In Re: Robert Booker , 611 F. App'x 834 ( 2015 )

Case: 14-41194 Document: 00513139636 Page: 1 Date Filed: 08/03/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-41194 FILED
August 3, 2015
Lyle W. Cayce
In re: ROBERT LOUIS BOOKER, Clerk
Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:14-MC-8
Before DAVIS, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
Robert Booker appeals the district court’s order suspending him from the
roll of attorneys admitted to practice in the United States District Court for
the Eastern District of Texas (the “Eastern District”) for a period of three years.
Booker argues the district court’s decision is not supported by clear and
convincing evidence and lacks a necessary finding that he acted in bad faith.
He also claims he was deprived of due process because the district court did
not afford him an adversarial proceeding and other due process before
imposing discipline. We hold that Booker’s due process objections lack merit,
but order a limited REMAND to the district court for further findings as
explained herein.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 14-41194
Booker is an attorney licensed in Tennessee who was admitted to the
Eastern District pro hac vice. Disciplinary proceedings were initiated against
Booker after his conduct in a case before the Eastern District prompted the
judge in that case to refer the matter to Chief Judge Davis, who polled the
entire court. The judges of the Eastern District voted unanimously to hold
disciplinary proceedings. Chief Judge Davis referred the matter to Magistrate
Judge Mitchell for a Report and Recommendation and later adopted that
Report and Recommendation, suspending Booker from practicing in the
Eastern District for three years. Booker timely appealed to this court.
This court reviews de novo whether an attorney’s actions are
misconduct subject to sanction. In re Sealed Appellant, 194 F.3d 666, 670 (5th
Cir. 1999). Because “[c]ourts enjoy broad discretion to determine who may
practice before them and to regulate the conduct of those who do,” this court
reviews a district court’s imposition of a particular sanction for an abuse of
discretion. United States v. Nolen, 472 F.3d 362, 371 (5th Cir. 2006); see also
In re Sealed Appellant, 194 F.3d at 670. “A district court abuses its discretion
when its ruling is based on an erroneous view of the law or a clearly erroneous
assessment of the evidence.” In re Sealed Appellant, 194 F.3d at 670.
In assessing the district court’s decision, we must determine whether
there exists “clear and convincing evidence sufficient to support the finding of
one or more violations warranting” Booker’s suspension. Id. In the context of
attorney suspension and disbarment, “clear and convincing evidence” means
that weight of proof which produces in the mind of the trier of fact
a firm belief or conviction as to the truth of the allegations sought
to be established, evidence so clear, direct and weighty and
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convincing as to enable the fact finder to come to a clear conviction,
without hesitancy, of the truth of the precise facts of the case.
Crowe v. Smith (Crowe II), 261 F.3d 558, 565 (5th Cir. 2001) (citations and
internal quotation marks omitted). In this case, the magistrate judge and
district court failed to cite this evidentiary standard and failed to specifically
find that clear and convincing evidence supported the ethical violations the
district court attributed to Booker.
This court also requires that “a specific finding that an attorney’s
conduct constituted bad faith must precede any sanction imposed under a
district court’s inherent powers.” In re Thalheim, 853 F.2d 383, 389 (5th Cir.
1988). Although the district court adopted the thorough findings of the
magistrate judge regarding the conduct on which sanctions were based, we
cannot discern from the record whether the district court specifically found
that Booker acted in bad faith under the clear and convincing evidence
standard. See In re Sealed Appellant, 194 F.3d at 670. Accordingly, we must
remand this case for further proceedings. See Curtis v. Comm’r, 623 F.2d 1047,
1051 (5th Cir. 1980) (“The findings and conclusions we review must be
expressed with sufficient particularity to allow us to determine rather than
speculate that the law has been correctly applied.” (quoting Hydrospace-
Challenger, Inc. v. Tracor/MAS, Inc., 520 F.2d 1030, 1034 (5th Cir. 1975)).
However, certain of Booker’s arguments can be addressed without
further findings by the district court. Booker argues that he was provided
insufficient procedural due process, asserting that a purported lack of fair
notice, confrontation, and an adversarial process led to “factual inaccuracies
and subjective conjecture regarding Attorney Booker’s motives and intentions.”
Booker raised neither of these arguments before the district court, despite his
opportunity to do so through his objections to the Report and Recommendation.
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Generally, arguments raised for the first time on appeal are waived. See
Martco Ltd. P’ship v. Wellons, Inc., 588 F.3d 864, 877 n.10 (5th Cir. 2009); Webb
v. Investacorp, Inc., 89 F.3d 252, 257 n. 2 (5th Cir. 1996); cf. Starns v. Andrews,
524 F.3d 612, 617 (5th Cir. 2008) (noting factual findings and legal conclusions
within a report and recommendation are reviewed for plain error when a party
does not object to that report and recommendation).
Even assuming Booker did not waive his objections, these arguments
lack merit. His actions in an independent civil rights case spawned his referral
for discipline, which led to a unanimous vote to hold further disciplinary
proceedings by the judges of the Eastern District. Further proceedings were
overseen by Chief Judge Davis, who was not involved in the civil rights case
that led to Booker’s referral for disciplinary proceedings.
Additionally, Booker received two layers of review before the district
court, as his case was first referred to a magistrate judge for a report and
recommendation. Before issuing the Report and Recommendation, the
magistrate judge issued a show cause order notifying Booker, in detail, of the
allegations against him. The order gave Booker an opportunity to show cause
why he should not be suspended or disbarred for the conduct described, and to
request a hearing. Booker filed a response to the show cause order, disputing
only some of the allegations against him. When the magistrate judge set a
hearing to resolve remaining questions concerning Booker’s conduct, Booker
responded with a “Notice of Waiver of Hearing,” summarizing his arguments
again and contending, “nor is there any further useful information to be
gained.” The magistrate judge therefore cancelled the hearing and issued an
order noting that she would prepare a report and recommendation based on
the documents before the court. When she did so, Booker objected to the Report
and Recommendation. The district court reviewed the record de novo, found
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Booker’s objections meritless, adopted the Report and Recommendation, and
suspended Booker from practicing in the Eastern District for three years.
“[W]hile in disbarment proceedings, due process requires notice and an
opportunity to be heard, only rarely will more be required.” Sealed Appellant
1 v. Sealed Appellee 1, 211 F.3d 252, 254 (5th Cir. 2000) (citing Crowe I, 151
F.3d at 229). We conclude that Booker received adequate due process
throughout these proceedings. 1 On remand, the district court need not
address the due process points of error that Booker raised on this appeal.
Accordingly, we order a limited REMAND to the district court for the
sole purpose of making findings under the clear and convincing evidence
standard on whether Booker acted in bad faith. On remand, the district court
should specify whether it finds that Booker has committed any ethics violation
based on clear and convincing evidence and whether Booker acted in bad faith
in committing any such violations. After the district court has made these
determinations, the district court’s amended opinion shall return to this panel
for appropriate action.
REMANDED with INSTRUCTIONS.
1 For the first time on appeal, Booker also makes vague objections about the lack of
an adversarial process or appointed prosecutor for his proceedings before the district court.
Whether we review these objections for plain error or de novo, Booker identifies no harm he
suffered from this lack of adversarial process, and it is difficult to see how he could have been
harmed. The magistrate judge set out the charges against him, Booker responded twice (once
to the show cause order and again to the Report and Recommendation), and he waived a
hearing, which would presumably present the greatest opportunity for an adversarial process
to unfold. On these facts, and considering Booker’s waiver of a hearing, we can discern no
insufficiency or harm arising from the procedural due process Booker received. Cf. Crowe I,
151 F.3d at 233.
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