
USCA1 Opinion

	




          November 4, 1992  UNITED STATES COUT OF APPEALS                                FOR THE FIRST CIRCUIT                                _____________________          No. 92-1295                         TROOPER ALVIN T. PONTARELLI, ET AL.,                                Plaintiffs-Appellees,                                          v.                               WALTER E. STONE, ET AL.,                                Defendants-Appellees.                                 ____________________                                    INA P. SCHIFF,                                      Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Ernest C. Torres, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                              Torruella, Circuit Judge,                                         _____________                            Brown,* Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                _____________________               Ina P. Schiff pro se.               _____________               Max Wistow, with whom Michael H. Feldhuhn, Wistow & Barylick               __________            ___________________  _________________          Incorporated,  Thomas  J.  McAndrew,  James E.  O'Neil,  Attorney          ____________   ____________________   ________________          General and Robin E.  Feder, were on joint brief  for defendants-                      _______________          appellees  Walter E. Stone, Lionel J. Benjamin and State of Rhode          Island.                                        ____________________          *  Of the Fifth Circuit, sitting by designation.                                 ____________________                                 ____________________                    TORRUELLA, Circuit Judge.  This case is before us in an                               _____________          unusual posture  because all parties  have settled the  merits of          the underlying disputes.   There only remains a matter  raised by          the former  attorney  of  one of  those  parties.   We  are  thus          presented  with a narrow  decisional issue:  whether there  is an          appropriate  appellate  controversy to  be  passed  upon by  this          court.  For reasons  hereinafter stated, we rule in  the negative          and dismiss the appeal.                    The factual  background to this appeal  is bizarre, not          to say byzantine.  The underlying suit filed in the United States          District  Court for  the  District of  Rhode  Island charged  sex          discrimination and retaliation.  It was initially brought  by six          plaintiffs (five  individual state troopers and  the Rhode Island          State  Police  Lodge  25)  against  the  State of  Rhode  Island,          Attorney General  Arlene Violet ("Violet"), and  various officers          of  the  Rhode  Island State  Police  and  its Training  Academy.          Appellant Ina Schiff represented  all plaintiffs from the outset,          but had  co-counsel by the time  of trial.   Only one plaintiff's          claims, Mary Nunes',  reached trial.  The jury found  in favor of          Nunes  on some counts.  After remittitur, she was awarded nominal          compensatory damages and $15,000 in punitive damages.                    All the other plaintiffs took voluntary dismissals.  Of          the original  defendants,  only two  remained in  the case  after          appeal.    Violet  won  a  judgment  on  the  pleadings;  another          defendant was dismissed  by the court  on a post-verdict  motion,          and an appeal  to this  court resulted in  dismissal against  the                                         -3-                                          3          State of Rhode Island.   Pontarelli v.  Stone, 930 F.2d 104  (1st                                   __________     _____          Cir. 1991).  Plaintiff Nunes' attempt to appeal from the judgment          failed  because  her name  had been  omitted  from the  notice of          appeal (prepared by  appellant Schiff),  id. at 108-12.   By  the                                                   __          time of the Court of Appeals' decision, however, appellant Schiff          no longer represented plaintiff Nunes and had been substituted by          other counsel.                    Nevertheless,   after   Nunes'  judgment   against  the          remaining  two  defendants  became  final,  appellant  Schiff  in          February,  1989 petitioned  for $511,951  in attorney's  fees and          $203,268.28 in costs  on behalf of "all  plaintiffs."  Defendants          also  petitioned for fees.  After  lengthy discovery and hearings          conducted  on six  dates, the  court on  January 16,  1992 denied          appellant  Schiff's petition  in its  entirety,  instead awarding          fees  to defendant  Violet  in the  amount  of $54,168.50.    The          district court  denied the award in  a well-documented memorandum          and  order, stating as grounds:  (1) the failure  of appellant to          maintain  contemporaneous  time  records;  (2)  the   failure  of          appellant to allocate the  time spent on her client's  case among          the various  claimants; (3) the  failure of appellant  to exclude          time that was  unrelated to the federal court case, time that was          duplicative and unproductive; and (4) the failure to document her          request.    See Pontarelli  v. Stone,  781  F. Supp.  114 (D.R.I.                      ___ __________     _____          1992).                    As part  of its findings, the  district court concluded          that appellant's misrepresentations regarding the fees and  costs                                         -4-                                          4          request  warranted referral of the matter to the attention of the          Rhode Island Supreme Court's Chief Disciplinary Counsel "for such          investigation  and/or  disciplinary   action  as  she  may   deem          appropriate."  Id. at 127.                         __                    On  February 13,  1992,  appellant Schiff  requested an          extension of  time from the  district court in  which to  file an          appeal  on her own behalf, alleging that  she was too ill to file          within the  allotted  30 days.    The request  was  provisionally          granted by the district court, but she was directed to supply the          court,  no later  than by  February 27,  1992, with  an affidavit          supporting her contention that she was ill.1                    Meanwhile, on February 26, 1992, plaintiffs other  than          Nunes filed a separate  appeal (No. 92-1267), in which  they were          represented by  separate counsel than that representing appellant          Nunes.                    On March 6, 1992, appellant Schiff,  on her own behalf,          filed  a notice of appeal  to the district  court's order denying          fees and costs.  This is  the appeal presently before us (No. 92-          1295).   Nunes  has at  no time  appealed from  the fees'  order,          either through appellant Schiff or in any other manner.                    In  response to a motion to  dismiss filed by appellees          challenging  appellate Schiff's  standing,  we  consolidated  the          present appeal  with that in No.  92-1267.  On May  27, 1992, the          day  after  we  entered  that unfortunate  order,  the  appealing                                        ____________________          1  Although appellant  Schiff filed an affidavit on  February 27,          1992, there is a substantial issue as to whether it complies with          the order.                                         -5-                                          5          plaintiffs in No. 92-1267 stipulated to dismissal of their appeal          with prejudice, after which plaintiffs and defendants settled the          underlying case and  filed appropriate satisfaction of  judgments          notices with the Clerk.                    It is abundantly clear after  oral argument, if it  was          not before, that appellant Schiff does not at present seek review          of  the district court's denial  of attorney's fees  and costs to          her client, nor does she challenge  the decision on the merits of          the case before said  court.  It is just as  well, as an attorney          lacks  separate standing  to appeal from  a judgment  awarding or          denying  fees to a party,  since such concessions  are granted to          parties, not  their attorneys.   See Ben tez  v. Collazo-Collazo,                                           ___ _______     _______________          888  F.2d 930,  933 (1st  Cir. 1989).   Furthermore,  although it          should  be  unnecessary  to  state  at  this  point,  any  appeal          regarding the  merits of the  case below is  clearly moot as  not          only have plaintiffs stipulated  the  dismissal of  the appellate          proceeding  but  they have,  as  previously  stated, settled  the          underlying dispute with defendants.                    The  focus of  appellant  Schiff's claim  before us  is          directed to allegations regarding the district judge's conduct in                                                ________ _______ _______          the proceedings before him.  In  this regard, it is claimed  that          the district judge should have recused himself from participating          in  these proceedings pursuant to the mandate of 28 U.S.C.   455,          which requires that a judge "disqualify himself in any proceeding          in which his  impartiality might reasonably  be questioned."   28          U.S.C.    455(a).   Appellant  Schiff alleges  that the  district                                         -6-                                          6          judge's wife  was awarded  discretionary consulting  contracts by          the  defendant state  totaling the  sum of  $89,390.50 while  the          present case  was sub judice.   Appellant  Schiff further  claims                            __________          that  the district  judge acted  as a special  master in  a civil          rights  action related to the subject matter of the present case,          and that during its  pendency, defendant state's counsel reviewed          the reasonableness  of the district judge's  bill and recommended          that the bill be paid.                    These allegations, on their face, raise serious charges          of impropriety by a  judicial officer.  That by  itself, however,          does  not,   as  the  present  appeal   stands,  grant  appellate          jurisdiction  to  this  court   regarding  the  merits  of  those          contentions.2                    Even assuming that appellant Schiff raised the issue of          the  district judge's  disqualification in  a timely  fashion and          before the appropriate  forum, a  question as to  which there  is          considerable doubt,  see Delesdernder  v. Porterie, 666  F.2d 116                               ___ ____________     ________          (5th Cir. 1982), cert.  denied, 459 U.S. 839 (1983),  the mooting                           _____________          of  the appeal  on the  merits by  plaintiffs' settlement  of the                                        ____________________          2    Appellant  Schiff argues  that  even  if  we lack  appellate          jurisdiction, we should assert jurisdiction pursuant to 28 U.S.C.            1651  as a petition for mandamus.  Judicial disqualification is          a suitable issue for  the exercise of mandamus jurisdiction.   In                                                                         __          re  U.S., 666  F.2d  690,  694  (1981).    However,  mandamus  is          ________          appropriate  only when no  other adequate means  of obtaining the          desired  relief exists.  Department of Navy v. F.L.R.A., 835 F.2d                                   __________________    ________          921,  923 (1st  Cir.  1987)  (citing  Allied  Chemical  Corp.  v.                                                _______________________          Daiflon, Inc., 449 U.S. 33 (1980)).   In the present case, Schiff          _____________          requests  no relief based upon the merits  of the case below.  We          therefore assume that she seeks only punishment of the judge.  As          we explain below, Schiff clearly has an adequate remedy available          to her to obtain this relief.                                         -7-                                          7          underlying  case also moots any  remedy that could  be granted by          this court.   More on point, before an appellate court can make a          ruling on  the appropriateness of disqualification  by a district          judge, the issue must be raised as soon  as the cause is known, a          factual record must be  made, a ruling adverse to  appellant must          be made on that record, the matter must be properly appealed, and          the underlying dispute as  to which the district court  ruling is          relevant  must still  remain a  live  controversy when  the issue          comes  for resolution  by the court  of appeals.   None  of these          conditions  presently  exist.    But  we  need  not  discuss them          seriatim, as the last one is by itself dispositive.                    If  a trial judge has wrongly  failed to disqualify him          or  herself,  the remedy  to correct  this  situation is  for the          appellate court to reverse the decision of the case on the merits          and  to order a new  trial before a different judge.   Were we to          entertain  what  remains of  this  appeal,  that is,  appellant's          challenge to  the trial judge's participation  in the proceedings          below,  there  remains  nothing as  to  which  we  could order  a          reversal on  the merits or as to which we could order a new trial          or  hearing.   Clearly,  nothing remains  of  the suit  that  was          brought by  plaintiffs against defendants in  the district court.          The case, and all its appendages and side issues, has been mooted          because  the real parties  to the  real controversy  have decided          there is no longer a controversy.  It goes without saying that it          is the existence  of a  controversy that  grants federal  courts,          district or  appellate, the power  to act.   The lack  of such  a                                         -8-                                          8          controversy  deprives  federal  courts of  authority  to  further          exercise their authority, except as to incidental matters.  Under          the  present circumstances,  in which  our intervention  would be          only of  academic interest  or advisory  in nature, dismissal  of          appellant's appeal is obligatory.                    In  the  interest  of maintaining  judicial  integrity,          however, we are required to  state what must already be  known by          appellant  Schiff   as   an  experienced   practicing   attorney.          Appellant  Schiff is  not without a  forum in  which to  make any          claims  that she may believe are justified regarding what she may          perceive  to be  judicial  misconduct.   See  28 U.S.C.    372(c)                                                   ___          (Supp.  1992).  It  is before the  forum created by  this statute          that she  should  seek  redress in  any  case  involving  alleged          judicial  misconduct.  Needless  to say, by so  stating we do not          pass judgment  upon the  merits of  such a claim.   We  only rule          that,  for the reasons stated above, the present appeal is mooted          and is thus not properly before us.                    The appeal is dismissed.  Costs to appellees.                    _______________________                                         -9-                                          9
