Petition for Writ of Certiorari — In re Solerwitz

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| Va SEP 16 1988

IN THE )

SUPREME COURT OF THE UNITHD “SHRI CSPANoL, un.

OCTOBER TERM, 1987

IN RE JACK B. SOLERWITZ

PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED

STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

Nathan Z. Dershowitz

Dershowitz & Eiger, P.C.

225 Broadway, Suite 2515

New York, NY 10007

(212) 513-7676

Alan M Dershowitz

232 Brattle Street

Cambridge, MA 02138

(617) 495-4617

Victoria B. Eiger

Of Counsel

Attorneys for Petitioner

Jack B. Solerwitz

Il.

QUESTIONS PRESENTED FOR REVIEW

Whether an attorney can be suspended from

practice before a federal appeals court

for conduct unbecoming a member of the

bar where the conduct at issue was his

refusal to withdraw his clients’ appeals

in the face of tremendous pressure by the

court to do so and where three respected

experts on legal ethics testified that he

was ethically obligated to pursue the

appeals and that the appeals and the

briefs were not frivolous.

Whether an attorney is entitled to

procedural safeguards such as a hearing

before an impartial tribunal when a Court

of Appeals seeks to impose against him

serious disciplinary sanctions for

alleged misconduct in and directed at the

Court of Appeals itself.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW..........i

TABLE OF CONTENTS e*eeoeieeeer+nreeee#sreeees#e#ee#ee#e#ee#ee i i

TABLE OF AUTHORI TI ES e*eeeseeer#etreee#s+5eeeee#e#e#e#@# i Vv

RULES es 1. an ean 68 666600606066 oe UR

OPINION BELOW... cccccccccccccccccccce Vii

JURISDICTION OF THE COURT...-.eeeeeeeees viii

STATEMENT OF THE CASE...cccccscccccvevevel

REASONS FOR GRANTING THE WRIT......++++-23

POINT I THE COURT OF APPEALS'

RULING IMPROPERLY MAKES

ATTORNEYS SERVE AS

GATEKEEPERS FOR THE COURT.....25

POINT II AN ATTORNEY MAY NOT BE

SUBJECTED TO SERIOUS

DISCIPLINARY SANCTIONS

WITHOUT PROCEDURAL

SAFEGUARDS INCLUDING THE

RIGHT TO HAVE THE ISSUES

TRIED BY AN IMPARTIAL

TRIBUNAL... ccccccccrccsceseves cde

&) «= ©) 209 SP Pe oaeeseeenteereseeer#eee#e#e#e###e#e#*# . ~-41

—* 2

APPENDIX

OPINION OF SENIOR JUDGE

MARION T. BENNETT

(Dec. 20, 1987). ccccccsssccscccvecs A-1

FINDINGS OF FACT OF

SENIOR JUDGE MARION T. BENNETT

(Dec. 10, LOST daccvescecoesccsrvasee ch@lOG

DECISION OF THE COURT OF APPEALS

(EN BANC) (June 17, 1988)....-ee- A-163

ORDER DENYING

RECONSIDERATION (EN BANC)

(July 20, SBS) « on vn ceed scsccseechaeea

- iii -

TABLE OF AUTHORITIES

Bloom v. Illinois,

. 6 2 ap. 8. | Re 34,35

Codispoti ve Penperyanae

418 Gee eee 7, ee ee 2&2 ee & 35

Cooke v. United States,

267 U.S. 517 ev.) *“eneee TrrrrTy _.

In re Bithoney, 486 F.2d 319

(lst Cafe L973 peace S@Cee e2eeegeeeonoe €6ae es 28

In re Snyder, 472 U.S. 634 (1985).......27

In re Winsberg, 446 F.2d 641

SWE GEEe APTA jpecccccccccccecceccse 29

In ce Gisene,. 333 UB. 2357 (1946) ccccee 35

In re Woolfolk 572 F.2d 192

(39th Cife DUP Rabe ene secescosccesoene

Marshall v. Jerrico, Inc.,

ee es ono ceccuseoeese 37,40

Mayber v. Pennsylvania,

ee ee SE EOE ce accesicccceses 35

Offutt v. United States,

U.S. ll ‘i. > on “eer eee eevee 35

Sacher v. United States,

BES Ucbo & Chea cc cccces cocccccces 34

Taylor v. Hayes, 418 U.S. 488 (1974)....35

es a

Tumey v. Ohio, 273 U.S. 510 (1927)

Ward v. Village of Monroeville,

409 U.S. ow So are

Young v. United States,

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RULES INVOLVED

Rule 46 of the Federal Rules of Appellate

Procedure provides in relevant part:

(b) Suspension or Disbarment. When it is

shown to the court that any member of its

bar has been suspended or disbarred from

practice in any other court of record, or

has been guilty of conduct unbecoming a

member of the bar of the court, he will

be subject to suspension or disbarment of

the court. The member shall be afforded

an opportunity to show good cause, within

such time as the court shall prescribe,

why he should not be suspended or

disbarred. Upon his response to the rule

to show cause, and after hearing, if

requested, or upon expiration of the time

prescribed for a response if no responses

is made, the court shall enter an

appropriate order.

(c) Disciplinary Power of the Court Over

Attorneys. A court of appeals may, after

reasonable notice and an opportunity to

show cause to the contrary, and after

hearing, if requested, take any

appropriate disciplinary action against

any attorney who practices before it for

conduct unbecoming a member of the bar or

for failure to comply with these rules or

any rule of the court.

OPINIONS BELOW

On December 10, 1987, Senior Judge Marion

T. Bennett, who had been designated to conduct

a hearing for the Court of Appeals for the

Federal Circuit, issued an opinion and

findings of fact which are reproduced in the

Appendix at A-l and A-100, respectively. On

June 17, 1988, the Court of Appeals for the

Federal Circuit (en banc) issued an opinion

and order, which are reported at 848 F.2d 1573

and which are reproduced in the Appendix at

A-163. On July 20, 1988, the Meae: of Appeals

for the Federal Circuit (en banc) issued an

order denying reconsideration, which is not

yet reported, but which is reproduced in the

Appendix at A-202.

- vii -

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JURISDICTION OF THE COURT

The order of the Court of Appeals was

entered on June 17, 1988. The Court has

jurisdiction to review the decision of the

Court of Appeals pursuant to 28 U.S.C.

§1254(1).

- viii -

STATEMENT OF THE CASE

On January 21, 1987, the United States

Court of Appeals for the Federal Circuit (en

banc) ordered Petitioner Jack B. Solerwitz,

Esq: to show cause why he should not be

suspended for two years from representing

clients before the Court. The order grew out

of Solerwitz's representation of a number of

former air traffic controllers ("ATCs") who

had been fired as a result of the 1981 strike.

The crux of the Court's complaint was that

Solerwitz had maintained frivolous appeals on

behalf of these clients.

On August 3, 1981, PATCO, the

Professional Air Traffic Controller's

Organization, called a strike. The strike was

declared illegal and 11,000 ATCs were

dismissed. Solerwitz Was septoechda by

several individual air traffic controllers who

were dissatisfied with the representation they

were receiving through PATCO and Solerwitz

agreed to represent them. He was thereafter

inundated with requests from other ATCs

seeking legal representation. Ultimately,

Solerwitz and his lawfirm, Solerwitz,

Solerwitz & Leeds, undertook representation of

over 800 ATCs in proceedings before the Merit

Systems Protection Board ("Board").

“Because of massive consolidation of cases

by the Board, the cases of individual ATCs

received little or no individualized

consideration in that forum. Persons who

never intended to strike -- indeed persons who

were wholly unaware of the strike -- found

themselves not only without jobs as a result

of the mass firings, but without even the

satisfaction of having their individual

circumstances considered by the Board. This

was extraordinarily frustrating for

Solweritz's ATC clients, all of whom had lost

their jobs, and many of whom found themselves

unemployable, in desperate financial straits

and confronted with a myriad of related

personal and family problems. Solerwitz's ATC

clients continued to hope that they would

obtain relief in the Court of Appeals.

Accordingly, at his clients’ direction,

Solerwitz filed petitions for review of

adverse Board decisions in the Court of

Appeals on behalf of some 700 ATC clients.

The petitions for review filed by

Solerwitz were among 4600 requests for review

in the Court of Appeals for the Federal

Circuit by former ATCs. That Court,

apparently, found itself overwhelmed with the

addition of so many new cases to its docket.

In an attempt to “manage the flood of

litigation" (A-4) and to “expedite processing”

(Id.), the Court of Appeals consolidated

hundreds of ATC cases and, in addition,

selected 12 “lead cases" which presented

issues common to many of the cases. The lead

cases were put ona fast track. By order

dated February 24, 1983, all other pending ATC

appeals were "suspended," including those

filed by Solerwitz. (A-4-5)

On May 18, 1984, the Court decided the

lead cases. On that day the Court sent

notices to counsel in all ATC cases that it

had decided the lead cases and that if would

send further notice upon final disposition of

those cases.! The Court directed that, within

30 days of such notice, counsel would have to

file written notice of a wish to continue to

prosecute the appeai or the appeal would be

lRemarkably, in one of the lead decisions, the

Court listed a number of ATC appeals which it

had suspended, including one of Solerwitz's,

and stated that these appeals would be

dismissed -- not affirmed -- unless the Court

was notified of an intent to withdraw or

further prosecute the case. See Adams v.

Department of Transportation, 735 F:i2d 488,

4-. (Fed. Cir. 1984).

-4-

dismissed. The notice contained a warning

about the impropriety of maintaining frivolous

appeals.

On December 10, 1984, the Court notified

counsel in all suspended cases that Supreme

Court review in those lead cases in which

certiorari was sought had been denied. The

Court gave counsel in the suspended cases,

including Solerwitz, 30 days to file renewed

petitions advising the Court of the remaining

issues relied upen which had not been decided

in the lead cases. The Court again warned

counsel against maintaining frivolous appeals.

Failure to file a renewed petition would

result in dismissal. In addition, counsel

were given 60 days from the filing of the

renewed petitions to file briefs and

appendices. 2

20n three other occasions -- July 12, July 31

and August 30, 1985 -- the Court, by

memorandum, requested all ATC counsel to

(footnote continued)

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The Court's short deadlines and

directives created substantial difficulties

for Solerwitz's small law firm, which were

compounded by a precipitous leavetaking by one

of the firm's associates because of a medical

emergency. The firm contacted or attempted to

contact all of its ATC clients to ascertain

whether the client wished to proceed. Because

most of the clients had come to Solerwitz for

individual representation, not suprprisingly,

most expressed their firm desire to proceed

with their appeals.3

(footnote continued from previous page)

review the propriety of maintaining frivolous

appeals.

3Throughout, the firm had kept in close

contact with its clients, many of whom, as the

firm's lawyers well knew, were enduring

personal and family disintegration as a result

of the firings. Solerwitz proceeded with the

appeals of those relatively few clients who

could not be reached in the view that it would

be improper to waive the clients’ rights

without discussing the situation with them.

Pursuant to the Court's order of December

10, 1984, new petitions for review were

submitted on January 9, 1985, before the

Court's January 10 deadline for doing so.4 -

Throughout the proceedings, the setereits

firm attempted to comply fully with the

Court's orders. First, the firm's lawyers

carefully reviewed the opinions in the lead

cases. ~~ opinions decided many of

the major issues involved in the ATC cases,

they also revealed that certain important

questions had not been decided (e.g., the

propriety of consolidation of cases over

objection, see Moylan v. Department of

Transportation, FAA, 735 F.2d 524 (Fed. Cir.

1984).

4tmhe Clerk's office inexplicably refused to

accept the petitions for filing on the ground

that they had been filed individually and not

under the consolidated case name and docket

number used below. Lawyers worked all night

to redo the petitions, and filed them, timely,

on January 10.

~~ ee

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Moreover, the decisions in the lead cases

and the principles announced in those

decisions suggested certain issues and factual

distinctions which might distinguish

individual cases from the lead cases. For

example, in Brown v. Department of

Transportation, FAA, 735 F.2d 543 (Fed. Cir.

1984), the Court had held that the penalty

imposed -- removal -- was inappropriately

harsh given the individual ATC's long service

and other factors in his case. In reliance on

Brown, the firm reviewed all of its clients'

files, and identified those where particularly

sympathetic fact patterns existed, and

advanced those specific facts in support of

the argument that the penalty of removal was

inappropriate in that case.

Similarly, in Schapansky v. Department of

Transportation, FAA, 735 F.2d 477, 482 (Fed.

Cir. 1984), the Court had held that absence

POAT APU ARIANOAL CS OCR I"

without authorization or explanation during

the strike constituted a prima facie showing

of strike participation, but also noted that

minimal countering evidence could overcome

that showing. Schapansky and other lead cases

suggested the kinds of facts which could rebut

a prima facie case of strike participation.

For example, the fact that an ATC was on

annual leave, Campbell v. Department of

Transportation, FAA, 735 F.2d 497 (Fed. Cir.

1984), Letenyer v. Department of

Transportation, FAA, 735 F.2d 528 (Fed. Cir.

1984), or had reported sick to his supervisor

prior to the strike, DiMasso v. Department of

Transportation, FAA, 735 F.2d 526 (Fed. Cir.

1984), or had been forced by threats to

participate, Martel v. Department of

Transportation, FAA, 735 F.2d 504 (Fed. Cir.

1984), could demonstrate that the ATC was not

acting in concert.

In reliance on these lead cases the firm

also reviewed all of its clients' cases and

identified those in which it was appropriate

to argue that the evidence countered the prima

facie showing of acting in concert. These

specific facts were included in the briefs in

support of the claim that reversal was

appropriate.

Pursuant to the Court's order of December

10, the briefs for all 600-plus clients were

due on or before April l, 1985. The firm

geared up for the work to be done. A new

attorney was hired to aid in revising the

briefs and 20 legal assistants were hired.

Solerwitz's wife and law partner, Kathleen

Solerwitz, who had been on maternity leave,

returned to work full-time. Everyone in the

firm was pressed into service.

The administrative difficulties were

considerable, but the firm took appropriate,

lawyerly steps to deal with the problems. For

example, a motion was made for leave to

dispense with the filing of appendices or,

alternatively, to file them within 20 days of

the filing of respondents' briefs.°

Preparation of the briefs for timely

submission continued. The briefs which were

filed were, for the most part, divided into

three sections. The first presented a broad,

Constitutional challenge to the prior

proceedings. The second raised specific legal

claims and, where appropriate, sought to

distinguish the lead cases. The third section

identified and described the individual

SAssembling appendices was virtually

impossible not only because of the number of

cases involved but because the government

would not stipulate to contents, or supply

necessary documents in its possession.

petitioner and argued why his or her case

should be treated differently from the lead

cases.

In each case, the United States Court of

Appeals for the Federal Circuit affirmed the

decision below, without adressing any of the

individual distinguishing factors which were

raised. In addition, the Court of Appeals

found the majority of ATC appeals filed by

Solerwitz to be "frivolous," and imposed

monetary sanctions under Fed. R. App. P. 38.

Sanctions totaling $78,300 were imposed

against him, as well as an additional $11,800

in costs and attorneys fees. All of these

sums were paid by Solerwitz.

6The Rule provides:

If a court of appeals shall determine

that an appeal is frivolous, it may award

just damages and single or double costs

to the appellee.

PTY TE REIT FDL) Dene 18 rm

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The Court of Appeals, however, apparently

felt that it had been wronged by Solerwitz's

refusal to bow to its less than subtle demands

that he withdraw or permit the dismissal of

his clients’ appeals. It therefore

instituted a separate proceeding against him

by order to show cause. It recited that, on

five occasions, the Court had warned Solerwitz

about the impropriety of mantaining frivolous

appeals. And it charged that, notwiths*anding

the repeated warnings of the Court he had

maintained and/or filed 142 separate frivolous

appeals in air traffic controller cases. /

71£ further charged that in the briefs filed

in connection with those appeals he:

Gisregarded Federal Rules of

Appellate Procedure and this court's

rules, failed to file appendices, ~

provided no citations to the record,

ignored authorities cited by the

government, advanced numerous

arguments on issues not on appeal,

and repeatedly raised contentions

not raised before the Merit Systems

Protection Board. Mr. Solerwitz's

(footnote continued)

ti ii ie

The order concluded with the allegation

that Solerwitz's “conduct in filing and

maintaining frivolous appeals .. . has wasted

the time and limited resources of this Court,

has denied availability of the court's

resources to deserving litigants, and has

constituted flagrant and totally inexcusable

abuse of the judicial process."

Solerwitz moved to disqualify the Court

from ruling on the order to show cause,

submitted a written answer to the show cause

order, and requested an evidentiary hearing.

_The Court overruled his procedural objections

and designated Senior Judge Marion T. Bennett

to hold the hearing.

(footnote continued from previous page) *

briefs were devoid of any showing on

which the decision appealed from

could even possibly be reversed,

devoid of any basis on which the

precedents of this court could be

distinguished in law or fact, and

devoid of any effort to make such

Gistinctions.

aaa

At the hearing, several of Solerwitz's

ATC clients testified about their strong

desire that Solerwitz file, maintain, and —

pursue their appeals and their instructions to

him that he do so.

Three experts in the field of legal

ethics also testified on Solerwitz's behalf.

They were Professor Monroe H. Freedman of

Hofstra University Law School; Professor

William E. Hellerstein, of Brooklyn Law

School; and Harvey A. Silverglate, a Boston

attorney who co-teaches a course in

professional responsibility at Harvard Law

School and who chairs the standing committee

on legal ethics of the Massachusetts

Association of Criminal Defense Lawyers. Each

expert had reviewed briefs filed by Solerwitz

in ATC appeals which the Court of Appeals had

determined to be frivolous and in which that

Court had imposed monetary sanctions.

Each of the experts testified that the

appeals and the briefs which Solerwitz had

filed were not frivolous, and that Solerwitz

was not only justified in proceeding with the

appeals, but was ethically obligated to do so.

Freedman testified that it was not even “a

close case. I would expect any expert in the

field to agree with me in that judgment."

Hellerstein testified that Solerwitz was

obligated to proceed and that the Court's

warnings about frivolous appeals did not

change that bottom line. Silverglate

testified that the legal arguments in the

Solerwitz briefs were not frivolous. Had

Solerwitz consulted him about whether it would

be proper to withdraw the appeals on the

ground that they were frivolous, Silverglate

testified, he would have advised Solerwitz

that he had no discretion in the matter.

Given his clients’ insistence on pursuing

their appeals, and the non-frivolous nature of

the arguments, Solerwitz was obligated to

pursue the appeals.

Following the hearing, Judge Bennett made

findings of fact and concluded that Solerwitz

had engaged in conduct unbecoming a member of

the bar. He reasoned that attorneys not only

have obligations to their clients, but also an

obligation to the Court, and rejected the

experts’ testimony as not taking the latter

‘obligations into account. (A-50)

The views of the expert witnesses,

while based in part on established

tenets of the legal profession, do

not fully outline the duties of a

lawyer nor do they provide a

complete picture of the specific

issues before the court in this

proceeding. An attorney's

obligations to provide zealous

advocacy on behalf of his client are

not absolute and uncompromising, but

must be viewed in light of his

additional obligations as an officer

of the: court to promote the

administration of justice and to

comply with the court's rules,

notices, and orders. Additionally,

as with his obligations to his

client, the attorney's obligations

to the court are ongoing at every

stage of the litigation and the

attorney must continually reevaluate

the positions advanced in light of

both the development of the

litigation itself and of the

relevant case law affecting the

litigation.

Judge Bennett recommended that Solerwitz

be suspended from practice for two years.

However, in light of the financial sanctions

already imposed on Solerwitz and the fact that

this is the first instance in which sanctions

would be imposed under both Rule 38 and Rule

46 for conduct arising from the same appeals,

Judge Bennett recommended that enforcement of

the suspension be held in abeyance for two

years pending Solerwitz's demonstration of

rehabilitation. (A-85-99)

Solerwitz filed exceptions to Judge

Bennett's findings and "appealed" to the en

banc Court the determination that Solerwitz

had engaged in conduct unbecoming a member of

comened

the bar. He argued that Judge Bennett had not

found any of the briefs or appeals frivolous.

Rather, Judge Bennett had improperly deferred

to the Court's prior findings of frivolousness

in connection with the Court's prior

imposition of monetary sanctions, thereby

making the hearing on the order to show cause

meaningless. He urged, in reliance on the

experts’ testimony, that the briefs and the

appeals were not frivolous. He noted that

there was a stark difference of opinion

between the experts and the judges of the

Federal Circuit about what constitutes a

frivolous appeal and about the nature of an

attorney's obligations to his client. In

light of this difference of opinion and in

light of the fact that there was no finding of

bad faith on Solerwitz's part, he urged that

ee fate a WE RN OE A ee

the serious sanction of suspension was

inappropriate.

eA | ,

em

The Court of Appeals for the Federal

Circuit, en banc, adopted Judge Bennett's

determination that Solerwitz engaged in

conduct unbecoming a member of the bar.

We have reviewed the testimony of

the three experts and their

conclusions regarding the propriety

of Mr. Solerwitz's conduct. We

agree with Judge Bennett's

conclusion, however, that despite

the opinion of those experts, Mr.

Solerwitz engaged in conduct

unbecoming a member of the bar of

this court in his handling of the .

air traffic controller appeals. |

Contrary, to Mr. Solerwitz's

contention, it is this court and not

Mr. Solerwitz's experts that must

determine whether Mr. Solerwitz's

conduct was improper. As a member

of the bar of this court, Mr.

Solerwitz, in Judge Bennett's words,

was required to “promote the

administration of justice and to

comply with the court's rules,

notices and orders." On five

separate occasions, the court had

warned all counsel in the air

traffic controller cases against

further pursuit of frivolous appeals

in cases that could not be

meaningfully distinguished from the

lead cases. Despite these warnings,

Mr. Solerwitz continued to press

more than 100 appeals that were

frivolous. Mr. Solerwitz cannot

—

escape responsibility for his

actions by the assertions that his

clients insisted that he pursue

their appeals and that he believed

he could draw adequate factual

distinctions between his cases and

the lead cases.

The expert witnesses’ conclusions

were stated in general terms and did

not address the specific grounds

upon which, in previously imposing

the sanctions upon Mr. Solerwitz,

this court had concluded that Mr.

Solerwitz's appeals were frivolous.

It bears repeating that Mr.

Solerwitz filed 107 briefs that were

virtually identical and that merely

repeated the same arguments that

this court already had rejected in

the lead cases. The purported short

factual distinctions he sought to

draw between the situations of the

former controllers in the 131 cases

and those in the lead cases were

wholly unconvincing and did not

provide any meaningful basis for

distinguishing the lead cases.

(A-186-88) The Court, however, “modified" --

really, increased -- the sanction. It fixed

the suspension period at one year, but

rejected Judge Bennett's recommendation that

the suspension be held in abeyance. (A-199-

200) The en banc Court stayed the

‘

commencement of the sanctions only for 90

days, so that Petitioner could seek review in

this Court. (A-200)

Solerwitz requested reconsideration of

the sanction imposed by the en banc Court. He

argued that the sanction imposed by the Court

was more severe than the sanction which Judge

Bennett had recommended, and that he had never

had an opportunity to address the Court on the

propriety of a harsher sanction. The en banc

court ruled that the one-year suspension was a

less severe sanction than a two-year

suspension which would have been suspended.

(A-204) The request for reconsideration was

denied. (A-206)

PET WGR Ect Ponta mieretinemantien meen atin knead

REASONS FOR GRANTING THE WRIT

This case presents substantive and

procedural questions of extraordinary

importance not only to all lawyers who

practice before the federal courts, but to the

court system itself. At its most abstract,

the substantive question involves the delicate

interplay between a lawyer's obligations to

his client and his competing "obligations" to

a court. On -a more concrete and perhaps more

interesting level, the specific question is

whether a court can shift to attorneys the

responsibility to serve as “gatekeepers” for

the Court, insisting that counsel not file (or

that counsel withdraw) appeals in cases where,

for one reason or another, the Court of

Appeals does not want to decide the case, or

believes that the outcome is a foregone

conclusion.

In addition, the case presents important

questions concerning procedural safeguards to

which an attorney is entitled when a federal

Court of Appeals seeks to impose serious

disciplinary sanctions for alleged misconduct

directed at the Court of Appeals itself.

Among the procedural questions presented are

whether, in such circumstances, th charges

must be tried by an impartial tribunal or

whether they can be adjudicated by the very

court which has allegedly been wronged by the

attorney's acts.

POINT I

THE -COURT OF APPEALS' RULING

IMPROPERLY MAKES ATTORNEYS SERVE

AS GATEKEEPERS FOR THE COURT

Petitioner and the Court of Appeals

differ sharply about the respective roles of

federal appeals courts and the attorneys who

practice before those courts in the

administration of justice. Petitioner

maintains that it is the responsibility of an

intermediate appellate court in the federal

system to decide all appeals within its

jurisdiction which litigants bring to it. A

Court of Appeals may affirm -- must affirm --

a judgment if, in its judgment, the issues

raised on appeal are not meritorious or the

case cannot be “meaningfully distinguished"

from cases recently decided by the Court. It

may do so by summary affirmance or other

summary procedure, if the Court deems that

appropriate.

But, Petitioner submits, the Court may

not properly do what the Court of Appeals for

the Federal Circuit has done. It may not

insist that counsel not prosecute appeals in

cases where, as here, although affirmance is

likely or indeed, inevitable, counsel believes

that certain precedents were wrongly decided,

or that the appellant is entitled to relief

under the decided cases, or that the

particular case is distinguishable from

previously decided cases, or even merely in

order to preserve the right to seek review in

the Supreme Court.

The fact that a Court feels "overwhelmed"

with appeals or that chances are high that the

Court will find the appeal to be wholly

without merit does not change the result.

History and the lore of the profession are

replete with examples of courageous advocates

insistent on representing their clients and

i Ten PLC ete HS

presenting (and preserving) their claims even

in the face of very strong expressions by a

Court that it did not want to hear a

particular argument, or thought the argument

meritless. It is, in fact, such advocacy

which results in changes in "well-settled"

law. But even if the law did not change --

and it clearly does -- pursuing an appeal is

appropriate if, for no other reason, than to

preserve the issue for further review. In the

ATC cases, that was particularly appropriate

because this Court had never ruled on any of

the issues presented. Indeed, certiorari had

not even been sought in several of the lead

cases.

Petitioner does not assert any right to

file or maintain frivolous appeals, but he

does maintain -- based on case law, "the lore

of the profession," In re Snyder, 472 U.S.

634, 645 (1985), and the testimony of

thoughtful, respected nein rs oe on legal

ethics -- that the phrase "frivolous appeals"

describes a very narrow class of cases,® into

which the appeals at issue did not fall.

The ATC appeals which he filed were not

fallacious on their face, nor were they sham

appeals. Solerwitz surely was not filing them

with ulterior motives and/or with no intention

of prosecuting them fully. This case is thus

far different from In re Bithoney, 486 F.2d

319 (lst Cir. 1973), the only case of which

counsel is aware in which an attorney was

suspended from practice for taking frivolous

appeals. Bithoney, an attorney who had been

convicted on criminal charges, was found to

have engaged in conduct unbecoming a member of

8according to Professor Freedman, a frivolous

pleading or argument is one that is fallacious

on its face, for example, one that is contrary

to that which would be judicially noticed; a

sham pleading is plausible on its face, but

the attorney asserting it knows or should know

that the facts supporting do not exist.

— en

the bar based on his filing of a number of

petitions for review in immigration cases (the

effect of which was to cause an automatic stay

of deportation) and his failure to diligently

pursue the appeals, in breach of his .

obligations to his clients. Even under these

circumstances, a suspension of less than six

months time was imposed. In fact, nearly all

of the cases reported under Fed. R. App. P. 46

involve counsel's failure to file briefs or

otherwise discharge his obligations to his

client. See, e.g., In re Woolfolk, 572 F.2d

192 (9th Cir. 1977); In re Winsberg, 446 F.2d

641 (9th Cir. 1971). In Solerwitz's case, his

offense was his attempt to fulfill his

professional obligations to his clients, in

the teeth of the Court's pressure to abandon

their causes. This he refused to do.

The Court of Appeals for the Federal

Circuit has taken the unacceptable position in

this case that an appeal is frivolous and that

an attorney may be sanctioned for prosecuting

it if it presents an issue identical or

similar to one presented in a case recently

decided by the Court or one, like the

appellant's constitutional challenges to the

Board's proceedings, which the Court simply is

not interested in hearing. Moreover,

according to the Court, an appeal which is not

frivolous even under the Federal Circuit's

broad definition when filed becomes frivolous

-- and must be withdrawn under penalty of

substantial sanctions -- when, while the

appeal is pending, the Court decides an issue

similar or identical to one it presents. In

fact, under these circumstances, the Court's

decision means that an attorney may be

compelled to withdraw a pending appeal, under

penalty of fine or suspension or both, and may

not attempt to distinguish it. Unless the

attorney can successfully distinguish his case

factually or legally, such an appeal is

frivolous and this notwithstanding the fact

that further review in the Supreme Court is

dependent upon pursuing the appeal through the

appeals court.

Respected experts in the field of ethics

agree that the definition of a frivolous

appeal adopted by the Federai Circuit has

never been the test of a frivolous lawsuit.

All of the experts also agreed that an

attorney is not only permitted -- but

ethically obligated -- to prosecute an appeal

for a client who wishes to proceed under the

circumstances which existed here. Thus, this

case not only presents the important question

whether prosecuting such cases can be deemed

conduct unbecoming a member of the bar. It

also poses the question whether, even if it

can, suspension from practice is an

appropriate sanction where reasonable persons,

knowledgeable about the standards of the

profession, disagree about the propriety of

the conduct at issue, and where, as here,

there is no finding of bad faith on the part

of the attorney.

POINT II

AN ATTORNEY MAY NOT BE

SUBJECTED TO SERIOUS

DISCIPLINARY SANCTIONS WITHOUT

PROCEDURAL SAFEGUARDS INCLUDING

THE RIGHT TO HAVE THE ISSUES

TRIED BY AN IMPARTIAL TRIBUNAL

The en banc court's order to show cause

in this case was plainly an expression of the

Court's interest in vindicating the authority

of the Court, and punishing Solerwitz for what

the Court perceived to be serious misconduct

on his part directed against the judicial

branch, and, ultimately, against the public.

The serious sanction imposed -- a year's

suspension from practice -- was also designed

both to vindicate the Court's authority and to

punish Solerwitz for his "misdeeds."

Thus, this disciplinary proceeding had

much in common with a criminal contempt

proceeding. See Young v. United States, 107

S.Ct. 2124, 2134 (1987) ("In punishing

contempt the judiciary is sanctioning conduct

a. Se. oe

that violates specific duties imposed by the

Court itself, arising directly from the

parties participation in judicial

proceedings.") And, as such, it is as

vulnerable to misuse as are the courts'

contempt powers.

This Court has recognized that:

Contemptuous conduct, though a

public wrong, often strikes at the

most vulnerable and human qualities

of a judge's temperament. Even when

the contempt is not a direct insult

to the court or the judge, it

frequently represents a rejection of

judicial authority, or an

interference with the judicial

process ....

Bloom v. Illinois, 391 U.S. 194, 202 (1968).

See also Cooke v. United States, 267 U.S. 517

(1925); Sacher v. United States, 343 U.S. l

(1952). In recognition of this and of the

abuses to which the contempt power is subject,

this Court has placed significant limitations

on this historically based power, recognizing

for example, an accused contemnor's right to a

jury trial for "serious" contempts, Bloom v.

Illinois, supra; Codispoti v. Pennsylvania,

418 U.S. 506 (1974); and the accused

contemnor's right to an unbiased tribunal.

See, e.g., Taylor v. Hayes, 418 U.S. 488

(1974); Mayberry v. Pennsylvania, 400 U.S. 455

(1971); Offutt v. United States, 348 U.S. ll

(1954); In re Oliver, 333 U.S. 257 (1948).

As Judge Scalia recently recognized,

judicial involvement in contempt proceedings

(in other than a strictly adjudicatory role)

necessarily raises troubling questions

concerning the separation oe anette. There is .

something intrinsically problematic in:

permitting a judge to promulgate a

rule of behavior, prosecute its

violation, and adjudicate whether

the violation took place.

Young v. United States, 107 S.Ct. 2124, 2146

(1987) (Scalia J., concurring). The majority

of the Court in Young looked precisely to the

procedural safeguards “carefully instituted

over time" to protect against “the most

tyrannical licentiousness" which Justice

Scalia perceived. Id. at 2133 & n.9. But in

this case, the most basic procedural

safeguards were absent. In Solerwitz's case,

the Federal Circuit promulgated rules of

behavior, prosecuted their violation, and

adjudicated whether the violation took place.

No jury or prosecutor with independent ethical

cbhligations mediated; no appeal even lies.

Adjudication before a neutral and

unbiased tribunal stands as one of the most

fundamental of due process rights. As this

Court has observed:

The Due Process Clause entitles a

person to an impartial and

disinterested tribunal in both civil

and criminal cases. This

requirement of neutrality in

adjudication proceedings safeguards

the two central concerns of

procedural due process, the

prevention of unjustified or

mistaken deprivation and the

promotion of participation and

dialogue by affected individuals in

the decisionmaking process. The

neutrality requirement helps to

guarantee that life, liberty and

property will not be taken on the

basis of an erroneous or distorted

conception of the facts or the law.

At the same time, it preserves both

the appearance and reality of

fairness, “generating the feeling,

so important to a popular

government, that justice has been

done," by ensuring that no person

will be deprived of his interests in

the absence of a proceeding in which

he may present his case with

assurance that the arbiter is not

predisposed to find against him.

The requirement of neutrality has

been jealously guarded by this

Court.

Marshall v. Jerrico, Inc., 446 U.S. 238, 243

(1980) (citations omitted).

Petitioner, from the start, challenged

the propriety of having the Court which

perceived itself to have been wronged sit in

judgment of his conduct, but the Court

rejected his challenge to the procedure. The

impartial arbiter designated to hear evidence,

and to make findings of fact anda

recommendation for actiuwn, was himself a

senior judge of the very Court whose orders

were allegedly repeatedly disobeyed by

Solerwitz. More important, Judge Bennett

viewed himself to be bound by the Court of

Appeals' prior findings of frivolousness in

connection with its imposition of Rule 38

sanctions against Solerwitz, findings which

were made in a non-adversary, non-contested

setting. In fact, to the extent Judge Bennett

attempted to exercise independent judgment by

recommending that the suspension from practice

be stayed and that Solerwitz be placed on

probation pending a demonstration of

rehabilitation, his judgment was “overruled"

by the en banc court which, without having

heard any evidence or argument on the

question, ordered that the suspension not be

suspended. This was a particularly egregious

tramplinc of rudimentary procedural safeguards

since Solerwitz never even had an opportunity

to address the en banc court on the propriety

or impropriety of any sanction more severe

than the one recommended by Judge Bennett.

Under the procedures set down by the Court,

Solerwitz had an opportunity only to bring

"exceptions" to Judge Bennett's determination

to the en banc court. The en banc court

avoided confronting the procedural

irregularity by taking the absurd position

that Solerwitz could not complain because a

one year suspension is a less severe sanction

than a suspended two year suspension from

practice. This bizarre reasoning underscores

the fact that the Court was much too

personally involved in the dispute to be able

to exercise unbiased judgment.

Petitioner was deprived of his

fundamental right to an adjudication by a

tribunal free of any conflict of interest.

Cf. Ward v. Village of Monroeville, 409 U.S.

57 (1972); Tumey v. Ohio, 273 U.S. 510 (1927).

In this case, the United States Court of

Appeals for the Federal Circuit was not a

conflict-free tribunal, but the party most

directly and intimately involved as the

"victim" of the conduct at issue.

Moreover, because the Court involved is a

federal court of appeals, the statutes provide

no appeal as of right. Unless ths Court

grants certiorari, that Court's judgment will

be final. Cf. Marshall v. Jerrico, Inc.,

supra, 446 U.S. at 247 & n.9.

This Court should therefore grant the

writ of certiorari to review the judgment of

the Court of Appeals and to set guidelines for

appropriate procedural safeguards in

disciplinary procedures undertaken by federal

Courts of Appeals pursuant to Fed. R. App. P.

46.

——— |, a

CONCLUSION

For the reasons stated, the writ of

certiorari should be granted.

Respect fully submitted,

Nathan Z. Dershowitz

Dershowitz & Eiger, P.C.

225 Broadway, Suite 2515

New York, NY 10007

(212) 513-7676

Alan M. Dershowitz

232 Brattle Street

Cambridge, MA 02138

(617) 495-4617

Victoria B. Eiger

Of Counsel

Dated: September 15, 1988

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UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

Miscellaneous Docket No. 145

IN RE JACK B. SOLERWITZ

Nathan Z. Dershowitz, of Dershowitz &

Eiger, P.C., New York, New York, and Alan M.

Dershowitz, attorneys for Jack B. Solerwitz.

On ORDER TO SHOW CAUSE

U.S. Court of Appeals for the Federal

Circuit

Washington, D.C. 20439

ap ats

Senior Judge Marion T. Bennett

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

Misc. 145

In re JACK B. SOLERWITZ

FILED: December 10, 1987

BENNETT, Senior Circuit Judge.

Upon the basis of findings of fact™ made

pursuant to the April 8, 1987 show cause order

of the court and for the reasons outlined in

this opinion, it is concluded that Jack B.

Solerwitz, Esq., has engaged in conduct

unbecoming a member of the bar of this court

in violation of Fed. R. App. P. 46(b). It is

accordingly recommended that Mr. Solerwitz be

*Separately numbered findings set forth in

explicit detail the circumstances which

constitute the factual basis for the

recommendation. Summary reference thereto is

necessary to the following discussion.

suspended from practice before the United

States Court of Appeals for the Federal

Circuit for a period of 2 years. It is

further recommended, for the reasons stated

herein, that enforcement of the recommended

siapensién be held in abeyance for 2 years

under conditions hereafter described.

BACKGROUND

On August 3, 1981, the Professional Air

Traffic Controllers Organization (PATCO)

called a strike by its members who were

employees of the Department of Transportation,

Federal Aviation Administration. This strike

against the United States was a felony

violation of criminal law, 18 U.S.C. §1918(3),

(4) (1982), and a violation of civil law, 5 -

U.S.C. §7311(3), (4) (1982). Rejecting

President Reagan's direction that they return

to work, over 11,000 air traffic controllers

(ATCs) were summarily discharged. Over 10,000

‘

of the discharged ATCs then appealed to the

Merit Systems Protection Board (MSPB or

board), contesting their discharges and

seeking reinstatement. Of those receiving no

relief from the MSPB, approximately 4,600

petitions for review were filed with the

United States Court of Appeals for the Federal

Circuit. The scope of this court's review in

such cases is governed by 5 U.S.C. §7703(c)

(1982) .1

lsection 7703(c) provides that:

In any case filed in the United States

Court of Appeals for the Federal Circuit, the

court shall review the record and hold

unlawful and set aside any agency action,

findings, or conclusions found to be --

(1) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance

with law;

(2) obtained without procedures required

by law, rule, or regulation having been

followed; or

(3) unsupported by substantial

evidence;....

Upon being suddenly confronted with the

addition of thousands of appeals to its

already considerable caseload, the court was

faced with a need to manage the flood of

litigation in such a way as to preserve the

rights of all litigants to individual justice

and at the same time not let the appeals of

the discharged ATCs become an impossible

docket bottleneck affecting all areas of the

court's jurisdiction. Thus, many of the

individual petitions to this court was

consolidated, as had been done before the

MSPB. The consolidation of cases is

authorized in the law for use by the MSPB, 5

U.S.C. §7701(£); 5 C.F.R. §1201.36 (1987), and

by the federal appellate courts, Fed. R. App.

P. 3(b), where such action will expedite

processing of cases and not adverdeiy affect

the interests of the parties. Additionally,

12 cases were selected which presented legal

pence on re en a se en nc x naneneh sernn econo steams ee

issues common to most, if not all, of the

appeals of the ATCs. These "lead cases" were

put on a fast track and all other pending ATC

cases were suspended by order of February 24,

1983. Counsel in all lead and suspended cases

were so notified.?

On May 15, 1984, the 12 lead cases were

decided.3 Counsel for the parties in each of

2The selection of "test" or “lead" cases

involving similar facts and issues has often

been employed by courts and agency boards when

permitted and demanded by the circumstances.

See, e.g., In re American Federation of

Government Employees, AFL-CIO, 790 F.2d 116,

119 (D.C. Cir.) (describing use of lead cases

by the Federal Labor Relations Authority),

aff'd, 107 S.Ct. 43 (1986); Clincher v. United

States, 499 F.2d 1250, 1253 (Ct. Cl. 1974)

("The test case ... has been the traditional

method of litigating rights of Government

employees in this court.").

3 Scha ansky v. Department of Transportation,

FAA, EE F.2q 477 (Fed. Cir.), cert. denied,

469 U.S. 1018 (1984); ‘

Adams v. Department of Transportation, FAA,

35 F.2d 4 (Fed. Cir.), cert. denied, 469

U.S. 1018 (1984); ;

Campbell v. Department of Transportation, FAA,

(footnote continued)

the suspended cases were sent copies of the

court's opinions in the decided cases on the

same day that the opinions issued. They were

directed to notify the court within 30 days

after final disposition of the lead cases as

(footnote continued from previous page)

735 F.2d 497 (Fed. Cir.), cert. denied, 469

U.S. 881 (1984);

Martel v. Department of Transportation, FAA,

735 F.2a 504 (Fed. Cir.), cert. denied, 469

U.S. 1018 (1984);

Johnson v. Department of Transportation, FAA,

735 F.2d 510 (Fed. Cir. 1984);

Dorrance v. Department of Transportation, FAA,

735 F.2d 516 (Fed. Cir.), cert. denied, 469

U.S. 1018 (1984);

Novotny v. Department of Transportation, FAA,

735 F.2d 521 (Fed. Cir. 1984);

Moylan v. Department of Transportation, FAA,

EE F.2d 524 (Fed. Cir.), cert. denied, 469

U.S. 1018 (1984);

DiMasso v. Department of Transportation, FAA,

735 F.2d 526 (Fed. Cir.), cert. denied, 469

U.S. 1018 (1984);

Letenyei v. Department of Transportation, FAA,

35 F.2d 528 (Fed. Cir. 1984);

(footnote continued)

to whether they wished to proceed with their

suspended cases. They were also cautioned

about the impropriety of maintaining frivolous

appeals and were given citations to a sampling

of Federal Circuit cases where the court had

imposed sanctions for the filing of frivolous

appeals.

In conformity with the court's notice of

May 18, 1984, counsel and petitioners were

notified on December 10, 1984, that the

Supreme Court had denied certiorari in all

cases where Supreme Court review had been

sought and that the final mandates had issued

from this court to the MSPB. Counsel in the

suspended cases were given 30 days thereafter

within which to file renewed petitions

(footnote continued from previous page)

Anderson v. Department of Transportation, FAA,

735 F.2d 537 (Fed. Cir.), cert. denied, 469

U.S. 1018 (1984); “

Brown v. Department of Transportation, FAA,

735 F.2d 543 (Fed. Cir. 1984).

advising the court of those remaining issues

which were relied upon and which had not been

decided in any of the lead cases. This notice

also repeated the cautions of the earlier

notice. Finally, the court informed counsel

that the order of suspension would terminate

on January 10, 1985.

On three other occasions, July 12, July

31 and August 30, 1985, the court again

requested air controller counsel to review the

propriety of maintaining their pending appeals

in light of the need to avoid abuse of the

judicial process resulting from maintaining

frivolous appeals. On the latter date,

counsel were furnished copies of additional

opinions of the court in air controller cases

which had been published since July 12, 1985.

ATC Cases of Mr. Solerwitz

Jack B. Solerwitz, Esq., the senior

partner in the law firm of Solerwitz,

Solerwitz & Leeds, of Mineola, New York,

initially represented between 800 and 1,000

air traffic controllers. The firm's attorneys

represented these clients at numerous hearings

before the MSPB at various locations

throughout the country. Following the

proceedings at the board level, Mr. Solerwitz

was counsel for 736 discharged ATCs who

appealed to this court. As a result of the

consolidation cf appeals, he filed a total of

154 petitions for review on their behalf in

the Federal Circuit. Mr. Solerwitz was sole

counsel for the petitioner in one of the 12

lead cases. He did not then protest use of

this procedure. During the period February

24, 1983 and January 10, 1985, when all non-

lead case appeals were stayed, Mr. Solerwitz

continued to prepare appeals to the court. In

a

all of the ATC cases in which he or his firm

served as counsel, new or renewed petitions or

review were timely filed following the lifting

of the stay.

A. Briefing

The court's notice of December 10, 1984,

further ordered that briefs be filed within 60

days of the filing of renewed peticions. Mrs.

Solerwitz, who as a member of the law firm had

considerable responsibility to help in the

preparation of the appeals, described the 60-

day requirement as a "nightmare." She was

also highly critical of the 50-page limitation

for the briefs which had been determined in

accordance with the binding rules for federal

appellate courts, Fed. R. App. P. 28, and

local court rule, Fed. Cir. R. 13. A motion

was:filed by the firm seeking permission to

exceed the page limits set forth in the rules.

The motion was denied, but the court, sua

A-10

sponte, granted additional time within which

to file corrected briefs. At the same time,

in light of the particular circumstances of

these cases, the court also suggested

incorporation by reference to arguments in

Solerwitz briefs which had been accepted,

noting that the overlong briefs proferred

contained repetitious arguments of great

lengths. The court's suggestion was

thereafter partially accommodated by Mr.

Solerwitz.

Following the briefing, oral argument was

requested by Mr. Solerwitz on each of his

pending appeals. Counsel insists that he was

never notified of a ruling on the motion for

Oral argument but the court's records show

that the requests for oral argument in each

case were denied. The court thereafter twice

notified Mr. Solerwitz that if oral argument

in his pending cases was desired, he should

A-11

advise the court how his argument ait .

distinguish the lead cases; otherwise his

cases would be submitted on the briefs without

Oral argument. Mr. Solerwitz did not attempt

to raise any such distinctions and the cases

were submitted.

B. Appendices

Mr. Solerwitz also encountered difficulty

in the preparation and timely filing of proper

appendices as required by court rules. See

Fed. R. App. P. 30; Fed. Cir. R. 12.

Accordingly, a motion was filed with the court

on March 18, 1985, for leave to omit

appendices or, in the alternative, to delay

their submission until after the government's

briefs were filed. The motion pointed to the

redundancy of the materials, the complexity

due to the large number of petitions combined

in joint briefs, the personnel shortages at

the law firm, and the government's possession

A-12

of needed documentation. The motion was

denied on April 2, 1985. Thereafter, a motion

was made to extend the time for filing

appendices in 85 cases. On June 14, 1985, the

court granted this motion for a period beyond

the time requested.

On August 19, 1985, a third motion was

filed by Mr. Solerwitz requesting the court to

enlarge further the time for filing 38

appendices and to accept late filing. The

burden of compliance with the court's rules

and instructions was described as requiring

more time for "a federal law practice

employing three people." The government filed

an opposition to the motion, which was denied

on August 28, 1985. Mr. Solerwitz asain

contends that the court either did not notify

him of rulings on the motions relating to

appendices or delayed unreasonably in doing

so. However, the court's public records show |

A-13

si

that the motions were ruled on in timely

manner and that counsel was notified of the

rulings. See Des Vignes v. Department of

Transportation, 791 F.2d 142, 146 n.4. (Fed.

Cir.), cert. denied, 107 S.Ct. 185 (1986).

C. Sanctions Imposed in Individual Appeals

The court generally found the vast

majority of the ATC appeals filed by Mr.

Solerwitz to be frivolous, an abuse of the

judicial process, or exhibiting other attorney

misconduct meriting sanctions under Fed. R.

App. P. 38.4 Mr. Solerwitz's general course

of conduct was summarized by this court in Des

Vignes. Under the facts of that specific

case, the court affirmed the decision of the

MSPB upholding petitioner's removal and found

the appeal to be frivolous. The court

outlined in exacting detail why that specific

4Rule 38 provides that "CLi]Jf a court of

appeals shall determine that an appeal is

frivolous, it may award just damages and

single or double costs to the appellee."

A-14

appeal raised no unresolved issues and

presented no fact pattern distinguishable from

those in one or more of the lead cases

published 2 yeas earlier. 791 F.2d at 143.

Then, as a result of the filing and

maintaining of that appeal, the court- imposed

a fine of $1,000 on Mr. Solerwitz personally

for a “flagrant and totally inexcusable abuse

of the judicial process." Id. at 146.

In addition, to is discussion of Mr.

Solerwitz's conduct in Des Vignes, that

opinion observed that Mr. Solerwitz was

counsel of record in an additional 130 appeals

involving hundreds of ATCs still pending

before that panel of the court. Of those

other 130 appeals, the court concluded that

107 of the Solerwitz briefs in those pending

cases were virtually identical even to the

extent of repeating typographical errors, and

that the other 23 appeals could be grouped

A-15

into two categories exhibiting nearly

identical briefs. Id. at 145-46 & n.3.

Despite the lack of citations to the record or

appendices, it was necessary for the court to

check the records and to read every brief in

order to insure against the possibility that a

valid appeal. might be buried amid the

“patently frivolous constitutional arguments,

rejected contentions, and unsupported

assertions of fact” previously advanced to and

rejected by the court. Id. at 146. In the

court's considered view, counsel's conduct was

vexatious and unprofessional, and wasted

judicial resources to the detriment of

deserving litigants.

The court issued individual opinions in

each of the appeals described in Des Vignes as

well as in each of the other ATC appeals

handled by Mr. Solerwitz. The court generally

found Mr. Solerwitz‘'s conduct in nearly all of

A-16

the ATC appeals to be deficient for various

reasons and imposed sanctions on him totaling

$78,300.2 Additionally, costs and attorney

fees of $11,843.94 against Mr. Solerwitz were

awarded in favor of the government in the same

appeals. See 28 U.S.C. §$$1913, 1927 (1982);

Fed. R. App. P. 38. Neither the sanctions nor

their amounts were contested by Mr. Solerwitz

at the time of their imposition and they are

not at issue in the present proceeding. In

fact, the sums charged have been paid.

5As noted in the findings, sanctions were

imposed for misconduct including or consisting

of (1) filing petitions that were clearly

frivolous, (2) abuse of the judicial process,

(3) filing briefs that were devoid of any

showing on which the decisions appealed from

could be reversed, (4) filing briefs devoid of

any basis upon which the earlier decisions of

this court could be distinguished in law or

fact, (5) violation of the court's rules,

particularly Rules 12 and 13(a), (6) ignoring

in his reply brief contrary authority cited by

the government, (7) advancing arguments

regarding issues not on appeal, (8) failure to

support his assertions with anything from the

record, and (9) raising contentions not raised

before the presiding official or the board.

A-17

Finally, it is also noted that Mr. Solerwitz

has been sanctioned for prosecuting frivolous

appeals by his court in cases not involving

removals of discharged ATCs. See, e.g., Moir

v. Department of the Treasury, 754 F.2d 341,

343 (Fed. Cir. 1985).

The Order To Show Cause

On January 21, 1987, the court entered an

in banc order directing Mr. Solerwitz to show

cause why he should not be suspended for 2

years from representing clients before the

Court of Appeals for the Federal Circuit. The

order recounted that he had filed virtually

identical briefs and maintained 142 frivolous

appeals (145 by later count), disregarded the

court's rules and notices, failed to file

appendices properly, provided no citations to

the record, ignored authorities cited by the

government, advanced arguments not made to the

MSPB and thus not properly on appeal, failed

A-18

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to distinguish the lead case precedents, and

abused the judicial process further by

delaying availability of the court's limited

resources to deserving litigants and wasting

the time of the court. He was charged under

Fed. R. App. P. 46(b) with conduct "unbecoming

a member of the bar of the court."©

SRule 46, entitled "Attorneys," because

effective July 1, 1968, with the approval of

the Supreme Court and Congress. Subsection

(b) reads as follows:

(b) Suspension or Disbarment. When it is

shown to the court that any member of its bar

has been suspended or disbarred from practice

in any other court of record, or has been

guilty of conduct unbecoming a member of the

bar of the court, the member will be subject

to suspension or disbarment by the court. The

member shall be afforded an opportunity to

show good cause, within such time as the court

shall prescribe, why the member should not be

suspended or disbarred. Upon the member's

response to the rule to show cause, and after

hearing, if requested, or upon expiration of

the time prescribed for a response if no

response is made, the court shall enter an

appropriate order.

A-19

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Following the court's granting of a 30-

day enlargement of time for a response to the

order to show cause, on March 23, 1987, Mr.

Solerwitz, through his counsel, moved to

disqualify each judge of the court from ruling

on the order. Additionally, he sought a stay

of the proceedings, or alternatively, a

further enlargement of time and alternative

relief. The motion included affidavits by Mr.

Solerwitz and one of his counsel. Mr.

Solerwitz requested that, should his motion be

denied, his affidavit be considered as his

answer to the order to show cause. However,,

he also requested oral argument and an

evidentiary hearing. The court denied the

motion as to the disqualification of he.

court's judges and as to the requested stay

and additional enlargement of time but the

request for a hearing and oral argument was

granted. It was further ordered, however,

A-20

that evidence attacking the procedures of the

Federal Aviation Agency, the MSPB, or the

court would not be received and was

irrelevant. According to the order, the sole

issues were to be whether Mr. Solerwitz

committed the acts charged and, if so, whether

he should be suspended from practicing before

the Federal Circuit for a period of 2 years.

The Evidentiary Hearing

The requested evidentiary hearing was

held on July 20, 1987. The court was not

represented by counsel and the hearing was

non-adversary. Mr. Solerwitz did not testify.

Mrs. Solerwitz, a member of his firm,

testified on his behalf, as did three former

ATCs, all of whom had retained Mr. Solerwitz

as counsel during their appeals before the

board and this court. Each of the appeals to

this court by the three witnesses who were

former ATCs had been held to be frivolous and

A-21

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damages were imposed by the court in each

case. Additionally, three witnesses, who were

offered as experts on professional conduct and

legal ethics, testified. No evidence offered

was excluded.

The four fact witnesses called, Mrs.

Solerwitz and the three former ATCs, all

testified that Mr. Solerwitz had been employed

because it was believed and agreed that he

would pursue the ATC appeals with vigor, and

that other counsel would have been employed

had he not agreed to do so. Furthermore, it

was uniformly asserted that it was the desire

of his ATC clients to file and to continue to

maintain their appeals through to a decision

on the merits, both to preserve the right to

seek certiorari to the Supreme Court and to

keep the case "alive" in hopes of Congress

A-22

enacting legislation which would provide an

alternative, political solution to their

desired judicial remedy.

Evidence was presented that the standard

attorney fee arrangement between Mr. Solerwitz

and each of his ATC clients was for payment of

$750 for legal services covering

administrative procedures in the regional MSPB

offices leading to an initial decision. An

additional non-refundable fee of $2,500 was

charged to cover all subsequent appeals,

whether to the full board, to this court, or

through to the Supreme Court.’ An offer of

7Thus, had the full fees been collected for

each of the 736 appeals to this court, Mr.

Solerwitz would have received $2,392,000.00.

However, two of the three ATC witnesses

testified that their attorney fees had been

waived in whole or in part because of their

financial circumstances. Mrs. Solerwitz

testified that fees were waived for other

clients as well and there was some evidence

that some of the Solerwitz clients’ provided

services to the firm in lieu of-payment of

fees. The affidavit of Mr. Solerwitz stated

that acceptance of the air controller cases

(footnote continued)

A-23

proof was made that, if called, 14 other ATC

Clients of Mr. Solerwitz who had been listed

as potential witnesses would have testified to

the same effect. The testimony of each of the

witnesses, especially those offered as experts

on professional conduct and legal ethics, will

be discussed in greater detail as required in

the course of the following opinion.

Following the close of the evidentiary

hearing, Mr. Solerwitz ard his counsel were

allowed to file requested findings cf fact and

conclusions of law along with any supporting

argument counsel might wish to advance.

Counsel was instructed to include all issues

and objections that might later be advanced to

the full court, and counsel agreed to do so.

On September 10, 1987, the proposed findings

(footnote continued from previous page)

was a “financial disaster" for his firm, but

no evidence was offered to indicate how many

of the appealing air traffic controllers were

not charged, did not pay, or provided services

in lieu of payment.

of fact and conclusions of law were filed.

However, the submitted conclusions of law were

proposed solely on the testimony of the expert

witnesses without citation to authority.

OPINION

The court's order to show cause cited

subsection (b) of Fed. R. App. P. 46 (Rule 46)

as the basis for determining whether Mr.

Solerwitz's conduct had been "unbecoming a

member of the bar of the court." The hearing

and associated proceedings in this matter were

designed to be in accordance with Rule 46 and

any subsequent action recommended or taken by

this court as a result of the proceedings is a

matter of discipline concerning Mr. Solerwitz

as an attorney and member of the bar of this

federal court.8 Nearly all of the prior

8In contrast to the disciplinary measures

imposed against an attorney under the

authority of Rule 46, federal appellate courts

have imposed sanctions on parties and/or

counsel under 28 U.S.C. $1912, which gives an

(footnote continued)

A-25

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monetary sanctions were imposed by this court

against Mr. Solerwitz individually as counsel

under the authority of Fed. R. App. P. 38 and

none of his clients were required to make

(footnote continued from previous page)

appellate court discretion to allow a

prevailing party “just damages for his delay,

and single or double cost"; under 28 U.S.C.

§1927, which makes an attorney "who so

multiplies the proceedings in any case

unreasonably and vexatiously" personally

responsible for "excess costs, expenses, and

attorneys’ fees reasonably incurred because of

such conduct"; under Fed. R. App. P. 38, which

provides that "“[LiJ]Jf a court of appeals shall

determine that an appeal is frivolous, it may

award just damages and single or double costs

to the appellee"; under local court rules; or

as an exercise of their inherent authority.

See generally Martineau, Frivolous Appeals:

The Uncertain Federal Response, 1984 Duke L.J.

“ - - Additionally, appellate courts

have imposed sanctions for a frivolous appeal

in reliance on Fed. R. Civ. P. 11. See In re

Kelly, 808 F.2d 549, 551 (7th Cir. 1986);

United States v. Carley, 783 F.2d 341 (2d

Cir.), cert. denied, 106 S.Ct. 2251 (1986).

While our discussion of Rule 46 in this

opinion cites and relies on the extensive body

of caselaw construing the related statutes and

rules listed above, it is recognized that

sanctions imposed under them are distinct from

discipline imposed under Rule 46.

A-26

additional payments to Mr. Solerwitz because

of the sanctions imposed against him in the

individual appeals in ATC cases.

At the outset, it is noted that this

proceeding marks the first time that this

court has found it necessary to weigh the

possibility of disciplining an attorney for

conduct unbecoming a member of its bar under

Rule 46. As it is a case of first impression

in this court and one of only occasional

occurrence in other courts, the court has

proceeded cautiously, mindful of the

seriousness of the proceeding. While some of

the regional circuit courts of appeals have

formally adopted disciplinary rules, the

Federal Circuit has not. However, as recently

noted by the Supreme Court:

Courts have long recognized an

inherent authority to suspend or

disbar lawyers. Ex parte Garland, 4

Wall. 333, 378-379 (1 ); Ex parte

Burr, 9 Wheat. 529, 531 (1824).

This inherent power derives from the

lawyer's role as an officer of the

A-27

court which granted admission.

Theard v. United States, 354 U.S.

278, 261 (1957). The standard for

disciplining attorneys practicing

before the courts of appeals is set

forth in Federal Rules of Appellate

Procedure 46[.] (Footnote omitted.)

In re Snyder, 472 U.S. 634, 643 (1985); see

also Roadway Express, Inc. v. Pipe, 447 U.S.

752, 764-67 (1980).

In Snyder, the Eighth Circuit Court of

Appeals had suspended an attorney for 6 months

because of his refusal to continue to perform

legal services in indigent cases under the

Criminal Justice Act, 18 U.S.C. §3006A, and

his disrespectful refusal to comply with the

Act's guidelines relating to the submission of

expenses and fees. However, as outlined in

the Eighth Circuit's denial for rehearing en

banc and in the Supreme Court's discussion of

the facts, the real dispute centered around

the manner in which Mr. Snyder objected to the

court's administration of the Criminal Justice

A-28

Act and his subsequent failure to recant or

apologize for his “harsh" statements to the

court. On those facts, the Supreme Court

unanimously reversed the Eighth Circuit's

suspension of Mr. Snyder, holding that a

single instance of unlawyer-like rudeness did

not support a finding that the lawyer was

presently fit to practice law in the federal

courts” nor did it warrant suspension from

practice as "conduct unbecoming a member of

the bar." 472 U.S. at 647.

The facts of the present proceeding

involve the continued filing and maintenance

of multiple frivolous appeals rather than a

single instance of disrespectful and rude

communication to the court by a member of the

court's bar. However, the Supreme Court's

discussion in Snyder of Rule 46 provides an

excellent starting point for the analysis in

the present proceeding.

A-29

The phrase “conduct unbecoming a

member of the bar” must be read in

light of the “complex code of

behavior" to which attorneys are

subject. In re Bithoney, 486 F.2d

319, 324 (CA ° ssentially,

this reflects the burdens inherent

in the attorney's dual obligations

to clients and to the system of

justice.

Read in light of the traditional

duties imposed on an attorney, it is

clear that “conduct unbecoming a

member of the bar" is conduct

contrary to professional standards

that shows an unfitness to discharge

continuing obligations to clients or

the courts, or conduct inimical to

the administration of justice. More

specific guidance is provided by

case law, applicable court rules,

and “the lore of the profession," as

embodied in codes of professional

conduct. (Footnote omitted.)

472 U.S. at 644-45.

The Supreme Court further observed that

while a state's code of professional

responsibility does not expressly apply to

sanctions in the federal courts, federal

courts exercise their inherent power to admit,

suspend, or disbar their attorneys and the

A-30

standards imposed by the federal courts are a

matter of federal law. Id. at 645 n.6 (citing

Hertz v. United States, 18 F.2d 52, 54-55 (8th

Cir. 1927)). Thus, Rule 46 anticipates a

member of the bar of a federal court will

comply with an applicable state code of

conduct and a federal court of appeals is

entitled to rely on an attorney's knowledge of

and duty to conform thereto. Id. While a

member of the bars of several federal course,

Mr. Solerwitz has been admitted to only one

state bar, New York.

Unlike the regional circuit courts, this

court has nationwide jurisdiction.

Furthermore, the actions at issue in the

present proceeding grew out of matters

initiated not in a district court, but in

proceedings before the MSPB, a federal

administrative tribunal which allows attorneys

of the bar of any state to appear before it.

A-31

Thus, in light of our nationwide jurisdiction,

we prefer to look for guidance both to the

American Bar Association's (ABA) Model Rules

of Professional Conduct (1987) and Mode Code

of Professional Responsibility (1980) as well

as to other sources governing professional

conduct to ascertain the applicable “lore of

the profession" relevant to our authority to

discipline under Rule 46 as a matter of

federal law.

The Model Code of Professional

Responsibility (hereinafter Model Code),

although replaced by the ABA in 1983 with the

Model Rules of Professional Conduct

(hereinafter Model Rules), still provides the

basis for the attorney ethics rules in many

state codes. According to the Model Code's

preliminary statement, its numbered Canons,

Ethical Considerations, and Disciplinary Rules

correspondingly represent the axiomatic norms,

A-32

the objectives, and the mandatory rules by

which attorneys should pattern their

professional conduct. The considerations and

rules accompanying Canon 7, entitled "A Lawyer

Should Represent a Client Zealously Within the

Bounds of the Law," were selectively cited and

relied upon by Mr. Solerwitz's witnesses. EC

7-1 echoes Canon 7 by verifying that "[tJhe

duty of a lawyer, both to his client and to

the legal system, is to represent his client

zealously within the bounds of the law, which

includes Disciplinary Rules and enforceable

professional regulations." As EC 7-19 points

out, “(t]he duty of a lawyer to his client and

his duty to the legal system are the same: to

represent his client and his duty to the legal

system are the same: to represent his client

zealously within the bounds of the law."

A-33

The duty to represent the client both

"zealously" and “within the bounds of the law"

is further described by EC 7-4:

The advocate may urge any

permissible construction of the law

favorable to his client, without

regard to his professional opinion

as to the likelihood that the

construction will ultimately

prevail. His conduct is within the

bounds of the law, and therefore

permissible, if the position taken

is supported by the law or is ,

supportable by a good faith argument

for an extension, modification, or

reversal of the law. However, a

lawyer is not justified in asserting

a position in litigation that is

frivolous.

In the same tenor, EC 7-5 instructs that it is

entirely permissible for an attorney to

continue to represent a client who has

rejected the attorney's advise "so long as

[the attorney] does not thereby knowingly

assist the client .. . to take a frivolous

legal position."

The Disciplinary Rules of the Model Code

were designed to be mandatory in character and

to state the minimum level of conduct

necessary to avoid disciplinary action. See

DR 1-102(A)(1) ("A lawyer shall not violate a

Disciplinary Rule"). DR 7-101 provides, in

part, with respect to the zealous

representation of a client:

(A) A lawyer shall not intentionally:

(1) Fail to seek the lawful

objectives of his client through

reasonably available means

permitted by law and the

Disciplinary Rules, except as

provided by DR 7-101 (B) ...

(B) In his representation of a client, a

lawyer may:

(1) Where permissible, exercise his

professional judgment to waive

or fail to assert a right or

position of his client.

In contrast, DR 7-102 provides, with respect

to representing a client within the bounds of

the law:

(A) In his representation of a client, a

lawyer shall not:

(2) Knowingly advanced a claim or

defense that is unwarranted

under existing law, except that

he may advance such claim or

defense if it can be supported

by good faith argument for an

extension, modification, or

reversal of existing law.

Additionally, DR 1-102(A)(5) states that a

lawyer shall not "[Le]ngage in conduct that is

prejudicial to the administration of justice.”

Despite the ABA's replacement of the

entire Model Code with the Model Rules of

Professional Conduct in 1983, the Model Rules

were not discussed or specifically cited by

Mr. Solerwitz's expert witnesses. Generally,

with respect to the Model Code sections noted

above, the Model Rules harmonize with _the

provisions of the Model Code. For instance,

Model Rule 3.1 incorporates the provisions of

both DR 7-102(A)(1) and (2) in the Model Code

by providing that:

A lawyer shall not bring or defend a

proceeding, or assert or controvert

an issue therein, unless there is a

basis for doing so that is not

frivolous, which includes a good

faith argument for an extension,

modification or reversal of existing

law.

In a significant distinction from the Model

Code, however, Rule 3.1 no longer requires the

lawyer to “know” that the appeal or claim is

frivolous, but provides for that determination

to be made using an objective standard.

Similarly, both Model Code DR 7-106(B) (1)

and Model Rule 3.3 require counsel to

recognize the existence of pertinent legal

authorities by prohibiting the failure to

disclose to a court legal authority directly

adverse to a client's position which is not

disclosed by opposing counsel. ABA Model Rule

8.4(a) is similar to DR 1-102(A)(1) of the

A-37

Model Code, although it adds an additional

prohibition against attempting to violate the

Rules. As in Model Code DR 1-102(A)(5), Model

Rule 8.4(d) provides that it is professional

misconduct for a lawyer to engage in conduct

prejudicial to the administration of justice.?

As noted above, the facts before the

Supreme Court in Snyder differ significantly

from those in the present proceeding. In

contrast to Snyder, the basis for the

disciplinary proceeding in In re Bithoney, 486

F.2d 319 (lst Cir. 1973), is much closer to

°The Aue es Lawyer's Manual on Professional

Conduct (hereinafter ABA/BNA Manual)

observes that courts that have attempted to

define the scope of the prohibitions against

conduct that is prejudicial to the

administration of justice have usually

concluded that conduct interfering with

“litigation processes generally is prejudicial

to the administration of justice." Id. at

101:501. Lawyer's actions which violate or

misuse procedural rules or which fail to

comply with a court's orders have been

punished as conduct prejudicial to the

administration of justice, as have frivolous

appeals. Id. at 101:502 (and cases cited).

the present situation. Bithoney arose from a

course of conduct in which céagendént Bithoney

filed nine petitions for review in immigration

cases which were frivolous, or not diligently

pursued, or both. Under the applicable law,

the filing of the appeals by Mr. Bithoney

effected an automatic and immediate stay of

deportation to the benefit of his clients,

regardless of the total lack of merit in the

appeals. Six of the petitions had been filed

after the First Circuit had issued a specific

warning to counsel that any future filings

which were clearly frivolous or not diligently

pursued would be considered as a deliberate

abuse of the judicial process designed solely

to stay entercessar of the immigration orders

and would be referred to the U.S. Attorney for

possible disciplinary proceedings. 486 F.2d

at 321 (citing warning given in Panagopouios

v. Immigration and Naturalization Service, 434

A-39

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F.2d 602, 603-04 (lst Cir. 1970)). The First

Circuit held that the total lack of merit and

lack of diligence in pursuing the claims,

especially in the face of a specific warning

by the court, constituted behavior unbecoming

a member of the bar under Rule 46 and, under

the authority of that rule, the court

suspended the respondent as a member of the

bar of tha couxt for 4 months and fined him

$500.

In Bithoney, Rule 46 was held not to be

sO vague as to deny due process when used as a

basis for attorney discipline. The court

noted that the term “conduct unbecoming a

member of the bar” must not be evaluated in

the abstract, but must be placed in the

context of being a part of a rule directed to

the discrete professional group (attorneys)

with a complex code of behavior that has been

developed over a consideration length of time.

A-40

486 F.2d at 324. Referring to the Model Code

as an illustration of the "lore of the

profession," the court further stressed that

there is "at least a core area of clearly

prohibited conduct" which the respondent was

obligated to avoid as conduct unbecoming a

ilies of the bar.19 Id. The court found

that respondent ran afoul of both the general

proscriptions of Rule 46 and of the court's

specific warnings against further abuse of the

judicial process and held that the vagueness

of which he complained was not present. Id.;

see also United States v. Hearst, 638 F.2d

1190, 1197 (9th Cir. 1980), cert. denied, 451

U.S. 938 (1981).

10as noted, the Supreme Court in Snyder cited

and adopted the First Circuit's interpretation

of the prohibition in Rule 46 against "conduct

unbecoming a member of the bar" as viewed in

light of “case law, applicable court rules,

and ‘the lore of the profession,' as embodied

in codes of professional conduct." 472 U.S. at

645 (footnote omitted).

A-41

Just as the respondent in Bithoney had

been warned by the First Circuit against

filing frivolous appeals, Mr. Solerwitz

received several notices from this court

warning against abuse of the judicial process

through the filing of frivolous appeals. As a

member of state and federal bars, Mr.

Solerwitz is charged with knowledge of both

the various professional codes and,

specifically, with Federal Rules of Appellate

Procedure 38 and 46. Additionally, he was

sanctioned on numerous separate occasions,

which should have been more than adequate to

place him on notice that his overall conduct

was being viewed by this court as

inappropriate professional conduct and a

likely subject for discipline. Therefore, Mr.

Solerwitz cannot properly complain of having

A-42

to guess as to the course of conduct which

could have led to further sanctions or

discipline against him.

| Rule 46 provides that a member of the ba:

of the court "shall be afforded an opportunity

to show good cause . . . why the member shoul<

not be suspended or disbarred" and that the

member is entitled to a hearing, if requested.

Mr. Solerwitz requested a hearing, and at the

hearing counsel for Mr. Solerwitz reserved al!

procedural objections. At the close thereof,

counsel was instructed to present all such

objections when proposed findings of fact and

conclusions of law were submitted. Although

counsel agreed to do so, no such objections

were presented.

This court has not adopted the Model

Federal Rules of Disciplinary Enforcement

(1985), which contemplate appointment of

counsel by the court to investigate and try a

disciplinary case before a judge or judges of

the court.11 as noted in the background

section, the court poe a motion to

disqualify each judge of the court from ruling

on the order to show cause. The suggestion

that a disciplinary proceeding designed to

regulate the members of a court's bar cannot

be conducted before the judges of that court

is incredulous. While Rule 46 provides no

explicit guidance as to the format of the

allowed hearing, the procedures here generally

parallel those used in similar proceedings.12

llqne Model Federal Rules of Disciplinary

Enforcement provide for payment to the

appointed counsel. This court has not

appropriate funds to implement those rules if

adopted nor has it levied an assessment on the

members of its bar for that purpose.

12 See, e.g., In re Kelly, 808 F.2d 549 (7th

Cir. 1986) (order to show cause by 3-judge

appellate panel, attorney represented by

counsel, no representative on behalf of the

court); Eash v. Riggins Trucking Inc., 757

F.2d 557 (3d Cir. ED {en banc) (appeal from

district court's imposition of sanction, law

professor appointed as amicus curiae to

(footnote continued)

A-44

Here, as a nonadversary hearing was held

before a senior judge of the court who had not

participated in any of the cases in which Rule

38 sanctions were imposed against Mr.

Solerwitz and who had over 23 years of

experience as a trial judge prior to sitting

on the appellate bench. Even without the

(footnote continued from previous page)

represent position adverse to appellants,

heard before full court); In re Snyder, 734

F.2d 334 (8th Cir. 1984) (order to show cause

issued from appellate court, hearing held

before 3-judge panel of court including the

chief judge, court represented by counsel, and

additional opinion filed by court en banc

upholding chief judge's appearance on panel),

reversed on merits, 472 U.S. 634 (1985);

Bithoney, 486 F.2d 319 (original proceeding

upon petition of U.S. Attorney, heard before

3-judge panel of court and included oral

argument, sworn testimony, and briefs); In re

Tatum, 587 F.2d 682 (5th Cir. 1979) (hearing

before district judge acting as master, 3-

judge appellate panel issued order to show

cause, attorney filed written response, and

panel issued order of suspension); In re

Chandler, 450 F.2d 813 (9th Cir. 1971) (order

to show cause issued by appellate court, heard

before retried district court judge acting as

master, attorney acted as amicus curiae for

the court, suspension order by 3-judge panel

of appellate court upon master's

recommendation).

aaa ania aaa areata.

benefit of responding to formal objections,

for the reasons stated above, it is concluded

that the current application of Rule 46 and

the hearing held in this proceeding are not

violative of due process.

The respondent in Bithoney had urged, in

reliance on Canon EC 7-1 of the Model Code of

Professional Responsibility, that a lawyer

must represent the interests of his client

"zealously." He further argued that a court's

finding that a position advanced was frivolous

must not be a cause for attorney discipline so

as not to “inhibit the bar from the most

vigorous advocacy of clients' positions" or to

“restrict meaningful access to the court."

486 F.2d at 322. The contrary view, it was

argued, would place an attorney in an

intolerable dilemma when the needs or

instructions of his client would force

advancement of an argument which the attorney

A-46

personally felt lacked merit and might lead to

punitive action against the attorney by the

court. Id.

Mr. Solerwitz, through the testimony of

his expert witnesses, makes almost identical

arguments in the present proceeding. In their

testimony here, the experts extolled the

beauties of "creative lawyering" and praised

the landmark decisions vindicating important

rights that have resulted from imaginative

lawyers and judges not afraid to adopt

positions previously rejected. Citing Model

Code EC 7-1 and DR 7-101(A)(1), the experts

affirmed a lawyer's duty to represent the

client "zealously" using all “reasonably

available means permitted by law" and also

affirmed the duty of a lawyer to advance good

faith arguments for an extension,

modification, or reversal of legal precedents.

The experts also testified that when deciding

A-47

whether to pursue an appeal a lawyer must

always give the client the benefit of the

doubt on the law and the facts. They further

testified, in light of the constitutional

right to petition government for the redress

of grievances and the need for every citizen

to have “his day in court,” that a court must

also indulge in a strong presumption in favor

of the attorney's judgment in deciding to

advance his appeals or arguments.

In their view, sanctioning a lawyer for

advancing frivolous appeals or even requiring

him to appear and respond to an order to show

cause would seriously chill the creative and

zealous advocacy necessary to our legal

system. The experts further urged that the

duty of zealous representation of the client

must be held superior to the attcrney's other

obligations to the court or society. In their

opinion, a court faced with increasing or

A-48

ape a eT a ee

i

ee Oe ee eee ee

PS TT Sr

large caseloads has the responsibility to

obtain the necessary resources to decide the

cases expeditiously, and the efficient

management of the court's docket is properly

of no concern to an appellate attorney. In

fact, they further suggested that this court

may have been more interested in clearing its

calendar than in providing "individualized

justice" and "due process" to Mr. Solerwitz's

clients. They interpreted this court's

instructions to counsel as directions to

“withdraw" appeals and as contrary to

counsel's ethical obligations which, if

followed, might potentially result in

professional malpractice charges. Thus, it

was their position that an attorney may ignore

court instructions when the lawyer has a good

faith belief that his actions are not a sham.

As Mr. Harvey A. Silverglate, one of the

expert witnesses, testified, it is sometimes

A-49

the duty of a lawyer "to brave... evena

judge's view that what the lawyer is doing is

frivolous." Finally, based on those briefs

that they had examined, the experts did not

consider the briefs to reach to level of

frivolity.

Certain of the positions and contentions

of Mr. Solerwitz's experts, as general

propositions and when viewed in the abstract,

are well anchored in the lore of the legal

profession and are not chalienged here.

Certain of their views, however, are based on

factual premises that have been overcome by

the findings and are therefore inapplicable or

contrary to the facts of the present

proceeding. Still others either have already

been addressed or are deserving of little

comment. Nevertheless, each of the positions

Or contentions of the expert witnesses has

been carefully considered.

A-50

The views of the expert witnesses, while

based in part on established tenets of the

legal profession, do not fully outline the

duties of a lawyer nor do they provide a

complete picture of the specific issues before

the court in this proceeding. An attorney's

obligations to provide zealous advocacy on

behalf of his client are not absolute and

uncompromising, but must be viewed in light of

his additional obligations as an officer of

the court to promote the administration of

justice and to comply with the court's rules,

notices, and orders. Additionally, as with

his obligations to his client, the attorney's

Obligations to the court are ongoing at every

stage of the litigation and the attorney must

continually reevaluate the positions advanced

in light of both the development of the

litigation itself and of the relevant case law

affecting the litigation.13

There will always be an ongoing and at

times great tension between a lawyer's duty to

represent a client in as zealous a manner as

possible and a lawyer's duty as an officer of

the court also to avoid professional conduct

that is prejudicial to the administration of

justice. See Hamer v. County of Lake, 819

F.2d 1362, 1366 (7th Cir. 1987) (noting that a

13 See Hamer v. County of Lake, 819 F.2d 1362,

1367-68 (7th Cir. 19 (noting defendants can

recover attorney's fees under 42 U.S.C. $1988

where the claim is frivolous or when "the

plaintiff continued to litigate after it

clearly became so" (citation omitted) );

Southern Leasing Partners, Ltd. v. McMullan,

801 F.2d 783, 788 (5th Cir. 1986) ("When a

lawyer learns that an asserted position, even

if originally supported by adequate inquiry,

is no longer justifiable he must not persist

in its prosecution."); Asberry v. United

States Postal Service, 692 F.2d 1378, 1382,

215 USPQ 921, 921 (Fed. Cir. 1982) (court's

warning against frivolous appeals applicable

to pending appeals).

A-52

perfect balance between avoiding a "chilling

effect" on plaintiffs and deterring the filing

of frivolous claims is difficult to achieve

given the inherent tension between and the

importance of the two concerns). Such

competing concerns were considered and weighed

by the court in Bithoney:

Sensitivity to these considerations

requires that we indulge every

presumption in favor of the attorney

who presents or defends a position

which is found to lack support. We

must insure that there is hreathing

room for the fullest possible ;

exercise of the advocacy function.

But there must be limits. Canon EC

7-1 states that the duty of a lawyer

1s to represent his client

zealously, but only “within the

bounds of the law. The processes

of this court are made available for

the general good; to the extent that

they are abused they become less

available to those genuinely in need

of them. Such abuse also lowers

public esteem for the judicial

system... .

486 F.2d at 322 (emphasis added) (footnote

omitted). See also Acevedo v. Immigration &

Naturalization Service, 538 F.2d 918, 920-21

A-53

Libiikue tila ee

;

(2d Cir. 1976) (professional obligation of

attorney to represent client zealously does

not justify assertion of frivolous positions).

Here, Mr. Solerwitz asserts that a good

faith effort was made to comply with the

court's notices to avoid submission of

frivolous appeals and to do so by

distinguishing the facts and law in the

appealed cases from those in the lead cases

previously decided. Mr. Solerwitz's affidavit

and the testimony of one of his experts focus

on two specific briefs submitted to the court

and attempt to demonstrate that in those cases

he adequately complied with the court's

notices and rules as well as made good faith

arguments supported by the record in the

specific case. Taken in isolation, in perhaps

a few of the briefs, the issue might appear

colorable. However, each individual brief has

—

already been evaluated by a panel of this

A-54

court which decidec the merits of the

individual case or cases covered by the

specific brief and, in most cases, found the

briefs to be so deficient as to merit the

imposition of sanctions or to support the

award of costs and fees. As stated earlier,

the determinations regarding sanctions in the

individual cases are not at the core of the ~

inquiry here. Rather, the central focus here

is whether the entire course of conduct by Mr.

Solerwitz, taken as a whole, amounts to

conduct unbecoming a member of the bar of this

court which warrants further discipline in

addition to the sanctions previcusiy imposed -

Cf. Toepfer v. Department of Transportation,

FAA, 792 F.2d 1102 (Fed. Cir. 1986)

(distinguishing between damages and costs

assessed under Rule 38 and a disciplinary

action against an attorney under Rule 46).

The court in Bithoney made clear that the

propriety of sanctions or other discipline

under Rule 46 was an issue necessarily to be

resolved on the facts and circumstances of the

specific situation before the reviewing court.

The court there concluded that --

respondent has abused the processes

of this court by lodging appeals of

patent frivolity . . . Whether we

question his good faith is not

determinative; his course of action

was so clearly and flagrantly in

violation of the proper behavior of

a member of the bar of this court

that it represents at a minimum such

gross negligence that punitive

action is indicated.

486 F.2d at 322-23. The above applies with

equal force to Mr. Solerwitz's course of

conduct which led to the present proceeding.

Since shortly after its formation, this court

has made it clear that an attorney's

subjective good faith will not by itself

prevent the imposition of sanctions against

the attorney for bringing and maintaining a

A-56

frivolous appeal.14 See, e.g., Connell v.

Sears, Roebuck & Co., 722 F.2d 1542, 1553-55,

220 USPQ 193, 202-04 (Fed. Cir. 1983); Asberry

v. United States Postal Service, 692 F.2d

1378, 1382, 215 USPQ 921, 921 (Fed. Cir.

1982). Therefore, whether his beliefs were

truly in good faith at the time of the

individual appeals need not be reviewed here,

as it is clear that under an objective

standard, Mr. Solerwitz fell woefully short of

achieving the goal that his representation of

his clients was allegedly designed to achieve.

See Bithoney, 486 F.2d at 322.15

14th an analogous situation, sanctions imposed

by district courts under the recent amendment

to Fed. R. Civ. P. 11 do not require

subjective bad faith by an attorney to be

proved prior to the court's imposition of

sanctions. See, e.g., Robinson v. National

Cash Register Co., 808 F.2d 1119, 1127 (5th

Cir. 1987); Oliveri v. Thompson, 803 F.2d

1265, 1275 (2d Cir. 1986), cert. denied, 107

S.Ct. 1371 (1987); Zaldivar v. City of Los

Angeles, 780 F.2d 823, 829 (9th Cir. 1986).

l5mr. Solerwitz's subjective beliefs that he

(footnote continued)

A-57

sade Aeaeameietimed nied

———rere

Mr. Solerwitz attempts to distinguish the

Situation in Bithoney from the present case by

drawing a distinction between a sham appeal

and a frivolous appeal. According to

Professor Monroe H. Freedman, one of the

experts called by Mr. Solerwitz, a sham appeal

is one which is facially valid but the lawyer

presenting it knows that it cannot be

supported on the record. Professor William E.

Hellerstein, another expert witness, also

distinguished as unacceptable the sham

argument which could not be legitimately based

on the case record. Under Professor

Freedman‘s view, Bithoney represented a sham

proceeding which was so devoid of factual

(footnote continued from previous page)

was zealous on behalf of his clients and that

he was doing his duty to prosecute their

appeals in accordance with their insistent

wishes, if held in good faith, are only

relevant to the exercise of the court's

discretion in setting the type and severity of

the sanction or discipline otherwise found to

be warranted.

A-58

basis that the attorney could not even file

briefs or make any arguments, despite the

seemingly plausible claims. On the other

hand, he defines a frivolous appeal as one

which is fallacious on its face. Professor

Freedman further concludes that if a lawyer is

instructed by his client to proceed and the

lawyer believes that the appeal does not

represent a sham, it is not only not

frivolous, but ethically mandated that the

lawyer proceed wich the appeal.!© In his

l6professor Freedman illustrates his views

through an example in which he asserts that an

attorney should, if the client and the appeal

so demand, present arguments to a court

asserting that the earth is flat, even if the

attorney believes it to be otherwise. The

rationale for this position is that the court

might nevertheless be convinced that the earth

is flat or, on further appeal, a higher court

might be so convinced. However, courts have

made clear that there is a limit to the number

of times that identical arguments on identical

issues can be presented before such arguments

are properly deemed frivolous. See, e.g.,

Sauers v. Commissioner of Internal Revenue,

771 F.2d 64, 68 n.6 (3d Cir. 1985) (citing

cases holding repeatedly rejected arguments in

(footnote continued)

A-59

opinion, the ATC appeals handled by Mr.

Solerwitz could not therefore be considered to

be either frivolous appeals or akin to the

sham appeals held sanctionable in Bithoney.

It has been observed elsewhere that

appellate courts often succumb to impatience

and frustration when confronted with an

obviously frivolous appeal and fail to develop

a comprehensive definition of frivolous

appeals to guide litigants, attorneys, or

themselves in future cases. Martineau &

Davidson, Frivolous Appeals in the Federal

Courts: The Essays of the Circuits, 34 Am.

U.L. Rev. 603, 628-29 (1985). Sitting for the

Sixth Circuit by designation, Chief Judge

Markey observed that "(fJrivolity, like

obscenity, is often difficult to define."

(footnote continued from previous page)

taxpayer suits as frivolous), cert. denied,

106 S.Ct. 2286 (1986); Brown v. United States,

741 F.2d 1374, 1377 (Fed. Cir. 1984)

("flagrantly redundant" arguments and appeals

badly abuse the judicial process).

A-60

WSM, Inc. v. Tennessee Sales Co., 709 F.2d

1088, 220 USPQ 17, 20-21 (6th Cir. 1983). In

Connell, writing for this court, he

subsequently observed that:

The definition of what constitutes a

frivolous civil appeal is difficult.

Courts must guard against an

oversensitivity to what may be only

an apparent abuse. It is clear that

appeals having a small chance of

success are not for that reason

alone frivolous. One may

legitimately argue, for example,

that even overwhelming contrary

precedent should be overruled or

distinguished.

722 F.2d at 1554, 220 USPQ at 203. See also

Christiansburg Garment Co. v. Equal Employment

Opportunity Commission, 434 U.S. 412, 421-22

(1978) (warning against use of post-hoc

reasoning and hindsight logic to conclude

that, because plaintiff did not ultimately

prevail, the action was unreasonable or

without foundation).

A-61

Despite the recognized difficulty of

providing a single, all-encompassing

definition of frivolity, the decisions of this

court and the regional circuit courts have

provided basic definitions of frivolous

appeals. In Connell we clearly stated that a

frivolous appeal was one with "no basis for

reversal in law or fact [which] can be or is

even arguably shown." 722 F.2d at 1554, 220

USPQ at 203; see also Bowen v. Department of

Transportation, FAA, 769 F.2d 753, 755-56

(Fed. Cir. 1985) (briefs ignored precedent and

failed to cite authority for assertions);

Klein v. Department of Transportation, FAA,

768 F.2d 336, 338 (Fed. Cir. 1985) (failure to

cite significant precedent and use of rehashed

and rejected arguments). Several circuits

generally defined a frivolous appeal as one in

which the result is obvious, or where the

appellant's claim completely lacks merit, or

A-62

<P RRS AT TURN Are

which is prosecuted for delay, harassment, or

other improper purpose. See, e.g., Reliance

Insurance Co. v. Sweeney Corporation,

Maryland, 792 F.2d 1137, 1138 (D.C. Cir.

1986); Dallo v. Immigration & Naturalization

Service, 765 F.2d 581, 589 (6th Cir. 1985);

Scott v. Younger, 739 F.2d 1464, 1467 (9th

Cir. 1984); Johnson v. Allyn & Bacon, Inc.,

731 F.2d 64, 74 (lst Cir.), cert. denied, 469

U.S. 1018 (1984); see also Eastway

Construction Corp. v. City of New York, 762

F.2d 243, 254 (2d Cir. 1985) (frivolous "where

it is patently clear that a claim has

absolutely no chance of success under the

existing precedents, and where no reasonable

argument can be advanced to extend, modify, or

reverse the law as it stands," and to do so is

inimicable to the purposes for which the

federal court system was created).

A-63

Ali Nhe tl $n

Among other factors!’ a court must

examine and evaluate in order to determine

whether an appeal is frivolous are the merits

of the claim or the appeal, the factual

foundation, the scope and strength of the

legal precedent, the presentation of the

arguments and their support, the

reasonableness of the interpretation of the

law offered, whether contrary precedent is

cited and distinguished, the conduct and good

faith of the appellant and counsel, issues

decided or presented in prior litigation by

the party or counsel, the effect of and

compliance with any relevant court rules or

orders, and the harm caused by the misconduct.

Nevertheless, whether an appeal is ultimately

frivolous must necessarily be decided on a

l7Por discussions of these and additional

factors which have been found to contribute to

findings of frivolity by federal courts, see

generally Martineau & Davidson, supra, and

ABA/BNA Lawyer's Manual on Professional

Conduct 61:101-09 (1987).

A-64

EE

case-by-case basis as it is only through the

evaluation of the specific circumstances

before the court that it can be determined if

the appeal at issue “falls clearly on the side 7

of the frivolous." See Devices for Medicine,

Inc. v. Boehl, 822 F.2d 1062, 1068, 3 USPQ2d

1288, 1294 (Fed. Cir. 1987).18

What is certain is that our precedent as

well as that of the other circuit courts does

not limit the determination of frivolous

appeals solely to the “fallacious on its face”

appeal or to the “sham" argument.

Additionally, in contrast to the “sham"

situation characterized by Bithoney, it may

have been possible to prepare nonfrivolous

appeals in some or even many of the cases

l8mr. Silverglate testified that his office

utilizes a “giggle test" when preparing

appeals for criminal defendants. Under the

test, if no one in the office giggled when a

defense does not find frivolous appeals to be

a laughing matter, such a test would be

Clearly inappropriate for our use.

A-65

PE eR eee ones ow oe tn eee

filed by Mr. Solerwitz on behalf of his ATC

clients. But it is not sufficient to show

that nonfrivolous arguments were theoretically

possible. A court must evaluate the merits of

an appeal, and the frivolity of its claims and

arguments, on the basis of what is presented

to the court for consideration, not on what

counsel might have or should have submitted.

As was observed by this court upon

examining Mr. Solerwitz's submitted briefs in

Des Vignes, “[Le]very issue counsel raises is

either itself frivolous or is foreclosed by

decisions that no reasonable attorney could

expect to be overturned, modified, or

withdrawn on the present record.” 791 F.2d at

143. Furthermore, his briefs were found to

exhibit general and striking failures to cite

or distinguish contrary authority, to

distinguish the facts of the appeal from prior

cases, to respond to contrary arguments of the

A-66

respondent, or to even refer to the record.

These conclusions are confirmed by an

independent review of the Solerwitz briefs

conducted as part of _this proceeding which

indicates, by clear and convincing evidence,

that his attempts to comply with the court's

notices, rules, and instructions were

dramatically deficient in each of the respects

notices in the order to show cause. All of

these failures are even more striking when

viewed in the face of numerous notices of the

court cautioning against such behavior by

counsel. See In re Hartford Textile

Corporation, 659 F.2d 299, 303-05 (2d Cir.

1981), cert. denied, 455 U.S. 1018 (1982).

Thus, the simple fact remains, as born

out by the opinions of this court in each

individual appeal, that the briefs filed by

Mr. Solerwitz fell short of meeting an

objective standard of nonfrivolity. Indeed,

A-67

eNO

it is curious that the attorney who decries an

alleged “lack of individualized justice" for

his clients submitted nearly identical briefs

(with the same typographical errors) comprised

of oft-rejected arguments on behalf of each of

those clients. When identical arguments are

submitted, a brief which might not be clearly

frivolous when first viewed can become so when

viewed in light of a contrary decision on the

identical argument in a previously decided

appeal. Cf. A.V. Costantini v. Civil

Aeronautics Board, 706 F.2d 1025, 1026 (9th

Cir. 1983). This is especially true where

there is no attempt to identify or distinguish

the contrary decisions or their facts. When

this pattern of behavior is multiplied many

times over, in the face of warnings from the

court, it is inescapable that Mr. Solerwitz's

submissions to the court, viewed as a

A-68

ree aay

collective whole, were no inadequate that they

must be deemed to have fallen to the level of

conduct unbecoming a member of the bar.

Once again, it is emphasized that it is

not the motives and actions of each of Mr.

Solerwitz's clients, but the behavior and

overall course of conduct of Mr. Solerwitz, a

licensed attorney and member of the bar of

this court, in advancing and handling the

appeals of his clients to this court that

concerns us here. Mr. Solerwitz's witnesses

attempt to characterize his actions as merely

the zealous efforts of counsel to ensure to

his clients the constitutional right of every

citizen under the First Amendment to petition

the Government for redress of grievances. It

is well established that “the right to

petition extends to all departments of the

Government [and] access to the courts is

indeed but one aspect of the right to

petition, California Motor Transport Co. v.

Trucking Unlimited, 404 U.S. 508, 510 (1972),

but it is equally established that the right

to petition is not without limits. Cf.

McDonald v. Smith, 472 U.S. 479 (1985).

As the Supreme Court specifically

observed in Bill Johnson's Restaurants, Inc.

v. National Labor Relations Board, 461 U.S.

731, 743 (1983), one of the cases cited by the

expert witnesses for the right to petition,

suits based on “insubstantial claims" which

lack a “reasonable basis" are not within the

scope of First Amendment protection.19

"The first amendment interests

involved in private litigation-

compensation for violated rights and

l19~he other case cited by Mr. Solerwitz's.

expert witnesses for the right of access to

the courts in order to petition government was

NAACP v. Button, 371 U.S. 415 (1963). In

Button, the Court confirmed that “the First

Amendment .. . protects vigorous advocacy,

certainly of lawful ends, against governmental

intrusion." Id. at 429. As frivolous

lawsuits do not have the character of lawful

ends, the case is also not determinative in

the present proceeding.

A-70

interests, the psychological

benefits of vindication, public

airing of disputed facts -- are not

advanced when the litigation is

based on intentional falsehoods or

on knowingly frivolous claims.

Furthermore, since sham litigation

by definition does not involve a

bona fide grievance, it does not

come within the first amendment

right to petition.”

- - « [LBjaseless litigation is not

immunized by the First Amendment

right to petition.

Id. (citations and footnote omitted); see also

Rager v. Commissioner of Internal Revenue, 775

F.2d 1081, 1083 (9th Cir. 1985) (rejecting

challenge to penalty imposed for frivolous,

meritless petition, observing that right to

petition does not include right to maintain

groundless litigation). Thus, we find no

fault with the Bithoney court's observation

that the sanctioning of an attorney for filing

multiple frivolous appeals does not infringe

upon or chill First Amendment rights. 486

F.2d 324 n.9.

A-71

It is undisputed that Mr. Solerwitz's

clients were not prevented from petitioning

the government for review of their claims and

that they received a decision on the merits of

those claims from the MSPB. This court‘s

decisions in each of the appeals were also “on

the merits," despite sanctions being imposed

on counsel in most of the cases for bringing

“meritless” appeals. The Ninth Circuit has

expressly rejected, as frivolous itself, the

assertion that “the petitions clause of the

First Amendment guarantees the right of any

citizen to present any petition to any

Governmental Agency, however frivolous,

without penalty .. . even if there is no

basis for the action taken by a litigant." In

re Itel Securities Litigation, 791 F.2d 672,

676 (9th Cir. 1986) (quotations omitted),

cert. denied, 107 S.Ct. 880 (1987).

Furthermore, a petition which was not

A-72

eee ne ee ee

/

frivolous when initially brought and litigated

may indeed properly be deemed frivolous upon

the filing of an appeal over the same issue.

See, e.g-, Clark v. Maurer, 824 F.2d 565,

566-67 (7th Cir. 1987); International Union of

Bricklayers & Allied Craftsmen Local Union No.

20 v. Martin Jaska, Inc., 752 F.2d 1401, 1406

(9th Cir. 1985). Thus, to the extent that Mr.

Solerwitz is urging a constitutional right to

pursue any appeal, no matter how frivolous,

his position is emphatically rejected.

The right to petition for redress of

grievances and the right to appeal an adverse

decision on the initial petition are not

identical. The right of appeal was not

recognized at common law and there remains no

federal constitutional right to an appeal.

Jones v. Barnes, 463 U.S. 745, 751 (1983) .29

20tn Jones, the Supreme Court held that the

appointed defense counsel had no

constitutional duty to raise every

(footnote continued)

A-73

Mr. Solerwitz nevertheless urges that his

clients’ access to the courts must be

foreclosed by the courts themselves and that

the courthouse door could not be closed by the

attorney. In his view, he had a compelled

obligation to pursue his clients' appeals and

was without discretion to withdraw those

appeals on the basis of his own judgment,

despite the court's "suggestions" to the

contrary in its orders. However, the court's

"suggestions" to avoid the filing of frivolous

appeals were only instructions to avoid

(footnote continued from previous page)

nonfrivolous issue or to present every

nonfrivolous argument requested by the

defendant if, as a matter of professional

judgment, the counsel decided not to present

those points. The Court observed that "a duty

to raise every ‘colorable' claim suggested by

a client would disserve the very goal of

vigorous and effective advocacy." 463 U.S. at

745. Civil appeais also require equal

exercise of professional judgment by the

responsible attorney as to the proper

arguments and issues to be advanced,

especially where the judgment to be exercised

concerns the frivolity of the argument or

issue to be raised.

A-74

frivolity, and were not either instructions or

suggestions to withdraw appeals in which

nonfrivolous arguments could be made. In

fact, it is either Mr. Solerwitz's absolute

failure to exercise his professional judgment

in evaluating the merits of the appeals or his

gross negligence as an attorney in properly

advancing his appeals in a nonfrivolous manner

that has led to his being charged with conduct

unbecoming a member of the bar of this court.

Any general presumption in favor of Mr.

Solerwitz's judgment on whether or not an

individual appeal was frivolous is overwhelmed

under the present facts by his consistent and

striking inability to evaluate the presence of

arguable merits in over 140 separate

appeals.21 If, as appeared to be the case

2ltt is not a defense to the bringing of the

appeals by Mr. Solerwitz that, had he not

brought them, the appeals would simply have

been brought by other counsel or by the

appellants appearing pro se. Had the same

(footnote continued)

A-75

en

from the submissions, the appeals in the

present cases indeed represented the extreme

situation where every conceivable argument was

frivolous, Mr. Solerwitz could not have been

faulted ethically for not bringing the

appeals. See Model Rules 3.1 ("[{a] lawyer

shall not bring or defend a proceeding, or

(footnote continued from previous page)

appeals been brought by another counsel, this

proceeding might still be taking place, albeit

under a different caption. Had each

individual appellant brought an appeal pro se,

the appropriateness of sanctions in the

individual cases would have been evaluated in

light of those circumstances. See, e.g.,

Haines v. Kerner, 404 U.S. 519, 520 (1972)

(pro se complaints held to less stringent

standard than those drafted by lawyers);

Wright v. United States, 728 F.2d 1459, 1460

(Fed. Cir.) (noting courts demonstrate

remarkable patience with pro se litigants, but

sanctioning pro se appellant for abuse of

judicial process), cert. denied, 469 U.S. 844

(1984); WSM, Inc. v. Tennessee Sales Co., 709

F.2d 1084, 1088, 220 USPQ 17, 20 (6th Cir.

1983) (Markey, C.J., by designation) (although

pro se litigants can be sanctioned, they

cannot be held to the same standards as

members of the bar); Ruderer v. United States,

412 F.2d 1285, 1292 (Ct. Cl. 1969) (court is

lenient in evaluating papers of a pro se

litigant), cert. denied, 398 U.S. 914 (1970).

A-76

assert or controvert an issue therein, unless

there is a basis for doing so that is not

frivolous"); Model Code DR 2-110(C)(1)(a) (a

lawyer may withdraw from matter if his client

“LiJnsists upon presenting a claim or defense

that is not warranted under existing law and

cannot be supported by good faith argument for

an extension, modification, or reversal of

existing law"); see also Taylor v. Sentry Life

Insurance Co., 729 F.2d 652, 656 (9th Cir.

1984) (“lawyers have a duty to inform a client

that his claim is unjustified").

Mr. Solerwitz also cannot find refuge in )

the unwaivering insistence of his clients to

|

pursue the appeal "no matter what" and to "go

all the way to the Supreme Court." In

McConnell v. Critchlow, 661 F.2d 116 (9th Cir.

1981), the Ninth Circuit rejected an

attorney's reliance on a client's insistence

as a justification for bringing a frivolous

A-77

SS Sak te eee

appeal against certain individuals and

sanctioned the attorney for filing the appeal.

In doing so, the court held that "[p]Jursuit of

a meritless claim is not justified by the

client's desire to do so" and that "[the

attorney's] conduct was not compelled by his

obligations to his client." Id. at 119

(citing Model Code DR 2-109(A)(2), DR 7-

102(A)(2), EC 7-5 (1979)); see also Blair v.

Shenandoah Women's Center, Inc., 757 F.2d

1435, 1438 (4th Cir. 1985). "(W]jhile ‘a party

or counsel is not to be penalized for

maintaining an aggressive litigation posture, '

‘attorneys do not serve the interests of their

clients, of the profession, or of society when

they assert claims or defenses grounded on

nothing but tactical or strategic expediency."

Westmoreland v. CBS, Inc., 770 F.2d 1168, 1180

(D.C. Cir. 1985) (citations omitted). In

Bithoney, the court held that the frivolous

A-78

appeals abused the judicial process because

they had been filed in order to effect an

automatic stay of deportation of the

petitioners. 486 F.2d at 322. Similiarly,

the testimony here indicates that Mr.

Solerwitz exploited this court's resources in

an attempt to keep his clients’ otherwise

frivolous claims alive pending a speculative

legislative or political solution to the

aftermath of the ATC strike. Regardless of

whether his filings were at the behest of his

clients, such action is also an improper use

of this court for other than the adjudication

of claims.

It is acknowledged here that judicial

views and concepts, with the lapse of time as

well as changes in society and in the

membership on the courts, have indeed changed

on many issues and will likely continue to do

so. Zealous and enthusiastic advocacy by

counsel plays a critical role in this process.

See Eastway Construction, 762 F.2d at 254.

While an attorney is not foreclosed from

| arguing in the face of even overwhelming

precedent, in order to avoid frivolity it is

imperative that the -attorney cite and attempt

to distinguish the contrary precedent and

provide arguable reasons supporting an

extension, modification, or reversal of

existing law. Mr. Solerwitz consistently did

neither. Furthermore, if the arguments

necessarily advanced in an appeal require

counsel either to urge reconsideration of

contrary precedent by the appellate court or

to advance an argument solely to preserve the

possibility of Supreme Court review of the

issue, counsel should alert the appellate

court as to that motivation at the time the

case is brought rather than as a post-hoc

A-80

)

rationalization.22 See Hayes v. Department of |

Health and Human Services, 829 F.2d 1092, 1101

(Fed. Cir. 1987) cialecians not warranted

where petitioners expressly noted that

rejected argument raised solely to preserve

right to seek in banc consideration and

possible Supreme Court review). Where the

contrary precedent within the same court is

fresh or where the Supreme Court has already

passed on the issue, the burden on counsel to

avoid frivolity through distinguishing the

22mr. Solerwitz stresses that the Supreme

Court did not affirm any of this court's

decisions in the lead cases because a denial

of a petition for certiorari is not a decision

on the merits by the Supreme Court. Thus, he

argues here that the desire to preserve the

possibility of Supreme Court review was one

justification tor his continued presentation

of rejected arguments. No mention of this

motivation was made in any of his briefs and

we note that only four petitions for

certiorari were filed from his 154 appeals on

behalf of 736 petitioners. All four petitions

were denied.

contrary precedent or advancing a grounds for

alteration of the contrary precedent is

accordingly heightened.

Finally, the claim that the chaos that

apparently characterized the Solerwitz law

office during the period in question was

solely due to the court's inaction and

excessive delay in responding to his motions

is rejected. Mr. Solerwitz's attempt to

characterize his submissions as the reasonable

results of valiant efforts by his 3-attorney

law firm to comply with arbitrary court orders

and deadlines, and in the face of additional

court inaction, is both inaccurate and

unsympathetic. As outlined in the findings,

the court responded in a timely manner to each

of the motions filed by Mr. Solerwitz. At

best, his assertions to the contrary indicate

a failure to maintain adequate office

procedures and recordkeeping which does not

A-82

/

excuse or mitigate his conduct. It is the

responsibility of every practicing attorney to

manage his practice both to represent his

clients effectively and to comply with the

rules and orders of the court. See, e.g.,

United States v. Bush, 797 F.2d 536, 537-38

(7th Cir. 1986); In re Pritzker, 762 F.2d

532, S33 (7th Cir. 1965).

It is difficult to fathom how a 3-person

practice, even in ideal circumstances, could

adequately represent 800 to 1,000 clients in

administrative hearings across the country and

handle 154 court appeals for 736 individuals,

given the relatively short time frame in which

all of the actions arose. If the firm's

personnel turnover and shortages were so

severe as not to allow compliance with the -

briefing and record filing requirements of the

court, Mr. Solerwitz should have referred some

of his clients to other firms or taken

A-83

alternative means to insure adequate

representation for them. See Pritzker, 762

F.2d at 533 (proper course is to move to

withdraw, not ignore court orders and seek

indulgence in disciplinary proceéding);

Bithoney, 486 F.2d at 323 & n.3 (illness not

an excuse and merely informing clients of

difficulty is not sufficient if attorney

unable to fulfill obligations to court and

client); McMorris v. State Bar, 29 Cal.3d 96,

623 P.2d 781, 171 Cal. Rptr. 829 (1981)

(taking on too much work is not mitigating

factor since condition is within the

attorney's control). Rather than sympathy, we

find Mr. Solerwitz's det ken justifications

for his conduct provoke a greater confidence

that discipline is warranted in this case.

On the basis of the findings, this

opinion, and cited authority, it is therefore

concluded that clear and convincing evidence

A-84

/

Supports the determination that Mr. Jack B.

Solerwitz's continued course of conduct in

filing and maintaining multiple frivolous

appeals in the face of this court's orders,

notices, instructions, rules, precedents, and

previous sanctions constitutes conduct

unbecoming a member of the bar of the United

States Court of Appeals for the Federal

Circuit. -It is further concluded that none of

his offered justifications or defenses excuse

that conduct. Therefore, it is concluded that

Mr. Solerwitz has not rebutted the order to

show cause. The final task is to select the

appropriate disciplinary action to be ordered

by the Court.

DISCIPLINARY ACTION

The imposition of sanctions serves three

primary goals: compensation of the opposing

party for the time and expense involved in

defending meritless claims, punishment of the

A-85

offending party or counsel for wasting the

limited time and resources of the court, and

deterrence of future frivolous filings in

order to reduce the court's delay in reaching

the appeals of other litigants. Martineau,

supra, 1984 Duke L.J. at 847-48.23 The filing

of a frivolous lawsuit or appeal is a

23See also R. Rodes, K. Ripple & C. Mooney,

Sanctions Imposable for Violations of the

Federal Rules of Civil Procedure /3-/74

(Federal Judicial Center 1981), where it was

stated:

The primary justification for

imposing penalties on the lawyer is

that he “is first of all an officer

of the court. His primary

obligation is to the court. When

there is a conflict between the

interest of the client and his duty

as an attorney, the latter must

control." The courts have inherent

power to supervise and discipline

the efficient running of the court

system. By controlling an

attorney's conduct, the court

fulfills the duty it owes to its own

preservation, to members of the

general public, and to those members

of the profession who do cooperate

and are in sympathy with the proper

administration of the law. (Footnote

and citation omitted.)

A-86

violation of an attorney's duty, as an officer

of the court, to abide by the rules and

procedures which define the administration of

justice. Courts today increasingly recognize

that frivolous claims and appeals pollute the

judicial process. The corresponding increase

in courts resorting to the imposition of

sanctions as provided in the federal rules is

one attempt at cleansing this environment.

But the federal rules providing for sanctions

are no panacea for attorney misconduct or for

the insubstantial and meritless claims that

clog and abuse the judicial process. See

Zaldivar, 780 F.2d at 829-30.

Ordinarily, the filing of a frivolous

appeal in this court has been and will

probably continue to be handled in accordance

with the provisions of Fed. R. App. R. 38, and

therefore, in most cases, a frivolous filing

by itself should not result in attorney

A-87

fics Da So glia ak ecg cha Ama por NS

discipline under Rule 46. Mr. Solerwitz was

sanctioned under Rule 38 and he has paid to

the government the damages, costs, and

attorney fees imposed by the court. However,

the imposed sanctions clearly had no effect in

altering his conduct of continuing abuse of

the judicial process, interferece with the

administration of justice, and waste of

limited judicial resources. The separate and

distinct provisions of Rule 46 insure that a

federai appellate court is not constrained to

watch a member of its bar pay sanctions

imposed under Rule 38 yet continue unabated

the same course of conduct which resulted in

the sanctions in the first place, without

having recourse’ to further disciplinary

proceedings.

The preamble to the ABA Model Rules of

Professional Conduct provides, in the part

pertinent to discipline:

A-88

The Rules presuppose that

disciplinary assessment of a

lawyer's conduct will be made on the

basis of the facts and circumstances

as they existed at the time of the

conduct in question and in

recognition of the fact that a

lawyer often has to act upon

uncertain or incomlete evidence of

the situation. Moreover, the Rules

presuppose that whether or not

discipline should be imposed for a

violation, and the severity of a

sanction, depend on all the

circumstances, such as the

willfulness and seriousness of the

violation, extenuating factors and

whether there have been previous

violations.

Thus, the selection of the Rebrobriate

sanction for a given instance or pattern of

attorney misconduct is a matter within the

considered discretion of the court.

The Standards for Imposing Lawyer

Sanctions (ABA Joint Committee on Professional

Sanctions, 1986) (hereinafter Standards) were

approved by the ABA House of Delegates in

February 1986 and constitute the official

policy of the ABA. They provide a range of

A-89

a

possible sanctions for lawyer misconduct from

disbarment or suspension to admonition or

remprimand. See generally Standards 2.2--

2.10. However, in light of the court's

reliance on Rule 46 (b) as the basis for its

order to show cause, only the sanction of

suspension will be considered to have been

placed in issue here. With respect to

suspension, Standard 2.3 provides:

Generally, suspension should be for

a period of time equal to or greater

than six months, but in no event

should the time period prior to

application for reinstatement be

more than three years. Procedures

should be established to allow a

suspended lawyer to apply for

reinstatement, but a lawyer who has

been suspended should not be

permitted to return to practice

until he has completed a

reinstatement process demonstrating

rehabilitation and fitness to

practice law.

However, it is also noted that the court's

order further limited the maximum term of any

possible suspension to a period of 2 years.

A-90

Standard 3.0 states that "[iJn imposing a

sanction after a finding of lawyer misconduct,

a court should consider the following factors:

(a) the duty violated; (b) the lawyer's mental

state; (c) the potential or actual injury

caused by the lawyer's misconduct; and (d) the

existence of aggravating or mitigating

factors." Standard 6.2 addresses appropriate

sanctions “in [abuse of the legal process]

cases involving failure to. . . bring a

meritorious claim, or failure to obey any

obligation under the rules of a tribunal."

With respect to suspension in such cases, it

is provided that “[s]Juspension is generally

appropriate when a lawyer knows that he or she

is violating a court order or rule, and. .

causes interference or potential interference

with a legal proceeding." Standard 6.22.

A-91

SUR KS He

Here, the duty violated was toward the

legal system through abuse of the legal

process by frivolous filings and disregard of

court rules and orders, and the injury to the

legal system caused by having to address 145

such appeais is clearly actual and

Significant. It is certain that Mr. Solerwitz

was consciously aware of the court's rules and

orders regarding overlong briefs, the filing

of appendices, citations to the record, and

the need to cite and distinguish the lead

cases. Nevertheless, as previously noted,

testimony was presented that Mr. Solerwitz

believed that he was providing the zealous

representation that his clients demanded and

that he was making a good faith effort to

comply adequately with the court's rules and

orders. On the other hand, it is possible to

infer bad faith merely from the conduct of the

attorney or the evidence in the record, the

A-92

briefs, or the arguments. See Martineau, 1984

Duke L.J. at 854-55 & n.61 (and cases cited).

Furthemore, it is also clear that Mr.

Solerwitz knew that his attempts at

compliance, even if in good faith, did not in

fact comply in many regards with the court's

orders and rules. With respect to the court's

instructions to avoid frivolity, it has

already been concluded here that Mr.

Solerwitz's course of conduct represnted, at a

minimum, gross negligence with respect to the

preparation and presentation of the appeals.

Standard 8.2 provides that “{s]Juspension

is generally appropriate when a lawyer has

been reprimanded for the same or similar

misconduct and engages in further similar acts

of misconduct that cause injury or potential

injury to. . . the legal system."

Additionally, a pattern of misconduct and

multiple offenses is considered to be an

A-93

aggravating circumstance under Standard 9.2.

With respect to the presence of other

aggravating or mitigating factors listed in

Standards 9.2 and 9.3, it is noted that Mr.

Solerwitz responded to the order to show cause

and generally cooperated in this proceeding.

The court also has not been made aware of any

prior disciplinary proceedngs or sanctions

imposed against Mr. Solerwitz for similar or

unrelated misconduct elsewhere. While Mr.

Solerwitz exhibits no remorse for his conduct,

it is realized that a broad acknowledgement of

the wrongful nature of his conduct would have

been inconsistent with vigorous presentation

in the hearing, which attempted to demonstrate

that his conduct was not unbecoming a member

of the bar of this court.

On the basis of the foregoing guidelines,

and taking all of the findings into

consideration, it is accordingly recommended

A-94

SSE RIA el ce TERS Lm Net it ag nee td Li Aa ea ard 768

that Mr. Jack B. Solerwitz be suspended from

the bar of the United States Court of Appeals

for the Federal Circuit for a period of 2

years from the date of an order of the court

so directing. In making this recommendation,

the substantial sanctions already imposed

under Rule 38 in favor of the government have

been considered in mitigation. The court has

also considered that each of Mr. Solerwitz's

expert witnesses were of the opinion that his

conduct did not amount to conduct unbecoming a

member of the bar. To a certain extent, their

Opinions were based on facts found not to

exist in Mr. Solerwitz's situation. To the

extent that their opinions are founded on the

presumed right to appeal any action,

regardless of merit, their view is

unacceptable.

te rate nare cae ae Deeg Ad Pah Gar 0)

In Asberry v. United States Postal

Service, 692 F.2d 1378, 1382, 215 USPQ 921,

921 (Fed. Cir. 1982), despite finding the

appeal to be frivolous, this court remitted

the costs and attorney's fees imposed under

Rule 38 in light of the possibility that

appellants and counsel appearing before the

court did not fully realize the applicability

or the scope of the Federal Rules of Appellate

Procedure in our proceedings. It is difficult

to believe at this late date that application

of the Federal Rules could come as a surprise

to anyone practicing before the court.

However, the expert witnesses also offered the

opinion Mr. Solerwitz was not on notice that

his course of conduct could possibly subject

him to additional discipline beyond the

monetary sanctions already imposed. Although

this court has previously observed the

distinction between Rule 46 and Rule 38, see

A-96

Toepfer, 792 F.2d at 1102-03, that case was

not decided until after the majority of Mr.

Solerwitz's appeals.

This is the first time that this court

has found it necessary to invoke Fed. R. App.

R. 46(b) and therefore is also the first time

that sanctions have been imposed under Rule 38

and Rule 46 for conduct arising from the same

set of appeals. Therefore, in accordance with

the Asberry rationale, it is further

recommended that enforcement of the suspension

of Mr. Solerwitz be held in abeyance for 2

years, pending his demonstration of

rehabilitation during probation.

If, during the 2-year suspension period,

this court concludes that Mr. Solerwitz has

further ignored orders of the court, violated

its rules or instructions, filed further

frivolous appeals, or otherwise abuses the

judicial process, the stay of the enforcement

A-97

of the suspension may, in its discretion, be

revoked by order of the court. At that time,

the suspension may be reinstated and enforced

on the basis of this opinion and the findings,

without additional proceedings. Furthermore,

the lifting of the stay of suspension shall

not preclude the imposition of additional

sanctions related to new misconduct or

incompetent performance.

The discussion in this opinion and

imposition of the recommended action will

serve to show the court's bar some types of

conduct the court considers “unbecoming"

within the context of Rule 46. It will aos

forewarn all members of the court's bar that

in the future the court will not feel

constrained to hold its sanctions or

discipline in abeyance, and may, in the

exercise of its considered discretion, invoke

the provisions of either Rule 38 or Rule 46,

or both, as the circumstances warrant.

A-99

UNITED STATES COURT OF APPEALS FOR THE

FEDERAL CIRCUIT

Misc. 145

In re JACK B. SOLERWITZ

FINDINGS OF FACT

1. Jack B. Solerwitz, Esq., 170 Old

Country Road, Mineola, New York 11501, is a

member of the bar of the United States Court

of Appeals for the Federal Circuit. He has

certified that he is also admitted to practice

before the Supreme Court of the United States;

the Supreme Court of the State of New York,

Appellate Division, Second Department; the

United States Courts of Appeals for the Second

and District of Columbia Circuits; the United

States District Courts for the Southern and

Eastern Districts of the State of New York and

for the District of Columbia; the United

States Claims Court; the Tax Court; and the

Court of Military Appeals.

A-100

2. As a partner in his law firm,

Solerwitz, Solerwitz & Leeds, Mr. Solerwitz

filed 154 appeals on behalf of 736 air traffic

controllers (ATC) of the Federal Aviation

Administration who were dismissed from their

positions for participation in an illegal

strike against the United States in August

1981. 18 U.S.C. §1918 (1982); 5 U.S.C. §7311

(1982). These controllers earlier lost

appeals before the Merit Systems Protection

Board (MSPB or board).

3. On February 24, 1983, the court

ordered all ATC appeals from the MSPB stayed

pending final disposition of certain “lead

cases." On May 18, 1984, the court published

12 lead case opinions, see 735 F.2d 477-549

(Fed. Cir. 1984), which included and disposed

of issues common to many of the approximately

4,600 remaining cases which had been suspended

pending final disposition of the lead cases.

A-101

eee

Mr. Solerwitz was the only attorney on the

brief in one of the argued-lead cases, Novotny

v. Department of Transportation, FAA, 735 F.2d

521 (Fed. Cir. 1984). At the time the 12 lead

cases were decided, Mr. Solerwitz had 11 ATC

cases pending before this court, not including

Novotny. Four of his other ATC cases had

previously been decided.

4. On May 18, 1984, the court sent a

notice to counsel and petitioners in ATC

litigation advising that they would be

notified upon final disposition of all lead

cases, and that within 30 days of the

notification they must notify the court, in

writing, if they wanted to continue to

prosecute the suspended appeals. Failure to

notify the court would result in dismissal.

The notice to counsel and petitioners

included, among other matters, copies of the

court's opinions in the lead cases and

A-102

%,,

~~

.

>

directed attention to the impropriety of

maintaining frivolous appeals, citing

published cases of the court on that issue.

5. On December 10, 1984, in conformity

with the May 18, 1984 notice, counsel and

petitioners in all ATC cases were notified

that the Supreme Court had denied certiorari

in all lead cases in which it had been sought

and that mandates had been issued in those

cases from this court to the MSPB. This

notice also advised that the suspension

entered on February 24, 1983, would remain in

effect to and including January 10, 1985.

Before the latter date, pending petitions for

review were required to be withdrawn or new

ones filed. Absent such action the petitions

would be dismissed. A renewed petition. was

required to contain “a statement of the issues

relied on and not decided in any of the ‘Lead

Cases.'" The notice also indicated where the

lead cases were published and again emphasized

the impropriety of frivolous appeals,

repeating the precedents cited in the May 18,

1984 notice.

6. Subsequent to receiving the notice of

December 10, 1984, Mr. Solerwitz continued to

prosecute his 11 original appeals pending on

May 18, 1984. One of those appeals was

decided on June 12, 1985, and the other 10 on

August 14, 1985. Sanctions of $500, excluding

costs, were levied on Mr. Solerwitz for each

appeal. In addition to these appeals he also

filed 138 new ATC petitions for review. On

July 12, July 31, and August 30, 1985 the

court by memorandum requested all ATC counsel

to review the propriety of maintaining appeals

in light of the need to avoid frivolity ‘and

the accompanying abuse of the judicial

A-104

process. With each of the five notices in

1984-85 the court furnished counsel with a set

of published lead cases or citations thereto.

7. The court sanctioned Mr. Solerwitz in

145 of the 154 ATC appeals he filed. This

court informed him of the nature of his

misconduct each time he was sanctioned.

Listed below are general examples of his

misconduct for which money sanctions were

levied and paid.

a. Solerwitz filed and maintained

petitions that this court deemed were

clearly frivolous. See, e.g., Amodeo

v. Department of Transportation, FAA,

788 F.2d 1549, 1550-51 (Fed. Cir.

1986); Stefansky v. Department of

Transportation, FAA, Appeal No. 85-

1684A (August 1, 1986) (unpublished);

Adsit v. Department of Transportation,

FAA, Appeal No. 85-1639 (July 16,

A-105

ad

nate

1988) (unpublished); Boyd v.

Department of Transportation, FAA,

Appeal No. 85-1587 (May 28, 1986)

(unpublished); Cecil v. Department of

Transportation, FAA, 767 F.2d 892

(Fed. Cir. 1985). A

Mr. Solerwitz was deemed by this court

to have abused the judicial process.

See, e.g., Ernst v. Department of

Transportation, FAA, Appeal No. 85-

1847 (September 9, 1986)

(unpublished); King v. Department of

Transportation, FAA, Appeal No. 85-

1710 (August 1, 1986) (unpublished);

Sweeney v. Department of

Transportation, FAA, Appeal No. 85-

1671 (July 16, 1986) (unpublished):

Wickard v. Department of

Transportation, FAA, Appeal No. 85-

1592 (May 28, 1986) (unpublished).

A-106

- Mr. Solerwitz was deemed by this court

to have filed briefs that were devoid

of any showing on which the decision

appealed from could even possibly br

reversed. See, e.g., McNeice v.

Department of Transportation, FAA,

Appeal No. 85-1669 (September 26,

1986) (unpublished); Knight v.

Department of Transportation, FAA,

Appeal No. 85-1684 (July 16, 1986)

(unpublished); Panettieri v.

Department of Transportation, FAA,

Appeal No. 85-1591 (May 28, 1986)

(unpublished).

Mr. Solerwitz was deemed by this court

to have filed briefs that were devoid

of any basis upon which the earlier

decisions of this court could be

distinguished in law or fact. See,

e.g-, Des Vignes v. Department of

A-107

Transportation, FAA, 791 F.2d 142, 146

(Fed. Cir.), cert. denied, 107 S.Ct.

185 (1986); Beninati v. Department of

Transportation, FAA, Appeal No. 85-

1991 (September 9, 1986)

(unpublished); McCurry v. Department

of Transportation, FAA, Appeal No.

85-1707 (August 1, 1986)

(unpublished); Olivard v. Department

of Transportation, FAA, Appeal No.

85-1641 (July 16, 1986) (unpublished);

Amengual v. Department of

Transportation, FAA, Appeal No. 85-

1589 (May 28, 1986) (unpublished).

Mr. Solerwitz was deemed by this court

to have violated this court's rules,

particularly Rules 12 and 13(a)}),

pertaining to appendices and citations

to the record in briefs, respectively.

See, e.g., Des Vignes v. Department of

A-108

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Transportation, FAA, 791 F.2d 142, 146

(ped... Ciz.},: certs denied, 107 s.Ct.

185 (1986); Imundo v. Department of

Transportation, FAA, Appeal No. 85-

1735 (September 9, 1986)

(unpublished); Polansky v. Department

of Transportation, FAA, Appeal No.

85-1713 (August 1, 1986)

(unpublished); Stephens v. Department

of Transportation, FAA, Appeal No.

85-1668 (July 16, 1986) (unpublished);

Allen v. Department of Transportation,

FAA, Appeal No. 85-1593 (May 28, 1986)

(unpublished).

Mr. Solerwitz was deemed by this court

to have ignored, in his reply brief,

many authorities cited by the

government. See, e.g., Mendoza v.

Department of Transportation, FAA,

Appeal No. 85-1994 (September 9, 1986)

A-109

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(unpublished); Sinak v. Department of

Transportation, FAA, Appeal No. 85-

1995 (September 9, 1986)

(unpublished); Gilbertson v.

Department of Transportation, FAA,

Appeal No. 85-1992 (September 9, 1986)

(unpublished); Medeiros v. Department

of Transportation, FAA, Appeal No.

85-1993 (September 9, 1986)

(unpublished); Beninati v. Department

of Transportation, FAA, Appeal No.

85-1991 (September 9, 1986)

(unpublished).

Mr. Solerwitz was deemed by this court

to have advanced numerous arguments in

his briefs regarding issues not on

appeal. See, e.g., Smieszek v.’

Department of Transportation, FAA,

Appeal No. 85-1996 (September 9, 1986)

(unpublished); Mendoza v. Department

A-110

of Transportation, FAA, Appeal No.

85-1994 (September 9, 1986)

(unpublished); Gilbertson v.

Department of Transportation, FAA,

Appeal No. 85-1992 (September 9, 1986)

(unpublished); Wickard v. Department

of Transportation, FAA, Appeal No.

85-1592 (May 28, 1986) (unpublished).

Mr. Solerwitz was deemed by this court

to have failed to support assertions

in his briefs with anything from the

record. See, e.g., McNeice v.

Department of Transportation, FAA,

Appeal No. 85-1669 (September 26,

1986) (unpublished); Mendoza v.

Department of Transportation, FAA,

Appeal No. 85-1994 (September 9, 1986)

(unpublished); Sejba v. Department of

Transportation, FAA, Appeal No. 85-

1639B (July 16, 1986) (unpublished) ;

A-111

Scott v. Department of Transportation,

FAA, Appeal No. 85-1726 (August 1,

1986) (unpublished).

i. Mr. Solerwitz was deemed by this Court

to have raised contentions in his

briefs that were not raised before the

presiding official or the board. See,

e.g-., Fong v. Department of

Transportation, FAA, Appeal No. 85-

1787 (September 9, 1986)

(unpublished); Noriega v. Department

of Transporta;tion, FAA, Appeal No.

85-1643 (July 16, 1986) (unpublished);

Irwin v. Department of Transportation,

FAA, Appeal No. 85-1586 (May 28, 1986)

(unpublished).

8. The most inclusive documentation of

Mr. Solerwitz‘'s continued course of conduct

before this court was in Des Vignes v.

Department of Transportation, FAA, 791 F.2d

A-112

142 (Fed. Cir.), cert. denied, 107 S.Ct. 185

(1986). Des Vignes explicitly detailed the

proceeding nine examples of misconduct. It

also observed that, although Mr. Solerwitz

represented hundreds of individual former air

traffic controllers, except for a paragraph or

two relating to the individual controllers,

107 of his briefs were virtually identical.

This court supported that conclusion by

noting, inter alia, the presence of the same

typographical errors in each brief, and the

failure of Mr. Solerwitz to distinguish

between appeals involving one petitioner from

those involving multiple petitioners. Des

Vignes also mentioned that although the 107

briefs were identical, it was incumbent upon

the court to check the record and to read

every brief in an effort to insure against the

possibility that a meritorious appeal might

otherwise be overlooked. The court held that

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the appeal raised no legal issues which were

not resolved in one or more of the lead cases

decided in 1984 and presented no fact pattern

distinguishable from those cases.

Conduct in Rehiring Cases

9. In Wagner v. Office of Personnel

Management, 783 F.2d 1042 (Fed. Cir.), cert.

denied, 106 S.Ct. 3276 (1986), this court

upheld OPM's determination in a class-action

suit that air traffic controllers who were

removed for participating in the 1981 strike

against the FAA wee unsuitable for

reemployment with that agency. Mr. Solerwitz

did not represent Wagner. In three other

appeals, however, Mr. Solerwitz represented

former air traffic controllers who were

removed from the FAA for striking and who

sought rehiring by the FAA. Notwithstanding

the decision in Wagner, Mr. Solerwitz

persisted in filing the rehiring appeals.

A-114 =

(The Wagner decision was issued on February

18, 1986; petitioners’ briefs in all three

appeals prosecuted by Mr. Solerwitz were filed

in August 1986.)

Two of the three appeals challenged the

board's determination that the petitioners

involved were members of the Wagner class and

therefore bound by that decision. The board

found, and this court affirmed, that

petitioners were members of the Wagner class

who were aware of the issues involved in that

case, that petitioners did not opt-out after

being given an opportunity to do so, and that

the issues in Wagner were the same as those on

appeal in the two cases. McKee v. Merit

System Protection Board, Appeal No. 86-1399

(December 9, 1986) (unpublished); Matsumoto v.

Merit Systems Protection Board, Appeal No.

86-1398 (December 8, 1986) (unpublished). The

third appeal did not argue that petitioner was

A-115

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not in the Wagner class; it challenged only

the board's decision that petitioner was

unsuitable for reemployment under Wagner.

McCormick v. Office of Personnel Management,

Appeal No. 86-1397 (December 4, 1986)

(unpublished). In all three appeals, Mr.

Solerwitz attempted to reargue the merits of

the original removals by the FAA, an issue not

before this Court.

Mr. Solerwitz was fined a total of $600

for the filing and maintenance of the three

rehiring appeals because they were frivolous

and his conduct constituted an abuse of the

judicial process.

10. These findings emphasize Mr.

Solerwitz's FAA cases to illustrate the basis

for the action of the court which resulted in

sanctions against him but they do not attempt

to include all of his non-FAA cases. He has

appeared as counsel in the latter type of

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case. For instance, in Moir v. Department of

the Treasury, 754 F.2d 341, 343 (Fed. Cir.

1985), he and his client were sanctioned

jointly and severally with a $500 penalty in

favor of the government for filing a frivolous

appeal from a decision of the MSPB which had

dismissed the appeal to it because it was

untimely filed. The court was shown no abuse

of discretion by the board. The delay was

held not to have been caused by circumstances

beyond appellant's control or excusable

neglect.

The Order of the Court to Show Cause

ll. On January 21, 1987, the court

entered an in banc order directing Mr.

Solerwitz to show cause, by written answer

within 30 days, as to why he should not’be

suspended for 2 years from representing

Clients before the Federal Circuit. At the

request of Mr. Solerwitz he was given an

A-117

onaitinens 30 days to respond and he did so on

the last day, March 23, 1987. The order

required a response as to whether oral

argument or an evidentiary hearing was desired

which, if accorded by the court, was to be

strictly limited to the conduct described in

the order. A Declaration of Admission To

Practice was also required and the content

thereof is stated in finding l.

12. The order to show cause recounted the

five instances in which the attention of Mr.

Solerwitz was directed by letter to the

impropriety of filing frivolous appeals and

required him to state how adjudication of his

appeals would involve issues not decided in

any of the published lead cases. It was

mentioned that he also had been warned by

numerous sanctions under Fed. R. App. R. 38 in

his rejected appeals. The order recounted

that he had_maintained 142 frivolous appeals

and had filed 107 virtually identical briefs.

He was charged with having --

disregarded Federal Rules of

Appellate Procedure and this court's

rules, failed to file appendices,

provided no citations to the record,

ignored authorities cited by the

government, advanced numerous

arguments on issues not on appeal,

and repeatedly raised contentions

not raised before the Merit Systems

Protection Board. Mr. Solerwitz's

briefs were devoid of any showing on

which the decision appealed from

could even possibly be reversed,

devoid of any basis on which the

precedents of this court could be

distinguished in law or fact, and

devoid of any effort to make such

distinctions, in total disregard of

this court's written instructions of

December 10, 1984.

Mr. Solerwitz‘' conduct in filing and

maintaining frivolous appeals having

no colorable basis in fact or law

has wasted the time and limited

resources of this court, has denied

availability of the court's

resources to deserving litigants,

and has constituted flagrant and

totally inexcusable abuse of the

judicial process. Mr. Solerwitz's

conduct has been “unbecoming a

member of the bar of the court."

Fed. R. App. R. 46(b). See, e.g.,

A-119

In re Snyder, 105 §.Ct. 2874 (1985);

In re Bithoney, 486 F.2d 319 (lst

Cir. 1973).

Damages imposed as of the date of the order

were stated to total $74,500. The current

total is $78,300, plus costs and fees of

$11,843.94 for the filing of frivolous

appeals. These sums have been paid in favor

of the government.

13. On March 23, 1987, Nathan Z.

Dershowitz, Esq. attorney for Mr. Solerwitz,

filed a Motion for Disqualification of Each of

the Judges of the United States Court of

Appeals for the Federal Circuit and for

Alternative Relief. The motion also requested

a stay pending resolution by the United States

District Court for the District of Columbia of

an action entitled Arakawa v. Reagan, Appeal

No. 85-3488, and an enlargement of time for a

response on the merits after determination of

both matters should the relief sought therein

A-120

denied. The Federal Circuit was named a

defendant in the Arakawa matter, but was

dismissed from the case by a memorandum

opinion and ordered of the district court on

July 28, 1987. The motion of March 23, 1987,

was supported by an ll-page affidavit of Mr.

Solerwitz and a 4-page affidavit of Mr.

Solerwitz.

14. The affidavit of Mr. Solerwitz

requested that if the motion of March 23 was

denied the court should consider his affidavit

as his answer to the order to show cause.

However, he also requested oral argument and

an evidentiary hearing. The affidavit, in

summary, recounts that he was approached by

discharged former air traffic controllers who

requested that he represent them and that in

doing so it was “an economic disaster for my

firm." He charged that his clients were

denied due process by the MSPB and that the ~

A-121

board was biased and engaged in procedural

improprieties which were identified. The

affidavit charges that procedures of the

court, which led to suspension of the appeals

of many of his clients pending decision in the

lead cases, deprived them of “individualized

justice" only in order for the court to clear

its calendar, and that this was a denial of

due process to his clients. He denied that

any of the appeals he filed were frivolous and

cites his brief in Stefansky v. Department of

Transportation, FAA, Appeal No. 85-1684A, as

an example of his good faith and compliance

with the court's orders. That case was

decided, per curiam, by an unpublished opinion

on August 1, 1986, affirming the MSPB decision

and citing lead cases which had already

disposed of the issues raised in Stefansky. A

penalty of $200 was imposed on Mr. Solerwitz,

in favor of the government, for filing a

A-122

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frivolous appeal and abusing the judicial

process. Mr. Solerwitz further claimed that

the court's notices were received after his

briefs were filed and, in effect, were a

suggestion that his briefs should be

withdrawn. He asserted that the court was

acting both as prosecutor and judge and that

it should withhold any further action pending

the outcome of his come in Arakawa v. Reagan

in the district court.

15. The affidavit of Mr. Nathan Z.

Dershowitz identified himself as counsel for

Mr. Solerwitz, together with his brother,

Professor Alan M. Dershowitz. The affidavit

recounted the large task of putting together

the documentary evidence in response to the

order show cause and raises the difficulty of

potential constitutional issues concerning the

court's use of lead cases to disposes of

others not decided on the merits. According

A-123

to the affidavit the challenge of Mr.

Solerwitz to this lead case procedure and his

demand that some of the lead cases be

reconsidered were suggested to have been

entirely proper even if offensive to the

court, and imposition of sanctions "may well

be more harmful than the perceived

transgression." In event of disqualification

of the judge of the Federal Circuit,

additional time was requested for an answer to

the order to show cause.

16. On April 8, 1987, the court entered

an in banc order ruling on the March 23, 1987

motion for Mr. Solerwitz. In summary, this

order (a) denied the motion for

disqualification of all judges of the court,

(b) denied the motion for stay pending

resolution of Arakawa v. Reagan, (c) denied

the request for another enlargement of time,

(d) granted the request of Mr. Solerwitz that

A-124

his affidavit be considered his answer to the

order to show cause, (e) granted the request

for an evidentiary hearing and oral argument,

and (f) limited the evidentiary hearing an

oral argument to the

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