Dailey v. Vought Aircraft Co.

JERRY E. SMITH, Circuit Judge,

dissenting:

I respectfully dissent from the majority’s *232reversal of the suspension order.1 Although the district court initially violated Collie’s procedural due process rights by failing to give her a hearing before ordering her suspension, that violation was cured by the subsequent hearing before the chief judge. Moreover, I would find that the chief judge did not abuse his discretion in ordering Collie suspended from practice before that court until her sanctions were paid.

I.

I agree with the majority that the district court’s failure to give Collie a hearing prior to her suspension was constitutionally infirm because due process requires that an attorney be given notice and an opportunity to be heard before he is suspended or disbarred, not after. The majority and I part company, however, when it comes to whether the district court successfully cured that violation through the subsequent hearing before the chief judge. It is well established that “a procedural due process violation is not complete ‘unless and until the State fails to provide due process.’ In other words, the state may cure a procedural deprivation by providing a later procedural remedy; only when the state refuses to provide a process sufficient to remedy the procedural deprivation does a constitutional violation” become actionable. McKinney v. Pate, 20 F.3d 1550, 1557 (11th Cir. 1994) (quoting Zinermon v. Burch, 494 U.S. 113, 126, 110 S.Ct. 975, 983-84, 108 L.Ed.2d 100 (1990)).2

The relevant question, therefore, becomes whether the “subsequent due process hearing was sufficient to cure the defect.” Best v. Boswell, 696 F.2d 1282, 1288 (11th Cir. 1983). The majority offers two reasons for answering this question in the negative. First and foremost, it relies on cases holding that procedural due process requires an antecedent hearing to deprivation. Secondarily, the majority finds that the chief judge’s hearing was flawed because Collie did not receive adequate notice.

Unfortunately, the majority’s primary justification for rejecting the later hearing has nothing to do with the cure doctrine. Rather, it concerns what constitutes a procedural due process violation in the first instance. I reiterate that I do not disagree with the majority that Collie was entitled to a hearing before suspension. Had she, for instance, suffered some distinct, quantifiable harm for the period between deprivation and hearing, she would be entitled to a remedy. But see swpra note 2.

But the majority appears to hold that a hearing subsequent to suspension can never act as a cure because the cure comes after the deprivation. The very definition of a “cure,” however, is a procedurally sufficient hearing that comes after a procedural due process violation has occurred, that is, after the deprivation has taken place. For this reason, the cases that the majority cites, see, e.g., Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542-48, 105 S.Ct. 1487, 1493-97, 84 L.Ed.2d 494 (1985), are inapposite, for they deal with what constitutes a procedural due process violation in the first instance and do not implicate the analytically distinct doctrine of a cure for such a violation once it has occurred.

The majority’s secondary justification for rejecting the chief judge’s hearing—lack of notice—does go to the adequacy of the cure. Unfortunately, here, the majority’s conclusion is unsupported by the facts. Collie was given more than adequate notice of the September 6, 1996, hearing before the chief judge. By July 18, Collie knew of the charges against her and the fact that suspension was being considered. On July 29, she *233filed a request for a hearing before the chief judge, and she did so again on September 4. He granted her request that day and held the hearing on September 6.

Collie raised no objection prior to the hearing. She obviously knew it to be an evidentiary hearing, as she brought witnesses and asked to enter testimony.

At that point, Collie had had fifty days to prepare for an evidentiary hearing and to consider the nature of the charges against her and the appropriateness of the suspension. Under our caselaw, this amount of time is more than adequate notice for such proceedings. See Childs v. State Farm Mut. Auto. Ins. Co., 29 F.3d 1018, 1027 (5th Cir. 1994) (attorney given seven hours notice prior to Fed. R. Crv. P. 11 hearing.).

The hearing before the chief judge was also procedurally sufficient. Collie was able to present witnesses and to develop a record. At that point, the chief judge had “absolute discretion” either to follow the district judge’s order or to chart a different course given his independent findings. See N. Dist Tex. R. 13.2(b). In short, Collie was given an “effective opportunity to rebut” the charges against her. Glenn v. Newman, 614 F.2d 467, 472 (5th Cir.1980).

II.

The majority’s analysis seems to be driven by its view that this suspension order was unwarranted. I disagree.

When a court imposes sanctions based on its inherent powers, they must be “essential to preserve the authority of the court” and must be the least severe sanctions adequate to achieve that end. Scaife v. Associated Air Ctr. Inc., 100 F.3d 406, 411 (5th Cir. 1996) (internal citation and quotation marks omitted). “If there is a reasonable probability that a lesser sanction will have the desired effect, the court must try the less restrictive measure first.” Natural Gas Pipeline Co. of Am. v. Energy Gathering, Inc., 86 F.3d 464, 467 (5th Cir. 1996).

To impose such sanctions, the court must make a specific finding that the attorney acted in “bad faith.” Elliott v. Tilton, 64 F.3d 213, 217 (5th Cir.1995). We review such a finding for abuse of discretion. See Dawson v. United States, 68 F.3d 886, 895 (5th Cir.1995).

A.

Collie’s conduct meets the legal standard for imposing suspension. The chief judge, after a full and fair hearing, found that Collie “had willfully ignored [the district judge’s] orders.” The chief judge found Collie’s statement that she had “overlooked” the deadline unbelievable, because, “it was a critical deadline,” and “[s]he met one of those deadlines but not another.” I see no ground for finding this factual determination clearly erroneous.3 See United States v. Jackson, 19 F.3d 1003, 1007 (5th Cir. 1994) (citation omitted) (holding that credibility judgments are particularly within the province of the fact-finder).

The chief judge, moreover, was justified in finding that suspension was the least severe action available to preserve the court’s authority; forcing attorneys to comply with orders sanctioning them is essential to maintaining that authority. If an attorney fails to pay assessed sanctions, it is difficult to see how any sanction less than suspension can satisfy that end. Certainly, more monetary sanctions would be useless, especially when the attorney lacks the funds to pay them.

B.

The majority’s failure to recognize that before imposing suspension, the district court did “find that Collie was unfit to practice law,” is also incongruent with the existing jurisprudence. Collie’s failure to pay the sanctions made her unfit per se to practice law before the district court.

We have authorized the practice of forbidding a litigant from filing pleadings until he has satisfied a sanction, even if he is unable *234to pay.4 We now should follow the Seventh and Tenth Circuits and hold that “[a] lawyer who is unwilling, or unable, to pay accumulated sanctions must desist from practice until he can follow the court’s orders.” In re Maurice, 69 F.3d 830, 835 (7th Cir. 1995).5 Attorneys practicing before a court should be held to a higher, not lower, standard than are pro se litigants.

Unfortunately, the majority charts a different course. In doing so, its ruling has the effect both of imposing stricter disciplinary requirements upon pro se litigants than upon attorneys, and of removing the only effective deterrent to an indigent attorney’s flaunting of the district court’s authority. Accordingly, I respectfully dissent.

. Although I am uncomfortable with the majority's justiciability analysis, the issue is foreclosed by binding circuit precedent, and thus we are obliged to reach the merits. See Walker v. City of Mesquite, 129 F.3d 831, 832 (5th Cir. 1997).

. In the usual manifestation of the “cure doctrine,” not present in this case, the plaintiff would be able to recover damages from the governmental actor only for the period between his deprivation-without process and the subsequent sufficient due process hearing. See, e.g., Wheeler v. Mental Health & Mental Retardation Auth., 752 F.2d 1063, 1070 (5th Cir. 1985). Because Collie alleges only the harm of “stigma” (the monetary sanction having been affirmed in an earlier appeal), and because I find the chief judge's suspension order—and any accompanying "stigma”—were properly imposed, no relief is warranted.

. In her brief. Collie admits that her failure to pay the fine was willful: Having insufficient funds, she never intended to satisfy the fine.

. See, e.g., Smith v. Legg (In re United Markets Int'l, Inc.), 24 F.3d 650, 655-56 (5th Cir. 1994) (customary litigant); Coarte v. Ferrara Pan Candy Co., 898 F.2d 1030, 1034 (5th Cir. 1990) (attorney litigant); Gelabert v. Lynaugh, 894 F.2d 746, 748 (5th Cir. 1990) (per curiam) (prisoner litigant).

. See Cleveland Hair Clinic, Inc. v. Puig, 106 F.3d 165, 168 (7th Cir. 1997); In re Smith, 10 F.3d 723, 724 (10th Cir. 1993) (per curiam). In Maurice and Puig, the attorney was given an opportunity to show cause why he should not be suspended. In Smith, the attorney already had had such an opportunity at oral argument.