Pontarelli v. Stone, Schiff ( 1992 )


Menu:
  • USCA1 Opinion













    November 4, 1992 UNITED STATES COUT OF APPEALS
    FOR THE FIRST CIRCUIT
    _____________________
    No. 92-1295

    TROOPER ALVIN T. PONTARELLI, ET AL.,

    Plaintiffs-Appellees,

    v.

    WALTER E. STONE, ET AL.,

    Defendants-Appellees.

    ____________________

    INA P. SCHIFF,

    Appellant.

    ____________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF RHODE ISLAND

    [Hon. Ernest C. Torres, U.S. District Judge]
    ___________________

    ____________________

    Before

    Torruella, Circuit Judge,
    _____________

    Brown,* Senior Circuit Judge,
    ____________________

    and Stahl, Circuit Judge.
    _____________

    _____________________

    Ina P. Schiff pro se.
    _____________
    Max Wistow, with whom Michael H. Feldhuhn, Wistow & Barylick
    __________ ___________________ _________________
    Incorporated, Thomas J. McAndrew, James E. O'Neil, Attorney
    ____________ ____________________ ________________
    General and Robin E. Feder, were on joint brief for defendants-
    _______________
    appellees Walter E. Stone, Lionel J. Benjamin and State of Rhode
    Island.


    ____________________

    * Of the Fifth Circuit, sitting by designation.



















    ____________________


    ____________________



























































    TORRUELLA, Circuit Judge. This case is before us in an
    _____________

    unusual posture because all parties have settled the merits of

    the underlying disputes. There only remains a matter raised by

    the former attorney of one of those parties. We are thus

    presented with a narrow decisional issue: whether there is an

    appropriate appellate controversy to be passed upon by this

    court. For reasons hereinafter stated, we rule in the negative

    and dismiss the appeal.

    The factual background to this appeal is bizarre, not

    to say byzantine. The underlying suit filed in the United States

    District Court for the District of Rhode Island charged sex

    discrimination and retaliation. It was initially brought by six

    plaintiffs (five individual state troopers and the Rhode Island

    State Police Lodge 25) against the State of Rhode Island,

    Attorney General Arlene Violet ("Violet"), and various officers

    of the Rhode Island State Police and its Training Academy.

    Appellant Ina Schiff represented all plaintiffs from the outset,

    but had co-counsel by the time of trial. Only one plaintiff's

    claims, Mary Nunes', reached trial. The jury found in favor of

    Nunes on some counts. After remittitur, she was awarded nominal

    compensatory damages and $15,000 in punitive damages.

    All the other plaintiffs took voluntary dismissals. Of

    the original defendants, only two remained in the case after

    appeal. Violet won a judgment on the pleadings; another

    defendant was dismissed by the court on a post-verdict motion,

    and an appeal to this court resulted in dismissal against the


    -3-
    3














    State of Rhode Island. Pontarelli v. Stone, 930 F.2d 104 (1st
    __________ _____

    Cir. 1991). Plaintiff Nunes' attempt to appeal from the judgment

    failed because her name had been omitted from the notice of

    appeal (prepared by appellant Schiff), id. at 108-12. By the
    __

    time of the Court of Appeals' decision, however, appellant Schiff

    no longer represented plaintiff Nunes and had been substituted by

    other counsel.

    Nevertheless, after Nunes' judgment against the

    remaining two defendants became final, appellant Schiff in

    February, 1989 petitioned for $511,951 in attorney's fees and

    $203,268.28 in costs on behalf of "all plaintiffs." Defendants

    also petitioned for fees. After lengthy discovery and hearings

    conducted on six dates, the court on January 16, 1992 denied

    appellant Schiff's petition in its entirety, instead awarding

    fees to defendant Violet in the amount of $54,168.50. The

    district court denied the award in a well-documented memorandum

    and order, stating as grounds: (1) the failure of appellant to

    maintain contemporaneous time records; (2) the failure of

    appellant to allocate the time spent on her client's case among

    the various claimants; (3) the failure of appellant to exclude

    time that was unrelated to the federal court case, time that was

    duplicative and unproductive; and (4) the failure to document her

    request. See Pontarelli v. Stone, 781 F. Supp. 114 (D.R.I.
    ___ __________ _____

    1992).

    As part of its findings, the district court concluded

    that appellant's misrepresentations regarding the fees and costs


    -4-
    4














    request warranted referral of the matter to the attention of the

    Rhode Island Supreme Court's Chief Disciplinary Counsel "for such

    investigation and/or disciplinary action as she may deem

    appropriate." Id. at 127.
    __

    On February 13, 1992, appellant Schiff requested an

    extension of time from the district court in which to file an

    appeal on her own behalf, alleging that she was too ill to file

    within the allotted 30 days. The request was provisionally

    granted by the district court, but she was directed to supply the

    court, no later than by February 27, 1992, with an affidavit

    supporting her contention that she was ill.1

    Meanwhile, on February 26, 1992, plaintiffs other than

    Nunes filed a separate appeal (No. 92-1267), in which they were

    represented by separate counsel than that representing appellant

    Nunes.

    On March 6, 1992, appellant Schiff, on her own behalf,

    filed a notice of appeal to the district court's order denying

    fees and costs. This is the appeal presently before us (No. 92-

    1295). Nunes has at no time appealed from the fees' order,

    either through appellant Schiff or in any other manner.

    In response to a motion to dismiss filed by appellees

    challenging appellate Schiff's standing, we consolidated the

    present appeal with that in No. 92-1267. On May 27, 1992, the

    day after we entered that unfortunate order, the appealing

    ____________________

    1 Although appellant Schiff filed an affidavit on February 27,
    1992, there is a substantial issue as to whether it complies with
    the order.

    -5-
    5














    plaintiffs in No. 92-1267 stipulated to dismissal of their appeal

    with prejudice, after which plaintiffs and defendants settled the

    underlying case and filed appropriate satisfaction of judgments

    notices with the Clerk.

    It is abundantly clear after oral argument, if it was

    not before, that appellant Schiff does not at present seek review

    of the district court's denial of attorney's fees and costs to

    her client, nor does she challenge the decision on the merits of

    the case before said court. It is just as well, as an attorney

    lacks separate standing to appeal from a judgment awarding or

    denying fees to a party, since such concessions are granted to

    parties, not their attorneys. See Ben tez v. Collazo-Collazo,
    ___ _______ _______________

    888 F.2d 930, 933 (1st Cir. 1989). Furthermore, although it

    should be unnecessary to state at this point, any appeal

    regarding the merits of the case below is clearly moot as not

    only have plaintiffs stipulated the dismissal of the appellate

    proceeding but they have, as previously stated, settled the

    underlying dispute with defendants.

    The focus of appellant Schiff's claim before us is

    directed to allegations regarding the district judge's conduct in
    ________ _______ _______

    the proceedings before him. In this regard, it is claimed that

    the district judge should have recused himself from participating

    in these proceedings pursuant to the mandate of 28 U.S.C. 455,

    which requires that a judge "disqualify himself in any proceeding

    in which his impartiality might reasonably be questioned." 28

    U.S.C. 455(a). Appellant Schiff alleges that the district


    -6-
    6














    judge's wife was awarded discretionary consulting contracts by

    the defendant state totaling the sum of $89,390.50 while the

    present case was sub judice. Appellant Schiff further claims
    __________

    that the district judge acted as a special master in a civil

    rights action related to the subject matter of the present case,

    and that during its pendency, defendant state's counsel reviewed

    the reasonableness of the district judge's bill and recommended

    that the bill be paid.

    These allegations, on their face, raise serious charges

    of impropriety by a judicial officer. That by itself, however,

    does not, as the present appeal stands, grant appellate

    jurisdiction to this court regarding the merits of those

    contentions.2

    Even assuming that appellant Schiff raised the issue of

    the district judge's disqualification in a timely fashion and

    before the appropriate forum, a question as to which there is

    considerable doubt, see Delesdernder v. Porterie, 666 F.2d 116
    ___ ____________ ________

    (5th Cir. 1982), cert. denied, 459 U.S. 839 (1983), the mooting
    _____________

    of the appeal on the merits by plaintiffs' settlement of the

    ____________________

    2 Appellant Schiff argues that even if we lack appellate
    jurisdiction, we should assert jurisdiction pursuant to 28 U.S.C.
    1651 as a petition for mandamus. Judicial disqualification is
    a suitable issue for the exercise of mandamus jurisdiction. In
    __
    re U.S., 666 F.2d 690, 694 (1981). However, mandamus is
    ________
    appropriate only when no other adequate means of obtaining the
    desired relief exists. Department of Navy v. F.L.R.A., 835 F.2d
    __________________ ________
    921, 923 (1st Cir. 1987) (citing Allied Chemical Corp. v.
    _______________________
    Daiflon, Inc., 449 U.S. 33 (1980)). In the present case, Schiff
    _____________
    requests no relief based upon the merits of the case below. We
    therefore assume that she seeks only punishment of the judge. As
    we explain below, Schiff clearly has an adequate remedy available
    to her to obtain this relief.

    -7-
    7














    underlying case also moots any remedy that could be granted by

    this court. More on point, before an appellate court can make a

    ruling on the appropriateness of disqualification by a district

    judge, the issue must be raised as soon as the cause is known, a

    factual record must be made, a ruling adverse to appellant must

    be made on that record, the matter must be properly appealed, and

    the underlying dispute as to which the district court ruling is

    relevant must still remain a live controversy when the issue

    comes for resolution by the court of appeals. None of these

    conditions presently exist. But we need not discuss them

    seriatim, as the last one is by itself dispositive.

    If a trial judge has wrongly failed to disqualify him

    or herself, the remedy to correct this situation is for the

    appellate court to reverse the decision of the case on the merits

    and to order a new trial before a different judge. Were we to

    entertain what remains of this appeal, that is, appellant's

    challenge to the trial judge's participation in the proceedings

    below, there remains nothing as to which we could order a

    reversal on the merits or as to which we could order a new trial

    or hearing. Clearly, nothing remains of the suit that was

    brought by plaintiffs against defendants in the district court.

    The case, and all its appendages and side issues, has been mooted

    because the real parties to the real controversy have decided

    there is no longer a controversy. It goes without saying that it

    is the existence of a controversy that grants federal courts,

    district or appellate, the power to act. The lack of such a


    -8-
    8














    controversy deprives federal courts of authority to further

    exercise their authority, except as to incidental matters. Under

    the present circumstances, in which our intervention would be

    only of academic interest or advisory in nature, dismissal of

    appellant's appeal is obligatory.

    In the interest of maintaining judicial integrity,

    however, we are required to state what must already be known by

    appellant Schiff as an experienced practicing attorney.

    Appellant Schiff is not without a forum in which to make any

    claims that she may believe are justified regarding what she may

    perceive to be judicial misconduct. See 28 U.S.C. 372(c)
    ___

    (Supp. 1992). It is before the forum created by this statute

    that she should seek redress in any case involving alleged

    judicial misconduct. Needless to say, by so stating we do not

    pass judgment upon the merits of such a claim. We only rule

    that, for the reasons stated above, the present appeal is mooted

    and is thus not properly before us.

    The appeal is dismissed. Costs to appellees.
    _______________________


















    -9-
    9