UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ALLEN A. IZADPANAH,

Plaintiff-Appellant,

WALTER T. CHARLTON; JOEL A.

DEBOE; FRED A. PAGE; TERRY PAGE;

DOUGLAS STUP; EARL M. CUNARD;

JANICE A. CUNARD; CRAFT

INDUSTRIES, for the benefit of Rudy

Delsack; 87 AIDANT LIMITED

PARTNERSHIP; WILLIAM S.

No. 96-2362

BURROUGHS, JR.,

Intervenors-Appellants,

v.

EDWARD GROSS; ROBERT A. HUMMEL;

FEDERAL COMPUTER CORPORATION;

CHARLES CROWE; AIDANT,

INCORPORATED,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Claude M. Hilton, Chief District Judge.

(CA-94-1150-A)

Argued: October 30, 1997

Decided: February 13, 1998

Before WIDENER, ERVIN, and WILKINS, Circuit Judges.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

ARGUED: William S. Burroughs, Jr., Alexandria, Virginia; Joel

Augustus DeBoe, Arlington, Virginia; Walter Theodore Charlton,

Arlington, Virginia, for Appellants. Edward Gross, EDWARD

GROSS & ASSOCIATES, P.C., Fairfax, Virginia, for Appellees.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Allen Izadpanah and his attorneys (collectively,"Appellants") challenge sanctions levied against Izadpanah's attorneys by the district

court. We vacate the order of sanctions and remand for further proceedings consistent with this opinion.

I.

In a prior appeal, we affirmed a grant of summary judgment in

favor of Charles Crowe, Robert Hummel, Edward Gross, Federal

Computer Corporation, and Aidant, Incorporated (collectively, "Appellees"), holding that Izadpanah had failed to raise a genuine issue

of material fact regarding any of his several claims against them,

including his claim that a consent judgment entered in state court

should be vacated because a fraud had been committed on that court.

With respect to Appellees' cross appeal of the finding of the district

court that Appellants' action was not frivolous and the refusal of the

court to impose sanctions, we remanded to the district court the issue

of whether Appellants' claim of entitlement to review of the state

court judgment warranted sanctions in light of the fact that District of

Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), precludes such review. See Izadpanah v. Gross, 76 F.3d 373 (4th Cir.)

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(unpublished table decision) (per curiam), cert. denied, 117 S. Ct. 67

(1996).

On remand, the district court, without conducting an evidentiary

hearing, found that Appellants "were not serious," J.A. 24, in attempting to distinguish Feldman1 and that they failed to conduct a reasonable legal investigation.2 The district court imposed sanctions of

$66,868.77, the entire amount of the attorneys' fees and costs Appellees incurred before the district court and this court through April 24,

1996.

II.

Appellants argue that the decision of the district court to sanction

Izadpanah's attorneys without conducting an evidentiary hearing constituted an abuse of discretion. We agree.

Rule 11(b) of the Federal Rules of Civil Procedure provides in part

that by presenting a pleading to the court, an attorney

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1 We interpret this statement as a finding that Appellants' attempt to

distinguish Feldman was made for an "improper purpose." Fed. R. Civ.

P. 11(b)(1).

2 The order also could be susceptible to an interpretation that the basis

for the sanction was that Appellants' attempt to distinguish Feldman violated Federal Rule of Civil Procedure 11(b)(2), which provides that in

presenting a pleading to a court, an attorney represents that the "legal

contentions therein are warranted by existing law or by a nonfrivolous

argument for the extension, modification, or reversal of existing law or

the establishment of new law." Fed. R. Civ. P. 11(b)(2). However, the

district court specifically found in its first order that Appellants' action

was not frivolous. And, although we did remand the sanctions issue to

the district court, we intended the court to consider only whether Appellants' claims violated those portions of Rule 11 to which the eventual

withdrawal of their attempt to distinguish Feldman might be relevant.

Because Appellants' decision to withdraw their argument has no bearing

on the objective reasonableness of the contention they withdrew, the district court had no reason to reconsider the previous determination that the

argument was not frivolous.

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is certifying that to the best of the person's knowledge,

information, and belief, formed after an inquiry reasonable

under the circumstances,--

(1) it is not being presented for any improper

purpose ... ; [and]

(2) the claims, defenses, and other legal contentions therein are warranted by existing law or

by a nonfrivolous argument for the extension,

modification, or reversal of existing law or the

establishment of new law.

Fed. R. Civ. P. 11(b)(1)-(2). A determination that Rule 11 has been

violated is reviewed for an abuse of discretion. See Cooter & Gell v.

Hartmarx Corp., 496 U.S. 384, 405 (1990).

Because the record in its current state cannot support a finding that

Appellants had an improper purpose in attempting to distinguish

Feldman or that they failed to make a timely and proper legal

investigation,3 we vacate the award of sanctions and remand for further proceedings. On remand, the district court should conduct an evidentiary hearing regarding whether Appellants violated Federal Rule

of Civil Procedure 11 regarding their attempts to distinguish Feldman

and whether sanctions are appropriate.4 

VACATED AND REMANDED

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3 Although Appellants withdrew their attempt to distinguish Feldman

in their reply brief in the first appeal to this court, it is not reasonable to

infer from the withdrawal alone that Appellants had an improper purpose

in pursuing the claim or that they failed to conduct a reasonable investigation.

4 In the event that the district court on remand once again finds a sanction of fees and costs to be appropriate, "[o]nly attorney time which is

in response to [Appellants' attempts to distinguish Feldman] should be

evaluated." Robeson Defense Comm. v. Britt (In re Kunstler), 914 F.2d

505, 523 (4th Cir. 1990). Fees and costs incurred by Appellees as a result

of either appeal should not be awarded. See Cooter & Gell, 496 U.S. at

406-09.

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