Unpublished Disposition, 919 F.2d 145 (9th Cir. 1990)

MEMORANDUM^** 

Farrow, Schildhause & Wilson (FSW), a law firm, appeals from an order imposing sanctions pursuant to Rule 11. Subsequent to the filing of the notice of appeal, the Supreme Court decided Pavelik & LeFlore v. Marvel Entertainment Group, --- U.S. ----, 110 S. Ct. 456 (1989). In Pavelik, the Court accepted the appellant's contention that "a court may impose a Rule 11 sanction only against the attorney who signed the paper, not against that attorney's law firm." Id. at 458. The Supreme Court's decisions are binding on all pending appellate court cases, pursuant to the doctrine of limited retroactivity announced in U.S. v. The Schooner Peggy, 5 U.S. 103, 110 (1801). See Matter of Reynolds, 726 F.2d 1420, 1422 (9th Cir. 1984); (a judge should apply the law in effect on the date of a decision); In Re Consolidated U.S. Atmospheric Testing Litigation, 820 F.2d 982, 991 (9th Cir. 1987) (same). We are compelled to reverse the sanctions imposed against the law firm pursuant to Pavelik.

FSW concedes that we should reverse the order pursuant to Pavelik. It asks us to rule on the merits of the district court's order, notwithstanding the fact that the issue is now moot. FSW asserts that we may review the merits pursuant to Bryant v. Technical Research Co., 654 F.2d 1337, 1342 (9th Cir. 1981). FSW's reliance on Bryant is misplaced.

In Bryant, the original defendant, Technical Research Company (TRC) filed a third-party complaint against Eastman Chemical Company (Eastman). Eastman, in turn, filed third-party complaints against Ashland Chemical Company (Ashland) and Columbia Paint Company (Columbia), the other parties in the chain of distribution of the product. The district court granted Eastman's motion for a summary judgment against TRC. In addition, the district court dismissed the third party complaints against Ashland and Columbia "because they were brought into the lawsuit only by Eastman." Id. at 1340-41.

TRC filed an interlocutory appeal against Eastman, Ashland and Columbia. Id. at 1339. Eastman did not file a "formal notice of appeal" from the order dismissing Ashland and Columbia. Id. at 1339. Instead of filing a protective appeal, Eastman filed a motion opposing Ashland and Columbia's motion to dismiss TRC's appeal. Id. at 1342. Because TRC lacked standing to appeal the judgments entered in favor of Ashland and Columbia, we concluded in Bryant that we would permit Eastman "to tag onto TRC's timely notice of appeal" because "Eastman has evidenced an intent to appeal and the unique circumstances of this case warrant full participation of all the defendants and third-party defendants." Id. at 1349.

The issues raised on appeal in Bryant were not mooted out by subsequent events. Our decision to treat Eastman's motion as a protective appeal permitted us to resolve a live controversy concerning parties to the appeal.

In the instant matter, upon remand, all the proper parties will be before the district court, should it wish to impose Rule 11 sanctions against someone other than the law firm. We are sympathetic to FSW's desire to have an appellate ruling announcing that it did not "violate its professional obligations." Appellant's Opening Brief, at p. 3. We lack the authority, however, to issue an advisory opinion. Flast v. Cohen, 392 U.S. 83, 95 (1968); U.S. v. Fruehauf, 365 U.S. 146, 157 (1961). We reverse the district court's sanctions order and remand for further proceedings consistent with Pavelik.

REVERSED AND REMANDED.