F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 11 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
KRIS and CAROLE ELLEN
TEAFORD, Husband and Wife,
Plaintiffs,
v. No. 03-3070
FORD MOTOR COMPANY, a
Delaware corporation; and TRW
VEHICLE SAFETY SYSTEMS, INC.,
an Ohio corporation,
Defendants.
_________________________
CHERIE M. CHAPPELL,
Movant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. NO. 01-CV-1006-MLB)
Submitted on the Briefs *
Cherie M. Chappell, Edmond, Oklahoma, pro se.
*
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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Before TACHA , Chief Circuit Judge, McKAY , and McCONNELL , Circuit
Judges.
McCONNELL , Circuit Judge.
Cherie M. Chappell, an Oklahoma attorney, appeals pro se a district judge’s
order refusing to reconsider his earlier referral of Ms. Chappell’s conduct to the
Oklahoma Bar Association. We dismiss the appeal for lack of jurisdiction.
Ms. Chappell was co-counsel for the plaintiffs in a products liability action
arising out of a Ford Explorer rollover following a tire blowout. Ms. Chappell
filed the initial complaint in the District of Kansas, but the case was transferred to
the Southern District of Indiana, where federal cases involving Ford vehicles and
Firestone tires were being consolidated. The plaintiffs relied on attorneys other
than Ms. Chappell to handle the case in Indiana, and the case was eventually
settled. Ms. Chappell had a disagreement with her former co-counsel, a Mr.
Nelson, over the division of attorney’s fees, and Mr. Nelson filed a motion in
Indiana to have the court resolve the fee dispute. In response, Ms. Chappell filed
a motion to set aside the settlement for reasons of fraud, in which she claimed to
have discovered evidence that the plaintiffs (her former clients) had, with the
knowledge of Mr. Nelson, staged the accident in order to avoid trial on an
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unrelated criminal charge. The case was transferred back to the District of
Kansas for resolution of Ms. Chappell’s motion and the fee dispute.
The district court held a hearing on Ms. Chappell’s allegations on November
4, 2002. Ms. Chappell testified that Kenneth Poland, a Texas criminal lawyer and
Ms. Chappell’s father, had discovered that Mr. Nelson was representing one of the
plaintiffs, Carole Teaford, in a criminal matter at the time of the accident and that
the criminal trial was continued on account of the serious injuries that Mrs.
Teaford had sustained in the accident. Ms. Chappell argued that these facts
supported an inference that Mrs. Teaford had staged the accident in order to avoid
trial on the criminal charges. After extensive testimony from Ms. Chappell, Mr.
Poland, and other witnesses, the district court concluded that there was no
evidence to support Ms. Chappell’s fraud allegations. The court invited Mr.
Nelson and other parties and counsel who had incurred costs in defending against
Ms. Chappell’s allegations to move for sanctions against her. Finally, the judge
stated that he would send copies of the transcript to disciplinary authorities in
Oklahoma, where Ms. Chappell is licensed, and Texas.
On November 15, 2002, the district judge sent a letter to the General
Counsel of the Oklahoma Bar Association. The letter stated, in relevant part,
I have enclosed a transcript from a hearing recently held in my court.
Cherie Chappell, an Oklahoma attorney, testified at the hearing. Ms.
Chappell is not admitted in Kansas. If she was a Kansas attorney, I
would refer the matter of her conduct in this case to the Kansas
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Disciplinary Administrator. Since she is not, I am submitting the
matter to you for your consideration and appropriate action.
Copies of the letter were also sent to the attorneys of record in the case, and a
copy was placed in the district court docket. The judge sent a similar letter, with
the enclosed transcript, to the disciplinary authority in Texas, where Mr. Poland is
licensed, regarding his testimony at the hearing.
Mr. Poland filed a complaint of judicial misconduct pursuant to the
procedures outlined in 28 U.S.C. § 372(c) (repealed Nov. 2, 2002), contending
among other things that the judge should have provided Mr. Poland a due process
hearing before filing a grievance against him with the Texas disciplinary board.
Chief Judge Tacha found the complaint to be without merit and frivolous, stating
that she was unaware of any authority that required the judge to provide Mr.
Poland any form of due process before referring him to a disciplinary board.
Ms. Chappell filed a motion to reconsider with the district court making the
same argument, namely, that the district judge was required to provide Ms.
Chappell with notice and a hearing before imposing Rule 11 sanctions on her and
referring her conduct to a disciplinary board. The district court denied the motion
on the grounds that he had not imposed Rule 11 sanctions on Ms. Chappell and
that no due process hearing was required. Ms. Chappell now appeals the district
court’s denial of her motion to reconsider.
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Before addressing Ms. Chappell’s appeal on the merits, we must consider, as
a threshold matter, whether we have jurisdiction. See Fed. R. Civ. P. 12(h)(3)
(“Whenever it appears by suggestion of the parties or otherwise that the court
lacks jurisdiction of the subject matter, the court shall dismiss the action.”).
Appellate jurisdiction in this case requires that the district court order from which
Ms. Chappell appeals must amount to a sanction sufficiently injurious to Ms.
Chappell to give her standing to appeal. United States v. Gonzales , No. 01-2186,
2003 WL 21036431, at *2 (10th Cir. Apr. 29, 2003), petition for reh’g and reh’g
en banc filed (July 21, 2003). Put another way, if the district court’s letter to the
Oklahoma Bar Association does not rise to the level of a sanction order, then Ms.
Chappell has “nothing from which to appeal,” and we lack jurisdiction. Id.
In her motion urging the district court to reconsider and in her appellate
brief, Ms. Chappell characterizes the district court’s letter to the Oklahoma Bar
Association as a sanction under Fed. R. Civ. P. 11(c)(1)(B). However, the district
court, in its denial of Ms. Chappell’s motion to reconsider, stated that its letter was
not a Rule 11 sanction: “Attorney Chappell’s motion to reconsider demonstrates a
complete misunderstanding of this court’s rulings at the November 4, 2002
hearing. The court did not impose Fed. R. Civ. P. 11(c)(1)(B) sanctions against
Chappell . . . . The court’s decision to refer Chappell’s conduct to the Oklahoma
bar association was not a Rule 11 sanction . . . .”
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We agree with the district court. The district court’s reference of this matter
to the disciplinary committee of the bar was not tantamount to a finding of
misconduct, let alone imposition of a sanction. Any participant in the litigation, or
member of the general public, has the right to bring allegations of lawyer
misconduct to the attention of the bar. See Rules Governing Disciplinary
Proceedings R. 5.1(a), reprinted in Okla. Stat. tit. 5, ch. 1, app. 1-A at 136 (West
2001) (General Counsel may initiate a disciplinary investigation based on
allegations from any source). Presumably, Ms. Chappell will receive all the due
process to which she is entitled, before there is either a finding of misconduct or
the imposition of sanctions. Because the referral letter reflects only the judge’s
suspicion that violations may have occurred, it is analogous not to a censure or
reprimand but to an order to show cause why sanctions should not be imposed.
Such orders are not appealable. Mancuso v. Indiana Harbor Belt R.R. , 568 F.2d
553, 554 (7th Cir. 1978). Although an order to show cause may imply judicial
disapproval that may harm the attorney’s reputation, no actual sanction has been
imposed.
The same is true here. The judge’s referral letter makes no specific finding
of misconduct, nor does it express any opinion of Ms. Chappell’s actions. 1
The
1
Ms. Chappell has appealed only the decision to refer the incident to the
disciplinary committee of the bar, and not any other comments or statements that
(continued...)
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letter simply states that the judge is enclosing the transcript, that Ms. Chappell is
licensed in Oklahoma, and that therefore the judge is “submitting the matter for
[the board’s] consideration and appropriate action.” To be sure, a referral to a
disciplinary board, even unaccompanied by specific findings, may imply some
level of judicial disapproval of the attorney’s conduct and may affect the
attorney’s reputation. However, the judgment implicit in such a letter is below the
level of a censure or specific finding of misconduct. Rather, the letter amounts to
a suggestion that a violation of rules of conduct may have occurred, leaving
further consideration, investigation, and judgment to the disciplinary board.
Because the district judge’s referral to the Oklahoma Bar Association is neither an
implicit nor an explicit finding of misconduct, it is not an appealable sanction.
In Gonzales , the district court made a finding of attorney misconduct in the
context of a suppression motion in a criminal case. A panel of this Court held
unappealable a subsequent written order of the district court, entered after
conviction and sentencing, restating that finding but imposing no other formal
sanction. 2003 WL 21036431 at *3. It follows a fortiori that the mere referral of
1
(...continued)
might have been made in the course of the proceeding. Although the transcript of
the proceeding was attached to the referral letter, Ms. Chappell did not make the
transcript part of the record in this appeal, and we need not address it. See 10th
Cir. R. 10.3(B).
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a matter to the disciplinary committee, without any finding of misconduct, is not
appealable.
We recognize that the Advisory Committee Notes to the 1993 amendments
to Rule 11 provide that “referring the matter to disciplinary authorities” is one
among a “variety of possible sanctions” that may be imposed. But it does not
follow that all such referrals are automatically “sanctions.” The Advisory
Committee Notes also list “issuing an admonition, reprimand, or censure” among
possible sanctions, yet some courts have held that a judicial reprimand,
unaccompanied by monetary penalties, is not an appealable sanction. See Bolte v.
Home Ins. Co., 744 F.2d 572, 572-73 (7th Cir. 1984); In re Williams, 156 F.3d 86,
91-92 (1st Cir. 1998). The circuit courts have taken a range of positions on when
a court’s finding of attorney misconduct unaccompanied by imposition of
monetary penalties is an appealable sanction. See, e.g. , Bolte , 744 F.2d at 572-73
(an order specifically finding attorney misconduct, but imposing no monetary
liability, is not appealable); Williams , 156 F.3d at 91-92 (judicial comments
finding attorney misconduct but not expressly identified as a sanction are not
appealable); Weissman v. Quail Lodge, Inc. , 179 F.3d 1194, 1200 (9th Cir. 1999)
(a finding of attorney misconduct is appealable only if expressly identified as a
formal reprimand); United States v. Talao , 222 F.3d 1133, 1138 (9th Cir. 2000) (a
formal finding of violation of a specific rule of conduct is an appealable sanction);
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Precision Specialty Metals, Inc. v. United States , 315 F.3d 1346, 1352 (Fed Cir.
2003) (formal, explicit reprimand, finding violation of Rule 11, is appealable);
Walker v. City of Mesquite , 129 F.3d 831, 832-33 (5th Cir. 1997) (a written
finding of attorney misconduct imposing no monetary or other sanction is
appealable). Our recent decision in Gonzales expressly avoided taking a position
on this question. 2003 WL 21036431 at *3. However, even the broadest
understanding of what constitutes an appealable sanction requires a finding of
misconduct. Walker , 129 F.3d at 832-33. There was no such finding here.
The appeal is DISMISSED.
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