                                                                   FILED
                                                       United States Court of Appeals
                        UNITED STATES COURT OF APPEALS         Tenth Circuit

                                      TENTH CIRCUIT                        November 26, 2014

                                                                          Elisabeth A. Shumaker
    EDSON GARDNER, Uintah Indian                                              Clerk of Court
    Descendant,

          Plaintiff - Appellant,

    v.                                                        No. 14-4090
                                                   (D.C. No. 2:13-CV-01027-TC-EJF)
    MICHAEL W. WILKINS, Uintah County                          (D. Utah)
    Clerk‒Auditor; G. A. PETRY, Uintah
    County Justice Court Judge,

          Defendants - Appellees.




                                   ORDER AND JUDGMENT*


Before HARTZ, McKAY, and ANDERSON, Circuit Judges.



         This is a frivolous appeal. We affirm the judgment below and impose sanctions.

         In November 2013 Edson Gardner filed a pro se complaint in the United States

District Court for the District of Utah seeking declaratory and injunctive relief against the

*
  After examining the briefs and appellate record, this panel has determined unanimously
to honor the parties’ request for a decision on the briefs without oral argument. See Fed.
R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without
oral argument. This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R.
32.1.
Uintah County Clerk-Auditor and a Uintah County Justice Court Judge (the appellees).

His later amended complaint alleged that Uintah County lacks authority to tax, regulate,

and enforce its laws against Mr. Gardner because he is a “Uintah Indian Descendant.”

Am. Compl. for Declaratory & Injuntive Relief at 1, Gardner v. Uintah Cnty. Clerk-

Auditor, No. 2:13-CV-1027-TC (C.D. Utah Dec. 5, 2013). The district court dismissed

Mr. Gardner’s complaint for failure to state a claim on which relief can be granted. See

Fed. R. Civ. P. 12(b)(6). Judgment was entered on June 2, 2014.

       Mr. Gardner has a history of unsuccessfully litigating similar issues based on his

purported Indian status. See, e.g., Gardner v. Wilkins, 535 F. App’x 767, 767 (10th Cir.

2013) (“Litigation regarding Gardner’s Indian status is a road well-traveled. He does not

claim to be a member of a federally recognized tribe. Rather, he claims only to be a

descendant of a former member, as are many other Americans. Despite his best efforts in

federal, state, and tribal court, this heritage does not entitle him to Indian status whether

or not he lives and works on the reservation.”); Gardner v. Ute Tribal Court, 36 F.

App’x. 927 (10th Cir. 2002); Gardner v. United States, 25 F.3d 1056 (10th Cir. 1994)

(unpublished). Aware of this history and having previously warned Mr. Gardner that any

attempt to relitigate the same issues would result in sanctions, the district court held that

it would impose monetary sanctions and directed the appellees to file documentation of

their attorney fees and costs. On July 17, 2014, the court granted the appellees’ motion

for attorney fees in the amount of $4,861.99. Mr. Gardner filed a notice of appeal on

August 4, citing only the order granting attorney fees as the subject of the appeal.
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        In a civil case the notice of appeal must be filed within 30 days of entry of

judgment. See Fed. R. App. P. 4(a)(1)(A). Mr. Gardner filed his notice of appeal over

two months after the entry of judgment dismissing his complaint. The filing was,

however, only 18 days after the order awarding attorney fees. For purposes of appeal, the

order granting attorney fees is treated as a matter distinct from the court’s judgment on

the merits. In particular, the judgment on the merits is final—and the time to appeal

begins to run on entry of the judgment—even though the issue of attorney fees remains

pending. See Yost v. Stout, 607 F.3d 1239, 1243 (10th Cir. 2010). Thus, we have

jurisdiction under 28 U.S.C. § 1291 to review only the July 17 order granting attorney

fees.

        Mr. Gardner’s appellate briefs, however, do not discuss the district court’s award

of attorney fees. Instead, they argue that his status as a Uintah Indian Descendant entitles

him to sovereign immunity and that the district court erred in finding a waiver of

sovereign immunity. Although we liberally construe the filings of pro se appellants, we

may not “assume the role of advocate” and make arguments for them. See Yang v.

Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008) (internal quotation marks omitted).

We hold that the omission from Mr. Gardner’s briefs of any argument directed to the

award of attorney fees waives the issue, see State Farm Fire & Cas. Co. v. Mhoon,

31 F.3d 979, 984 n.7 (10th Cir. 1994), and we affirm the award.

        Mr. Gardner’s shenanigans have consequences. Federal Rule of Appellate

Procedure 38 provides that “[i]f a court of appeals determines that an appeal is frivolous,
                                              3
it may, after a separately filed motion or notice from the court and reasonable opportunity

to respond, award just damages and single or double costs to the appellee.” The

appellees have moved for attorney fees and double costs as sanctions. Mr. Gardner

responded to the motion, but not persuasively. “An appeal is frivolous when the result is

obvious, or the appellant’s arguments of error are wholly without merit.” Braley v.

Campbell, 832 F.2d 1504, 1510 (10th Cir. 1987) (internal quotation marks omitted). This

appeal fits that description. Mr. Gardner has failed to make any reasoned argument that

the district court erred. Indeed, his brief ignores the subject of this appeal, the award of

attorney fees. Moreover, this is not the first time that Mr. Gardner has brought a wholly

meritless appeal in this court. See Gardner, 535 F. App’x at 768 (“In both appeals,

Gardner’s briefs ignore the unassailable reasons for the courts’ dismissals of his claims.”

(footnote omitted)). “Such meritless appeals are a burden on the federal court system and

justify the exercise of our discretionary power to award attorney’s fees and double or

single costs against litigants who prosecute frivolous appeals.” Fed. Deposit Ins. Corp. v.

Van Laanen, 769 F.2d 666, 667 (10th Cir. 1985). Mr. Gardner’s pro se status does not

immunize him. See Kyler v. Everson, 442 F.3d 1251, 1253–54 (10th Cir. 2006)

(“Although this court may require a higher level of responsibility from members of the

bar, pro se litigants are subject to the same minimum litigation requirements that bind all

litigants and counsel before all federal courts. We emphasize today that we will

scrutinize equally all filings by both pro se and counseled litigants to protect against the

abuses identified in . . . Rule 38.” (citation omitted)).
                                               4
       Accordingly, we grant the appellees’ motion for sanctions under Rule 38 and

award attorney fees as “just damages.” We also award double costs to be assessed by the

clerk in compliance with Rule 39. See Fed. R. App. P. 39. Ordinarily we remand to the

district court to assess attorney fees. But “an additional round of briefing on the amount

of fees would only add to the unnecessary expenses already incurred” in this unnecessary

litigation. NLRB v. Teamsters Local Union No. 523, 488 F. App’x 280, 284 (10th Cir.

2012), cert. denied, 133 S. Ct. 1458 (2013). The record before us and our prior practice

supports an award of $1,000 in attorney fees. See id. at 284–85.

       The district court’s award of attorney fees is AFFIRMED. The appellees’ motion

for sanctions is GRANTED and Mr. Gardner is ordered to pay $1,000 plus double costs

to the appellees.

                                          ENTERED FOR THE COURT


                                          Harris L Hartz
                                          Circuit Judge




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