Petition for Writ of Certiorari — Smith v. Louisiana-Pacific Corp.

weurh Ue.

(1) ~ PILED

97 1033 DE 15197

NO. _____seswe—of THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

DAVID L. SMITH,

Petitioner,

Vv.

LOUISIANA-PACIFIC CORPORATION, JAMES BELDIN,

DAN DILWORTH, DOUGLAS EDDINS,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

DAVID L. SMITH

1630 Welton Street, Suite 300

Denver, Colorado 80202

(303) 534-0153

PRO SE ATTORNEY- PETITIONER

Sn ee RS ner Ri

Whether the Tenth Circuit has

arbitrarily deprived Mr. Smith of his

statutory right to appeal and receive a full

and fair review of Judge Nottingham's final

orders imposing harsh and unjustified

sanctions of approximately $25,000.00 against

him, in violation of his First Amendment

right to petition the government for a

redress of grievances and his Fifth Amendment

right to due process of law.

Whether these final orders have resulted

in irreparable harm to Mr. Smith, who has

been suspended from the practice of law since

November 29, 1993, pending payment of more

than $50,000.00 in harsh and unjustified

sanctions previously imposed against him by

the Tenth Circuit and the United States

District Court for the District of Colorado,

including those imposed against him by Judge

Nottingham.

Whether since Mr. Smith is financially

unable to pay these sanctions, he is being

indefinitely excluded from the practice of

law on an impermissible basis, i.e., on the

basis of his inability to pay harsh and

unjustified sanctions of more than

$50,000.00, in violation of his Fifth

Amendment due process and equal protection

rights.

Whether since the unpublished sanction

orders issued by Judge Nottingham are not

judicial precedents under 10th Cir. R. 36.3.,

the Tenth Circuit's reliance on this Court's

opinion in U.S. Bancorp Mortgage Co. v.

Bonner Mall Partnership, 513 U.S. 18, 115

S.Ct. 386, 130 L.Ed.2d 233 (1994) to attempt

to justify its issuance of unpublished

orders and judgments refusing to vacate Judge

Nottingham's unpublished sanction orders was

clearly erroneous and contrary to law.

Whether this was especially true

considering the devastating impact on Mr.

Smith of the Tenth Circuit's refusal to

vacate Judge Nottingham's unpublished

sanction orders.

Whether under all the circumstances, the

Tenth Circuit’s fairness and impartiality

might reasonably be questioned.

Whether the Tenth Circuit was obligated

to disqualify itself from this case pursuant

to 28 U.S.C. § 455(a) and Canon 3 of the ABA

Code of Judicial Conduct.

Whether by failing or refusing to

disqualify itself from this case, the Tenth

Circuit has 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.

wih «

Whether the Tenth Circuit has also so

far departed from the accepted and usual

course of judicial proceedings, or sanctioned

such a departure by Judge Nottingham, as to

call for an exercise of this Court's

supervisory power; has decided important

questions of federal law that have not been,

but should be, settled by this Court; and has

decided important federal questions in a way

that conflicts with relevant decisions of

this Court.

-iii-

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ......--se6- i

TABLE OF CONTENTS ..ccccscscccccccssccsees iv

TABLE OF AUTHORITIES ....cccccvccccccvccsses v

CITATIONS OF OPINIONS AND ORDERS ....... viii

JORISDICTION wccccccccccsvesecsscsccseseces ix

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED IN THE CASE .........-.+-. x

STATEMENT OF THE CASE ...ccccccccccccccsccss 1

ARGUMENT .ccccccccccccacecsesnesceesecseece 6

CONCLUSION ...ccccccccecscece Co ecesccesenn 10

APPEMDIK ce scccccscccvvcwescveseseseccsees A-1

-iv-

TABLE OF AUTHORITIES

CASES

Arnett v. Kennedy, 416 U.S. 134,

34 G.Ck. 3633, 66 %.06.36 28 C4874) .......

Bearden v. Georgia, 461 U.S. 660,

103 8.€t. 2066, 76 1,.B8.24 223% (32983) .....

' Vv -

464.0.8. 734, 103 6.Ce. 2161,

76 Sem Bt? COBGRE 20 Aek ees oe oe

Brot £ i v. Virgini

377 U.S. 1, 84 S.Ct. 1113,

BS Mec Bet LEO es 6 6 6h 65 5 oo kk CS SS

V

Trucking Unltd., 404 U.S. 508,

33 §.Ct. $09, 30 &.86.24 662 (i972) .......

Vv , 397° U.8.. 234,

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

Honda Motor Co., Ltd. v. Oberg,

$12 U.8. 415, 1134 8.Ct. 2331,

aae Uae mee. (S096). 23 0 4S. kt.

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

(10th Cir.), cert. denied,

$13 U.S. 807, 115 ‘S.Ct. 33,

See See ae SANE KN bs deeb ee eee acecees

Vv , 510 U.S. 540,

114 S.Ct. 1147, 127 L.Ed.2d 474 (1994)

s

an V 4 LImmMe ’ Brush ©

5 U.S. 422, 102 S.Ct. 1148,

d

Vv Vv , 400 U.S. 455,

74 B.0e. 499, 27 2..ae S32 (3971) = ...<...

-Ve-

Morris v. Schoonfield, 399 U.S. 508,

90 S.Ct. 2232, 26 L.Ed.2d 773 (1970)

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

92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)

NAACP v. Button, 371 U.S. 415,

83 S.Ct. 328, 9 L.Ed.2d 405 (1963) .

Offut v. United States, 348 U.S. 1l,

75 8.Ct. 15, 39: tM. 44: 429864) 6 cnx

Stack v. Boyle, 342 U.S. l,

73: $.G0. 2, 96 Bie: O° 4EOSR).. ince

ure- nc. v , 467 U.S. 883,

104 S.Ct. 2803, 81 L.Ed.2d 732 (1984)

Tate v. Short, 401 U.S. 395,

91 S.Ct. 668, 28 L.Ed.2d 130 (1971)

Un i Work v. Illinois,

388 U.S. 217, 88 §.Ct.'333,

29 3... 26 GRO CAST IS Bie hc Gk case

United Transportation Union v.

State Bar of Michigan, 401 U.S. 576,

91 S.Ct. 1076, 28 L.Ed.2d 339 (1971)

Vv

Mall Partnership, 513 U.S. 18,

115 S.Ct. 386, 130 L.Ed.2d 233 (1994)

Williams v. Illinois, 399 U.S. 235,

90 S.Ct. 2018, 26 L.Ed.2d 586 (1970)

a8 SB. SiO. 8 SEG) aA eisai chides 2, 4, 9

ee eeu. re hh ws as A oo CHEEK 7

eRe. Ws wires Ue es WUE LENEN be He didda 2

OTHER AUTHORITIES

Bie TE i Wha hhh Riko 0 GR 7

nee. 3,: 3.8. Comsesd § ook chk a ee ee Pa

SA a ee “Is oe lb ae eee oe ae. oo 8

Canon 3, ABA Code of Judicial Conduct Sere a

-vii-

CITATIONS OF OPINIONS AND ORDERS

Dun) + 3 -Pacific C 3 )

al., Case No. 95-1087 (10th Cir.) (Order and

Judgment Filed on June 12, 1996).

al., Civil Action No. 92 N 243 (U.S. District

Judge Edward W. Nottingham) (Order Filed on

August 19, 1996).

ae No. 96-1411 (10th Cir.) (order

Filed on July 28, 1997).

in v. isi ifi ration

al., Case No. 96- 1411 (10th Cir.) (Order

Filed on September 24, 1997).

-viii-

eee

Ooi eben eee ES GSES

tn ee

JURISDICTION

The opinions and orders sought to be

reviewed were entered on June 12, 1996,

August 19, 1996, and July 28, 1997.

Rehearing of the Tenth Circuit's (July 28,

1997) order was denied by order dated

September 24, 1997.

The statutory provision believed to

confer jurisdiction on the Supreme Court of

the United States to review on writ of

certiorari the opinions and orders in

question is 28 U.S.C. § 1254(1).

-~ix-

Cc TI TA

INVOLVED IN THE CASE

Amend. 1, U.S. Consti.

Amend. 5, U.S. Consti.

28 U.S.C. § 455 (a)

28 U.S.C. § 1291

10th Cir. R. 36.3.

Canon 3, ABA Code of Judicial Conduct

See the Appendix hereto for the full

text of the pertinent portions of the

constitutional provisions and statutes

involved in the case.

-x-

Pro se attorney-petitioner David L.

Smith ("Mr. Smith") hereby files his petition

for a writ of certiorari to the United States

Court of Appeals for the Tenth Circuit:

Zz. T. F THE E

On June 12, 1996, the Tenth Circuit

issued its order and judgment affirming the

memorandum opinion and order issued by United

States District Judge Edward W. Nottingham on

January 17, 1995. In his opening brief on

appeal, Mr. Smith made the following

arguments:

(1) Judge Nottingham abused his

discretion or otherwise acted improperly

by imposing immediately payable attorney

fees and costs of $4,541.25, and other

harsh and unjustified sanctions, against

Mr. Smith because of his and his

client's refusal to sign the burdensome,

oppressive and unconstitutionally

overbroad confidentiality order proposed

by opposing counsel;

(2) Judge Nottingham abused his

discretion or otherwise acted improperly

by imposing immediately payable attorney

fees and costs of $1,870.93, and other

harsh and unjustified sanctions, against

Mr. Smith for filing and pursuing a

meritorious motion for reconsideration

of a magistrate-judge's ruling on a

discovery matter;

(3) Judge Nottingham abused his

discretion or otherwise acted improperly

by refusing to recuse himself from the

case pursuant to 28 U.S.C. § 455(a),

where his impartiality might reasonably

be questioned under all the

circumstances of the case;

(4) Judge Nottingham abused his

discretion or otherwise acted improperly

by addressing Mr. Smith's client

directly and accusing him of

incompetence and unprofessional behavior

in an attempt to induce or intimidate

his client into firing him as her

attorney, or to otherwise interfere with

their attorney-client relationship;

(5) Judge Nottingham abused his

discretion or otherwise acted improperly

by imposing immediately payable attorney

fees and costs of $18,085.83, and other

harsh and unjustified sanctions, against

Mr. Smith for filing and pursuing

alleged "frivolous" appeals of his

(Judge Nottingham's) immediately payable

sanction orders;

(6) Judge Nottingham abused his

discretion or otherwise acted improperly

by applying D.C.COLO.LR 83.6P. (which is

unconstitutional on its face) to stay

Mr. Smith's client's civil rights case

and to vacate her jury trial date

"pending resolution of Plaintiff's

counsel's status";

(7) Judge Nottingham abused his

discretion or otherwise acted improperly

by refusing to dismiss the case on the

terms and conditions agreed to by the

parties and their attormeys in their

settlement and stipulation of

dismissal, including their agreement

that the sanctions imposed against Mr.

Smith would be vacated and/or dismissed

with prejudice nunc pro tunc to the date

of their imposition.

The Tenth Circuit issued its (June 12, 1996)

order and judgment affirming Judge

Nottingham's (January 17, 1995) memorandum

opinion and order without addressing the

arguments made by Mr. Smith in his opening

brief on appeal or giving any reasons for its

decision.

On August 19, 1996, Judge Nottingham

issued his order requiring Mr. Smith "to pay

the sanctions imposed in this case within ten

days of the date of this order." This order

was issued even though these sanctions had

already been settled by the parties and their

attorneys in a legally binding settlement

agreement in which Mr. Smith had been

released from payment of these sanctions to

the opposing party as a part of the

consideration for the settlement of the

underlying case.

On July 28, 1997, the Tenth Circuit

issued its order and judgment affirming Judge

Nottingham's (August 19, 1996) order. In his

opening brief on appeal, Mr. Smith made the

following arguments:

(1) By issuing his orders imposing

immediately payable attorney fees and

costs of approximately $25,000.00, and

other harsh and unjustified sanctions,

against Mr. Smith, Judge Nottingham, who

is demonstrably biased, engaged in

judicial misconduct which deprived Mr.

Smith of his liberty and property

interests in his good name, reputation,

honor and integrity, and in his right

to practice law and make a living, in

violation of his Fifth Amendment right

to due process of law;

(2) 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;

(3) Because of its previous orders

and judgments imposing harsh and

unjustified sanctions and discipline

against Mr. Smith, and its refusal to

provide a statement of reasons (if any),

addressing the issues raised and briefed

by Mr. Smith on appeal, for its order

and judgment affirming the orders issued

by Judge Nottingham imposing immediately

payable attorney fees and costs of

approximately $25,000.00, and other

harsh and unjustified sanctions, against

Mr. Smith, the Tenth Circuit's fairness

and impartiality might reasonably be

questioned;

(4) The Tenth Circuit was therefore

obligated to disqualify itself from this

case pursuant to 28 U.S.C. § 455(a);

(5) By failing or refusing to

disqualify itself from this 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;

(6) The Tenth Circuit also so far

departed from the accepted and usual

course of judicial proceedings, or so

far sanctioned such procedure by Judge

Nottingham, as to call for the exercise

of the Supreme Court’s power of

supervision;

(7) Judge Nottingham committed

reversible error, abused his discretion

or otherwise acted contrary to the fair

| and impartial administration of justice

| by issuing his (August 19, 1996) order

requiring Mr. Smith to pay the harsh and

unjustified sanctions of approximately

$25,000.00 previously imposed against

him to the opposing party within ten

days, even though these sanctions have

already been settled by the parties and

their attorneys in a legally binding

settlement agreement in which Mr. Smith

has been released from payment of these

sanctions to the opposing party as a

part of the consideration for the

settlement of the underlying case;

POU er aa SAR

(8) Judge Nottingham has thus

sadistically placed Mr. Smith in the

untenable position of having to obey his

transparently invalid order to pay these

harsh and unjustified sanctions to the

opposing party within ten days or run

the risk of being cited for contempt or

charged with a disciplinary violation.

The Tenth Circuit issued its (July 28, 1997) :

order and judgment affirming Judge |

Nottingham's (August 19, 1996) order without

addressing the arguments made by Mr. Smith in

his opening brief or giving any reasons for

its decision.

On September 24, 1997, the Tenth Circuit

issued its order denying Mr. Smith's petition

for rehearing and suggestion for rehearing en

banc of its (July 28, 1997) order and

judgment without addressing the arguments

raised by him therein or giving any reasons

for its decision.

II. ARGUMENT

By (1) issuing its (Jume 12, 1996) order

and judgment affirming Judge Nottingham's

(January 17, 1995) memorandum opinion and

order without addressing the arguments made

by Mr. Smith in his opening brief on appeal

or giving any reasons for its decision, (2)

issuing its (July 28, 1997) order and

judgment affirming Judge Nottingham's (August

19, 1996) order without addressing the

arguments made by Mr. Smith in his opening

brief or giving any reasons for its decision,

and (3) issuing its (September 24, 1997)

order denying Mr. Smith's petition for

rehearing and suggestion for rehearing en

banc of its (July 28, 1997) order and

judgment without addressing the arguments

= &

|

raised by him therein or giving any reasons

for its decision, the Tenth Circuit has

arbitrarily deprived Mr. Smith of his

statutory right to appeal and receive a full

and fair review of Judge Nottingham's final

decisions imposing harsh and unjustified

sanctions of approximately $25,000.00 against

him, in violation of his First Amendment

right to petition the government for a

redress of grievances and his Fifth Amendment

right to due process of law. See 28 U.S.C. §

1291 (which provides that "[t]he courts of

appeals . .. shall have jurisdiction of

appeals from all final decisions of the

district courts of the United States .

except where a direct review may be had in

the Supreme Court"); see also NAACP v.

Button, 371 U.S. 415, 83 S.Ct. 328, 9

L.Ed.2d 405 (1963) ("[{a]nd under the

conditions of modern government, litigation

may well be the sole practicable avenue open

to a minority to petition for redress of

grievances"); Brotherhood of Railroad

Trainmen v. Virginia, 377 U.S. 1, 84 S.Ct

1113, 12 L.Ed.2d 89 (1964); United Mine

Workers v. Illinois, 389 U.S. 217, 88 S.Ct.

353, 19 L.Ed.2d 426 (1967); United

Transportation Union v. State Bar of

Michigan, 401 U.S. 576, 91 S.Ct. 1076, 28

L.Ed.2d 339 (1971); California Motor

Transport Co. v. Trucking Unltd., 404 U.S.

508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972);

Logan v. Zimmerman Brush Co., 455 U.S. 422,

102 S.Ct. 1148, 71 L.Ed.2d 265 (1982); Bill

Johnson's Restaurants v. NLRB, 461 U.S. 731,

103 S.Ct. 2161, 76 L.Ed.2d 277 (1983); Sure-

Tan, Inc. v. NLRB, 467 U.S. 883, 104 S.Ct.

2803, 81 L.Ed.2d 732 (1984); Hon tor Co.

Ltd. v. Oberg, 512 U.S. 415, 114 S.Ct. 2331,

129 L.Ed.2d 336 (1994). These final

decisions have resulted in irreparable harm

to Mr. Smith, who has been suspended from the

=

practice of law since November 29, 1993,

pending payment of more than $50,000.00 in

harsh and unjustified sanctions previously

imposed against him by the Tenth Circuit and

the United States District Court for the

District of Colorado, including those imposed

against him by Judge Nottingham. See In re

bavia le. Smith 10 F.3d 723 (10th Cir.),

ext. denied, 513 U.S. 807, 115 S.Ct. 53, 130

L.Ed.2a 13 (1994). Further, since Mr. Smith

is financially unable to pay these harsh and

unjustified sanctions, he is being

indefinitely excluded from the practice of

law on an impermissible basis, i.e., on the

basis of his inability to pay harsh ani

unjustified sanctions of more than

$50,000.00, in violation of his Fifth

Amendment due process and equa’ protection

rights. See, e.g., Williams v. Illinois, 399

U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586

(1970); Morris v. Schoonfield, 399 U.S. 508,

_90 S.Ct. 2232, 26 L.Ed.2d 773 (1970); Tate

v. Short, 401 U.S. 395, 91 S.Ct. 668, 28

L.Ed.2d 130 (1971); Bearden v. Georgia, 461

U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221

(1983); see also Stack v. Boyle, 342 U.S. l,

_72 §.Ct.. 3, 96.%.88. 3 (1951). Fanaiiy,

since the unpublished sanction orders issued

by Judge Nottingham are not judicial

precedents under 10th Cir. R. 36.3. (which

provides that "[u]mpublished orders and

judgments of this court are not binding

precedents, except under the doctrines of law

of the case, res judicata, and collateral

estoppel"), the Tenth Circuit's reliance on

this Court's opinion in U.S. Bancorp Mortgage

Co. v. Bonner Mall Partnership, 513 U.S. 18,

115 S.Ct. 386, 130 L.Ed.2d 233 (1994) to

attempt to justify its issuance of

unpublished orders and judgments refusing to

vacate the unpublished sanction orders issued

by Judge Nottingham was clearly erroneous and

nie

eee

contrary to law. This was especially true

considering the devastating impact on Mr.

Smith of the Tenth Circuit's refusal to

vacate Judge Nottingham's unpublished

sanction orders.

Under all the circumstances, the Tenth

Circuit's fairness and impartiality might

reasonably be questioned. The Tenth Circuit

was therefore obligated to disqualify itself

from this case pursuant to 28 U.S.C. § 455(a)

(which provides that "“[a]ny justice, judge,

or magistrate of the United States shall

disqualify himself in any proceeding in which

his impartiality might reasonably be

questioned") and Canon 3 of the ABA Code of

Judicial Conduct (which provides that "[a]

judge should disqualify himself or herself in

a proceeding in which the judge's

impartiality might reasonably be

questioned"). See also Liteky v. United

States, 510 U.S. 540, 114 S.Ct. 1147, 127

L.Ed.2d 474 (1994). By failing or refusing

to disqualify itself from this case, the

Tenth Circuit has 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 Ame ‘ment right to

due process of law. See Arm « _v. Kennedy,

416 U.S. 134, 197, 94 S.Ct. i023, 40 L.Ed.2d

15 (1974) (White, J., concurring in part and

dissenting in part) ("the right to an

impartial decision-maker is required by due

process" in every case); Morrissey v. Brewer,

408 U.S. 471, 485-86, 92 S.Ct. 2593, 33

L.Ed.2d 484 (1972) (decisionmaker bias is

grounds for reversal); Mayberry v.

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

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

concurring) ("the appearance of evenhanded

justice ... is at the core of due

«Qo

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

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

(decisionmaker bias is grounds for reversal);

Offut +. United States, 348 U.S. 11, 75 S.Ct.

11, 9£ L.Ed. 11 (1954) (nor may a judge or

other ostensibly impartial decisionmaker

"give vent to personal spleen or respond to a

personal grievance" in reaching a decision).

The Tenth Circuit has also so far departed

from the accepted and usual course of

judicial proceedings, or sanctioned such a

departure by Judge Nottingham, as to call for

an exercise of this Court's supervisory

power; has decided important questions of

federal law that have not been, but should

be, settled by this Court; and has decided

important federal questions in a way that

conflicts with relevant decisions of this

Court.

III. CONCLUSION

Mr. Smith requests this Court to grant

his petition for a writ of certiorari, and

such other and further relief as may be just

under the circumstances.

Respectfully submitted,

=a

DAVID L. SMITH

1630 Welton Street, #300

Denver, Colorado 80202

(303) 534-0153

PRO SE ATTORNEY- PETITIONER

Co

APPENDIX

al., Case No. 95-1087 (10th Cir.) (Order and

Judgment Filed on Jume 12, 1996). ..... A-2

Vv i -Pacifi i

al., Civil Action No. 92 N 243 (U.S. District

Judge Edward W. Nottingham) (Order Filed on

RS Baa ee 6a RE KOK Gs CHC WHK Ce A-5

Vv isi - ific r

al., Case No. 96-1411 (10th Cir.) (Order

PSs. OG RE BOOT) ok Kc Seamer Heck hoa eG

in v i -~Pacifi ration t

al., Case No. 96-1411 (10th Cir.) (Order

Filed on September 24, 1997). ......... A-9

OUE.. Gin: Tee Bc TOES. nok oc hidieinic civveesdaar A-11

Ra: Ba Ws Bi Sh 6 ik o 6.6 66's dads 66 Ro A-12

Bae: ee Se SO ais 60 bd oe GK BRE ehh we Od A-13

ee. ee eat ee Bee “ae 0 ORNS 6 RE KKH SAS A-14

ee a i OG Sia i SSNs eR SRE 08 A-15

Canon 3, ABA Code of

REE, SU Sa 6k 6.506 KEK OMOEA KEES A-16

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

GEANA J. DUNKIN, [June 12, 1996]

Plaintiff,

Vv. No. 95-1087

(D.C. No. 92-N-243

LOUISIANA-PACIFIC (D. Colo.)

)

)

)

)

)

)

)

CORPORATION; JAMES )

BELDIN; DOUGLAS EDDINS, )

)

)

)

)

)

)

)

)

Defendants-Appellees,

DAVID L. SMITH,

Attorney-Appellant.

ORDER AND JUDGMENT

Before BALDOCK, HOLLOWAY, and BRORBY, Circuit

Judges.

A-2

*This order and judgment is not binding

precedent, except under the doctrines of law

of the case, res judicata, and collateral

estoppel. The court generally disfavors the

citation of orders and judgments;

nevertheless, an order and judgment may be

cited under the terms and conditions of 10th

Cas Be Beis

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.

Attorney-appellant David L. Smith

appeals sanction orders entered against him

by the district court and that court's

refusal to vacate those orders following the

parties' settlement of the underlying

lawsuit. Plaintiff-appellant Geana J. Dunkin

argues that the district judge should have

recused, that he interfered with the

attorney-client relationship, and that he

abused his discretion when he stayed her case

pending the resolution of her attorney's

disciplinary status.

We have reviewed the record in this case

and the briefs of the parties. We find that

the district court was well within its

discretion in imposing sanctions against Mr.

Smith. Mr. Smith's argument that previous

panels to this court were not frivolous has

been foreclosed by previous panels of this

court. See In re Smith, 10 F.3d 723, 724

(10th Cir. 1993), cert. denied, 115 S.Ct. 53

(1994). Ms. Dunkin's arguments regarding the

district court's refusal to recuse, its

alleged interference with the attorney-client

relationship, and its stay of her case became

moot when the parties settled their

underlying dispute.

Finally, the district court did not err

in refusing to vacate the previously imposed

sanctions. See

U.S. Bancorp Mortgage Co. v.

Bonner Mall Partnership, 115 S.Ct. 386, 393

(1994). This case does not present the

exceptional circumstances which, in some

instances, can support the vacatur of

previous sanctions. See id.; see also

Oklahoma Radio Assocs. v. FDIC, 3 F.3d 1436,

1444-45 (10th Cir. 1993).

The judgment of the United States

District Court for the District of Colorado

is AFFIRMED.

Entered for the Court

Wade Brorby

Circuit Judge

vinNiadalin aothibans betaine Bilin east

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Edward W. Nottingham

Civil Action No. 92 N 243 [August 19, 1996]

GEANA J. DUNKIN,

Plaintiff,

Vv.

LOUISIANA-PACIFIC CORPORATION, JAMES BELDIN,

and DOUGLAS EDDINS,

Defendants.

ORDER

This matter is before the court on the

mandate of the United States Court of Appeals

for the Tenth Circuit, filed in this court on

August 19, 1996. The court of appeals

affirmed this court's imposition of sanctions

upon Attorney David L. Smith. In order to

establish a date certain for payment of the

sanctions, it is

ORDERED that Mr. Smith shall pay the

sanctions imposed in this case within ten

days of the date of this Order.

Dated this 19th day of August, 1996.

BY THE COURT:

EDWARD W. NOTTINGHAM

United States District Judge

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UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

GEANA J. DUNKIN, [July 28, 1997]

Plaintiff,

No. 96-1411

(D.C. No. 92-N-243

(D. Colo.)

)

)

)

)

Vv. )

)

LOUISIANA-PACIFIC )

CORPORATION; JAMES )

BELDIN; DOUGLAS EDDINS, )

)

)

)

)

)

)

)

)

Defendants-Appellees,

DAVID L. SMITH,

Attorney-Appellant.

ORDER AND JUDGMENT’

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*This order and judgment is not binding

precedent, except under the doctrines of law

of the case, res judicata, and collateral

estoppel. The court generally disfavors the

citation of orders and judgments;

nevertheless, an order and judgment may be

cited under the terms and conditions of 10th

CSS... Bs. SGeds

Before KELLY and HENRY, Circuit Judges, and

DOWNES,*® District Judge.

After examining appellant's brief and

the 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.

On receipt of this court's mandate

arising from our affirmance of the district

court's imposition of sanctions against Mr.

Smith, see Dunkin v. Louisiana~Pacific Corp.,

No. 95-1087 (10th Cir. Jume 12, 1996), cert.

denied, 117 S.Ct. 435 (1996), the district

court entered an order establishing a date

certain for payment of the sanctions. Mr.

Smith appeals from that order, but does not

raise any issues relating to that order per

se. Instead, he raises arguments against the

imposition of sanctions that he raised in the

prior appeal. He also has moved for this

court's recusal from this matter and for en

banc consideration of recusal. These motions

were denied in orders filed on November 29

and December 27, 1996. Consideration of the

remaining issues is barred by law of the

case. See Rohrbaugh v. Celotex Corp., 53

F.3d 1181, 1183 (10th Cir. 1995).

AFFIRMED.

*The Honorable William F. Downes,

District Judge, United States District Court

for the District of Wyoming, sitting by

designation.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

GEANA J. DUNKIN, [September 24, 1997]

Plaintiff,

Vv. No. 96-1411

LOUISIANA-PACIFIC

CORPORATION; JAMES

BELDIN; DOUGLAS EDDINS,

Defendants-Appellees,

DAVID L. SMITH,

Attorney-Appellant.

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ORDER

Filed September 24, 1997

Before KELLY and HENRY, Circuit Judges, and

DOWNES,‘ District Judge.

Appellant's petition for rehearing is

denied by the panel that rendered the

decision.

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“The Honorable William F. Downes,

District Judge, United States District Court

for the District of Wyoming, sitting by

designation.

The suggestion for rehearing en banc was

transmitted to all of the judges of the court

who are in regular active service as required

by Fed. R. App. P. 35. No member of the

panel and no judge in regular active service

on the court requested that the court be

polled on rehearing en banc so the suggestion

for rehearing is also denied.

Entered for the Court

PATRICK FISHER,

Clerk of Court

by:

Deputy Clerk

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Amendment I of the Constitution of the

United States provides in pertinent part as

follows:

Congress shall make no law...

abridging . .. the right of the people

to petition the Government for a

redress of grievances.

Amendment V of the Constitution of the

United States provides in pertinent part as

follows:

No person shall .. . be deprived

of life, liberty, or property, without

due process of law.

28 U.S.C. § 455(a) provides as follows:

Any justice, judge, or magistrate

of the United States shall disqualify

himself in any proceeding in which his

impartiality might reasonably be

questioned.

28 U.S.C. § 1291 provides as follows:

The courts of appeals (other than

the United States Court of Appeals for

the Federal Circuit) shall have

jurisdiction of appeals from all final

decisions of the district courts of the

United States, the United States

District Court for the District of the

Canal Zone, the District Court of Guam,

and the District Court of the Virgin

Islands, except where a direct review

may be had in the Supreme Court. The

jurisdiction of the United States Court

of Appeals for the Federal Circuit shall

be limited to the jurisdiction described

in sections 1292(c) and (d) and 1295 of

this title.

10th Cir. R. 36.3. provides as follows:

Unpublished orders and judgments of

this court are not binding precedents,

except under the doctrines of law of the

case, res judicata, and collateral

estoppel. Citation of unpublished

orders and judgments is not favored.

Nevertheless, an unpublished decision

may be cited if it has persuasive value

with respect to a material issue that

has not been addressed in a published

Opinion and it would assist the court in

its disposition. A copy of the decision

must be attached to the brief or other

document in which it is cited, or, if

cited in oral argument, provided to the

court and all other parties.

Canon 3 of the ABA Code of Judicial

Conduct provides in relevant part as follows:

A judge should disqualify himself

or herself in a proceeding in which the

judge's 1 Ng might reasonably be

questioned. .