                                                         F I L E D
                                                  United States Court of Appeals
                                                          Tenth Circuit
                                 PUBLISH
                                                         JUN 29 1998
                UNITED STATES COURT OF APPEALS
                                                    PATRICK FISHER
                                                              Clerk
                          TENTH CIRCUIT


LINDA C. HOWARD,

         Plaintiff,

v.                                         No. 97-1297

MAIL-WELL ENVELOPE
COMPANY, BUTLER PAPER
COMPANY, GEORGIA-PACIFIC
CORPORATION, GREAT
NORTHERN NEKOOSA
CORPORATION EMPLOYEE
PROTECTION PLAN,

         Defendants-Appellees,


DAVID L. SMITH,

         Attorney-Appellant.


JAMES EDWARD QUALLS,

         Plaintiff,

v.                                         No. 97-1392

REGIONAL TRANSPORTATION
DISTRICT; RICHARD BAUMAN;
ROBERT GARSIDE; RICHARD
REYNOLDS; ELLSWORTH
WALKER; and JAMES MISEK,

            Defendants-Appellees,


DAVID L. SMITH,

            Attorney-Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF COLORADO
                  (D.C. Nos. 93-D-1895 & 91-Z-989)


Submitted on the briefs:

David L. Smith, Pro se Attorney-Appellant.

Brian M. Mumaugh, Jeffrey T. Johnson, of Holland & Hart, Denver, Colorado,
for Defendants-Appellees Mail-Well Envelope Co., Butler Paper Co., and Georgia
Pacific Corp., and Randall A. Constantine, of Elrod & Thompson, Atlanta,
Georgia, for Great Northern Nekoosa Corporation Employee Protection Plan.

Dana N. Mumey, Associate General Counsel, and Erica A. Weber, Assistant
General Counsel, Regional Transportation District, Denver, Colorado, for
Defendant-Appellee Regional Transportation District.



Before BALDOCK , EBEL , and MURPHY .


PER CURIAM .




                                      -2-
       Attorney-appellant David L. Smith appeals from adverse decisions in two

separate district court proceedings in which he served for a time as plaintiff’s

counsel. Because these appeals concern interrelated orders and similar issues,

the hearing panel has combined them for disposition.         1
                                                                 We also announce, with

the full participation of the en banc court, general restrictions on Mr. Smith’s

future appellate filings based on his history of repetitive, meritless litigation in

this court.

       These appeals may be put in perspective with some factual and procedural

background common to both. Much of the information particularly relevant to

these proceedings is recited in prior related decisions of this court.       See generally

Howard v. Mail-Well Envelope Co.         , 90 F.3d 433 (10th Cir. 1996);    Qualls v.

Regional Transp. Dist. , Nos. 95-1385, 95-1459, 95-1489, 1996 WL 412414

(10th Cir. July 23, 1996). A broader discussion of Mr. Smith’s litigious history in

this court is included in the last section of this opinion, relating to the proposed

filing restrictions.

       Mr. Smith was suspended from practice before this court in November

of 1993. Thereafter, the district judge entered orders in both of these cases



       1
            After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of these appeals. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9.
The cases are therefore ordered submitted without oral argument.

                                              -3-
staying proceedings pending a determination of his practice status in the United

States District Court for the District of Colorado. Mr. Smith immediately

appealed from the stay orders, but this court dismissed his interlocutory appeals

for lack of jurisdiction, awarded appellate sanctions to appellees, and remanded

for a determination of an appropriate amount.

       In the meantime, Mr. Smith was suspended from practice in the district

court. Consequently, the district judge lifted the extant stays, acknowledged that

Mr. Smith was no longer authorized to appear as counsel, and directed the

plaintiffs to secure new legal representation or notify the court of their intention

to prosecute their cases pro se. Mr. Smith immediately appealed again,

challenging these actions as well as various sanctions imposed against him.

These interlocutory appeals were also dismissed for lack of jurisdiction.   2



       Ultimately, the parties settled their differences by written stipulation, and

the district court entered judgments of dismissal in both cases. Mr. Smith, who

personally takes issue with these stipulated dispositions, subsequently filed the

instant appeals. Further details relating to the proceedings are included in the

discussion of each appeal below.



       2
             Eventually Mr. Smith did secure appellate review of certain orders
issued in Qualls v. Regional Transportation District, D.C. No. 91-Z-989, by
repeatedly filing notices of appeal, some of which were received, properly, after
entry of final judgment in the case. See Qualls, 1996 WL 412414, at **1.

                                            -4-
                                               I

       In Howard v. Mail-Well Envelope Company             , No. 97-1297, Mr. Smith

directly appeals from the district court’s judgment dismissing the case pursuant

to the parties’ stipulation following his withdrawal as plaintiff’s counsel.

Mr. Smith raises a host of issues. Some of these he lacks standing to assert, many

more are simply redundant, and all are, ultimately, meritless.

       First of all, as a general matter, Mr. Smith argues that the district court

lacked jurisdiction to enter any of the challenged orders after he had taken two

interlocutory appeals to this court in the case.        It is axiomatic that an effective

notice of appeal transfers jurisdiction from the district court to the court of

appeals. See Stewart v. Donges , 915 F.2d 572, 575 (10th Cir. 1990). However,

there are pertinent limitations on this transfer of jurisdiction.

       First, no transfer occurs if the appeal is taken from a nonappealable order.

See United States v. 397.51 Acres of Land           , 692 F.2d 688, 693 (10th Cir. 1982);

Riggs v. Scrivner, Inc. , 927 F.2d 1146, 1148 (10th Cir. 1991)         ; see also Stewart ,

915 F.2d at 575 (noting transfer of jurisdiction by appeal “from true final

judgment or from a decision within the collateral order exception”). Second,

the transfer affects only those aspects of the case involved in the appeal.          See

Stewart , 915 F.2d at 575. Thus, when an appeal is taken from a limited

interlocutory ruling, as opposed to one that affects the litigation as a whole, the

                                              -5-
district court may proceed with the case.      Compare Colorado v. Idarado Mining

Co. , 916 F.2d 1486, 1490 & n.2 (10th Cir. 1990),        with Stewart , 915 F.2d at 576.

Conversely, even a general appeal does not divest the district court of jurisdiction

over peripheral, collateral matters such as attorneys’ fees.       See Stewart , 915 F.2d

at 575 n.3 (following Garcia v. Burlington N. R.R. , 818 F.2d 713, 721 (10th Cir.

1987)).

       It is evident from a review of the interlocutory appeals cited by Mr. Smith

that these exceptions to the jurisdictional rule he relies on are clearly operative

here. As the district court has already explained, the cited appeals challenged

matters that were of limited scope relative to the litigation as a whole and were,

in any event, not immediately appealable--indeed, this court has already

confirmed the latter conclusion by its disposition of the appeals.       See Howard ,

90 F.3d at 435-37 (dismissing appeal No. 95-1428 for lack of an appealable

order, and noting previous jurisdictional dismissal of         Howard v. Mail-Well

Envelope Co. , No. 94-1317 (10th Cir. Nov. 15, 1994)). Thus, the district court

properly proceeded with the case.

       Turning now to more specific objections, Mr. Smith contends that by

disqualifying him, the district court deprived the plaintiff of her First and Seventh

Amendment rights. However, Mr. Smith has standing to raise only issues which

concern his own personal interests; grievances he perceives and attributes to a


                                             -6-
former client are not properly within the scope of this appeal.         Compare Uselton

v. Commercial Lovelace Motor Freight, Inc.         , 9 F.3d 849, 854-55 (10th Cir. 1993)

(attorney cannot personally appeal orders applicable only to party),        with Riggs ,

927 F.2d at 1149 (attorney may appeal orders issued directly against him)         .

       Mr. Smith’s next claim, that the parties’ stipulation and the judgment

entered thereon deprived him of the benefit of attorneys’ fees under 42 U.S.C.

§ 1988, suffers from a related standing deficiency:

               The Supreme Court has made it clear that, in general, statutes
       bestow fees upon parties, not upon attorneys. Those fees can,
       therefore, be waived by the party himself. As the Court has said,
       “just as we have recognized that it is the party’s entitlement to
       receive the fees in the appropriate case, so have we recognized that
       as far as [42 U.S.C. § 1988] is concerned, it is the party’s right to
       waive, settle, or negotiate that eligibility.” Thus, the attorney
       remains at the mercy of the client, who can either demand attorneys’
       fees from the defendant, or not, as he chooses. If the client chooses
       not to ask for the fees, the attorney has no standing to request them.

United States ex rel. Virani v. Jerry M. Lewis Truck Parts & Equip., Inc.        , 89 F.3d

574, 577 (9th Cir. 1996) (citations omitted; alteration in original);      see Benitez v.

Collazo-Collazo , 888 F.2d 930, 933 (1st Cir. 1989) (“The ‘prevailing party’

language [of § 1988] makes it patently obvious that it is the prevailing party, not

the party’s counsel, who is entitled to be awarded fees[,]” and, hence, “only the

party, and not the attorney, has standing to appeal any such grant or denial.”);

see also Uselton , 9 F.3d at 854-55 (citing “client’s entitlement to attorneys’ fees

from opposing party” as example of order client, but not counsel, may appeal).

                                             -7-
       Under these same principles, Mr. Smith may challenge the sanctions

imposed against him.     See, e.g. , Riggs , 927 F.2d at 1149. However, his

objections to the legal basis for sanction is precluded by this court’s prior

decision directing the district court to take such punitive action.     See Howard ,

90 F.3d at 435. Thus, the only sanction issue before us at this point is whether

the district court’s calculation of the amount was proper.        See id. Mr. Smith’s

argument in this regard that the district court’s reliance on the defendants’

application and supporting documentation was somehow improper--when he had

filed no objection to these materials--is meritless.

       Mr. Smith also complains that he was not given an adequate opportunity

to be heard with respect to his disqualification as plaintiff’s counsel. Given his

formal suspension from practice necessitating the disqualification, this objection

is frivolous. Similarly meritless is his completely unsubstantiated accusation of

bias on the part of the trial judge.

       As noted at the outset, Mr. Smith raises a host of overlapping, repetitious,

and conclusory objections. Whether or not each has been expressly included in

the above discussion, we have considered all of the issues raised in this appeal

and have concluded that Mr. Smith is not entitled to any relief.

       Defendants have requested that they be dismissed from further proceedings

in this case, asserting that they “have no interest in the outcome of this appeal by


                                              -8-
Smith.” Defendants’ Br. at 2. As Mr. Smith’s appeal involves a sanction payable

to defendants, who have not formally settled or released the obligation, we deny

their request, but hereby direct that they need not respond to any further filings

herein absent an order from this court.


                                          II

      In Qualls v. Regional Transportation District     , No. 97-1392, Mr. Smith

appeals from the district court’s denial of a Fed. R. Civ. P. 60(b) motion he filed

on his own behalf. As described above, the district court entered judgment on

stipulation of the parties at a time when, due to professional discipline, Mr. Smith

no longer represented the plaintiff. Notwithstanding this formal dissociation from

the case, Mr. Smith later attempted, unsuccessfully, to challenge the judgment

under Rule 60(b). We review the district court’s decision solely for abuse of

discretion, see Stubblefield v. Windsor Capital Group     , 74 F.3d 990, 994 (10th Cir.

1996), and affirm.

      There is no need to delve into detail here. Although appealing from the

denial of his Rule 60(b) motion, Mr. Smith devotes a substantial portion of his

brief to rehashing complaints about his previous sanctions, disqualification, and

discipline. (Indeed, the argument actually directed at the Rule 60(b) ruling is so

perfunctory that he never even discusses the substantive basis for the motion.)

Much of what we have already said above, and decided in       Qualls v. Regional

                                          -9-
Transportation District , Nos. 95-1385, 95-1459, 95-1489, 1996 WL 412414

(10th Cir. July 23, 1996), applies also to these stale and conclusory objections.

Mr. Smith has clearly not demonstrated any abuse of the district court’s

discretion. Furthermore, we note that his Rule 60(b) motion was patently out

of time. The cause of action was dismissed with prejudice on October 10, 1995,

but Mr. Smith did not file his motion until September 26, 1997. Nothing he has

argued on appeal would justify invocation of those grounds in Rule 60(b)(4) - (6)

which permit filing beyond the one-year deadline otherwise imposed by the Rule.

      For the foregoing reasons, the judgments of the United States District Court

for the District of Colorado are AFFIRMED.




                                         -10-
                            Prospective Filing Restrictions


Before SEYMOUR, Chief Judge , PORFILIO, ANDERSON, TACHA,
BALDOCK, BRORBY, EBEL, KELLY, HENRY, BRISCOE, LUCERO,                                and
MURPHY, Circuit Judges.



       Mr. Smith has a long history with this court marred by repetitive, frivolous

filings and general abuse of the judicial process. This well-documented course

of misconduct began during his tenure as a practicing attorney, prompting the

imposition of numerous monetary sanctions, his suspension from Tenth Circuit

practice, and ultimately his disbarment by this court.    3
                                                              See generally In re

David L. Smith , 76 F.3d 335 (10th Cir. 1996) (ordering disbarment);        In re David

L. Smith , 10 F.3d 723 (10th Cir. 1993) (ordering suspension);       DeHerrera v. City

& County of Denver ex rel. Bd. of Water Comm’rs          , Nos. 93-1070, 93-1139, 1993

WL 359691 (10th Cir. Sept. 3, 1993) (imposing monetary sanction);           Casillan v.

Regional Transp. Dist. Amalgamated Transit Union, Local 1001           , Nos. 92-1009,

92-1039, 1993 WL 8732 (10th Cir. Jan. 15, 1993) (same). While such

disciplinary steps have curtailed Mr. Smith’s professional misfeasance, they do

not address his similar abuse of the judicial process as a litigant in his own right.




       3
            The United States Supreme Court has also disbarred Mr. Smith. See
In re Disbarment of David L. Smith, 516 U.S. 984, 116 S. Ct. 510 (1995).

                                            -11-
       Since his suspension and disbarment, Mr. Smith has pressed on as a litigant

with the same pattern of meritless, repetitive litigation that led to his professional

censure. Jurisdictional dismissals and summary affirmances in this regard, often

in successive appeals from the same litigation which prompted his professional

discipline, have become commonplace.        See, e.g. , Howard , 90 F.3d 433; Qualls ,

Nos. 95-1385, 95-1459, 95-1489, 1996 WL 412414;           DeHerrera v. City & County

of Denver ex rel. Bd. of Water Comm’rs      , No. 95-1110, 1996 WL 316473

(10th Cir. June 12, 1996);   Casillan v. Regional Transp. Dist.      , No. 93-1158,

1993 WL 521053 (10th Cir. Dec. 14, 1993). Further, Mr. Smith’s pro se filings

have involved the same substantive redundancy as his professional efforts.

See, e.g. , Dunkin v. Louisiana-Pacific Corp.      , No. 96-1411, 1997 WL 447327

(10th Cir. July 28, 1997),   cert. denied , 118 S. Ct. 884 (1998);    Dunkin v.

Louisiana-Pacific Corp. , No. 95-1087, 1996 WL 316467 (10th Cir. June 12,

1996); In re David L. Smith , Nos. 95-1119, 95-1091, 1996 WL 67191 (10th Cir.

Feb. 16, 1996). This court has on previous occasions warned Mr. Smith that his

continued engagement in repetitious pro se litigation could lead to additional

personal sanctions.   See, e.g. , Saathoff v. Filenet Corp. , No. 95-1206, 1996 WL

294211 (10th Cir. June 4, 1996);     In re David L. Smith , 1996 WL 67191. Indeed,

a panel of this court has already ordered the clerk not to accept any more




                                            -12-
successive filings by Mr. Smith contesting his disbarment.    See Smith v. United

States District Court , No. 98-1030 (Orders filed April 9 and May 13, 1998).

      Evidently, neither professional discipline nor personal sanction has

impressed upon Mr. Smith the essential underlying problem. Initially as counsel,

and now as pro se litigant, he has “engaged in a pattern of litigation activity

which is manifestly abusive” and thereby “strained the resources of this court.”

Winslow v. Hunter (In re Winslow)     , 17 F.3d 314, 315 (10th Cir. 1994) (quotation

omitted). Accordingly, “based on [Mr. Smith’s] appellate filings history and

abuse of the appellate process, we have sua sponte decided to impose restrictions

on [his] future filings in this court . . . commensurate with our inherent power to

enter orders necessary and appropriate in aid of our jurisdiction under [28 U.S.C.]

§ 1651.” Werner v. Utah , 32 F.3d 1446, 1448 (10th Cir. 1994) (quotations

omitted); see also Cauthon v. Rogers , 116 F.3d 1334, 1337 (10th Cir. 1997);

Schlicher v. Thomas , 111 F.3d 777, 780-81 (10th Cir. 1997).

      Mr. Smith is hereby enjoined from proceeding as an appellant, or as

a petitioner in an original proceeding, without the representation of a licensed

attorney admitted to practice in this court, unless he first obtains permission

to proceed pro se. To do so, he must take the following steps:

      1. File a petition with the clerk of this court requesting leave to file

a pro se proceeding;


                                          -13-
      2. Include in the petition the following information:

             a. A list, by case name, number, and citation where applicable, of all

proceedings currently pending or filed previously in this court, with a statement

indicating the nature of his involvement in, and the current status or disposition

of, each proceeding;

             b. A list, by case name, number, and citation where applicable, of all

assessments of attorneys’ fees, costs, or other monetary sanction against him

arising out of any federal court matter, with a brief explanation of the

circumstances surrounding each assessment and a statement apprising this court

whether and when the assessment was paid;

             c. A list, by case name, number, and citation where applicable, of all

outstanding injunctions, contempt orders, or other judicial directions limiting his

access to any state or federal court, including injunctions, orders, or other

directions requiring him to be represented by an attorney or seek leave to file

matters pro se.

      3. File with the clerk a notarized affidavit, in proper legal form, which

recites the issues he seeks to present, including a particularized description of the

order or ruling being challenged and a short statement of the legal basis asserted

for the challenge. The affidavit must also certify, to the best of his knowledge,

that the legal arguments advanced are not frivolous or made in bad faith; that they


                                         -14-
are warranted by existing law or a good faith argument for the extension,

modification, or reversal of existing law; that the appeal or other proceeding is

not interposed for any improper purpose; and that he will comply with all federal

appellate rules and local rules of this court.

      These documents shall be submitted to the clerk of the court, who shall

forward them to the chief judge for review to determine whether to permit the

pro se appeal or other proceeding. Without the chief judge’s approval, the matter

will not proceed. If the chief judge approves the submission, an order will be

entered indicating that the matter shall proceed in accordance with the Federal

Rules of Appellate Procedure and the Tenth Circuit Rules. Only at that juncture

will the appeal or other proceeding formally be filed in this court.

      Mr. Smith shall have ten days from the date of this opinion to file written

objections, limited to fifteen pages, to these proposed restrictions. Unless this

court orders otherwise upon review of any objections, the restrictions shall take

effect thirty days from the date of this opinion and shall apply to any matter filed

by Mr. Smith with this court after that time.




                                          -15-
