Wail M. Abdelgalel v. United States Attorney General , 443 F. App'x 458 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-11644
OCTOBER 18, 2011
Non-Argument Calendar
JOHN LEY
________________________ CLERK
D.C. Docket No. 3:08-cv-01106-HES-JRK
WAIL M. ABDELGALEL,
Plaintiff-Appellant,
versus
UNITED STATES ATTORNEY GENERAL,
SECRETARY FOR THE DEPARTMENT OF HOMELAND SECURITY,
ROSEMARY MELVILLE,
JONATHAN SCHARFEN,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(October 18, 2011)
Before CARNES, HULL and BLACK, Circuit Judges.
PER CURIAM:
Appellant Wail M. Abdelgalel appeals the district court’s order striking his
post-judgment application for attorneys fees under the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412(d). After review, we affirm.
I. BACKGROUND FACTS
A. Complaint and Request for EAJA Fees
In 2005, Abdelgalel filed an application for naturalization with the United
States Citizenship and Immigration Services (“USCIS”). After his application had
not been adjudicated for three years, Abdelgalel brought this mandamus action
seeking an order requiring the USCIS to adjudicate his naturalization application
and pay attorneys fees under the EAJA.
Abdelgalel originally filed this mandamus action in the Southern District of
Alabama. Abdelgalel’s attorney, Robert Ratliff, is admitted to practice law in
Alabama and is a member of the Southern District of Alabama’s bar. Abdelgalel,
however, later moved to Jacksonville, Florida, and eventually this mandamus
action was transferred to the Middle District of Florida. Ratliff, Abdelgalel’s
attorney, is not admitted to practice in Florida and is not a member of the Middle
District of Florida’s bar.
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Ultimately, the district court in Florida granted the writ of mandamus,
remanded the case to the USCIS to adjudicate the naturalization application within
ninety days and stayed Abdelgalel’s attorneys fee request. After the USCIS timely
approved Abdelgalel’s naturalization application, Abedelgalel renewed his request
for attorneys fees. In a December 14, 2009 order, the district court denied the
motion, concluding that Abdelgalel was not a “prevailing party” within the
meaning of the EAJA.
B. December 14, 2009 Order Warning Abdelgalel that Pleadings by Ratliff
Would Be Stricken
In its December 14, 2009 order, the district court stated, “Any additional
filings by Plaintiff’s counsel in this case shall be STRICKEN from the record
until counsel has been admitted to practice in the Middle District of Florida or
until he has filed, and this Court has granted, a motion to appear pro hac vice in
the instant matter.” (Emphasis added). Ratliff then obtained local counsel,
Charles Murray, who entered an appearance and signed and filed a notice of
appeal of the district court’s December 14, 2009 order.
C. First Appeal and Post-Remand Pleadings Signed by Ratliff
In his first appeal to this Court, Abdelgalel argued that he was a “prevailing
party” under the EAJA. This Court agreed and remanded for the district court to
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address whether Abdelgalel had met the other requirements for an award of
attorneys fees under the EAJA. Abdelgalel v. Holder, 398 F. App’x 472 (11th Cir.
2010).
On remand, Abdelgalel filed his application for the award of attorneys fees
and costs totaling $23,199.23. Abdelgalel’s application requested fees only for the
work of Alabama attorney Ratliff and two paralegals. Abdelgalel’s application did
not request any fees for local Florida counsel Murray. Both Ratliff and Murray
signed Abdelgalel’s fee application.
The government then filed a brief in opposition to any award of attorney’s
fees. Abdelgalel then filed a motion, pursuant to Local Rule 3.01(c), requesting
leave to file a reply brief. Both Ratliff and Murray signed this motion.1
The district court denied Abedelgalel’s motion for leave to file a reply brief
because it did not certify that he had conferred with opposing counsel, as required
by Local Rule 3.01(g). The district court gave Abdelgalel fourteen days to refile a
compliant motion for leave, which Abedelgalel did. Both Ratliff and Murray
signed this new motion for leave.
D. Show Cause Order
1
Local Rule 3.01(c) prohibits parties from filing a reply brief without first obtaining leave
from the district court. Local R. 3.01(c).
4
On December 2, 2010, the district court denied Abdelgalel’s motion to file a
reply brief. In this same order, the district court gave Abdelgalel fourteen days to
show cause why his motion for attorneys fees should not be stricken from the
record “for his counsel’s failure to obtain admittance to practice in the Middle
District of Florida or file a motion to appear pro hac vice in this matter.”
Local counsel Murray signed Abdelgalel’s response to the show cause
order. Abdelgalel’s response explained that all post-appeal pleadings were
supposed to be filed by Murray, who was admitted to practice in the Middle
District of Florida. Although Ratliff was not admitted to practice in the Middle
District Court in Florida, Ratliff’s name remained on the fee application because
“the fees sought were attributable almost exclusively to [him].” By mistake, a
paralegal shared by Ratliff and Murray electronically transmitted Abdelgalel’s fee
application under the ECF identifier for Ratliff. Abdelgalel argued that although
the paralegal made this “administrative error in transmission,” Murray signed the
fee application, indicating that he was “the attorney for the Plaintiff and that
indication should control.” Ratliff did not seek admission pro hac vice.
Abdelgalel also did not attempt, or offer, to submit an amended fee application
signed by only Murray.
E. Order Striking Fee Application
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In a December 15, 2010 order, the district court struck Abdelgalel’s
application for attorneys fees “without prejudice to a similar motion restricted to
those fees incurred by Plaintiff’s counsel on appeal, Charles A. Murray, if
appropriate.” The district court acknowledged Abdelgalel’s argument that
Alabama attorney Ratliff’s “signature appears on the motion because the fees
sought are attributable almost exclusively to him and the use of his electronic
transmittal identifier was merely ‘an administrative glitch.’” However, the district
court found that this explanation was not sufficient to show cause, concluding
“[e]ven so, it is unclear how this explains Mr. Ratliff’s prior or continued
appearance in this District without proper admittance.” Abdelgalel did not file a
separate application for Murray’s attorneys fees and instead filed this appeal.
II. DISCUSSION
A. Appellate Jurisdiction
The government argues that we lack jurisdiction to entertain Abdelgalel’s
appeal because the district court’s December 15, 2010 order, striking Abdelgalel’s
attorneys fee application, is not a final, appealable order.
Generally, our jurisdiction is limited to appeals from final judgments of the
district court. 28 U.S.C. § 1291; see also Thomas v. Blue Cross & Blue Shield
Ass’n, 594 F.3d 823, 828 (11th Cir. 2010). Whether we have jurisdiction “hinges
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on the nature of the order,” and “we take a functional approach, looking not to the
form of the district court’s order but to its actual effect.” Thomas, 594 F.3d at
828-29 (quotation marks omitted). Where, as here, the order on appeal was issued
in post-judgment proceedings, the order “is final for purposes of section 1291 only
if the order disposes of all issues raised in the motion.” Id. at 829; see also
Delaney’s Inc. v. Illinois Union Ins. Co., 894 F.2d 1300, 1304 (11th Cir. 1990)
(explaining that “[i]f a post-judgment order is apparently the last order to be
entered in the action, it is final and appealable”).
Here, the district court’s order struck Abdelgalel’s fee application with
prejudice with respect to Ratliff’s attorneys fees. Thus, the district court’s order
had the effect of denying those attorneys fees and disposing of all issues raised in
Abdelgalel’s attorneys fee application. Although the district court gave
Abdelgalel leave to file a new fee application with respect to Murray’s fees (which
Abdelgalel had not yet sought), Abdelgalel chose not to do so. Instead,
Abdelgalel filed a notice of appeal, thus rendering the district court’s December
15, 2010 order final. Cf. Briehler v. City of Miami, 926 F.2d 1001, 1002 (11th
Cir. 1991) (explaining that an order dismissing a complaint with leave to amend is
final when the plaintiff instead elects to file a notice of appeal). Accordingly,
appellate jurisdiction exists to review the district court’s December 15, 2010 order
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striking Abdelgalel’s application for attorneys fees.
B. District Court’s December 15, 2010 Order
On appeal, Abdelgalel argues that the district court abused its discretion
when it struck his application for attorneys fees with prejudice as to Ratliff.2
The Middle District of Florida prohibits an attorney from appearing before
it unless the attorney is either a member of The Florida Bar who has been
generally admitted to practice before the Middle District of Florida, pursuant to
Local Rule 2.01, or is a member in good standing of the bar of a district court
outside Florida and has been specially admitted to practice before it, pursuant to
Local Rule 2.02.3 When “appearing as counsel by filing any paper or pleading,” a
specially admitted attorney must also file a “written designation and consent-to-act
on the part of some member of the bar of [the Middle District of Florida], upon
2
We review a district court’s decision to strike a pleading for abuse of discretion. Young
v. City of Palm Bay, 358 F.3d 859, 863 (11th Cir. 2004). Similarly, “[w]e review the issuance of
sanctions and the denial of a request for attorney’s fees and costs for abuse of discretion.”
Sahyers v. Prugh, Holliday & Karatinos, P.L., 560 F.3d 1241, 1244 (11th Cir. 2009). A district
court does not abuse its discretion when it has “a range of choices and the court’s choice does not
constitute a clear error of judgment.” Vanderberg v. Donaldson, 259 F.3d 1321, 1326 (11th Cir.
2001) (quotation marks omitted).
3
The district courts’ authority to promulgate rules governing who may conduct cases
before them is conferred by statute. See 28 U.S.C. § 1654. In addition, Federal Rule of Civil
Procedure 83 permits a district court to adopt local rules “governing its practice” that are
consistent with federal law and the Civil Rules. Fed. R. Civ. P. 83(a). A district judge “may
regulate practice in any manner consistent with” federal law, the Civil Rules and the district’s
local rules. Fed. R. Civ. P. 83(b).
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whom all notices and papers may be served and who will be responsible for the
progress of the case, including the trial in default of the non-resident attorney.” Id.We afford “great deference to a district court’s interpretation of its local rules” and
will not “second guess” the district court on such grounds. Clark v. Hous. Auth.
of City of Alma, 971 F.2d 723, 727-28 (11th Cir. 1992).
In addition, the “federal courts are accorded certain inherent powers” used
“to manage their own affairs so as to achieve the orderly and expeditious
disposition of cases.” Sahyers v. Prugh, Holliday & Karatinos, P.L., 560 F.3d
1241, 1244 (11th Cir. 2009) (quotation marks omitted). “A federal court may
wield its inherent power over the lawyers who practice before it.” Id.; see also
Chambers v. NASCO, Inc., 501 U.S. 32, 43, 111 S. Ct. 2123, 2132 (1991) (stating
that the scope of a court’s inherent power includes “the power to control
admission to its bar and to discipline attorneys who appear before it”). Similarly,
the district court’s power to strike a pleading, like the power to dismiss a claim or
action, “is inherent in a trial court’s authority to enforce its orders and ensure
prompt disposition of legal actions.” State Exch. Bank v. Hartline, 693 F.2d 1350,
1352 (11th Cir. 1982).
Here, the district court struck Abdelgalel’s attorneys fee application for
Ratliff’s fees with prejudice because: (1) in violation of the district court’s order
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and Local Rules 2.01 and 2.02, Ratliff, an Alabama attorney, continued to sign
pleadings, as attorney of record, filed in the Middle District Court in Florida; and
(2) Ratliff was not generally or specially admitted to practice in the Middle
District of Florida. By signing pleadings as attorney of record, Ratliff was
appearing before the district court in Florida without being properly admitted to
practice there.
In its December 14, 2009 order, the district court gave Ratliff and his client
notice that any further such pleadings would be stricken from the record. Ratliff
appears to have understood the district court’s warning because the next pleading
filed, Abdelgalel’s notice of appeal, was signed by only Murray, the local counsel
retained specifically to address the district court’s concern. Nonetheless, upon
remand from this Court, Ratliff reverted to his former practice of signing the
pleadings filed in the district court in Florida. Specifically, Abdelgalel’s
application for his attorneys fees and his motion to file a reply brief bore both
Ratliff’s and Murray’s signatures as attorneys of record.
Moreover, when the district court alerted Abdelgalel to this fact in its
December 2, 2010 show cause order, Abdelgalel did not seek to amend his fee
application to correct the defect as to Ratliff’s fees. Abdelgalel also did not ask
for more time to permit Alabama counsel Ratliff to obtain special admission in the
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Middle District of Florida, or even explain why Ratliff had failed to seek such
admission, before signing the pleadings. Instead, Abdelgalel argued essentially
that Alabama counsel Ratliff did not need to seek special admission to sign the
pleadings filed in the Middle District Court in Florida because local counsel
Murray also signed and then electronically transmitted the pleadings to the district
court. However, a non-resident attorney may not obtain special admission without
designating local counsel to act in the event of the non-resident attorney’s default.
See Local Rule 2.02(a). Thus, the mere fact that Abdelgalel had local counsel did
not permit Ratliff to sign pleadings filed in the district court without being
specially admitted. Given Ratliff’s protracted failure to seek special admission to
the Middle District bar, the district court was within its discretion in concluding
that Abdelgalel’s response was insufficient and that striking the fee application
with prejudice as to Alabama counsel Ratliff was warranted under the
circumstances.4
4
Contrary to Abdelgalel’s contention, the district court did not labor under a mistake of
fact. The district court understood that both Ratliff and Murray represented Abdelgalel, that both
attorneys signed the pleadings as attorneys of record and that the paralegal’s use of Ratliff’s ECF
identifier to electronically transmit the attorneys fee application was a mistake. The district court
concluded that these facts did not show sufficient cause. As the district court explained, the
conduct that violated the district court’s order and the Local Rules was not the paralegal’s use of
Ratliff’s ECF identifier to electronically transmit the pleadings, but Ratliff’s continued
appearance in the district court, evidenced by his signing the pleadings, without first being
admitted.
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Abdelgalel argues that the district court’s sanction was barred by the EAJA,
which makes the award of attorneys fees mandatory if the statutory criteria are
met. See 28 U.S.C. § 2412(d) (providing that the “court shall award to the
prevailing party other than the United States fees and other expenses . . . unless the
court finds that the position of the United States was substantially justified or that
special circumstances make an award unjust” (emphasis added)). However, “at
least in the absence of very clear words from Congress, we do not presume that a
statute supersedes the customary powers of a court to govern the practice of
lawyers in litigation before it.” Sahyers, 560 F.3d at 1245 n.6 (11th Cir. 2009);
see also Chambers, 501 U.S. at 47, 111 S. Ct. at 2134 (stating that “we do not
lightly assume that Congress has intended to depart from established principles
such as the scope of the court’s inherent power” (quotation marks omitted)).
Nothing in the language of the EAJA suggests that Congress intended to abrogate
the district court’s traditional inherent powers to enforce its local rules and court
orders, to control admission to its bar and to discipline attorneys who appear
before it.
In addition, Abdelgalel argues that, because attorneys fees awarded under
the EAJA are payable to the litigant, see Astrue v. Ratliff, 560 U.S. ___, 130 S. Ct.
2521, 2526-27 (2010), the district court’s sanction unfairly punishes Abdelgalel
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for his Alabama attorney’s actions in Florida. We do not think this fact renders
the denial of EAJA attorneys fees unjust in this case. Although the district court
awards the EAJA fees to the litigants, their attorneys are “the real parties in
interest.” Gisbrech v. Barnhart, 535 U.S. 789, 798 n.6, 122 S. Ct. 1817, 1823 n.6
(2002). Furthermore, as the Supreme Court concluded in the context of an
involuntary dismissal, a district court does not abuse its discretion by holding a
plaintiff accountable for his retained attorney’s conduct. See, e.g., Link v. Wabash
R.R. Co., 370 U.S. 626, 633, 82 S. Ct. 1386, 1390 (1962) (involving counsel’s
failure to attend a scheduled pretrial conference, which resulted in dismissal of the
action for failure to prosecute). Abdelgalel “voluntarily chose this attorney as his
representative in the action, and he cannot now avoid the consequences of the act
or omissions of this freely selected agent.” See id. at 633-34, 82 S. Ct. at 1390.
Given the district court’s power to oversee its bar, the deference we afford a
district court’s interpretation of its local rules, and the particular circumstances of
this case, we cannot say the district court abused its discretion in striking
Abdelgalel’s fee application with prejudice as to Ratliff’s attorneys fees.
AFFIRMED.
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