UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ALLEN A. IZADPANAH,
Plaintiff-Appellant,

WALTER T. CHARLTON; JOEL A.
DEBOE; FRED A. PAGE; TERRY PAGE;
DOUGLAS STUP; EARL M. CUNARD;
JANICE A. CUNARD; CRAFT
INDUSTRIES, for the benefit of Rudy
Delsack; 87 AIDANT LIMITED
PARTNERSHIP; WILLIAM S.
                                                               No. 96-2362
BURROUGHS, JR.,
Intervenors-Appellants,

v.

EDWARD GROSS; ROBERT A. HUMMEL;
FEDERAL COMPUTER CORPORATION;
CHARLES CROWE; AIDANT,
INCORPORATED,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-94-1150-A)

Argued: October 30, 1997

Decided: February 13, 1998

Before WIDENER, ERVIN, and WILKINS, Circuit Judges.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

ARGUED: William S. Burroughs, Jr., Alexandria, Virginia; Joel
Augustus DeBoe, Arlington, Virginia; Walter Theodore Charlton,
Arlington, Virginia, for Appellants. Edward Gross, EDWARD
GROSS & ASSOCIATES, P.C., Fairfax, Virginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Allen Izadpanah and his attorneys (collectively,"Appellants") chal-
lenge sanctions levied against Izadpanah's attorneys by the district
court. We vacate the order of sanctions and remand for further pro-
ceedings consistent with this opinion.

I.

In a prior appeal, we affirmed a grant of summary judgment in
favor of Charles Crowe, Robert Hummel, Edward Gross, Federal
Computer Corporation, and Aidant, Incorporated (collectively, "Ap-
pellees"), holding that Izadpanah had failed to raise a genuine issue
of material fact regarding any of his several claims against them,
including his claim that a consent judgment entered in state court
should be vacated because a fraud had been committed on that court.
With respect to Appellees' cross appeal of the finding of the district
court that Appellants' action was not frivolous and the refusal of the
court to impose sanctions, we remanded to the district court the issue
of whether Appellants' claim of entitlement to review of the state
court judgment warranted sanctions in light of the fact that District of
Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), pre-
cludes such review. See Izadpanah v. Gross, 76 F.3d 373 (4th Cir.)

                    2
(unpublished table decision) (per curiam), cert. denied, 117 S. Ct. 67
(1996).

On remand, the district court, without conducting an evidentiary
hearing, found that Appellants "were not serious," J.A. 24, in attempt-
ing to distinguish Feldman1 and that they failed to conduct a reason-
able legal investigation.2 The district court imposed sanctions of
$66,868.77, the entire amount of the attorneys' fees and costs Appel-
lees incurred before the district court and this court through April 24,
1996.

II.

Appellants argue that the decision of the district court to sanction
Izadpanah's attorneys without conducting an evidentiary hearing con-
stituted an abuse of discretion. We agree.

Rule 11(b) of the Federal Rules of Civil Procedure provides in part
that by presenting a pleading to the court, an attorney
_________________________________________________________________

1 We interpret this statement as a finding that Appellants' attempt to
distinguish Feldman was made for an "improper purpose." Fed. R. Civ.
P. 11(b)(1).
2 The order also could be susceptible to an interpretation that the basis
for the sanction was that Appellants' attempt to distinguish Feldman vio-
lated Federal Rule of Civil Procedure 11(b)(2), which provides that in
presenting a pleading to a court, an attorney represents that the "legal
contentions therein are warranted by existing law or by a nonfrivolous
argument for the extension, modification, or reversal of existing law or
the establishment of new law." Fed. R. Civ. P. 11(b)(2). However, the
district court specifically found in its first order that Appellants' action
was not frivolous. And, although we did remand the sanctions issue to
the district court, we intended the court to consider only whether Appel-
lants' claims violated those portions of Rule 11 to which the eventual
withdrawal of their attempt to distinguish Feldman might be relevant.
Because Appellants' decision to withdraw their argument has no bearing
on the objective reasonableness of the contention they withdrew, the dis-
trict court had no reason to reconsider the previous determination that the
argument was not frivolous.

                    3
          is certifying that to the best of the person's knowledge,
          information, and belief, formed after an inquiry reasonable
          under the circumstances,--

          (1) it is not being presented for any improper
          purpose ... ; [and]

          (2) the claims, defenses, and other legal con-
          tentions therein are warranted by existing law or
          by a nonfrivolous argument for the extension,
          modification, or reversal of existing law or the
          establishment of new law.

Fed. R. Civ. P. 11(b)(1)-(2). A determination that Rule 11 has been
violated is reviewed for an abuse of discretion. See Cooter & Gell v.
Hartmarx Corp., 496 U.S. 384, 405 (1990).

Because the record in its current state cannot support a finding that
Appellants had an improper purpose in attempting to distinguish
Feldman or that they failed to make a timely and proper legal
investigation,3 we vacate the award of sanctions and remand for fur-
ther proceedings. On remand, the district court should conduct an evi-
dentiary hearing regarding whether Appellants violated Federal Rule
of Civil Procedure 11 regarding their attempts to distinguish Feldman
and whether sanctions are appropriate.4

VACATED AND REMANDED
_________________________________________________________________
3 Although Appellants withdrew their attempt to distinguish Feldman
in their reply brief in the first appeal to this court, it is not reasonable to
infer from the withdrawal alone that Appellants had an improper purpose
in pursuing the claim or that they failed to conduct a reasonable investi-
gation.
4 In the event that the district court on remand once again finds a sanc-
tion of fees and costs to be appropriate, "[o]nly attorney time which is
in response to [Appellants' attempts to distinguish Feldman] should be
evaluated." Robeson Defense Comm. v. Britt (In re Kunstler), 914 F.2d
505, 523 (4th Cir. 1990). Fees and costs incurred by Appellees as a result
of either appeal should not be awarded. See Cooter & Gell, 496 U.S. at
406-09.

                    4
