UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 93-2933

READING & BATES PETROLEUM COMPANY,

READING & BATES EXPLORATION COMPANY, AND

READING & BATES DRILLING COMPANY,

Plaintiffs-Appellees,

VERSUS

BENTON MUSSLEWHITE, THE LAW OFFICES OF

BENTON MUSSLEWHITE, AND PETER MANANGKALANGI,

Defendants-Appellants.

Appeal from the United States District Court

For the Southern District of Texas

( February 4, 1994 )

Before GARWOOD, SMITH and DeMOSS, Circuit Judges.

BY THE COURT:

Reading & Bates, by its Motion to Vacate Stay, asks this Court

to reconsider the order entered by a majority of this Court (Judge

Smith, dissenting) on Dec e mber 21, 1993, which granted

Musslewhite's motion for stay pending appeal to a limited extent in

the following language: "The execution of the December 20, 1993

Commitm ent Order is stayed pending further order of this Court."

We decline to reconsider for the following reasons:2

First of all, a majority of this panel believes that the stay

order granted under date of December 21, 1993 was correct. The

criteria to be used in determining whether to grant a stay of a

district court's order in this Circuit are well-settled. Because

of the pertinency to the present appeal, we quote verbatim from the

decision in United States v. Baylor Univ. Medical Ctr.

, 711 F.2d

38, 39 (5th Cir. 1983), as follows:

Four factors must be considered by th is Court in

determining whether t o stay the district court's Order

under Fed. R. App. P., Rule 8. These are: (1) whether

the movant has made a showing of likelihood of success on

the merits, (2) whether the movant has made a showing of

irreparable injury if the stay is not granted, (3)

whether the granting of the stay would substantially harm

t he other parties, and (4) whether the granting of the

stay would serve the public interest. (Citations

omitted.)

However, this Court has refused to apply these factors in

a rigid mechanical fashion. Indeed, in R uiz v. Estelle

, 650 F.2d 555 (5th Cir. 1981), this Court held that the

movant `need only present a substantial case on the

merits when a serious legal question is involved and show

that the balance of equities weighs heavily in the favor

of granting the stay.'

The critical issues to be decided on the merits of this appeal

are whether the orders of the district court (1) determining that

an attorney practicing before that court was in civil contempt of

a prior order entered by another judge of that court, and (2)

ordering the incarceration of that attorney from 8 a.m. to 5 p.m.

each business day until he purged himself of such contempt, were

correct. The majority had no trouble whatsoever in determining

that Musslewhite, by his original Notice of Appeal and his Motion

to Stay, has presented "a substantial case on the merits" and that

a "serious legal question is involved." Having so determined, the1 The March 3, 1992 order forbade Musslewhite from further

prosecution of the state suit, which the judge issuing the March 3,

1992 order plainly knew was then pending; all Musslewhite has done,

or attempted to do, is to leave the state suit in precisely the

same status (or, if anything, in an even more inactive status) as

it was in immediately before issuance of the March 3, 1992 order.

Musslewhite's possible difficulties in other, unrelated cases are

wholly irrelevant to whether what he did or attempted to do

violated the March 3, 1992 order.

3 maj ority next determined that the "equitable balance does weigh

heavily in favor of granting the stay." To paraphrase some of the

language from the Baylor case, the distr ict court's order has

placed Musslewhite "between a rock and a hard place." He can

comply with the contempt order of December 13, 1993 and dismiss the

state court proceeding, thereby rendering moot his contention that

the permanent injunction entered by Order of March 3, 1992 did not

require him to dismiss such suit 1

, or he can spend ea ch business

day in the custody of the U. S. marshal, thereby suffering

irreparable harm if i t should be ultimately determined that the

contempt order of December 13, 1993 was not appropriate.

Furthermore, we note that the granting of our stay could not

possibly have caused "substantial harm" to Reading & Bates, in

light of th e fact that the controversy as to the effect of the

federal proceeding on the state court proceeding has been going on

for more than ten years. In addition, Reading & Bates' motion to

vacate does not come anywhere close to suggesting any harm from our

granting such stay.

In conclusion, we emphasi ze that we are not deciding the

merits of the appeal or expressing any opinion on the resolution of

that serious legal issue. All we do today is to DENY Reading &wjl\opin\93-2933.opn

hrd 4 Bates' Motion to Vacate Stay and to REAFFIRM our stay order of

December 21, 1993.

Sua sponte this Court orders that this case shall be set for

submission to an oral argument panel, and that immediately upon the

filing of the record herein, the Clerk of this Court shall

establish an expedited briefing schedule for the submission of this

case to such oral argument panel.

JERRY E. SMITH, Circuit Judge, dissenting:

In partially granting the motion for stay pending appeal, and

in subsequently refusing to vacate that s tay, the panel majority

has unnecessarily interfered with the district court's reasonable

efforts to achieve c ompliance with its orders. Moreover, the

majority, while making an ad hoc decision to enter and continue the

stay, has failed to apply the appropriate standards as enunciated

in the well-established precedents of this court. In dissenting,

I write separately to express concern that there is an increasing

tendency to second-guess district courts on the question of stays

pending appeal and to enter stays merely to preserve the status

quo, with little attention to the prerequisites for such stays.

I.

This is an instance of an attorney's disdainful and persistent

disregard for the orders and directives of the federal courts. Thewjl\opin\93-2933.opn

hrd 5 plaintiff, Peter Manangklangi, and his attorney, Benton

Musslewhite, filed a federal action in federal district court in

1979 against t he three Reading & Bates defendants ("Reading and

Bates"), seeking damages for an injur y allegedly suffered during

offshore oil well workove r operations near Indonesia. In 1984,

that action was dismissed with prejudice. Manangklangi did not

appeal.

In the meantime, in 1983, Manangklangi, through Musslewhite,

filed an action in state district court, alleging the same cause of

action. In 1986, Reading & Bates filed in federal court a

complaint for injunctive relief against Musslewhite, seeki ng to

proscribe Musslewhite's further prosecution of the state suit. In

1992, the federal district court granted Reading & Bates's motion

for summary judgment and permanently enjoined Manangklangi and

Musslewhite from prosecuting the pending state suit or any action,

in any court, asserting claims based upon the injury in question.

Once again, Manangklangi did not appeal.

In July 1993, the state court dismissed the still-pending 1983

lawsuit after notice was given that it was subject to dismissal for

want of prosecution. A month later, Musslewhite filed in the state

court a "Motion for New Trial, Rehearing, To Reconsider the

Dismissal Order, and To Reinstate the Case." The justification

given for rei nstatement was that matters were pending in the

Supreme Court of the United States and the Texas Supreme Court that

had a bearing on the merits of Manangkalangi's claim and that the

state court should reinstate the state suit, retain it on the2 Specifically, the order directed Musslewhite to purge himself of contempt

by doing the following:

(a) Bring to the attention of the Judge of the [state

district court] the Final Judgment of this Court above-referenced,

including the injunctive order contained therein and of the need for

Defendants to pur ge themselves of contempt of this Court by

withdrawing their pr e vious motion filed by Benton Musslewhite for

reinstatement . . . and obtaining reentry of an Order of Dismissal

such as that entered by the state district court on July 15, 1993.

(b) Fully and completely comply with all provisions of the

Court's Final Judgment entered March 5, 1992, by causing [the state

suit] to be DISMISSED and to CEASE and DESIST in pro secuting any

claims which Defendants are prohibited by said Final Judgment from

prosecuting in any state or federal court in this country.

(c) File with this Court no later than December 17, 1993, a

sworn statement in this matter setting forth the steps that have

been taken in order to purge Defendants of contempt, to obtain the

reversal of the Order reinstating the state cause

. . . , which had

granted Defendants' state court motion that had been filed in

contempt of this court, and to obtain dismissal of that action.

(d) Reimburse Plaintiffs for all attorneys' fees and costs of

litigation incurred in this cause in connection with this contempt

proceeding. Plaintiffs' counsel shall file and serve upon

Defendants an affidavit of such attorneys' fees and costs no later

th an December 17, 1993; but Plaintiffs' Motion for Costs and

Attorneys' Fees incurred in [the state suit] is DENIED.

wjl\opin\93-2933.opn

hrd 6 docket, and stay all proceedings pending disposition of the subject

proceedings in the state and federal supreme courts.

In October 1993, Musslewhite personally appeared at a status

conference with the state district judge and urged that the case be

reinstated. The state court granted the motion to reinstate.

II.

In October 1993, Reading & Bates filed in federal court a

motion for contempt and a motion to show cause why Musslewhite

should not be held in contempt. On December 15, 1993, the federal

district court entered an order finding Musslewhite in contempt and

ordering him to purge himself of his contempt. 2The court warned that if the orders were not complied with by December 17, 1993,

a hearing would be held on December 20 to show cause why further sanctions should

not be imposed.

wjl\opin\93-2933.opn

hrd 7 The next day, Musslewhite sent a representative to appear on

his behalf before the judge presiding in the state court

proceeding. The representative stated that, although Musslewhite

had requested the conference with the court to take place, "the

original reason for setting this particular conference had fallen

t hrough because he had been unable to reach his clien t." No

mention was made of any intention to dismiss the state suit. Then,

on Decembe r 17, Musslewhite appeared before the state judge but

gave no indication of an intention to dismiss the state action.

After Musslewhite took no action to purge himself of contempt,

the district court held a show-cause hearing on December 20, at

which Musslewhite argued that the contempt order represente d a

premature and impermissible modification of the injunction and that

the injunction was impermissibly vague. The court found that

Musslewhite's failure to withdraw the retention motion and effect

a dismissal of the state suit constituted a violation of the

injunction and of the contempt order.

The court issued a second contempt ord er, directing

Musslewhite to jail from 8 a.m. to 5 p.m. each business day

beginning December 22, until he had purged himself of the contempt.

The court denied Musslewhite's motion to stay the order pending

appeal. On December 21, Musslewhite filed a notice of appeal from

the two contempt orders.

Musslewhite filed in this court a motion for stay of thewjl\opin\93-2933.opn

hrd 8 con tempt orders pending appeal. On December 21, this emergency

motions panel, over my dissent, stayed execution of the December 20

c ommitment order. On January 18, 1994, Reading & Bates filed in

this court a motion to vacate the December 21 stay.

III.

Musslewhite's argument in support of a stay pending appeal is

pure sophistry. He argues that, although the federal district

c ourt enjoined him from "prosecuting" the state suit, that or der

was vague and that his failure to withdraw the retention motion and

effec t a dismissal of the state suit was not a violation of that

injunction or of the first contempt order.

The state court dismissed the case "for want of prosecution."

By any reasonable definition, an attorney's determined and

successful effort to reinstate such a suit, after he has been told

to drop it, constitutes "prosecution" of that suit.

Musslewhite was in repeated and flagrant disregard of the

orders of the district court. That court patiently afforded

Musslewhite numerous opportunities to comply and provided

Musslewhite with a more than adequate forum in which to explain his

position, but to no avail. Under the circumstances, the district

court was well within its discret ion in determining that

incarceration was the only reasonable means of ensuring compliance

with its orders.

By staying the contempt orders pending appeal, the panel3 This is not Musslewhite's first scrape with the courts. S ee Musslewhite

v. State Bar of Tex.

, 78 6 S.W.2d 437 (Tex. 1990) (affirming revocation of law

license for violating disciplinary rule and for violating order not to take on

new clients during period of suspension), cert. denied

, 111 S. Ct. 2891 (1991).

4 See generally John Y. Gotand a, The Emerging Standards for Issuing

Appellate Stays , 45 B AYLOR L. R EV . 809 (1993).

wjl\opin\93-2933.opn

hrd 9 majority has awarded Musslewhite a victory he ill deserves and, in

so doing, had substantially undermined the ability of this district

court, and any other district court faced with today's action as a

precedent, to effect the orderly disposition of the business before

it in the face of recalcitrant attorneys such as Musslewhite. 3

Most importantly, the panel majority has improperly applied

t he requirements for a stay pending appeal. 4 It is well

establishe d that courts of appeals are not merely to substitute

their judgment for that of the district court in deciding to issue

a stay pending appeal.

Stays pending appeal constitute extraordinary relief and are

to be entered only when four conditions are met: (1) movant's

likelihood of success on the merits; (2) irreparable injury to the

movant if a stay is not granted; (3) a showing that the stay would

not substantially harm the other party; and (4) a demonstration

that the stay would s erve the public interest. U nited States v.

Baylor Univ. Medical Ctr.

, 711 F.2d 38, 39 (5th Cir. 1983). We

generally recognize that the second condition is modi fied as

follows:

[T]he movant need not always show a " probability" of

success on the merits; instea d, the movant need only

present a substantial case on the merits when a serious

legal question is involved and show that the balance of

the equities weighs heavily in favor of granting the staywjl\opin\93-2933.opn

hrd 10 . . . . Of course, if the balance of equities ( i .e,

consideration of the other three factors) is not heavily

tilted in the movant's favor, the movant must then make

a more substant ial showing of likelihood of success on

the merits in order to obtain a stay pending appeal.

Ruiz v. Estelle , 650 F.2d 555, 565-66 (5th Cir. Unit A June 1981)

(per curiam).

We should evaluate these factors in Musslewhite's case, then,

by first exam ining the last three factors. The injury is not

irreparable, for Musslewhite can purge himself of contempt at any

moment by effecting the dismissal of the state suit. But assuming

arguendo that the commitment order constitutes irreparable ha rm,

and that a stay would not substantially harm Reading & Bates, the

stay certainly would not serve the public interest and, obviously,

is contrary to the public interest. That is because the stay

permits Musslewhite to continue to be in open disregard of the

reasonable orders of the district court, a circum stance that can

only promote disdain for the courts and contributes to disorder in

the legal system.

[F]ederal courts have the power to enjoin plaintiffs who

abuse the court system and harass their opponents.

Indeed, federal courts have broad powers to protect their

judgments and the integrity of the courts as a whole [,

including] the power to enjoin "any future litigation on

any cause of action arising fromthe fact situation at

issue in [the] case."

Villar v. Crowley Maritime Corp.

, 990 F.2d 1489, 1499 (5th Cir.

1993) (citations omitted) (last bracket in original), cert. denied

,

62 U.S.L.W. 3451 (U.S. Jan. 10, 1994).

If, then, we view the other factors as "not heavily tilted in

[Musslewhite's] favor," he "must then make a more substantialwjl\opin\93-2933.opn

hrd 11 showing of likelihood of success on the merits" to obtain a stay.

T here is no likelihood that Musslewhite can prevail under any

reasonable reading of the district court's injunction prohibiting

him from prosecuting the state court lawsuit.

The test is not whether th ere is any p ossibility that

Musslewhite can prevail. Indeed, there is the chance that a panel

majority of this court, considering Musslewhite's pending appeal,

could decide that his appeal has merit. But the question is

whether he has made a strong enough showing now on the merits that

he can be excused from co mplying with the district court's

important directive during the weeks and even m onths that his

appeal will be pending.

Under Ruiz

, the balance of the equities plainly does not weigh

strongly in Musslewhite's favor. Even if he is able to parse the

injunction and urge a strained reading by which the motion to

reinstate the state suit does not constitute "prosecution" of that

action, this would be the most technical of distinctions, and we

would be faced still with a recalcitrant attorney who has been told

to terminate state court proceedings but who, in the face of that,

has taken affirmative steps, once those proceedings were routinely

dismissed as part of an annual purging of the docket, to

reinvigorate that cause. Surely the balance of the equities cannot

weigh in favor of such a circumstance.

The point is that there is a presumption of correctness in the

district court's orders, as that court has the obligation to

mainta in the orderliness of its proceedings and to exercisewjl\opin\93-2933.opn

hrd 12 rea sonable control over attorneys practicing as officers of the

court. We overstep our bounds when, merely to preserve the status

quo, we substitute our judgment for that of the able district judge

in the instant case. This is serious error, and I respectfully

dissent from the well-intended view of my conscientious colleagues.