                              REVISED, June 5, 1998


                      UNITED STATES COURT OF APPEALS
                              For the Fifth Circuit



                                    No. 96-11180


                                   OLLIE DAILEY,
                                                                   Plaintiff-Appellant

                          NOEMI ALESSANDRA COLLIE ,
                                                                   Appellant

                                      VERSUS


                         VOUGHT AIRCRAFT COMPANY,

                                                                   Defendant.
                   ____________________________________


                                   OLLIE DAILEY,
                                                                   Plaintiff-Appellant

                          NOEMI ALESSANDRA COLLIE,
                                                                   Appellant

                                      VERSUS


   INTERNATIONAL UNION, UNITED AEROSPACE WORKERS, LOCAL 848,

                                                                   Defendant.


                    Appeal from the United States District Court
                        For the Northern District of Texas
                                    May 12, 1998


Before JOLLY, SMITH, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge.

      Noemi Alessandra Collie, an attorney-at-law, appeals from an order by the district

                                          1
court disbarring her from practice in the United States District Court for the Northern

District of Texas until the payment of monetary sanctions imposed upon her and her

client for violations of Federal Rule of Civil Procedure 11. Subsequent to filing this

appeal, Collie paid the sanctions and was reinstated to practice by the district court. We

reverse and vacate the district court’s disbarment order. This appeal is not moot

because the disbarment on the attorney’s record may affect her status as a member of

the bar and have other collateral consequences. Because the attorney was not given

notice of the charges made or opportunity for explanation and defense prior to

disbarment, she was deprived of procedural due process required by the United States
Constitution and the district court’s own local rules.



                                            I.

      Appellant attorney Noemi Collie filed three separate lawsuits on behalf of plaintiff

Ollie Dailey against Dailey’s employer, Vought Aircraft Company (Vought). The first

lawsuit concerned claims of race discrimination and retaliation in violation of Title VII.

After a bench trial, the district court rejected Dailey’s claims and entered final judgment

for Vought. On motion by Vought, after considering written responses of the parties,

the district court found that Collie and Dailey violated Federal Rule of Civil Procedure
11(b)(1) and (b)(3) by repetitiously asserting essentially the same claims in two other

lawsuits. The district court imposed sanctions by ordering Collie and Dailey to pay the

costs and attorney’s fees Vought incurred in defending the actions. Dailey appealed the

sanctions order. This Court affirmed. See Dailey v. LTV Aerospace & Defense Co.,

Nos. 95-10156 & 95-10437 (5th Cir. 1996).

      Subsequently, on June 18, 1996, the district court ordered Collie and Dailey to

pay the imposed sanctions of $8,478.92 within eleven days. After the sanctions were

not paid timely, the district court, on July 18, 1996, disbarred Collie pending their


                                            2
payment, without giving Collie notice or an opportunity to be heard with respect to her

disbarment. Collie moved the district court for reconsideration and petitioned the chief

judge of the district for relief under local rules. The district court denied reconsideration

but amended its order to allow Collie to continue representing clients in five particular

cases. The chief judge denied Collie’s appeal.

       Collie appealed to this court from the decisions of the district court and the chief

judge of the district on September 19, 1996. The next day Collie moved this court to

stay the district court orders. This court denied the stay. Collie paid the monetary

sanctions on September 23, 1996.         The district court, after receiving notice of the
payment, issued an order reinstating Collie to practice in the Northern District of Texas

on October 7, 1996.



                                          II.

       Because Collie paid the monetary sanctions in full and was reinstated to practice

before the Northern District of Texas, we consider first whether her appeal is moot.

Matter of Commonwealth Oil Refining Co., 805 F.2d 1175, 1180-81 (5th Cir. 1986), cert.

denied, 483 U.S. 1005 (1987). The grant of subject matter jurisdiction to the federal

courts found in Article III of the United States Constitution extends only to actual “cases”
and “controversies”. U.S. Const., art. III, sect. 2; Lewis v. Continental Bank Corp., 494

U.S. 472, 477 (1990). These terms serve to limit the federal judicial power in two ways.

15 JAMES W. MOORE ET AL., MOORE’S FEDERAL PRACTICE §101.01, 101-14 (3d ed. 1997).

First, federal courts may only address questions presented in an adversary context and

in a form amenable to resolution through the judicial process. Id.             Second, the

judiciary’s role is constrained to the extent necessary to prevent intrusion upon areas

which are more appropriately handled by the other two branches of the federal

government. Id. The term justiciability serves to give expression to this dual limitation


                                                3
imposed upon the federal courts by the case or controversy requirement. Id.

       The justiciability of an issue, in turn, is determined by the doctrines of standing,

mootness, and ripeness. Id. § 101.01, 101-13. The Supreme Court has explained that

“mootness [is] the ‘doctrine of standing set in a timeframe [.] The requisite personal

interest that must exist at the commencement of the litigation (standing) must continue

throughout its existence (mootness).’” United States Parole Comm’n v. Geraghty, 445

U.S. 388, 397 (1980)(citation omitted); see also Arizonians For Official English v.

Arizona, 117 S.Ct. 1055, 1068 (1997); Lewis, 494 U.S. at 477-78. Under this doctrine,

although a justiciable controversy may have existed at the time litigation was
commenced, the action must be dismissed for want of jurisdiction if the controversy

ceases to exist at some point in the litigation. Calderon v. Moore, 116 S.Ct. 2066, 2067

(1996) (per curiam); Church of Scientology of California v. United States, 506 U.S. 9,

12 (1992); 15 MOORE        ET AL.,   §101.90, 101-165.     Furthermore, a federal court is

obligated to raise the issue, sua sponte, if the facts suggest mootness notwithstanding

the silence of the parties with respect to the issue. United States v. Rice, 404 U.S. 244,

245 (1971); MOORE ET AL., § 101.92, 101-168.

       A case may become moot for several reasons.             One such reason can be an

intervening factual event which causes the plaintiff to no longer have a present right to
be vindicated or a stake or interest in the outcome. Calderon, 116 S.Ct. at 2067; MOORE

ET AL., § 101.92, 101-169.     An intervening event, however, will only render a plaintiff’s

action moot if the plaintiff is divested of all personal interest in the result or the effect of

the alleged violation is completely eradicated and the event will not occur again. MOORE

ET AL., §   101.93[2], 101-170. The availability of even partial relief is enough to prevent

mootness. Id.; Church of Scientology, 506 U.S. at 450; 13A WRIGHT, MILLER & COOPER,

FEDERAL PRACTICE AND PROCEDURE § 3533.2 (2d ed. 1984).

       Even if the plaintiff’s primary injury has been resolved, the collateral


                                               4
consequences doctrine serves to prevent mootness when the violation in question may

cause continuing harm and the court is capable of preventing such harm. Sibron v.

New York, 392 U.S. 40, 53-59 (1968); 1 ROTUNDA & NOWAK, TREATISE OF CONSTITUTIONAL

LAW §2.13 (2d ed. 1992); MOORE ET AL., § 101.99[3], 101-190. As long as the parties

maintain a “concrete interest in the outcome” and effective relief is available to remedy

the effect of the violation, the size of the dispute is irrelevant. Firefighters Local Union

No. 1784 v. Stotts, 467 U.S. 561, 571 (1984). Although the collateral consequences

doctrine is most often used to enable review of expired criminal sentences, it frequently

has been applied in the civil context.      WRIGHT   ET AL.,   § 3533.3; MOORE    ET AL.,   §
101.00[3], 101-190.

       In Connell v. Shoemaker, 555 F.2d 483, 486-487 (5th Cir. 1977), the

Commanding Officer at Fort Hood prohibited military personnel from renting residential

property owned or managed by the appellants, the Connells, for 180 days in response

to allegations that appellant Ted Connell had discriminated against black military

personnel in renting apartments. The appellants filed suit in December 1974 seeking

declaratory and injunctive relief from the 180 day prohibition. The district court granted

summary judgment in favor of the appellee on the ground of mootness as the appellee

had lifted the prohibition after the 180 day time period had expired and Ted Connell had
given his assurance that there would be no future acts of discrimination.

       This Court reversed because the “continuing practical consequences of the

Army’s determination of discrimination [were] sufficient to negate mootness.” Id. at 486.

  Specifically,   the “imputation of bigotry implicit in the Army’s widely publicized

sanctions” could only harm the appellants’ reputations and concomitantly their

livelihoods as the success of the businesses in which the appellants held interests

depended on the maintenance of a favorable public image. Id. at 487. The moral stigma

of the sanction imposed by the appellee harmed the aspirations of Ted Connell as a


                                             5
local politician. Id.

       This Court applied the collateral consequences doctrine to defeat a claim of

mootness in Umanzor v. Lambert, 782 F.2d 1299 (5th Cir. 1986). Umanzor, a citizen

of El Salvador, was deported from the United States on October 14, 1983. Before his

deportation, Umanzor had applied for political asylum; his request was denied. This

Court relied on the collateral consequences doctrine in rejecting the argument that

Umanzor’s release from the custody of the airline transporting him to Central America

mooted the appeal of his habeas corpus claim. Specifically, we noted that aliens who

have been arrested and deported are ineligible for visas for purposes of readmission
into the United States for five years and are guilty of a felony if entry, or an attempted

entry, into the United States does occur. Id. at 1301.

       As the “mere possibility of adverse collateral consequences is sufficient to

preclude a finding of mootness,” Collie’s case was not rendered moot by her payment

of the sanctions and reinstatement to practice in the Northern District of Texas. Id.

(quoting Sibron v. New York, 392 U.S. at 55).    Because admission to the appropriate

bar is an absolute prerequisite to the practice of law, it is hardly inconceivable that

disbarment, even if only temporary, can be detrimental to an attorney’s professional

reputation, well-being, and success. Collie explains in her brief that the nature of her
practice results in the majority of her cases being litigated in federal court. Although

she is now able to practice in the Northern District of Texas, her professional record

continues to be tarnished. The order disbarring Collie remains of record and open to

perusal by the judges and attorneys of any court before which she seeks to practice.

It is reasonably foreseeable that the disbarment on Collie’s record may have a

detrimental impact on her professional career.

       Our decision in United States v. Shrimsher (In re Butts), 493 F.2d 842 (5th Cir.

1974), strongly supports this conclusion by analogy. Butts, an attorney, was found to


                                            6
be in contempt of court and ordered incarcerated for two hours. On appeal, the

government argued that Butts’ appeal was moot as he had already served his period

of confinement. We disagreed holding that collateral legal consequences rendered the

mootness doctrine inapplicable. Id. at 844. This Court pointed out the collateral

consequences of Butts’ criminal conviction, i.e., its availability for impeachment and

future sentencing purposes. Moreover, this Court continued:

            Conviction for contempt of court could also have serious adverse
     career consequences for Butts. His conviction could provide a basis for
     disciplinary action by a bar association. Opportunities for appointment to the
     bench or to other high office might be foreclosed as a result of this blot upon
     his record. The conviction might damage Butts’ reputation in the legal
     community, and this in turn might affect his ability to attract clients and to
     represent them effectively, especially in open court. In light of these possible
     collateral consequences, Butts’ appeal is not ‘abstract, feigned, or
     hypothetical’ so as to justify dismissal for mootness. See Sibron, supra, 392
     U.S. at 57.

Shrimsher (Butts), 493 F.2d at 844.

The potential collateral consequences of a criminal contempt conviction that prevented

mootness in Butts’ case are identical or quite similar to the serious adverse career

consequences of disbarment that threaten Collie.

      Because of its inapposite and distinctive context, In re Taylor, 916 F.2d 1027 (5th

Cir. 1990) (per curiam), does not persuade us that the present appeal is moot. The

district court sanctioned Taylor for use of an unprescribed substance outside of court
and apparently unrelated to his law practice, ordering him to undergo drug monitoring,

provide and advertise free legal services to indigents, secure professional liability

insurance, and provide an accounting of the work done and cost incurred. The court

stated that Taylor would be subjected to further sanctions, including disbarment, if he

failed to comply with these conditions. Taylor appealed but resigned from the bar prior

to this Court’s consideration of the case.

      This Court in Taylor concluded that the appeal was moot and vacated the

judgment below for several reasons.          Taylor’s practice related conditions and

                                             7
obligations under the district court’s order ended upon his resignation from the bar. This

Court would not condone a self-help type stay which would allow Taylor to avoid the

order while challenging it. In addition, this Court concluded that the possible collateral

consequences in Taylor’s case were too remote, characterizing his argument on this

subject as “insufficient.” Taylor, 916 F.2d at 1028. Moreover, the Court apparently

excepted the controversy from mootness in the event that Taylor sought readmission

and the district court reinstated its sanctions order. Id., n.1; Id. (Rubin, J. concurring).



       The circumstances of the present case distinguish it categorically from Taylor.
Collie did not resign from the bar. She is an active practitioner who suffers from the

stigma of a recorded disbarment. Rather than attempt to avoid the district court’s order

to pay monetary sanctions, Collie complied with it and now seeks relief from the real

and significant threat of adverse consequences to her law practice and career.



                                            III.

       Having decided that Collie’s appeal is not moot, we consider whether her

disbarment must be set aside because the district court deprived her of procedural due

process as she was not afforded notice and an opportunity to be heard prior to being
expelled from the bar.

       Although disbarment is intended to protect the public, it is a “punishment or

penalty imposed on the lawyer.” In re Ruffalo, 390 U.S. 544, 550 (1968). Disbarment

or suspension proceedings are adversarial and quasi-criminal in nature. Id. at 551;

United States v. Brown, 72 F.3d 25, 29 (5th Cir. 1995); In re Medrano, 956 F.2d 101,

102 (5th Cir. 1992). As such, an attorney is entitled to procedural due process which

includes notice and an opportunity to be heard in disbarment or suspension

proceedings. Ruffalo, 390 U.S. at 550; Ex parte Bradley, 74 U.S. (7 Wall.) 364, 375


                                             8
(1868); Medrano, 956 F.2d at 102; NASCO, Inc. v. Calcasieu Television and Radio,

Inc., 894 F.2d 696, 706-07 (5th Cir. 1990), aff’d sub nom., Chambers v. NASCO, 501

U.S. 32 (1991); see also Standing Comm. on Discipline v. Ross, 735 F.2d 1168, 1170

(9th Cir.), cert. denied, 469 U.S. 1081 (1984) (at a minimum, an attorney subject to

discipline is entitled to procedural due process, including notice and an opportunity to

be heard). The burden of proving all of the elements of a violation rests with the moving

party. Medrano, 956 F.2d at 102. A federal court may only disbar an attorney upon

clear and convincing evidence of a violation warranting this extreme sanction. Id.;

NASCO, 894 F.2d at 699.
       Moreover, Local Rule 13.2 (b) affords an attorney similar procedural due process

protections as part of any disciplinary action taken by a district court. The rule provides:

            (b) Grounds for Disciplinary Action.      This Court may, after the
      member has been given an opportunity to show cause to the contrary, take
      any appropriate disciplinary action against any member of its Bar.

N. DIST. TEX. R. 13.2 (b)(1996) (emphasis added).

Federal district courts are bound by the disciplinary rules they implement. Matter of

Thalheim, 853 F.2d 383, 386, 388 (5th Cir. 1988). Although we conclude that the only

logical reading of this rule requires notice and an opportunity to be heard before an

attorney is disciplined by the court, any ambiguity in the rule must be construed in favor
of the attorney charged with behavior warranting discipline. Brown, 72 F.3d at 29. Cf.

Baldwin v. Hale, 68 U.S. (1 Wall.) 223, 233 (1864)(“Parties whose rights are to be

affected are entitled to be heard; and in order that they may enjoy this right they must

first be notified.”).

       The record unequivocally shows that the district court did not provide Collie with

notice or an opportunity to be heard before disbarring her. The court, on June 18, 1996,

ordered Collie and her client to pay the imposed sanctions within 11 days. Without

notifying Collie that the failure to timely pay the sanctions constituted grounds for


                                             9
disbarment, and without affording her an opportunity to be heard on the subject, the

district court, on July 18, 1996, disbarred Collie until such time as the sanctions were

paid.

        Collie’s unsuccessful appeal of the disbarment order to the chief judge of the

district did not repair the district court’s violation of her rights to due process under the

Constitution and the court rules. Prior to an attorney’s disbarment, he or she is entitled

to notice of the charges made and an opportunity to explain or defend (except for

extreme misconduct occurring in open court, in the presence of the judge). Ruffalo, 390

U.S. at 550.     This principle has been clearly and consistently expressed by the
Supreme Court. Theard v. United States, 354 U.S. 278, 282 (1957) (“Disbarment being

the very serious business that it is, ample opportunity must be afforded to show cause

why an accused practitioner should not be disbarred.”); Ex parte Robinson, 86 U.S. (19

Wall.) 505, 511 (1873)(“Before a judgment disbarring an attorney is rendered he should

have notice of the grounds of complaint against him and ample opportunity of

explanation and defence.”); Ex parte Garland, 71 U.S. (32 How.) 333, 378 (1866)(“They

hold their office during good behavior, and can only be deprived of it for misconduct

ascertained and declared by the judgment of the court after opportunity to be heard has

been afforded.”). See also Burkett v. Chandler, 505 F.2d 217, 222, n.5 (10th Cir. 1974),
cert denied, 423 U.S. 876 (1975) (disbarment proceeding void due to absence of prior

notice or opportunity to be heard notwithstanding provision in local rule for review of

disbarment judgment.). There may be cases of such gross and outrageous conduct in

open court as to justify very summary proceedings for an attorney’s suspension or

removal from office, “but even then he should be heard before he is condemned.”

Robinson, 86 U.S. (19 Wall.) at 513, n.6 (citing Ex parte Bradley, 74 U.S. (7 Wall.) 364

(1868); Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 354 (1871)). Cf. Ruffalo, 390 U.S.

at 354 (White, J. concurring)(“A relevant inquiry in appraising a decision to disbar is


                                             10
whether the attorney stricken from the rolls can be deemed to have been on notice that

the courts would condemn the conduct for which he was removed.”).                See also

Johnson v. Waddell & Reed, Inc., 74 F.3d 147 (7th Cir. 1996)(Rule 11(c)(1)(B)’s

requirement that court imposing sanctions on its own initiative describe the specific

conduct that appears to be a violation and direct the alleged violator to show cause to

the contrary was intended to ensure due process; court’s procedure of giving attorney

after-the-fact opportunity to convince court to set aside rule violation it had already

determined and imposed sanctions for did not comply with either the letter or spirit of the

rule); Childs v. State Farm Mut. Auto. Ins. Co., 29 F.3d 1018, 1027 (5th Cir. 1994) (due
process requires notice and an opportunity to be heard before Rule 11 sanctions are

imposed).

      Moreover, the Supreme Court in Cleveland Bd. of Education v. Loudermill, 470

U.S. 532, 542-548 (1985), held that, in the termination of a public employee,

dischargeable only for cause, a post-termination hearing cannot satisfy the

requirements of due process except when it is coupled with pretermination notice and

pretermination opportunity to respond. Accord Clements v. Airport Authority of Washoe

County, 69 F.3d 321, 333-334 (9th Cir. 1995)(“In the context of process due a

terminated public employee, a full post-deprivation hearing does not substitute for the
required pre-termination hearing.”); Chaney v. Surburban Bus Division of the RTA, 52

F.3d 623 (7th Cir. 1995); Cotnoir v. University of Maine Systems, 35 F.3d 6, 12 (1st Cir.

1994)(Constitutional deprivation complete when employee fired without pre-termination

protections; therefore, post-termination grievance proceedings could not compensate

for absence of pretermination process.); Kercado-Melendez v. Aponte-Roque, 829 F.2d

255, 262-263 (1st Cir. 1987), cert. denied, 486 U.S. 1044 (1988) (opportunity to appeal

after notification of action is constitutionally inadequate). This Court has recognized

that Loudermill clearly established that post-termination proceedings can satisfy due


                                            11
process requirements only when coupled with adequate pretermination process in

public employment termination cases. See Price v. Brittain, 874 F.2d 252, 260-261

(5th Cir. 1989).

      Even if we were to consider this case improperly under the Loudermill standards,

instead of appropriately under the Supreme Court’s attorney disbarment cases, we

would still conclude that Collie was not afforded the process that she was due for two

reasons. First, she was not given notice and an opportunity to respond prior to her

disbarment. Second, the review of her disbarment by the chief judge was insufficient

even for Loudermill due process purposes, not only because it was not coupled with a
pre-disbarment notice and opportunity to respond, but also because of its own inherent

deficiencies. The mere opportunity unsuccessfully to bring due process violations to the

attention of a discretionary appellate-type forum does not constitute the notice and

opportunity to be heard that is guaranteed by the Due Process Clause. See Cole v.

Arkansas, 333 U.S. 196, 201-202 (1948).

      Moreover, the hearing with the chief judge did not afford ample opportunity to

show cause why Collie should not be disbarred: Collie’s attorney was given only two

days’ or less notice of the hearing; the attorney objected to conducting a hearing on

such short notice; and the attorney was not granted adequate time to fully prepare and
defend his client.



                                           IV.

      The district court’s only objective in disbarring Collie was to enforce its order that

she or her client pay monetary sanctions to reimburse Vought its costs and attorney’s

fees in defending unwarranted actions. The district court’s disbarment order expressly

stated that, in order to enforce its monetary sanctions order, it was necessary to bar

Collie from practice until the sanctions had been paid in full. The district court did not


                                            12
expressly or implicitly find that Collie was unfit to practice law. On the contrary, the

court specifically permitted Collie to continue to represent clients in five particular cases.

Moreover, the court fully reinstated Collie to practice when it received notice that she

had paid the sanctions in full. Consequently, because the only goal of the district court’s

disbarment order has been fully attained, and all of the underlying litigation has been

finally resolved, the proper disposition of this case is to reverse and vacate the district

court’s order disbarring Collie. See Ruffalo, 390 U.S. at 551-52; Robinson, 86 U.S.

(19 Wall.) at 512; Thalheim, 853 F.2d at 389-90; Shrimsher (Butts), 493 F.2d at 845.


                                        Conclusion

       Accordingly, this court renders judgment that the district court’s order disbarring

Noemi Alessandra Collie is REVERSED and VACATED.



JERRY E. SMITH, Circuit Judge, dissenting:



       I respectfully dissent from the majority's reversal of the suspension order.1

Although the district court initially violated Collie's procedural due process rights by

failing to give her a hearing before ordering her suspension, that violation was cured by
the subsequent hearing before the chief judge. Moreover, I would find that the chief

judge did not abuse his discretion in ordering Collie suspended from practice before that

court until her sanctions were paid.



                                              I.

       I agree with the majority that the district court's failure to give Collie a hearing



      1
        Although I am uncomfortable with the majority's justiciability analysis,
the issue is foreclosed by binding circuit precedent, and thus we are obliged to
reach the merits. See Walker v. City of Mesquite, 129 F.3d 831, 832 (5th Cir.
1997).
prior to her suspension was constitutionally infirm because due process requires that

an attorney be given notice and an opportunity to be heard before he is suspended or

disbarred, not after. The majority and I part company, however, when it comes to

whether the district court successfully cured that violation through the subsequent

hearing before the chief judge. It is well established that “a procedural due process

violation is not complete 'unless and until the State fails to provide due process.' In

other words, the state may cure a procedural deprivation by providing a later procedural

remedy; only when the state refuses to provide a process sufficient to remedy the

procedural deprivation does a constitutional violation” become actionable. McKinney
v. Pate, 20 F.3d 1550, 1557 (11th Cir. 1994) (quoting Zinermon v. Burch, 494 U.S. 113,

126 (1990)).2

      The relevant question, therefore, becomes whether the “subsequent due process

hearing was sufficient to cure the defect.” Best v. Boswell, 696 F.2d 1282, 1288 (11th

Cir. 1983). The majority offers two reasons for answering this question in the negative.

First and foremost, it relies on cases holding that procedural due process requires an

antecedent hearing to deprivation. Secondarily, the majority finds that the chief judge's

hearing was flawed because Collie did not receive adequate notice.

      Unfortunately, the majority's primary justification for rejecting the later hearing has
nothing to do with the cure doctrine. Rather, it concerns what constitutes a procedural

due process violation in the first instance. I reiterate that I do not disagree with the

majority that Collie was entitled to a hearing before suspension. Had she, for instance,

suffered some distinct, quantifiable harm for the period between deprivation and

      2
        In the usual manifestation of the “cure doctrine,” not present in this
case, the plaintiff would be able to recover damages from the governmental actor
only for that period between his deprivation without process and the subsequent
sufficient due process hearing. See, e.g., Wheeler v. Mental Health & Mental
Retardation Auth., 752 F.2d 1063, 1070 (5th Cir. 1985). Because Collie alleges
only the harm of “stigma” (the monetary sanction having been affirmed in an
earlier appeal), and because I find the chief judge's suspension orderSSand any
accompanying “stigma”SSwere properly imposed, no relief is warranted.

                                            14
hearing, she would be entitled to a remedy. But see supra note 2.

      But the majority appears to hold that a hearing subsequent to suspension can

never act as a cure because the cure comes after the deprivation. The very definition

of a “cure,” however, is a procedurally sufficient hearing that comes after a procedural

due process violation has occurred, that is, after the deprivation has taken place. For

this reason, the cases that the majority cites, see, e.g., Cleveland Bd. of Educ. v.

Loudermill, 470 U.S. 532, 542-48 (1985), are inapposite, for they deal with what

constitutes a procedural due process violation in the first instance and do not implicate

the analytically distinct doctrine of a cure for such a violation once it has occurred.
      The majority's secondary justification for rejecting the chief

judge’s hearing—lack of notice—does go to the adequacy of the cure.

Unfortunately, here, the majority's conclusion is unsupported by

the facts.        Collie was given more than adequate notice of the

September 6, 1996, hearing before the chief judge.                        By July 18,

Collie knew of the charges against her and the fact that suspension

was being considered.             On July 29, she filed a request for a

hearing     before     the    chief     judge,     and    she    did    so   again        on

September 4.       He granted her request that day and held the hearing

on September 6.

      Collie     raised      no   objection      prior    to    the    hearing.       She

obviously knew it to be an evidentiary hearing, as she brought

witnesses and asked to enter testimony.

      At that point, Collie had had fifty days to prepare for an evidentiary hearing and

to consider the nature of the charges against her and the appropriateness of the

suspension. Under our caselaw, this amount of time is more than adequate notice for

such proceedings. See Childs v. State Farm Mut. Auto Ins. Co., 29 F.3d 1018, 1027 (5th


                                           15
Cir. 1994) (attorney given seven hours notice prior to FED. R. CIV. P. 11 hearing.).

       The hearing before the chief judge was also procedurally sufficient. Collie was

able to present witnesses and to develop a record. At that point, the chief judge had

“absolute discretion” either to follow the district judge’s order or to chart a different

course given his independent findings. See N. DIST. TEX. R. 13.2(b). In short, Collie was

given an “effective opportunity to rebut” the charges against her. Glenn v. Newman, 614

F.2d 467, 472 (5th Cir. 1980).



                                             II.
       The majority's analysis seems to be driven by its view that this suspension order

was unwarranted. I disagree.

       When a court imposes sanctions based on its inherent powers, they must be

“essential to preserve the authority of the court” and must be the least severe sanctions

adequate to achieve that end. Scaife v. Associated Air Ctr. Inc., 100 F.3d 406, 411 (5th

Cir. 1996) (internal citation and quotation marks omitted). “If there is a reasonable

probability that a lesser sanction will have the desired effect, the court must try the less

restrictive measure first.” Natural Gas Pipeline Co. of Am. v. Energy Gathering, Inc., 86

F.3d 464, 467 (5th Cir. 1996).
       To impose such sanctions, the court must make a specific finding that the

attorney acted in “bad faith.” Elliott v. Tilton, 64 F.3d 213, 217 (5th Cir. 1995). We

review such a finding for abuse of discretion. See Dawson v. United States, 68 F.3d

886, 895 (5th Cir. 1995).



                                            A.

       Collie's conduct meets the legal standard for imposing suspension. The chief

judge, after a full and fair hearing, found that Collie “had willfully ignored [the district


                                            16
judge’s] orders.” The chief judge found Collie's statement that she had “overlooked” the

deadline unbelievable, because “it was a critical deadline,” and “[s]he met one of those

deadlines but not another.” I see no ground for finding this factual determination clearly

erroneous.3 See United States v. Jackson, 19 F.3d 1003, 1007 (5th Cir. 1994) (citation

omitted) (holding that credibility judgments are particularly within the province of the

factfinder).

       The chief judge, moreover, was justified in finding that suspension was the least

severe action available to preserve the court's authority; forcing attorneys to comply with

orders sanctioning them is essential to maintaining that authority. If an attorney fails to
pay assessed sanctions, it is difficult to see how any sanction less than suspension can

satisfy that end. Certainly, more monetary sanctions would be useless, especially when

the attorney lacks the funds to pay them.



                                             B.

       The majority's failure to recognize that before imposing suspension, the district

court did “find that Collie was unfit to practice law,” is also incongruent with the existing

jurisprudence. Collie's failure to pay the sanctions made her unfit per se to practice law

before the district court.
       We have authorized the practice of forbidding a litigant from filing pleadings until

he has satisfied a sanction, even if he is unable to pay.4 We now should follow the

Seventh and Tenth Circuits and hold that “[a] lawyer who is unwilling, or unable, to pay

accumulated sanctions must desist from practice until he can follow the court’s orders.”


     3
       In her brief, Collie admits that her failure to pay the fine was willful:
 Having insufficient funds, she never intended to satisfy the fine.
     4
       See, e.g., Smith v. Legg (In re United Markets Int’l, Inc.), 24 F.3d 650,
655-56 (5th Cir. 1994) (customary litigant); Coane v. Ferrara Pan Candy Co.,
898 F.2d 1030, 1034 (5th Cir. 1990) (attorney litigant); Gelabert v. Lynaugh,
894 F.2d 746, 748 (5th Cir. 1990) (per curiam) (prisoner litigant).


                                             17
In re Maurice, 69 F.3d 830, 835 (7th Cir. 1995).5 Attorneys practicing before a court

should be held to a higher, not lower, standard than are pro se litigants.

       Unfortunately, the majority charts a different course. In doing so, its ruling has

the effect both of imposing stricter disciplinary requirements upon pro se litigants than

upon attorneys, and of removing the only effective deterrent to an indigent attorney's

flaunting of the district court's authority. Accordingly, I respectfully dissent.




       5
         See Cleveland Hair Clinic, Inc. v. Puig, 106 F.3d 165, 168 (7th Cir.
1997); In re Smith, 10 F.3d 723, 724 (10th Cir. 1993) (per curiam). In Maurice
and Puig, the attorney was given an opportunity to show cause why he should not
be suspended. In Smith, the attorney already had had such an opportunity at oral
argument.

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