American Airlines, Inc. v. Allied Pilots Ass'n
| Decision Date | 17 August 1992 |
| Docket Number | No. 91-1307,91-1307 |
| Parties | AMERICAN AIRLINES, INC., Plaintiff, v. ALLIED PILOTS ASSOCIATION, et al., Defendants, v. Neal D. MOLLEN, Donald Havermann, and Clay Humphries, Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Kleber C. Miller, R.H. Wallace, Jr., Shannon, Gracey, Ratliff & Miller, Fort Worth, Tex., Peter Buscemi, William J. Gardner, Morgan, Lewis & Bockius, Washington, D.C., for appellants Neal Mollen and Donald Havermann.
Sloan B. Blair, Edward L. Kemble, Fort Worth, Tex., for appellant Clay Humphries.
Bill F. Bogle, Harris, Finley & Bogle, Fort Worth, Tex., for amicus curiae, on behalf of the U.S. Dist. Court for N.D. Tex.
Appeals from the United States District Court For the Northern District of Texas.
Before GOLDBERG, HIGGINBOTHAM and DAVIS, Circuit Judges.
Several attorneys for American Airlines appeal the rulings of the district court finding them in contempt of court, in violation of Rule 11 of the Federal Rules of Civil Procedure, and in violation of various state and local disciplinary rules. We reverse the criminal contempt convictions and otherwise affirm the district court's order.
In December 1990, the Allied Pilots Association (the union) allegedly engaged in a "sick out" and other delay tactics which wreaked havoc on American's Christmas flight schedules. Attorneys Donald L. Havermann, Neal D. Mollen and Richard Malahowski 1 represented American Airlines, Inc. (American) as lead counsel in its litigation against the pilots' union. Attorney Clay Humphries was associated as local counsel shortly before American presented its motion for a temporary restraining order (TRO) to the court.
On December 26, 1990, American filed its complaint for injunctive relief and damages against the union, a motion for TRO, a motion for preliminary injunction and memorandum in support. The pleadings were accompanied by and incorporated by reference seven written declarations. Two of those declarations--the Fowler and Siskin declarations--are central to this case. Fowler and Siskin had not signed their declarations. Apparently, the declarations were modified versions of earlier signed declarations. The declarants had orally approved the contents of the revised statements but were unavailable to sign them.
Havermann and Mollen knew that the declarations were not signed. They discussed with Humphries whether conformed copies would be accepted by the court. The signature pages of the declarations contained a line typed "executed" followed by a space. Attorney Mollen hand wrote the date "December 26" in the space provided. On the signature line he wrote the symbol "/s/" followed by the full names of Fowler and Siskin, respectively. Humphries was not aware that the originals had not been signed; he thought that they were just not in the possession of the attorneys. Humphries advised lead counsel that they could try to file the declarations in that form as long as the original signature pages were substituted as soon as possible. The Fowler and Siskin declarations were submitted to the court marked as described above.
Judge McBryde held an in chambers hearing on the TRO motion on December 26 at which all attorneys were present. The judge specifically stated that he was relying on the declarations in making his decision to grant the motion for the TRO. One or more of the attorneys urged that the evidence submitted with their motion was sufficient to support the issuance of the TRO. None of the attorneys informed the judge that neither Fowler nor Siskin had signed these declarations. The attorneys had live witnesses available at the time of the hearing who could testify in support of all or most of the facts contained in the Fowler and Siskin declarations. No witnesses were called. The judge issued the TRO.
On December 28, 1990, by telephone conference with the judge, the parties agreed to postpone the hearing on the preliminary injunction which had been scheduled for January 3, 1991. During the telephone conference, the court told counsel that declarations could be used at the hearing so long as they were delivered to the court and opposing counsel by 2:00 p.m. the day before the hearing and the declarant was available for cross-examination (if requested by opposing counsel). Humphries, Havermann and Malahowski participated in the conference and again did not mention that Fowler and Siskin had never signed the declarations.
On January 9, 1991, American moved to substitute an original signature page for the Siskin declaration and to file a corrected declaration of declarant Fowler. At that time, the district court learned that the declarations had not been signed at the time they were submitted in support of the TRO motion. The union opposed the motion to substitute the declarations and filed a cross-motion to strike the declarations and vacate the injunction. The court struck the declarations. The court did not rule on the motion to vacate the TRO because the union withdrew its motion and the parties agreed to extend the TRO until the trial on the preliminary injunction.
On January 24, 1991, the court sua sponte entered an order setting the case for trial February 20 and stating further that the court would:
take up the matter of possible contempt of court and sanctions, if any, to be imposed against plaintiff, American Airlines, Inc., or its counsel, or both of them, because of their conduct in falsely representing to the court and to counsel for defendants that the originals of the declarations of Jerry S. Fowler and Bernard R. Siskin filed with the court had been executed at the time they were presented to the court in support of plaintiff's motion for temporary restraining order and motion for preliminary injunction and in failing to disclose to the court and counsel for defendants that the declarations had not been signed by the respective declarants.... [P]laintiff shall appear and show cause why (i) it or its counsel, or both of them, should not be held in contempt of court, and (ii) sanctions should not be imposed pursuant to Fed.R.Civ.P. 11 ....
A later notice issued February 13, 1991 added:
In addition to other sanctions, the court will consider at the hearing denying the right of any culpable attorney to participate in this action and in any other litigation pending now or in the future before this court.
A contempt hearing was held at which the judge both presided and questioned the attorneys. The attorneys did not object to the proceedings. First, the judge recited the facts from his memory and as he had been able to reconstruct them from reviewing the files and talking to his staff. The attorneys were then invited to respond to his statement. Havermann, Mollen and Humphries all made statements, though none were formally placed under oath. Havermann and Mollen attempted to explain that they understood the symbol "/s/" to mean that the declarant had reviewed and approved the statement but had not yet signed it. The judge dismissed their explanation. At various points during each attorney's statement, the judge interrupted and asked questions about the facts and the attorney's intent or understanding regarding what had transpired.
At the conclusion of the hearing, the court recessed. Later the same day it announced its findings and conclusions and signed the contempt order. The court made a number of findings of fact and conclusions of law:
* By their acts as described above, Havermann, Mollen and Humphries intended the court to believe that the Fowler and Siskin declarations had been signed by the declarants and that these signed originals were on file in the clerk's office.
* Havermann and Mollen had acted willfully and in an attempt to deceive the court and had acted in contempt of court under 18 U.S.C. § 401.
* Humphries and Malahowski had acted with negligence and gross negligence in their dealings with the court.
* All attorneys as officers of the court had misbehaved in the presence of the court and in official transactions with the court for failure to disclose the status of the declarations. Havermann and Humphries were also cited on this ground for delivering the documents to the court.
* Havermann and Malahowski violated Rule 11 of the Federal Rules of Civil Procedure by signing the motion for preliminary injunction and the memorandum in support thereof. Havermann was also cited for signing the motion for TRO.
* All attorneys violated Rule 3.03 of the Texas Disciplinary Rules by making a false statement of material fact to the court and by offering and using evidence they knew to be false.
* Havermann and Mollen violated Rules 3.04, 4.01 and 8.04 of the Texas Disciplinary Rules by preparing and presenting the Fowler and Siskin declarations. These acts constituted falsifying evidence, knowingly making a false statement of material fact to a third party, and engaging in conduct that involved dishonesty, deceit and misrepresentation.
* All attorneys violated Local Rule 13.2 of the Northern District of Texas by engaging in unethical behavior.
The court imposed substantial fines on Havermann and Mollen for their contempt convictions, $3,000 each for each putative declaration. The court also fined Havermann a total of $6,000 ($2,000 for each signature placed on a pleading) as a sanction for violating Rule 11. The court struck all attorneys from the record in American's case against the union. It also barred the attorneys from appearing in the Northern District of Texas on any matter for various periods: Humphries for 30 days, Havermann and Mollen for six months. Humphries, Havermann and Mollen appeal.
The attorneys for American Airlines challenge the district court's ruling on several grounds. In general, they dispute the conclusions the court drew from their actions in the submission of the Fowler and Siskin declarations. Specifically, they argue that their actions did not...
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