Finch v. Hughes Aircraft Co. - Military Order of the Purple Heart

Wednesday Evening 

Optional Session 

1

Overview 

‣ How Courts See the Role of VSOs 

(Comer v. Peake) 

‣ How to Get a Medical Opinion (DIC Case- 

Residuals of Frostbite) 

‣ Secondary SC for Back Due to SC Ankle 

2

Introduction 

‣ Leroy Comer appealed CAVC decision 

holding that he had not properly raised the 

issue of entitlement to an EED for TDIU 

3

II. Facts 

‣ Active Duty: 1967- 1970 

‣ Vietnam: 1968- 1960 guarding ammunition 

depot under mortar attack every night 

4

II. Facts (cont.) 

‣ 1988- Comer filed a claim pro se for SC 

for PTSD 

‣ Rated 30% but not SC, therefore, received 

no benefits 

‣ Failed to establish relationship between 

PTSD and service 

5


‣ In 1999 Vet filed request to reopen – 

denied 

‣ Vet appealed to BVA – denial reversed 

and remanded to RO 

• “generally appears that the diagnosis of PTSD 

is related to service” 

6


‣ RO granted 30% SC effective 02/26/99 

‣ Vet filed NoD in 2003 requesting higher 

rating and 1988 ED 

‣ RO responded by increasing to 50% 

‣ Vet appealed in 2003 (DAV statement) 

7


‣ C&P exam in 2004- PTSD diagnosed 

‣ RO then gave 70% and TDIU effective 

05/05/04 

‣ Board denied ED of 02/26/99 & retroactive 

benefits – No CUE 

8

III. CAVC 

‣ Vet gained legal representation and 

appealed to CAVC 

‣ CAVC denied jurisdiction b/c he did not 

raise retroactive benefits in NoD 

‣ Also said VA complied with notice 

requirements of 38 U.S.C. § 5103(a) 

‣ Case appealed to Federal Circuit 

9

IV. Federal Circuit Decision 

(Comer’s arguments) 

‣ Board misconstrued Roberson by denying 

jurisdiction over retroactive benefits 

‣ Board should consider TDIU whenever pro 

se vet seeks higher disability rating w/ 

evidence of unemployability 

10

Roberson 

‣ Vet with significant disabilities filed pro se 

but did not specify TDIU, and RO did not 

give TDIU 

‣ Sought to reopen asserting RO contained 

CUE and failed to consider TDUI 

‣ Vet Court rejected but appeal reversed 

11

Roberson Appeal 

‣ Although no TDIU specifically requested, 

VA required to consider b/c record 

contained evidence of unemployability 

‣ Like Roberson, Comer also pro se and 

presented evidence of unemployability 

12

A. Sympathetic Reading of Vet’s 

Filings 

‣ BUT Gov. says Roberson inapplicable 

here b/c it does not apply: 

• To appeal submissions to the board following 

an initial rating determination 

• To situations in which a veteran is assisted by 

a rep from a VSO 

13

Gov Reads Roberson too 

Restrictively 

• Requires symp. reading to all pro se 

pleadings 

• No reason Roberson shouldn’t apply to NoD’s 

• Paternalistic nature of proceedings require 

board fully & sympathetically develop vets 

claims on all merits 

14

A. Sympathetic Reading of Vet’s 

Filings 

‣ Vet didn’t state certain entitlement to EED 

‣ BUT claim for increased rating w/ other 

EED claim & pervasive evidence sufficient 

to raise the EED claim 

15

VA has duty to read appeal 

sympathetically 

‣ Duty to read the claim sympathetically & 

ascertain all potential claims is antecedent 

to duty to ensure issue properly raised 

‣ 38 C.F.R. § 20.202 – construe vet’s 

arguments on appeal in liberal manner 

‣ Vet may lack knowledge of all VA terms 

16

Hughes v. Rowe 

‣ Pleadings by pro se litigants should be 

held to lesser standards than those by 

lawyers since: 

• “[a]n unrepresented litigant should not be 

punished for his failure to recognize subtle 

factual or legal deficiencies in his claims” 

17

Barrett v. Nicholson (2006) 

‣ “The government’s interest in veterans 

cases is not that it shall win, but rather that 

justice shall be done, that all veterans so 

entitled received the benefits due to them.” 

18

VA Compensation System Not 

Meant as Trap 

‣ VA has affirmative duty to assist vets by 

informing them of benefits available and 

assisting in claims – Jaquay 

‣ Assistance particularly necessary where 

as here, vet has psychological affliction 

19

VA’s Sympathetic Duty 

‣ VSO representative’s are not the 

equivalent of legal representation 

‣ It was not until after Comer appealed that 

he used VSO assistance 

‣ 36 U.S.C. § 50302: function of DAV is to 

cooperate with VA to get benefits, their 

role is completely different from an atty 

20

VA’s Sympathetic Duty Applies w/ 

VSO 

‣ RO originally thought claim was not SC, 

but when reopened, noted – “it generally 

appears that the diagnosis of PTSD 

related to service” 

‣ To hold vet forfeits rights when using VSO 

would be to discourage vets from seeking 

assistance 

21

B. Does VA have an Obligation to 

Inform Vets 

‣ Comer’s 2 nd argument that VA had duty 

under 38 U.S.C. § 5103(a), to inform him 

of the need to file CUE claim to get 

retroactive benefits 

‣ He cited to 38 U.S.C. § 5103(a) for 

support 

22

Reopening process is very 

difficult 

‣ Particularly so when pro se 

‣ Vet likely to assume he will get benefits 

from earlier claim if he prevails 

‣ Yet, the earliest ED is the time of 

reopening 

‣ To get earlier ED CUE is needed 

23

VA Failure Under 5103(a) Not 

Reversible Error 

‣ Comer has not forfeited right to bring CUE 

‣ Assuming arguendo that VA had duty to 

inform about CUE, VA had no opportunity 

to make factual determinations whether he 

received notice or had actual knowledge 

‣ Issue is moot if Comer filed CUE 

24

Outcome Determinative Claims that 

are Plead with Specificity 

‣ Comer did make specific allegations: 

• VA’s determination he was only ‘part packer’ 

‘grossly erroneous’ 

• Nightmares as a result of combat unit 

• Argued RO’s PTSD finding contained ‘clear 

error’ 

• Argued he was ‘combat veteran’ 

25

CUE Claim Remanded 

‣ This factual determination is outside 

appellate authority 

‣ Comer still has right to file new CUE 

motion 

‣ Earlier CUE challenge would entitle to 

expedited consideration of claim 

26

“Well, 

Here’s Another NiceN 

Mess 

You’ve Gotten Me Into” 

Frivolous Claims 

27

Introduction 

‣ Laurel and Hardy-- 

movies involved Laurel 

convincing Hardy to go along with a get- 

rich-quick scheme. 

‣ schemes never successful and Laurel 

would not accept blame. As they were 

being sent to jail (or worse) Laurel would 

say 

• “Well, here’s s another fine mess you have 

gotten us into, Ollie.” 

28

Introduction 

‣ Regs governing behavior and 

accreditation of agents, attorneys, and 

service representatives (or service 

officers)-- 

--quite possible VA has created 

another “nice mess” 

‣ Regs effective 6/23/08-- 

--amend 38 C.F.R. 

Parts 1, 14, 19 and 20. 

29

The New regs 

‣ In General the New Regs: 

• govern behavior and accreditation of lay 

advocates and attorneys. 

• govern fees attorneys and agents may charge 

• purpose of regs-- 

fulfill Congress’ direction 

that attorneys/agents may be paid for work 

after NOD is filed & ensure responsible 

qualified representation. 

30

The New Regs 

‣ 38 C.F.R. § 14.632 (b)(1) –defines 

“competent representation” 

• knowledge, skill, thoroughness and 

preparation necessary for representation 

• Includes: 

• Understanding relevant issues of fact, 

• Understanding relevant issues of law, 

• Understanding title 38 USC 

• Understanding 38 C.F.R. 

31

The New regs 

‣ 38 C.F.R. § 14.633(c) (4)—knowingly 

submitting frivolous claim, issue, or argument 

is grounds for suspension from practice before 

VA 

• first time advocates have to deal with this type of 

rule 

32

Frivolous Claims: VA Comments 

‣ Frivolous defined 

• claim, issue, or argument is F if the rep 

unable to make a good faith argument on 

• The merits of the position taken; or 

• Support the position w/ a good faith 

argument for extension, modification, or 

reversal of existing law 

33

Frivolous Claims: Objection #1 

‣ b/c vets entitled to representation, 

VSO policy is to present all claims 

for processing, even if no evid 

supports grant 

• VA response – there is no right to rep for a 

frivolous claims 

• Senate Committee on Vet Affairs recognized 

the adverse impact of frivolous claims filed 

by VSOs—could delay valid claims 

34


Even if State/Local law requires 

• 

org to provide rep 

VA doesn’t t agree change is 

• 

necessary 

Federal law usually preempts 

• 

State law by virtue of the 

preemption doctrine. See U.S. 

Const. art. VI, cl. 2. 

35


‣ Rep held responsible for claims/arguments 

submitted by claimants directly to VA 

36


‣ definition of “frivolous” doesn’t t define “good 

faith argument” 

‣ VA says definition based on Model Rule 3.1— 

is sufficiently clear to provide notice of 

prohibited conduct 

‣ were VA to discipline rep for filing F claim, 

could appeal to Board, & CAVC cases would 

apply & Federal Circuit cases would control 

37


‣ Definition of “frivolous, frivolous,” cont’d 

• Abbs v. Principi, , 237 F.3d 1342, 1345 (Fed. Cir. 

2001), defined as arguments “that are beyond the 

reasonable contemplation of fair-minded people.” 

• Abbs-- 

--action is frivolous when rep “has significantly 

misrepresented the law or facts, or has abused the 

judicial process by repeatedly litigating the same 

issue in the same court.” Abbs, , 237 F.3d at 1345. 

38


‣ Definition of “frivolous, frivolous,” cont’d 

‣ Comment 2 to Model Rule 3.1 filing claim 

when all facts not known or evidence not fully 

developed frivolous 

• filing not “F” merely b/c facts not fully substantiated 

or b/c lawyer expects to develop vital evidence 

• Lawyers-- 

--inform themselves about facts and law 

and determine good faith argument possible 

• Action not frivolous even though lawyer believes 

client ultimately will not win 

• Action frivolous if lawyer unable either to make a 

good faith argument on the merits of the action or 

support action taken by a good faith argument for 

an extension, modification or reversal of existing 

law. 

39


‣ The VA stated 

• “Like agents and attorneys, VSO representatives 

must inform themselves about the facts of each 

case and the applicable law, and before providing 

further representation, determine whether they can 

make a good faith argument in support of a claim.” 

40


‣ VA interprets ``good faith'' as ``honesty of 

purpose'' and ``freedom of intention to 

defraud.'' Black's Law Dictionary 477 (6th ed. 

1991). 

‣ If good faith argument can’t t be made, withdraw 

from rep or assume the risk of VA suspension 

‣ Can claim/argument shift from non-frivolous to 

frivolous 

‣ tension between need to file claim to gain 

earliest possible effective date and need to 

determine whether claim, issue, or argument 

frivolous. 

41

Competence 

‣ Obviously, to understand the relevant issues of 

fact, law, and the statutes and regs that impact 

these issues an advocate must not only 

understand, in general the statutes and regs 

that govern VA benefits, but have the time to 

carefully review the claims file. 

42

Competence 

‣ Reg seems to require VSOs take reasonable 

precautions so service officers won’t t have to 

deal w/ more claims than can be properly 

handled 

• county, state and national service organizations 

may have to reject some claims, not b/c frivolous, 

but b/c VSO does not have the advocates available 

to provide proper rep 

• Some VSOs will have to choose between hiring 

more service officers or limiting # of claims assigned 

to representative 

43

Examples of Frivolous Claims – 

Argument Determinations 

‣ Appeal that is frivolous as filed is 

frivolous as argued, since any arguments 

made in support of it are, by definition, 

frivolous." Constant v. United 

States, 929 F.2d 654, 658 (Fed. Cir. 

1991). 

‣ Fact that appeal is w/o merit doesn’t 

mean appeal is necessarily frivolous 

See Romala Corp. v. United States, 927 

F.2d 1219, 1224 (Fed. Cir. 1991) 

44



‣ Examples of actions deemed sanctionable include 

• relitigating issues already finally adjudicated 

• failing to explain how the trial court erred or to 

present cogent or clear arguments for 

reversal 

45



‣ More examples of actions deemed 

sanctionable include 

• failing to cite authority & ignoring opponent's 

contrary cited authority, citing irrelevant or 

inapplicable authority 

• distorting cited authority 

46



‣ More examples of actions deemed 

sanctionable include 

• making irrelevant and illogical arguments 

• misrepresenting facts or law to court 

• failing to reference or discuss controlling 

precedents 

• Raising appeal when issue is moot 

47

Issues Facing Service Officers 

‣ 3 main types of service officers (VSOs( 

VSOs): 

• VSOs located outside of the regional offices (ROs( 

ROs) 

• VSOs located in the ROs 

• VSO located at the AMC or BVA 

48

Advocates Located Outside of RO 

‣ Review of the Claims File 

• Can claim be filed w/o review of C File 

• Can you decide if most claims not frivolous if you 

don’t t review record 

• What about protecting earliest possible effective 

date 

49


‣ Obligation to take all claims 

• Can VSO reject claim 

• at the beginning 

• later in the process 

• is the advocate outside the RO obligated to 

discuss this with the DSO 

• If so how should this (rejection) be done 

50


‣ Claimants filing claims and communicating 

with VA without the knowledge of their 

representative 

• Can we withdraw if claimant communicates 

w/ VA w/o our knowing 

• If not – then how do we protect ourselves 

51


‣ Workload tensions 

• Reject claims because too much work 

• If yes – what process 

‣ Reopened claims 

• Need to review file b/f attempt to reopen 

• Stricter standard of review for reopened 

claims 

52

Advocates Located in the RO 

‣ Can a claim that is non-frivolous become 

frivolous 

• After development 

• After a negative medical opinion 

• After I cannot think of a good faith argument 

53

Advocates Located in the RO 

‣ What are frivolous arguments in VA disability 

benefits claims 

• Only negative evidence on one claim element 

• Claimant does not have basic eligibility 

• Previously rejected evidence 

• Advocate cites irrelevant statutes and regs 

• Advocate misleads the RO about facts 

• Advocate makes erroneous factual conclusions 

54

38 C.F.R. § 14.627 Definitions 

‣ As used in regs on representation of VA 

claimants: 

• Accreditation: authority granted by VA to 

representatives, agents, and attorneys to assist 

claimants in the preparation, presentation, and 

prosecution of claims for VA benefits. 

• Agency of original jurisdiction: : VA activity or 

administration making initial determination on claim or 

matter or handling subsequent adjudication of claim 

or matter in first instance, and includes VA General 

Counsel with respect to proceedings under part 14 of 

this chapter to suspend or cancel accreditation or to 

review fee agreements. 

55



claimants: 

• Attorney: a member in good standing of a State bar 

who has met the standards and qualifications in Sec. 

14.629(b). 

• Benefit: any payment, service, commodity, function, 

or status, entitlement to which is determined under 

laws administered by VA pertaining to veterans, 

dependents, and survivors. 

56



claimants: 

• Claim: : application made under title 38 U.S.C., and 

implementing directives, for entitlement to VA 

benefits, reinstatement, continuation, or increase of 

benefits, or the defense of a proposed agency 

adverse action concerning benefits. 

• Recognition: : certification by VA of organizations to 

assist claimants in the preparation, presentation, and 

prosecution of claims for VA benefits. 

57



claimants: 

• Representative: : a person who has been 

recommended by a recognized organization and 

accredited by VA. 

• Representation: : the acts associated with representing 

a claimant in a proceeding before VA pursuant to a 

properly executed and filed VA Form 21-22, 

22, 

``Appointment of Veterans Service Organization as 

Claimant's Representative,'' or VA Form 21-22a, 

22a, 

``Appointment of Individual as Claimant's 

Representative.'' 

58



claimants: 

• Service: : the delivery of a motion, response, or reply to 

a person or entity to which it is directed. 

• Proof of service consists of a statement by the person 

who made service certifying the date and manner of 

service, the names of the persons served, and the 

addresses of the place of delivery. 

• For service by mail, proof of service shall include 

the date and manner by which the document was 

mailed. 

59

Sec. 14.631(c): Powers of attorney, 

disclosure of claimant information 

‣ Withdrawal of representation: 

• May withdraw from representation provided 

before a VA agency of original jurisdiction if such 

withdrawal would not adversely impact the 

claimant's interests. 

• Applicable until an agency of original jurisdiction 

certifies an appeal to the Board of Veterans' 

Appeals 

• Then 38 CFR 20.608 governs 

60



‣ Withdrawal also permissible if: 

• reasonably believe fraudulent or criminal 

activity is furthered through representation 

• claimant fails to uphold obligation 

• other good cause for withdrawal exists. 

61



‣ How to withdraw representation: 

• notify claimant 

• VA organization in possession of claims file 

and 

• agency of original jurisdiction 

in writing prior to taking any action to withdraw 

‣ Take steps to protect claimant interests: 

• give advance notice to claimant 

• allow time for appointment of alternative representation 

and 

• return documents provided by VA in course of representation 

62

Sec. 14.631: Powers of attorney, disclosure 

of claimant information 

‣ All property must be returned to the claimant 

upon withdrawal 

• If claimant unavailable, all documents must be 

returned to the VA organization in possession of the 

claims file. 

‣ Any other property of the claimant must be 

maintained according to applicable law. 

63

Sec. 14.631(f)(1)-(2): (2): Powers of attorney, 


‣ POA may be revoked at any time 

• Receipt of new POA constitutes revocation of existing 

POA 

‣ An agent or attorney may be discharged at 

any time 

‣ If agent or attorney limits scope of rep 

• such specific authority constitutes revocation of 

existing general POA during the pendency of that 

particular claim. 

‣ Following final determination of such claim, 

general POA remains in effect as to any new 

or reopened claim. 

64

Sec. 14.632: Standards of conduct for 

persons providing representation before VA 

‣Faithfully Faithfully execute duties as 

individuals providing 

representation 

‣Be truthful in dealings with 

Claimants and the VA 

65



‣ A rep shall: 

• Provide competent representation before the VA 

• This requires: 

• Knowledge 

• Skill 

• Thoroughness 

• Preparation necessary for representation 

• Includes understanding issues of fact and law 

• Act with reasonable diligence and promptness 

• This includes: 

• Responding promptly to VA requests for info 

• Assisting claimant in promptly responding to VA requests 

66



‣ Rep shall not: 

• Violate standards of conduct 

• Circumvent a rule of conduct through the actions of 

another 

• Engage in conduct involving fraud, deceit, 

misrepresentation, or dishonesty 

• Violate any provisions of title 38, United States Code, 

or title 38, Code of Federal regs; 

• Enter into an agreement for, charge, solicit, or receive 

a fee that is clearly unreasonable or otherwise 

prohibited by law or regulation; 

67

Sec. 14.632: Standards of conduct for persons 

providing representation before the Department 

‣ Solicit, receive, or enter into agreements for gifts related 

to representation 

‣ Delay processing a claim without good cause 

‣ Mislead, threaten, coerce, or deceive a claimant 

‣ Engage in, or counsel or advise a claimant to engage in 

acts or behavior prejudicial to the fair and orderly 

conduct of administrative proceedings before VA 

‣ Disclose, without the claimant's authorization, any 

information provided by VA for purposes of 

representation 

‣ Engage in any other unlawful or unethical conduct. 

68

Sec. 14.632: Standards of conduct for persons 

providing representation before the Department 

‣ Additionally, while representing a VA 

claimant, attorney shall not: 

• engage in behavior or activities 

prohibited by the rules of professional 

conduct 

• of any jurisdiction in which the attorney 

is licensed to practice law. 

69

Sec. 14.633: Termination of accreditation or 

authority to provide representation under 14.630 

‣ Accreditation or authority to provide 

representation on a particular claim may be 

suspended or canceled 

• at the request of an organization, individual 

providing representation under Sec. 14.630, 

representative, agent, or attorney 

‣ When a suspension or cancellation is 

requested: 

• The organization shall inform VA of reasoning and 

surrounding circumstances 

• When misconduct or lack of competence is the 

reason for the request 

70



‣ Accreditation shall be canceled when: 

• General Counsel makes a determination that 

requirements are no longer met by: 

• Representative 

• Agent 

• Attorney 

71



‣ General Counsel cancels accreditation or 

authority to provide representation 

‣ through a finding of clear and convincing 

evidence that: 

• Violation of or refusal to comply with the laws 

administered by VA 

or 

• with the regs governing practice before VA including 

the standards of conduct in Sec. 14.632 

72



‣ Knowingly presenting to VA a frivolous 

claim, issue, or argument. 

• Frivolous if: 

• unable to make a good faith argument on the 

merits of the position taken or to support the 

position taken by a good faith argument for 

an extension, modification, or reversal of 

existing law. 

‣ Suspension or disbarment by any court, 

bar, or Federal or State agency to which 

such individual providing representation 

under Sec. 14.630 when the attorney was 

previously admitted or practicing in 

73



‣ Charging excessive or unreasonable 

fees 

• As determined by the VA or any court 

hearing the case 

‣ Any other unlawful or unethical practice 

adversely affecting an individual's fitness 

for practice before VA. 

74

Questions Yet to be Resolved 

‣ At BVA – why withdraw when case is going to BVA in 

any case 

‣ What about multiple issues/appeals 

‣ Do state and county VSOs need to obtain a copy of 

the C file 

• Claims filed without a review of the C file – how soon can VA 

get a copy to the VSO 

• Claims that originally could be proven if certain evidence could 

be obtained – but over a period of time the evidence turns out 

to be all negative. Is there a difference between the process at 

the RO and at the BVA 

75

Questions Yet to be Resolved 

‣ What about frivolous arguments submitted by appellant 

– not advocate 

‣ Do the VSOs have to explain good cause to the BVA 

when it would only hurt the appellant 

‣ “good faith argument” criteria rather vague. 

• Example – vet believes fall in service injured his back 

and now he suffers from DDD in low back. However, 

a VAE rejected linkage. There is no other medical 

linkage opinion of record. Assuming the VAE was 

adequate, then is the VSO obligated to drop out 

76

Case Law: Abbs v. Principi, 

237 F.3d 1342 (Fed. Cir. 2001) 

‣ Sanctions can be imposed when an appeal is 

"frivolous as filed" or "frivolous as argued“ 

• We are reluctant to impose sanctions. 

• "an appellate court must be mindful of the possibility that 

awarding damages and costs could have an undue chilling 

effect on the behavior of later litigants." Finch, 926 F.2d at 

1578 

• However, there are undue burdens associated with 

frivolous appeals 

• "A frivolous appeal imposes costs not only upon the party 

forced to defend it, but also upon the public whose taxes 

supporting this court and its staff are wasted on frivolous 

appeals." Finch, 926 F.2d at 1578 

77


237 F.3d 1342 (Fed. Cir. 2001) 

‣ Award of sanctions appropriate when argument on 

appeal unsupported by authority and contradicted by 

clear and explicit language and legislative history 

• Appeal is both frivolous as filed and as argued 

• Appellants cite inapplicable authority, distort cited authority, and 

make irrelevant and illogical arguments 

• Argument is explicitly negated by the very statute the party relies 

on in support of its argument 

• Any argument in support of such appeal is, by its nature, illogical 

and unreasonable, and therefore, is sanctionable under Fed. R. 

App. P. 38. 

78


237 F.3d 1342 (Fed. Cir. 2001) 

‣ 1. Appellants fail to provide any case law or 

statutory support whatsoever for their argument that 

the Veterans Court is an "agency" as defined in the 

EAJA. 

‣ 2. Appellants' argument that the Veterans Court is 

an "agency" is actually contrary to the clear and 

express language of the statute. 

‣ 3. The legislative history of the EAJA refutes 

appellants' contention that its provisions apply to 

purely adjudicatory bodies. 

79


237 F.3d 1342 (Fed. Cir. 2001) 

‣ 1. Appellants' written response to the December 1, 

2000 Order was unresponsive 

• This compounded the frivolity of this appeal. 

‣ 2. Appellants failed to respond to the December 1, 

2000 Order at oral argument. 

80

Case Law: Finch v. Hughes Aircraft Co., 

926 F.2d 1574, 1579 (Fed. Cir. 2001) 

‣ Logically, an appeal can be deemed 

frivolous in two distinct ways 

• either of which alone would support 

sanctions 

81


926 F.2d 1574, 1579 (Fed. Cir. 2001) 

‣ No appealable issue as judgment below was so plainly 

correct and legal authority contrary to appellant's 

position so clear 

‣ Therefore, the very filing of appeal is frivolous and 

justifies the imposition of Rule 38 sanctions. 

• In re Perry, , "When an appeal is a 'complete loser,' most of 

which is 'patently groundless,' sanctions should be imposed 

under Rule 38." 

• Octocom Systems, Inc. v. Houston Computer Servs., Inc., "An 

appeal is frivolous where 'no basis for reversal in law or fact 

can be or is even arguably shown.'" 

• Connell v. Sears, , briefs "not only ignore [controlling 

precedent] but fail to cite any authority whatsoever in support 

of the notion that the issue presented is a proper or 

reasonable basis for these petitions." 

• Synan v. Merit Systems Protection Bd., , appeal frivolous because no 

possible basis for reversing board's decision. 

82


926 F.2d 1574, 1579 (Fed. Cir. 2001) 

‣ Our precedent is similar to that of our sister 

circuits, which have adjudged frivolity where: 

• appeals "lacked any support in law or the 

record“ 

• were "contrary to established law and 

unsupported by a reasoned, colorable 

argument for change in the law“ 

or 

• were "brought without the slightest chance 

of success" 

83


926 F.2d 1574, 1579 (Fed. Cir. 2001) 

‣ Second type of frivolity: 

• while genuinely appealable issues may exist, the appellant's 

contentions in prosecuting the appeal are frivolous 

‣ Frivolous Conduct Under Rule 38: 

• submitting rambling briefs that make no attempt to address the 

elements requisite to obtaining reversal 

• Olympia Co. v. Celotex Corp., 771 F.2d 888, 893 (5th Cir. 1985) 

• filing numerous documents containing irrelevant arguments 

and authority 

• Limerick v. Greenwald, 749 F.2d 97, 101 (1st Cir. 1984) 

84


926 F.2d 1574, 1579 (Fed. Cir. 2001) 

‣ Post filing frivolity, cont’d 

• seeking to re-litigate issues already adjudicated 

• International Ass'n of Machinists & Aerospace Workers v. 

Boeing Co., 833 F.2d 165, 172 (9th Cir. 1987), cert. denied, 

485 U.S. 1014, 99 L. Ed. 2d 715, 108 S. Ct. 1488 (1988); 

• failing to explain how the lower tribunal erred or to 

present clear or cogent arguments for overturning the 

decision below 

• Refac Int'l, Ltd. v. Hitachi, Ltd., 921 F.2d 1247, 1256, 16 

U.S.P.Q.2D (BNA) 1347, 1354 (Fed. Cir. 1990) 

85


926 F.2d 1574, 1579 (Fed. Cir. 2001) 


• failing to exclude from the appeal individual opponents as to 

whom there is no basis for appeal 

• McConnell v. Critchlow, 661 F.2d 116, 118 (9th Cir. 1981); 

• *rearguing frivolous positions for which sanctions had already 

been imposed in the trial forum 

• Optyl Eyewear Fashion Int'l Corp. v. Style Cos., 760 F.2d 1045, 1052 

(9th Cir. 1985); 

• *citation of inapplicable or irrelevant authorities 

• Laitram Corp. v. Cambridge Wire Cloth Co., 919 F.2d 1579, 1583, 16 

U.S.P.Q.2d (BNA) 1929, 1933 (Fed. Cir. 1990); 

86


926 F.2d 1574, 1579 (Fed. Cir. 2001) 


• misrepresenting facts or law to the court 

• Laitram, 919 F.2d at 1583, 16 U.S.P.Q.2d at 1933 (briefs included 

statements of fact not supported by the record and relied on attorney 

argument and unsworn fact statements as though they were evidence) 

e) 

• Mathis v. Spears, 857 F.2d at 761 (appeal based on "record distortions, 

manufactured facts, and implausible and unsupportable legal 

arguments") 

• Devices for Medicine, Inc. v. Boehl, 822 F.2d 1062, 1068-69, 69, 3 

U.S.P.Q.2d (BNA) 1288, 1294 (Fed. Cir. 1987) (appellant's "spurious and 

specious arguments and {926 F.2d 1580} its distortion and disregard of 

the record and opposing authorities" constitutes "a bad faith abuse of the 

judicial process") 

87


926 F.2d 1574, 1579 (Fed. Cir. 2001) 

‣ Such appeals, though not necessarily 

frivolous as filed, , are held to be frivolous as 

argued. 

88


926 F.2d 1574, 1579 (Fed. Cir. 2001) 

‣ Fed Cir judged Finch appeal frivolous as filed 

• Three separate grounds to affirm district court: 

• Finch did not oppose the dismissal- waiving his right to 

appeal 

• the district court did not abuse its discretion in dismissing the 

complaint as duplicative 

and 

• every claim of the dismissed complaint is barred by res 

judicata 

‣ Any 1 ground would be sufficient to require affirmance 

‣ taken together, they present overwhelming obstacle to 

reversal 

• Decision to file appeal can only be a frivolous waste- meriting 

sanctions 

89


926 F.2d 1574, 1579 (Fed. Cir. 2001) 

‣ frivolous as filed 

• no non-frivolous arguments could be made to 

support it 

‣ logically this must also be frivolous as 

argued 

• any arguments made are, by definition, frivolous 

• pervasive pattern of misconduct on appeal clearly 

made appeal frivolous as argued 

‣ Court discussed examples of arguments that 

are representative of the type of misconduct 

sanctionable. 

90

Talking Points 

‣ VSOS OUTSIDE OF THE RO 

‣ VSOS IN THE ROS 

‣ VSOS IN THE AMC 

‣ VSOS IN THE BVA 

‣ WHAT ABOUT ATTEMPTS TO REOPEN 

91

‣ HOW TO WITHDRAW 

Policy Issues 

‣ CONFLICT BETWEEN STATE/COUNTY AND 

FEDERAL LAW 

‣ NEEDS OF STATE DEPARTMENTS 

‣ WHO DO I ASK FOR ADVICE 

‣ WHAT ABOUT MULTIPLE ISSUES (SOME OK SOME 

FRIVOLOUS) 

‣ WHAT IF THE BVA UNIT WITHDRAWS FROM AN 

APPEAL BECAUSE IT IS FRIVOLOUS – WHAT ARE 

MY OPTIONS 

92

Finch v. Hughes Aircraft Co. - Military Order of the Purple Heart

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