IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-30479
_____________________
OSCAR SMITH, JR
Plaintiff
v.
SHEILA E WINDALL, Secretary of the United States Air
Force
Defendant-Appellee
v.
KENNETH MICHAEL PLAISANCE
Intervenor Plaintiff-
Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(96-CV-2617)
_________________________________________________________________
April 4, 2000
Before KING, Chief Judge, and GARWOOD and DeMOSS, Circuit Judges.
PER CURIAM:*
Intervenor Plaintiff-Appellant Kenneth Michael Plaisance
appeals the district court’s judgment dismissing some of the
claims in Plaintiff Oscar Smith, Jr.’s civil rights action with
prejudice and dismissing the remainder without prejudice.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Because we find that Plaisance lacks standing to pursue this
appeal, we DISMISS.
I.
On August 8, 1996, Plaintiff Oscar Smith filed a civil
rights action against Defendant-Appellee Sheila Windall, in her
capacity as Secretary of the United States Air Force (the
“Secretary”). Smith, an African-American male, was a civil
servant in the Air Force. After his employment was terminated,
Smith brought suit against the Secretary, alleging a number of
civil rights claims. Ultimately, the district court dismissed
Smith’s complaint.
Before the district court dismissed Smith’s complaint,
Smith’s attorney, Intervenor Plaintiff-Appellant Kenneth
Plaisance, moved to withdraw as counsel of record. Plaisance
explained that irreconcilable differences between him and Smith
motivated his request to withdraw, and the district court granted
his motion. Five days later, Plaisance moved to intervene in the
case so as to preserve any right he may have to attorney’s fees
should Smith ultimately prevail in the underlying litigation.
The district court granted Plaisance’s motion to intervene,
stating that he was “entitled to make claim for statutory
attorney fees . . . if and when Oscar Smith settles this claim or
receives a judgment in this matter.”
Smith’s subsequent motion for appointment of counsel was
denied, and on March 10, 1999, the district court granted in part
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and denied in part the Secretary’s motion for summary judgment.
The district court’s decision dismissed a portion of Smith’s
claims with prejudice, and gave him until March 31, 1999, to
submit a supplemental complaint curing defects in his remaining
claims. The district court stated that if Smith did not submit a
supplemental complaint, his remaining claims would be dismissed
without prejudice.
By April 5, 1999, Smith had not filed an amended complaint.
Therefore, in accordance with its earlier ruling, the district
court entered judgment dismissing a portion of Smith’s claims
with prejudice and dismissing his remaining claims without
prejudice. Only Plaisance, as intervenor, filed a notice of
appeal. Given Smith’s failure to file an appeal, it appears that
he has accepted the adverse judgment and chosen to forego any
further litigation of this matter.
II.
Although neither party raised the issue of Plaisance’s
standing to bring this appeal, standing is an element of subject
matter jurisdiction and we may raise the issue sua sponte. See
In re Weaver, 632 F.2d 461, 462 n.6 (5th Cir. 1980). If the only
appellant in an appeal lacks standing, we lack jurisdiction to
decide the merits of the case. See FW/PBS, Inc. v. City of
Dallas, 493 U.S. 215, 231 (1990). The burden of demonstrating
standing rests at all times with the party seeking to assert
federal jurisdiction. See Warth v. Seldin, 422 U.S. 490, 518
3
(1975).
At the request of this court, Plaisance submitted a
supplemental brief discussing his standing to bring this appeal.1
Plaisance’s supplemental brief argues that he has standing based
on his “public interest and duty” in seeing Smith’s civil rights
vindicated. Plaisance also admits that he has an “economic
interest” in seeing Smith’s case reinstated. We are unpersuaded
that Plaisance’s interest in this case is sufficient to give him
standing to pursue this appeal.
Our analysis in this case is controlled by the Supreme
Court’s decision in Diamond v. Charles, 476 U.S. 54 (1986). In
that case, Diamond intervened in a case brought against the state
of Illinois that challenged the Illinois Abortion Law as
unconstitutional. Diamond’s decision to intervene in defense of
the law was based, in part, on his “conscientious objection to
abortion.” Id. at 58. The district court permanently enjoined
portions of the law and the injunction was upheld on appeal to
the United States Court of Appeals for the Seventh Circuit. See
id. at 61. After the Seventh Circuit’s adverse decision,
Illinois chose not to appeal. Diamond, however, chose to
1
Plaisance’s original brief on appeal does not mention the
issue of standing. Nor does it discuss his posture in this case
beyond stating: “On June 25, 1998, undersigned withdrew as
counsel of record. On June 30, 1998, undersigned intervened into
the law suit.” The remainder of the brief simply argues Smith’s
case on the merits and makes no mention of Plaisance’s status as
intervenor, nor does it discuss the original reason for
Plaisance’s intervention -- to preserve his right to attorney’s
fees.
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challenge the court’s decision and appealed the case to the
Supreme Court, which noted probable jurisdiction. See Diamond v.
Charles, 471 U.S. 1115 (1985).
Ultimately, however, the Court rejected Diamond’s appeal,
finding that he lacked standing to challenge the circuit court’s
decision. See Diamond 476 U.S. at 68. While the Court
recognized that Diamond’s status as an intervenor meant that he
was considered a party entitled to appeal, the Court held that
“an intervenor’s right to continue a suit in the absence of the
party on whose side intervention was permitted is contingent upon
a showing by the intervenor that he fulfills the requirements of
Art. III.” Id.; accord United States v. Texas, 158 F.3d 299, 303
(5th Cir. 1998); Sierra Club v. Babbitt, 995 F.2d 571, 574 (5th
Cir. 1993).2
Without Smith, it is impossible for Plaisance to establish
Article III standing. Plaisance’s ability to recover attorney’s
fees is contingent upon Smith prevailing in the underlying civil
rights action. By choosing not to appeal the district court’s
judgment, Smith has also effectively foreclosed Plaisance from
recovering statutory attorney’s fees. Plaisance’s alleged sense
of civic duty in seeking to “vindicate the civil rights act” will
not suffice to give him standing to appeal; Smith, not Plaisance,
is the only party who can claim injury from the acts alleged in
2
While Plaisance’s motion to intervene lists Smith as a
“defendant” in the intervention, Plaisance’s interests are
clearly aligned with Smith’s.
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his complaint, and therefore a necessary party to an appeal.
Plaisance simply may not appeal a decision of the district court
in “order to champion the rights of another.” Rohm & Hass Texas,
Inc. v. Ortiz Brothers Insulation, Inc., 32 F.3d 205, 208 (5th
Cir. 1994).
There are a number of routes Plaisance could have taken to
collect attorney’s fees from Smith; trying to keep the original
lawsuit alive in spite of Smith’s apparent unwillingness to
continue litigating the matter is not one of them. Plaisance
lacks standing to pursue this appeal.
III.
For the above stated reasons, the appeal is DISMISSED.
Costs shall be taxed to appellant.
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