In re: Smith

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 31, 2012
Elisabeth A. Shumaker
Clerk of Court
In re:
DAVID L. SMITH, No. 11-1566
(D.C. No. 1:96-DP-4-WYD)
Appellant. (D. Colo.)
ORDER AND JUDGMENT*
Before MATHESON, Circuit Judge, PORFILIO, Senior Circuit Judge, and
BALDOCK, Circuit Judge.
David L. Smith appeals the denial of his pro se motions filed pursuant to
Federal Rules of Civil Procedure 60(b) and 59(e) seeking reinstatement to the bar of
the United States District Court for the District of Colorado. We affirm.
I
We suspended Smith in 1993, In re Smith, 10 F.3d 723, 724 (10th Cir. 1993)
(per curiam), and disbarred him in 1996 for continuing to practice before this court
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
despite his suspension, In re Smith, 76 F.3d 335, 336 (10th Cir. 1996) (per curiam).
In reciprocal disciplinary proceedings, the federal district court disbarred him on
April 26, 1996, and the Colorado Supreme Court disbarred him on October 4, 1999,
In re Smith, 989 P.2d 165 (Colo. 1999) (en banc) (per curiam). We also imposed
filing restrictions against Smith to curtail his pro se abuse of the judicial process.
In 2007, the Tenth Circuit Court of Appeals reinstated Smith to practice in this
court, In re Smith, No. 93-631, 2007 WL 4953041, at *1-2 (10th Cir. May 4, 2007),
which effectively vitiated the filing restrictions imposed against him, see Smith v.
United States District Court, No. 08-500, 2008 WL 540862, at *1 (10th Cir. Feb. 19,
2008) (unpublished) (“[W]e agree with Mr. Smith that his reinstatement to the bar of
the 10th Circuit Court of Appeals acts to ameliorate the restrictions.”). Based on our
reinstatement, Smith sought to be reinstated to the federal district court. A three-
judge disciplinary panel for that court denied his request because Smith remained
disbarred by the Colorado Supreme Court and thus could not satisfy the court’s local
rules requiring him to be in good standing in all courts to which he was admitted.
See In re Smith, No. 96-DP-4 (D. Colo. Aug. 4, 2008) (denying reinstatement).1
1
The district court’s local rules provide:
An attorney admitted to the bar of this court must remain in good
standing in all courts where admitted. “In good standing” means not
subject to suspension or disbarment by any court for any reason. An
attorney who is not in good standing shall not practice before the bar of
this court or continue to be an attorney of record in any pending case.
On notice to this court of lack of good standing from the suspending or
(continued)
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Smith moved the district court to alter or amend its judgment, but the court denied his
request on the same grounds, id. (order filed Sept. 18, 2008), as well as his
subsequent petition for relief from the rule of good standing, id. (order filed Feb. 20,
2009). We affirmed the district court’s rulings. In re Smith, 329 F. App’x 805, 806
(10th Cir. 2009). Smith then returned to the district court and filed another
application for reinstatement and petition for relief from the rule of good standing,
which the court denied on December 14, 2010. The court also denied Smith’s
subsequent motion to alter or amend that judgment.
After all this, Smith filed the two motions that are the subject of this appeal.
First, invoking Rule 60(b), Smith moved the district court to vacate its original 1996
disbarment order, as well as its December 14, 2010 order denying him reinstatement
and relief from the rule of good standing. Aplt. App. at 65-72. He argued that under
Rule 60(b)(4), the district court’s orders were void because they were predicated on
our original disbarment order, which had been entered without an evidentiary
hearing. He also argued under Rule 60(b)(5) that it was inequitable to prospectively
apply the district court’s orders following his reinstatement in this court. Lastly,
Smith cited the catch-all provision of Rule 60(b)(6), which allows for relief for any
other justifiable reason. Rejecting all of these arguments, the district court denied the
disbarring jurisdiction, or otherwise, the clerk of this court shall make a
notation in the court record of such lack of good standing.
D.C.Colo.L.Civ.R. 83.3E and D.C.Colo.L.Cr.R. 57.5E
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motion, noting the court’s right to establish its own standards for admission and
Smith’s continued disbarment by the Colorado Supreme Court, which prevented him
from meeting those standards. See id. at 78-79 (order filed Aug. 11, 2011).
Smith then filed a motion pursuant to Rule 59(e), asking once again that the
district court alter or amend its judgment, this time from the denial of Rule 60(b)
relief. See id. at 81-87. Smith insisted the disbarment orders entered by this court,
the district court, and the Colorado Supreme Court were all “null and void ab initio”
because he had been denied an evidentiary hearing. Id. at 84. And he asserted that
this denial of due process obligated the district court to hold an evidentiary hearing
on his Rule 60(b) motion. The district court denied the motion, ruling that Smith’s
“[r]eadmission remains absolutely foreclosed by operation of the Rule of Good
Standing, which requires that Mr. Smith be in good standing in all jurisdictions and
courts in which he is admitted. . . . Since Mr. Smith remains disbarred by the
Colorado Supreme Court, his applications for readmission were denied by simple,
indiscriminate operation of the District Court’s Local Rules. Id. at 88-89 (order filed
Nov. 18, 2011). The court concluded by noting that Smith simply sought another
“bite at the apple.” Id. at 89. Smith now appeals the district court’s orders denying
relief under Rules 60(b) and 59(e).
II
Ordinarily, we review district court orders denying relief under Rules 60(b)
and 59(e) for an abuse of discretion. See Lundahl v. Zimmer, 296 F.3d 936, 940
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(10th Cir. 2002). We similarly review for an abuse of discretion district court orders
denying reinstatement, although we exercise plenary review over any attending legal
issues. See, e.g., In re Martin, 400 F.3d 836, 841 (10th Cir. 2005).
Here, however, Smith’s appeal is foreclosed by the law-of-the-case doctrine,
which provides that “when a court decides upon a rule of law, that decision should
continue to govern the same issues in subsequent stages in the same case.” Arizona
v. California, 460 U.S. 605, 618 (1983). Smith challenges the district court’s
disbarment and denial of reinstatement on the ground that he was denied an
evidentiary hearing. But as Smith well knows, this argument has been considered
and rejected. Indeed, we denied Smith’s request for an evidentiary hearing in his
original disbarment proceedings, see Smith, 76 F.3d at 336, and we subsequently held
that he “was not entitled to an evidentiary hearing” prior to the district court’s
disbarment, In re Smith, Nos. 96-1254 & 96-1256, slip op. at 4 (10th Cir. May 16,
1997). We decline to revisit this issue.
Smith’s second argument is equally meritless. He maintains it is inequitable to
prospectively apply the district court’s disbarment order following his reinstatement
by this court. But Smith ignores the district court’s independent authority to regulate
and discipline the members of its own bar. See Mattox v. Disciplinary Panel of
U.S. Dist. Ct. for Dist. of Colo., 758 F.2d 1362, 1364 (10th Cir. 1985) (holding that a
“federal district court has a right to establish its own standards for admission to
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practice”). Smith’s argument that our reinstatement order somehow “superseded or
rendered moot,” Aplt. Br. at 12, the district court’s disbarment order is untenable.
Smith’s third argument also fails. He claims the district court should have
conducted “an intrinsic consideration of the state record” to ensure the propriety of
its reciprocal disbarment order. See id. (internal quotation marks omitted). Yet
because the district court’s disbarment order was predicated on ours, Smith is
effectively challenging the district court’s disbarment on the same due process
grounds that he rehashed in his first argument—the denial of an evidentiary hearing.
And as we already explained, that argument has been rejected.
Finally, Smith contends that his Rule 60(b) motion should not have been
denied on law-of-the-case principles because the issues he raised had not been
previously decided. This argument is wrong. Again, the Rule 60(b) motion claimed
that Smith had been denied an evidentiary hearing and the district court should have
reinstated him in light of our reinstatement order. These arguments have been
rejected. The district court has the authority to deny reinstatement until Smith
satisfies the rule of good standing. See Mattox, 758 F.2d at 1364.
III
The judgment of the district court is AFFIRMED. Given the frivolous nature
of this appeal, Smith’s motion to proceed in forma pauperis (“IFP”) is DENIED. See
DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991) (holding that to obtain
IFP status, “an appellant must show a financial inability to pay the required filing
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fees and the existence of a reasoned, nonfrivolous argument on the law and the facts
in support of the issues raised on appeal” (emphasis added)). Smith is directed to pay
the entire filing fee immediately. We cautioned Smith, when we clarified that he was
no longer subject to filing restrictions, “that pursuit of frivolous arguments or issues
will put his status as a member of the bar at risk and may lead to reinstatement of the
filing restrictions.” Smith, No. 08-500, 2008 WL 540862, at *1. Smith has since
been admonished by our disciplinary panel that “any future instances of misconduct,
including the filing of any more frivolous pleadings, will be dealt with harshly.”
In re Smith, No. 08-822, slip op. at 4 (10th Cir. Sept. 16, 2008). We are not inclined
to warn Smith again.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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