United States Court of Appeals

for the Fifth Circuit

Nos. 20-30170

and

20-30341

Summary Calendar

REC Marine Logistics, L.L.C., 

Plaintiff—Appellant,

versus

DeQuincy R. Richard, 

Defendant—Appellee.

Appeals from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:19-CV-11149

Before King, Smith, and Wilson, Circuit Judges.

Per Curiam:*

Fred E. Salley, former counsel for plaintiff REC Marine Logistics, 

L.L.C., appeals sanctions ordered against him in the underlying matter. In 

the first appeal, Case No. 20-30170, Salley challenges $1,500 in sanctions 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

November 6, 2020

Lyle W. Cayce

Clerk

Case: 20-30341 Document: 00515629491 Page: 1 Date Filed: 11/06/2020
Nos. 20-30170 and 20-30341

2

that were imposed on him because of his failure to comply with discovery 

requests and to provide dates and times for a vessel inspection.1 In the second 

appeal, Case No. 20-30341, Salley challenges sanctions that were awarded 

because of his disruptive behavior at a deposition.2 In both appeals, Salley 

argues that the sanctions were improper because he had been suffering from

severe illness at the time of the sanctioned behavior.

“As a general rule an attorney must await the end of litigation in the 

district court to appeal a sanction.” Walker v. City of Mesquite, 129 F.3d 831, 

832 (5th Cir. 1997). Indeed, we have held that “sanctions orders are not . . . 

appealable final decisions” under 28 U.S.C. § 1291 or “appealable collateral 

orders” pursuant to Cohen v. Beneficial Life Insurance Co., 337 U.S. 541

(1949). Williams v. Midwest Employers Cas. Co., 243 F.3d 208, 209 (5th Cir. 

2001). The latter is so because “sanctions can be and routinely are appealed 

when merged in the district court’s final judgment.” Click v. Abilene Nat’l 

Bank, 822 F.2d 544, 545 (5th Cir. 1987).3

1 The district court did not expressly state whether those sanctions were awarded 

pursuant to its inherent power or a particular Federal Rule of Civil Procedure, but such 

sanctions are permitted under Fed. R. Civ. P. 37 for failure to make disclosures or 

cooperate in discovery. 

2 Salley was individually sanctioned in the amount of $1,000 under Fed. R. Civ. 

P. 30(d)(2) (“[T]he court may impose an appropriate sanction . . . on a person who 

impedes, delays, or frustrates the fair examination of the deponent.”).

3 In Click v. Abilene National Bank, we specifically held that Rule 11 and Rule 37 

sanctions were not appealable pursuant to the collateral order doctrine. 822 F.2d at 545.

However, this rule has also been applied to sanctions ordered under the district court’s 

inherent power, see Williams, 243 F.3d at 210, and the same logic applies to sanctions 

awarded under Rule 30(d)(2), see Grain Dealers Mut. Ins. Co. v. Cooley, 734 F. App’x 223, 

227 (5th Cir. 2018) (considering district court’s denial of Rule 30(d)(2) sanctions after 

entry of final judgment); Dardar v. Lafourche Realty Co., Inc., 849 F.2d 955, 959 (5th Cir.

1988) (“[A]fter a truly final order, appellate review of any prior attorney’s fee 

determination will be available.”). 

Case: 20-30341 Document: 00515629491 Page: 2 Date Filed: 11/06/2020
Nos. 20-30170 and 20-30341

3

Because the underlying matter is ongoing and no final judgment has 

been entered, we asked the parties to submit supplemental letter briefs 

addressing whether Salley’s appeals are premature. Both parties responded 

that, because Salley was allowed to withdraw as counsel in the underlying 

matter on October 6, 2020, his appeals of sanctions ordered against him

should be permitted. 

We have recognized limited exceptions to the rule that sanctions 

orders are not appealable under the collateral order doctrine. Relevant to this 

case, in Markwell v. County of Bexar, the court held that such orders are 

appealable “where an order assesses sanctions against an attorney who has 

withdrawn from representation at the time of the appeal, and immediate 

appeal of the sanctions order will not impede the progress of the underlying 

litigation.” 878 F.2d 899, 901 (5th Cir. 1989). It should be noted that the 

continued validity of this exception has been in question since the Supreme 

Court decision in Cunningham v. Hamilton County, in which the Court 

emphasized that “the appealability of a Rule 37 sanction imposed on an 

attorney” should not “turn on the attorney’s continued participation.” 527 

U.S. 198, 209 (1999); see also Williams, 243 F.3d at 210 (“It is . . . doubtful 

that the exception[] to Click created by Markwell . . . survive[d] 

Cunningham.”). Regardless of Markwell’s continuing validity, it is not 

applicable in this case. Though Salley did withdraw as an attorney on October 

6, 2020, he had not withdrawn “at the time of the appeal” in either Case No. 

20-30341 or Case No. 20-30170. Markwell, 878 F.2d at 901; see also Nogess v. 

Poydras Center, L.L.C., 728 F. App’x 303, 307 (5th Cir. 2018) (refusing to 

apply Markwell exception because, though sanctioned attorneys no longer 

represented a party at the time of decision, they did not withdraw until 

“months after the time of the appeal”). Indeed, Salley’s withdrawal in 

October did not come until months after his appeals were filed. Accordingly, 

even if the Markwell exception has continuing viability (which we need not 

Case: 20-30341 Document: 00515629491 Page: 3 Date Filed: 11/06/2020
Nos. 20-30170 and 20-30341

4

decide), it does not apply in this case, and we are without jurisdiction over 

Salley’s appeals. 

Based on the foregoing, the appeals are DISMISSED for lack of 

jurisdiction. 

Case: 20-30341 Document: 00515629491 Page: 4 Date Filed: 11/06/2020