Summary Calendar IN RE: KATRINA CANAL BREACHES LITIGATION MAUREEN O’DWYER v. Department of Transportation

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 08-30362
Summary Calendar
IN RE: KATRINA CANAL BREACHES LITIGATION
MAUREEN O’DWYER; ET AL
Plaintiffs
ASHTON R O’DWYER, JR
Appellant
v.
DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, STATE OF
LOUISIANA; JOHNNY D BRADBERRY, Individually and in his official
capacity as Secretary of the Department of Transportation and Development,
State of Louisiana;
Defendants - Appellees
MAUREEN O’DWYER, ET AL
Plaintiffs
ASHTON R. O’DWYER JR
Appellant
v.
United States Court of Appeals
Fifth Circuit
F I L E D
December 2, 2008
Charles R. Fulbruge III
Clerk

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No. 08-30362
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DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, STATE OF
LOUISIANA; JOHNNY D BRADBERRY; STATE OF LOUISIANA;
KATHLEEN BLANCO, Governor, both individually and in her official
capacity as Governor of the State of Louisiana; LOUISIANA DEPARTMENT
OF PUBLIC SAFETY AND CORRECTIONS; RICHARD L STALDER, Both
individually and in his official capacity as Secretary, Department of Public
Safety and Corrections;
Defendants - Appellees
MAUREEN O’DWYER, ET AL
Plaintiffs
ASHTON R O’DWYER JR
Appellant
v.
STATE OF LOUISIANA; KATHLEEN BLANCO; DEPARTMENT OF
TRANSPORTATION AND DEVELOPMENT, STATE OF LOUISIANA;
JOHNNY D BRADBERRY; GOVERNOR’S OFFICE OF HOMELAND
SECURITY AND EMERGENCY PREPAREDNESS; COLONEL JEFF
SMITH; DEPARTMENT OF SOCIAL SERVICES; ANN S WILLIAMS;
LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS;
RICHARD L STALDER
Defendants - Appellees
Appeal from the United States District Court for the Eastern District of
Louisiana, New Orleans
No. 2:05-CV-4182

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No. 08-30362
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
3
Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant Ashton R. O’Dwyer, Jr. appeals the district court’s
Final Appealable Judgment of March 24, 2008, which imposed sanctions against
him in the amount of $7,058.50 under Rule 11 of the Federal Rules of Civil
Procedure and 28 U.S.C. § 1927 for filing duplicative, frivolous suits. We affirm.
O’Dwyer raises five arguments on appeal: (1) the State may not recover
attorneys’ fees because its attorneys are salaried employees and, therefore, the
State could not incur legal fees; (2) the sum of $7,058.50 was unreasonable; (3)
the district judge had a personal bias that “cast a pall over” the judgment; (4) the
district court erred by denying his motion for sanctions against the Louisiana
Department of Justice for “fraud against the court”; and (5) the district court
erred by denying his motion to disqualify the Louisiana Department of Justice
from representing the State in all matters involving O’Dwyer.
The notice of appeal in this case only included the district court’s final
judgment sanctioning O’Dwyer. Regarding the third issue—the personal bias
of the district judge—O’Dwyer has filed, and the district court denied, two
motions to recuse the district judge. Neither of the motions to recuse is part of
this appeal. The fourth and fifth issues raised by O’Dwyer are currently on
appeal in case number 07-30349, which is an appeal of the district court’s April
3, 2007 Order and Reasons. We will not address issues that are not relevant to
this appeal. Accordingly, we consider only O’Dwyer’s first two arguments.
O’Dwyer’s first argument—that the State cannot incur attorneys’ fees
because it has a salaried staff of attorneys—has no legal support. To the
contrary, we have held that a court may sanction a party by awarding attorneys’

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fees to a government entity using the prevailing market rate in the relevant
legal community. See United States v. City of Jackson, 359 F.3d 727, 733 (5th
Cir. 2004); see also Napier v. Thirty or More Unidentified Federal Agents,
Employees or Officers, 855 F.2d 1080, 1092 (3d Cir. 1988) (“We have no doubt
that the government may recover under Rule 11 when confronted with a
frivolous action.”). Thus, O’Dwyer’s first argument lacks merit.
Second, O’Dwyer claims that the attorneys’ fees should be disallowed as
unreasonable because the case was overstaffed, the State churned fees, and its
briefs included boilerplate language. We review the reasonableness of sanctions
under Rule 11 and 28 U.S.C. § 1927 for abuse of discretion. Skidmore Energy,
Inc. v. KPMG, 455 F.3d 564, 566 (5th Cir. 2006) (Rule 11); Cambridge Toxicology
Group, Inc. v. Exnicios, 495 F.3d 169, 180 (5th Cir. 2007) (§ 1927). The district
court considered these same arguments and concluded that they had no merit,
adding that they could “be characterized as containing the same kind of
vituperative and unprofessional hyperbole about which this Court has
admonished Mr. O’Dwyer in the past.” O’Dwyer has not presented a persuasive
argument as to why this conclusion was based on a clearly erroneous assessment
of the evidence.
For the reasons set forth above, we AFFIRM the district court’s judgment.

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