Smith, In re

• Decision Date: 29 November 1993
• Docket Number: No. 93-631,93-631
• Citation: 10 F.3d 723
• Parties: In re David L. SMITH.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 723

10 F.3d 723

In re David L. SMITH.

No. 93-631.

United States Court of Appeals, Tenth Circuit.

Nov. 29, 1993.

Before: SEYMOUR, BALDOCK and BRORBY, Circuit Judges.

ORDER

PER CURIAM.

Respondent was ordered to show cause why he should not be fined, disbarred or otherwise disciplined for filing frivolous appeals in numbers 93-1070 and 93-1139, Deherrera v. Denver, 7 F.3d 1044 (10th Cir.1993) after the entry of this court's orders in Sandlin v. Canady (In re Canady), 993 F.2d 1551 (10th Cir.1993) and Dunkin v. Louisiana-Pacific Corp., Nos. 92-1230 & 92-1381 (10th Cir. February 11, 1993), cert. denied, --- U.S. ----, 114 S.Ct. 87, 126 L.Ed.2d 54 (1993) and for filing a frivolous appeal in Casillan v. Regional Transportation District, 986 F.2d 1426 (10th Cir.1993). Respondent maintains the appeals were not frivolous. We disagree.

The appeals were found to be frivolous by the panels who decided them. We cannot overrule the judgment of another panel of this court. We are bound by the precedent of prior panels absent en banc reconsideration or a superseding contrary decision by the Supreme Court. United States v. Killion, 7 F.3d 927 (10th Cir.1993); United States v. Spedalieri, 910 F.2d 707, 710 n. 3 (10th Cir.1990) (a three-judge panel cannot overrule circuit precedent); United States v. Berryhill, 880 F.2d 275, 277 (10th Cir.1989), cert. denied, 493 U.S. 1049, 110 S.Ct. 853, 107 L.Ed.2d 846 (1990).

Respondent filed a petition for certiorari in Dunkin. The question presented for review was,

"Whether an order sanctioning counsel currently of record is immediately appealable under the collateral order exception rule established by this Court in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).

Whether sanctions may be imposed against counsel for filing appeals warranted by existing law or by a good faith argument for the extension, modification or reversal of existing law."

Petition for certiorari, attached to appellant's motion to recall and stay the mandate filed July 12, 1993, in Dunkin v. Louisiana-Pacific Corp., Nos. 92-1230 & 92-1381 (10th Cir. February 11, 1993). Certiorari was denied without comment. Dunkin and Smith v. Louisiana-Pacific Corp., --- U.S. ----, 114 S.Ct. 87, 126 L.Ed.2d 54 (1993).

At oral argument, respondent admitted that he has not paid any of the sanctions that have been imposed on him by this court or the district court. David L. Smith is suspended from the practice of law before ...