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USCA1 Opinion
November 4, 1992 UNITED STATES COUT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1295
TROOPER ALVIN T. PONTARELLI, ET AL.,
Plaintiffs-Appellees,
v.
WALTER E. STONE, ET AL.,
Defendants-Appellees.
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INA P. SCHIFF,
Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
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Before
Torruella, Circuit Judge,
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Brown,* Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Ina P. Schiff pro se.
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Max Wistow, with whom Michael H. Feldhuhn, Wistow & Barylick
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Incorporated, Thomas J. McAndrew, James E. O'Neil, Attorney
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General and Robin E. Feder, were on joint brief for defendants-
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appellees Walter E. Stone, Lionel J. Benjamin and State of Rhode
Island.
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* Of the Fifth Circuit, sitting by designation.
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TORRUELLA, Circuit Judge. This case is before us in an
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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
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State of Rhode Island. Pontarelli v. Stone, 930 F.2d 104 (1st
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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
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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.
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1992).
As part of its findings, the district court concluded
that appellant's misrepresentations regarding the fees and costs
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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.
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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
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1 Although appellant Schiff filed an affidavit on February 27,
1992, there is a substantial issue as to whether it complies with
the order.
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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,
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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
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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
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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
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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
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(5th Cir. 1982), cert. denied, 459 U.S. 839 (1983), the mooting
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of the appeal on the merits by plaintiffs' settlement of the
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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
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re U.S., 666 F.2d 690, 694 (1981). However, mandamus is
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appropriate only when no other adequate means of obtaining the
desired relief exists. Department of Navy v. F.L.R.A., 835 F.2d
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921, 923 (1st Cir. 1987) (citing Allied Chemical Corp. v.
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Daiflon, Inc., 449 U.S. 33 (1980)). In the present case, Schiff
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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.
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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
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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)
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(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.
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Document Info
Docket Number： 92-1295
Filed Date： 11/4/1992
Precedential Status： Precedential
Modified Date： 9/21/2015