           NOTE: This order is nonprecedential

  United States Court of Appeals
      for the Federal Circuit
               __________________________

           IN RE VIOLATION OF RULE 38
              __________________________

              Miscellaneous Docket No. 981
              __________________________

    Appeal From the United States Court of Federal
Claims in case No. 05-CV-162, Judge Mary Ellen Coster
Williams.
              __________________________

   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). Because this court finds that no basis for reversal
in law or fact can be or is even arguably shown, this court
concludes that the appeal is both frivolous as filed and
2                               IN RE VIOLATION OF RULE 38

frivolous as argued and sanctions Martin G. Crowley
(“Crowley”), counsel for Underwood, in the amount of the
government’s attorney fees and costs in defending this
appeal.
                      BACKGROUND
    In this appeal, Underwood raised eight issues. Not a
single one of those issues addressed the sole basis upon
which the Claims Court’s decision was grounded—
nonparty issue preclusion. On appeal to this court, Un-
derwood, through its counsel, failed to show any error in
the Claims Court’s well-reasoned decision and essentially
ignored the Claims Court’s determination of issue preclu-
sion. What is even worse, Underwood instead asked this
court to review and vacate the decision of the Interior
Board of Land Appeals, a matter over which this court
lacks jurisdiction. In so asking, Underwood misrepre-
sented our statutory authority to act. As noted in the
panel opinion, Underwood alleged this court possessed
jurisdiction to review decisions of the Interior Board of
Land Appeals under 5 U.S.C. § 7703, a section titled
“Judicial review of decisions of the Merit Systems Protec-
tion Board.” Underwood, slip op. at 9.
    Underwood’s failure to point to any legal error by the
Claims Court and Underwood’s misrepresentation of our
purported statutory authority to review decisions of the
Interior Board of Land Appeals prompted this court, on
March 31, 2011, to issue an order directing Underwood
and Crowley to explain in writing why this case should
not be deemed frivolous as filed and frivolous as argued in
the submitted briefs; why sanctions should not be im-
posed; and how such sanctions, if imposed, should be
apportioned between appellant and its counsel. The court
ordered that the explanation be filed no later than 15
days from the date of the order.
IN RE VIOLATION OF RULE 38                             3

                       DISCUSSION
     “If a court of appeals determines that an appeal is
frivolous, it may, after . . . notice from the court and
reasonable opportunity to respond, award just damages
and single or double costs to the appellee.” Fed. R. App.
P. 38. We have held that an appeal may be “frivolous as
filed” when “an appellant grounds his appeal on argu-
ments or issues that are beyond the reasonable contem-
plation of fair-minded people, and no basis for reversal in
law or fact can be or is even arguably shown,” and may be
“frivolous as argued” when an appellant “has not dealt
fairly with the court, [or] has significantly misrepresented
the law or facts.” Abbs v. Principi, 237 F.3d 1342, 1345
(Fed. Cir. 2001) (internal citations omitted). Although
“[w]e are reluctant to impose sanctions,” id. at 1346,
“[e]xamples of actions deemed sanctionable include . . .
failing to explain how the trial court erred or to present
cogent or clear arguments for reversal, . . . citing irrele-
vant or inapplicable authority, . . . making irrelevant and
illogical arguments, [and] misrepresenting facts or law to
the court,” id. at 1345 (internal citations omitted).
     Underwood’s failure to point to any legal errors by the
Claims Court; incorrect statement of statutory authority
concerning our purported jurisdiction over the Interior
Board of Land Appeals; demands for this court to take
mandatory judicial notice of, among other items, “all Acts
of Congress” and “the Constitution of the United States”;
and assertion of arguments relating to matters wholly
outside this court’s jurisdiction can best be described as
the type of irrelevant and illogical argument warned
against in Abbs. Underwood made no effort to identify
any legal or factual error in the Claims Court’s reasoning
or findings.
     Crowley’s response to the show cause order not only
fails to justify his conduct and that of his client in any
coherent manner but reiterates the same frivolous argu-
ments presented previously. Moreover, and representa-
4                              IN RE VIOLATION OF RULE 38

tive of the sloppy nature of this appeal, Crowley “ques-
tions” this court’s authority to impose sanctions under
Nevada Rule of Appellate Procedure 38. Response to
Order to Show Cause (“Response”) at 7. Crowley’s “ques-
tions” would have been answered had he properly re-
viewed this court’s Rules of Practice, available on this
court’s website, as opposed to the rules adopted by the
Nevada Supreme Court. This court’s order to show cause
threatened sanctions under Federal Rule of Appellate
Procedure 38, about which this court’s Practice Note,
titled “WARNING AGAINST FILING OR PROCEEDING
WITH A FRIVOLOUS APPEAL OR PETITION,” cautions
that “many precedential opinions have included sanctions
under the rule.”
     As to how sanctions should be apportioned between
Underwood and Crowley, Crowley’s response was silent.
Crowley did contend that the pro bono efforts of, at best,
some of his team affected his “ability to spend an ade-
quate amount of time on the issues.” Response at 8. “As
should scarcely need repeating, counsel’s duty of diligent
and prompt representation applies to all clients, without
distinction.” See, e.g., Davis v. Miller, 571 F.3d 1058,
1063, n.5 (10th Cir. 2009). While this court is aware of
the difficulties faced by pro bono counsel, “volunteer
lawyer time is a precious commodity and should not be
wasted on frivolous cases.” See, e.g., Parham v. Johnson,
126 F.3d 454, 458 (3d Cir. 1997). The constraints Crowley
faced do not give him the liberty to waste the taxpayers’
money through the filing of a frivolous appeal against the
United States government. “This and other federal courts
are funded by the taxpayers of this country to adjudicate
genuine disputes, not to function as playgrounds for
would-be lawyers or provide an emotional release for
frustrated litigants.” Constant 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,
IN RE VIOLATION OF RULE 38                            5
and this court has still had to devote energy and resources
to deciding, this wholly frivolous appeal.”).
     This court “never impose[s] sanctions lightly” and
while “particularly cautious in the case of a pro se liti-
gant, whose improper conduct may be attributed to igno-
rance of the law and proper procedures,” here, Crowley is
a licensed attorney and a member of this court’s bar. Cf.
Constant, 929 F.2d at 658 (internal citations omitted). An
attorney’s role as a counselor requires him to provide
sound legal advice to his client. In view of Crowley’s
statement that the president of Underwood is an “elderly
man . . . [with] no money,” Response at 9, and Crowley’s
failure to suggest that anyone but Crowley is to blame for
not advising his client that the appeal sought was frivo-
lous, both as filed and argued, this court declines to tax
anyone but Crowley.
   Accordingly,
   IT IS ORDERED THAT:
    (1) Crowley is ordered to pay the government its at-
torney fees and costs expended in defending this appeal
because of his violation of Federal Rule of Appellate
Procedure 38.
    (2) The government is directed to file with this court
its claim for reasonable attorney fees and costs incurred
in the defense of this appeal, together with supporting
documentation, within (15) days of the date of this order.
Crowley shall have five (5) days from the date the gov-
ernment files its submission with the court to file any
objection thereto.
6                                 IN RE VIOLATION OF RULE 38

                                     FOR THE COURT,


    April 25, 2011                   /s/ Jan Horbaly
        Date                         Jan Horbaly
                                     Clerk

    cc: Martin G. Crowley, Esq.
        Kurt G. Kastorf, Esq.
