Howard v. Mail-Well Envelope Co.

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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