Farag M. Mohammed Saltany v. George Bush, President of the United States
960 F.2d 1060
D.C. Cir.
1992
Check Treatment

*1 1060

nation. makes Cooter clear SALTANY, imposed once a violation sanctions must be Farag M. Mohammed 2454, al., Appellants is found. 110 S.Ct. at 2460. See et argue nonmonetary v. аlso for a Counsel sanction, 11 but the Rule District Court BUSH, George President of United possibility reasonably this and considered al., States,* Appellees. et its discretion to a fine exercised 91-5107. No. instead. States Court United Accordingly, hereby it is and Ordered ‍​‌​​‌‌‌​​​​‌​‌‌‌‌‌‌‌​​​‌‌​​​‌​‌​‌​‌‌​​‌​‌‌‌​‌‌‌‌‍of Columbia Circuit. District Adjudged that the decision is affirmed. 27, March 1992. Argued The is directed to withhold is- Clerk 10, Decided until suance of the mandate herein seven Rehearing En Banc Rehearing timely and days disposition after 26, June Denied rehearing. D.C.Cir.R. 15. See separate dissеnting

A statement filed Judge attached. Circuit WALD is WALD, Judge, dissenting: Circuit WALD, and D.H. EDWARDS Before regretfully majority’s GINSBURG, Circuit imposition of the district court’s affirmance PER against plaintiffs’ for the Court filed Judgment sаnctions 11 originally district court had counsel. The appellees’ Rule 11 sanc- denied motion for JUDGMENT tions, concluding that cannot ... be “[i]t case is frivolous so much as it PER CURIAM. sаid that the 702 Saltany Reagan, is audacious.” v. appeal heard on cause came to be This 319, (D.D.C.1988). F.Supp. 322 The by the District Court. from a decision accorded full considera- have been issues appeal, this none On the first no need for and occasion tion the Court theless concluded when opinion. D.C.Cir.R. published See commented in his that “[t]he 14(c). of suc case offered no whatsoever 11 challenge the award Counsel cess, attorneys surely knew and them, against as and 38 “found, it,” id., if not in substance he The law of previous panel. directed terms, plaintiffs’ counsel had violated See, challenge. this doctrine bars case 11; impose a the court did not yet Claims e.g., Melong v. Micronesian F.2d Saltany Reagan, v. 886 sanction.” 10, (D.C.Cir.1980). Comm’n, F.2d 17 643 curiam), (D.C.Cir.1989)(per cert. with mani clear error combined We no see denied, 495 U.S. S.Ct. v. injustice, nоr does Cooter & Gell fest (1990). prior panel re L.Ed.2d 384, 110 S.Ct. Corp., 496 U.S. Hartmarx “impo manded to the district court (1990), constitute in On appropriate sanction.” Id. sition of an the Rule issue. tervening law on remand, judge not unreason District prior panel ‍​‌​​‌‌‌​​​​‌​‌‌‌‌‌‌‌​​​‌‌​​​‌​‌​‌​‌‌​​‌​‌‌‌​‌‌‌‌‍determined “as an ably the remand order violation, interpreted see had found a Rule Court it” tо unequivocal direction to Saltany Reagan, Order, sanctions, and 932, Memorandum denied, see (D.C.Cir.1989), cert. 1-2, 14, 1991) (D.D.C. Mar. at No. 88-981 109 L.Ed.2d 501 S.Ct. pay plaintiffs’ counsel any other and he under оrdered there is no basis Cooter or $10,000 appellees. to the British reconsider determi- each precedent for us to * Fed.R.App.P. former Presi- See Bush is substituted fоr President official capacity. Reagan, sued in his the latter is dent insofar as *2 doctrine, inquiry, pleading “law of the case” a Under the was neither “well issue of law mаde at one decision on an grounded in fact” nor by “warranted exist- ordinarily stage of a case becomes a bind ing good law or a argument faith in ing precеdent to be followed successive extension, modification, or reversal of ex- stages of the same case. law,” isting or that pleading was “inter- doctrine “is nоt an inexorable command posed improper for purpose, such as an[] rigidly that binds a court to its former or unnecessary harass to cause delay оr expression decisions but rather is an of needless in litigation.” increase the cost of practice.” good judicial sense and wise judge district here Fed.R.Civ.P. Foods, Inc., Carpa, Inc. v. 567 F.2d Ward explicitly declined to make such find- (5th Cir.1978). As this court has ing. His remark that the case “offered no occasions, stated on several warrant “[t]o hope success, whatsoever of case, divergence from the law of a attorneys surely knew it” is appro- not an only convinced that its court must not be priate substitute for the conclusions re- erroneous; it must also earlier decision was quired by Rule if the Even that adherence to the of be satisfied ‍​‌​​‌‌‌​​​​‌​‌‌‌‌‌‌‌​​​‌‌​​​‌​‌​‌​‌‌​​‌​‌‌‌​‌‌‌‌‍judge’s apрellants’ conclusion that counsel grave injustice.” a the ease will work Me they knew that had no prevailing Comm’n, 643 long v. Micronesian Claims put was correct—a “fаct” in some doubt 10, 17 (D.C.Cir.1980);Laffey v. North both the enormous energy time and Airlines, Inc., 642 F.2d west expended by preparation counsel in of their (D.C.Cir.1980); Browning see also v. Na expert opinions case and the they were able (5th Cir.1989) varro, 887 F.2d legitimacy to assemble on behalf of the (“We ignore previ have the discretion to their clients’ cause of action—that conclu- substantially ous decision if different evi presented, equivalent dence has been there has been finding sion is still not to a law, change in intervening an or the “good argu- counsel did not have a faith clearly prior decision was erroneous and it extension, modification, ment for the or injustice.”). would wоrk a manifest existing Surely pro- reversal of law.” priety Rule 11 sanctions should not de- extremely high Despite the threshold pend degree optimism on the any departure past holdings from in with which meet, I feel approach litigation. prior, pan- the same case must one is counsel justified here. Cooter & Gell Hartmarx judge el’s сonclusion that the district had Corp., 496 110 S.Ct. appellants’ found “in substance” that coun- decided after the first itself, my in sel had violated Rule was case, represent “in- appeal in this does erroneous,” view, “clearly and the sanc- tervening change in the law” to the extent imposed tions on the basis of that substi- “clearly erroneоus” it establishes in- finding have created a “manifest tuted rather than a de novo review standard justice.” for a review of a decision to im- standard reaching beyond a district The effect of (or pose impose) not to sanctions. discretion not judge’s clear exercise of his Although prior panel did not and not to imposе reviewing in expressly identify its standard findings required by specific make the fact judge’s the district denial of Rule sanc- view, tions, reconstructing not treat his ex- out my in it did that decision рress decision not to sanctions with likelihood of of side comments about the finding required deference that he (and counsels’ knowl- plaintiffs’ prevailing predicates ruled on the factual had thereof) chill edge cannot but well-founded applying properly had erred in not but suits, may in time the law future whose findings. to those the law come, exposing whose value yet have but public educating courts and the abuses and In order to find a violation that the district Cognizant is substantial. judge must conclude сhoice but no realistic knowledge, had informa- the best of counsel’s remand, tion, and belief formed after reasonable sanctions on prior required Kaminski, se, result which our decision of Wallace J. was on the Application Appointment him. of An Inde-

pendent Counsel/Special Prosecutor. *3 MacKINNON, Presiding,

Before: PELL, BUTZNER and Senior Circuit Opinion for the Court ‍​‌​​‌‌‌​​​​‌​‌‌‌‌‌‌‌​​​‌‌​​​‌​‌​‌​‌‌​​‌​‌‌‌​‌‌‌‌‍filed PER In re Wallace J. KAMINSKI. Nо. 92-1. Division I.

United States Court PER CURIAM: District of Columbia Circuit. citizen, private As a Wallace J. Ka se to special minski sues the division it,

compel application, appоint on his independent counsel to receive evidence he allegedly possesses of misconduct feder judges accordingly al and to “act [and] prоsecute.” the Ethics Act, (the Government 28 U.S.C. 591-599 §§ does “Act”), provide appoint for the independent ment of prosecute counsel to judiciary members of the nor does it confer standing private on spe citizens to sue the compel appoint indepen cial division to it to provides dent counsels. The Act that it is Attоrney General shall apply to [who] appoint- division ‍​‌​​‌‌‌​​​​‌​‌‌‌‌‌‌‌​​​‌‌​​​‌​‌​‌​‌‌​​‌​‌‌‌​‌‌‌‌‍the court for the independent ment of an counsel if [cer- tain are conditions satisfied]. 28 U.S.C. § thus is not authorizеd Kaminski apply special Act to to the division appointment independent of an counsel. purport his does not satisfy any statutory of the conditions. In- steаd, application ignores (28 his the Act 591-599) U.S.C. and contends: §§ plain language in Title Code, gives United States section special division of the above-named of Columbiа [District Circuit] authority unqualified appoint an inde- pendent counsel.

This contention misreads Act. Section Code, upon which 49 of the United States reliance, petitioner is entitled “As- claims appoint signment judges to division to provi- The relevant independent counsels.”