# Reply Brief — Smith v. Regional Transportation District

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1996
- **Citation:** 519 U.S. 1021

## Text

(3) Supreme Court, U.S, ]
7. 2 a.
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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R. App. P. 21 al a * o o . e >. . 7 . 8

R. Civ. P. 56 oa o > *. . . > 7. . . 4

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1582%3A3. Public record. Not legal advice.