Howard v. Mail-Well Envelope Co., MAIL-WELL

• Citation: 150 F.3d 1227
• Decision Date: 29 June 1998
• Docket Number: Nos. 97-1297,97-1392,MAIL-WELL,s. 97-1297
• Parties: 98 CJ C.A.R. 3566 Linda C. HOWARD, Plaintiff, v.ENVELOPE COMPANY, Butler Paper Company, Georgia-Pacific Corporation, Great Northern Nekoosa Corporation Employee Protection Plan, Defendants-Appellees, David L. Smith, Attorney-Appellant. James Edward QUALLS, Plaintiff, v. REGIONAL TRANSPORTATION DISTRICT; Richard Bauman; Robert Garside; Richard Reynolds; Ellsworth Walker; and James Misek, Defendants-Appellees, David L. Smith, Attorney-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1227

150 F.3d 1227

98 CJ C.A.R. 3566

Linda C. HOWARD, Plaintiff, v. MAIL-WELL ENVELOPE COMPANY, Butler Paper Company,

Georgia-Pacific Corporation, Great Northern

Nekoosa Corporation Employee Protection

Plan, Defendants-Appellees,

David L. Smith, Attorney-Appellant.

James Edward QUALLS, Plaintiff, v. REGIONAL TRANSPORTATION DISTRICT; Richard Bauman; Robert

Garside; Richard Reynolds; Ellsworth Walker;

and James Misek, Defendants-Appellees,

David L. Smith, Attorney-Appellant.

Nos. 97-1297, 97-1392.

United States Court of Appeals, Tenth Circuit.

June 29, 1998.

David L. Smith, Pro se Attorney-Appellant.

Brian M. Mumaugh, Jeffrey T. Johnson, of Holland & Hart, Denver, Colorado, for Defendants-Appellees Mail-Well Envelope Co., Butler Paper Co., and Georgia Pacific Corp., and Randall A. Constantine, of Elrod & Thompson, Atlanta, Georgia, for Great Northern Nekoosa Corporation Employee Protection Plan.

Dana N. Mumey, Associate General Counsel, and Erica A. Weber, Assistant General Counsel, Regional Transportation District, Denver, Colorado, for Defendant-Appellee Regional Transportation District.

Before BALDOCK, EBEL, and MURPHY.

PER CURIAM.

Attorney-appellant David L. Smith appeals from adverse decisions in two separate district court proceedings in which he served for a time as plaintiff's counsel. Because these appeals concern interrelated orders and similar issues, the hearing panel has combined them for disposition. ¹ We also announce, with the full participation of the en banc court, general restrictions on Mr. Smith's future appellate filings based on his history of repetitive, meritless litigation in this court.

These appeals may be put in perspective with some factual and procedural background common to both. Much of the information particularly relevant to these proceedings is recited in prior related decisions of this court. See generally Howard v. Mail-Well Envelope Co., 90 F.3d 433 (10th Cir.1996); Qualls v. Regional Transp. Dist., Nos. 95-1385, 95-1459, 95-1489, 1996 WL 412414 (10th Cir.1996). A broader discussion of Mr. Smith's litigious history in this court is included in the last section of this opinion, relating to the proposed filing restrictions.

Mr. Smith was suspended from practice before this court in November of 1993. Thereafter, the district judge entered orders in both of these cases staying proceedings pending a determination of his practice status in the United States District Court for the District of Colorado. Mr. Smith immediately appealed from the stay orders, but this court dismissed his interlocutory appeals for lack of jurisdiction, awarded appellate sanctions to appellees, and remanded for a determination of an appropriate amount.

In the meantime, Mr. Smith was suspended from practice in the district court. Consequently, the district judge lifted the extant stays, acknowledged that Mr. Smith was no longer authorized to appear as counsel, and directed the plaintiffs to secure new legal representation or notify the court of their intention to prosecute their cases pro se. Mr. Smith immediately appealed again, challenging these actions as well as various sanctions imposed against him. These interlocutory appeals were also dismissed for lack of jurisdiction. ²

Ultimately, the parties settled their differences by written stipulation, and the district court entered judgments of dismissal in both cases. Mr. Smith, who personally takes issue with these stipulated dispositions, subsequently filed the instant appeals. Further details relating to the proceedings are included in the discussion of each appeal below.

I

In Howard v. Mail-Well Envelope Company, No. 97-1297, Mr. Smith directly appeals from the district court's judgment dismissing the case pursuant to the parties' stipulation following his withdrawal as plaintiff's counsel. Mr. Smith raises a host of issues. Some of these he lacks standing to assert, many more are simply redundant, and all are, ultimately, meritless.

First of all, as a general matter, Mr. Smith argues that the district court lacked jurisdiction to enter any of the challenged orders after he had taken two interlocutory appeals to this court in the case. It is axiomatic that an effective notice of appeal transfers jurisdiction from the district court to the court of appeals. See Stewart v. Donges, 915 F.2d 572, 575 (10th Cir.1990). However, there are pertinent limitations on this transfer of jurisdiction.

First, no transfer occurs if the appeal is taken from a nonappealable order. See United States v. 397.51 Acres of Land, 692 F.2d 688, 693 (10th Cir.1982); Riggs v. Scrivner, Inc., 927 F.2d 1146, 1148 (10th Cir.1991); see also Stewart, 915 F.2d at 575 (noting transfer of jurisdiction by appeal "from true final judgment or from a decision within the collateral order exception"). Second, the transfer affects only those aspects of the case involved in the appeal. See Stewart, 915 F.2d at 575. Thus, when an appeal is taken from a limited interlocutory ruling, as opposed to one that affects the litigation as a whole, the district court may proceed with the case. Compare Colorado v. Idarado Mining Co., 916 F.2d 1486, 1490 & n. 2 (10th Cir.1990), with Stewart, 915 F.2d at 576. Conversely, even a general appeal does not divest the district court of jurisdiction over peripheral, collateral matters such as attorneys' fees. See Stewart, 915 F.2d at 575 n. 3 (following Garcia v. Burlington N. R.R., 818 F.2d 713, 721 (10th Cir.1987)).

It is evident from a review of the interlocutory appeals cited by Mr. Smith that these exceptions to the jurisdictional rule he relies on are clearly operative here. As the district court has already explained, the cited appeals challenged matters that were of limited scope relative to the litigation as a whole and were, in any event, not immediately appealable--indeed, this court has already confirmed the latter conclusion by its disposition of the appeals. See Howard, 90 F.3d at 435-37 (dismissing appeal No. 95-1428 for lack of an appealable order, and noting previous jurisdictional dismissal of Howard v. Mail-Well Envelope Co., No. 94-1317 (10th Cir. Nov. 15 1994)). Thus, the district court properly proceeded with the case.

Turning now to more specific objections, Mr. Smith contends that by disqualifying him, the district court deprived the plaintiff of her First and Seventh Amendment rights. However, Mr. Smith has standing to raise only issues which concern his own personal interests; grievances he perceives and attributes to a former client are not properly within the scope of this appeal. Compare Uselton v. Commercial Lovelace Motor Freight, Inc., 9 F.3d 849, 854-55 (10th Cir.1993) (attorney cannot personally appeal orders applicable only to party), with Riggs, 927 F.2d at 1149 (attorney may appeal orders issued directly against him).

Mr. Smith's next claim, that the parties' stipulation and the judgment entered thereon deprived him of the benefit of attorneys' fees under 42 U.S.C. § 1988, suffers from a related standing deficiency:

The Supreme Court has made it clear that, in general, statutes bestow fees upon parties, not upon attorneys. Those fees can, therefore, be waived by the party himself. As the Court has said, "just as we have recognized that it is the party's entitlement to receive the fees in the appropriate case, so have we recognized that as far as [42 U.S.C. § 1988] is concerned, it is the party's right to waive, settle, or negotiate that eligibility." Thus, the attorney remains at the mercy of the client, who can either demand attorneys' fees from the defendant, or not, as he chooses. If the client chooses not to ask for the fees, the attorney has no standing to request them.

United States ex rel. Virani v. Jerry M. Lewis Truck Parts & Equip., Inc., 89 F.3d 574, 577 (9th Cir.1996) (citations omitted; alteration in original); see Benitez v. Collazo-Collazo, 888 F.2d 930, 933 (1st Cir.1989) ("The 'prevailing party' language [of § 1988] makes it patently obvious that it is the prevailing party, not the party's counsel, who is entitled to be awarded fees[,]" and, hence, "only the party, and not the attorney, has standing to appeal any such grant or denial."); see also Uselton, 9 F.3d at 854-55 (citing "client's entitlement to attorneys' fees from opposing party" as example of order client, but not counsel, may appeal).

Under these same principles, Mr. Smith may challenge the sanctions imposed against him. See, e.g., Riggs, 927 F.2d at 1149. However, his objections to the legal basis for sanction is precluded by this court's prior decision directing the district court to take such punitive action. See Howard, 90 F.3d at 435. Thus, the only sanction issue before us at this point is whether the district court's calculation of the amount was proper. See id. Mr. Smith's argument in this regard that the district court's reliance on the defendants' application and supporting documentation was somehow improper--when he had filed no objection to these materials--is meritless.

Mr. Smith also complains that he was not given an adequate opportunity to be heard with respect to his disqualification as plaintiff's counsel. Given his formal suspension from practice necessitating the disqualification, this objection is frivolous. Similarly meritless is his completely unsubstantiated accusation of bias on the part of the trial judge.

As noted at the outset, Mr. Smith raises a host of overlapping, repetitious, and conclusory objections. Whether or not each has been expressly included in the above discussion, we have considered all of the issues raised in this appeal and have concluded that Mr. Smith is not entitled to any relief.

Defendants have requested that they be dismissed from further proceedings in this case, asserting that they "have no interest in the outcome of this appeal by Smith." Defendants' Br. at 2. As Mr. Smith's appeal involves a sanction payable to defendants, who have not formally settled or...