Reply Brief — Andrews v. Howard

. . r il _ oD fee !

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No. 10-58 as a are .

In the

Supreme Court of the United States

MarkK Epw. ANDREWS.

Petitioner,

Ld). DouGLAS HOWARD. JR..

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

PETITIONER’S REPLY BRIEF

MaRrRK LEpw. ANDREWS

Counsel of Record

ANDREWS Arts & SCIENCES Law, LL(

7104 COLISEUM STREET

New ORLEANS, LA 70118-4818

MEA@MEALAW.COM

904-383-3632

‘

Attorney for Petitioner

QUESTIONS PRESENTED

(No change from Petition as filed)

After being sued for malicious prosecution in state

court for prior litigation in federal court, defendant

attorney removed to the same federal court, on both

federal-question and officer-of-the-court grounds. The

district court) remanded and ordered fee shifting

Defendant appealed the fee shifting and quantum of

award, which were affirmed by the circuit court, with

the addition of Rule-38 sanctions for frivolous appeal

1. Is officer-of-the-court. removal under 28 USC

$1442 categorically unavailable to admitted attorneys?

2. Is fee shifting on remand under 28 USC §1447(c)

properly mmposed in the absence of clearlv-established

law demonstrating a lack of reasonable basis for removal?

3. Is an appeal on an unresolved or novel question

frivolous and sanctionable under I. R.A.P. Rule 38”

4. May lodestar analvsis of fee shifting be bypassed

if a court regards litigation to be vexatious?

RULE 14.1(B) STATEMENT

(No change from Petition as filed)

A list of all parties to the proceeding in the court

whose judgment is the subject of this petition is as

follows

Plaintif{ff-Appellee and Respondent

Desmond Douglas Howard, Jr.. Attorney at Law, is

a natural person of majority, admitted to practice in

Louisiana, Bar. No. 7021, maintaining a professional

office in New Orleans, Louisiana

Defendant-Appellant and Petitioner:

Mark Edw. Andrews, Attorney at Law = § and

Registered U.S. Patent Attorney, 1s a natural person

of majority, admitted as an attorney in outsiana (No.

26172) and California (No. 232519), maintaining: a

professional office in New Orleans, Louisiana

Other Defendants-Appellants below

Andrews Arts & Sciences Law, LLC, organized in

Louisiana, is the solo-practice law firm of Mark Edw

Andrews

Lesley Simmons St. Germain is a natural person of

majority and resident of New Orleans, Louisiana

Hillary Rose Smith is a natural person of majority

and resident of New Orleans, Louisiana.

Melissa Branighan is a natural person of majority

and resident of Jefferson Parish, Louisiana

David E. Simmons, DDS, ts a natural person of

majority and resident of New Orleans, Louisiana, and

is the father of Lesley Simmons St. Germain

111

TABLE OF CONTENTS

Questions Presented

Rule 14.1(b) Statement 1]

Table of Authorities LN

Opinion Below

Selected Relevant Statute ]

Additional Statement

Reply .... Ve

A. Attorneys’ practice, discipline, and status as

officers of the federal courts 1s in this Supreme

Court's barliwick. ... . . | 3

rm

ii

ww

mse questions are extraordinarily important

in daily practice before state and federal courts. 3

C. This case invites review of the law

gf

unencumbered by issues of fact. . 1

I). This case presents an appropriate vehicle for

resolution of the questions presented. ...... y

KH. These questions will only rarely be presented

Ina favorable posture for review (5

KF The Petition identified several extraordinarily

important. things wrong with the decision

below, warranting certiorari, and Respondent

has not effectively countered anything. ..... 6

G. The circuit court reached past the actual issues

on appeal, and made the issue of officer-of-the-

court removal part of the actual case here. . /

H. This case squarely presents the rule missing

in Martin —a rule regarding reasonableness. $3

Prior federal-court lhtigation— vexatious or

not— plays no proper part in determining

$1447(c) fee shifting or Rule-38 sanctions LO

J. Fifth-Circuit misapprehension of Willingham

is prejudicial and is Respondent's fault | 1]

Respondent's Misstatement of the Case 1]

‘)

Conclusion .

TABLE OF AUTHORITIES

Cases

Cammer v. U.S., 350 U.S. 399 (1956) 6,8

Estiverne v. Saks Fifth Avenue,

93-3317 (CA5 12/28/2002) 8 F.3d 1171 .. , 7

Herron v. Continental Airlines, Inc..,

95-10645 (CA5 1/23/1996) 73 F.3d 57 ¥

Howard v. St. Germain, et al.,

O9-306 ms (CAS 3/5/2010) 599 F.3d 455. ope se

In re High Sulfur Content Gasoline Products Liab.,

O7-30384 (CAD 2/4/2008) 517 F.3d 220 | 10

Lott v. Pfizer, Inc.,

06-3372 (CA7 6/25/2007) 492 F.3d 789 Y

Lussier v. Dollar Tree Stores, Inc.,

06-35148 (CAY9 3/7/2008) 518 F.3d 1062 9

Macklin v. City of New Orleans,

0O1-81089 (CAS 7/25/2002) 300 F.3d 552 a |

Martin v. Franklin Capital Corp.,

546 U.S. 1382 (2005) . ete ey Pe ee

McCuin v. Texas Power.

$2-2230, 83-2115, (CA5 9/19/1983) 714 F.2d 1255. 4

Mirants v. Lee, 92-3576 (CAS 10/7/1998) 3 F.3d 925. .9

St. Germain, et al. v. Howard, et al,

O8-30364 (CAS 1/20/2009) 556 F.3d 261... 9 10

Valdes v. Wal-Mart Stores, inc..,

99-20519 (CAS 1/12/2000) 199 F.3d 290... Lae

Watson v. Philip Morris Cos., 551 U.S. 142 (2007)... 8

Willingham v. Morgan, 395 U.S. 402 (1969)... 7, 8, 11

Codes, Statutes, & Rules

28 USC SI3Gi ...... Apa ar —

28 USC §1441..... ae ee ke, oe eee

28 USC §1442 eras MIKE on Beas 4 O

28 USC §1447..... Me Ae ean oe 1 ee

Fed. Rule sof App. Proc., Rule 38 3, 4, 7, 10, 12

PETITIONER’S REPLY BRIEF

OPINION BELOW

(Updated Information)

The published Fifth-Circuit opinion, Howard v. St

Germain, et al., 09-30642 (CA5 3/5/2010), was reported

at 599 F.3d 455

SELECTED RELEVANT STATUTE

(From Appendix F of Petition)

28 USC §1442. Federal officers or agencies sued or

prosecuted

(a) A civil action or criminal prosecution

commenced ina State court against any of the following

may be removed by them to the district court of the

United States for the district and division embracing the

place wherein it 1s pending:

(1) The United States or any agency thereof or

any officer (or any person acting under that officer) of

the United States or of any agency thereof, sued in an

official or individual capacity for any act under color of

such office or on account of any right, title or authority

claimed under any Act. of Congress for the apprehension

or punishment of criminals or the collection of the

revenue.

(2) A property holder whose title is derived from

any such officer, where such action or prosecution affects

the validity of any law of the United States

(3) Any officer of the courts of the Umited States

for any act under color of office or in the performance of

his duties;

(4) Any officer of either House of Congress, for any

act in the discharge of his official duty under an order of

Sus h | Louse

ADDITIONAL STATEMENT

The lawsuit for defamation and malicious prosecu

tion for the prior filing of a civil-RICO lawsuit in fed

eral court — filed in state court against an attorney and

his chents—-was removed on §1442 and other, §1441

grounds. The officer-of-the-court removal was not based

on some technicality that the attorney was admitted in

federal court, but was based on the attorney being sued

explicitly for acting as the attorney in specific prior

federal litigation in the same federal court—a specific

case, having Case Nos. 07-9040 in the Eastern District

of Louisiana, 08-30364 in the federal Fifth Circuit,

and 08-1296 in the Supreme Court of the U.S. The

plaintiffs amended state-court complaint even explic-

itly quoted the words the sued attorney spoke at oral

argument before the federal Fifth Circuit in the prior

federal litigation.'

Although neither timing nor timeliness was ad-

dressed in the various orders and opinions below, timing

was an important factor in the htigation. Louisiana's

version of the anti-SLAPP statute, La. Code of Civil

Procedure Article 971, says that a Special Motion to

Strike 1s to be heard within 30 days of service— because

the law is meant to effect speedy dismissal of bogus

lawsuits. The state trial court’s allowing the plaintiff

to delay beyond the law’s 30-day provision steered this

lawsuit toward removal in two ways: it allowed time for

the plaintiff to amend his suit to add removable claims,

and it encouraged the defendants to consider a more

favorable federal forum

After remand, the state forum proved to be as un

favorable as feared—although the retaliatory lawsuit

was ultimately dismissed in a supervisory writ by the

state appeals court—7 months after remand

| Amended state-court comp] unt, p.1O Record at USCA5-57

REPLY

A. Attorneys’ practice, discipline, and status

as officers of the federal courts is in this

Supreme Court’s bailiwick.

No matter what Respondent says, the questions of

attorneys removing cases and being assessed fee shift

ing and sanctions in their practice before the federal

courts are of concern to this Supreme Court. With its

responsibility over all courts and attorneys, this Court

can properly clarify the definition of “officer of the

court” and calibrate the risks of punishment faced by

7 ,

removihy and appealing attorneys

B. These questions are extraordinarily

important in daily practice before state and

federal courts.

Attorneys must quickly— within 30 days— evaluate

whether removal is available and beneficial to the cli-

ents, and whether removal might bring punishing fee

shifting or sanctions. This is extraordinarily important,

and could benefit from as much clarity and guidance as

this Supreme Court can give. When, as here, a pub-

lished appeals-court opinion adds Rule-38 sanctions for

appealing the §1447(c) fee shifting and quantum, the

substantial threat of punishment creates a deterrent to

removal] in all but the most obviously safe cases

In the Fifth Circuit—now—even if an attorney

performs diligent research and finds no caselaw, the

absence of caselaw is no defense against fee shifting

and sanctions. And if a court regards prior ltigation

to have been “vexatious”, then a lodestar analysis may

be skipped and the quantum of fees may be summarily

set—uincreasing the in-terrorem consequences of filing

a notice of removal asserting any untested grounds

The Fifth Circuits disregard of absence of caseclaw

as an indicator against fee shifting, and the broad, cat

egorical exclusion of admitted attorneys ever removing

as officers of the court under §1442, makes removal on

any untested grounds a scary proposition, and foreclo:

es even the possibility of any future §1442(a)-removal

by an attorney even under hypothetically-perfect fact:

In 19838, the lifth Circuit's Judge Rubin observed

the propriety—even the necessity and duty—of! seck

ing a favorable federal forum.’ Many attorneys will face

this question for many years to come. Those attorney:

will have 30 day: fewer in practice —to find out if ex

isting law forecloses removal. Under the I*ifth Circuit’

published opinion here, those attorneys and their cli

ents will be under a threat of punishing fee-shifting

even where several days of research yields no caselaw

whatsoever to inform their specific removal question:

Lodestar analysis of attorney fees occurs daily in

federal courts. Whether lodestar analysis may properly

be bypassed and influenced by consideration of prior

htigation 1s an extraordinarily important question

C. This case invites review of the law

unencumbered by issues of fact.

This case is the opposite of fact-bound. Here, both

the district and circuit courts overlooked the facts of

the case and declined to follow the proper rules and

standards—electing instead to follow an older du

cretionary standard, and identifying the “vexatiou

nature of the prior federal litigation as justification for

both the §1447(c) and Rule-38 fee award

Z McCuin v. Texas Power. &2-2230. 83-2115. « » OFT 9/719083)

714 F.2d 1255, 1261-62

Petitioner regards the one. truly ivnificant tact

to be this: there was an in-circuit case® indicating in

dicta that officer-of-the-court removal by an attorney

was an unreached, unresolved question. Respondent

has provided many details about this significant fact

Respondent's Appendix contains a transcript of the d)

trict court hearing where, on pages 12a—21a, a sense of

the tone of the proceedings may be gleaned. Respondent

contends in his conclusion (p.15) and throughout that

“petitioner was unable to cite any legal support for

removal’, which is wrong, and which mischaracterize

the circumstance that there was no caselaw on attor

neys removing as olficers of the court

Db. This case presents an appropriate vehicle

for resolution of the questions presented

This case presents the issues cleanly. No extranecou

issucs are lurking about. Respondent (p.5) makes an

attempt to confuse the case, including trying to rats

a question of whether those defendants below who did

not petition this Supreme Court will be stuck with the

anction an impossibility since the full $12,955 ha

already been paid by the Petitioner, and if this Petition

results in vacated sanctions. they are vacated for al]

Respondent (p.7-11) extensively covers the othe)

$1441 federal-question grounds for removal that were

asserted, although Respondent misstates the critical

issue. In truth, Howard amended his main claims to

include malicious prosecution for the defendants r

fling jegal-malpractice claims in state court against

Howard, where those legal-emalpractice claims had

been dismissed without prejudice from federal court

and were therefore tolled and prove: ted by federal law

llerron t (_oritinentlal Lirdirce / Oy~pOHAS) 7 ‘ : (

| ~*~ 14996) i , | te »/ »)

nfirn Petitione tention that arvuably-reasor

pti pternath' ma OO} Y} | I fated. th

espondents re-hasniny t merit rtihe remand itsell

ot } ! | nN puis aL 1 }yeor

: Ihe e question will only rarely be

presented ina favorable posture for review

it } to bye hop ! that th lype ff delamation and

pro ecution lawsull retatmtron Joy priol

1 ition will not often be filed on vid bo paick| nicl

mder ants | waa li theret ll not n

be rem } | yy) ntrepid attors 1 remove

uch a lawsuit m the teeth of the kufth Circuit's opin

» here thes itt | » matter tf chance vhethe

. remand or refusal ft remand wll b ! loV i

Pubuye htivant LW it pycopoyoe 1 fo) ncblion "

rere irre unlikely to have the ftomach for further ay

peak | herelor mother, better pporbvlunll LO CXamine

th C ue is unlikely to c n

I The Petition identified several

extraordinarily-important things wrony

with the decision below, warranting

certiorari, and Respondent has not

effectively countered anything

hespondent ontentions (po ) noLWwithstandin

Petition here hov that there was no controlliney

Claw whether a kdmitt tL gibbon Cain move i

nm ollice) I th yur md therefor Lhe removin '

ry heey hould om have been punished wath fee

hitting and pnchiol Phe Cammer'’ decision peal

f thi rdinay meal fficer of the court

| rye 1) hy] | ry | nad ) pia |

Start analyzing removal, but the Cantuner decision said

nothing at all about removal and cannot control here

The Willingham’ decision was just flat-out mis-cited

Also, the erreuit court decided an issue not before

Woby ruling that attorneys catevorimally cannot remove

as Officers of the court: the lodestar analysis of the fe

should not have been bypassed) — no matter how vexa

loous the prior federal litivation was; and no Rule-S&

sanchions should have been ordered because an appeal

ol al nove) ()] unresolved quue: tion qr @a que hin ol in |

nnpression is not considered frivolous or sanetionable:

PITULSTETAT: | of >. ‘ ' 4 ' r } ’

Coy peCoeitae al PEAT h COPPDRP Ee Lehy COPED Ona WnOres the

controlling Martin vo. lrranklin Capital’ case, and tail

to cite even a myle CASE about 61447 ) foe hiftiny Or

Rule-3S8 sanction:

G.. The circuit court reached past the actual

issues on appeal, and made the issue of

officer-olf-the-court removal part of the

actual case here.

‘)

Respondent Ploward contends Qo.bs 15) that the

Petition as gust a disvurised appeal of the remand of

Howards defamation and maherus-prosccution case

back te state court, but thatas absurd because the state

appeals court has finally-dismissed Howard's lawsuit

under the antieSLAPP law and ordered sanction

against Howard. The only issues stall before the state

courts are the quantum of sanctions against Lloward

and the leval-malpractice counterclaims agaist him

ry Willinpham ou Morpan 495 1IS 40% (1969)

{, Marclelin ! (lity of Neu Cdrlean ()] SPC oo eC th a ANY PALLEPA

S00 bobd Ohv od Meattverne | eal heifth Averie ).$-.4.8)

(CAD 12/28/2002) & isd PIT). 1174

j Martin hranktlin Capital Corp Aq; | {'? (‘AC)C)!))

8

The reason the actual remand in f/tis case was not

before the circuit court was because it was expressly

not appealed. Whether or not it could have been ap-

pealed does not matter since it was not appealed. It is

not clear whether §1447(d) blocks review of remand of a

removal under §1442(a)(3) because there 1s no caselaw.

That is a major point in this Petitron—there is no case-

law, so there should be no fee shifting and sanctions.

Overlooking that the remand itself was expressly not

appealed, the circuit court published an opinion stating

flatly that attorneys cannot remove as officers of the

court under 28 USC §1442(a), and so the Fifth Circuit

made that question an issue 1n this case.

The circuit court held that attorneys cannot remove

as officers of the court, but that holding was based on

two old cases, Cammer® and Willingham’, both decided

long before the 1996 amendments to 28 USC §1442.

One of the many critical questions not addressed by the

kifth Circuit is this: if private persons or contractors

operating under the authority and control of federal of-

ficers can remove under §1442(a)(1),'" why are private

attorneys operating under the authority and control of

federal courts not allowed to remove under §1442(a)(3)?

H. This case squarely presents the rule missing

in Martin—a rule regarding reasonableness.

In Martin v. Franklin Capital,'' the parties there

agreed removal was reasonable, and therefore the

Court was constrained from providing a practical rule

or standard of reasonableness. This absence was noted

8. Cammer v. United States, 350 US. 399 (1956).

9. Willingham v. Morgan, 395 U.S. 402 (1969).

10. Watson v. Philip Morris Cos., 551 U.S. 142 (2007).

11. Martin v. Franklin Capital Corp., 546 U.S. 132 (2005).

c)

and solved by the Seventh Circuit in Lott v. Pfizer:

As a general rule, if, at the time the defendant

filed his notice in federal court, clearly estab-

lished law demonstrated that he had no basis

for removal, then a district court. should award

a plaintiff his attorneys’ fees. By contrast, if

clearly established law did not foreclose a defen-

dant’s basis for removal, then a district court

should not award attorneys’ fees.'*

In formulating the rule, the Seventh Circuit rehed

expheitly’? on the Fifth-Circuit Valdes'* case which

had been cited with approval in Martin. The Seventh

Circuit's Valdes-based reasoning was, In turn, ex-

plicitly followed by the Ninth Circuit.'° Wherever the

issue has arisen, the other circuits are following the

Fifth Circuit's Valdes—except for the Fifth Circuit

itself, which has overlooked Valdes and reverted to an

older’ “discretion” standard instead of Chief Justice

Marshall’s discretion standard as restated" in Martin.

Development of the rule missing in Martin was

progressing smoothly through the Seventh and Ninth

Circuits, but it went off the rails in the Fifth Circuit

in this case. The useful and clear rule was briefed to

both the district and the appeals courts, who rejected

it without comment. The Fifth Circuit overlooked the

rule and affirmed §1447(c) fee shifting on the basis of

12. Lott v. Pfizer, Inc., 06-3372 (CA7 6/25/2007) 492 F.3d 789, 793

13. Lott v. Pfizer, Inc., 06-3372 (CA7 6/25/2007) 492 F.3d 789, 792.

14. Valdes v. Wal-Mart Stores, Inc., 99-20519 (CAS 1/12/2000)

199 F.3d 290, 293.

l5. Lusster v. Dollar Tree Stores, Inc., 06-35148 (CAY 3/7/2008)

518 F.3d 1062, 1066.

1G. Mirantt v. Lee, 92-3576 (CA5 10/7/1993) 3 F.3d 925.

17. Martin v. Franklin Capital Corp., 546 U.S. 132, 189 (2005)

10

the district court’s discretion upon remand, and then

added Rule-38 sanctions for a frivolous appeal on top of

that. Whether the rejection of that rule here is a con-

flict among circuits or a conflict with existing in-circuit

precedent is an arguable point, but in any case it war-

rants certiorari, and this opportunity to examine the

rule missing in Martin is important enough to be taken

up by this Supreme Court.

I. Prior federal-court litigation— vexatious or

not— plays no proper part in determining

$1447(c) fee shifting or Rule-38 sanctions.

Respondent's Brief highlights how the courts below

justified §1447(c) fee-shifting and Rule-388 sanctions

by discussing the vexatious nature of the prior federal

litigatton—which the circuit court even refers to as

“Howard I”'8, and which 1s the same prior federal litiga-

tion that the Defendants reasonably thought gave them

rrounds to remove the later retaliatory lawsuit. Courts

are supposed to avoid summary approval of fees in all

' Respondent (p.12) misstates the record where

he contends that the Fifth Circuit did apply a lodestar

cases.

analvsis. The record shows otherwise. Respondent

provides (p.9) a page from the 24 June 2010 hearing

transcript where the district court revealed that. the fee

shifting was, in effect, sanctions for the prior federal

litigation; and also provides (p.10) the Fifth Circuit’s

language in its 5 March 2010 decision revealing that

the Rule-38 sanctions were based as much on the prior

“Howard I” case as on the case then at bar.

18. App. A to the Petition at p.da, Hloward v. St. Germain, et al.,

09-30642 (CAS 3/5/2010) 599 F.3d 455, eiting (as “Howard I’)

St. Germain, etal. v. Howard, et al., 08-30364 (CAS 1/20/2009)

556 F.3d 261

19 In re lhigh Sulfur Content Gasoline Products Liab., 07-30384

(CAS 2/4/2008) 517 F.3d 220, 2

)

as f

1]

J. Fifth-Circuit misapprehension of

Willingham is prejudicial and is

Respondent’s fault.

Respondent contends (p.4) that the circuit. court’s

misapprehended misstatement. of the Supreme Court's

1969 Willingham v. Morgan*° opinion is correct—that

Willingham actually speaks to attorneys removing as

officers of the court. But that is completely wrong, and

this new law announced by the Fifth-Circuit. opinion

here 1s based on a serious flaw. The circuit court states

that Willingham held that the federal-officer removal

statute was “not intended for a private attorney to use

to remove a state action to federal court on the basis

that he was an ‘officer of the court””,”!

Willingham case had nothing at all to do with removal

by attorneys or any officers of the courts, but instead

was a removal by a federal prison warden and a medi-

cal officer being sued by a federal prisoner. This glaring

error in the Fifth-Circuit opinion appears to have come

directly from page 11 of the Respondent-Appellee’s

14 October 2009 Brief to the Fifth Circuit, where the

Appellee garbled the holding in a 1973 district-court

case, and presented it as the 1969 Supreme Court hold-

when. 1n fact... the

ing in Willingham.

RESPONDENT'S MISSTATEMENT

OF THE CASE

Respondent begins (p.1) by misstating that “[t]his

case first began in First. City Court for the City of New

Orleans’, but Respondent is misrepresenting prior lti-

gation as “this case”. Respondent makes several other

misstatements and mischaracterizations, but’ refuta-

tion 1s not. essential for the questions presented here.

20. Willingham v. Morgan, 395 U.S. 402 (1969)

21. App. Ato the Petition, Circuit Court Opinion, p.3a

CONCLUSION

Because the Fifth Circuit made a broad ruling that

officer-ot-the-court removal is not available to admit-

ted attorneys, on an issue not appealed to that court:

because the district and circuit courts did not apply the

proper standard in awarding fee shifting on remand,

and declined to follow a rule regarding reasonableness

followed by the 7th and 9th Circuits; because the cir-

cult court. ordered sanctions for frivolous appeal of an

unresolved or novel question; and because the district

and circuit courts did not apply a proper lodestar analy-

3s to the quantum of award, but instead looked to the

vexatiousness of prior federal litigation, the Petition for

» Writ of Certaorar: should be granted

Respectfully submitted

Mark Edw. Andrews

Counsel of Record

Andrews Arts & Sciences Law, LLC

7104 Cohseum St

New Orleans, LA 70118-4818

104-383-3632

mea@mealaw.com

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