UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 00-30056

In Re: JOSEPH W. THOMAS,

Appellee.

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JOSEPH W. THOMAS,

Appellee,

VERSUS

COOPER/T. SMITH STEVEDORING COMPANY, INC.,

Movant-Appellant.

Appeal from the United States District Court For the Eastern District of Louisiana (99-CV-1672-B) February 22, 2001 Before HIGGINBOTHAM and DeMOSS, Circuit Judges, and FISH*, District Judge.

PER CURIAM:**

* District Judge of the Northern District of Texas, sitting by designation. ** Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under Cooper/T. Smith Stevedoring Company (“Cooper”) appeals from an

order entered by the district court, Judge Ivan L. R. Lemelle

presiding, which denied Cooper’s motion for sanctions, costs, and

attorneys’ fees against Joseph W. Thomas, Esquire (“Thomas”), who

had prosecuted an allegedly frivolous action against Cooper before

the Department of Labor. The motion for sanctions was presented to

the district court by referral from an Administrative Law Judge

(“ALJ”) pursuant to

(b).

Thomas originally filed and prosecuted a claim on behalf of

six alleged dependents of James Thomas, Sr. (no relation to

Appellee), seeking death benefits under the Longshore and

Harborworkers’ Compensation Act (“LHWCA”),

et seq.

Thomas employed the services of one of his new associates, Pauline

Feist, to handle the case. On December 8, 1998, the ALJ assigned

to the case granted summary judgment against three of the

claimants. Thomas was provided an opportunity to develop evidence

of dependency with respect to the remaining three claimants. At

trial, and after arriving late, Thomas behaved belligerently and

discourteously toward both his opposing counsel and the ALJ. And

the evidence presented at trial by Cooper conclusively established

that in fact the three remaining claimants were adults, fully

capable of supporting themselves at the time of their father’s

death. Shortly after the trial, and after researching the

the limited circumstances set forth in 5TH CIR. R. 47.5.4.

2 dependency issue himself, Thomas attempted to voluntarily dismiss

his clients’ claim, but the ALJ instead granted Cooper’s second

motion for summary judgment.

Following the grant of summary judgment, the ALJ, clearly

upset by Thomas’s unprofessional conduct, referred the question of

whether sanctions should be imposed against Thomas to the district

court. The ALJ did so pursuant to

(b), which

permits referral of the issue of sanctions to the district court in

light of the fact that the ALJ has no authority to impose sanctions

itself. See, e.g., Boland Marine & Mfg. v. Rihner,

(5th Cir. 1995). Cooper attempted to intervene in the

sanctions referral in order to request its attorneys’ fees for

defending an allegedly frivolous claim, but the district court

denied intervention as the issue of attorneys’ fees was not

presented as part of the ALJ’s referral, and intervention was,

thus, premature. The district court ultimately remonstrated Thomas

and ordered him to attend five hours of CLE training on

professionalism.

The ALJ issued a second referral for sanctions to the district

court, this time specifically addressing Cooper’s request for

attorneys’ fees under

. In its factual findings,

the ALJ concluded that there was no factual basis for the

dependency claims presented by Thomas on behalf of any of the six

claimants, and the ALJ concluded that the claims were frivolous

3 from inception. According to the ALJ, Thomas “knowingly”

prosecuted six baseless claims. The district court conducted a

hearing on Cooper’s motion and ultimately concluded in a brief

written order that sanctions were not warranted “under the facts of

this case.” At the conclusion of the hearing, the district court

noted its familiarity with Thomas’s reputation as an attorney based

on twenty years of association. Additionally, the district court

concluded, inter alia, that it was unwilling to conclude that

Thomas “knowingly” prosecuted baseless claims.

As a preliminary matter, we note that we have supplemented the

record of this case with the second order of referral by the ALJ,

which the district court clearly considered and relied upon. With

respect to the issue before us, that is, whether the district court

erred in refusing to impose sanctions against Thomas for

prosecuting allegedly frivolous claims, having carefully reviewed

the entire record of this case and having fully considered the

parties’ respective briefing on the issue in this appeal, we find

no basis for concluding that the district court abused the broad

discretion conferred upon it in deciding whether to impose

sanctions. Section 1927 specifically provides that an attorney

may be subject to sanctions for the excess costs and attorneys’

fees when the attorney “so multiplies the proceedings in any case

unreasonably and vexatiously.” If Thomas’s conduct rose to such a

level, we have consistently held that even where a district court

4 finds bad faith, it may exercise its equitable discretion and

refrain from imposing sanctions. See Warren v. Reserve Fund, Inc.,

(5th Cir. 1984). Finding no compelling basis for

disturbing the district court’s exercise of its equitable

discretion, we therefore AFFIRM the order of this district court

for the reasons stated both in its order and at the hearing on

Cooper’s motion for sanctions.

AFFIRMED.

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