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
No. 08-30362

2

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
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 districtjudge 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’
No. 08-30362

4

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.