Commercial Litigation and Arbitration

Attorney as Officer of the Court Is Not a Federal Officer Permitting Removal under 28 U.S.C. § 1442 — Fees Awarded under § 1447(c) — Fed.R.App.P. 38 Sanctions Imposed

From Howard v. St. Germain, 2010 U.S. App. LEXIS 4727 (5th Cir. Mar. 5, 2010):

Appellants do not seek review of the district court's decision to remand. See 28 U.S.C. § 1447(d). Thus, we only consider the district court's decision to impose liability on all Appellants for Appellee's legal fees.

We review a district court's award for attorney's fees under the deferential abuse of discretion standard. *** Subsidiary factual findings underlying this award are reviewed for clear error. *** The decision to impose any fee award against one or all the Defendants, jointly and severally, is within the court's discretion. *** Section 1447(c) permits a district court to award "just costs and any actual expenses, including attorney's fees" that are incurred as a result of the removal. 28 U.S.C. § 1447(c).... The Supreme Court in Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005) noted that courts may award attorney's fees when the removing party lacks an objectively reasonable basis for removal. ***

The district court did not err in assessing attorney's fees against the Appellants. Appellants argue that their removal is supported by reasonable grounds because he is an officer of the court and because his case raises a constitutional question. While Section 1442 permits a pending state action to be removed for "any officer of the courts," the district court correctly found that Andrews was not an officer of the court in this context. The Supreme Court in Cammer v. United States, 350 U.S. 399, 405-08 (1956), determined that an attorney is not an officer of the court within the ordinary meaning of that term. See also Ex parte Garland, 71 U.S. 333, 378 (1866). In Cammer, the Court reversed the lower court's order because a contempt finding under 18 U.S.C. § 401 could only be assessed against "officers" of the federal courts. See Cammer, 350 U.S. at 408; see also Willingham v. Morgan, 395 U.S. 402, 406-08 (1969) (interpreting the purpose of 28 U.S.C. § 1442 as applying to only those cases where a federal officer required a federal forum and 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"). ***

Appellee has moved under Rule 38 for sanctions and double costs and attorney's fees against Appellants. Federal courts have inherent power to impose sanctions for abuse of the judicial process. Chambers v. NASCO, Inc., 501 U.S. 32, 43-44 (1991). Rule 38 of the Federal Rules of Appellate Procedure authorizes an award of "just damages and single or double costs to the appellee" if we determine that an appeal is frivolous. *** An appeal is frivolous if "the result is obvious or the arguments of error are wholly without merit." *** Supreme Court cases exclude a private attorney from the meaning of "officer of the court," and the district court found Appellant's "officer of the court" argument to be a ridiculous, "farfetched notion." Appellants were on notice that the overruling of objections to remand was an obvious result when they were unable to support their argument at the district court. This appeal is frivolous for purposes of Rule 38.

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