Solerwitz, In re

• Decision Date: 17 June 1988
• Docket Number: No. 145,145
• Citation: 848 F.2d 1573
• Parties: In re Jack B. SOLERWITZ. Misc.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1573

848 F.2d 1573

In re Jack B. SOLERWITZ.

Misc. No. 145.

United States Court of Appeals,

Federal Circuit.

June 17, 1988.

Order on Denial of Reconsideration July 20, 1988.

Nathan Z. Dershowitz of Dershowitz & Eiger, P.C., New York City, and Alan M. Dershowitz, for Jack B. Solerwitz.

Before MARKEY, Chief Judge, and FRIEDMAN, RICH, DAVIS, SMITH, NIES, NEWMAN, BISSELL, ARCHER and MAYER, Circuit Judges. ^*

FRIEDMAN, Circuit Judge.

These are exceptions by Jack B. Solerwitz, a member of the bar of this court, to the findings and recommendation by Senior Judge Marion T. Bennett that Mr. Solerwitz be disciplined for engaging in conduct unbecoming a member of the bar of this court, in violation of Rule 46(b) of the Federal Rules of Appellate Procedure. Judge Bennett recommended that Mr. Solerwitz be suspended from practice before this court for two years, but that enforcement of the suspension be held in abeyance for two years, "pending his demonstration of rehabilitation during probation."

We agree with and adopt Judge Bennett's determination that Mr. Solerwitz engaged in conduct unbecoming a member of the bar of this court. We modify the proposed disciplinary action to a suspension for one year, but reject the recommendation that the suspension be held in abeyance. Our order of suspension will be effective ninety days from the date of this order.

I

This court instituted this proceeding by an in banc order directing Mr. Solerwitz to "show cause why he should not be suspended for two years from representing clients before this court." The proceeding resulted from Mr. Solerwitz's conduct in representing a large number of former air traffic controllers in their appeals to this court from decisions of the Merit Systems Protection Board (Board) upholding their removals because of their participation in the 1981 illegal air traffic controllers strike. After Mr. Solerwitz filed in this proceeding various motions that the court denied--including motions to disqualify all members of the court and to stay the proceedings--Senior Judge Bennett was appointed to conduct the hearing that Mr. Solerwitz requested. Following the hearing, Senior Judge Bennett filed a lengthy opinion and made 52 detailed findings of fact, on the basis of which he made his recommendation described above.

A. The background facts, as set forth in Judge Bennett's findings and opinion, are uncontradicted. The government dismissed more than 11,000 air traffic controllers for their participation in the illegal strike. More than 10,000 of them appealed to the Board. Following the Board's decisions, approximately 4,600 petitions for review were filed in this court. Many of these petitions covered cases that the Board had consolidated and many which the court consolidated.

Because of the extraordinarily large number of these cases, the court, in consultation with counsel who elected to participate, designated twelve of them as "lead cases," which it believed to present most of the legal issues that were common to the air traffic controllers' appeals. Those twelve cases were scheduled for expeditious briefing and oral argument. On February 24, 1983, all other pending air traffic controller cases were suspended.

Mr. Solerwitz, who initially represented between 800 and 1,000 air traffic controllers before the Board, filed appeals with this court for 736 controllers. As a result of the consolidation of appeals, Mr. Solerwitz had pending before this court 154 petitions for review. He was sole counsel in one of the twelve lead cases.

On May 18, 1984, the court decided the twelve lead cases. Schapansky v. Department of Transp., and related cases, 735 F.2d 477-549, cert. denied, 469 U.S. 1018 Finding 5 and a portion of finding 6 stated:

                105 S.Ct. 432, 83 L.Ed.2d 358 (1984).  On the same date, the court sent a notice to the attorneys and the petitioners in the other air traffic controller cases that it would notify them upon the final disposition of the lead cases, that within 30 days of the notification they must give written notice to the court if they wished to continue to prosecute their appeals, and that failure so to notify the court would result in dismissal of the appeal.  "The notice to counsel and petitioners included, among other matters, copies of the court's opinions in the lead cases and directed attention to the impropriety of maintaining frivolous appeals, citing published cases of the court on that issue."    Finding 4
                

On December 10, 1984, in conformity with the May 18, 1984 notice, counsel and petitioners in all ATC cases were notified that the Supreme Court had denied certiorari in all lead cases in which it had been sought and that mandates had been issued in those cases from this court to the MSPB. This notice also advised that the suspension entered on February 24, 1983, would remain in effect to and including January 10, 1985. Before the latter date, pending petitions for review were required to be withdrawn or new ones filed. Absent such action the petitions would be dismissed. A renewed petition was required to contain "a statement of the issues relied on and not decided in any of the 'Lead Cases.' " The notice also indicated where the lead cases were published and again emphasized the impropriety of frivolous appeals, repeating the precedents cited in the May 18, 1984 notice.

... On July 12, July 31, and August 30, 1985, the court by memorandum requested all ATC counsel to review the propriety of maintaining appeals in light of the need to avoid frivolity and the accompanying abuse of the judicial process. With each of the five notices in 1984-85 the court furnished counsel with a set of published lead cases or citations thereto.

B. The order to show cause made the following allegations:

Mr. Solerwitz was thus repeatedly and expressly warned by this court against filing and maintaining frivolous appeals in air traffic controller cases that presented legal issues and fact patterns indistinguishable from those presented and decided in the precedents represented by the Lead Cases. Ignoring those warnings, Mr. Solerwitz, who was sole counsel in one Lead Case, maintained 11 frivolous appeals pending on May 18, 1984 and filed and maintained another 131 separate frivolous appeals in air traffic controller cases. In his briefs in those appeals, 107 of which were virtually identical, Mr. Solerwitz disregarded Federal Rules of Appellate Procedure and this court's rules, failed to file appendices, provided no citations to the record, ignored authorities cited by the government, advanced numerous arguments on issues not on appeal, and repeatedly raised contentions not raised before the Merit Systems Protection Board. Mr. Solerwitz' briefs were devoid of any showing on which the decision appealed from could even possibly be reversed, devoid of any basis on which the precedents of this court could be distinguished in law or fact, and devoid of any effort to make such distinctions, in total disregard of this court's written instructions of December 10, 1984.

....

Mr. Solerwitz' conduct in filing and maintaining frivolous appeals having no colorable basis in fact or law has wasted the time and limited resources of this court, has denied availability of the court's resources to deserving litigants, and has constituted flagrant and totally inexcusable abuse of the judicial process. Mr. Solerwitz' conduct has been "unbecoming a member of the bar of the court", Fed.R.App.P. 46(b).

The court decided approximately 140 cases in which Mr. Solerwitz was counsel, each in a separate opinion. The court determined that the vast majority of those appeals were frivolous and imposed upon Mr. Solerwitz total sanctions of $78,300 for filing and maintaining frivolous appeals.

In Des Vignes v. Department of Transportation, 791 F.2d 142 (Fed.Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 185, 93 L.Ed.2d 119 (1986), one of the cases in which a penalty ($1,000 in that case) was imposed upon Mr. Solerwitz for filing a frivolous appeal, the court described in detail the ways in which Mr. Solerwitz had engaged in "Abuse of the Judicial Process." Id. at 145. The court there stated:

Except for a paragraph or two relating to individual air controllers, 107 of those Respondent prepared briefs in response to each of counsel's 131 virtually identical briefs. Counsel's failure to refer to the record forced Respondent to do the work incumbent upon counsel. Counsel's failure to supply an appendix in some cases forced Respondent to do so in those cases. Respondent cited the frivolous, rejected, and unsupported contentions discussed above. Respondent also cited counsel's frequent, repeated, and brazen violations of this court's rules. Mr. Solerwitz' reply briefs simply ignored those citations, merely stating that the earlier cases were distinguishable (but citing no distinguishing factors), ignored Respondent's charge that he had failed to cite to the record, and stated that the appeal was filed to give Des Vignes access to the court. Faced with clear and insurmountable indication that all 131 appeals were frivolous, Mr. Solerwitz has continued to maintain this and the other 130 appeals.

briefs are virtually identical to that filed in this case. That they are copies is indicated by the presence of the same typographical errors in each, and by the failure to distinguish between appeals involving one petitioner from those involving multiple petitioners. Each contains the same type of patently frivolous constitutional arguments, rejected contentions, and unsupported assertions of fact discussed above. Each disserves the court in violating the rule requiring citations to the record. The court was required to check the record and was required to read, and has read, all 131 sets of briefs, in an effort to insure against the possibility that a meritorious appeal might otherwise be overlooked....

Id. at 145-46 (emphasis in original) (footnotes omitted).

C. At the...