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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1996
- **Citation:** 519 U.S. 1021

## Text

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
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CONSTITUTIONAL PROVISION
AND STATUTE INVOLVED IN

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STATEMENT OF THE CASE tie eae GSEs. « 3
Cet ole. 0 ess ahem of Niven. soa xd
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-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

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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

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.

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PETITION FOR REHEARING AND
SUGGESTION FOR REHEARING EN BANC

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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

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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

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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";

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(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

>
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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

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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,

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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.

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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1582%3A1. Public record. Not legal advice.