In Re: Independent Counsel Kenneth W. Starr, United States Department of Justice v. Francis T. Mandanici

152 F.3d 741, 1998 U.S. App. LEXIS 16185, 1998 WL 327849

• Court: Court of Appeals for the Eighth Circuit
• Decided: June 23, 1998
• Docket: 97-3939
• Status: Published

Opinions

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.

Background²

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 “Man-danici 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 Ei-sele’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 Pepper-dine-Scaife issue, and did not address the RTC allegations.¹⁰

As a preliminary matter, the district court¹¹ determined that standing was not a “real issue.” Id. at 1148. The district court treated Mandaniei’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, textuahst 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 re-cusal 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, Man-danici 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) (“[Ejvery 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 thus have no standing to bring an appeal in such matters. This court visited the issues of standing and jurisdiction in a case analogous to the one at bar over thirty years ago in Mattice v. Meyer, 353 F.2d 316 (8th Cir.1965) (Mattice), where we held that private citizens not only lack standing at law to maintain a disciplinary proceeding as a formal action in the district court, but they also lack standing on appeal.¹⁸ Id. at 319.

In Mattice, a private citizen, joined by other plaintiffs, filed a complaint to have the Attorney General of Nebraska disbarred on account of an alleged ethical violation. In dismissing the appeal from the district court’s refusal to act, this court adopted the Third Circuit’s analysis in Ginsburg v. Stern, 125 F.Supp. 596 (W.D.Pa.1954), aff'd, 225 F.2d 245 (3d Cir.1955) (Ginsburg):

Plaintiffs petition, just as any other complaint of professional misconduct, merely supplied information for the court’s consideration. It is ridiculous to assert that the court has no alternative but to take action against the person complained of. If the court considers that no offense has been committed; or that the allegations of the complaint are insufficient, immaterial, impertinent or scandalous; or that the complaint has been filed from an improper motive; or for any other reason decides not to proceed with the matter, the complainant has no recourse.

Mattice, 353 F.2d at 319 (quoting Ginsburg, 125 F.Supp. at 603). We further observed that

[a]n individual may, acting as an informer, make available to the district court pertinent information bearing upon the qualifications or professional conduct of a member of the federal bar. Beyond that point the individual may not exercise control over the proceedings of the court. Further action, if any, becomes the responsibility of the court.

Id.19 Thus, as the OIC contends, Mattice clearly establishes that Mandanici’s role begins and ends with the filing of his ethics grievance. More important, Mandanici “lacked standing at law to maintain the proceeding as a formal action; absent the pen-dency of an action,” Mandanici has no standing to appeal. Id.

Mandanici attempts to distinguish Mattice by arguing that Rule V(A) and 28 U.S.C. § 1291, which he contends confer jurisdiction, were adopted well after Mattice was decided. However, the plain language of these provisions shows that they, along with Rule 8.3 of the Arkansas Rules of Professional Conduct,²⁰ confer nothing more than standing to complain or inform the court of alleged misconduct; none of these provisions, by their terms or scope, confers standing to commence a ease. Thus, Mandanici could bring his grievance before the district court as an informant only. Absent an action in the district court, he cannot appeal. Accordingly, there is no basis for this court’s jurisdiction on appeal.

Indeed, Mandanici acknowledged during oral argument that, on appeal, the standing issue is the death knell of his ethics grievance, save one finding by this eourt-that he and every other citizen of the United States have standing to pursue the underlying grievance because of the “vital interest” that derives from the “uniqueness” of this case and the proceedings that form its backdrop.²¹ Implicit in this argument, however, is the additional concession that Mandaniei’s interest in pursuing this case is no greater than any other citizen’s. Mandanici nonetheless presses his claim that this case is so unique and the interest so vital that standing is automatically conferred upon every citizen.

We conclude that, although the Whitewater investigation and the propriety thereof are undoubtedly of national import, the constitutional and prudential principles of standing compel us to reject the kind of citizen standing that Mandanici seeks to establish. In order to satisfy Article Ill’s standing requirements, Mandanici must have (1) suffered an injury in fact (2) that is fairly traceable to the challenged conduct and (3) likely to be redressed by the proposed remedy. See, e.g., Steel Co. v. Citizens for a Better Env’t, — U.S. at -, 118 (citations omitted). The injury must be “concrete and particularized,” not “conjectural” or “hypothetical,” and “must affect the plaintiff in a personal and individual way.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 & n. 1, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); see also Gladstone v. Village of Bellwood, 441 U.S. 91,100, 99 S.Ct. 1601, 60 L.Ed.2d 66 (1979) (Gladstone) (“[A] litigant normally must assert an injury that is peculiar to himself [or herself] or to a distinct group of which he [or she] is a part_”). In other words, the injury must be beyond that “‘shared in substantially equal measure by all or a large class of citizens.’” See, e.g., Gladstone, 441 U.S. at 100, 99 S.Ct. 1601 (quoting Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (Worth)); cf. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 482-83, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) (Valley Forge) (“This court has rejected claims of standing predicated on ‘the right possessed by every citizen, to require that the Government be administered according to law -’”) (internal quotation omitted).

The prudential principles of standing ensure that federal courts are not “called upon to decide questions of broad social import in cases in which no individual rights will be vindicated, and [that] access to the federal courts [is] limited to those litigants best suited to assert the claims.” Gladstone, 441 U.S. at 99-100, 99 S.Ct. 1601. Among the prudential concerns is the doctrine that “a litigant’s grievance must arguably fall within the zone of interests protected or regulated by the statutory provision or constitutional guarantee invoked in the suit.” Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 1161, 137 L.Ed.2d 281 (1997) (Bennett) (citations omitted). See generally Association of Data Processing Serv. Org., Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). “[T]he breadth of the zone of interests varies according to the provisions of law at issue_” Bennett, — U.S. at -, 117 S.Ct. at 1161. Thus, in order for Mandanici to demonstrate that he satisfies prudential principles of standing, the provisions of Rule V(A) must afford a right of suit to those who inform the court of the alleged misconduct proscribed by the statute.

Mandanici has failed to demonstrate that he meets the constitutional and prudential requirements of standing. First, he has not articulated what injury he has in fact suffered; instead he asserts that the “uniqueness” of the ease confers standing (and thus, jurisdiction) absent any constitutional basis.²² However, the uniqueness of a case or the vitalness of an alleged interest has never been proved a proxy for the “constitutional minima” of Article III standing and, in any event, does not absolve this court of its duty to determine jurisdiction based on constitutional and prudential principles. In our attempt to fulfill that duty, we cannot discern any injury that is fairly traceable to the conduct of Independent Counsel Kenneth Starr and is distinct and personal to Mandan-ici or a class of litigants of which he is a part. Indeed, Mandanici cannot allege to have suffered an injury that is any greater than that which might have been suffered by other concerned citizens. Under such circumstances, “[t]he federal courts have abjured appeals to their authority which would convert the judicial process into ‘no more than a vehicle for the vindication of the value interests of concerned bystanders.’ ” Valley Forge, 454 U.S. at 473, 102 S.Ct. 752 (quoting United States v. SCRAP, 412 U.S. 669, 687, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973)). In light of the foregoing, we hold that Mandani-ci cannot establish a sufficient injury in fact to satisfy the Article III standing requirements.

Assuming, arguendo, that the Article III requirements of standing were fulfilled, this court still lacks jurisdiction because Mandanici cannot satisfy the judicially-imposed prudential standing principles. See Worth, 422 U.S. at 498, 95 S.Ct. 2197 (holding that standing “involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise”) (citing Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953)). Nothing in the language of Rule V(A) supports the view that the individual or collective concerns of persons such as Mandanici fall within the zone of interests protected by the rule. In short, Rule V(A) does not create a cause of action for informants; rather, Rule V(A) merely guides the district court in the exercise of its inherent right and obligation to oversee the integrity of the court by disciplining the bar. Moreover, Mandanici is not a party to any proceeding involving Starr, the Whitewater investigation, or the OIC, other than the instant case. As the district court determined earlier, Mandanici is a mere “informer,” a supplier of information to whom the district court owes no discrete obligation. “Congress may grant an express right of action to persons who otherwise would be barred by prudential standing rules,” id. at 501, 95 S.Ct. 2197; however, it has not done so in this context. Accordingly, Mandanici has no standing to bring this appeal.

Finally, we feel obliged to explore two other possible grounds for appellate jurisdiction, each of which fails for different reasons. First, it is well-established that courts of appeal may exercise supervisory authority over lower courts. See, e.g., La Buy v. Howes Leather Co., 352 U.S. 249, 259-260, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957). Such authority is typically exercised in the context of criminal proceedings, but has been extended on occasion to monitor the adjudication of civil and quasi-criminal matters. See, e.g., In re Globe Newspaper Co., 920 F.2d 88 (1st Cir.1990) (Globe); In re Furlong, 885 F.2d 815, 819 (11th Cir.1989); In re Snyder, 770 F.2d 743 (8th Cir.1985). These extensions notwithstanding, this court has circumscribed its exercise of supervisory authority to the “judicial activities” of the district courts. In re Pickett, 842 F.2d 993, 995 (8th Cir.1988). Although the underlying allegations may give rise to disciplinary proceedings which constitute judicial activity, we believe that our supervisory authority is further circumscribed by Mandanici’s lack of a personal interest in this litigation.

Indeed, this case is distinguishable from Globe, where the First Circuit took jurisdiction under the All Writs Act to review a district court’s decision to deny public access to the names and addresses of jurors in a prior criminal trial. 920 F.2d at 90. There the court held that the interest of news gathering and the privacy rights of jurors were an appropriate matter for consideration under the court’s supervisory powers. Id. at 90. More important, the court noted that denying access to this information “affects news gathering” and implicates important constitutional and common law rights. Id. at 90, 94-96. The court also interpreted § 10(c) of the District of Massachusetts Plan for Random Selection of jurors as making this information available subject to certain judicial findings that were not made by the district court. However, unlike the petitioner in Globe, Mandanici has no right, by statute or common law, that is implicated by the district court’s failure to make a referral under Ru-leV(A). As noted above, Mandanici cannot demonstrate any injury peculiar to him or to a class of citizens of which he is a part. For these reasons, this court is reluctant to exercise its supervisory authority over the district court in this context.

Second, Rule 46(b) of the Federal Rules of Appellate Procedure provides in pertinent part: ‘When it is shown to the court that any member of its bar has been ... guilty of conduct unbecoming a member of the bar of the court, the member will be subject to suspension or disbarment by the court.” Fed. R.App. P. 46(b). Independent Counsel Kenneth Starr was admitted' to the bar of this court on May 9, 1995, and thus, like any other attorney of this court, is subject to this rule. However, as should be obvious from its similarity to Rule V(A), Rule 46 fails to confer standing upon Mandanici (and thus, jurisdiction upon this court) for the same reasons that Rule V(A) fails to do so-neither rule elevates Mandanici’s status above that of an informant.

Conclusion

In sum, Mandanici has no standing to pursue his grievance in the district courts of this circuit beyond informing those courts of alleged misconduct, and no standing to appeal. Accordingly, we dismiss this appeal for lack of jurisdiction.²³

1 . The United States District Court for the Eastern District of Arkansas has adopted the American Bar Association’s Model Federal Rules of Disciplinary Enforcement which provide that the district court must apply the code of professional responsibility adopted by the highest court of the state in which the district court sits, which, in this case, is Arkansas. See Local Rules for the Eastern & Western Districts of Arkansas at App.-1, Rule VI(B). The Arkansas Supreme Court has adopted the American Bar Association's Model Rules of Professional Conduct as the State of Arkansas’s code of professional responsibility. See In re Arkansas Bar Ass’n, 287 Ark. 495, 702 S.W.2d 326, 393 (1985).

2 . For a more detailed discussion of the factual and procedural background of this case, see Starr II, 986 F.Supp. 1159, 1164-66 (E.D.Ark.1997) (Eisele, J., dissenting); id, 986 F.Supp. 1144, 1145-47 (E.D.Ark.1997) (Starr I).

3 . Starr is a partner in the Washington, D.C., office of the Chicago-based law firm Kirkland & Ellis.

4 . Rule V(A) provides:

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, whether by complaint or otherwise, and the applicable procedure is not otherwise mandated by these Rules, 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).

5 . Section 596 provides in relevant part:

An independent counsel ... may be removed from office, -other than by impeachment and conviction, only by the personal action of the Attorney General and only for good cause, physical or mental disability (if not prohibited by law protecting persons from discrimination on the basis of such a disability), ... or any other condition that substantially impairs the performance of such independent counsel’s duties.

28 U.S.C.A. § 596(a) (West Supp.1997) (footnote omitted).

6 . Counsel with the Office of Professional Responsibility of the DOJ.

7 . On May 30, 1997, the district court filed a slip opinion ordering briefing on the question of Mandanici’s standing. In re Starr, No. LR-M-97-91 (E.D.Ark. May 30, 1997) (slip op.).

8 . Judge Moody recused himself at the outset of the Mandanici II litigation. See Starr I, 986 F.Supp. at 1155. His recusal was confirmed by the district court’s August 1, 1997 opinion. Id. at 1144, 1155.

9 . See infra notes 11-12. Chief Judge Reasoner and Judges Howard and Wright dissented from Judge Eisele’s analysis and conclusions. Id. at 1155.

10 . The opinion states: "In light of the Justice Department's response regarding the older RTC allegations, the Court no longer finds any reason to address the RTC allegations." Id. at 1147. The author of this opinion, speaking for himself only, disagrees with this conclusion.

The DOJ analyzed the RTC allegations pursuant to 28 U.S.C. § 596, which imposes the strict standard of "good cause,” and determined that there was no basis for removal. Indeed, Congress has made clear that the removal power should not be applied to penalize minor or technical violations of ethical or other duties. See J.A. at 247 (Letter from Michael E. Shaheen, Jr. to Chief Judge Reasoner dated Feb. 7, 1997 (citing S.Rep. No. 496, 97th Cong., 2d Sess. 17 (July 14, 1982), reprinted in 1982 U.S.C.C.A.N. 3537, 3553 (”[W]e stress that the Attorney General should use his [or her] removal power in only extreme, necessary cases....”))). Further, the DOJ opined that "apart from the context of removal," the DOJ could not properly "address any allegations that [] Starr has a conflict of interest. An independent counsel is subject to discipline by the Department of Justice only through the statutory removal mechanism." J.A. at 252 (Letter from Michael E. Shaheen, Jr. to Chief Judge Reasoner dated May 21, 1997 (citing 28 U.S.C. § 594(i) (each independent counsel is separate and independent of the DOJ for purposes of enforcing criminal conflict of interest laws))). The DOJ expressly refrained from suggesting whether Mandanici’s allegations warranted further review by the district court and informed the court that it "did not gather any additional facts bearing on the issues before [the district] court.” Id. at 253.

By contrast, in reviewing allegations of ethical violations of the members of its bar, the district court may consider lesser sanctions that are not subject to the same exacting standards required of the Attorney General for removal under § 596. Thus, while the DOJ’s § 596 analysis may guide the district court in conducting its own, independent assessment of Mandanici's allegations, that analysis is of limited applicability and certainly may not supplant that required of the district court. In light of the foregoing, the author of this opinion believes that the district court improperly limited its analysis to the Pepperdine-Scaife issue.

A separate question arises, however, as to whether the district court's referral of the RTC allegations to the Attorney General constitutes effective compliance with Rule V(A) as to the RTC allegations. The Office of Independent Counsel (OIC) candidly submits that the main purpose of the district court’s referral was to determine whether the threshold requirements of Rules V(A) were met; that is, the district court sought to determine whether the alleged conduct, if substantiated, could be subject to disciplinary action. However, as this court does not ultimately reach the merits of Mandanici’s allegations, it will refrain from deciding this issue.

11 .Judges Eisele, Roy, Woods, and Wilson. Chief Judge Reasoner and Judges Howard and Wright opined that Mandanici lacked standing to submit his ethics grievance to the court because "Mandanici is an interloper out to manipulate the Court for his political purposes and ... his efforts constitute a political vendetta.” Starr I, 986 F.Supp. at 1148. In addition, they point out that Mandanici has no personal interest in the matters that Starr is investigating as Independent Counsel. Id.

12 .The district court reasoned that it should "be able to adapt [local rules] to unforeseen circumstances,” and that inflexibility in reading Rule V(A) could lead to “unreasonable, unfair, and unwise results when viewed in light of the overall purposes” of the disciplinary rules. Starr I, 986 F.Supp. at 1149. The district court further stated that reading a mandatory referral into Rule V(A) would be inconsistent with the district court's practice since it adopted the Model Rules over 20 years ago. See id.

In dissent, Judges Roy, Wilson, and Woods asserted that Rule V(A) creates a mandatory duty to refer Mandanici’s allegations for investigation. See id. The author of this opinion, speaking for himself only, agrees with the interpretation of the dissenting judges.

"[T]he words of a rule are intended to communicate a meaning to those to whom they are addressed, rather than to carry some gloss, hidden in the minds of the judges who drafted the rule.” 12 Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 3153 (2d ed.1997). The word "shall” has consistently been held to create an imperative or command. See, e.g., Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, - U.S. -, -, 118 S.Ct. 956, 962, 140 L.Ed.2d 62 (1998) (Lexecon) (observing that, as a statutory term, " 'shall' ... normally creates an obligation impervious to judicial discretion”) (citing Anderson v. Yungkau, 329 U.S. 482, 485, 67 S.Ct. 428, 91 L.Ed. 436 (1947); Stanfield v. Swenson, 381 F.2d 755, 757 (8th Cir.1967) ("When used in the statutes the word 'shall' is generally regarded as an imperative or mandatory and therefore one which must be given a compulsory meaning.”). Where, as here, the meaning of the rule is clear from its language, no further inquiry is required. Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 476, 112 S.Ct. 2589, 120 L.Ed.2d 379 (1992) ("[C]ourts must give effect to the clear meaning of statutes as written."); United States v. Morales, 108 F.3d 1031, 1036 (9th Cir.1997) (“If the meaning of the rule is perfectly plain from its language, that ends the inquiry.")). Rule V(A) thus plainly requires the district court to refer allegations of misconduct to counsel for investigation and prosecution.

This conclusion is not inconsistent with the rule of this and other courts that district courts should be accorded great deference in interpreting their own rules. Indeed, other appellate courts have noted that a district court's inherent power to discipline attorneys who practice before it does not absolve the court from its obligation to follow the rules it created to implement its exercise of such power. Matter of Thalheim, 853 F.2d 383, 388 (5th Cir.1988); Matter of Abrams, 521 F.2d 1094, 1104 (3d Cir.1975); cf. Congregation of the Passion v. Touche, Ross & Co., 854 F.2d 219, 223 (7th Cir.1988) (noting that, despite considerable discretion given to district courts in interpreting their local rules, courts of appeal will reverse a district court’s construction of its own rule whenever the district court has clearly misconstrued the rule); 12 Federal Practice and Procedure § 3153 (same). Moreover, the Supreme Court has held that the plain command of a statute should be given effect "even if doing that will reverse the longstanding practice under the statute and the rule.” Lexecon, - U.S. at -, 118 S.Ct. at 962 (citation omitted); see also Brown v. Gardner, 513 U.S. 115, 122, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994) ("Age is no antidote to clear inconsistency with a statute.”).

13 . Judge Wilson notably wrote of their recusal:

Those of us who are recusing do not do so lightly. We do this realizing that this probably has the effect of killing the Mandanici II complaint without it having been considered on the merits. In fact, it is hard to escape the conclusion that our recusal may well confer de facto immunity on the Independent Counsel, with respect to ethical violation complaints.

Starr I, 986 F.Supp. at 1157.

14 . Chief Judge Reasoner and Judges Howard and Wright.

15 . The author of this opinion, speaking for himself only, takes issue with the weight that the district court accorded to both the DOJ's letter and Mandanici's alleged personal or political animus in filing the underlying complaints, the district court's assumption that specific evidence of misconduct is required under Rule V(A), and the district court's failure to analyze the substance of Mandanici’s allegations. Judge Eisele addressed these issues in an insightful opinion concurring in part and dissenting in part from the district court’s majority opinion. The author of this opinion agrees with Judge Eisele’s analysis.

Judge Eisele argued that Mandanici's allegations, if true, demonstrate that Starr suffered under at least an appearance of conflict with respect to the Pepperdine-Scaife issue, thereby triggering the district court’s duty to refer the matter for investigation under Rule V(A). See Starr II, 986 F.Supp. at 1166, 1168 (Eisele, J., dissenting) (“It is my opinion that the Court has not only the legal authority but also the institutional duty to inquire into the Pepperdine-Scaife issue.”). Specifically, Judge Eisele noted that, in refusing to address the substance of Mandanici’s allegations, the majority incorrectly assumed that specific evidence of misconduct was required to establish an appearance of conflict. Id. at 1166— 67. The majority wrote:

[Tjhis court is unaware that [] Starr has ever acted in an improper or unethical manner in the matters over which this Court has presided, and in the absence of specific evidence of misconduct on the part of the Independent Counsel in proceedings before this Court, and considering the motivations behind [] Man-danici’s allegations, this Court declines the opportunity to provide [ ] Mandanici a forum for the pursuit of his “vendetta.”

Id. at 1162. However, it is axiomatic that specific evidence of actual misconduct is not required to demonstrate that there is an appearance thereof.

Judge Eisele also challenged the majority's emphasis on Mandanici’s "vendetta” against Starr and asserts that these concerns should have been put aside in favor of an objective analysis of the merits of Mandanici's allegations. See id. at 1167. Finally, Judge Eisele criticized the majority's reliance upon the DOJ's investigation as strong support for its conclusion that Mandani-ci's allegations do not warrant referral. See id. As the majority acknowledged, the DOJ expressly stated that it takes "no position on whether the Court should exercise its discretionary authority to review [the Mandanici allegations] or to take any action if it does so,” J.A. at 198 (Response by the Attorney General to Motion to Dismiss at 16), and that its decision not to investigate the Pep-perdine-Scaife allegation was based on “the high threshold for triggering an investigation where the issue is the use of the Attorney General's removal power under 28 U.S.C. § 596(a)(1)." Id. at 261 (Letter from Michael Shaheen, Jr. to Judge Eisele of Aug. 8, 1997). Judge Eisele contended that, because the DOJ employed a "very high threshold" for purposes of removal, the DOJ's analysis is of limited applicability to the majority's determination whether to impose lesser sanctions, particularly where the majority did not address the allegations (and supporting evidence) regarding Starr's apparent conflict of interest. Starr II, 986 F.Supp. at 1167.

Contrary to Judge Loken’s concurrence, neither Judge Eisele nor the author asserts that the Pepperdine-Scaife issue amounts to "an apparent political conflict of interest." Infra, at 752 (concurring in judgment) (emphasis in original). Indeed, Judge Eisele clearly stated: "The alleged Pepperdine-Scaife conflict that I have identified has nothing whatsoever to do with Mr. Starr’s political views. Rather, it puts Mr. Starr's personal, financial, and career interests in possible conflict with his duty as independent counsel to exercise his prosecutorial power and discretion fairly and even-handedly.” Stan II, 986 F.Supp. at 1167 (Eisele, J., dissenting). Likewise, the author opines that, if true, the Pepperdine-Scaife allegations create the appearance of a personal conflict of interest as defined in 28 C.F.R. § 45.2(b)(2) (1998) (defining "personal relationship” as "a close and substantial connection of the type normally viewed as likely to induce partiality"). Moreover, there is nothing in the express language of the Independent Counsel Act, 28 U.S.C. § 594, or 28 U.S.C. § 528 (providing for the disqualification of officers and employees of the DOJ in the event of an actual or apparent personal, financial, or political conflict of interest), that would prohibit the district court from enforcing the ethical standards contained in its local rules against federal prosecutors, including independent counsel, qua members of the bar. See also J.A. at 189 (Response by the Attorney General to Motion to Dismiss at 7) ("[W]e are not aware of any evidence that Congress meant in the Ethics in Government Act, or any other statute, to interfere with [the district court’s] traditional power ... to supervise the ethical conduct of attorneys, including those representing the United States, appearing before it.”); cf. Whitehouse v. United States District Court, 53 F.3d 1349, 1357 (1st Cir.1995) (recognizing district court’s authority to regulate prose-cutorial conduct); United States v. Klubock, 832 F.2d 664 (1st Cir.1987) (en banc) (upholding constitutionality of local rule regulating prosecu-torial conduct); United States v. Johnston, 690 F.2d 638 (7th Cir.1982) (applying attorney-witness conflicts rule to federal prosecutors); United States v. Splain, 545 F.2d 1131, 1135 (8th Cir.1976) (noting that prosecutor’s unprofessional conduct may subject him or her to disciplinary sanctions). More important, however, is the district court’s failure to engage in the manner of analysis that Judge Loken sets forth, infra, at 752-53, to determine whether the appearance of a conflict (personal or otherwise) exists under federal conflict-of-interest laws. As noted above, it is this abandonment by the district court of its obligation to analyze the merits of Mandanici’s allegations pursuant to Rule V(A) with which the author finds fault.

16 .On June 19, 1997, Mandanici filed a third grievance alleging additional ethical violations by Starr concerning grand juiy leaks and prejudicial comments to the press (hereinafter "Man-danici III”). The district court dismissed this grievance in its order dated October 2, 1997. See Starr II, 986 F.Supp. at 1161-62. Mandanici does not appeal the district court’s dismissal of the allegations set forth in Mandanici III.

17 . The district court wrote: "For purposes of addressing [] Mandanici's allegations, the Court will assume that it has jurisdiction over ethics claims involving the Independent Counsel and that [ ] Mandanici has standing under our Model Rules to pursue his claim." Starr II, 986 F.Supp. at 1160 (footnote omitted).

18 . In light of the serious nature of the underlying allegations in Mattice, this court went further to determine whether they had any factual support and found none. See Mattice v. Meyer, 353 F.2d 316, 319 (8th Cir.1965).

19 .This court's reasoning in Mattice has been cited with approval in a variety of actions in which an individual has sought suspension or other disciplinary action against an attorney. See Ramos Colon v. United States Attorney for the Dist. of P.R., 576 F.2d 1, 6, 9 (1st Cir.1978) ("A private party cannot challenge the court’s decision not to discipline.... It remains for the court to vindicate its authority, if it so chooses.”); Application of Phillips, 510 F.2d 126,-127 (2d Cir.1975) (per curiam) ("[A] private person or a lawyer has no standing to participate in a disciplinary proceeding.”); see also In re Echeles, 430 F.2d 347, 350 (7th Cir.1970) (holding that United States had no standing to appeal the result of a disbarment proceeding where nothing in record indicated that it had an interest in the matter or was a party to the underlying suit); In re Teitelbaum, 253 F.2d 1, 2 (7th Cir.1958) (holding that a complainant has no standing "as a party or otherwise” to appeal).

20 . Rule 8.3 requires that "[a] lawyer having knowledge that another lawyer has committed a violation of the rules ... that raises a ... question as to that lawyer’s honesty .. . inform the appropriate professional authority.” Ark. R. Prof. Cond. 8.3.

21 . Mandanici finds support for his argument in Judge Eisele's statement that "the Pepperdine allegations suggest the type of conflict that is not waivable in that they concern not a particular conflicted client but the integrity of prosecutorial decisionmaking in which every inhabitant of this land has a vital interest.” See Starr I, 986 F.Supp. at 1153 (emphasis added).

22 . The only cases that Mandanici cites for the proposition that he has standing are state cases, which not only do not bind this court, but also do not support Mandanici’s theory of "citizen standing." See Brief for Appellant at 25-26. Rather, these cases and the treatises and professional rules that Mandanici cites on this issue merely acknowledge the vital role that citizens and third parties play in disciplinary proceedings by filing complaints and the standing of those persons to bring forth a such complaints. Id. (citing Ark. R. Prof. Cond. 8.1 ("[A] disciplinary proceeding may be initiated by [bar] counsel upon complaint of another person or entity.”), 8.3). These sources do not decide whether a plaintiff has standing in federal court to compel disciplinary proceedings or referral for investigation and prosecution.

23 . All substantive issues raised by Mandanici on appeal, including the denial of his motions to recuse, are moot in light of our jurisdictional disposition.