, Mr. Kenneth Carpenter, as they were before the Veterans Court.

Analysis

Pursuant to 38 U.S.C. 7292(a) (1994), we have jurisdiction to review a decision of the Veterans Court only "with respect to the validity of any statute or regulation . . . or interpretation thereof (other than a determination as to a factual matter) that was relied on by the [Veterans Court] in making its decision." The Veterans Court's construction of a statute, such as the EAJA, is reviewed de novo. Epps v. Gober, 126 F.3d 1464, 1467 (Fed. Cir. 1997).

A. Sanctions can be imposed under Fed. R. App. P. 38 when an appeal is "frivolous as filed" or "frivolous as argued."

On December 1, 2000, we issued an Order to appellants to show cause why their appeal is not sanctionable under Fed. R. App. P. 38. Fed. R. App. P. 38 provides that "[i]f a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee."

Our court has identified two types of appeals that may be deemed frivolous. An appeal is held to be "frivolous as filed" when an appellant grounds his appeal on arguments or issues "that are beyond the reasonable contemplation of fair-minded people, and `no basis for reversal in law or fact can be or is even arguably shown.'" State Indus., Inc. v. Mor-Flo Indus., Inc., 948 F.2d 1573, 1578, 20 USPQ2d 1738, 1742 (Fed. Cir. 1991) (internal citation omitted). An appeal which is frivolous as filed "unnecessarily wastes the limited resources of the court as well as those of the appellee, and therefore should never have been filed at all." Id. at 1578, 20 USPQ2d at 1742. An appeal is held to be "`frivolous as argued' when an appellant has not dealt fairly with the court, has significantly misrepresented the law or facts, or has abused the judicial process by repeatedly litigating the same issue in the same court." Lawrence N. Sparks v. Eastman-Kodak Co., 230 F.3d 1344, 1345 (Fed. Cir. 2000); see also Finch v. Hughes Aircraft Co., 926 F.3d 1574, 1582, 17 USPQ2d 1914, 1921 (Fed. Cir. 1991) (finding an argument frivolous as argued when party failed to address the authority against his position, cited inapplicable authority, and seriously misrepresented the record below and the applicable law). "[A]n appeal which is frivolous as filed must also be frivolous as argued, since any arguments made in support of it are, by definition, frivolous." Constant v. United States, 929 F.2d 654, 658 (Fed. Cir. 1991). The fact that an appeal is without merit does not mean that the appeal is necessarily a frivolous one. See Romala Corp. v. United States, 927 F.2d 1219, 1224 (Fed. Cir. 1991); Sparks, 230 F.3d at 1345 ("If we were to award damages for a frivolous appeal in all cases which we felt had little merit, such as those we decide under rule 36, we would be assessing substantial damages. This is not our practice . . . ."). Examples of actions deemed sanctionable include, but are not limited to, relitigating issues already finally adjudicated, see Constant, 929 F.2d at 658; failing to explain how the trial court erred or to present cogent or clear arguments for reversal, Refac Int'l, Ltd. v. Hitachi, Ltd., 921 F.2d 1247, 1256, 16 USPQ2d 1347, 1354 (Fed. Cir. 1990); State Indus., 948 F.2d at 1579, 20 USPQ2d at 1743; S. Bravo Sys. Inc. v. Containment Tech. Corp., 96 F.3d 1372, 1377 (Fed. Cir. 1996); failing to cite authority and ignoring opponent's contrary cited authority, Refac Int'l, Ltd. v. IBM, 790 F.2d 79, 81, 229 USPQ 712, 713 (Fed. Cir. 1986); citing irrelevant or inapplicable authority, Laitram Corp. v. Cambridge Wire Cloth Co., 919 F.2d 1579, 1584, 16 USPQ2d 1929, 1933 (Fed. Cir. 1990); distorting cited authority by omitting language from quotations, Porter v. Farmers Supply Serv., Inc., 790 F.2d 882, 887, 229 USPQ 814, 817 (Fed. Cir. 1986); making irrelevant and illogical arguments, S & T Mfg. Co., Inc. v. County of Hillsborough, Florida, 815 F.2d 676, 679 (Fed. Cir. 1987); Romala, 927 F.2d at 1222; misrepresenting facts or law to the court, id. at 1223; Laitram, 919 F.2d at 1583, 16 USPQ2d at 1933; Dreamlite Holdings Ltd. v. Kraser, 890 F.2d 1147, 1149 (Fed. Cir. 1989); SMS Data Prod. Group, Inc. v. United States, 900 F.2d 1553, 1558 (Fed. Cir. 1990); failing to reference or discuss controlling precedents, Klein v. Dep't of Transp., FAA, 768 F.2d 336, 338 (Fed. Cir. 1985); McEnery v. Merit Sys. Prot. Bd., 963 F.2d 1512, 1516 (Fed. Cir. 1992); or...