                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT
                        _____________________

                             No. 01-21064
                        _____________________

AUGUSTINE DUBE; NOELLE DAVIS; KSHANTI MORRIS; RUBEN
CAPALETTI; ROBIN MCVEIGH; MELVIN EVANS; CHERYL
MEACHUM-EVANS; BERNARD GREAUX,

                                           Plaintiffs - Appellants,

PROVOST UMPHREY LAW FIRM LLP,

                                                          Appellant,
   v.

EAGLE GLOBAL LOGISTICS, also known as Eagle U S A Airfreight Inc.,

                                                Defendant - Appellee,
    and

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

                                                           Appellee.

-----------------------------------------------------------------
                        Consolidated With
                        Case No. 01-21258

AUGUSTINE DUBE; NOELLE DAVIS; KSHANTI MORRIS; RUBEN
CAPALETTI; ROBIN MCVEIGH; MELVIN EVANS; CHERYL
MEACHUM-EVANS; BERNARD GREAUX,

                                           Plaintiffs - Appellants,
   v.

EAGLE GLOBAL LOGISTICS, also known as Eagle USA Airfreight Inc.,

                                                Defendant - Appellee,

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

                                                           Appellee.


                        ----------------------
        Appeals from the United States District Court for the
                      Southern District of Texas
                        ----------------------
                           November 25, 2002

Before WIENER and STEWART, Circuit Judges, and RESTANI*, Judge.

BY THE COURT:

     Before us is the motion of Defendant-Appellee Eagle Global

Logistics (“Eagle”) to impose sanctions on Plaintiffs-Appellants,

their counsel (principally, the “Provost Umphrey” law firm1), or

both.    Eagle invites us to rely on Rule 38 of the Federal Rules of

Appellate Procedure, as well as 28 U.S.C. § 1927 and our inherent

powers.    We choose to decide this matter under Rule 38 only, and

impose sanctions against Provost Umphrey thereunder.

     Eagle’s request for sanctions is predicated on our previous

rejection of Provost Umphrey’s appellate briefs as noncompliant and

on that firm’s subsequent voluntary dismissal of its clients’

consolidated appeals.      We rejected Provost Umphrey’s briefs as

noncompliant    because,   inter   alia,   they   contained   “specious

arguments” and had “grossly distorted” the record through the use

of ellipses to misrepresent the statements and orders of the

district court.

     Under Rule 38, a federal appellate court, following a motion

by counsel, may impose “just damages” and award single or double


     *
       Judge of the U.S. Court of International Trade, sitting by
designation.
     1
      Three attorneys not formally associated with Provost Umphrey
signed the offending appellate briefs: Jonathan S. Massey, Daniel
Guttman, and Marian S. Rosen. These attorneys are held jointly and
severally liable with Provost Umphrey for the sanctions imposed
hereunder.

                                   2
costs to an appellee if the court determines that an appeal is

frivolous.      In   construing    Rule    38,   federal    courts   define   a

“frivolous appeal” in terms of either the legal merits of the case

or the acts and methods of appellate counsel.2         With respect to the

latter, we have followed the lead of other circuits3 that have

sanctioned    attorneys   for     filing    briefs   that    were    “bent    on

misleading the court”4 and for advancing arguments that fell “below

minimum professional standards.”5           Courts of Appeal have also

sanctioned attorneys under Rule 38 for breaches of professional

conduct essentially identical to those committed by Provost Umphrey

in these consolidated appeals, i.e., misrepresenting the record and

using ellipses to misrepresent statements out of context.6

     Inasmuch as Provost Umphrey elected to dismiss its clients’

appeals and exhibited a degree of contrition following our initial



     2
       The Federal Circuit casts this distinction in terms of
appeals that are “frivolous as filed” versus appeals that are
“frivolous as argued.” Finch v. Hughes Aircraft Co., 926 F.2d 1574
(Fed. Cir. 1991).
     3
         Coghlan v. Starkey, 852 F.2d 806, 816 n.19 (5th Cir. 1988).
     4
         Herzfeld & Stern v. Blair, 769 F.2d 645, 647 (10th Cir.
1985).
     5
         SEC v. Suter, 832 F.2d 988, 991 (7th Cir. 1987).
     6
       Ortiz-Villafane v. Segarra, 797 F.2d 1, 2 (1st Cir. 1986)
(sanctioning attorney for “blatant misrepresentations [of the
record] in appellant’s brief”); Paulik v. Rizkalla, 796 F.2d 456,
460 (Fed. Cir. 1986) (sanctioning attorney for using ellipses to
create “flagrant misrepresentations of the record, [which] was a
gross violation of the high standards of professional conduct that
we expect and demand of members of our bar”).

                                      3
ruling in this matter, we deem sanctions in an amount equal to the

attorneys’ fees and costs actually incurred by Eagle in the appeal

of these actions to be sufficient.          In cases such as this one,

however, appellants generally are not held accountable for the

offending tactics employed by their attorneys.           Thus, appellate

counsel   alone   are   frequently   held   personally   liable   for   any

sanctions imposed by the court.7

     IT IS ORDERED, therefore, that Eagle's motion for sanctions

against Provost Umphrey under Rule 38 is GRANTED, in the amount of

Eagle’s attorneys’ fees and costs actually incurred ($71,117.75).

     IT IS FURTHER ORDERED that Eagle’s request for sanctions

against Plaintiffs-Appellants and for other sanctions against their

counsel is DENIED.




     7
       Coghlan, 852 F.2d at 818. See also Hilton Co. (V.I.) Inc.
v. Hyatt Int’l, 899 F.2d 250, 253-54 (3d Cir. 1990) (citing
circuits that have interpreted Rule 38 as permitting a court to
hold an attorney personally liable for sanctions imposed
thereunder).

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