                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 17a0061n.06

                                          No. 16-1260

                           UNITED STATES COURT OF APPEALS                            FILED
                                FOR THE SIXTH CIRCUIT                          Jan 24, 2017
                                                                           DEBORAH S. HUNT, Clerk
OLD BLAST, INC., et al.,

       Plaintiffs-Appellants,

v.

OPERATING ENGINEERS LOCAL 324 PENSION
FUND,

       Defendant-Appellee.


                                            ORDER

       Before: CLAY, KETHLEDGE, and DONALD, Circuit Judges.

       Old Blast, Inc. and Joyce Denonville sued the Operating Engineers Local 324 Pension

Fund, arguing that ERISA’s imposition upon Old Blast of withdrawal liability to the Fund was

unconstitutional. The district court granted the Fund’s motion to dismiss. We affirmed on

procedural grounds, holding that Denonville lacked standing and Old Blast’s claims were barred

by res judicata. In a concurring opinion, Judge Clay explained that Old Blast and Denonville’s

substantive arguments also failed on the merits, noting specifically that “Old Blast’s facial

constitutional challenge was meritless, and arguably frivolous.” Old Blast, Inc. v. Operating

Eng’rs Local 324 Pension Fund, No. 16-1260, 2016 WL 6407244, at *4 (6th Cir. Oct. 31, 2016).

The Fund then filed a motion for attorney’s fees in the amount of $8,190, and the plaintiffs filed

a response. We now grant the Fund’s motion under Federal Rule of Appellate Procedure 38.
No. 16-1260, Old Blast, Inc., et al. v. Operating Eng’rs Local 324 Pension Fund


       Rule 38 “affords us discretion to assess just damages when confronted with a frivolous

appeal.” Miller v. Toyota Motor Corp., 554 F.3d 653, 654 (6th Cir. 2009) (internal quotation

marks and citation omitted). We can issue sanctions under Rule 38 if we determine that an

appeal was frivolous. Hogan v. Jacobson, 823 F.3d 872, 886 (6th Cir. 2016). An appeal is

frivolous if it had “no reasonable expectation of altering the district court’s judgment.” Wilton

Corp. v. Ashland Castings Corp., 188 F.3d 670, 676 (6th Cir. 1999).

       Here, the plaintiffs had no prospect whatsoever of altering the district court’s judgment

based on the arguments they presented to this Court. Specifically, the plaintiffs offered no

response to the Fund’s arguments that Denonville lacked standing as a shareholder and that Old

Blast’s claims were barred by res judicata. Both of those arguments were plainly correct, and

both were adopted by this Court.        Moreover, as Judge Clay thoroughly explained in his

concurrence, the plaintiffs’ substantive arguments were meritless. See Old Blast, 2016 WL

6407244, at *3-4. The plaintiffs’ counsel simply should have known better than to pursue an

appeal on the grounds presented here.

       The appeal in this case was frivolous.        We therefore grant the Fund’s motion for

attorney’s fees in the amount of $8,190, which shall be paid by the plaintiffs’ appellate counsel

rather than by the plaintiffs themselves.

                                             ENTERED BY ORDER OF THE COURT




                                             __________________________________
                                                   Deborah S. Hunt, Clerk




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