IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-41194

In re: ROBERT LOUIS BOOKER,

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.

United States Court of Appeals

Fifth Circuit

FILED

August 3, 2015

Lyle W. Cayce

Clerk

 Case: 14-41194 Document: 00513139636 Page: 1 Date Filed: 08/03/2015
No. 14-41194

2

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 

 Case: 14-41194 Document: 00513139636 Page: 2 Date Filed: 08/03/2015
No. 14-41194

3

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 HydrospaceChallenger, 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. 

 Case: 14-41194 Document: 00513139636 Page: 3 Date Filed: 08/03/2015
No. 14-41194

4

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 

 Case: 14-41194 Document: 00513139636 Page: 4 Date Filed: 08/03/2015
No. 14-41194

5

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.

 Case: 14-41194 Document: 00513139636 Page: 5 Date Filed: 08/03/2015