NOTE: This order is nonprecedential
United States Court of Appeals
for the Federal Circuit
__________________________
UNDERWOOD LIVESTOCK, INC.,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
Miscellaneous Docket No. 981
__________________________
Appeal From the United States Court of Federal
Claims in case No. 05-CV-162, Judge Mary Ellen Coster
Williams.
__________________________
Before GAJARSA, LINN, and MOORE, Circuit Judges.
PER CURIAM.
ORDER
Underwood Livestock, Inc. (“Underwood”) appeals
from a decision of the Court of Federal Claims (“Claims
Court”) granting the government’s motion for summary
judgment that Underwood cannot establish a property
interest in a destroyed tire dam structure because of issue
preclusion. The relevant facts of this case and the court’s
decision on the merits are detailed in this court’s opinion
2 UNDERWOOD LIVESTOCK v. US
affirming the decision of the Claims Court. Underwood
Livestock, Inc. v. United States, No. 2010-5072.
On appeal to this court, Underwood has not explained
how there is any error in the Claims Court’s decision, has
essentially ignored the Claims Court’s determination of
issue preclusion, and has instead asked this court to
review and vacate the decision of the Interior Board of
Land Appeals, a matter over which this court lacks juris-
diction.
“If a court of appeals determines that an appeal is
frivolous, it may, after . . . notice from the court and
reasonable opportunity to respond, award just damages
and single or double costs to the appellee.” Fed. R. App.
P. 38. We have held that an appeal may be “frivolous as
filed” when “no basis for reversal in law or fact can be or
is even arguably shown,” and may be “frivolous as argued”
when an appellant “has not dealt fairly with the court,
[or] has significantly misrepresented the law or facts.”
Abbs v. Principi,
237 F.3d 1342, 1345 (Fed. Cir. 2001).
Appellant’s failure to point to any legal errors by the
Claims Court; appellant’s incorrect statement of statutory
authority concerning our jurisdiction; appellant’s demand
for this court to take mandatory judicial notice of, among
other items, “all Acts of Congress” and “the Constitution
of the United States”; and appellant’s assertion of argu-
ments relating to matters wholly outside this court’s
jurisdiction raise serious questions under Rule 38.
Accordingly,
IT IS ORDERED THAT:
(1) Appellant and its counsel are directed to show
cause in writing as to why this case should not be deemed
frivolous as filed and frivolous as argued in the submitted
briefs, as to why sanctions should not imposed, and as to
how such sanctions, if imposed, should be apportioned
between appellant and its counsel.
UNDERWOOD LIVESTOCK v. US 3
(2) The written submission shall be in the form of a
letter brief, due no later than 15 days from the date of
this order and not to exceed 10 pages, double spaced.
FOR THE COURT,
March 31, 2011 /s/ Jan Horbaly
Date Jan Horbaly
Clerk
cc: Martin G. Crowley, Esq.
Kurt G. Kastorf, Esq.
