[EDRM Editor’s Note: The opinions and positions are those of the Michael D. Berman.]

“A well-known proverb warns those who live in a glass house not to throw stones. What Plaintiffs did here is worse than that. The proverb assumes a rough parity — two flawed parties, each exposed, the hypocrite merely imprudent for hurling what could be hurled back. That is not what happened here. Plaintiffs did not throw stones from a glass house at another glass house. They stood inside a house made entirely of glass, pointed at the brick house across the street, and declared that structure the fragile one. They accused the government’s legal position of being ‘meritless and frivolous’ and ‘stupid and frivolous,’ and asserted that ‘[n]o authority would hold’ the railroad deeds at issue conveyed property in fee simple rather than a mere easement – the issue on which this Trails Act takings case rises or falls. Each charge, however, was not merely overstated, but rather exactly backwards.” Penland v. U.S., 2026 WL 1981703, at *1 (Ct. Fed. Claims Jul. 7, 2026). While Penland is a Fifth Amendment takings case, this post discusses the sanctions issue.

The court wrote:  “A losing argument is not sanctionable. But a categorical assertion of settled law, made without authority, contrary to controlling precedent, and deployed to brand the correct position frivolous, is a different thing entirely.”  Id. at *12.

Counsel in this brief advanced each assertion in the most strident register available and then abandoned each one the moment the Court asked him to produce its foundation, offering no defense because he had none. His opening explanations were that this Court was reading “the wrong corrected brief,” … and that the filing was “a draft,” …. This version of the “dog ate my homework defense” will not hunt. A lawyer who asserts settled law and then surrenders the assertion — without argument — the instant he is asked for support has not corrected a good-faith error; he instead has confirmed that the assertion should never have been made. Nor did Mr. Hearne’s response to the show cause order improve his case.

Id. at *13. 

“Mr. Hearne’s conduct parts company with the careless filer of AI fabricated citations. The lawyer who files an AI-hallucinated case at least does not know with certainty that the authority is fake. Mr. Hearne had the adverse authority delivered to him, on this docket, by the opposing party, more than a month before he signed a brief, declaring that it did not exist — and then repeated that while calling the government’s position frivolous.”  Id. at *14.

Let’s be clear. There are only two ways to assert, with confidence and invective, that the law of a state is settled in one’s favor while citing none of it: either counsel never performed the inquiry Rule 11 requires, or he performed it and represented the law to be other than what he found. The first is a textbook violation of RCFC 11(b)(2). The second is worse. This Court need not choose between them because the standard is objective. But the pattern this record discloses, taken whole, is fairly read as an effort to steer the Court away from the law that governs this case, while vilifying the party who had correctly explained it.

Id. at *19.

After pointing out that a case cited by Plaintiffs stands for the “opposite,” the court wrote: “Moreover, authority Plaintiffs assured this Court did not exist – a decision holding that materially identical deeds conveyed property in fee simple – not only exists but had been served on Plaintiffs’ counsel more than a month before he denied it. That’s a long way of saying that this Court does not write here to criticize a lawyer for throwing stones. It writes because the lawyer who cried ‘frivolous’ was himself the one without a case.”  Id. at *1.

The result? “Accordingly, and for the reasons explained below, this Court not only grants the government’s motion for summary judgment, but also finds that Rule 11 sanctions against Plaintiffs’ counsel are more than warranted – they are necessary to enforce a standard to which this Court expects attorneys to adhere.”  Id.

The court colorfully explained: “Shops selling fragile wares often post a warning to its browsing customers: you break it, you bought it. RCFC 11 carries a litigation analogue, as the Court put it to Plaintiffs’ counsel at oral argument: ‘You file a brief, you sign it, you own it.’”  Id. at *7.  The remark was made because: “Counsel’s first response to being confronted with the contents of his own summary judgment brief was to disclaim the filing as ‘the wrong corrected brief’ — to set the merchandise back on the shelf, as it were, and walk out of the store…. But that is not a viable strategy for avoiding the consequences of violating Rule 11….” Id.

First, the court described the typical citation of hallucinated cases as a violation of Fed.R.Civ.P. 11 and added: “But that Rule 11 failure, at bottom, is one of verification. The offending lawyer at least believed that authority supported his or her position; the fault lies in trusting a tool he or she did not understand and skipping the check that would have exposed the error.”  Id. at *8.  It continued:

What occurred in this case is worse. Plaintiffs’ counsel, Mr. Mark F. (“Thor”) Hearne, II, did not merely (unknowingly) rely on fictional authority. He filed sweeping declarations about what North Carolina law is — in his own voice, over his own signature, and without citing a single North Carolina case that supports any of them. For example, he wrote that “[u]nder North Carolina law the only interest the railroad could acquire was a right-of-way easement.” … He wrote that the contrary suggestion “is not only incredulous [sic], it is a frankly stupid and frivolous argument,” because “[n]o authority would hold these documents conveyed the railroad title to the fee simple estate in the land.” … But the Supreme Court of North Carolina held precisely that, in McCotter v. Barnes, 101 S.E.2d 330 — a binding decision that Mr. Hearne’s brief never cited, named, or distinguished.

Id. at *8. 

“An assertion of settled law obliges a court to find the settled law. Taking counsel at his word, this Court in preparing for oral argument went looking for the North Carolina authority his brief invoked, and the search came up empty — not because the Court missed something, but because there was nothing to find.”

The court wrote: “Dispatching a court on a wild goose chase — categorically, confidently, and with invective aimed at the party whose position the law in fact supports — is precisely what Rule 11’s certification exists to prevent. A lawyer duped by AI misleads the court unknowingly; what this record reflects is the older variety of Rule 11 violations. Applying the objective standard that governs sanctions pursuant to RCFC 11, this Court concludes that Mr. Hearne violated RCFC 11(b)(2) and the duty of candor that the Rule reinforces.”  Id. at *9.

Further, discussing the ethical duty of candor to the tribunal, the court wrote: “The duty is not professional etiquette; it is load-bearing.”  Id. at *11. Quoting the Fourth Circuit, it added: “The system can provide no harbor for clever devices to divert the search, mislead opposing counsel or the court, or cover up that which is necessary for justice in the end.” Id. 

In short: “A lawyer is thus free to argue creatively about what a court should conclude from the governing materials — all of which would constitute zealous advocacy….  What a lawyer may not do, however, is decide on the conclusion he or she wants the Court to reach, and then shape the presentation… of the facts; here, of the governing law — to produce it.” Id. at *12 (cleaned up).

The court added: “Other members of the bench and bar may think this opinion harsh. But extending grace to the conduct this Court critiques and sanctions today would be accompanied by a significant externality — a cost imposed on others: unsophisticated clients who think they are getting zealous advocacy when in reality they have no case, or their arguments are poorly constructed. The only way for this Court to protect future litigants — if not our adversarial system as a whole — is to take the time and effort to enforce Rule 11. This Court of course takes no issue with novel or creative arguments or with counsel who flag adverse precedent and attempt to distinguish it, even where difficult to do so. But this opinion should serve as a warning to litigators in future cases before this Court: we will not tolerate briefs that entirely lack support for asserted propositions or that contain blatant misrepresentations of case law — whether wholly invented by machine or substantially by man.”  Id. at *19.

Monetary and other sanctions were imposed. Id. at *19-20.

Assisted by GAI and LLM Technologies per EDRM’s GAI and LLM Policy.