United States Court of Appeals
For the Eighth Circuit
___________________________
No. 17-1143
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In re: Evette Nicole Reed
lllllllllllllllllllllDebtor
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Critique Services, LLC
Ross Harry Briggs
lllllllllllllllllllllAppellant
v.
Evette Nicole Reed
Seth A. Albin
lllllllllllllllllllllTrustee
Honorable Charles E. Rendlen, III
lllllllllllllllllllllInterested party - Appellee
United States Bankruptcy Court
lllllllllllllllllllllInterested party
___________________________
No. 18-1169
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In re: Ross H. Briggs
lllllllllllllllllllllPetitioner
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Appeals from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: January 9, 2018
Filed: April 25, 2018
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Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.
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BENTON, Circuit Judge.
The bankruptcy court1 sanctioned Ross H. Briggs for contempt of an order and
for misleading the court. The district court2 affirmed. Having jurisdiction under 28
U.S.C. §§ 158(d)(1) and 1291, this court affirms.
I.
Critique Services LLC was a bankruptcy-services business run by Beverly
Holmes Diltz. Working with Critique were attorneys Briggs and James C. Robinson.
In June 2014, the bankruptcy court suspended Robinson from practicing in the United
1
The Honorable Charles E. Rendlen, III, United States Bankruptcy Judge for
the Eastern District of Missouri.
2
The Honorable Ronnie L. White, United States District Judge for the Eastern
District of Missouri.
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States Bankruptcy Court for the Eastern District of Missouri. This court affirmed.
Robinson v. Steward (In re Steward), 828 F.3d 672 (8th Cir. 2016).
Briggs agreed to represent about 100 of Robinson’s clients who had bankruptcy
cases pending in the Eastern District. In late 2014, the bankruptcy court ordered
Robinson to show cause why it should not order disgorgement of his attorney’s fees
in some of those cases. The bankruptcy court also ordered the trustees in these cases
to provide the court with specific information about the fees.
To comply with the order, the trustees sent a letter to Critique, Robinson, and
Briggs asking for documents and information. Briggs responded: “all of my legal
services rendered on behalf of the debtors in question were afforded free of charge
and no fee was paid to or shared with me in these cases. Accordingly, there are no
checks, ledgers or account statements that relate to such non-existent fees.” He
added: “I . . . do not possess any document of [Critique]” or “any documents which
are encompassed within [the trustees’] request to Mr. Robinson.”
The trustees moved to compel Critique, Robinson, and Briggs to turn over the
requested documents and information. On January 13, 2015, the bankruptcy court
held a hearing on the motion. Arguing about the motion, Briggs discussed his
relationship with Critique and Diltz, eventually agreeing to help obtain the documents
and information. On January 23, the bankruptcy court ordered Critique, Robinson,
and Briggs to turn over to the trustees specific fee-related documents and information.
The bankruptcy court noted that to comply with the order, Briggs might need to seek
the documents and information from third parties or “mak[e] inquiries” with Critique
or Robinson.
On July 6, the bankruptcy court issued an order finding that Critique,
Robinson, and Briggs “had failed to comply with the Order Compelling Turnover.”
The bankruptcy court explained that it was “considering the imposition of monetary
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sanctions and/or nonmonetary sanctions or the taking of any other appropriate action
for non-compliance.” The order gave Critique, Robinson, and Briggs seven days to
either comply with the order compelling turnover or file a brief addressing why
sanctions should not be imposed. Briggs filed a brief opposing sanctions. On July
22, the bankruptcy court ordered Briggs to show cause why he should not be
sanctioned. Briggs responded by questioning the bankruptcy court’s authority, also
arguing that sanctions were not warranted.
On April 20, 2016, the bankruptcy court sanctioned Briggs. It reviewed at
length the disciplinary records of several people associated with Critique, including
Briggs. See Briggs. v. Labarge (In re Phillips), 433 F.3d 1068, 1071 (8th Cir. 2006)
(holding Briggs violated Fed. R. Bankr. P. 9011, but vacating sanctions); In re
Wigfall, No. 02-32059, slip op. at 2 (Bankr. S.D. Ill. August 15, 2002) (suspending
Briggs “from filing any new cases in the United States Bankruptcy Court for the
Southern District of Illinois for a period of three (3) months.”) It found “Briggs to
be in contempt of the Order Compelling Turnover,” and that he “deliberately and with
deceptive intent made misleading representations to the Court regarding the true
nature of his relationship with the Critique Services Business and Diltz.” With some
exceptions, the order banned Briggs for six months from representing new bankruptcy
clients, practicing before U.S. Bankruptcy Court for the Eastern District of Missouri,
and using that court’s electronic-filing system. It also required him to take 12 hours
of continuing legal education in professional ethics, and permanently prohibited him
“from being financially or professionally involved with or connected to, whether
formally or informally or otherwise,” Critique, Diltz, Robinson, and other individuals
and entities affiliated with Critique.
Briggs appeals. While the appeal was pending, Briggs requested reinstatement
to practice before the United States Bankruptcy Court for the Eastern District of
Missouri. He directed his request first to the chief bankruptcy judge, then to the chief
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district judge. Both ruled that Briggs’s request was improper. Briggs also appeals
the chief district judge’s judgment.
II.
Briggs says that as an Article I court, the bankruptcy court did not have
constitutional authority to sanction him under these circumstances. This is a legal
issue that this court reviews de novo. See Walton v. LaBarge (In re Clark), 223 F.3d
859, 862, 864 (8th Cir. 2000).
Briggs focuses on Stern v. Marshall, 564 U.S. 462 (2011). There, the
bankruptcy court, in an adversary proceeding, entered summary judgment on a
counterclaim for tortious interference. Stern, 564 U.S. at 470-71. The Court
explained that the bankruptcy court had statutory authority to enter final judgment on
the counterclaim under 28 U.S.C. § 157(b)(2)(C). Id. at 482. As to statute’s
constitutionality, the Court said: “When a suit is made of ‘the stuff of the traditional
actions at common law tried by the courts at Westminster in 1789,’ and is brought
within the bounds of federal jurisdiction, the responsibility for deciding that suit rests
with Article III judges in Article III courts.” Id. at 484, quoting Northern Pipeline
Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 90 (1982) (Rehnquist, J.,
concurring in judgment).
The Stern counterclaim met that standard—and could only be heard by an
Article III court—because it involved “the most prototypical exercise of judicial
power: the entry of a final, binding judgment by a court with broad substantive
jurisdiction, on a common law cause of action, when the action neither derives from
nor depends upon any agency regulatory regime.” Id. at 494 (emphasis added on last
two phrases). Even if a counterclaim is statutorily authorized, “Congress may not
bypass Article III simply because a proceeding may have some bearing on a
bankruptcy case; the question is whether the action at issue stems from the
bankruptcy itself or would necessarily be resolved in the claims allowance process.”
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Id. at 499. The Court concluded that the bankruptcy court “lacked the constitutional
authority to enter a final judgment on a state law counterclaim that is not resolved in
the process of ruling on a creditor’s proof of claim.” Id. at 503.
Briggs tries to equate the sanctions order with the counterclaim in Stern.
According to Briggs, the bankruptcy court here conducted only “a contempt action
against a third-party in an attorney ethics investigation” that “implicate[d] only state
law issues [under the Missouri Rules of Professional Responsibility] not
encompassed in the claims allowance process” or “the restructuring of debtor-creditor
relations.”
This case does not involve an “attorney ethics investigation” or issues reserved
for an Article III court. Under 28 U.S.C. § 157(a): “Each district court may provide
that any or all cases under title 11 [bankruptcy] and any or all proceedings arising
under title 11 or arising in or related to a case under title 11 shall be referred to the
bankruptcy judges for the district.” The Eastern District of Missouri has implemented
the full scope of § 157(a). E.D.Mo. R. 81 - 9.01(B). By 28 U.S.C. § 157(b)(1):
“Bankruptcy judges may hear and determine all cases under title 11 and all core
proceedings arising under title 11, or arising in a case under title 11, referred under
subsection (a) of this section, and may enter appropriate orders and judgments,
subject to review under section 158 of this title.”
The show-cause orders issued in late 2014 addressed whether it was necessary
to disgorge, under 11 U.S.C. § 329, Robinson’s unearned attorney’s fees for
representing several clients in bankruptcies in the Eastern District. As for the order
compelling turnover, the bankruptcy court entered it under 11 U.S.C. § 542(e) to help
determine whether disgorgement was necessary. The bankruptcy court based the
sanctions order on events that occurred while trying to enforce the show-cause orders
to Robinson and the order compelling turnover. All the orders here are matters
“arising in” a case under title 11. See Stoe v. Flaherty, 436 F.3d 209, 216 (3d Cir.
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2006) (“The category of proceedings ‘arising in’ bankruptcy cases includes such
things as administrative matters, orders to turn over property of the estate and
determinations of the validity, extent, or priority of liens.”) (citation and internal
quotation marks omitted); In re Williams, 256 B.R. 885, 891 (B.A.P. 8th Cir. 2001)
(“The phrase ‘arising in’ generally refers to administrative matters that, although not
expressly created by title 11, would have no existence but for the fact that a
bankruptcy case was filed.”).
Even so, Briggs asserts that the orders are—like the Stern counterclaim—only
statutorily, not constitutionally, authorized. But unlike the Stern counterclaim, the
orders here “stem[] from the bankruptcy itself” and do not implicate a common-law
claim. See Stern, 564 U.S. at 499. Nor do they implicate a fraudulent-conveyance
claim like in Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989), which Briggs
discusses. The Stern case “affect[s] only . . . one small part of the bankruptcy judges’
authority.” In re AFY, Inc., 461 B.R. 541, 547 (B.A.P. 8th Cir. 2012); see also
Stern, 564 U.S. at 502 (“the question presented here is a ‘narrow’ one.”).
Here, the bankruptcy court had authority to enter sanctions for events that
occurred while trying to enforce the order compelling turnover and the show-cause
orders. See Law v. Siegel, 134 S. Ct. 1188, 1194 (2014) (bankruptcy courts “possess
‘inherent power . . . to sanction abusive litigation practices.’”), quoting Marrama v.
Citizens Bank of Mass., 549 U.S. 365, 375-76 (2007); Robinson, 828 F.3d at 686
(“Bankruptcy courts have the authority to sanction persons appearing before them,
and this authority includes the right to control admission to their bar.”) (citations and
internal quotation marks omitted).
III.
Briggs believes that “the record does not support the contempt finding of the
bankruptcy court, because there is no evidence that Briggs . . . failed to comply with
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the Turnover Order.” “A party commits contempt when he violates a definite and
specific order of the court requiring him to perform or refrain from performing a
particular act or acts with knowledge of the court’s order.” Hornbeck Offshore
Servs., LLC v. Salazar, 713 F.3d 787, 792 (5th Cir. 2013) (citation omitted). A
contempt finding requires “clear and convincing evidence.” Chicago Truck Drivers
v. Board Labor Leasing, 207 F.3d 500, 505 (8th Cir. 2000). This court reviews
contempt findings for abuse of discretion. See id. at 504; Waste Mgmt. of
Washington, Inc. v. Kattler, 776 F.3d 336, 339 (5th Cir. 2015) (“We review contempt
findings for abuse of discretion, but review is not perfunctory. Facts will be accepted
as true unless clearly erroneous, but questions of law concerning the contempt order
are reviewed de novo.”) (citation and internal quotation marks and footnotes omitted).
Briggs argues he had no access to the documents and information subject to the
order compelling turnover. He concludes he could not turn over anything and thus
could not be held in contempt of the order. This argument ignores that the order
required Briggs to seek the documents and information from Critique, Robinson, and
third parties:
[I]t is proper to order that Briggs, in his capacity as counsel for certain
of the Debtors, turn over all documents and information, as set forth in
the turnover directive. . . . This directive may require him to seek
documents and information from third parties—even if it places him in
the (presumably) undesirable position of making inquiries to Robinson
and Critique Services L.L.C. If Briggs gets “stonewalled” . . . then he
can file a credible and specific affidavit detailing his efforts.
The bankruptcy court did not, as Briggs suggests, hold him in contempt for failing to
turn over documents and information. It held him in contempt because he “made no
real effort to obtain the information for his clients so that he could turn it over.” It
explained:
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Had Briggs made serious, sincere efforts to obtain the Request
Information, but was unable to obtain the information because he was
stonewalled, then that would be one thing. Under those circumstances,
Briggs would have made a good faith effort to comply with the Order
Compelling Turnover. He would have fulfilled his promise and he
would not be in trouble with the Court. However, those are not the
circumstances here. . . . His failure to turn over any responsive
information is not due to the fact that he is not in possession of the
documents; it is due to the fact that he took no actions that would allow
him to comply with the turnover directive.
Briggs believes he did enough. At oral argument in this court, he emphasized
a lunch meeting with Diltz on January 13, and a letter he sent Robinson and Critique
on January 24 (the day after the bankruptcy court entered the order compelling
turnover). The bankruptcy court found that the lunch meeting “did nothing to
‘facilitate’ compliance with the Court’s directives.” In the letter, Briggs requested
that Robinson and Critique “produce all documents encompassed within the above
Order to the Trustees by January 30, 2015 at 12:00PM (Central) as required by the
Order of the Court.” The bankruptcy court ruled that the letter did not satisfy
Briggs’s obligation under the order compelling turnover, noting “[t]he letter was
devoid of any sense of sincere advocacy. It was nothing more than another attempt
by Briggs to appear to be doing something helpful, without actually doing something
helpful.”
The bankruptcy court also ruled that the letter was “followed by nothing else
of any substance.” On February 4, the bankruptcy court held a status conference to
establish that no one had turned over the documents and information. On July 6, the
bankruptcy court notified Critique, Robinson, and Briggs—all with disciplinary
histories—that they had seven days to either comply with the order compelling
turnover or file a brief addressing why sanctions should not be imposed. Briggs filed
a brief on July 13. The brief did not detail any efforts to secure compliance from
Critique and Robinson. Rather, it focused on how neither Briggs nor his clients had
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access to the documents and information. In response to yet another show-cause
order, Briggs filed a brief on July 31, mentioning the lunch meeting for the first time.
The order compelling turnover required Briggs to make “efforts” to obtain the
documents and information for his clients. But between sending the letter on January
24 and filing his brief on July 31, the record does not show that Briggs made any
effort to seek compliance from Critique or Robinson—despite knowing they had not
complied with the order. Briggs never filed “a credible and specific affidavit
detailing his efforts” to secure compliance from Critique and Robinson—an option
in the order compelling turnover.
The bankruptcy court gave Briggs multiple opportunities to comply with the
order compelling turnover, specifically outlining methods of compliance. Briggs did
not comply. The bankruptcy court did not abuse its discretion in holding Briggs in
contempt. See United States v. Baker, 721 F.2d 647, 650 (8th Cir. 1983) (“Appellant
was not held in contempt for refusing to answer questions on cross-examination, but
rather for refusing to comply with a previous order of the district court enforcing an
IRS summons against him.”).
IV.
Briggs says that “the record does not support the contempt finding . . . because
there is no evidence that Briggs . . . made any misleading statements.” The
bankruptcy court did not make a “contempt finding” on this issue. It did find that
“Briggs deliberately and with deceptive intent made misleading representations to the
Court regarding the true nature of his relationship with the Critique Services Business
and Diltz.” It then concluded that it was “proper to sanction Briggs . . . for his
making of misleading statements to the Court.” This court assumes Briggs is arguing
that it was improper to sanction him because there is no evidence of misleading
statements.
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The bankruptcy court relied on statements Briggs made at the January 13
hearing. Briggs tried to distance himself from Critique. The bankruptcy court cited
several examples. Asked how he could help obtain documents and information from
Critique, Briggs said, “I have no leverage. I have no knowledge.” Also, “Briggs
even claimed he had no personal knowledge of whom he could ask at the Critique
Services Business for documents.” In an exchange between Briggs and the
bankruptcy court, the bankruptcy court asked, to Briggs’s knowledge, “who owns
and controls” Critique. Briggs answered: “Mr. Robinson may well be [the owner].
It may – it may be Beverly Diltz.” The bankruptcy court asked, “What do you mean
‘may be?’” Briggs answered: “That’s what the Missouri Secretary of State says. I
assume it’s correct.”
The bankruptcy court found these representations misleading because “Briggs
has a long history of being closely involved with the Critique Services Business.”
The bankruptcy court noted that Briggs has (1) been both Diltz’s profit-sharing
partner and her employee, (2) employed ex-Critique employees, (3) represented
Critique clients at section 341 meetings, and (3) done business as “Critique Services.”
The bankruptcy court concluded that “Briggs deliberately misled the Court” and
“deliberately lacked candor when characterizing his relationship with the Critique
Services Business and Diltz.” In the bankruptcy court’s view, Briggs “did whatever
he could to create the façade that he was not part of the Critique Services Business.
Even his physical deportment—his expressions, his blinking, his lack of eye
contract—betrayed his lack of candor.”
The misrepresentation issue is interrelated with a separate issue—whether the
bankruptcy court denied Briggs due process by not providing an evidentiary hearing
before imposing sanctions. Briggs’s due-process argument is a legal issue this court
reviews de novo. In re Morgan, 573 F.3d 615, 623 (8th Cir. 2009). “[B]efore a
district court may impose sanctions, the individual must receive notice that sanctions
against her are being considered and an opportunity to be heard.” Plaintiffs’ Baycol
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Steering Comm. v. Bayer Corp., 419 F.3d 794, 802 (8th Cir. 2005). But “the
opportunity to be heard does not necessarily entitle the subject of a motion for
sanctions to an evidentiary hearing.” Schlaifer Nance & Co. v. Estate of Warhol,
194 F.3d 323, 335 (2d Cir. 1999). “An evidentiary hearing serves as a forum for
finding facts; as such, its need can be obviated when there is no disputed question of
fact or when sanctions are based entirely on an established record.” Id.
On July 22, the bankruptcy court issued a show-cause order giving notice “to
Briggs that it is considering imposing sanctions, issuing directives, and/or making
referrals to the proper authorities to address his apparently false or misleading
representations to the Court regarding his relationship with Critique Services L.L.C.
and Diltz.” The order detailed the “apparently false or misleading representations”
Briggs made, focusing on those made at the January 13 hearing. Whether Briggs
made false or misleading representations is a question of fact. Briggs’s July 31
response to the show-cause order argued that there was “no basis for imposing any
sanction.” He noted that under the show-cause order, “one of the bases for the
proposed [sanctions] is ‘Briggs’s claim that he cannot identify who owns Critique
Services, LLC.’” Briggs argued that he “never made such a ‘claim’ or
representation,” quoted the exchange on the Critique-ownership question, and
asserted that his answer was accurate.
In the sanctions order, the bankruptcy court addressed Briggs’s response:
“Briggs first claimed that he has dealt honestly with the Court.” In other words, the
bankruptcy court interpreted Briggs’s arguments to mean that he was factually
disputing the bankruptcy court’s assertion in the show-cause order that Briggs made
“apparently false or misleading representations.” The bankruptcy court concluded
that the accuracy of Briggs’s answer “is not a reason that Briggs should not be
sanctioned” because “[h]e purposely mislead [sic] the Court about his personal
knowledge of the fact that Diltz is the owner—in an effort to make himself look
clueless and far-removed from the Critique Services business.”
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The bankruptcy court made this factual determination without an evidentiary
hearing, despite recognizing that Briggs was disputing whether he made false or
misleading representations. The bankruptcy court erred in sanctioning Briggs for
“deliberately misle[ading] the Court” because it based that conclusion on disputed
questions of fact without holding an evidentiary hearing. See Schlaifer, 194 F.3d at
335.
But the bankruptcy court’s error does not compel remand. It had two
independent bases for sanctioning Briggs: “it is proper to sanction Briggs for his
contempt of the Order Compelling Turnover and for his making of misleading
statements to the Court.” (Emphasis added.) This court ruled above that the
bankruptcy court did not abuse its discretion in finding Briggs in contempt of the
order compelling turnover. Briggs’s contempt is a sufficient basis for the sanctions.
See Weisman v. Alleco, Inc., 925 F.2d 77, 80 (4th Cir. 1991) (“The district court
based its decision to impose sanctions on several grounds. . . . We believe any one of
these grounds would, standing alone, justify the imposition of Rule 11 sanctions.”).
V.
By Rule V of the district court’s disciplinary-enforcement rules, a “judge may
refer [a disciplinary] matter to counsel appointed under Rule X for investigation and
prosecution of a formal disciplinary proceeding or the formulation of such other
recommendation as may be appropriate.” E.D.Mo. Discip. Enf’t R. V. Briggs says
that the bankruptcy court was “obliged” to follow Rule V and refer the matter to
appointed counsel. He believes that the bankruptcy court violated his due-process
rights by not doing so.
Rule V is permissive. See Robinson, 828 F.3d at 687 n.10 (“Though Robinson
and Walton attempt to rely on Rule V of the Rules of Disciplinary Enforcement, that
rule simply states that a judge may refer disciplinary matters to counsel appointed by
the district court if such a referral is warranted.”). The bankruptcy court had
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discretion not to invoke Rule V. Briggs has not shown it was “obliged” to do so. Not
invoking Rule V is not a due-process violation. See id.
VI.
Briggs appeals the district court’s3 judgment denying reinstatement of full
privileges to practice before the bankruptcy court. The bankruptcy court’s sanctions
order noted: “Briggs is invited to file, on October 1, 2016 or any time thereafter, a
motion for reinstatement to the privilege of practicing before the Court after October
15, 2016. Evidence of completion of the required CLE should be attached to any
such motion.” The order does not explicitly state with whom Briggs should file for
reinstatement. Briggs did not file his motion with the bankruptcy judge who imposed
sanctions.
Instead, Briggs first requested reinstatement from the bankruptcy court’s chief
judge.4 He argued she had two bases to hear his motion. First, the bankruptcy court’s
Local Rule 2094(A) says that an attorney who is disbarred or suspended by a court
besides the bankruptcy court is automatically disbarred or suspended in the
bankruptcy court for the same length of time as the discipline imposed by the other
court. Local Rule 2094(B) says that the bankruptcy court’s chief judge presides over
a reinstatement proceeding for an attorney disbarred or suspended under subsection
A. The chief judge ruled that Briggs “was not suspended by another court but rather
was suspended by this Court. Therefore, Local Rule 2094(B) does not apply under
these circumstances.”
3
The Honorable Rodney W. Sippel, Chief Judge, United States District Court
for the Eastern District of Missouri.
4
The Honorable Kathy Surratt-States, Chief Judge, United States Bankruptcy
Court for the Eastern District of Missouri.
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Second, Briggs believed that Rule VII of the district court’s disciplinary-
enforcement rules “provides that this Motion for Reinstatement shall be assigned to
the Chief Judge of this Court, and shall not be referred to the judge upon whose
complaint the disciplinary proceeding was predicated.” But Rule VII says that
attorneys who are disbarred or suspended by the district court must file a petition for
reinstatement with the district court’s chief judge. The chief judge explained that
Rule VII “does not apply in this case” because Briggs “was not suspended by the U.S.
District Court for the Eastern District of Missouri, nor did he file his request for
reinstatement with the Chief Judge of” that court. The chief judge denied Briggs’s
motion because there was no procedural “basis for the relief requested.”
Briggs then sought reinstatement from the district court’s chief judge, relying
on Rule VII and the district court’s “inherent power.” That chief judge denied
Briggs’s motion because he “ha[d] not exhausted the proper judicial channels.”
Instead of seeking relief in the district court, the chief judge explained, “Briggs
should seek reinstatement from Judge Rendlen directly. Judge Rendlen provided
specific guidance in the sanctions order regarding the filing of a motion for
reinstatement.”
Neither Local Rule 2094(B) nor Rule VII provide a basis for the bankruptcy
court’s chief judge to hear Briggs’s reinstatement motion. Rule VII does not allow
the district court’s chief judge to resolve that motion. Briggs abandoned his argument
that the chief judge’s “inherent power” lets him hear the motion because Briggs did
not develop it in the district court. Briggs may file his motion with Judge Rendlen.
If Judge Rendlen denies the motion, then Briggs may appeal.5 See 28 U.S.C. § 158.
5
While his initial appeal was pending, Briggs moved to disqualify Judge
Rendlen on remand. This court has the authority when remanding to “direct the entry
of such appropriate judgment, decree, or order, or require such further proceedings
to be had as may be just under the circumstances.” 28 U.S.C. § 2106; see also United
States v. Tucker, 78 F.3d 1313, 1323-24 (8th Cir. 1996) (explaining that § 2106’s
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*******
The judgments are affirmed.
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remand clause empowers this court to reassign a case when “in the language of 28
U.S.C. § 455(a), the district judge’s ‘impartiality might reasonably be questioned.’”).
Because this court is not remanding, § 2106 is inapplicable and his motion is moot.
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