Reply Brief — Smith v. Regional Transportation District

(3) Supreme Court, U.S, ]

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IN THE CLERK

SUPREME COURT OF THE UNITED “STATES

OCTOBER TERM, 1996

DAVID L. SMITH,

Petitioner,

Vv.

REGIONAL TRANSPORTATION DISTRICT, RICHARD

BAUMAN, ROBERT GARSIDE, RICHARD REYNOLDS,

ELLSWORTH WALKER, JAMES MISEK,

Respondents.

REPLY BRIEF TO BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

DAVID L. SMITH

1630 Welton Street, Suite 300

Denver, Colorado 80202

(303) 534-0153

PRO SE ATTORNEY-PETITIONER

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TABLE OF CONTENTS

TABLE OF CONTENTS * * ” 7 ° o ° o ° . o i

TABLE OF AUTHORITIES .. +++ + «+ « « ii

REPLY BRIEF TO BRIEF IN

OPPOSITION TO PETITION FOR

A WRIT OF CERTI ORARI . . . o « * > * . . =

SUPPLEMENTAL APPENDIX we Ve 8 Attached

-i-

TABLE OF AUTHORITIES

CASES

Burkett v. Chandler, 505 F.2d 217

(10th Cir. 1974), cert. denied,

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

L. 84.24 210 (1978) 6th Ces So.

Disciplinary Commission, 470 U.S.

1074 (1985) e e . . - * - °

a ini v. tate P

470 U.S. 2667 T2988)... se

STATUTES

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D.C.COLO.LR 83.6P. .. +. + «© «© « « 3, 4, 5

“iii-

No. 96-545

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

DAVID L. SMITH,

Petitioner,

Ve

REGIONAL TRANSPORTATION DISTRICT, RICHARD

BAUMAN, ROBERT GARSIDE, RICHARD REYNOLDS,

ELLSWORTH WALKER, JAMES MISEK,

Respondents.

REPLY BRIEF TO BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

On or about October 23, 1996, the

attorney for respondent Regional

Transportation District, Rolf G. Asphaug,

filed his brief in opposition to petition

for a writ of certiorari, asserting that

"Smith’s failure to supply this Court with

the orders in question, or even a semblance

of an argument as to why or how the orders

were in any way improper, is a compelling

reason to deny the petition." However, Mr.

Smith supplied this Court with the following

orders: (1) 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; (2) 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; (3) 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; (4) Order and judgment

issued by the Tenth Circuit on July 23, 1996

affirming the orders issued by United States

District Judge Zita L. Weinshienk imposing

immediately payable attorney fees and costs

of approximately $9,500.00, and other harsh

and unjustified sanctions, against Mr.

Smith; and, (5) 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) order and judgment. (See

Appendix to Petition for a Writ of

Certiorari, at pages A-1 through A-14, and

A-23 through A-24.)

Mr. Smith summarized Judge Weinshienk’s

other orders as follows: (1) Judge

Weinshienk’s (December 10, 1992) order which

severely attacked, reprimanded and warned

Mr. Smith for seeking dismissal with

prejudice of Mr. Qualls’ remaining Title VII

Claim so that an appeal of his improperly

dismissed claims under 42 U.S.C. §§ 1981,

1983, 1985(3) and 1986 could be taken to the

United States Court of Appeals for the Tenth

Circuit, and which was issued without giving

Mr. Smith prior notice that attorney

sanctions were being considered, and without

giving him the opportunity to file a brief

or otherwise respond to Judge Weinshienk’s

unsubstantiated attacks on his professional

-2-

character, judgment and reputation; (2)

Judge Weinshienk’s (February 2, 1995) order

denying Mr. Smith’s motion to continue her

(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, nunc

pro tunc to November 29, 1993; (3) Judge

Weinshienk’s (February 10, 1995)

disciplinary order imposing "identical"

discipline against Mr. Smith as that imposed

against him by the Tenth Circuit

disciplinary panel in its (November 29,

1993) disciplinary order, and suspending him

from the practice of law in the District

Court pursuant to D.C.COLO.LR 83.6P.; (4)

Judge Weinshienk’s (May 15, 1995) orders

which removed Mr. Smith as Mr. Qualls’

attorney and lifted the stay in Mr. Qualls’

civil rights case, and which were issued

without prior notice of the contemplated

removal of Mr. Smith as Mr. Qualls’ attorney

and without an opportunity for them to file

a brief; (5) Judge Weinshienk’s (July 31,

1995) order denying Mr. Qualls’ and Mr.

Smith’s motion for reconsideration of

Magistrate Judge Abram’s (January 28, 1994)

order imposing harsh and unjustified

sanctions of $8,187.50 against Mr. Smith for

filing alleged "frivolous" discovery

motions, and requiring him to pay this

amount to Defendant-Appellee Regional

Transportation District by no later than

February 28, 1994; (6) Judge Weinshienk’s

(August 10, 1995) order granting Defendants’

Motion for Attorney Fees, determining that

the reasonable amount of attorney fees for

filing the interlocutory appeal in Qualls

was $1,187.50, and ordering Mr. Smith to pay

this amount to Defendants-Appellees pursuant

to the Tenth Circuit disciplinary panel’s

(July 18, 1995) order. (See Appendix to

Petition for a Writ of Certiorari, at pages

-3-

A-16 through A~-18.)

Finally, Mr. Smith advised this Court

that he raised and briefed the following

issues on appeal: (1) Whether Judge

Weinshienk’s arbitrary, discriminatory and

otherwise improper application of the Rule

56 summary judgment procedure and standard

deprived Mr. Qualls of his First Amendment

right to petition the government for a

redress of grievances, as well as his

Seventh Amendment right to a jury trial; (2)

Whether Judge Weinshienk issued her

(December 10, 1992) order without giving Mr.

Smith prior notice that attorney sanctions

were being considered, and without giving

him the opportunity to file a brief or

otherwise respond to her unsubstantiated

attacks on his professional character,

judgment and reputation; (3) 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, nunc pro tunc 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

-4-

Qualls; (4) 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 recompesed

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; (5) Whether by issuing her (May 15,

1995) orders in Qualls removing Mr. Smith as

Mr. Qualls’ attorney and lifting the stay in

his 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; (6) Whether such

permission would constitute an impermissible

ex post facto or retroactive application of

D.C.COLO.LR 83.6P.; would impermissibly

interfere with Mr. Smith’s right to

represent his clients in accordance with the

terms of their contingent fee agreements;

and would impermissibly interfere with Mr.

Smith’s clients’ First Amendment rights to

pursue federal civil rights litigation;

(7) Whether this was especially true for Mr.

Qualls, who was financially unable to hire

substitute counsel, and was incompetent to

proceed pro se against experienced detense

counsel; (8) Whether even if the District

Court disciplinary panel’s (February 10,

-5-

1995) disciplinary order permitted Judge

Weinshienk to remove Mr. Smith as attorney

for his clients in pending federal civil

rights litigation, this could not be done

without affording procedural due process of

law; (9) Whether Mr. Qualls 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) orders, which

were issued without prior notice of the

contemplated removal of Mr. Smith as Mr.

Qualls’ attorney and without an opportunity

to file a brief; (10) 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

(June 16, 1995) order refusing to disqualify

herself from the case pursuant to 28 U.S.C.

§ 455(a); (11) Whether by rubber-stamping

Magistrate Judge Abram’s sanction order,

Judge Weinshienk again grossly abused her

discretion or otherwise acted improperly or

in a manner detrimental to the fair and

impartial administration of justice; (12)

Whether Mr. Qualls and Mr. Smith were

entitled to an immediate appeal or writ of

mandamus or prohibition under the exception

to the final judgment rule established by

the Tenth Circuit 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); (13) Whether Judge Weinshienk’s

orders were also appealable under the "plain

language" of 28 U.S.C. § 1292(a) (1), which

permits immediate appeals of rulings

relating to injunctions, including stays;

(14) Whether Judge Weinshienk’s orders were

appealable under 28 U.S.C. § 1291; (15)

Whether the contradiction between the

(September 29, 1995) Stipulation of

Dismissal With Prejudice and the (September

~-6-

29, 1995) Settlement Agreement and Full and

Final Release evidenced a fraud on Mr. Smith

and/or the Court; (16) Whether Judge

Weinshienk’s (October 10, 1995) Order of

Dismissal is null and void; (17) Whether by

returning Mr. Smith’s motions to him on the

alleged basis that "Mr. Smith was never made

a party to this case by the Court," Judge

Weinshienk grossly abused her discretion or

otherwise acted improperly or in a manner

detrimental to the fair and impartial

administration of justice; (18) Whether

Judge Weinshienk also engaged in judicial

misconduct pursuant to 28 U.S.C. § 372(c).

(See Petition for a Writ of Certiorari, at

pages 5-10; see also Appendix to Petition

for a Writ of Certiorari, at pages A-18

through A-20.)

Under these circumstances, Mr. Smith

has supplied this Court with the "orders in

question," and has made an argument for “how

and why the orders are improper." Mr.

Asphaug, on the other hand, has failed to

supply this Court with any documentation,

much less any orders, to support his "very

limited, selective summary of the tortuous

proceedings in this matter," or to support

his entirely unsubstantiated (and therefore

frivolous) arguments that (1) the lower

courts’ orders were not abuses of

discretion; (2) the Tenth Circuit was not

obligated to disqualify itself; and, (3)

this Court’s supervisory power is not

required.

Contrary to Mr. Asphaug’s assertions,

the Tenth Circuit’s previous orders and

judgments imposing harsh and unjustified

sanctions and discipline against Mr. Smith

are not his only basis for arguing that the

Tenth Circuit’s fairness and impartiality

might reasonably be questioned, and that the

Tenth Circuit was therefore obligated to

-7<

disqualify itself from the case pursuant to

28 U.S.C. § 455(a). Mr. Smith also bases

his argument on the Tenth Circuit’s refusal

to provide a statement of reasons,

addressing the issues raised and briefed on

appeal, for its order and judgment affirming

the orders issued by Judge Weinshienk

imposing immediately payable attorney fees

and costs of approximately $9,500.00, and

other harsh and unjustified sanctions,

against Mr. Smith. By failing or refusing

to disqualify itself from the case under

these circumstances, the Tenth Circuit again

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. 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.

Attached hereto as part of a

supplemental appendix is the opinion issued

by the Tenth Circuit on July 23, 1996

dismissing for lack of jurisdiction the

appeal of the orders issued by Judge

Weinshienk in Howard v. Mail-Well Envelope

Company, et al., imposing immediately

payable attorney fees and costs of

approximately $9,000.00, and other harsh and

unjustified sanctions, against Mr.

Smith in that case, even though the Tenth

Circuit had the authority to hear and decide

the appeal pursuant to 28 U.S.C. §§

1291(a)(1) and 1651(a), and Fed. R. App. P.

21. This opinion, which is pending before

this Court on Mr. Smith’s petition for a

writ of certiorari, is further graphic

evidence of the Tenth Circuit’s bias against

Mr. Smith, and of the need for the exercise

-8-

of this Court’s power of supervision.

Mr. Asphaug has joined a request for

award of just damages and double costs with

his brief in opposition to petition for a

writ of certiorari, in blatant violation of

Sup. Ct. R. 15.3. This is not the first

time that Mr. Asphaug, in his eagerness to

provoke this Court into imposing harsh and

unjustified sanctions and discipline against

Mr. Smith, has violated Sup. Ct. R. 15.3.

On or about February 15, 1995, Mr. Asphaug

joined a similar request for award of just

damages and double costs with his brief in

opposition to a previous petition for a writ

of certiorari filed by Mr. Smith in this

case. Although Mr. Asphaug’s request was in

violation of Sup. Ct. R. 15.3., and although

Mr. Smith was not served with a copy of Mr.

Asphaug’s subsequent separate motion for

award of just damages and double costs, this

Court granted Mr. Asphaug’s request and

motion at the same time it denied Mr.

Smith’s petition for a writ of certiorari,

imposed sanctions of $500.00 against Mr.

Smith for filing what Mr. Asphaug claimed

was a “frivolous" petition for a writ of

certiorari, and ordered Mr. Smith to pay

this amount to Mr. Asphaug within 21 days.

When Mr. Smith failed to pay Mr. Asphaug as

ordered by this Court, he was disbarred from

practice in this Court without being

afforded the hearing required by Sup. Ct. R.

8, even though material facts were in

dispute on the defenses raised by Mr. Smith

in his verified response to the order to

show cause issued by the Clerk of this

Court. Mr. Smith’s petition for rehearing

and motion to recall and amend judgment were

also denied. Mr. Smith is now being

prosecuted by the Supreme Court of Colorado

on reciprocal discipline charges based on

this Court’s order of disbarment.

-9-

Neither of Mr. Smith’s petitions for a

writ of certiorari are "frivolous," as

charged by Mr. Asphaug. Both petitions are

warranted by existing law or by an argument

for the extension, modification or reversal

of existing law, or the establishment of new

law. Both petitions are based on the

existence of an adequate factual foundation.

Under these circumstances, imposition of

harsh and unjustified sanctions and

discipline against Mr. Smith for exercising

his First Amendment right to petition this

Court for a redress of grievances is

unwarranted. See i

Insurance Co., 470 U.S. 1067 (1985);

Disciplinary Commission, 470 U.S. 1074

(1985). Furthermore, since no other

litigants or their attorneys have been

punished in this manner, imposition of such

sanctions and discipline against Mr. Smith

is detrimental to the fair and impartial

administration of justice.

Respectfully submitted,

DAVID L. SMITH

1630 Welton Street, Suite 300

Denver, Colorado 80202

(303) 534-0153

PRO SE ATTORNEY-PETITIONER

-10-

SUPPLEMENTAL APPENDIX

Opinion issued by the Tenth Circuit

on July 23, 1996 dismissing for lack

of jurisdiction the appeal of the

orders issued by Judge Weinshienk

in =

, imposing immediately

payable attorney fees and costs of

approximately $9,000.00, and other

harsh and unjustified sanctions,

against Mr. Smith in that case, even

tuough the Tenth Circuit had the

authority to hear and decide the

appeal pursuant to 28 U.S.C. §§

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

RR ee NA ae ee alle 4, a BRENT SA-1

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) order and

judgment in Howard v. Mail-Well

Envelope Company, et al. ..-.+-.-.- + SA-12

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 in Howard v.

il-W Vv al. ° SA-18

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.

a a a a tr ti

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF COLORADO

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

SA-1

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.

SA-2

‘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-W velope -, No. 94-1317; and

Seales v. Jefferson County Sch. Dist. R-1,

No. 95-1198. In re Smith, 76 F.3d 335 (10th

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.

In re Disbarment of David L. Smith,

U.S. , 236:8.Ce. .520 (1995).

SA-3

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. Ww v. Mail-We nve

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.

Howa Vv. L1-W velope Co., 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

SA-4

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.

Vv -W ., 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. Vv. Koller, 472 U.S. 424

(1985) (order disqualifying counsel in a

civil case is not immediately appealable) ;

United States v.- Dickstein, 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 Howard v. Mail-Well 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.

SA-5

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

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 Vv S

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

ui orp. v. Deskto irect, Inc.,

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

(1994) (citations omitted); 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 "Iselton

vy. Commercial Lovelace Motor Freight, Inc.,

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

have standing to appeal orders issued

SA-6

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 parties, 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.

SA-7

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

igi TOS U.S. 5 S46 (S.CEU.. 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,

Auchmuty & Greenwald v. Holtzman, 775 F.2d

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

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

SA-8

(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

"‘ajttorneys 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."

Freedom Oil & Gas, Inc., 744 F.2d 1443, 1446

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

to create an exception to this general rule

SA-9

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 (list 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

SA-10

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.

SA-11

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.

i i i ee ed

PETITION FOR REHEARING AND

SUGGESTION FOR REHEARING EN BANC

SA-12

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 ici .

oe 337 U.S. 541, 69 &.Ct.. 1221, 33

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

Panel II overlooked the fact that when

Disciplinary Panel I granted defendants-

appellees’ request for sanctions and imposed

SA-13

a sanction of double costs and attorney

fees, jurisdiction over this matter was

thereby vested in the Tenth Circuit. See

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.2da 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 also 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.2d 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. PB. 2i.

Iftl. R ANC

I express a belief based on a reasoned

and studied professional judgment that the

SA-14

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:

Cohen v. Beneficial Indus. Loan Corp., 337

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 $.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. Be ici Indus.

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 matter to

Judge Weinshienk "to determine the amount of

attorney fees on appeal to be awarded";

SA-15

———-_.

———————————————E—————

(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

SA-16

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

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

SA-17

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,

me ee ee ee ie ee ee ee Sie ee See ee Se ee Se ee ee ee ee ee See

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.

SA-18

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

SA-19