Starr v. Mandanici

• Decision Date: 23 June 1998
• Docket Number: No. 97-3939,97-3939
• Parties: In re: Independent Counsel Kenneth W. STARR, Appellee, UNITED STATES DEPARTMENT OF JUSTICE, v. Francis T. MANDANICI, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 741

152 F.3d 741

In re: Independent Counsel Kenneth W. STARR, Appellee,

UNITED STATES DEPARTMENT OF JUSTICE, v. Francis T. MANDANICI, Appellant.

No. 97-3939.

United States Court of Appeals,

Eighth Circuit.

Submitted March 5, 1998.

Decided June 23, 1998.

Francis T. Mandanici, pro se

LeRoy Morgan Jahn, Little Rock, AR, argued (Darrell M. Joseph, on the brief), for Appellee.

Before McMILLIAN, BEAM and LOKEN, Circuit Judges.

McMILLIAN, Circuit Judge.

Francis T. Mandanici, an attorney who resides in Connecticut, appeals pro se from final orders entered in the United States District Court for the Eastern District of Arkansas, dismissing his "ethics grievance" brought under the color of Rule V(A) of the American Bar Association's Model Federal Rules of Disciplinary Enforcement, ¹ In re Starr, 986 F.Supp. 1159 (E.D.Ark.1997) (Starr II), and denying his motions for recusal. Id., 986 F.Supp. 1157 (E.D.Ark.1997) (Wright, J.); id., 986 F.Supp. 1159 (E.D.Ark.1997) (order) (Reasoner, C.J.). For reversal, Mandanici argues that the district court erred or, in the alternative, abused its discretion in refusing to refer his grievance for investigation and the prosecution of a formal disciplinary proceeding under Rule V(A). Mandanici also argues that Chief Judge Reasoner and Judge Wright abused their discretion in refusing to recuse themselves from the adjudication of Mandanici's grievance. For the reasons discussed below, we dismiss this appeal for lack of jurisdiction.

Background ²

This case originated from an "ethics grievance" addressed to the District Judges of the United States District Court for the Eastern District of Arkansas in the form of a letter dated September 11, 1996 (hereinafter "Mandanici I"). In that letter, Mandanici complained to the district court that Independent Counsel Kenneth W. Starr violated (and, presumably continues to violate) ethical rules concerning conflicts of interest during the course of what is widely known as the Whitewater investigation. Specifically, Mandanici alleged that Starr's substantial ties with the Republican Party create a conflict of interest because the Republican Party has a stake in the outcome of the Whitewater investigation. Mandanici also alleged that Starr has or at one time had a conflict of interest arising out of his investigation of the now-defunct Resolution Trust Corporation (RTC) in connection with Whitewater and a lawsuit that the RTC filed against Starr's law firm. ³ Mandanici alleged that the lawsuit was ultimately settled in secret for $300,000, saving Starr's firm an estimated $700,000.

In light of these allegations, Mandanici requested that the district court refer both matters for investigation and prosecution, pursuant to Rule V(A) of the Model Rules, ⁴ and sought disciplinary enforcement against Starr in the form of disbarment, suspension, reprimand, or other sanction. The district judges initially voted to refer the matter to the Attorney General for review, pursuant to 28 U.S.C. § 596, ⁵ which confers upon the Attorney General the power to remove an independent counsel. See id. The United States Department of Justice (DOJ) responded by letter dated February 7, 1997, which stated, in pertinent part, that the DOJ would take no action against Starr because the "materials that have been presented ... do not contain allegations of any conduct by [ ] Starr that can be viewed as so 'extreme' as to call for the Attorney General's use of the extraordinary power of removal." Joint Appendix (J.A.) at 247 (Letter from Michael E. Shaheen, Jr. ⁶ to Chief Judge Reasoner of Feb. 7, 1997). The letter further stated:

With respect to the allegation of a conflict of interest regarding the RTC, it is true that the materials presented to [the DOJ] on their face indicate that [ ] Starr at one time may have suffered from at least a technical conflict of interest. However, those materials also make clear that no such conflict exists at this point. Consequently, there is no information to support the proposition that such a conflict, if in fact it ever actually existed, substantially impairs [ ] Starr's current ability to carry out the duties of his office.

Id.

After receiving a copy of the DOJ's response, Mandanici reasserted his grievance to the district court in a letter dated March 11, 1997 (hereinafter "Mandanici II"). This time Mandanici focused on the RTC allegations and the added allegation that Starr's then-recent acceptance of a deanship at the School of Public Policy (SPP) at Pepperdine University created a conflict of interest. According to Mandanici, the latter conflict derived from the SPP's substantial endowment from Richard Mellon Scaife, whose criticisms of President Clinton have been widely publicized. Mandanici alleged that Scaife has spent millions of dollars to promote the Whitewater investigation and to press a media campaign to discredit the President.

On August 1, 1997, the district court filed the first of its published opinions in this matter. ⁷ In re Starr (Starr I), 986 F.Supp. 1144 (E.D.Ark.1997). The opinion set forth the bases for the recusal of Judges Roy, Woods, Wilson, and Moody. ⁸ The opinion also contained a lengthy, critical analysis of Mandanici's allegations, authored by Judge Eisele, which different majorities of the court joined in part. ⁹ Id. at 1145-55. Judge Eisele's analysis was originally printed in the district court's earlier slip opinion, see In re Starr, No. LR-M-97-91 (E.D.Ark. May 30, 1997) (slip op.), and addressed the question of standing, the rules of the court, the court's authority, and the substantive allegations in Mandanici II. His discussion of the allegations was limited, however, to the Pepperdine-Scaife issue, and did not address the RTC allegations. ¹⁰

As a preliminary matter, the district court ¹¹ determined that standing was not a "real issue." Id. at 1148. The district court treated Mandanici's grievance as that of a "witness or other third party, even if anonymous, who informed the court of ... an alleged conflict in counsel's representation." Id. Further, the district court emphasized that Mandanici is not a party to any action pending before the court nor is he a "person with the ability to submit a motion upon which the Court is duty-bound to act." Id.

In its discussion of the merits of the case, the district court rejected a strict, textualist reading of Rule V(A), which provides in pertinent part:

When misconduct or allegations of misconduct, which if substantiated, would warrant discipline on the part of an attorney admitted to practice before this Court shall come to the attention of a Judge of this Court ... the Judge shall refer the matter to counsel for investigation and the prosecution of a formal disciplinary proceeding or the formation of such other recommendation as may be appropriate.

Mod. Fed. R. Disc. Enf. V(A) (emphasis added). The district court held that, despite its use of the word "shall," Rule V(A)'s language is precatory in nature and does not give rise to an obligation on the part of the district court to refer such complaints for investigation and prosecution. ¹² Id. at 1149. In light of this determination and their respective friendships with the President and Mrs. Clinton, Judges Roy, Woods, and Wilson recused themselves. ¹³ Id. at 1156.

In a subsequent opinion granting a motion by the OIC to dismiss Mandanici's complaints, Judge Wright, writing for the majority, ¹⁴ determined that Mandanici's allegations did not warrant referral for investigation and prosecution. Starr II, 986 F.Supp. at 1168. In reaching this conclusion, the district court specifically relied on the following factors (1) Mandanici's complaint represented "a personal crusade to discredit the Independent Counsel"; (2) there was no specific evidence of misconduct by Starr in the course of the proceedings before the district court; and (3) after reviewing Mandanici's allegations, the DOJ determined that there was no basis for action by that office. ¹⁵ Id. at 1161.

By separate orders dated October 2, 1997, Chief Judge Reasoner and Judge Wright denied motions by Mandanici seeking their recusal in light of an alleged "appearance of impartiality" arising in part from Judge Wilson's comment that "the district judges of the eastern District who were foes of the Clintons during their Arkansas days are not recusing...." See Starr II, 986 F.Supp. at 1157.

Mandanici appeals from the portion of the district court order dated October 2, 1997, dismissing Mandanici II. ¹⁶ In addition, Mandanici appeals from the separate orders of Chief Judge Reasoner and Judge Wright declining to recuse themselves.

Discussion

As stated above, the primary issue on appeal is whether Mandanici has standing. If Mandanici does not have standing, then this court does not have jurisdiction to decide any other issues raised on appeal. Steel Co. v. Citizens for a Better Env't, --- U.S. ----, ----, 118 S.Ct. 1003, 1012, 140 L.Ed.2d 210 (1998) (" 'Without jurisdiction the court cannot proceed at all in any cause.' ") (rejecting doctrine of "hypothetical jurisdiction") (quoting Ex parte McCardle, 74 U.S (7 Wall.) 506, 514, 19 L.Ed. 264 (1868)). However, before examining this court's jurisdiction, we are obligated to determine whether jurisdiction was proper in the district court, especially because it is not readily apparent nor was it determined conclusively by the district court. ¹⁷ See, e.g., Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986) ("[E]very federal appellate court has a special obligation to 'satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review,' even though the parties are prepared to concede it.") (quoting Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 79 L.Ed. 338 (1934)).

There is long-standing precedent in this circuit that informants of ethics grievances lack standing to commence a formal action, and...