F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUN 29 1998
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
LINDA C. HOWARD,
Plaintiff,
v. No. 97-1297
MAIL-WELL ENVELOPE
COMPANY, BUTLER PAPER
COMPANY, GEORGIA-PACIFIC
CORPORATION, GREAT
NORTHERN NEKOOSA
CORPORATION EMPLOYEE
PROTECTION PLAN,
Defendants-Appellees,
DAVID L. SMITH,
Attorney-Appellant.
JAMES EDWARD QUALLS,
Plaintiff,
v. No. 97-1392
REGIONAL TRANSPORTATION
DISTRICT; RICHARD BAUMAN;
ROBERT GARSIDE; RICHARD
REYNOLDS; ELLSWORTH
WALKER; and JAMES MISEK,
Defendants-Appellees,
DAVID L. SMITH,
Attorney-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. Nos. 93-D-1895 & 91-Z-989)
Submitted on the briefs:
David L. Smith, Pro se Attorney-Appellant.
Brian M. Mumaugh, Jeffrey T. Johnson, of Holland & Hart, Denver, Colorado,
for Defendants-Appellees Mail-Well Envelope Co., Butler Paper Co., and Georgia
Pacific Corp., and Randall A. Constantine, of Elrod & Thompson, Atlanta,
Georgia, for Great Northern Nekoosa Corporation Employee Protection Plan.
Dana N. Mumey, Associate General Counsel, and Erica A. Weber, Assistant
General Counsel, Regional Transportation District, Denver, Colorado, for
Defendant-Appellee Regional Transportation District.
Before BALDOCK , EBEL , and MURPHY .
PER CURIAM .
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Attorney-appellant David L. Smith appeals from adverse decisions in two
separate district court proceedings in which he served for a time as plaintiff’s
counsel. Because these appeals concern interrelated orders and similar issues,
the hearing panel has combined them for disposition. 1
We also announce, with
the full participation of the en banc court, general restrictions on Mr. Smith’s
future appellate filings based on his history of repetitive, meritless litigation in
this court.
These appeals may be put in perspective with some factual and procedural
background common to both. Much of the information particularly relevant to
these proceedings is recited in prior related decisions of this court. See generally
Howard v. Mail-Well Envelope Co. , 90 F.3d 433 (10th Cir. 1996); Qualls v.
Regional Transp. Dist. , Nos. 95-1385, 95-1459, 95-1489, 1996 WL 412414
(10th Cir. July 23, 1996). A broader discussion of Mr. Smith’s litigious history in
this court is included in the last section of this opinion, relating to the proposed
filing restrictions.
Mr. Smith was suspended from practice before this court in November
of 1993. Thereafter, the district judge entered orders in both of these cases
1
After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of these appeals. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9.
The cases are therefore ordered submitted without oral argument.
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staying proceedings pending a determination of his practice status in the United
States District Court for the District of Colorado. Mr. Smith immediately
appealed from the stay orders, but this court dismissed his interlocutory appeals
for lack of jurisdiction, awarded appellate sanctions to appellees, and remanded
for a determination of an appropriate amount.
In the meantime, Mr. Smith was suspended from practice in the district
court. Consequently, the district judge lifted the extant stays, acknowledged that
Mr. Smith was no longer authorized to appear as counsel, and directed the
plaintiffs to secure new legal representation or notify the court of their intention
to prosecute their cases pro se. Mr. Smith immediately appealed again,
challenging these actions as well as various sanctions imposed against him.
These interlocutory appeals were also dismissed for lack of jurisdiction. 2
Ultimately, the parties settled their differences by written stipulation, and
the district court entered judgments of dismissal in both cases. Mr. Smith, who
personally takes issue with these stipulated dispositions, subsequently filed the
instant appeals. Further details relating to the proceedings are included in the
discussion of each appeal below.
2
Eventually Mr. Smith did secure appellate review of certain orders
issued in Qualls v. Regional Transportation District, D.C. No. 91-Z-989, by
repeatedly filing notices of appeal, some of which were received, properly, after
entry of final judgment in the case. See Qualls, 1996 WL 412414, at **1.
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I
In Howard v. Mail-Well Envelope Company , No. 97-1297, Mr. Smith
directly appeals from the district court’s judgment dismissing the case pursuant
to the parties’ stipulation following his withdrawal as plaintiff’s counsel.
Mr. Smith raises a host of issues. Some of these he lacks standing to assert, many
more are simply redundant, and all are, ultimately, meritless.
First of all, as a general matter, Mr. Smith argues that the district court
lacked jurisdiction to enter any of the challenged orders after he had taken two
interlocutory appeals to this court in the case. It is axiomatic that an effective
notice of appeal transfers jurisdiction from the district court to the court of
appeals. See Stewart v. Donges , 915 F.2d 572, 575 (10th Cir. 1990). However,
there are pertinent limitations on this transfer of jurisdiction.
First, no transfer occurs if the appeal is taken from a nonappealable order.
See United States v. 397.51 Acres of Land , 692 F.2d 688, 693 (10th Cir. 1982);
Riggs v. Scrivner, Inc. , 927 F.2d 1146, 1148 (10th Cir. 1991) ; see also Stewart ,
915 F.2d at 575 (noting transfer of jurisdiction by appeal “from true final
judgment or from a decision within the collateral order exception”). Second,
the transfer affects only those aspects of the case involved in the appeal. See
Stewart , 915 F.2d at 575. Thus, when an appeal is taken from a limited
interlocutory ruling, as opposed to one that affects the litigation as a whole, the
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district court may proceed with the case. Compare Colorado v. Idarado Mining
Co. , 916 F.2d 1486, 1490 & n.2 (10th Cir. 1990), with Stewart , 915 F.2d at 576.
Conversely, even a general appeal does not divest the district court of jurisdiction
over peripheral, collateral matters such as attorneys’ fees. See Stewart , 915 F.2d
at 575 n.3 (following Garcia v. Burlington N. R.R. , 818 F.2d 713, 721 (10th Cir.
1987)).
It is evident from a review of the interlocutory appeals cited by Mr. Smith
that these exceptions to the jurisdictional rule he relies on are clearly operative
here. As the district court has already explained, the cited appeals challenged
matters that were of limited scope relative to the litigation as a whole and were,
in any event, not immediately appealable--indeed, this court has already
confirmed the latter conclusion by its disposition of the appeals. See Howard ,
90 F.3d at 435-37 (dismissing appeal No. 95-1428 for lack of an appealable
order, and noting previous jurisdictional dismissal of Howard v. Mail-Well
Envelope Co. , No. 94-1317 (10th Cir. Nov. 15, 1994)). Thus, the district court
properly proceeded with the case.
Turning now to more specific objections, Mr. Smith contends that by
disqualifying him, the district court deprived the plaintiff of her First and Seventh
Amendment rights. However, Mr. Smith has standing to raise only issues which
concern his own personal interests; grievances he perceives and attributes to a
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former client are not properly within the scope of this appeal. Compare Uselton
v. Commercial Lovelace Motor Freight, Inc. , 9 F.3d 849, 854-55 (10th Cir. 1993)
(attorney cannot personally appeal orders applicable only to party), with Riggs ,
927 F.2d at 1149 (attorney may appeal orders issued directly against him) .
Mr. Smith’s next claim, that the parties’ stipulation and the judgment
entered thereon deprived him of the benefit of attorneys’ fees under 42 U.S.C.
§ 1988, suffers from a related standing deficiency:
The Supreme Court has made it clear that, in general, statutes
bestow fees upon parties, not upon attorneys. Those fees can,
therefore, be waived by the party himself. As the Court has said,
“just as we have recognized that it is the party’s entitlement to
receive the fees in the appropriate case, so have we recognized that
as far as [42 U.S.C. § 1988] is concerned, it is the party’s right to
waive, settle, or negotiate that eligibility.” Thus, the attorney
remains at the mercy of the client, who can either demand attorneys’
fees from the defendant, or not, as he chooses. If the client chooses
not to ask for the fees, the attorney has no standing to request them.
United States ex rel. Virani v. Jerry M. Lewis Truck Parts & Equip., Inc. , 89 F.3d
574, 577 (9th Cir. 1996) (citations omitted; alteration in original); see Benitez v.
Collazo-Collazo , 888 F.2d 930, 933 (1st Cir. 1989) (“The ‘prevailing party’
language [of § 1988] makes it patently obvious that it is the prevailing party, not
the party’s counsel, who is entitled to be awarded fees[,]” and, hence, “only the
party, and not the attorney, has standing to appeal any such grant or denial.”);
see also Uselton , 9 F.3d at 854-55 (citing “client’s entitlement to attorneys’ fees
from opposing party” as example of order client, but not counsel, may appeal).
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Under these same principles, Mr. Smith may challenge the sanctions
imposed against him. See, e.g. , Riggs , 927 F.2d at 1149. However, his
objections to the legal basis for sanction is precluded by this court’s prior
decision directing the district court to take such punitive action. See Howard ,
90 F.3d at 435. Thus, the only sanction issue before us at this point is whether
the district court’s calculation of the amount was proper. See id. Mr. Smith’s
argument in this regard that the district court’s reliance on the defendants’
application and supporting documentation was somehow improper--when he had
filed no objection to these materials--is meritless.
Mr. Smith also complains that he was not given an adequate opportunity
to be heard with respect to his disqualification as plaintiff’s counsel. Given his
formal suspension from practice necessitating the disqualification, this objection
is frivolous. Similarly meritless is his completely unsubstantiated accusation of
bias on the part of the trial judge.
As noted at the outset, Mr. Smith raises a host of overlapping, repetitious,
and conclusory objections. Whether or not each has been expressly included in
the above discussion, we have considered all of the issues raised in this appeal
and have concluded that Mr. Smith is not entitled to any relief.
Defendants have requested that they be dismissed from further proceedings
in this case, asserting that they “have no interest in the outcome of this appeal by
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Smith.” Defendants’ Br. at 2. As Mr. Smith’s appeal involves a sanction payable
to defendants, who have not formally settled or released the obligation, we deny
their request, but hereby direct that they need not respond to any further filings
herein absent an order from this court.
II
In Qualls v. Regional Transportation District , No. 97-1392, Mr. Smith
appeals from the district court’s denial of a Fed. R. Civ. P. 60(b) motion he filed
on his own behalf. As described above, the district court entered judgment on
stipulation of the parties at a time when, due to professional discipline, Mr. Smith
no longer represented the plaintiff. Notwithstanding this formal dissociation from
the case, Mr. Smith later attempted, unsuccessfully, to challenge the judgment
under Rule 60(b). We review the district court’s decision solely for abuse of
discretion, see Stubblefield v. Windsor Capital Group , 74 F.3d 990, 994 (10th Cir.
1996), and affirm.
There is no need to delve into detail here. Although appealing from the
denial of his Rule 60(b) motion, Mr. Smith devotes a substantial portion of his
brief to rehashing complaints about his previous sanctions, disqualification, and
discipline. (Indeed, the argument actually directed at the Rule 60(b) ruling is so
perfunctory that he never even discusses the substantive basis for the motion.)
Much of what we have already said above, and decided in Qualls v. Regional
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Transportation District , Nos. 95-1385, 95-1459, 95-1489, 1996 WL 412414
(10th Cir. July 23, 1996), applies also to these stale and conclusory objections.
Mr. Smith has clearly not demonstrated any abuse of the district court’s
discretion. Furthermore, we note that his Rule 60(b) motion was patently out
of time. The cause of action was dismissed with prejudice on October 10, 1995,
but Mr. Smith did not file his motion until September 26, 1997. Nothing he has
argued on appeal would justify invocation of those grounds in Rule 60(b)(4) - (6)
which permit filing beyond the one-year deadline otherwise imposed by the Rule.
For the foregoing reasons, the judgments of the United States District Court
for the District of Colorado are AFFIRMED.
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Prospective Filing Restrictions
Before SEYMOUR, Chief Judge , PORFILIO, ANDERSON, TACHA,
BALDOCK, BRORBY, EBEL, KELLY, HENRY, BRISCOE, LUCERO, and
MURPHY, Circuit Judges.
Mr. Smith has a long history with this court marred by repetitive, frivolous
filings and general abuse of the judicial process. This well-documented course
of misconduct began during his tenure as a practicing attorney, prompting the
imposition of numerous monetary sanctions, his suspension from Tenth Circuit
practice, and ultimately his disbarment by this court. 3
See generally In re
David L. Smith , 76 F.3d 335 (10th Cir. 1996) (ordering disbarment); In re David
L. Smith , 10 F.3d 723 (10th Cir. 1993) (ordering suspension); DeHerrera v. City
& County of Denver ex rel. Bd. of Water Comm’rs , Nos. 93-1070, 93-1139, 1993
WL 359691 (10th Cir. Sept. 3, 1993) (imposing monetary sanction); Casillan v.
Regional Transp. Dist. Amalgamated Transit Union, Local 1001 , Nos. 92-1009,
92-1039, 1993 WL 8732 (10th Cir. Jan. 15, 1993) (same). While such
disciplinary steps have curtailed Mr. Smith’s professional misfeasance, they do
not address his similar abuse of the judicial process as a litigant in his own right.
3
The United States Supreme Court has also disbarred Mr. Smith. See
In re Disbarment of David L. Smith, 516 U.S. 984, 116 S. Ct. 510 (1995).
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Since his suspension and disbarment, Mr. Smith has pressed on as a litigant
with the same pattern of meritless, repetitive litigation that led to his professional
censure. Jurisdictional dismissals and summary affirmances in this regard, often
in successive appeals from the same litigation which prompted his professional
discipline, have become commonplace. See, e.g. , Howard , 90 F.3d 433; Qualls ,
Nos. 95-1385, 95-1459, 95-1489, 1996 WL 412414; DeHerrera v. City & County
of Denver ex rel. Bd. of Water Comm’rs , No. 95-1110, 1996 WL 316473
(10th Cir. June 12, 1996); Casillan v. Regional Transp. Dist. , No. 93-1158,
1993 WL 521053 (10th Cir. Dec. 14, 1993). Further, Mr. Smith’s pro se filings
have involved the same substantive redundancy as his professional efforts.
See, e.g. , Dunkin v. Louisiana-Pacific Corp. , No. 96-1411, 1997 WL 447327
(10th Cir. July 28, 1997), cert. denied , 118 S. Ct. 884 (1998); Dunkin v.
Louisiana-Pacific Corp. , No. 95-1087, 1996 WL 316467 (10th Cir. June 12,
1996); In re David L. Smith , Nos. 95-1119, 95-1091, 1996 WL 67191 (10th Cir.
Feb. 16, 1996). This court has on previous occasions warned Mr. Smith that his
continued engagement in repetitious pro se litigation could lead to additional
personal sanctions. See, e.g. , Saathoff v. Filenet Corp. , No. 95-1206, 1996 WL
294211 (10th Cir. June 4, 1996); In re David L. Smith , 1996 WL 67191. Indeed,
a panel of this court has already ordered the clerk not to accept any more
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successive filings by Mr. Smith contesting his disbarment. See Smith v. United
States District Court , No. 98-1030 (Orders filed April 9 and May 13, 1998).
Evidently, neither professional discipline nor personal sanction has
impressed upon Mr. Smith the essential underlying problem. Initially as counsel,
and now as pro se litigant, he has “engaged in a pattern of litigation activity
which is manifestly abusive” and thereby “strained the resources of this court.”
Winslow v. Hunter (In re Winslow) , 17 F.3d 314, 315 (10th Cir. 1994) (quotation
omitted). Accordingly, “based on [Mr. Smith’s] appellate filings history and
abuse of the appellate process, we have sua sponte decided to impose restrictions
on [his] future filings in this court . . . commensurate with our inherent power to
enter orders necessary and appropriate in aid of our jurisdiction under [28 U.S.C.]
§ 1651.” Werner v. Utah , 32 F.3d 1446, 1448 (10th Cir. 1994) (quotations
omitted); see also Cauthon v. Rogers , 116 F.3d 1334, 1337 (10th Cir. 1997);
Schlicher v. Thomas , 111 F.3d 777, 780-81 (10th Cir. 1997).
Mr. Smith is hereby enjoined from proceeding as an appellant, or as
a petitioner in an original proceeding, without the representation of a licensed
attorney admitted to practice in this court, unless he first obtains permission
to proceed pro se. To do so, he must take the following steps:
1. File a petition with the clerk of this court requesting leave to file
a pro se proceeding;
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2. Include in the petition the following information:
a. A list, by case name, number, and citation where applicable, of all
proceedings currently pending or filed previously in this court, with a statement
indicating the nature of his involvement in, and the current status or disposition
of, each proceeding;
b. A list, by case name, number, and citation where applicable, of all
assessments of attorneys’ fees, costs, or other monetary sanction against him
arising out of any federal court matter, with a brief explanation of the
circumstances surrounding each assessment and a statement apprising this court
whether and when the assessment was paid;
c. A list, by case name, number, and citation where applicable, of all
outstanding injunctions, contempt orders, or other judicial directions limiting his
access to any state or federal court, including injunctions, orders, or other
directions requiring him to be represented by an attorney or seek leave to file
matters pro se.
3. File with the clerk a notarized affidavit, in proper legal form, which
recites the issues he seeks to present, including a particularized description of the
order or ruling being challenged and a short statement of the legal basis asserted
for the challenge. The affidavit must also certify, to the best of his knowledge,
that the legal arguments advanced are not frivolous or made in bad faith; that they
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are warranted by existing law or a good faith argument for the extension,
modification, or reversal of existing law; that the appeal or other proceeding is
not interposed for any improper purpose; and that he will comply with all federal
appellate rules and local rules of this court.
These documents shall be submitted to the clerk of the court, who shall
forward them to the chief judge for review to determine whether to permit the
pro se appeal or other proceeding. Without the chief judge’s approval, the matter
will not proceed. If the chief judge approves the submission, an order will be
entered indicating that the matter shall proceed in accordance with the Federal
Rules of Appellate Procedure and the Tenth Circuit Rules. Only at that juncture
will the appeal or other proceeding formally be filed in this court.
Mr. Smith shall have ten days from the date of this opinion to file written
objections, limited to fifteen pages, to these proposed restrictions. Unless this
court orders otherwise upon review of any objections, the restrictions shall take
effect thirty days from the date of this opinion and shall apply to any matter filed
by Mr. Smith with this court after that time.
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