Michael Stosic v. ( 2019 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 18-3255
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IN RE: MICHAEL ELIAS STOSIC,
Appellant
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Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-16-mc-00190)
District Judge: Honorable Paul S. Diamond
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Submitted Under Third Circuit LAR 34.1(a)
April 15, 2019
Before: AMBRO, GREENAWAY, JR., and SCIRICA, Circuit Judges
(Opinion filed May 8, 2019)
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OPINION*
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AMBRO, Circuit Judge
Michael Stosic appeals the District Court’s order denying his request for
“clarification” of a prior order that disbarred him from the District Court. We affirm.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
I. Background1
In September 2016 the Commonwealth of Pennsylvania suspended Stosic from
practicing law for a year and a day because he repeatedly failed to represent his clients
with diligence and professionalism. (Report and Recommendation (“Report”) at 1–2.)
One week after the Pennsylvania suspension took effect, the District Court ordered him to
show cause, within 30 days, why it should not impose reciprocal discipline. (September
22, 2016 Order to Show Cause.) When Stosic did not answer or respond to that order, the
District Court issued an order to suspend him from practicing in that Court effective
October 21, 2016. (Id.)
Despite the impending suspension, in mid-October Stosic represented a criminal
defendant in a jury trial before Judge Harvey Bartle, III. (Id.) The trial concluded just
three days before the District Court’s suspension took effect. (Id.) The defendant in that
case, who faced a maximum sentence of 30 years’ incarceration on each of six conspiracy
charges, was convicted on all counts. (Id.)
After learning that Stosic represented a criminal defendant in federal court while
under state suspension, Chief District Judge Tucker convened a panel of three District
Judges to determine “whether discipline should be imposed upon [Stosic], and if so to
what degree.” (October 27, 2016 Order.) The panel conducted a hearing in November
2016. (Report at 5.) There, Stosic—who appeared pro se—conceded the imposition of
1
We draw the facts from a report and recommendation prepared by a three-judge panel in
the District Court that was convened specifically to investigate alleged attorney misconduct
by Stosic.
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reciprocal discipline in the District Court based on his state suspension, but opposed any
additional discipline for the failure to disclose his suspended status. (Id. at 4–5.)
Throughout the hearing Stosic was “flippant, smug, and otherwise inappropriate.”
(Id. at 9.) Stosic repeated that he did not have to tell his client of his suspension
because—at the time of the criminal trial—he “was [still] a licensed attorney.” (Id. at 5.)
Stosic further offered to “take a lie detector right now that [his client] was aware” and
said he would “bow before this court” and swear his client was “1,000 percent aware of
everything.” (Id.) The panel discredited “this belated, highly dubious account.” (Id.) At
the end of the hearing, the panel explained to Stosic that he had a right to object to its
forthcoming report and recommendation; he responded, “[y]eah, I mean it’s whatever.”
(Id. at 9.)
Based on the November 2016 hearing, the panel determined Stosic had indeed
failed to disclose his suspended status per the applicable ethical rules, namely
Pennsylvania Rule of Disciplinary Enforcement 217. (Id. at 5–6.) But the panel
discerned a more serious ethical violation as well: Stosic not only failed to make the
notifications required under Rule 217, but he also submitted a false certification of
compliance to the Pennsylvania Disciplinary Board. (Id. at 7–9.) The panel issued an
order that informed Stosic of their determination that he “may not have complied fully
with [Rule] 217” and that a violation of that Rule “could constitute separate grounds for
the imposition of discipline.” (November 21, 2016 Order.) The order invited Stosic to
either appear for a second hearing or present additional evidence on whether he complied
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with Rule 217. (Id.) Stosic did not request another hearing, did not submit additional
evidence, and did not respond to that order. (Report at 9.)
In a Report and Recommendation issued in January 2017, the three-judge panel
recommended Stosic’s disbarment from the District Court. (Id. at 11.) The panel found
disbarment appropriate for three reasons: (1) Stosic failed to inform his client or Judge
Bartle of his suspension pursuant to Rule 217; (2) he made false representations to the
Pennsylvania Disciplinary Board; and (3) he comported himself in a “grossly
inappropriate” manner during the November 2016 hearing. (Id.)
The District Court entered an order adopting the Report and Recommendation on
March 15, 2017. By that order Stosic was disbarred from the District Court. (March 15,
2017 Order.) Thereafter the Commonwealth disbarred Stosic from the practice of law in
Pennsylvania as reciprocal discipline based on his disbarment in the District Court. (Pet’r
Br. at 15.)
On September 20, 2018, more than a year and a half after he was disbarred in the
District Court, Stosic filed a motion for “clarification” of the three-judge panel’s January
2017 Report and Recommendation. (Pet’r Br. at 5.) The motion sought clarification on
whether his District Court disbarment was reciprocal to the Pennsylvania suspension or
was instead “original” discipline for distinct ethical violations. (Pet’r Br. at 4–5.)
District Judge Diamond summarily denied that motion the same day it was filed.
(September 20, 2018 Order.)
Stosic asks us to review the District Court’s denial of his motion for clarification.
(Pet’r Br. at 2.) He also contends he was deprived of procedural due process during his
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disciplinary proceedings in the District Court because the three-judge panel did not file
formal charges, create a separate docket, give notice of a hearing, or give notice of
possible non-reciprocal sanctions. (Pet’r Br. at 20.)
II. Discussion
As his primary argument on appeal, Stosic claims the District Court should have
granted his request for “clarification” of whether his order of disbarment was original or
reciprocal discipline. (Pet’r Br. at 2.) He does not identify any statute or other authority
that would entitle him to “clarification” of that order. Nor does he explain the procedural
framework that governs our review of the District Court’s denial of his motion for
clarification of that order. Construing Stosic’s submission to us generously to find a
procedural hook for it, see United States v. Miller, 197 F.3d 644, 648 (3d Cir. 1999), we
consider his submission first as an appeal from an order denying a motion for
reconsideration, see United States v. Fiorelli, 337 F.3d 282, 288 (3d Cir. 2003), and
second as a petition for a writ of mandamus compelling the District Court to clarify its
prior order, see In re Patenaude, 210 F.3d 135, 140 (3d Cir. 2000).
To the extent we review Judge Diamond’s September 2018 order as a denial of a
motion for reconsideration, we perceive no error. In the District Court, a party may move
for reconsideration “within 14 days after the entry of the judgment, order or decree
concerned.” Local R. Civ. P. 7.1(g). It disbarred Stosic in March 2017, yet he did not
seek clarification of the order until September 2018, well over a year later. Hence the
motion was properly denied as untimely.
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To the extent we review Stosic’s appeal as a petition for a writ of mandamus, we
likewise do not grant relief. Writs of mandamus are used “to confine an inferior court to
a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority
when it is its duty to do so.” In re Patenaude, 210 F.3d 135, 140 (3d Cir. 2000)
(quotation omitted). Stosic does not argue the District Court exceeded the scope of its
authority; rather, he appears to contend the Court failed to discharge a duty to issue a
clarification of its prior order upon his request. We reject that contention. Although a
district court may in some circumstances entertain a motion for clarification to resolve an
ambiguity in a prior order, see, e.g., Philip Morris USA, Inc., 793 F. Supp. 2d at 168,
Stosic has not shown the District Court had any duty to do so here.
Moreover, the District Court’s order of disbarment is not ambiguous. It clearly
states that Stosic’s disbarment was premised on (1) his failure to notify his client and
Judge Bartle of his state suspension, and (2) the evidence gathered through the panel’s
hearing on November 10, 2016. At no time does the order reference reciprocal discipline
or the ethical violations that underpinned Stosic’s state suspension. Further, the well-
documented proceedings that led to the disbarment confirm that the District Court’s
discipline was not reciprocal: during and after the November 10 hearing, the panel
explicitly told Stosic that his false certification to the Pennsylvania Disciplinary Board
could “constitute separate grounds for the imposition of discipline.” Viewed in the
context of the full District Court record, there is no doubt that the Court’s order of
disbarment imposed “original” discipline.
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Finally, we are not troubled by the procedure employed by the District Court to
reach its decision to disbar Stosic. In November 2016, Chief Judge Tucker ordered a
three-judge panel to determine whether Stosic should be disciplined for failing to disclose
his state suspension. The order made clear the panel would investigate ethical conduct
distinct from that underlying Stosic’s state suspension. Indeed, although Stosic conceded
the imposition of reciprocal discipline, he expressly contested further discipline related to
his failure to provide notice. In doing so, Stosic implicitly recognized the possibility that
separate sanctions could result from his nondisclosures. The panel’s inquiry during the
November 10, 2016 hearing further confirmed that it was considering the need for
discipline that went beyond the existing state suspension. And, after the hearing, the
panel issued an order expressly notifying Stosic that he “may not have complied fully
with Pennsylvania Rule of Disciplinary Enforcement 217.” (November 21, 2016 Order.)
The order informed Stosic that a violation of Rule 217 “could constitute separate grounds
for the imposition of discipline.” (Id. (emphasis added).) The panel invited Stosic to
appear for another hearing or to present additional evidence on whether he complied with
the Rule. But Stosic passed on that invitation; he neither requested the second hearing
that was offered nor presented any additional evidence. He thus does not give any
specific reason to believe these procedures were inadequate.
In this context, we affirm.
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