381 F3d 916 Aloe Vera of America Inc v. United States

381 F.3d 916

ALOE VERA OF AMERICA, INC., a Texas corporation; Rex G. Maughan; Ruth G. Maughan; Maughan Holdings, an Arizona corporation, Plaintiffs-Appellants,
Bureau of National Affairs, Inc.; Tax Management, Inc., Intervenors-Appellees, and
Gene Yamagata; Yamagata Holdings, Inc., a Nevada corporation, Plaintiffs,
v.
UNITED STATES of America, Defendant.

No. 03-15265.

United States Court of Appeals, Ninth Circuit.

August 26, 2004.

Robert E. Miles, Esq., Edwin B. Wainscott, Esq., Quarles & Brady, Streich, Lang, LLP, Terence D. Woolston, Woolston & Tarter, PC, Phoenix, AZ, for Plaintiff-Appellant.

Merwin D. Grant, Esq., Grant Williams, PC, Phoenix, AZ, for Plaintiff.

Donathan D. Hart, Dow, Lohnes & Albertson, Washington, DC, David J. Bodney, Esq., Peter S. Kozinets, Steptoe and Johnson, LLP, Phoenix, AZ, for Intervenor-Appellee.

Paul K. Charlton, USPX-Office of the U.S. Attorney, Phoenix, AZ, Gerald A. Role, Esq., David M. Katinsky, Washington, DC, for Defendant.

Before WALLACE, KOZINSKI and GRABER, Circuit Judges.

ORDER


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1

Having reviewed Aloe Vera's response to our order to show cause, see Aloe Vera of Am., Inc. v. United States, 376 F.3d 960, 966 (9th Cir.2004) (per curiam), and BNA's reply, we conclude that Aloe Vera's appeal was frivolous. See Maisano v. United States, 908 F.2d 408, 411 (9th Cir.1990) (per curiam) ("An appeal is frivolous if the results are obvious, or the arguments of error are wholly without merit."). Accordingly, we award sanctions against Aloe Vera in the amount of BNA's attorney's fees for defending the appeal, including the cost of travel to San Francisco for oral argument. See FED. R. APP. P. 38 ("If a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee."). We refer the determination of an appropriate amount of fees to the Appellate Commissioner, who shall have authority to enter an order awarding fees to BNA. See 9TH CIR. R. 39-1.9.

2

Judge GRABER dissents from the award of sanctions on appeal.