Appealed from: Merit Systems Protection Board
Before FRIEDMAN, Circuit Judge, MILLER, Senior Circuit Judge, and NIES, Circuit Judge.
In this order we grant the motion by the respondent Federal Aviation Administration to award it attorney fees against Jack B. Solerwitz, the petitioners' counsel.
Jack B. Solerwitz ("Solerwitz") is counsel for the ten petitioners named in the caption. He also was counsel for the petitioner in Cecil v. Department of Transportation, FAA, 767 F.2d 892 (Fed. Cir. 1985). The eleven petitioners challenged their removal by the Federal Aviation Administration ("FAA") from their positions as air traffic controllers for participation in the 1981 illegal strike.
In June, 1983, Solerwitz filed eleven separate, although virtually identical, petitions to review and supporting briefs. He challenged a decision of the Merit Systems Protection Board ("MSPB") that upheld the removals. The FAA, represented by the Department of Justice ("Justice"), filed a separate brief in each appeal. This court considered these eleven petitions when it decided the consolidated case of Adams v. Department of Transportation, FAA, 735 F.2d 488 (Fed. Cir.), cert. denied sub nom. Schapansky v. Department of Transportation, FAA, 469 U.S. 1018, 105 S. Ct. 432, 83 L. Ed. 2d 358 (1984). (The board had consolidated and decided in a single opinion the eleven petitions as well as others not at issue in this appeal. Adams v. Department of Transportation, 15 M.S.P.R. 72 (1983).)
Adams, the court affirmed the MSPB decisions sustaining the removals. It stated that, although the issues raised in these eleven cases appeared to have been decided, the petitioners could prosecute further their individual appeals. It warned that this court's decision in Asberry v. United States Postal Service, 692 F.2d 1378, 215 U.S.P.Q. (BNA) 921 (Fed. Cir. 1982), governs prosecution of frivolous appeals. Adams, 735 F.2d at 494. Each of the ten petitioners in this case, and Cecil, continued the prosecution of his appeal.
In February, 1985, Solerwitz filed separate supplemental brief, again virtually identical, on behalf of the eleven former controllers. On February 26, 1985, Justice moved to suspend proceedings in these ten cases pending a decision in Cecil. It argued that
[a]ll of these cases were consolidated together [at the MSPB]; thus the evidence submitted with respect to each case is identical and the arguments made by counsel on appeal here are identical. Under the circumstances, it would be a needless waste of our resources to file identical briefs in these cases and a needless waste of the Court's resources to consider each case individually.
The court granted the motion on February 28, 1985. Solerwitz did not oppose the motion, or seek timely reconsideration of the order granting it. In the Clerk's records, the certificate of service of that order contains the handwritten notation "2/28/85 No objection by petitioner."
We decided Cecil on July 12, 1985, and the mandate issued on August 5, 1985. We stated that "[a]ll of the arguments raised by petitioner in his briefs at this stage have been addressed by the MSPB and this court previously," 767 F.2d at 893. We assessed costs and attorney fees of $500 against Cecil and Solerwitz, jointly and severally, for prosecuting a frivolous appeal. Solerwitz did not file a petition for reconsideration by the panel or for rehearing in banc.
On August 7, 1985, more than three weeks after we decided Cecil, Justice moved for summary affirmance in these ten cases on the basis of its February motion to suspend and requested assessment of costs and attorney fees on the ground that these appeals were frivolous. It repeated the reasoning of its motion to suspend. Solerwitz did not respond to the motion, and we granted summary affirmance on August 14, 1985.
On August 26, 1985, Justice moved this court to reconsider its August 14 order to award it the costs and attorney fees it had requested in its August 7 motion. On September 5, 1985, Solerwitz filed a motion to vacate the summary affirmance and to reconsider the appeal. The motion was returned to him on September 24, 1985, on the ground that the points he raised "were foreclosed against the movants when no objection was filed in opposition to respondent's motion to suspend ...