                                                                                      F I L E D
                                                                              United States Court of Appeals
                                                                                      Tenth Circuit
                          UNITED STATES COURT OF APPEALS
                                                                                      MAR 17 1997
                                       TENTH CIRCUIT
                                                                                 PATRICK FISHER
                                                                                            Clerk
 BENJAMIN J. ROSCOE,

           Plaintiff-Appellant,

               v.                                                No. 96-2250
                                                          (D.C. No. CIV-96-1072-BB)
 HONORABLE C. LEROY HANSEN,                                       (D. N.M.)

           Defendant-Appellee.



                                  ORDER AND JUDGMENT*


Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.


       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); 10th Cir. R. 34.1.9. Therefore, the case is ordered

submitted without oral argument.

       Plaintiff Benjamin J. Roscoe appeals the district court's dismissal of his pro se

action against a federal district judge. He also appeals the district court's injunction

limiting his ability to file suit against federal officials, as well as the court's order

requiring him to pay defendant's attorney fees. We affirm the dismissal and imposition of

fees, but reverse and remand for further proceedings on the injunction.


       *
          This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
       Roscoe originally filed this action in state court. In his complaint, he alleged

defendant defamed him and propounded false accusations of criminal violations while

presiding over a civil action in which Roscoe was a party. Defendant removed the case

and filed a motion to dismiss. After conducting a show cause hearing to determine if

Roscoe was in contempt of previous court orders limiting his ability to file suit, the court

dismissed the complaint. Roscoe was enjoined from filing suit against any federal

employee or official for any action taken in pursuit of official duties without Roscoe first

complying with specific conditions imposed by the district court. The court also directed

defendant to file an "appropriate cost bill including attorney fees." Record document 12

at 2. Defendant filed a bill of costs and fees in the amount of $1,290.

       On appeal, Roscoe contends (1) the action should be remanded to state court

because service was never perfected on defendant; (2) the district court's injunction is

improper because it was issued without proper notice and contains no clear and objective

guidelines; and (3) the award of attorney fees was improper.

       The fact that Roscoe had not perfected service on defendant did not deprive the

district court of authority to dismiss the case. Clearly, given defendant's status as a

federal employee, and given the fact that Roscoe's allegations arose solely out of

defendant's performance of his official duties, the case was properly removed and the

district court had subject matter jurisdiction. See 28 U.S.C. § 1441(a), (b), and (c); 28

U.S.C. § 1442(a)(1). The sole impact of the alleged lack of proper service would have

been on the district court's personal jurisdiction over defendant. See Omni Capital Intern.

v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104 (1987) ("Before a federal court may

exercise personal jurisdiction over a defendant, the procedural requirement of service of


                                             -2-
summons must be satisfied."). Unlike subject matter jurisdiction, personal jurisdiction is

not an "absolute stricture" on a district court, but is instead a "personal privilege" that may

be waived by a defendant. Leroy v. Great Western United Corp., 443 U.S. 173, 180

(1979). Defendant's notice of removal clearly indicated he intended to waive that

privilege for the limited purpose of seeking dismissal. Accordingly, we conclude the

court's dismissal was proper and reject Roscoe's assertion that the case should have been

remanded to state court.

       We turn to the injunction which limited Roscoe's ability to file suit against federal

officials. In March 1996, based on Roscoe's long history of filing frivolous lawsuits

against federal officials, the district court issued an injunction limiting his ability to file

new lawsuits against federal officials. The court's order read:

               IT IS HEREBY ORDERED that the Plaintiff, Benjamin J. Roscoe is hereby
       enjoined from filing any civil action in the United States District Court for the
       District of New Mexico against the United States, a federal agency, or any federal
       employee, without first obtaining leave of the court. In seeking leave to file, Mr.
       Roscoe must certify that the claim or claims he wishes to present are new claims
       never before raised and disposed of on the merits by any federal court. He must
       also certify that the claim or claims are not frivolous or taken in bad faith.
       Additionally, the motion for leave to file must be captioned "Application Pursuant
       to Court Order Seeking Leave to File." Mr. Roscoe must either cite or affix a copy
       of this Order to that motion.

Record document 11 at 6. We approved the injunction on appeal. Roscoe v. United

States, 1997 WL 43518 (10th Cir. Feb. 4, 1997) (table) (affirming injunction); see Roscoe

v. United States, 83 F.3d 433 (10th Cir. 1996) (table) (initially reversing and remanding

injunction for consideration of requirements of Tripati v. Beaman, 878 F.2d 351 (10th

Cir. 1989)).

       In the instant case, Roscoe informed the district court at the show cause hearing

that he had found a loophole in the above-cited injunction. Specifically, he asserted it

                                               -3-
only prohibited him from filing civil actions in federal district court and he was free to

file suit against federal officials in state court. In response, the court decided to extend

the original injunction by requiring Roscoe to obtain permission from the court before

filing any suit against a federal employee or official:

               Plaintiff is PERMANENTLY ENJOINED from suing, pro se, any employee
       or official of the United States Government for any action taken by the federal
       employee or official in the course of performing their job, without first obtaining
       the written permission of the Chief United States District Judge for the District of
       New Mexico. Such written permission must certify that the case is not frivolous
       and that the Chief Judge was made aware of the previous suits filed against federal
       officials, and Plaintiff must affix the written permission of the Chief Judge to his
       complaint. Failure to observe the requirements of this order may result in criminal
       sanctions.

Record document 12.

       We have repeatedly recognized the power of federal courts under 28 U.S.C. §

1651(a) to protect themselves from the deleterious impact of repetitive, unfounded pro se

litigation. Werner v. State of Utah, 32 F.3d 1446, 1448 (10th Cir. 1994); Olson v.

Coleman, 997 F.2d 726, 729 (10th Cir. 1993); Tripati, 878 F.2d at 351. As we

emphasized in Tripati, "the right of access to the courts is neither absolute nor

unconditional, and there is no constitutional right of access to the courts to prosecute an

action that is frivolous or malicious." 878 F.2d at 353 (citation omitted). Accordingly,

we will approve restrictions placed on a litigant if (1) the district court outlined the

litigant's history of abusive or frivolous filing activities; (2) the district court gave the

litigant some guidelines as to what he or she must do in order to obtain the court's

permission to file an action; and (3) the district court gave the litigant notice of the

proposed restrictions and an opportunity to respond. Id. at 353-54.




                                               -4-
       Having reviewed the record on appeal, we are satisfied the first two requirements

have been met. In its order imposing the injunction, the district court described Roscoe's

history of frivolous litigation against federal employees and officials in detail. As for the

injunction itself, it clearly indicates the steps Roscoe must take before filing any future

pro se lawsuits against federal employees or officials. However, we do not believe the

court satisfied the notice requirements outlined in Tripati. Although Tripati does not

afford a litigant the right to an actual hearing, it does entitle him or her "to notice and an

opportunity to oppose the court's order before it is instituted." Id. at 354; see DePineda v.

Hemphill, 34 F.3d 946, 948 (10th Cir. 1994) (notice requirement satisfied when plaintiff

was given limited amount of time to file written objections to proposed limitations).

Here, there is no indication in the record on appeal that Roscoe was provided an

opportunity to oppose the injunction prior to its entry. To the contrary, the record

suggests the court issued the injunction sua sponte at the conclusion of the show cause

hearing. There is no indication in the clerk's minutes that Roscoe was allowed to voice

his opposition to the injunction, nor do the court's subsequent written orders indicate that

Roscoe was allowed to file any pleadings in opposition.

       Accordingly, we reverse the district court's injunction and remand for further

proceedings in accordance with the notice requirements outlined in Tripati. "With proper

notice, . . . the district court is, of course, free to reimpose the restrictions." Van Riper v.

Long, 76 F.3d 394, 1996 WL 34426 at *3 (10th Cir. 1996) (table).

       Finally, we review the district court's award of attorney fees to defendant. In

rejecting one of Roscoe's recent appeals, we emphasized that a district court "has inherent

authority to award attorney fees when the losing party has proceeded in bad faith,


                                               -5-
vexatiously, or for reasons which are oppressive." Roscoe v. Salazar, 92 F.3d 1197, 1996

WL 421957 at *2 (10th Cir. 1996) (table). Likewise, we noted that a district court has

authority under 28 U.S.C. § 2412(b) to award attorney fees "'to the prevailing party in any

civil action brought by or against the United States or any agency or any official of the

United States acting in his or her official capacity.'" Id. at *3 (quoting statute). In

dismissing Roscoe's action, the court found the complaint was "filed for the sole purpose

of harassing a federal judge and it clearly has resulted in a waste of the scarce resources

in this Judicial District." Record document 11 at 2. The district court further found

Roscoe had "engaged in a long and persistent attempt to intimidate and harass federal

officials in the performance of their duties by filing frivolous lawsuits in the New Mexico

State courts." Id. Because these findings are not clearly erroneous, we conclude the

district court had inherent and statutory authority to award fees to defendant.

       AFFIRMED in part, REVERSED in part, and REMANDED. The mandate shall

issue forthwith.

                                                    Entered for the Court

                                                    Per Curiam




                                              -6-
