Precision Specialty Metals, Inc. v. U.S., 02-1233.

• Decision Date: 13 January 2003
• Docket Number: No. 02-1233.,02-1233.
• Citation: 315 F.3d 1346
• Parties: PRECISION SPECIALTY METALS, INC., Plaintiff, v. UNITED STATES, Defendant, and Mikki Graves Walser, Sanctioned Party-Appellant.
• Court: U.S. Court of Appeals — Federal Circuit

315 F.3d 1346

PRECISION SPECIALTY METALS, INC., Plaintiff, v. UNITED STATES, Defendant, and Mikki Graves Walser, Sanctioned Party-Appellant.

No. 02-1233.

United States Court of Appeals, Federal Circuit.

January 13, 2003.

Mikki Graves Walser, of Brooklyn, NY, argued pro se as sanctioned party-appellant.

Sheryl L. Floyd, Senior Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, for amicus curiae Mikki Graves Walser, sanctioned party-appellant. With her on the brief were Robert D. McCallum, Assistant Attorney General; and David M. Cohen, Director.

Before CLEVENGER, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and PROST, Circuit Judge.

FRIEDMAN, Senior Circuit Judge.

In an unpublished opinion, the Court of International Trade formally reprimanded the appellant Mikki Graves Walser, a Department of Justice attorney, for misquoting and failing to quote fully from two judicial opinions in a motion for reconsideration she signed and filed. We hold that we have jurisdiction to review that action, and affirm the reprimand.

I

In the underlying case, Precision Specialty Metals, Inc. ("Precision") contested the decision of the United States Customs Service denying it drawback (the refund of duties paid on imported products upon their subsequent export, see 19 U.S.C. § 1313(b) (2000)). Walser represented the United States in that case. Precision filed a motion for summary judgment. Under the court's scheduling order, the government's response and any cross-motion were required to be filed by May 5, 2000. At 5:51 p.m. on May 4, the government moved for a 30-day extension of time for such filing. Walser stated during a subsequent court hearing that when she filed the extension motion, she had not started preparing the government's cross-motion for summary judgment.

On May 10, the court denied the extension motion and ordered that the government's response to Precision's motion be filed "forthwith." Twelve days later, on May 22, the government filed its opposition to and its cross-motion for summary judgment. Two days later, the court struck from the record as untimely the government's response and granted Precision's motion for summary judgment as unopposed.

The government then filed a motion for reconsideration, which contained the miscitations that resulted in Walser's reprimand. The document listed three names as the submitters, only two of whom signed it: Walser and the Attorney in Charge of the Department of Justice's International Trade Field Office in New York City. (The third name on the motion was that of the Acting Assistant Attorney General.) Walser stated that she "wrote" the motion.

A major argument the government made in support of reconsideration was that it had filed its motion for summary judgment in compliance with the order that it do so "forthwith." The government relied on and quoted the following definition of "forthwith" in BLACK'S LAW DICTIONARY 654 (6th ed.1990):

Immediately; without delay; directly; within a reasonable time under the circumstances of the case; promptly and with reasonable dispatch. U.S. ex rel. Carter v. Jennings, D.C. Pa., 333 F.Supp. 1392, 1397. Within such time as to permit that which is to be done, to be done lawfully and according to the practical and ordinary course of things to be performed or accomplished. The first opportunity offered.

The motion stated that "[a] review of several court decisions which construed the term `forthwith' revealed that there is no uniform definition of the term" and that "several courts" have relied on the Black's Law Dictionary definition. It stated that "[t]he term is clearly ambiguous and has subjective application." To support this contention, Walser quoted from several judicial opinions.

The following table sets forth in the left column two of the quotations in the motion (one in the text and the other in a footnote), and the right column contains the complete language of the pertinent portion of the opinion:

                Motion                                                        Opinion
                See City of New York v. McAllister Brothers, Inc.,            "Forthwith" means immediately, without delay, or
                  278 F.2d 708, 710 (1960) ("`Forthwith' means                  as soon as the object may be accomplished by
                  immediately, without delay, or as soon as the                 reasonable exertion. The Supreme Court has
                  object may be accomplished by reasonable                      said of the word that "in matters of practice and
                  exertion." Emphasis added.)                                   pleading it is usually construed, and sometimes
                                                                                defined by rule of court, as within twenty-four
                                                                                hours." Dickerman v. Northern Trust Co., 1900
                                                                                176 U.S. 181, 193, 20 S.Ct. 311, 315, 44 L.Ed
                                                                                423. McAllister, 278 F.2d at 710
                

                9While we did not review the Supreme Court's       Although we have never undertaken to define
                  decision in Henderson v. United States, 517 U.S.              "forthwith" as it is used in the SAA, it is clear
                  654, 680, 116 S.Ct. 1638, 134 L.Ed.2d 880 (1996),             that the term "connotes action which is immediate
                  in interpreting the meaning of "forthwith," it is             without delay, prompt, and with reasonable
                  noteworthy that in his dissenting opinion, Justice            dispatch." Amella v. United States, 732 F.2d
                  Thomas, with whom The Chief Justice and Justice               711, 713 (C.A.9 1984) (citing Black's Law Dictionary
                  O'Connor joined, citing Amella v. United                      588 (5th ed.1979)). See also Dickerman v
                  States, 732 F.2d 711, 713 (C.A.1984), stated that             Northern Trust Co., 176 U.S. 181, 192-193, 20
                  "[a]lthough we have never undertaken to define                S.Ct. 311, 315, 44 L.Ed. 423 (1900). Henderson
                  `forthwith' ..., it is clear that the term `connotes          517 U.S. at 680, 116 S.Ct. 1638 (Thomas, J
                  action which is immediate, without delay,                     dissenting).
                  prompt, and with reasonable dispatch.'"
                

In Dickerman, the Supreme Court stated:

But "forthwith" is defined by Bouvier as indicating that "as soon as by reasonable exertion, confined to the object, it may be accomplished. This is the import of the term; it varies, of course, with every particular case." In matters of practice and pleading it is usually construed, and sometimes defined by rule of court, as within twenty-four hours.

176 U.S. at 193, 20 S.Ct. 311.

The omissions from the judicial opinions that Walser quoted thus were as follows:

1. She omitted the sentence in McAllister that follows the sentence she quoted, referring to and quoting from the Supreme Court's Dickerman opinion.

2. The quotation in the footnote from Justice Thomas' dissent left out, after "forthwith," the limiting words "as it is used in the SAA [Suits in Admiralty Act]," thereby making Justice Thomas' statement seem broader than it actually was. She also left out his citation to Dickerman. Finally, she failed to state "emphasis added" for the quoted material in bold face, although she had so stated about the bold face portions of the quotation from McAllister in the text. This difference would lead a reader to assume that the emphasis in Justice Thomas' dissent was provided by him, not by her.

At the oral argument on the government's motion for reconsideration, the court questioned Walser extensively about the foregoing omissions from the judicial opinions she cited and indicated its concern about her conduct. The court said it would issue an order to show cause to give Walser "an opportunity to discuss" what it "consider[ed] to be an egregious problem."

The court subsequently issued an order to Walser to show cause why she should not be held in contempt "by reason of misrepresentations" in the government's motion for reconsideration. It issued a second order to show cause why she should not be held in contempt "by reason of the specific misrepresentations discussed by the court during oral argument on June 29, 2000," "those misrepresentations including the omission of language in quotations from Henderson v. United States, 517 U.S. 654, 116 S.Ct. 1638, 134 L.Ed.2d 880 (1996) and City of New York v. McAllister Brothers, Inc., 278 F.2d 708 (2nd Cir.1960); the failure to cite the court to Dickerman v. Northern Trust Company, 176 U.S. 181, 20 S.Ct. 311, 44 L.Ed. 423 (1900), and false implication resulting therefrom that a Justice of the United States Supreme Court had stated the Court had `never undertaken' to define the term `forthwith,' that according to that Justice, its definition was limited to the terminology cited by Defendant, and that the Supreme Court had not further defined the term, adversely to Defendant's position, in Dickerman v. Northern Trust Company."

At the hearing on the order to show cause, the court first indicated that it believed that "the omissions from McAllister and Henderson were ... an intentional attempt by competent counsel to mislead the Court" and that it would find that "the representation to the Court was in bad faith, and that as a result it was contemptuous." After a lengthy statement by and colloquy with Walser, however, the court stated that it would not find her "in bad faith" and that she was "purged of the contempt," but that it would take under advisement "whether to find a Rule 11 violation or not."

In an unpublished opinion, the court held that Walser had violated Rule 11 of the Rules of the Court of International Trade, and formally reprimanded her. The court stated:

As counsel for the United States, Ms[.] Walser signed a brief before this court which omitted directly relevant language from what was represented as precedential authority, which...