Pontarelli v. Stone, Schiff

• Court: Court of Appeals for the First Circuit
• Decided: November 4, 1992
• Docket: 92-1295
• Status: Published

Opinion

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

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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

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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.
                         __

                    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.

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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,
                                           ___ _______     _______________

          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

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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
                            __________

          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.

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                                          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

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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)
                                                   ___

          (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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