Deherrera v. City and County of Denver By and Through Bd. of Water Com'rs

• Decision Date: 29 November 1993
• Citation: 7 F.3d 1044
• Parties: NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1044

7 F.3d 1044

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Kelly J. DEHERRERA, Plaintiff-Appellant, v. CITY AND COUNTY OF DENVER, acting by, and through its Board

of Water Commissioners; W. Thomas Richards, individually

and in his official capacity as Superintendent of

Maintenance of the Denver Water Department; Charles

Chapman, individually and in his official capacity as

Transportation Foreman of the Denver Water Department,

Defendants-Appellees.

David L. SMITH, Attorney-Appellant.

Kelly J. Deherrera, Petitioner, v. Lewis T. BABCOCK, District Judge, Respondent.

Nos. 93-1070, 93-1139.

United States Court of Appeals, Tenth Circuit.

Sept. 3, 1993.

Before TACHA, BRORBY, and KELLY, Circuit Judges.

ORDER AND JUDGMENT ^*

PER CURIAM.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

Attorney David L. Smith and his client Kelly DeHerrera appeal the district court's award of sanctions against Smith (our No. 93-1070). They also petition for a writ of mandamus for relief from the sanctions award and for an order directing the district court to rule on motions and set the case for trial (our No. 93-1139). Because the case in which the sanctions were awarded is still proceeding in the district court, this court lacks jurisdiction over the appeal. Appellees claim this is a frivolous appeal and seek sanctions. We agree that the appeal is frivolous and that sanctions against Smith personally are appropriate. We also deny the mandamus petition. Finally, we conclude that Smith's actions in both this appeal and other recent appeals warrant review by the court's disciplinary panel.

Smith represents DeHerrera in an employment discrimination case in the district court. On January 25, 1993, the district court denied Smith's ¹ four then-pending motions for reconsideration of the magistrate judge's orders. It also directed that Smith respond to defendants-appellees' motions for attorneys' fees. On February 4, pursuant to 28 U.S.C. § 1927, the district court ordered Smith to pay appellees' attorneys' fees incurred in responding to the four motions for reconsideration. The court noted that it had previously denied six motions for reconsideration that Smith filed and that it had cautioned Smith about the lack of merit to his motions for reconsideration. Characteristically, Smith moved for reconsideration of the February 4 order, and the district court denied that motion. On March 1, the district court ordered Smith to pay appellees $7,627.50 as sanctions under § 1927 and $2,287.50 for Rule 11 sanctions that the magistrate judge had awarded in March 1992. Smith appeals the sanction order. There are still outstanding motions in the district court, and the case has not yet been set for trial.

Noting the probable lack of jurisdiction, this court directed the parties to file briefs simultaneously by May 2 on the jurisdictional issue. Appellees filed their brief on April 12 and indicated they filed it "early in the hope that Mr. Smith will read it and move to dismiss this appeal." Appellees' Mem.Br. at 8. Appellees correctly point out that the jurisdictional issue is controlled by G.J.B. & Assocs., Inc. v. Singleton, 913 F.2d 824 (10th Cir.1990). G.J.B. held first that a sanction order is not a final order for 28 U.S.C. § 1291 purposes:

Without undue analysis, we join the majority of circuit courts that have addressed the issue and hold that a sanction order against an attorney currently of record is not a final decision for purposes of a § 1291 appeal where the underlying controversy remains unresolved.

913 F.2d at 827. G.J.B. then held that a sanction order is also not appealable under the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). G.J.B., 913 F.2d at 829. Contending there is no merit to any argument in favor of jurisdiction, appellees request sanctions for a frivolous appeal of $1,200.00 in attorneys' fees.

Smith filed his jurisdictional brief (which also included a petition for a writ of mandamus) on April 30. Smith cites G.J.B. but does not recognize it as controlling authority. He contends that the sanction order falls within the collateral order doctrine. He first quotes two long paragraphs from G.J.B.--paragraphs that precede the court's holding that a sanction order does not fall within the Cohen exception--in which the court notes there is a split of authority among the circuits over Cohen 's applicability to sanction orders, and then discusses the Cohen requirements for a collateral order. Appellant's Mem.Br. at 9 (quoting G.J.B., 913 F.2d at 827-28). Citing a number of cases from other circuits, including several that the court specifically rejected in G.J.B., Smith then argues that the sanction order is an appealable collateral order because it "conclusively determined the disputed question of sanctions, and resolved this important issue completely separate from the merits of the action." Appellant's Mem.Br. at 10.

Smith further contends that "[i]f the Plaintiff ultimately prevails on the merits, or if the case is settled, Plaintiff's attorney might never be able to receive any appellate review of Judge Babcock's orders if he is denied that opportunity now. Judge Babcock's orders are therefore effectively unreviewable on appeal from a final judgment, and are clearly appealable under ... Cohen." Appellant's Mem.Br. at 10. We recognized and rejected this precise argument in G.J.B. when we concluded that a sanction order was not an appealable collateral order:

[W]e join the First, Third and Fifth Circuits and hold that a sanction order against counsel currently of record is not appealable under the Cohen collateral order exception to the final judgment rule. Instead, counsel must await the conclusion of the underlying lawsuit and then appeal under § 1291. We reject any notion that an attorney risks losing the right to appeal if the parties settle or elect not to appeal from the final judgment.... [W]e see nothing to prohibit an attorney of record from appealing a sanction order when the main case concludes. Such an appeal is best heard after final judgment since the appellate court will likely need to review the record as a whole to determine the propriety of sanctions.

913 F.2d at 829 (citations and footnote omitted).

Inexplicably, Smith acknowledges G.J.B.'s rejection of an attorney's loss of appeal rights, but then says that even if he has not lost the right to appeal, "he has lost the $9,915.00 that Judge Babcock has ordered him to pay." Appellant's Mem.Br. at 11-12. His contention appears to be that the mere size of the sanction award requires a different result from G.J.B. See id. at 12. He cites no authority for this argument, nor does he indicate what harm he will suffer from having to pay the sanctions prior to resolution of the case on the merits. Again, G.J.B. rejected...