Petition for Writ of Certiorari — Smith v. Regional Transportation District

Susreme Goan Oe

FILED

/

\) 96 845 0CT 7199.

No. ep fici yr it CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

DAVID L. SMITH,

Petitioner,

Vv.

MAIL-WELL ENVELOPE COMPANY, BUTLER PAPER

COMPANY, GEORGIA-PACIFIC CORPORATION, GREAT

NORTHERN NEKOOSA CORPORATION EMPLOYEE

PROTECTION PLAN,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

DAVID L. SMITH

1630 Welton Street, Suite 300

Denver, Colorado 80202

(303) 534-0153

PRO SE ATTORNEY-PETITIONER

QUESTIONS PRESENTED FOR REVIEW

Whether by issuing her orders imposing

immediately payable attorney fees and costs

of approximately $9,000.00, and other harsh

and unjustified sanctions, against Mr.

Smith, Judge Weinshienk, who is demonstrably

biased, engaged in judicial misconduct which

deprived Mr. Smith of his liberty and

property interests in his good nane,

reputation, honor and integrity, and in his

right to practice law and make a living, in

violation of his Fifth Amendment right to

due process of law.

Whether Mr. Smith was therefore

entitled, as a matter of Fifth Amendment due

process of law, to have his appeal of this

judicial misconduct heard and decided by a

fair and impartial court of appeals.

Whether because of its previous orders

and judgments imposing harsh and unjustified

sanctions and discipline against Mr. Smith,

and its opinion dismissing for lack of

jurisdiction the appeal of the orders issued

by Judge Weinshienk imposing immediately

payable attorney fees and costs of

approximately $9,000.00, and other harsh and

unjustified sanctions, against Mr. Smith,

even though it had the authority to hear and

decide the appeal pursuant to 28 U.S.C. §§

1291, 1292(a)(1) and 1651(a), and Fed. R.

App. P. 21, the Tenth Circuit’s fairness and

impartiality might reasonably be questioned.

Whether the Tenth Circuit was therefore

obligated to disqualify itself from the case

pursuant to 28 U.S.C. § 455(a).

odo

Whether by failing or refusing to

disqualify itself from the case, the Tenth

Circuit again deprived Mr. Smith of his |

liberty and property interests in his good

name, reputation, honor and integrity, and

in his right to practice law and make a

living, in violation of his Fifth Amendment

right to due process of law.

Whether the Tenth Circuit also so far

departed from the accepted and usual course

of judicial proceedings, or so far

sanctioned such procedure by Judge

Weinshienk, as to call for the exercise of

the Supreme Court’s power of supervision.

enh tie

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ..... i

TABLE OF CONTENTS i. 8 ee @) 6 «6. 4 iii

wees a MOU GS Sb tk Bo er ak iv

eg ge eg ge ey eS 1

OG WETS ic S04. bf Sos. wok he 3

CONSTITUTIONAL PROVISION

AND STATUTE INVOLVED IN

oe) ee eee yo ee a oe

STATEMENT OF THE CASE tie eae GSEs. « 3

Cet ole. 0 ess ahem of Niven. soa xd

I Re a ig a 11

Dew O08. BScO8 2 kok. Boao ey Attached

-iii-

TABLE OF AUTHORITIES

CASES

, 416 U.S. 134,

94 S.Ct. 1633, 40 L.Ed.2d 15

(1974) . . . - « > > o . . . > .

Goldberg v. Kelly, 397 U.S. 254,

90 S.Ct. 1011, 25 L.Ed.2d 287

(1970) play pr we Woe ERT a KS

In re David L. Smith, 10 F.3d 723

(10th Cir. 1993), cert. denied,

U.S. 115 FR 53,

——— —_———_/

430 %.88.30 13. (19065> GAs. Wo.T es

In re: David L. Smith, 76 F.3d 335

(10th Cir. 1996) ere var

Morrissey v. Brewer, 408 U.S. 471,

92 S.Ct. 2593, 33 L.Ed.2d 484

"S27 | Ren a Rae eLre rc cree g Gaae ss angering

Mayberry v. Pennsylvania, 400 U.S. 455,

91 S.Ct. 499, 27 L.Ed.2da 532

(1971) oily SENG sarap Bp ee

Offut v. United States, 348 U.S. 11,

75 S.Ct. 11, 99 L.Ed. 11

($9045 Le ee wae ee ee

STATUTES

$6: 8.6.6, $3580

SO UBS A OS eae

$6 S.EOSe VOR So ea SS

26 0.8.0. 8 3208tei thi sk.

11

S|

OTHER AUTHORITIES

bnend.: 35,. BiB. Cometh. “i> oO: Bi 38, 23

Fed. R. App. P. 21 «.«++se* © © © 6 9, 11

Fed. RR. App. Ps 41(8@) «2. & 8 2 6 @ ce ete 9

Fed. R. App. P. 46 . 2. «© « 2 we « « « 4,°5

D.C.COLO.UR 83.6P. . . «© « © © «© © « @ « 6

-V~=

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

DAVID L. SMITH,

Petitioner,

Vv.

MAIL-WELL ENVELOPE COMPANY, BUTLER PAPER

COMPANY, GEORGIA-PACIFIC CORPORATION, GREAT

NORTHERN NEKOOSA CORPORATION EMPLOYEE

PROTECTION PLAN,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

David L. Smith hereby files his

petition for a writ of certiorari:

OPINIONS BELOW

Ce ee

Order issued by the United States Court

of Appeals for the Tenth Circuit on November

29, 1993 suspending Mr. Smith from the

practice of law in the Tenth Circuit until

he pays more than $50,000.00 in harsh and

unjustified sanctions imposed against him by

the Tenth Circuit and by the United States

District Court for the District of Colorado.

lieeeeneeemmeeemenneiiiiaiaiiiiiiiieiiaiiii tail

Order issued by the Tenth Circuit on

February 13, 1996 disbarring Mr. Smith from

the practice of law in the Tenth Circuit

based on his alleged violation of its

(November 29, 1993) suspension order.

Order issued by the Tenth Circuit on

February 16, 1996 affirming the order issued

by the United States District Court for the

District of Colorado on February 10, 1995

imposing “simultaneous and identical"

discipline against Mr. Smith as that imposed

against him by the Tenth Circuit in its

(November 29, 1993) suspension order.

Opinion issued by the Tenth Circuit on

July 23, 1996 dismissing for lack of

jurisdiction the appeal of the orders issued

by United States District Judge Zita L.

Weinshienk imposing immediately payable

attorney fees and costs of approximately

$9,000.00, and other harsh and unjustified

sanctions, against Mr. Smith.

Order issued by the Tenth Circuit on

August 29, 1996 denying Mr. Smith’s petition

for rehearing and suggestion for rehearing

en banc of its (July 23, 1996) opinion.

JURISDICTION

28 U.S.C. § 1254 is the statute

believed to confer jurisdiction on the

Supreme Court of the United States to review

this case on certiorari.

CONSTITUTIONAL PROVISION AND STATUTE

INVOLVED IN THE CASE

The Fifth Amendment to the Constitution

of the United States provides:

- - - [N)Jor shall any person be

- - « Geprived of life, liberty, or

property, without due process of law. .

28 U.S.C. § 455(a) provides:

Any justice, judge, or magistrate

of the United States shall disqualify

himself in any proceeding in which his

impartiality might reasonably be

questioned.

STATEMENT OF THE CASE

On November 29, 1993, the United States

Court of Appeals for the Tenth Circuit

issued its order suspending Mr. Smith from

the practice of law in the Tenth Circuit

until he pays more than $50,000.00 in harsh

and unjustified sanctions imposed against

him by the Tenth Circuit and by the United

States District Court for the District of

Colorado. See In re David L. Smith, 10 F.3d

723 (10th Cir. 1993), cert. denied,

U.S. , £15. §,.Ce. 83, 130. 2.88.24: 343,

(1994). Mr. Smith may apply for readmission

to the Tenth Circuit bar when he can

demonstrate that each sanction order of the

Tenth Circuit and the District Court has

been satisfied. Id.

On February 13, 1996, the Tenth Circuit

issued its order disbarring Mr. Smith from

the practice of law in the Tenth Circuit

based on his alleged violation of its

(November 29, 1993) suspension order. See

: Vv : , 76 F.3d 335 (10th

Cir. 1996). Mr. Smith’s petition for a writ

of certiorari contesting, on Fifth Amendment

due process grounds, the validity of this

disbarment order is currently pending in

this Court.' See In re: David L. Smith,

No. 96-212 (filed on August 6, i996).

On February 16, 1996, the Tenth Circuit

issued its order affirming the disciplinary

order issued by the United States District

Court for the District of Colorado on

February 10, 1995 imposing "simultaneous and

identical" discipline against Mr. Smith as

that imposed against him by the Tenth

Circuit in its (November 29, 1993)

suspension order. Mr. Smith may apply for

readmission to the District Court bar when

he can demonstrate that each sanction order

of the Tenth Circuit and the District Court

has been satisfied. Mr. Smith’s petition

for a writ of certiorari contesting, on

The Tenth Circuit disbarred Mr.

Smith from the practice of law in the

Tenth Circuit without giving him the

evidentiary hearing required by Fed. R.

App. P. 46.

Fifth Amendment due process grounds, the

validity of the Tenth Circuit’s (February

16, 1996) order is currently pending in this

Court.’ See IN THE MATTER OF DAVID L.

SMITH, No. 96-244 (filed on August 13,

1996).

On July 23, 1996, the Tenth Circuit

issued its opinion dismissing for lack of

jurisdiction the appeal of the orders issued

by United States District Judge Zita L.

Weinshienk imposing attorney fees and costs

of approximately $9,000.00, and other harsh

and unjustified sanctions, against Mr.

Smith, who raised and briefed the following

issues on appeal:

(1) Whether by participating (as a

member of the recomposed District Court

disciplinary panel) in the (February 2,

1995) decision to deny Mr. Smith’s

motion to continue the District Court

disciplinary panel’s (September 21,

1994) disciplinary order, including the

provision of the order staying the

Committee on Conduct’s (December 8,

1993) suspension of Mr. Smith from the

practice of law in the District Court,

-S-

"The Tenth Circuit refused to

reverse the District Court’s (February

10, 1995) disciplinary order indefinitely

suspending Mr. Smith from the practice of

law in the District Court, which was

issued on the basis of the Tenth

Circuit’s (November 29, 1993) order

indefinitely suspending Mr. Smith from

the practice of law in the Tenth Circuit,

even though the Tenth Circuit’s (November

29, 1993) order was issued without giving

Mr. Smith the evidentiary hearing

required by Fed. R. App. 46.

i mean.

to November 29, 1993, and

in the decision to issue the (February

10, 1995) disciplinary order imposing

"identical" discipline against Mr.

Smith as that imposed by the Tenth

Circuit disciplinary panel in its

(November 29, 1993) disciplinary order,

and suspending Mr. Smith from the

practice of law in the District Court

pursuant to D.C.COLO.LR 83.6P., Judge

Weinshienk gave effect to a local rule

which is unconstitutional on its face,

and as applied to Mr. Smith in the

District Court disciplinary action, and

to Mr. Smith and his clients in pending

and potential civil rights litigation,

including Howard.

(2) Whether Judge Weinshienk gave

effect to this unconstitutional local

rule even though the procedure followed

by the Tenth Circuit disciplinary panel

was so lacking in notice or opportunity

to be heard that it denied due process

to Mr. Smith; even though imposition by

the recomposed District Court

disciplinary panel of the same

discipline as that imposed by the Tenth

Circuit disciplinary panel has resulted

in grave injustice to Mr. Smith; even

though the kind of misconduct (if any)

established against Mr. Smith has been

held by the District Court to warrant

substantially less discipline; and even

though Mr. Smith’s attorney, Mr. Figa,

has refused to represent him

competently in connection with the

Tenth Circuit and District Court

disciplinary actions.

(3) Whether by issuing her (May

15, 1995 and July 21, 1995) orders in

-6<

Howard removing Mr. Smith as Ms.

Howard’s attorney and lifting the stay

in Ms. Howard’s civil rights case,

Judge Weinshienk acted beyond the scope

of the recomposed District Court

disciplinary panel’s (February 10,

1995) disciplinary order, which did not

permit removal of Mr. Smith as attorney

for his clients in pending civil rights

litigation.

(4) Whether Ms. Howard and Mr.

Smith were denied procedural due

process of law by Judge Weinshienk’s

refusal to allow Mr. Smith to argue on

their behalf before issuing her (May

15, 1995 and July 21, 1995) orders,

which were issued without prior notice

of the contemplated removal of Mr.

Smith as Ms. Howard’s attorney and

without an opportunity to file a brief.

(5) Whether Judge Weinshienk

grossly abused her discretion or

otherwise acted improperly or in a

manner detrimental to the fair and

impartial administration of justice by

issuing her (September 7, 1995) order

granting defendants’ application for

attorney fees and imposing attorney fee

sanctions of $8,640.00 against Mr.

Smith exclusively for filing and

pursuing an appeal of her (June 17,

1994) order staying Ms. Howard’s civil

rights case "until final action is

taken on the Committee on Conduct’s

recommendation concerning plaintiff’s

counsel’s status," and vacating the

jury trial scheduled to commence on

August 1, 1994.

<u

(6) Whether Judge Weinshienk

grossly abused her discretion or

otherwise acted improperly or in a

manner detrimental to the fair and

impartial administration of justice by

issuing her (September 7, 1995) order

treating Ms. Howard’s and Mr. Smith’s

motion to clarify status of legal

representation, and notice of Ms.

Howard’s inability to comply with Judge

Weinshienk’s (July 21, 1995) amended

minute order as a pro se motion for

extension of time to secure new

counsel, and granting the motion to

September 22, 1995.

(7) Whether Judge Weinshienk

grossly abused her discretion or

otherwise acted improperly or in a

manner detrimental to the fair and

impartial administration of justice by

issuing her (September 7, 1995) order

announcing that "(p)laintiff will be

presumed to be handling this case pro

se until new counsel enters an

appearance," and that "this Court will

no longer accept any papers which have

been signed by Mr. Smith."

| (8) Whether Judge Weinshienk

grossly abused her discretion or

otherwise acted improperly or in a

manner detrimental to the fair and

impartial administration of justice by

issuing her (September 7, 1995) order

refusing to rule on Ms. Howard's and

Mr. Smith’s request for proper notice,

an opportunity to file a brief and a

hearing after the Tenth Circuit has

disposed of their appeal in this case

(including their petition for rehearing

-8-

and suggestion for rehearing en banc),

and has issued its mandate pursuant to

Fed. R. App. P. 41(a).

(9) Whether Judge Weinshienk was

proceeding without or in excess of her

jurisdiction when she issued her (May

15, 1995, July 21, 1995 and September

7, 1995) orders.

(10) Whether an attorney who is

disbarred by a biased judge during the

course of litigation is entitled to an

immediate appeal and/or writ of

mandamus or prohibition (i.e., whether

Judge Weinshienk’s orders are final

appealable orders).

(11) Whether Judge Weinshienk’s

orders are also appealable under 28

U.S.C. §§ 1291 and/or 1292(a) (1).

The Tenth Circuit dismissed the appeal for

lack of jurisdiction, even though it had the

authority to hear and decide the appeal

pursuant to 28 U.S.C. §§ 1291, 1292(a) (1)

and 1651(a), and Fed. R. App. P. 21.

ARGUMENT

By issuing her orders imposing

immediately payable attorney fees and costs

of approximately $9,000.00, and other harsh

and unjustified sanctions, against Mr.

Smith, Judge Weinshienk, who is demonstrably

biased, engaged in judicial misconduct which

deprived Mr. Smith of his liberty and

property interests in his good name,

reputation, honor and integrity, and in his

right to practice law and make a living, in

violation of his Fifth Amendment right to

due process of law.* Mr. Smith was

therefore entitled, as a matter of Fifth

Amendment due process of law, to have his

appeal of this judicial misconduct heard and

decided by a fair and impartial court of

appeals. See Arnett v. Kennedy, 416 U.S.

134, 197, 94 S.Ct. 1633, 40 L.Ed.2d 15

(1974) (White, J., concurring in part and

dissenting in part) ("the right to an

impartial decision-maker is required by due

process" in every case); Morrissey v.

, 408 U.S. 471, 485-86, 92 S.Ct. 2593,

33 L.Ed.2a 484 (1972) (decisionmaker bias is

grounds for reversal); Mayberry v.

, 400 U.S. 455, 469, 91 S.Ct.

499, 27 L.Ed.2d 532 (1971) (Harlan, J.,

concurring) ("the appearance of evenhanded

justice . . . is at the core of due

process"); Goldberg v. Kelly, 397 U.S. 254,

271, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970)

(decisionmaker bias is grounds for

reversal); Offut v. United States, 348 U.S.

11, 75 S.Ct. 11, 99 L.Ed. 11 (1954) (nor may

a judge or other ostensibly impartial

decisionmaker "give vent to personal spleen

or respond to a personal grievance" in

reaching a decision). However, because of

its previous orders and judgments imposing

harsh and unjustified sanctions and

discipline against Mr. Smith, and its

opinion dismissing for lack of jurisdiction

-10-

*fhe harsh and unjustified sanctions

imposed against Mr. Smith by Judge

Weinshienk were part of the alleged basis

for suspending and disbarring Mr. Smith

from the practice of law in the Tenth

Circuit and in the District Court.

the appeal of the orders issued by Judge

Weinshienk imposing immediately payable

attorney fees and costs of approximately

$9,000.00, and other harsh and unjustified

sanctions, against Mr. Smith, even though it

had the authority to hear and decide the

appeal pursuant to 28 U.S.C. §§ 1291,

1292(a)(1) and 1651(a), and Fed. R. App. P.

21, the Tenth Circuit’s fairness and

impartiality might reasonably be questioned.

Id. The Tenth Circuit was therefore

obligated to disqualify itself from the case

pursuant to 28 U.S.C. § 455(a).

By failing or refusing to disqualify

itself from the case, the Tenth Circuit

again deprived Mr. Smith of his liberty and

property interests in his good name,

reputation, honor and integrity, and in his

right to practice law and make a living, in

violation of his Fifth Amendment right to

due process of law. The Tenth Circuit also

so far departed from the accepted and usual

course of judicial proceedings, or so far

sanctioned such procedure by Judge

Weinshienk, as to call for the exercise of

the Supreme Court’s power of supervision.

V. CONCLUSION

Mr. Smith requests this Court to grant

his petition for a writ of certiorari, and

such other and further relief as may be just

under the circumstances, including an order

-lli-

ee

declaring the orders imposing harsh and

unjustified sanctions and discipline against

him void ab initio.

Respectfully submitted,

DAVID L. SMITH

1630 Welton Street, #300

Denver, Colorado 80202

(303) 534-0153

PRO SE ATTORNEY-PETITIONER

-12-

i

APPENDIX

Order issued by the United States

Court of Appeals for the Tenth

Circuit on November 29, 1993

suspending Mr. Smith from the

practice of law in the Tenth

Circuit until he pays more than

$50,000.00 in harsh and unjustified

sanctions imposed against him by

the Tenth Circuit and by the

United States District Court for

the District of Colorado .....

Order issued by the Tenth Circuit

on February 13, 1996 disbarring

Mr. Smith from the practice of law

in the Tenth Circuit based on his

alleged violation of its (November

29, 1993) suspension order .....

Order issued by the Tenth Circuit

on February 16, 1996 affirming the

order issued by the United States

District Court for the District of

Colorado on February 10, 1995 imposing

"simultaneous and identical" discipline

against Mr. Smith as that imposed

against him by the Tenth Circuit

in its (November 29, 1993)

SUSDOHRILON: OFRET af ick 8 6K ee

Opinion issued by the

Tenth Circuit on July 23, 1996

dismissing for lack of jurisdiction

the appeal of the orders issued by

United States District Judge Zita

L. Weinshienk imposing immediately

payable attorney fees and costs of

approximately $9,000.00, and other

harsh and unjustified sanctions,

against Mr. Smith Pe Vee. Wid is

A~-1i

Mr. Smith’s petition for rehearing

and suggestion for rehearing en banc

(filed on August 5, 1996) of the Tenth

Circuit’s (July 23, 1996) opinion ‘ A~22

Order issued by the Tenth Circuit

on August 29, 1996 denying Mr. Smith’s

petition for rehearing and suggestion

for rehearing en banc of its (July

23, 1996) opinion STS Ee PRE Le BE A-28

United States Court of Appeals

for the Tenth Circuit

[November 29, 1993]

)

In re: ; )

) No. 93-631

)

David L. Smith

Order

Before Seymour, Chief Judge,

Baldock and Brorby, Circuit Judges

Respondent was ordered to show cause

why he should not be fined, disbarred or

otherwise disciplined for filing frivolous

appeals in numbers 93-1070 and 93-1139,

DeHerrera v. Denver, after the entry of this

court’s orders in Sandlin v. Canady (In re

Canady), No. 92-1169 (10th Cir. April 27,

1993) and Dunkin v. Louisiana-Pacific Corp.

Nos. 92-1230 & 92-1381 (10th Cir. February

11, 1993), cert. denied, 114 S.Ct. 87

(October 4, 1993)(No. 92- ~1994) and for

filing a frivolous appeal in Casillan v.

Regional Transportation District, Nos. 92-

1009 & 92-1039 (10th Cir. January 15, 1993).

Respondent maintains the appeals were not

frivolous. We disagree.

The appeals were found to be frivolous

by the panels who decided them. We cannot

overrule the judgment of another panel of

this court. We are bound by the precedent

of prior panels absent en banc

reconsideration or a superseding contrary

decision by the Supreme Court. United

A-1

States v. Killion, No. 92-3130, 1993 WL

408150 (10th Cir. October 13, 1993); United

. 910 F.24 707, 720 n. 3

(10th Cir. 1990) (a three-judge panel cannot

overrule circuit precedent); United States

v. Berryhill, 880 F.2d 275, 277 (10th Cir.

1989), cert. denied, 493 U.S. 1049 (1990).

Respondent filed a petition for

certiorari in Dunkin. The question

presented for review was,

"Whether an order sanctioning

counsel currently of record is

immediately appealable under the

collateral order exception rule

established by this Court in Cohen v.

ici ndus. a o, sat U.S.

541, 69 S.Ct. 1221, 93 L.Ed: 1528

(1949).

Whether sanctions may be imposed

against counsel for filing appeals

warranted by existing law or by a good

faith argument for the extension,

modification or reversal of existing

law."

Petition for certiorari, attached to

appellant’s motion to recall and stay the

mandate filed July 12, 1993, in Dunkin v.

i - ifi -, Nos. 92-1230 & 92-

1381 (10th Cir. February 11, 1993).

Certiorari was denied without comment.

Dunkin and Smith v. Louisiana-Pacific Corp.,

_ itt eee , 114 S.Ct. 87 (October 4,

1993) (No. 92-1994).

At oral argument, respondent admitted

that he has not paid any of the sanctions

that have been imposed on him by this court

or the district court. David L. Smith is

A-2

suspended from the practice of law before

this court until all sanctions are paid. He

may apply for reinstatement to our bar when

he can demonstrate that each sanction order

of this court or the district court has been

satisfied.

The clerk shall provide a copy of this

order to all courts before which Mr. Smith

has been admitted to practice.

Entered for the Court

Per Curiam

United States Court of Appeals

for the Tenth Circuit

{February 13, 1996]

In re:

)

)

) No. 93-631

David L. Smith )

)

Order

Before Seymour, Chief Judge,

Baldock and Brorby, Circuit Judges

On December 14, 1995, this panel

entered an order requiring respondent David

L. Smith to show cause why he should not be

disbarred for violating this court’s

November 1993 suspension order and for

practicing in this court without

authorization. On December 20, Mr. Smith

filed his response. In ruling

in this matter, the court has carefully

reviewed that response, as well as the other

pleadings filed to date in this disciplinary

action. The court has determined that Mr.

Smith’s transgressions warrant disbarment.

Mr. Smith’s name was referred for

attorney discipline after more than one

panel of this court determined he was filing

frivolous appeals and failing to pay court

ordered sanctions. Following briefing and

oral argument, this panel suspended Mr.

Smith from practicing in the Tenth Circuit.

In re Smith, 10 F.3d 723 (10th Cir.

1993) (per curiam), cert. denied, 115 S.Ct.

A-4

53 (1994). Approximately one year later,

Mr. Smith filed a request for reinstatement.

This panel denied that request. See Order

Denying Reinstatement, No. 93-631, (10th

Cir. July 18, 1995).

During the course of his suspension,

Mr. Smith continued to file briefs in this

court. In particular, the court has

identified four appeals in which Mr. Smith

appears to have drafted briefs on behalf of

the allegedly pro se appellants. Those

appeals are 94-1127, Qualls v. Regional

Transportation District, 94-1130, Dunkin v.

Louisiana-Pacific Corporation, 94-1317,

Howard v. Mail-Well Envelope Company, and

95-1198,

District R-1. The December 14 show cause

order was the culmination of this court’s

efforts to have Mr. Smith explain his

involvement in these appeals.

In his response, Mr. Smith readily

admits, as he has before, that he wrote and

submitted the briefs in this court following

the issuance of our suspension order. He

maintains, however, that those submissions

are not in violation of this court’s order

because he signed two of the briefs in

question and included footnotes admitting

his involvement in the other two. He

suggests that these admissions absolve him

of any allegations of "ghost-writing." See

, 868 F.

Supp. 1226, 1231-32 (D. Colo.

1994) (discussing elements of ghost-writing).

The argument follows that because he admits

his assistance, he cannot be subject to

discipline. Mr. Smith’s arguments

misperceive the nature of the problem.

Mr. Smith was advised, in very clear

terms, that he no longer had permission to

practice law in this court. He was told he

could not act as an attorney for his clients

or former clients. In writing and filing

briefs on behalf of otherwise pro se

litigants, he violated that order. This

breach existed regardless of whether he

signed the briefs or inserted footnotes.

Following the suspension order, Mr. Smith

was prohibited from helping his clients with

their briefs.

Contrary to assertions made in the

response, the court has been very careful to

distinguish between efforts made on behalf

of clients and Mr. Smith’s right to appeal

sanctions issues on his own hehalf. The

briefs in the four cases identified asked

for relief which went far beyond Mr. Smith

as an individual. In 94-1127, for example,

the alleged “pro se" brief requests relief

in the form of reversing the district

court’s dismissal of certain claims and

remand for an expedited jury trial on the

merits. The front cover of that brief

asserts it is being submitted by Mr. Qualls,

not David Smith. We find it disingenuous

for Mr. Smith to urge that these briefs only

contained arguments personal to him.

Despite repeated warnings, Mr. Smith

has chosen not to heed the orders of this

court. He is, therefore, disbarred. His

name will be stricken from the list of

attorneys allowed to practice in this court.

In addition, in accordance with Fed. R. App.

P. 35(b), Mr. Smith’s suggestion for hearing

en banc was circulated to all judges of the

court in regular active service. No member

of the panel or the court has requested a

poll. Therefore, the suggestion for en banc

A-6

hearing is denied. The request for

evidentiary hearing is likewise denied.

Smith is referred to the office of the

Circuit Executive to file any desired

judicial misconduct complaint.

Entered for the Court

Per Curiam

Mr.

United States Court of Appeals

for the Tenth Circuit

) [February 16, 1996}

)

IN THE MATTER OF ) Nos. 95-1091 &

DAVID L. SMITH, ) 95-1119

) (D.C. No. 93-DP-28)

Attorney~Appellant. ) (D. Colo.)

)

ORDER AND JUDGMENT‘

Before Tacha, Logan, and Kelly,

Circuit Judges

After examining the briefs and

appellate record, this panel has determined

unanimously that oral argument would not

materially assist the determination of this

appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

‘This order and judgment is not

binding precedent, except under the

doctrine of law of the case, res

judicata, and collateral estoppel. The |

court generally disfavors the citation of |

orders and judgments; nevertheless, an |

order and judgment may be cited under the

terms and conditions of 10th Cir. R.

36.3.

This appeal is from an order of the

three-judge disciplinary panel cf the United

States District Court for the District of

Colorado. Appellant Smith appeals pro se on

numerous grounds relating to his suspension

from the practice of law before this court

and before the United States District Court

for the District of Colorado. Appellant

raises numerous grounds for his appeal

relating to the application of local rules

of the district court, the denial of due

process in the procedures of that court and

this court, and various allegations relating

to the proceedings that resulted in

suspension from the practice of law before

the district court and this court.

This disciplinary matter has a long

history in this court and in the district

court. In November of 1993, a three-judge

disciplinary panel of this court issued an

order suspending appellant from the practice

of law before the Tenth Circuit. In re

Smith, 10 F.3d 723 (10th Cir. 1993) (per

curiam), cert. denied, 115 S.Ct. 53 (1994).

Following his suspension before the Tenth

Circuit, the United States District Court

for the District of Colorado conducted

hearings, took evidence, and reviewed

records related to the actions underlying

the disciplinary proceedings. The arguments

that Mr. Smith makes again on appeal are,

in large measure, a renewed effort to bring

before this court matters that were

determined previously in the original

disciplinary proceeding. Appellant further

alleges on appeal that various district

court judges from the United States District

Court in Colorado have imposed unjust and

harsh sanctions against him. Finally,

appellant urges that his counsel Mr. Figa,

who has withdrawn from this case, failed to

A-9

represent appellant competently in

connection with all of the disciplinary

actions. We find no merit in any of the

arguments made on appeal. We approve the

disciplinary order issued by the district

court for substantially the reasons given in

its post-hearing order. This court recently

disbarred Mr. Smith for his failure to abide

by previously entered orders. In re Smith,

No. 93-631 (10th Cir. Feb. 13, 1996) (per

curiam). Continued attempts by this

appellant to further litigate matters

already determined by this court or

foreclosed by previous determinations could

result in the imposition of sanctions.

AFFIRMED.

The mandate shall issue forthwith.

ENTERED FOR THE COURT

Deanell Reece Tacha

Circuit Judge

A-10

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

(July 23, 1996]

LINDA C. HOWARD,

Plaintiff-Appellant,

Vv. No. 95-1428

MAIL-WELL ENVELOPE

COMPANY, BUTLER PAPER

COMPANY, GEORGIA-

PACIFIC CORPORATION

GREAT NORTHERN

NEKOOSA CORPORATION

EMPLOYEE PROTECTION

PLAN,

Defendants~Appellees,

DAVID L. SMITH,

Attorney~-Appellant.

ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF COLORADO

(D.C. No. 93~-D-1895)

A-11

Submitted on the briefs:>

Linda C. Howard, pro se for Plaintiff-

Appellant and David L. Smith, pro se,

Denver, Colorado, for Attorney-Appellant.

Jeffrey T. Johnson, Brian M. Mumaugh of

Holland & Hart, Denver, Colorado, for

Defendants-Appellees Mail-Well Envelope

Company, Butler Paper Company, and Georgia-

Pacific Corporation and Attorneys for

Defendant-Appellee Great Northern Nekoosa

Employee Protection Plan; Randall A.

Constantine and Amy L. Lloyd of Elrod and

Thompson, Atlanta, Georgia, for Defendant-

Appellee Great Northern Nekoosa Corporation

Employee Protection Plan.

Before ANDERSON, BRORBY AND HENRY,

Circuit Judges

BRORBY, Circuit Judge.

Attorney David L. Smith brings this

interlocutory appeal challenging the

district court’s order awarding appellees

$8,640.00 in sanctions. For the reasons

stated, we dismiss for lack of jurisdiction.

A-12

‘After examining the briefs and

appellate record, this panel has

determined unanimously that oral argument

would not materially assist the

determination of this appeal. See Fed.

R. App. P. 34(a); 10th Cir. R. 34.1.9.

The case is therefore ordered submitted

without oral argument.

I

This case is but the latest chapter of

the continuing saga of attorney David L.

Smith. In 1993, we issued an order to show

cause why Mr. Smith should not be fined,

disbarred, or otherwise disciplined for

filing frivolous appeals. In re Smith, 10

F.3d 723, 724 (10th Cir. 1993) (per curiam),

cert. denied, 115 S.Ct. 53 (1994). During

oral argument on the order to show cause,

Mr. Smith admitted he had not paid any of

the sanctions previously imposed on him by

this court and by the district court. Id.

We therefore suspended him from the practice

of law before the Tenth Circuit until and

unless he demonstrated he had paid all of

the sanctions levied against him. Id. In

December 1995, we issued a second order to

show cause why Mr. Smith should not be

disbarred for violating this court’s 1993

suspension order by drafting briefs on

behalf of allegedly pro se appellants in at

least four cases: Qualls v. Regional

Transportation Dist., No. 94-1127; Dunkin v.

Louisiana-Pacific Corp., No. 94-1130; Howard

v. Mail-We nv e -, No. 94=- ~1317; —

eale a I Sc

No. 95-1198. RE MY 76 F.3d 335 (ioth

Cir. 1996)(per curiam). Mr. Smith admitted

he had written and submitted the briefs in

question. Id. at 336. We therefore ordered

Mr. Smith’s name be stricken from the list

of attorneys allowed to practice before the

Tenth Circuit. Id. The United States

Supreme Court has also disbarred Mr. Smith.

n isbarment o avid ith,

U.S. , 116 S.Ct. $10 (1995).

A-13

After we initially suspended Mr. Smith

from practicing before this court in 1993,

see In re Smith, 10 F.3d 723, the Committee

on Conduct of the United States District

Court for the District of Colorado took up

the question of whether Mr. Smith should

also be suspended from practicing before

that court. Pending final action by the

Committee on Conduct, the district court

stayed all proceedings in this case. See

Howard v. Mail-Well Envelope Co. 164 F.R.D.

524, 525 (D. Colo. 1996). Both Ms. Howard

and Mr. Smith appealed the stay order, but

we dismissed their appeal for lack of

jurisdiction. Howard v. Mail-Well Envelope

Co., No. 94-1317 (10th Cir. Nov. 15, 1994);

see Howard, 164 F.R.D. at 525. In our

order, we referred appellees’ motion for

sanctions on appeal to a Tenth Circuit

disciplinary panel. Id. The disciplinary

panel granted appellees’ motion, awarded

double costs and attorney fees, and remanded

the case to the district court to determine

the amount of attorney fees to be awarded.

il-W Vv -, No. 94-

1317 (10th Cir. July 18, 1995). By an order

dated September 7, 1995, the district court

concluded $8,640.00 in attorney fees should

be awarded to the appellees, to be paid

exclusively by Mr. Smith. The district

court also advised Ms. Howard that Mr. Smith

had been suspended from practicing law

before the United States District Court for

the District of Colorado, see In re Smith,

No. 95-1119, 1996 WL 67191 (10th Cir. Feb.

16, 1996) (affirming district court

disciplinary panel’s suspension order) ;

Howard, 164 F.R.D. at 525 (noting Mr.

Smith’s disciplinary status has been

resolved and that he is no longer authorized

to practice in the United States District

Court for the District of Colorado); that

A-14

POOLED: a AAR ai RS RE ORES LOO RE NE OP a i ali Se ee a naa One

it PORN Sa ay 2 x 5 ITER TAD

I

:

;

the district court would no longer accept

documents signed by Mr. Smith; that she

should seek new counsel; and that until she

hired an attorney she would be considered to

be a pro se litigant.

Both Mr. Smith and Ms. Howard appealed

the September 7, 1995 order asserting a

Litany of errors. A jurisdictional panel of

this court dismissed Ms. Howard’s claims,

leaving Mr. Smith as the sole appellant.

il-W e e -, No. 95-

1428 (10th Cir. Feb. 26, 1996). The

jurisdictional panel also dismissed Mr.

Smith’s challenge to the district court’s

decision to terminate his representation of

Ms. Howard and to no longer accept filings

signed by Mr. Smith. Id.; see Richardson-

Merrell, Inc. v. Koller, 472 U.S. 424

(1985) (order disqualifying counsel in a

civil case is not immediately appealable) ;

, 971 F.2d 446

(10th Cir. 1992) (revocation of permission to

appear pro hac vice in a criminal case is

not immediately appealable). In addition,

to the extent Mr. Smith challenges the

propriety of the Tenth Circuit disciplinary

panel’s award of double costs and attorney

fees as sanctions for filing a frivolous

appeal, see wa Vv. Ll-We Envelope

Co., No. 94-1317 (10th Cir. July 18, 1995),

we are without power to grant relief. See

In. re Smith, 10 F.3d at 724 (a three-judge

panel cannot overrule the prior decision of

another three-judge panel of this court).

Accordingly, the only issue properly before

this panel is whether the district court’s

calculation of the appropriate dollar amount

of sanctions in the September 7, 1995, order

amounted to reversible error.

II

As a threshold matter, we must

determine whether we have jurisdiction over

this appeal in light of the fact that Ms.

Howard’s case is still pending in district

court. In G.J.B. & Associates, Inc. v.

Singleton, 913 F.2d 824, 827 (10th Cir.

1990), we "join[{ed} the majority of circuit

courts that have addressed the issue and

{held) that a sanction order against an

attorney currently of record is not a final

decision for purposes of a § 1291 appeal

where the underlying controversy remains

unresolved." We also held such an order is

not appealable under the collateral-order

doctrine of nv.

Corp., 337 U.S. 541 (1949), G.J.B. & Assoc.,

913 F.2d at 827-29, which the Supreme Court

has recently explained "is best understood

not as an exception to the ‘final decision’

rule laid down by Congress in § 1291, but as

a ‘practical construction’ of it." Digital

Equip. Corp. v. Desktop Direct, Inc.,

U.S. P , 114 S.Ct. 1992, 1995

(1994) (citations o.witted); Stubblefield v.

Windsor Capital Group, 74 F.3d 990, 997

(10th Cir. 1996). The crux of our decision

regarding the collateral-order doctrine was

that the attorney may challenge the sanction

order as part of an appeal from the final

judgment, even if the parties settle or

decline to appeal, and therefore it is not

effectively unreviewable absent an

interlocutory appeal. See G.J.B. & Assocs.,

913 F.2d at 829 ("We reject any notion that

an attorney risks losing the right to appeal

if the parties settle or elect not to appeal

from the final judgment"); see also Uselton

v. Commercial Lovelace Motor Freight, Inc.,

9 F.3d 849, 854 (10th Cir. 1993) (attorneys

have standing to appeal orders issued

A-16

directly against them, but lack standing to

appeal orders applicable only to their

clients). Similarly, in Dickstein, 971 F.2d

448, we held an order revoking defense

attorney Jeffrey A. Dickstein’s permission

to appear pro hac vice due to improper

conduct was not immediately appealable,

because it did not amount to a "final

decision[{] of the district court[]" within

the meaning of 28 U.S.C. § 1291. Id. at

448. Further, as in G.J.B. & Associates, we

held the challenged order was not appealable

under the collateral-order doctrine because

it was not effectively unreviewable through

an appeal from a final judgment in the

underlying case. Id. at 451. We explained

that the only right defense counsel sought

to vindicate in his interlocutory appeal was

his reputation, which could be just as

effectively rehabilitated through an appeal

from a final judgment as through an

interlocutory appeal, and that he did not

seek to vindicate his asserted interest in

continuing to represent the defendant

throughout the remainder of the proceedings

in the district court. Id. Most recently,

in Johnson v. Board of County Comm’rs, 85

F.3d 489 (10th Cir. 1996), we exercised

jurisdiction over an appeal from an order

disqualifying the attorney-appellant from

representing one of the parcies, even though

the underlying controversy had been

dismissed with prejudice pursuant to a

settlement agreement. We explained our

cases "establish that settlement of an

underlying case does not preclude appellate

review of an order disqualifying an attorney

from further representation insofar as that

order rests on grounds that could harm his

or her professional reputation.

A-17

We have no difficulty concluding the

order challenged in this case does not

amount ‘to a “final decision[{] of the

district[] court" within the meaning of 28

U.S.C. § 1291. See Stubblefield, 74 F.3d at

995-96 (a “final decision of the district

court . .. ‘ends the litigation on the

merits and leaves nothing more for the court

to do but execute the judgment’") (quoting

Digital Equip., U.S. , 114 S.Ct. at

1995 (citation and internal quotation marks

omitted)). Furthermore, in light of our

decisions in G.J.B. & Associates, Dickstein,

and Johnson, we also conclude we lack

jurisdiction over Mr. Smith’s interlocutory

challenge to the district court’s decision

under the collateral-order doctrine for

three reasons: First and foremost, we see

no meaningful distinction between Mr.

Smith’s position and that of Mr. Dickstein.

As in Dickstein, Mr. Smith no longer

represents a party in the litigation, but

faces the stigma of a ruling that reflects

negatively on his competence and conduct.

However, as was also the case in Dickstein,

the decision Mr. Smith now challenges may be

effectively reviewed in an appeal from a

final judgment, even if the parties settle

their dispute or otherwise elect not to

appeal.

Second, we disagree with the rationales

underlying the decisions of the Third, Fifth

and Seventh Circuits holding a sanction

order against an attorney who no longer

represents a party in the litigation is

appealable under the collateral-order

doctrine. See Markwell v. County of Bexar,

878 F.2d 899 (5th Cir. 1989); Eavenson,

, 775 F.2a

535, 537-39 (3d Cir. 1985);

Knorr Brake

Corp. v. Harbil, Inc., 738 F.2d 223, 225-26

A-18

(7th Cir. 1984). The central thesis of

these decisions is that attorneys who no

longer represent parties in a case may be

unable to challenge a sanction order by

filing an appeal after a final judgment is

entered for two reasons: first, their

former clients might settle or elect not to

appeal; and second, the attorney might not

be notified that a final judgment has been

entered given that he no longer actively

participates in the litigation. Regarding

the first rationale, our decisions in G.J.B.

& Associates, Dickstein and Johnson make it

clear an attorney may appeal a sanction or

disqualification order even if his former

client settles or does not appeal.

Regarding the second rationale, we believe

our sister circuits’ analyses improperly

blur the line between the impossibility of

effective review necessary under the Cohen

doctrine and mere inconvenience of

monitoring the former client’s case and

performing the other tasks necessary to

perfect an appeal.

Third, our cases make it clear the mere

fact the sanction order in this case is

currently due in full does not give rise to

the type of irreparable harm justifying

review under the collateral-order doctrine.

In declining to adopt a blanket rule that

all sanctions are immediately appealable

under Cohen, this court has held, ina

unanimous en banc decision, that

"rfajttorneys and parties [must] be fully

aware that they must bear the burden of

sanctions to the conclusion of the case and

appeal on the merits of the fully

adjudicated case."

, 744 F.2d 1443, 1446

(10th Cir. 1984) (en banc). We see no reason

to create an exception to this general rule

A-19

ne a

and allow attorneys who no longer represent

a party in the underlying case an immediate

opportunity to relieve themselves of the

consequences of their misconduct merely

because those consequences are monetary, nor

could such a holding be reconciled with our

decision in G.J.B. & Assocs. We also see no

reason to permit an immediate appeal under

Cohen so that Mr. Smith can, without delay,

attempt to somehow rehabilitate his

reputation by persuading us to set aside the

district court’s decision. Mr. Smith’s

interest in promptly diminishing the stigma

associated with the district court’s

decision is no greater than Mr. Dickstein’s.

Finally, we see no basis for

jurisdiction under 28 U.S.C. § 1292(a),

because the challenged decision is not an

injunction, or under the All Writs Statute,

28 U.S.C. § 1651, because Mr. Smith may

secure adequate review through an appeal

from the final judgment in the underlying

case and because he has otherwise failed to

make the showing required to obtain a remedy

under that statute. See McNeil v. Guthrie,

945 F.2d 1163, 1165 (10th Cir. 1991) ("In

order to be entitled to mandamus relief, a

petitioner must show a clear abuse of

discretion or conduct which arbitrarily

assumes and exercises authority contrary to

that of the judiciary ... Additionally,

because mandamus is an extraordinary remedy,

a petitioner must also show that he lacks an

alternative for the relief he seeks and that

his right to the writ is not in dispute") ;

Appeal of Licht & Semonoff, 796 F.2d 564,

573 (lst Cir. 1986) (writ of mandamus will

not lie because sanction order may be

reviewed on appeal from final judgment).

Furthermore, the district court has not

taken the steps necessary to invoke our

A-20

jurisdiction under 28 U.S.C. § 1292(b).

Finally, even if we assume for the sake of

discussion we would have jurisdiction if the

district court had made an express finding

there was "no just reason for delay" and

directed entry of judgment against Mr. Smith

pursuant to Fed. R. Civ. P. 54(b), which we

consider to be a very great assumption

indeed, the district court made no such

express finding in this case.

Appeal DISMISSED. Petition for writ of

mandamus or prohibition DENIED.

A-21

IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

LINDA C. HOWARD,

Plaintiff-Appellant-

Petitioner,

No. 95-1428

(D.C. No. 93-D-1895)

(Dist. of Colo.)

Vv.

MAIL-WELL ENVELOPE

COMPANY, BUTLER

PAPER COMPANY,

GEORGIA-PACIFIC

CORPORATION, GREAT

NORTHERN NEKOOSA

CORPORATION EMPLOYEE

PROTECTION PLAN,

Defendants-Appellees-

Respondents,

and,

ZITA L. WEINSHIENK,

United States

District Judge,

Respondent.

DAVID L. SMITH,

Attorney~-Appellant-

Petitioner.

ee ee ie ee ee ee ee ee ee ee ee ee ee ee ee ee See Se ee ee See See See ee ee ee See Se

PETITION FOR REHEARING AND

SUGGESTION FOR REHEARING EN BANC

A-22

Linda C. Howard and David L. Smith

hereby file their Petition for Rehearing and

Suggestion for Rehearing En Banc:

I. PETITION FOR REHEARING

On July 23, 1996, a three-judge

disciplinary panel of the United States

Court of Appeals for the Tenth Circuit

(composed of Anderson, Brorby and Henry,

Circuit Judges) ("Disciplinary Panel II")

issued its (published) opinion (copy

attached hereto) dismissing for lack of

jurisdiction Ms. Howard’s and Mr. Smith’s

appeal of immediately payable attorney fee

sanctions of $8,640.00 imposed against Mr.

Smith by United States District Judge Zita

L. Weinshienk. These sanctions were imposed

against Mr. Smith after another three-judge

disciplinary panel of the Tenth Circuit

(composed of Seymour, Chief Judge, Baldock

and Brorby, Circuit Judges) ("Disciplinary

Panel I") granted defendants-appellees’

request for sanctions, imposed a sanction of

double costs and attorney fees, and remanded

this matter to Judge Weinshienk "to

determine the amount of attorney fees on

appeal to be awarded."

In its (July 23, 1996) opinion,

Disciplinary Panel II held that the

immediately payable attorney fee sanctions

of $8,640.00 imposed against Mr. Smith by

Judge Weinshienk were not immediately

appealable under 28 U.S.C. §§ 1291, 1292(a),

1292(b), or 54(b), or under the collateral

order doctrine of Cohen v. Beneficial Indus.

Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93

L.Ed. 1528 (1949). However, Disciplinary

Panel II overlooked the fact that when

Disciplinary Panel I granted defendants-

appellees’ request for sanctions and imposed

A-23

a sanction of double costs and attorney

fees, jurisdiction over this matter was

thereby vested in the Tenth Circuit. See

, 832 F.2d 1504 (10th Cir.

Braley _v. Campbell

1987); Stewart v. Donges, 915 F.2d 572 (10th

Cir. 1990); Petuskey v. Rampton, 431 F.2d

378 (10th Cir. 1970), cert. denied, 401 U.S.

913, 91 S.Ct. 882, 27 L.Ed.2d 812 (1971).

This jurisdiction was not divested when

Disciplinary Panel I remanded this matter to

Judge Weinshienk "to determine the amount of

attorney fees on appeal to be awarded." Id.

Under these circumstances, the Tenth Circuit

retained jurisdiction over this matter, and

Disciplinary Panel II erred by dismissing

Ms. Howard’s and Mr. Smith’s appeal for lack

of jurisdiction.

In its (July 23, 1996) opinion,

Disciplinary Panel II a.so denied Ms.

Howard’s and Mr. Smith’s petition for a writ

of mandamus or prohibition, but failed to

give its reasons (if any) for the denial.

However, Ms. Howard and Mr. Smith had an

indisputable right to a writ of mandamus or

prohibition under the Tenth Circuit’s

holding in Burkett v. Chandler, 505 F.2d 217

(10th Cir. 1974), cert. denied, 423 U.S.

876, 96 S.Ct. 149, 46 L.Ed.2da 110 (1975).

Therefore, in the absence of any reasons for

denying Ms. Howard’s and Mr. Smith’s

petition for a writ of mandamus or

prohibition, Disciplinary Panel II deprived

them of their First and Fifth Amendment

right to access to the Tenth Circuit to

review the actions of the district court

pursuant to 28 U.S.C. § 1651 and Fed. R.

Civ. Ps ‘21.

IIl. U ON FO

I express a belief based on a reasoned

and studied professional judgment that the

A-24

panel decision is contrary to the following

decisions of the Supreme Court or of the

United States Court of Appeals for the Tenth

Circuit, and consideration by the full court

is necessary to secure and maintain

uniformity of decisions in this court:

i i337

U.S. 541, 69 S.Ct. 1221, 93 L.Ed.2d 1528

(1949); Braley v. Campbell, 832 F.2d 1504

(10th Cir. 1987); Stewart v. Donges, 915

F.2d 572 (10th Cir. 1990); Petuskey v.

Rampton, 431 F.2d 378 (10th Cir. 1970),

cert. denied, 401 U.S. 913, 91 S.Ct. 882, 27

L.Ed.2d 812 (1971); Burkett v. Chandler, 505

F.2d 217 (10th Cir. 1974), cert. denied, 423

U.S. 876, 96 S.Ct. 149, 46 L.Ed.2d 110

(1975).

I express a belief based on a reasoned

and studied professional judgment that this

case involves one or more questions of

exceptional importance: (1) Whether the

immediately payable attorney fee sanctions

of $8,640.00 imposed against Mr. Smith by

Judge Weinshienk were immediately appealable

under 28 U.S.C. §§ 1291, 1292(a), 1292(b),

or 54(b), or under the collateral order

doctrine of Cohen v. Beneficial Indus. Loan

Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed.

1528 (1949); (2) Whether Disciplinary Panel

II overlooked the fact that when

Disciplinary Panel I granted defendants-

appellees’ request for sanctions and imposed

a sanction of double costs and attorney

fees, jurisdiction over this matter was

thereby vested in the Tenth Circuit; (3)

Whether this jurisdiction was divested when

Disciplinary Panel I remanded this mattur to

Judge Weinshienk "to determine the amount of

attorney fees on appeal to be awarded";

A-25

(4) Whether the Tenth Circuit retained

jurisdiction over this matter, and

Disciplinary Panel II erred by dismissing

Ms. Howard’s and Mr. Smith’s appeal for lack

of jurisdiction; (5) Whether Ms. Howard and

Mr. Smith had an indisputable right to a

writ of mandamus or prohibition under the

Tenth Circuit’s holding in Burkett v.

Chandler, 505 F.2d 217 (10th Cir. 1974),

cert. denied, 423 U.S. 876, 96 S.Ct. 149, 46

L.Ed.2d 110 (1975); (6) Whether in the

absence of any reasons for denying Ms.

Howard’s and Mr. Smith’s petition for a writ

of mandamus or prohibition, Disciplinary

Panel II deprived them of their First and

Fifth Amendment right to access to the Tenth

Circuit to review the actions of the

district court pursuant to 28 U.S.C. § 1651

and Fed. R. Civ. P. 21.

Dated this 5th day of August, 1996.

Respectfully submitted,

LINDA C. HOWARD DAVID L. SMITH

5273 Wheeling Street 1630 Welton Street

Denver, CO 80239 Suite 300

(303) 373-5666 Denver, CO 80202

(303) 534-0153

PLAINTIFF-APPELLANT- ATTORNEY-APPELLANT-

PETITIONER PETITIONER

>

i

26

CERTIFICATE OF SERVICE

; I hereby certify that on this 5th day

of August, 1996, true and correct copies of

the foregoing Petition for Rehearing and

Suggestion for Rehearing En Banc were placed

in the United States mail, postage prepaid,

addressed as follows:

Zita L. Weinshienk, United States

District Judge

United States Courthouse

1929 Stout Street

Denver, Colorado 80294

i Jeffery T. Johnson, Esq.

| Brian M. Mumaugh, Esq.

‘ HOLLAND & HART

555 17th Street, Suite 2900

Denver, Colorado 80202

Randall A. Constantine, Esq.

Amy L. Lloyd, Esq.

ELROD & THOMPSON

1500 Peachtree Center - South Tower

225 Peachtree Street, N.E.

Atlanta, Georgia 30303

sein Dandcan, ca Te re oe a a

A-27

}

i

t

;

:

i

t

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

LINDA C. HOWARD,

Plaintiff-Appellant,

No. 95-1428

Vv.

MAIL-WELL ENVELOPE

COMPANY, BUTLER

PAPER COMPANY,

GEORGIA-PACIFIC

CORPORATION, GREAT

NORTHERN NEKOOSA

CORPORATION EMPLOYEE

PROTECTION PLAN,

Defendants~-Appellees,

DAVID L. SMITH,

ee ee ee ee ee ee Se ee ee Se Se Stee Se Se See ee See ee eee”

Attorney~Appellant.

ORDER

Entered August 29, 1996

Before ANDERSON, BRORBY, AND HENRY,

Circuit Judges

This matter comes on for consideration

of attorney-appellant’s petition for

rehearing and suggestion for rehearing in

banc.

A-28

Upon consideration whereof, the

petition for rehearing is denied by the

panel that rendered the decision.

In accordance with Rule 35(b), Federal

Rules of Appellate Procedure, the suggestion

for rehearing in banc was transmitted to all

of the judges of the court who are in

regular active service. No member of the

panel and no judge in regular active service

on the court having requested that the court

be polled on rehearing in banc, Rule 35,

Federal Rules of Appellate Procedure, the

suggestion for rehearing in banc is denied.

Entered for the Court

PATRICK FISHER, Clerk

By:

Deputy Clerk

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