Cannon v. ( 1999 )

USCA1 Opinion

      [NOT FOR PUBLICATION   NOT TO BE CITED AS PRECEDENT]



                 United States Court of Appeals

                     For the First Circuit











No. 98-2243



         IN RE:  CHARLES J. CANNON AND WILLIAM L. BLAGG,



                           Petitioners.









   ON PETITION FOR MANDAMUS TO THE UNITED STATES DISTRICT COURT



             FOR THE DISTRICT OF RHODE ISLAND AND THE



 UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF RHODE ISLAND



             [Hon. Mary M. Lisi, U.S. District Judge]



      [Hon. Arthur N. Votolato, Jr., U.S. Bankruptcy Judge]









                              Before



                    Selya, Boudin and Stahl,



                        Circuit Judges.









     Robert B. Mann and Mann & Mitchell on brief for petitioner

Blagg.

     Carter G. Phillips, James C. Stansel and Sidley & Austin on

brief for petitioner Cannon.











March 30, 1999







  Per Curiam.  Petitioners, Charles J. Cannon and William

L. Blagg, are government attorneys who seek to vacate certain

unflattering comments made by a bankruptcy judge in the course of

two published opinions.  See In re Williams, 188 B.R. 721 (Bankr.

D.R.I. 1995); In re Williams, 181 B.R. 1 (Bankr. D.R.I. 1995).

Petitioners originally mounted an offensive on two fronts to

counteract these opinions; they appealed to the district court,

claiming that the bankruptcy judge's adverse comments amounted to

"sanctions," and they simultaneously asked the district court for

mandamus relief.  The district court rejected both overtures.  SeeIn re Williams, 215 B.R. 289 (D.R.I. 1997).  Petitioners then

appealed to this court, but in so doing, they failed to renew their

request for relief by way of mandamus.  See In re Williams, 156

F.3d 86, 93 (1st Cir. 1998).

  We dismissed petitioners' appeals on the ground that the

bankruptcy judge's comments did not constitute an appealable

judgment or order.  See id. at 92.  Petitioners' application for

rehearing en banc was denied by an equally divided court.  They

then filed both an application for certiorari in the United States

Supreme Court and an original petition for mandamus in this court.

We held the latter petition in abeyance pending Supreme Court

action.  On January 25, 1999, the Supreme Court denied certiorari.

See Cannon v. Williams, 119 S. Ct. 905 (1999).  Petitioners then

requested that we act on their mandamus petition.  We do so today.

  We believe that petitioners, by asking the district court

for mandamus relief and then failing to appeal the district court's

denial of that relief, effectively forfeited any right they may

have had to ask this court to consider the propriety of mandamus.

In all events, mandamus is an inherently discretionary writ, and we

are unwilling to exercise discretion in favor of parties who had an

ample opportunity to pursue a point, but elected not to press it in

the ordinary course.

  We need go no further.  The petition for writ of mandamus

is denied.