United States Court of Appeals
for the Federal Circuit
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IN RE VIOLATION OF RULE 38
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Miscellaneous Docket No. 981
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Appeal from the United States Court of Federal
Claims in case no. 05-CV-162, Judge Mary Ellen Coster
Williams.
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Before GAJARSA, LINN, and MOORE, Circuit Judges.
PER CURIAM.
ORDER
Underwood Livestock, Inc. (“Underwood”) appealed
from a decision of the Court of Federal Claims (“Claims
Court”) granting the government’s motion for summary
judgment that Underwood cannot establish a property
interest in a destroyed tire dam structure because of issue
preclusion. The relevant facts of this case and the court’s
decision on the merits are detailed in this court’s opinion
affirming the decision of the Claims Court. Underwood
Livestock, Inc. v. United States, No. 2010-5072 (Mar. 31,
2011). This court previously found Underwood’s appeal to
be both frivolous as filed and frivolous as argued; sanc-
tioned Martin G. Crowley (“Crowley”), counsel for Under-
wood, in the amount of the government’s attorney fees
and costs in defending this appeal; and instructed the
parties to file supplemental briefing as to the amount and
reasonableness of the government’s fees and costs. In re
2 IN RE VIOLATION OF RULE 38
Violation of Rule 38, No. 2011-M981 (April 25, 2011).
Having considered the submissions of the parties, this
court awards a lump-sum sanction of $8,000 in lieu of
calculating the government’s actual costs and attorney
fees.
I.
The government has filed a request for $22,454.24 in
attorney fees and costs incurred in the defense of this
appeal. This amount consists of $7,897.22 in direct labor
costs and $14,557.02 in indirect costs.
The government arrived at a direct labor cost figure
for each attorney or paralegal that worked on this appeal
by first calculating that employee’s hourly rate. Applica-
tion for Attorney Fees and Expenses (“Fee Request”) at 3.
The hourly rate was calculated by taking that employee’s
annual salary and dividing it by 2087, the number of
work-hours in a year. Id. This rate was then multiplied
by the hours spent working on this case to determine the
direct labor costs per employee. Id. The government
explained that indirect costs are those costs which are
incurred to support attorneys in the Environmental and
Natural Resource Division at the United States Depart-
ment of Justice, such as secretarial support, compensated
absences, fringe benefits, office space, utilities, supplies,
and training. Id. Rather than providing specifics, the
government simply explained that “if .5% of the total . . .
direct labor costs are incurred on a particular case, then
.5% of the total . . . indirect costs would be allocated to the
case” and concluded that the total indirect costs associ-
ated with this appeal are $14,557.02. Id. at 4. Finally,
the government contended that based on 167 hours of
attorney and non-attorney work on this matter, the
effective per hour cost of the appeal worked out to
$134.46, an amount far lower than the customary rate
charged by private practice attorneys performing similar
work in the Washington, D.C. area. Id. at 3-4.
IN RE VIOLATION OF RULE 38 3
The government argues that “[a]lthough the legal is-
sues involved in this appeal are relatively simple, the
case’s factual and procedural history are [sic] not.” Fee
Request at 4. Because this case involved a land claim
dating to 1917 that had been the subject of three lawsuits
in Federal Court, as well as proceedings before the Bu-
reau of Land Management and the Interior Board of Land
Appeals, counsel for the government claims to have spent
a considerable amount of time becoming familiar with the
case’s long history. Id. at 4-5. Furthermore, the govern-
ment was also required to respond to the eight issues
raised by Crowley on appeal. Id. at 5.
Crowley responds that the government’s claimed
number of hours spent working on the response brief for
this appeal, at 167 hours, is “ludicrous.” Response to
Application for Attorney Fees and Expenses (“Response”)
at 2. Crowley contends that this figure is especially
ridiculous when the government’s response brief simply
regurgitates the opinion of the Claims Court. Id. By
comparison, Crowley claims to have recently completed a
criminal appeal where he “came in cold”; reviewed evi-
dence, pleadings, and trial transcripts; performed re-
search; and prepared a docketing statement, appellant’s
brief, and appendix all within the course of 43 billable
hours. Id. Finally, Crowley continues to advance argu-
ments that this court erred in deeming this appeal frivo-
lous both as filed and as argued. Id. at 5-6. According to
Crowley, his work has twice before been declared frivo-
lous, and both findings were reversed by the Ninth Cir-
cuit. Id. at 5.
4 IN RE VIOLATION OF RULE 38
II.
“The purpose of awarding costs pursuant to Fed. R.
App. P. 38 is to deter frivolous appeals and thus preserve
the appellate calendar for cases worthy of consideration.”
Abbs v. Principi, 237 F.3d 1342, 1351 (Fed. Cir. 2001)
(citation and quotation omitted). When a frivolous appeal
is pursued against the government, “the judicial process is
abused and the funds provided by Congress via the tax-
payers to the Justice Department are wasted.” Id; Con-
stant v. United States, 929 F.2d 654, 659 (Fed. Cir. 1991)
(“The Department of Justice has still been forced to
expend time and effort in defending, and this court has
still had to devote energy and resources to deciding, this
wholly frivolous appeal.”). A number of our sister circuits,
when awarding attorney fees and costs in favor of the
government under Fed. R. App. P. 38, have awarded a
lump-sum to the government in lieu of calculating the
actual attorney fees and costs incurred by the govern-
ment. See, e.g., Wheeler v. Comm’r, 528 F.3d 773, 783-84
(10th Cir. 2008).
III.
Although Crowley is correct that the government’s
brief largely tracks the opinion of the Claims Court, he
fails to acknowledge that the government also had to
respond to the eight additional issues raised by Crowley
on appeal, none of which played a role in the Claims
Court’s decision and each of which supported this court’s
determination that Crowley’s appeal was both frivolous as
filed and frivolous as argued. To the extent that there is
any question about whether the government’s investment
in legal time was reasonable, courts generally resolve
such doubts “in favor of the victim rather than the perpe-
trator of frivolous litigation.” Szopa v. United States, 460
F.3d 884, 887 (7th Cir. 2006). Here, Crowley not only
fails to come to grips with the consequences of his mis-
conduct, he exacerbates the impropriety of his actions by
attempting to reargue this court’s frivolousness determi-
IN RE VIOLATION OF RULE 38 5
nation, a question not now before us. Crowley, both in
responding to this court’s order to show cause and in
responding to the government’s fee request, has yet to
recognize the frivolousness of his actions or to accept any
responsibility for the pursuit of this frivolous appeal.
This court therefore concludes that a sanction against
Crowley is justified. Rather than engage in a fact-specific
determination to resolve the dispute over the actual
amount of attorney fees incurred in this case, this court
instead elects to follow the practice of our sister circuits
and award a lump-sum amount. See Wheeler, 528 F.3d at
783 n.6 (collecting cases); Szopa, 460 F.3d at 887 (impos-
ing lump-sum sanctions on pro se repeat-offender of
$8,000 in lieu of a specific calculation of attorney fees and
costs); Kyler v. Everson, 442 F.3d 1251, 1253-54 (10th Cir.
2006) (imposing sanctions against pro se litigant for
pursuing frivolous appeal and awarding government a
lump sum of $8,000 in lieu of a specific calculation of
attorney fees and costs). A lump sum award of $8,000 is
determined to be an appropriate sanction for the bringing
of this frivolous appeal, will serve as an effective deter-
rent to the bringing of future frivolous appeals, and
reasonably compensates the government for the cost of its
defense.
Accordingly,
IT IS ORDERED THAT:
(1) Crowley is ordered to pay the government a lump-
sum of $8,000 within 30 days of the date of this order.
6 IN RE VIOLATION OF RULE 38
FOR THE COURT,
June 7, 2011 /s/ Jan Horbaly
Date Jan Horbaly
Clerk
cc: Martin G. Crowley, Esq.
Kurt G. Kastorf, Esq.