Deborah Venesevich v. Michael Leonard ( 2010 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-1222
DEBORAH VENESEVICH,
Appellant
v.
MICHAEL J. LEONARD; FRANCINE SEISLOVE
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D. C. No. 1-07-cv-02118)
District Judge: Hon. Christopher C. Conner
Submitted under Third Circuit LAR 34.1(a)
on October 2, 2009
Before: AMBRO, GARTH and ROTH, Circuit Judges
(Opinion filed: May 5, 2010)
OPINION
ROTH, Circuit Judge:
Deborah Venesevich appeals the District Court’s refusal to vacate a footnote
rebuking her attorney for plagiarizing text from judicial opinions in a brief submitted to
the court. For the reasons below, we will affirm the order of the District Court.
Venesevich, employed by a federal agency, filed an action against her employer
for unlawful retaliation under Bivens v. Six Unknown Named Agents of the Federal
Bureau of Narcotics, 403 U.S. 388 (1971). The District Court granted the defendants’
motion to dismiss because, under Bush v. Lucas, 462 U.S. 367 (1983), her Bivens claim
was foreclosed by administrative remedies available under the Civil Service Reform Act
of 1978, Pub. L. No. 95-454, 92 Stat. 1111. We granted summary affirmance of the
District Court’s dismissal of Venesevich’s claims.
The sole issue on appeal concerns Venesevich’s brief submitted by attorney
Donald Bailey in opposition to the defendants’ motion to dismiss. Pages six through ten
of the brief consist almost entirely of text lifted from judicial opinions without attribution.
In footnote 2 of his memorandum dismissing Venesevich’s claims, Judge Christopher
Connor issued a “direct rebuke” criticizing Mr. Bailey for plagiarism. (App. 12.) The
footnote recited the court’s prior admonishment of Mr. Bailey for the same practice in
Schultz v. Wilson, No. 04-CV-1823, 2007 WL 4276696, at *6 n.13 (M.D. Pa. Dec. 4,
2007). The District Court denied Mr. Bailey’s motion to vacate the memorandum and
strike the footnote. (App. 19-20.)
We of course have jurisdiction to review a District Court’s imposition of sanctions,
see, e.g., Gary v. Braddock Cemetery, 517 F.3d 195 (3d Cir. 2008), but the District
Court’s statement in its dismissal order was not a sanction. Nor do its comments in its
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order denying reconsideration qualify as a sanction. We therefore lack jurisdiction.
In Bowers v. NCAA, 475 F.3d 524 (3d Cir. 2007), we noted “disagreement among
the courts of appeals as to whether and when a court’s statement in a judicial opinion
amounts to a sanction ‘affecting an attorney’s professional reputation’ and thus
‘impos[ing] a legally sufficient injury to support appellate jurisdiction.’” Id. at 543(quoting Butler v. Biocore Med. Techs., Inc., 348 F.3d 1163, 1167-68 (10th Cir. 2003)
(alteration in original)). We observed the courts’ “near complete agreement than an order
rising to the level of a public reprimand is a sanction”; but qualified that by
acknowledging that “mere judicial criticism is insufficient to constitute a sanction.”
Bowers, 475 F.3d at 543. We found it unnecessary to wade deeply into the issue because
the District Court order in that case granted a motion explicitly requesting the imposition
of sanctions, and the order expressly stated that it was intended as a sanction. Id. at 544.
The District Court action in this case differs materially from the one in Bowers.
The court in this case merely made an observation in a footnote, in an order devoted
principally to the merits of the underlying litigation. The order was entered upon a
motion to dismiss, not a motion for sanctions, and the District Court did not formally
indicate that it intended to sanction Bailey. The statement was more or less a passing
remark, made in the course of a ruling on the merits. Our very recent precedent further
confirms that a judicial admonishment of this type is not necessarily considered a
sanction. See Grider v. Keystone Health Plan Central, Inc., 580 F.3d 119, 145-46 (3d
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Cir. 2009) (holding District Court abused its discretion in concluding that Magistrate
Judge’s admonishment was a sanction). Because the challenged language in the District
Court’s order was mere judicial criticism, and not a formal sanction, we lack jurisdiction
over the appeal. See Weissman v. Quail Lodge, Inc., 179 F.3d 1194, 1200 (9th Cir. 1999);
In re Williams, 156 F.3d 86, 93 (1st Cir. 1998).
For the reasons stated above, we will dismiss the appeal.
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