# Reply Brief — Andrews v. Howard > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2299%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 2010 - **Citation:** 562 U.S. 1044 ## Text . . r il _ oD fee ! N¢ | | : 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 444 j y)> 4 ‘ j ’ ” , > . , > sf i Pi ¢ \ (>? j CLIZLO?LE --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2299%3A3. Public record. Not legal advice.