Case: 19-2406   Document: 29     Page: 1   Filed: 04/29/2020




   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                  SHARON M. WALBY,
                   Plaintiff-Appellant

                            v.

                   UNITED STATES,
                   Defendant-Appellee
                 ______________________

                       2019-2406
                 ______________________

    Appeal from the United States Court of Federal Claims
 in No. 1:19-cv-00873-MMS, Chief Judge Margaret M.
 Sweeney.
                 ______________________

                 Decided: April 29, 2020
                 ______________________

    SHARON M. WALBY, Palms, MI, pro se.

     NATHANIEL POLLOCK, Tax Division, United States De-
 partment of Justice, Washington, DC, for defendant-appel-
 lee. Also represented by ARTHUR THOMAS CATTERALL,
 RICHARD E. ZUCKERMAN.
                  ______________________
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 2                                    WALBY   v. UNITED STATES



 Before NEWMAN, O’MALLEY, and TARANTO, Circuit Judges.
 O’MALLEY, Circuit Judge.
      Sharon M. Walby (“Walby”) filed this action in the
 Court of Federal Claims (“Claims Court”) on June 13, 2019,
 seeking a refund of federal income taxes withheld from her
 wages for the years 2014, 2016, 2017, and 2018. The
 Claims Court dismissed Walby’s complaint sua sponte for
 failure to state a claim upon which relief can be granted,
 and, additionally, with respect to the 2014 taxes, for lack of
 subject matter jurisdiction. Walby v. United States, 144
 Fed. Cl. 1, 11 (2019). Walby appeals and the government
 moves for sanctions. For the reasons explained below, we
 affirm the Claims Court’s decision and deny the govern-
 ment’s motion for sanctions.
                        BACKGROUND 1
      Walby was born in Michigan, and, for the relevant time
 period, lived and worked in Michigan. Walby, 144 Fed. Cl.
 at 4. For the 2014 taxable year, Walby’s employer, Baker
 College, withheld $9,751.60 in federal income taxes from
 her wages. Id. In 2015, Walby claimed exemption from all
 withholdings and her employer did not withhold any fed-
 eral income taxes from her paychecks for that year. Id.
 That same year, in January, Walby executed an “Affidavit
 of Citizenship” before a notary public and submitted it to
 the United States Department of State (“State Depart-
 ment”). Id. In this affidavit, Walby declared that she was
 a sovereign citizen of the state of Michigan and, “because
 she was not restricted by the 14th Amendment to the
 United States Constitution, she was not a United States
 citizen thereunder but rather a nonresident alien not sub-
 ject to income taxes.” Id. (internal quotation marks


     1   Our discussion of the relevant factual background
 is based on the Claims Court’s recitation of the allegations
 in Walby’s complaint and the exhibits attached thereto.
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 WALBY   v. UNITED STATES                                    3



 omitted). According to Walby, the act of submitting the af-
 fidavit made her a nonresident alien. Id.
     In November 2016, at the direction of the Internal Rev-
 enue Service (“IRS”), Baker College again began to with-
 hold federal income taxes from Walby’s paychecks. It
 withheld income taxes in the amount of $1,882.36 for the
 year 2016, $13,032.52 for the year 2017, and $10,924.43 for
 the year 2018.
     Based on her assertion that she was exempt from fed-
 eral income taxes, Walby did not file federal income tax re-
 turns for the 2014–2018 tax years. Instead, she filed two
 separate Forms 843, Claim for Refund and Request for
 Abatement. She filed the first of these forms with the IRS
 on December 22, 2017, claiming a refund of the federal in-
 come taxes withheld from her 2014 paychecks. Walby filed
 the second of these forms with the IRS on December 8,
 2018, claiming a refund of federal income taxes withheld
 from her 2016–2018 paychecks. Walby alleges that, de-
 spite her request for a hearing, the IRS did not respond to
 these refund claims. Walby therefore filed this tax refund
 lawsuit against the government on June 13, 2019.
     On July 19, 2019, the Claims Court dismissed Walby’s
 complaint sua sponte. Walby, 144 Fed. Cl. at 1. Citing In-
 ternal Revenue Code (“I.R.C.”) § 7422(a), the trial court ex-
 plained that filing a timely refund claim with the IRS is a
 jurisdictional prerequisite to filing a refund suit. The court
 further explained that: (1) a timely administrative refund
 claim must be filed within two years of the taxes being
 paid; and (2) withheld federal income taxes for each calen-
 dar year are deemed paid on April 15 of the following year.
 Walby, 144 Fed. Cl. at 7 (citing I.R.C. §§ 6511, 6513). Based
 on the foregoing, the court found that Walby’s 2014 admin-
 istrative tax refund claim was untimely because it was filed
 in December 2017, more than two years after April 15,
 2015—the date those taxes were deemed paid. Id.
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 4                                      WALBY   v. UNITED STATES



 Accordingly, the court held that it lacked jurisdiction over
 Walby’s 2014 refund claim. Id. at 8.
      By contrast, the court found that Walby’s refund claims
 for the years 2016–2018 were timely because they were
 filed on December 8, 2018, within two years of when those
 taxes were deemed paid. The court therefore found that it
 had jurisdiction over those refund claims. Id. The court
 nevertheless dismissed these claims as meritless for two
 separate reasons: (1) Walby was a Unites States born in-
 dividual who could not meet “the burden of proof to estab-
 lish ‘a loss of United States nationality,’” and (2) even if she
 were a nonresident alien, Walby qualified as a United
 States resident for tax purposes pursuant to I.R.C. § 7701
 by virtue of her substantial presence in the United States
 during the relevant time period. Id. at 8–9. Accordingly,
 the Claims Court dismissed Walby’s complaint. Walby
 timely appeals. We have jurisdiction pursuant to 28 U.S.C.
 § 1295(a)(3).
                          DISCUSSION
                      A. Walby’s Appeal
      Whether the Claims Court properly dismissed a com-
 plaint for lack of subject matter jurisdiction, or for failure
 to state a claim upon which relief can be granted, are both
 questions of law that we review de novo. Anaheim Gardens
 v. United States, 444 F.3d 1309, 1314 (Fed. Cir. 2006);
 Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir.
 2004). We reverse the Claims Court’s legal conclusion only
 if it is incorrect as a matter of law. See Placeway Constr.
 Corp. v. United States, 920 F.2d 903, 906 (Fed. Cir. 1990).
 We address in turn the Claims Court’s determinations re-
 garding the timeliness of Walby’s 2014 administrative re-
 fund claim and her failure to state a claim upon which
 relief can be granted.
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 WALBY   v. UNITED STATES                                    5



                        1. Timeliness
     Congress has waived sovereign immunity over tax re-
 fund suits pursuant to 28 U.S.C. § 1346(a)(1), which pro-
 vides the Claims Court (and district courts) with the
 authority to hear “[a]ny civil action against the United
 States for the recovery of any internal-revenue tax alleged
 to have been erroneously or illegally assessed or collected.”
 28 U.S.C. § 1346(a). That waiver is limited, however, and
 certain preconditions must be met before a taxpayer is per-
 mitted to bring a tax refund suit. Specifically, the taxpayer
 must make full payment of the tax liability, bring a timely
 claim for refund with the IRS, and file a timely complaint
 after the refund claim is denied or deemed denied. I.R.C.
 §§ 7422(a), 6532(a); Shore v. United States, 9 F.3d 1524,
 1526 (Fed. Cir. 1993).
     On appeal, Walby does not challenge the Claims
 Court’s determination that her IRS refund claim for the
 2014 tax year was untimely. “Our law is well established
 that arguments not raised in the opening brief are waived.”
 SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312,
 1319 (Fed. Cir. 2006). Accordingly, we treat any argument
 regarding the Claims Court’s dismissal of Walby’s 2014 re-
 fund claim as waived.
     Even if these arguments were not waived, however, we
 see no error in the trial court’s determination that Walby’s
 2014 administrative refund claim was untimely. I.R.C.
 § 7422(a) provides, “[n]o suit or proceeding shall be main-
 tained in any court for the recovery of any internal revenue
 tax alleged to have been erroneously or illegally assessed
 or collected . . . until a claim for refund or credit has been
 duly filed with the Secretary, according to the provisions of
 law in that regard, and the regulations of the Secretary es-
 tablished in pursuance thereof.” And I.R.C. § 6511(a) pro-
 vides that, for cases where no return was filed by the
 taxpayer, an administrative refund claim must be filed
 with the IRS within 2 years from the time the tax was paid.
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 6                                    WALBY   v. UNITED STATES



 “[T]he plain language of 26 U.S.C. §§ 7422(a) and 6511 re-
 quires a taxpayer seeking a refund for . . . unlawfully as-
 sessed tax[es], to file a timely administrative refund claim
 before bringing suit against the Government.” United
 States v. Clintwood Elkhorn Mining Co., 553 U.S. 1, 14
 (2008).
     In Walby’s case, her 2014 claims were deemed paid on
 April 15, 2015 because withheld income taxes are deemed
 to have been paid on April 15th of the following year. I.R.C.
 § 6513(b). To be timely, her administrative refund claim
 should have been filed with the IRS by April 15, 2017. But
 Walby did not file her refund claim until December 22,
 2017. Walby’s 2014 refund claim was, therefore, untimely
 and the Claims Court properly dismissed that claim.
     There is one aspect of the court’s conclusion regarding
 this claim, however, that warrants additional examination.
 The Claims Court concluded that, because Walby’s 2014
 administrative refund claim was untimely, pursuant to 26
 U.S.C. § 7422(a), it lacked subject matter jurisdiction over
 that claim. Although this conclusion is correct under our
 existing case law, see, e.g., Stephens v. United States, 884
 F.3d 1151, 1156 (Fed. Cir. 2018), it may be time to reex-
 amine that case law in light of the Supreme Court’s clarifi-
 cation that so-called “statutory standing” defects—i.e.,
 whether a party can sue under a given statute—do not im-
 plicate a court’s subject matter jurisdiction. Lexmark Int’l,
 Inc. v. Static Control Components, Inc., 572 U.S. 118, 128
 n.4 (2014); see also Lone Star Silicon Innovations LLC v.
 Nanya Tech. Corp., 925 F.3d 1225, 1235 (Fed. Cir. 2019)
 (recognizing that, following Lexmark, it is incorrect to clas-
 sify “so-called” statutory-standing defects as jurisdic-
 tional).
     The Tucker Act grants the Claims Court jurisdiction to
 render judgment “upon any claim against the United
 States founded either upon the Constitution, or any Act of
 Congress . . . in cases not sounding in tort.” 28 U.S.C.
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 WALBY   v. UNITED STATES                                    7



 § 1491(a)(1). Additionally, 28 U.S.C. § 1346(a) provides
 that the Claims Court shall have original jurisdiction (con-
 current with the district courts) of “[a]ny civil action
 against the United States for the recovery of any internal-
 revenue tax alleged to have been erroneously or illegally
 assessed or collected.” As such, Walby’s failure to meet the
 § 7422(a) statutory requirement of a timely administrative
 claim for her 2014 tax claim would not seem to implicate
 the Claims Court’s subject matter jurisdiction; rather, it
 appears to be a simple failure to meet the statutory precon-
 dition to maintain a suit against the government with re-
 spect to those taxes.
     The Supreme Court has not addressed § 7422(a) follow-
 ing Lexmark. We note, however, that the Court’s most re-
 cent discussion of § 7422(a) does not describe it as
 “jurisdictional.” See Clintwood Elkhorn Mining Co., 553
 U.S. 1 at 4–5, 11–12. And, although our court has contin-
 ued to refer to this statute as jurisdictional following
 Lexmark, we have not yet addressed the implications of
 that case and the many Supreme Court cases applying it. 2
     In view of the Supreme Court’s guidance in Lexmark,
 it may be improper to continue to refer to the administra-
 tive exhaustion requirements of § 7422(a) and § 6511 as
 “jurisdictional pre-requisites.” That these provisions con-
 cern the United States’ consent to be sued would not seem
 to change this conclusion. The Supreme Court has “made
 plain that most time bars are nonjurisdictional.” United
 States v. Kwai Fun Wong, 575 U.S. 402, 410 (2015). In
 Kwai Fun, the Court held that the time bar in the Federal
 Tort Claims Act is nonjurisdictional. In doing so, it rejected
 the Government’s argument that, because that time bar is


     2   See, e.g., Stephens v. United States, 884 F.3d 1151,
 1156 (Fed. Cir. 2018); see also Ellis v. United States, 796 F.
 App’x 749, 750 (Fed. Cir. 2020); Langley v. United States,
 716 F. App’x 960, 963 (Fed. Cir. 2017).
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 8                                    WALBY   v. UNITED STATES



 a precondition to the FTCA’s waiver of sovereign immun-
 ity, the time bar must be jurisdictional. As it had in
 Lexmark, the Court distinguished jurisdictional statutes
 from “quintessential claim-processing rules which seek to
 promote the orderly progress of litigation, but do not de-
 prive a court of authority to hear a case.” Id. (internal quo-
 tation marks omitted). It did not except statutes that
 implicate the government’s waiver of sovereign immunity
 from that distinction.
     In reaching this conclusion, the Court relied on Ar-
 baugh v. Y&H Corp., where, finding Title VII’s numerical
 employee threshold nonjurisdictional, the Supreme Court
 stated:
     If the Legislature clearly states that a threshold
     limitation on a statute’s scope shall count as juris-
     dictional, then courts and litigants will be duly in-
     structed and will not be left to wrestle with the
     issue. But when Congress does not rank a statu-
     tory limitation on coverage as jurisdictional, courts
     should treat the restriction as nonjurisdictional in
     character.
 546 U.S. 500, 515–16 (2006). This “clear statement” rule
 “does not mean Congress must incant magic words. But
 traditional tools of statutory construction must plainly
 show that Congress imbued a procedural bar with jurisdic-
 tional consequences.” Kwai Fun, 575 U.S. at 410 (internal
 quotation marks omitted). There is no such clear state-
 ment apparent in the statutes at issue here, 28 U.S.C. §
 7422(a) and § 6511(a). 3 Other courts also have begun to



     3   We are mindful of the Supreme Court’s pre-
 Lexmark jurisprudence concerning § 7422(a). In United
 States v. Dalm, the Court held that the district court lacked
 jurisdiction over gift tax refund suit because “[d]espite its
 spacious terms, § 1346(a)(1) must be read in conformity
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 WALBY   v. UNITED STATES                                     9



 question whether the time limits and administrative ex-
 haustion requirements in these and other tax provisions
 should continue to be deemed jurisdictional. See Gillespie
 v. United States, 670 F. App’x 393, 394–95 (7th Cir. 2016)
 (whether § 7422(a) is jurisdictional); Bullock v. I.R.S, 602
 F. App’x 58, 60 n.3 (3d Cir. 2015) (whether I.R.C. § 7433 is
 jurisdictional). As to at least one administrative exhaus-
 tion requirement, one court has held that it should not be
 deemed jurisdictional. See Gray v. United States, 723 F.3d
 795, 798 (7th Cir. 2013) (I.R.C. § 7433 “contains no lan-
 guage suggesting that Congress intended to strip federal
 courts of jurisdiction when plaintiffs do not exhaust admin-
 istrative remedies”); cf. Duggan v. Comm’r of Internal Rev-
 enue, 879 F.3d 1029, 1034 (9th Cir. 2018) (I.R.C. §
 6630(d)(1)’s 30-day filing deadline “expressly contemplates
 the Tax Court’s jurisdiction . . . the filing deadline is given
 in the same breath as the grant of jurisdiction.”).
     Accordingly, although the Claims Court properly dis-
 missed Walby’s 2014 refund claim because she did not meet
 the prerequisite for bringing such a claim, we think that,
 under Lexmark, Arbaugh, and their progeny, the court
 likely did not lack subject matter jurisdiction over this
 claim.




 with [§ 7422(a) and § 6511(a)] which qualify a taxpayer’s
 right to bring a refund suit upon compliance with certain
 conditions.” 494 U.S. 596, 601 (1990). The Court referred
 to the statutes as “controlling jurisdictional statutes.” Id.
 at 611. But this view was a departure from the Court’s
 prior commentary on a predecessor to § 7422(a), recogniz-
 ing that it “was not a jurisdictional statute at all; it simply
 specified that suits for recovery of taxes, penalties, or sums
 could not be maintained until after a claim for refund had
 been submitted.” Flora v. United States, 362 U.S. 145
 (1960).
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 10                                    WALBY   v. UNITED STATES



             2. Walby’s Failure to State a Claim
      As to her refund claims for the 2016–2018 tax years,
 the Claims Court found these claims were meritless be-
 cause Walby is a United States citizen. 4 The Claims Court
 explained that, under the Fourteenth Amendment, all per-
 sons born in the United States, and subject to its jurisdic-
 tion, are citizens of the United States as well as of the state
 in which they reside. The Claims Court found that Walby,
 a Michigan-born individual, was born in the United States.
 It also found that the exception to birthright citizenship for
 individuals not subject to the jurisdiction of the United



      4   With respect to Walby’s 2018 refund claim, in its
 jurisdictional statement, the government states that the
 Claims Court lacked jurisdiction over this claim because
 Walby filed her administration refund claim with the IRS
 before the tax was deemed paid on April 15, 2019 and, as
 such, the claim was not “duly filed” within the meaning of
 I.R.C. § 7422(a). Appellee Br. vii. Again, it appears that
 the government confuses a plaintiff’s need to satisfy certain
 statutory requirements before being entitled to recover on
 an asserted claim with the court’s jurisdiction to consider
 or adjudicate that claim. “‘[T]he absence of a valid (as op-
 posed to arguable) cause of action does not implicate sub-
 ject-matter jurisdiction, i.e., the court’s statutory or
 constitutional power to adjudicate the case.’” Verizon Md.
 Inc. v. Public Serv. Comm’n of Md., 535 U.S. 635, 642–43
 (2002) (quoting Steel Co. v. Citizens for Better Env’t, 523
 U.S. 83, 89 (1998)). We need not address whether Walby’s
 claim was “duly filed,” however, because we agree with the
 Claims Court that Walby’s claim is meritless on other
 grounds. See Morrison v. Nat’l Australia Bank Ltd., 561
 U.S. 247, 254 (2010) (declining to remand because “nothing
 in the analysis of the court[] below turned on the mistake,
 a remand would only require a new Rule 12(b)(6) label for
 the same Rule 12(b)(1) conclusion.”)
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 WALBY   v. UNITED STATES                                  11



 States did not apply to Walby, noting that her parents were
 not foreign diplomats at the time of her birth but, like her,
 were born in Michigan. Thus, the court held that Walby is
 a citizen of the United States. The court also held that,
 even if Walby were a non-citizen, she meets the “substan-
 tial presence” test for the relevant tax years, making her a
 United States resident for tax purposes. Walby, 144 Fed.
 Cl. at 10.
      On appeal, Walby does not meaningfully challenge the
 Claims Court’s substantial presence determination. In-
 stead, she argues, as she did before the Claims Court, that
 she is not a citizen of the United States pursuant to the
 14th Amendment of the Constitution. Appellant’s Br. 5,
 21. She argues that she has never been a slave and should
 never have been classified as a 14th Amendment Citizen
 because “14th Amendment citizenship was for freed slaves
 only—none of which exist today.” Id. at 4, 8. She further
 insists that she has not renounced her United States citi-
 zenship, “nor is she required to do so.” Id. at 21. She ex-
 plains that she has, instead, “simply reclaimed the State
 citizenship available since 1787, by submitting an ‘Affida-
 vit of Citizenship.’” Id. Walby contends that, pursuant to
 this affidavit, she has abandoned the default 14th Amend-
 ment Citizenship, which was “wrongfully imposed on a
 free-born State Citizen.” Id.
     Walby also appears to argue that her “Affidavit of Cit-
 izenship” established her “non-citizen National” status be-
 cause the U.S. Secretary of State accepted it in the course
 of her passport renewal “without rebuttal or resistance.”
 Id. at 5. Finally, Walby appears to argue that another no-
 tarized affidavit, her December 7, 2016 “Revocation of
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 12                                   WALBY   v. UNITED STATES



 Election,” establishes her non-citizen status pursuant to 26
 U.S.C. § 6013(g). 5 Id. at 12.
      Walby’s arguments are unavailing. Under the 14th
 Amendment, “[a]ll persons born or naturalized in the
 United States, and subject to the jurisdiction thereof, are
 citizens of the United States and of the state wherein they
 reside.” U.S. Const. amend. XIV, § 1. Walby, born in Mich-
 igan to parents who were not foreign diplomats and them-
 selves were born in the United States, provides no basis on
 which she falls outside that language. Walby does not ar-
 gue, moreover, that she has renounced her United States
 citizenship pursuant to 8 U.S.C. § 1481(a). In fact, she
 states that she is not required to do so.
     Walby’s other arguments in support of her claim of
 non-citizen status also fail. To the extent Walby relies on
 the renewal of her passport as proof of her “non-citizen Na-
 tional” status, no such legal status exists. Further, the ex-
 cerpted March 11, 2014 letter from the State Department
 that Walby submitted in support of this argument clearly
 stated that “a U.S. passport will be issued [to Walby] stat-
 ing that [she is] a U.S. citizen.” See Appellant Br. 5; Ex-
 cerpted March 11, 2014 Letter (document bearing number
 00173227-0672). 6 Walby’s “Revocation of Election” pursu-
 ant to 26 U.S.C. § 6013(g) fares no better. This statute


      5  This “Revocation of Election” was included in
 Walby’s Informal Appendix, and, unlike the other docu-
 ments at issue in this appeal, does not appear to have been
 included as an exhibit to Walby’s complaint. The govern-
 ment does not object to the submission of this document in
 Walby’s appellate submissions.
     6   Walby’s Informal Appendix does not contain any
 Bates numbering or consecutive pagination, so we have
 identified this document through the document number
 stamped on the first page, as Walby did in her opening
 brief.
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 WALBY   v. UNITED STATES                                   13



 relates to joint returns filed by married individuals where
 a nonresident alien is married to a citizen or resident of the
 United States. It does not provide an avenue for Walby to
 renounce her citizenship or unilaterally declare herself a
 non-citizen.
     As such, Walby has failed to demonstrate that she is
 not a United States citizen. She is therefore subject to fed-
 eral income taxes and the Claims Court properly dismissed
 her complaint for failure to state a claim upon which relief
 can be granted.
                 B. The Government’s Motion
     On December 20, 2019, the government filed a motion
 seeking sanctions against Walby in the amount of $8,000
 for maintaining a frivolous appeal, pursuant to I.R.C.
 § 7482(c)(4), 28 U.S.C. § 1912, and Rule 38 of the Federal
 Rules of Appellate Procedure. According to the govern-
 ment, the Claims Court rejected Walby’s citizenship argu-
 ment as “patently frivolous,” but Walby again presented
 these arguments on appeal. Appellee’s Mot. for Sanctions
 at 3–5 (citing, inter alia, Zuger v. United States, 834 F.2d
 1009, 1010 (Fed. Cir. 1987)). The government contends
 that this warrants an imposition of sanctions on Walby.
      On January 27, 2020, Walby filed a response to the gov-
 ernment’s motion. In her response, Walby states that her
 case is not frivolous because, prior to filing this case, she
 searched the Court of Claim’s website and did not find any
 cases discussing a “Revocation of Election.” Appellant’s
 Resp. at 6. According to Walby, her case is therefore “the
 first of its kind.” Id.
     Under Rule 38, sanctions may be imposed for frivolous
 appeals even if the litigant is proceeding pro se. See Finch
 v. Hughes Aircraft Co., 926 F.2d 1574, 1582 (Fed. Cir.
 1991). At the same time, we must exercise caution before
 “imposing sanctions on a pro se litigant, whose improper
 conduct may be attributed to ignorance of the law and
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 14                                   WALBY   v. UNITED STATES



 proper procedures.” Id. We agree with the Claims Court
 that Walby’s arguments in support of her non-citizen sta-
 tus are “patently frivolous.” Walby, 144 Fed. Cl. at 9. We
 decline to impose sanctions on Walby in this instance, how-
 ever, because her filing of this frivolous appeal may be at-
 tributable to her ignorance of the law. 7 Accordingly, we
 deny the government’s motion for sanctions. The govern-
 ment may, however, seek sanctions against Walby should
 she continue to bring similar claims in future.
                         CONCLUSION
     For the foregoing reasons, we affirm the Claims Court’s
 decision and deny the government’s motion.
                         AFFIRMED




      7   To be clear, we do not suggest that Walby’s subjec-
 tive belief in the merits of her appeal is in any way relevant
 to whether her appeal is frivolous as filed.
