PUBLISH
UNITED STATES COURT OF APPEALS
Filed 7/23/96
TENTH CIRCUIT
____________________________________
LINDA C. HOWARD,
Plaintiff-Appellant,
v. 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.
_________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 93-D-1895)
_________________________________
Submitted on the briefs: *
*
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.
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.
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
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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-Well Envelope Co., 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. ___, 116 S. Ct. 510 (1995).
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,
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525 (D. Colo. 1996). Both Ms. Howard and Mr. Smith appealed the stay order,
but we dismissed their appeal for lack of jurisdiction. Howard v. Mail-Well
Envelope Co., No. 94-1317 (10th Cir. Nov. 15, 1994); see Howard, 164 F.R.D. at
525. In our order, we referred appellees' motion for sanctions on appeal to a
Tenth Circuit disciplinary panel. Id. The disciplinary panel granted appellees'
motion, awarded double costs and attorney fees, and remanded the case to the
district court to determine the amount of attorney fees to be awarded. Howard v.
Mail-Well Envelope 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 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.
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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. Howard v. Mail-Well
Envelope Co., No. 95-1428 (10th Cir. Feb. 26, 1996). The jurisdictional panel
also dismissed Mr. Smith's challenge to the district court's decision to terminate
his representation of Ms. Howard and to no longer accept filings signed by Mr.
Smith. Id.; see Richardson-Merrell, Inc. v. Koller, 472 U.S. 424 (1985) (order
disqualifying counsel in a civil case is not immediately appealable); 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.
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II
As a threshold matter, we must determine whether we have jurisdiction
over this appeal in light of the fact that Ms. Howard's case is still pending in
district court. In G.J.B. & Assocs., Inc. v. Singleton, 913 F.2d 824, 827 (10th Cir.
1990), we "join[ed] the majority of circuit courts that have addressed the issue
and [held] that a sanction order against an attorney currently of record is not a
final decision for purposes of a § 1291 appeal where the underlying controversy
remains unresolved." We also held such an order is not appealable under the
collateral-order doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541
(1949), G.J.B. & Assoc., 913 F.2d at 827-29, which the Supreme Court has
recently explained "is best understood not as an exception to the 'final decision'
rule laid down by Congress in § 1291, but as a 'practical construction' of it."
Digital Equip. Corp. v. Desktop Direct, Inc., ___ U.S.___, ___, 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
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judgment"); see also Uselton v. Commercial Lovelace Motor Freight, Inc., 9 F.3d
849, 854 (10th Cir. 1993) (attorneys have standing to appeal orders issued directly
against them, but lack standing to appeal orders applicable only to their clients).
Similarly, in Dickstein, 971 F.2d at 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 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
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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." Id. at 492.
We have no difficulty concluding the order challenged in this case does not
amount to a "final decision[] of the district[] court" within the meaning of 28
U.S.C. § 1291. See Stubblefield, 74 F.3d at 995-96 (a "final decision of the
district court ... 'ends the litigation on the merits and leaves nothing more for the
court to do but execute the judgment'") (quoting Digital Equip., ___ U.S. at ___,
114 S. Ct. at 1995 (citation and internal quotation marks omitted)). Furthermore,
in light of our decisions in G.J.B. & Associates, Dickstein, and Johnson, we also
conclude we lack jurisdiction over Mr. Smith's interlocutory challenge to the
district court's decision under the collateral-order doctrine for three reasons: First
and foremost, we see no meaningful distinction between Mr. Smith's position and
that of Mr. Dickstein. As in Dickstein, Mr. Smith no longer represents a party in
the litigation, but faces the stigma of a ruling that reflects negatively on his
competence and conduct. However, as was also the case in Dickstein, the
decision Mr. Smith now challenges may be effectively reviewed in an appeal from
a final judgment, even if the parties settle their dispute or otherwise elect not to
appeal.
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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 (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
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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, in
a unanimous en banc decision, that "[a]ttorneys 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." D&H Marketers, Inc. v.
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 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
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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 (1st 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 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.
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