PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
In Re: CRESCENT CITY ESTATES,
LLC,
Debtor.
MR CRESCENT CITY, LLC;
MCCRARY CRESCENT CITY, LLC;
MICHAEL C. MCCRARY,
Plaintiffs-Appellants,
v.
DOUGLAS S. DRAPER; WILLIAM J.
MURPHY, No. 08-2367
Parties-in-Interest-Appellees,
and
GIANNASCA CRESCENT CITY, LLC;
EDWARD V. GIANNASCA, II;
CRESCENT CITY ESTATES, LLC;
STUART C. NEIL FISHER; TJ
BISCAYNE HOLDINGS, LLC; MARKET
STREET PROPERTIES PALM BEACH,
LLC; TAMARA J. FISHER,
Defendants.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, Senior District Judge.
(1:08-cv-02640-MJG; AP-07-00662)
2 In Re: CRESCENT CITY ESTATES
Argued: October 29, 2009
Decided: December 7, 2009
Before WILKINSON, MICHAEL, and AGEE,
Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge Michael and Judge Agee joined.
COUNSEL
ARGUED: Mark Jerome Friedman, DLA PIPER US LLP,
Baltimore, Maryland, for Appellants. W. Neil Eggleston,
DEBEVOISE & PLIMPTON, LLP, Washington, D.C., for
Appellees. ON BRIEF: David B. Misler, DLA PIPER US
LLP, Baltimore, Maryland; William H. Murphy, Jr., Kenneth
B. Frank, WILLIAM H. MURPHY, JR. & ASSOCIATES,
PA, Baltimore, Maryland, for Appellants. Alan M. Grochal,
Kristin P. Herber, TYDINGS & ROSENBERG, LLP, Balti-
more, Maryland, for Appellee Douglas S. Draper.
OPINION
WILKINSON, Circuit Judge:
This case presents a purely legal question: whether 28
U.S.C. § 1447(c) permits the imposition of legal fees on an
attorney who erroneously removes a case from state to federal
court. The district court held that it does not. We affirm.
I.
This case began in Maryland state court in February 2007.
Several entities with an ownership stake in Crescent City
In Re: CRESCENT CITY ESTATES 3
Estates, LLC (collectively, appellants) brought a derivative
suit against defendants Crescent City Estates, LLC and its
managers, alleging that the managers had not accounted prop-
erly for approximately $12 to 15 million in insurance pro-
ceeds. In connection with the litigation, defendants retained as
legal counsel the appellees in this case: attorneys Douglas S.
Draper and William J. Murphy.
About six months after the suit’s commencement, defen-
dants removed the state court action to the United States
Bankruptcy Court for the District Court of Maryland. As law-
yers for the defendants, appellees signed the notice of
removal. Shortly thereafter, appellants filed a motion to
remand the case back to state court. In doing so, appellants
sought attorneys’ fees for improper removal under 28 U.S.C.
§ 1447(c), which allows a court to "require payment of . . .
attorney fees . . . incurred as a result of removal." Notably,
appellants sought attorneys’ fees both from defendants and
from their attorneys, the appellees.
The attorneys argued that they could not be liable, claiming
that § 1447(c) authorized the imposition of attorneys’ fees
only against removing parties and not against removing attor-
neys. The federal bankruptcy court, however, disagreed. It
held that, as a matter of law, § 1447(c) applied both to parties
and to attorneys. Appellees sought immediate review, and on
interlocutory appeal, the United States District Court for the
District of Maryland reversed. Crescent City Estates, LLC v.
MR Crescent City, LLC (In re Crescent City), 2008 WL
5216243 (D. Md. Dec. 9, 2008). After examining statutory
text, legislative history, and relevant case law, the district
court concluded that "§ 1447(c) . . . [gave] authority to
impose liability for costs (including legal fees) upon parties
but not attorneys." Id. at *4. Appellants now ask us to reverse
the district court’s decision.
II.
The statute, 28 U.S.C. § 1447(c), states in relevant part:
"An order remanding [an erroneously removed] case may
4 In Re: CRESCENT CITY ESTATES
require payment of just costs and any actual expenses, includ-
ing attorney fees, incurred as a result of removal." The statute,
however, does not state expressly who may be required to
make such payment. Appellants contend that both removing
parties and their lawyers are liable, while appellees assert that
only removing parties are liable.
As of yet, no circuit court has confronted this issue, and the
district courts that have addressed it are badly divided. Com-
pare Creek Ventures, LLC v. World Parts, LLC, 2004 WL
1166642, at *4 (W.D.N.Y. Apr. 14, 2004) (holding that
§ 1447(c) does not apply to counsel); Marketplace Illustrated
Inc. v. Intrex Travel, Inc., 1993 WL 405494, at *3 (W.D.N.Y.
Sept. 30, 1993) (same), with Peraza v. Mazak, 2008 WL
186613, at *3 (M.D. Fla. Jan. 18, 2008) (holding that
§ 1447(c) applies to counsel); Saxon v. Thomas, 2007 WL
1115239, at *5-6 (W.D. La. Apr. 12, 2007) (same), aff’d by
2007 WL 1974914 (W.D. La. June 29, 2007); Game Time
Laser Tag Adventure, LLC v. MillsServices Corp., 2006 WL
2422593, at *1 (S.D. Ohio Aug. 22, 2006) (same); Wisconsin
v. Missionaries to the Preborn, 798 F. Supp. 542, 543-44
(E.D. Wis. 1992) (same); Polanco v. 21 Arden Realty Corp.,
121 B.R. 425, 428 (S.D.N.Y. 1990) (same).
Appellants argue that because § 1447(c) does not explicitly
prohibit a fee award against counsel, it thereby permits it.
Appellants, however, have the presumption reversed. The
proper presumption is that when a fee-shifting statute does not
explicitly permit a fee award against counsel, it prohibits it.
In short, silence does not equal consent. Because we find that
the presumption is not overcome in this case, we accordingly
hold that § 1447(c) does not apply to counsel.
III.
The presumption that fee-shifting statutes apply only to
parties unless they expressly state otherwise is consistent with
the American Rule. Under the American Rule, "the prevailing
In Re: CRESCENT CITY ESTATES 5
litigant is ordinarily not entitled to collect a reasonable attor-
neys’ fee from the loser." Alyeska Pipeline Serv. Co. v. Wil-
derness Soc’y, 421 U.S. 240, 247 (1975). In other words, the
American Rule creates a presumption that parties bear their
own legal costs, win or lose. Fogerty v. Fantasy, Inc., 510
U.S. 517, 533 (1994). The American Rule’s presumption can
be further subdivided into two distinct underlying premises:
first, that parties bear their own legal fees and second, that
parties bear legal fees.
Congress is, of course, free to alter either or both of these
premises through legislation. See id. However, departures
from the American Rule require "explicit statutory authority."
See Buckhannon Bd. & Care Home, Inc. v. West Virginia
Dep’t of Health & Human Servs., 532 U.S. 598, 602 (2001).
In other words, if Congress wishes to overcome either prem-
ise underlying the American Rule, it must express its intent to
do so clearly and directly. This is because the American Rule
is a longstanding legal principle, see Key Tronic Corp. v.
United States, 511 U.S. 809, 815 (1994), and one "deeply
rooted" in our nation’s common law tradition, with origins
dating back perhaps as early as 1796. Alyeska Pipeline, 421
U.S. at 271, 249-50 (citing Arcambel v. Wiseman, 3 U.S. (3
Dall.) 306, 1 L.Ed. 613 (1796)). And "[i]n order to abrogate
a common-law principle, the statute must ‘speak directly’ to
the question addressed by the common law." United States v.
Texas, 507 U.S. 529, 534 (1993).
Absent explicit authorization from Congress, it is our duty
to keep the American Rule intact. "Congress ha[s] not
‘extended any roving authority to the Judiciary to allow coun-
sel fees . . . whenever the courts might deem them war-
ranted.’" Buckhannon, 532 U.S. at 610 (citing Alyeska
Pipeline, 421 U.S. at 260). Because fee-shifting statutes are
"in derogation of the common law," courts are obligated to
construe them strictly, Rowe v. U.S. Fid. & Guar. Co., 375
F.2d 215, 219 (4th Cir. 1967), employing a "presumption
favoring the retention of long-established and familiar princi-
6 In Re: CRESCENT CITY ESTATES
ples, except when a statutory purpose to the contrary is evi-
dent," Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783 (1952).
This means that unless there is at least some indication that
Congress intended attorneys to pay under § 1447(c), we will
apply the American Rule’s presumption that parties pay.
In this case, it is undisputed that Congress intended
§ 1447(c) to modify the American Rule in part. Section
1447(c) is, after all, a fee-shifting statute. See Martin v.
Franklin Capital Corp., 546 U.S. 132, 137-38 (2005). Thus,
the parties agree that § 1447(c) was meant to overcome the
first premise underlying the American Rule (that parties bear
their own legal fees), thereby enabling courts to shift fees
from the prevailing party (here, the party successfully obtain-
ing remand) to the losing party (here, the party erroneously
attempting removal). Appellees argue that § 1447(c) stops
there, leaving undisturbed the second premise of the Ameri-
can Rule (that parties bear legal fees). That is, whether pre-
vailing or losing, it is nonetheless parties — not attorneys —
who bear attorneys’ fees. Appellants, on the other hand,
would have us depart from the American Rule more radically,
by shifting fees not merely from a prevailing litigant to a los-
ing litigant, but from a prevailing litigant to a losing attorney.
Under this view, § 1447(c) reverses both parts of the Ameri-
can Rule’s presumption, shifting fees and introducing a new
payer.
We see no justification for the dramatic deviation from the
American Rule advocated by appellants. Neither § 1447(c)’s
text nor its legislative history is sufficient to overcome the
American Rule’s presumption that parties rather than attor-
neys are liable for attorneys’ fees. First, the text of § 1447(c)
makes no explicit mention of counsel. And because "Congress
legislates against the strong background of the American
Rule," Fogerty v. Fantasy, Inc., 510 U.S. 517, 533 (1994), the
fact that Congress did not explicitly exclude counsel from the
reach of § 1447(c) is no indication of congressional intent to
include counsel. Congress knows that in order to demonstrate
In Re: CRESCENT CITY ESTATES 7
an "inten[t] to set aside th[e] longstanding American [R]ule,"
"[m]ere generalized commands . . . will not suffice to autho-
rize . . . fees." Key Tronic, 511 U.S. at 815 (citations and
internal quotations omitted). Indeed, Congress has shown that
when it wants to make attorneys liable under fee-shifting stat-
utes, it will do so expressly. For instance, in 28 U.S.C.
§ 1927, Congress unambiguously empowered courts to
require "[a]ny attorney . . . who so multiples the proceedings
in any case unreasonably and vexatiously . . . to satisfy per-
sonally the excess costs, expenses, and attorneys’ fees reason-
ably incurred because of such conduct." The omission of
comparable express authorization in § 1447(c) thus "strongly
suggest[s] a deliberate decision not to authorize such awards."
See Key Tronic, 511 U.S. at 818-19.
Although the statutory text does not explicitly forbid fee
awards against counsel, it does so implicitly. The statute
speaks, by implication, only to parties. Section 1447(c) allows
a court to impose a fee award in "[a]n order remanding the
case," which, as the district court noted, "would normally, if
not inevitably, be contemplated as one that pertains to parties
and not counsel." Crescent City, 2008 WL 5216243, at *4.
The most natural reading of § 1447(c) is that it applies solely
to litigants, who have a genuine stake in whether or not the
case is remanded — and not to attorneys, who may not even
remain involved in the case post-remand.
In fact, the Supreme Court has repeatedly emphasized the
"crucial connection" between liability on the merits and liabil-
ity for attorneys’ fees under fee-shifting statutes. See Indep.
Fed’n of Flight Attendants v. Zipes, 491 U.S. 754, 762 (1989).
For example, in Kentucky v. Graham, 473 U.S. 159, 164
(1985), the Court observed that although "[s]ection 1988 does
not in so many words define the parties who must bear these
costs [of attorneys’ fees]," it was "[n]onetheless . . . clear that
the logical place to look for recovery of fees is to the losing
party — the party legally responsible for relief on the merits."
Simply put, "fee liability runs with merits liability." Id. at
8 In Re: CRESCENT CITY ESTATES
168; see also id. at 165 ("[L]iability on the merits and respon-
sibility for fees go hand in hand."). This court has likewise
recognized that one’s "status as a nonparty" generally pro-
vides protection from fee liability. See Johnson v. City of
Aiken, 278 F.3d 333, 338 (4th Cir. 2002). Thus, because attor-
neys are nonparties not liable on the merits, they are generally
outside the ambit of fee-shifting statutes.
Second, our conclusion is confirmed by the legislative his-
tory. While such history cannot be used to override statutory
text, it can serve as a useful supplement. Like the statute’s
text, the legislative history here makes no express mention of
attorney liability. It defies common sense to think that Con-
gress wished to expand fee liability to encompass lawyers but
failed to say anything at all about that wish, at any point, dur-
ing the statute’s consideration. "Such a bold departure from
traditional practice would have surely drawn more explicit
statutory language and legislative comment." Fogerty v. Fan-
tasy, Inc., 510 U.S. 517, 534 (1994).
To the contrary, the legislative history suggests that Con-
gress anticipated that § 1447(c) would apply exclusively to
litigants. Section 1447(c) was enacted in 1988 to succeed a
former statutory provision, which subjected defendants to a
"bond requirement." See H.R. 4807, 100th Cong. (1988); 28
U.S.C. § 1446(d) (repealed). Under this bond requirement,
defendants had to post a bond, prior to removal, in order to
secure payment for costs incurred if removal turned out to be
improper. Id. Significantly, this bond requirement explicitly
applied only to parties, limiting liability to "defendant or
defendants." Id.
The legislative history states that § 1447(c) was designed
merely to "replace the bond provision," H.R. Rep. No. 100-
889, at 72 (1988), as reprinted in 1988 U.S.C.C.A.N. 5982,
6033, thus directly substituting a party’s obligation to pay
costs ex ante with a party’s obligation to pay costs ex post.
If Congress had intended § 1447(c) not only to change the
In Re: CRESCENT CITY ESTATES 9
timing of payments but also to expand the categories of indi-
viduals potentially liable for payments, that expansion proba-
bly would have generated at least minimal legislative debate.
Instead, § 1447(c) was enacted as part of a "noncontrover-
sial," omnibus bill. See 134 Cong. Rec. H7443-02 (Sept. 13,
1988) (statement of Rep. Moorhead). In conclusion, nothing
demonstrates a congressional intent to overcome the Ameri-
can Rule in order to make attorneys liable for an adversary’s
attorneys’ fees.
IV.
Moreover, federal case law corroborates our holding.
Indeed, the Supreme Court and other circuits have interpreted
fee-shifting statutes with text materially indistinguishable
from that of § 1447(c) to be inapplicable to counsel. These
cases firmly support the presumption that fee-shifting statutes
shift fees only to parties unless they expressly state otherwise.
For example, in Roadway Express, Inc. v. Piper, 447 U.S.
752, 758, n.5 (1980), the Supreme Court examined fee-
shifting provisions in 42 U.S.C. §§ 1988 and 2000e-5(k),
which allowed successful plaintiffs "a reasonable attorney’s
fee as part of the costs," without specifying who was responsi-
ble for that "reasonable attorney’s fee." The Court declined to
make lawyers responsible for fees under those sections, not-
ing that "[n]either § 1988 nor § 2000e-5(k) makes any men-
tion of attorney liability for costs and fees." Id. at 761. This
case fairly stands for the more general proposition that, pre-
sumptively, when a fee-shifting statute is silent about who
pays attorneys’ fees, parties — not attorneys — are account-
able.
The presumption is widely held. As the Second Circuit
summarized, "When a fee-shifting statute that authorizes the
courts to award attorneys’ fees . . . does not mention an award
against the losing party’s attorney, the appropriate inference
is that an award against attorneys is not authorized." Healey
10 In Re: CRESCENT CITY ESTATES
v. Chelsea Res., Ltd., 947 F.2d 611, 624 (2d Cir. 1991). Other
circuits have likewise held that fee-shifting statutes presump-
tively apply only to litigants. And these courts have so held
in a wide array of contexts, interpreting fee-shifting provi-
sions under civil rights statutes, under the Securities Act,
under the False Claims Act, under the Federal Rules of Civil
Procedure, and under the Copyright Act. See Amlong &
Amlong, P.A. v. Denny’s, Inc., 500 F.3d 1230, 1238 (11th Cir.
2007) (42 U.S.C. § 2000e-5(k)); Steinert v. Winn Group, Inc.,
440 F.3d 1214, 1222 (10th Cir. 2006) (42 U.S.C. § 1988);
Foster v. Mydas Assocs., Inc., 943 F.2d 139, 142 (1st Cir.
1991) (42 U.S.C. § 1988); Brown v. Borough of Chambers-
burg, 903 F.2d 274, 276-77 (3d Cir. 1990) (42 U.S.C.
§ 1988); Healey v. Chelsea Res., Ltd., 947 F.2d 611, 624 (2d
Cir. 1991) (§ 11(e) of the Securities Act, 15 U.S.C. § 77k(e));
Pfingston v. Ronan Eng’g Co., 284 F.3d 999, 1005-06 (9th
Cir. 2002) (False Claims Act, 31 U.S.C. § 3730(d)(4)); Heck-
ethorn v. Sunan Corp., 992 F.2d 240, 242 (9th Cir. 1993)
(Rule 41(a)(2)); Amlong & Amolong, P.A. v. Denny’s, Inc.,
500 F.3d 1230, 1238 (11th Cir. 2007) (Rule 26(g)); Crescent
Publ’g Group, Inc. v. Playboy Enters., Inc., 246 F.3d 142,
150 (2d Cir. 2001) (Copyright Act, 17 U.S.C. § 505).
These decisions interpret fee-shifting statutes with language
remarkably similar to the language of § 1447(c). Like
§ 1447(c), the provisions in these cases vest courts with dis-
cretion to award attorneys’ fees but do not expressly state who
must pay those fees. Accordingly, we choose to interpret
§ 1447(c) similarly. As the Supreme Court has explained,
"fee-shifting statutes’ similar language is ‘a strong indication’
that they are to be interpreted alike." Indep. Fed’n of Flight
Attendants v. Zipes, 491 U.S. 754, 758, n.2 (1989); see also
Ruckelshaus v. Sierra Club, 463 U.S. 680, 691 (1983)
("[S]imilar attorney’s fees provisions should be interpreted
pari passu."); Northcross v. Bd. of Educ. of Memphis City
Schools, 412 U.S. 427, 428 (1973) (per curiam) ("[S]imilarity
of language . . . is, of course, a strong indication that . . . two
statutes should be interpreted pari passu."). In doing so, we
In Re: CRESCENT CITY ESTATES 11
"avoid . . . inconsistency in . . . fee award decisions." Fogerty
v. Fantasy, Inc., 510 U.S. 517, 537 (1994) (Thomas, J., con-
curring) (citations omitted).*
V.
Finally, the consequences of departing from sound statutory
*Appellants argue that we must instead interpret § 1447(c) consistently
with 28 U.S.C. § 1912 and Federal Rule of Appellate Procedure 38. Those
provisions allow courts to award "just damages" and "single or double
costs" resulting from frivolous appeals but, like § 1447(c), do not
expressly articulate who must bear liability. Despite the provisions’ failure
to expressly include counsel, some courts have nevertheless indicated that
attorneys may be liable under them. See Oum v. INS, 613 F.2d 51, 53 (4th
Cir. 1980); Thomas v. Digital Equip. Corp., 880 F.2d 1486, 1490-91 (1st
Cir. 1989); Am. Sec. Vanlines, Inc. v. Gallagher, 782 F.2d 1056, 1057
(D.C. Cir. 1986) (per curiam); Int’l Union of Bricklayers & Allied Crafts-
man Local Union No. 20 v. Martin Jaska, Inc., 752 F.2d 1401, 1406-07
& n.8 (9th Cir. 1985); Hughes v. Hoffman, 750 F.2d 53, 55 (8th Cir. 1984)
(per curiam); Bankers Trust Co. v. Publicker Indus., Inc., 641 F.2d 1361,
1368 (2d Cir. 1981); LeLaurin v. Frost Nat’l Bank, 391 F.2d 687, 692 n.4
(5th Cir. 1968) (§ 1912 only).
For a number of reasons, however, we believe that these cases do not
call into question the general presumption against attorney liability under
fee-shifting statutes. First, not all of the cases squarely decided the issue.
For example, this Court, in Oum v. INS, merely suggested that it might be
willing to apply § 1912 and Rule 38 to counsel but did not have to address
the issue since the government was not seeking fees from counsel. 618
F.2d 51, 53 (4th Cir. 1980). Second, several of the cases relied in part on
an additional statute, 28 U.S.C. § 1927, which does expressly permit sanc-
tions against attorneys. See Gallagher, 782 F.2d at 1057; Hughes, 750
F.2d at 55; Bankers Trust, 641 F.2d at 1368. Finally, and most signifi-
cantly, the language used in § 1912 and Rule 38 is strikingly less similar
to § 1447(c) than the language in the statutes discussed above, which
courts found not to encompass counsel. Section 1912 and Rule 38, unlike
§ 1447(c), are not true fee-shifting statutes at all, referring only to "just
damages" rather than "attorney fees." Therefore, in interpreting "similar
fee provisions . . . alike," Fogerty v. Fantasy, Inc., 510 U.S. 517, 537
(1994) (Thomas, J., concurring) (citations omitted), we are obligated to
interpret § 1447(c) consistently with those similarly worded statutes that
have consistently been found inapplicable to attorneys.
12 In Re: CRESCENT CITY ESTATES
construction would be severe. For one thing, subjecting coun-
sel to § 1447(c) liability for improvident removals would only
generate more collateral litigation. "A request for attorney’s
fees should not result in a second major litigation, and . . .
accordingly [courts should] avoid[ ] an interpretation of the
fee-shifting statutes that would . . . spawn[ ] a second litiga-
tion of significant dimension." Buckhannon Bd. & Care
Home, Inc. v. West Virginia Dep’t of Health & Human Servs.,
532 U.S. 598, 609 (2001) (citations and internal quotations
omitted). In this case, because fee requests are made at the
time of a remand order, applying § 1447(c) to counsel would
build an extra layer of litigiousness into the middle of a case.
Since § 1447(c) provides no "formula for ‘ready administra-
bility,’" id. at 610, a litigious period would be required to
establish the proper standards for attorney, as opposed to
party, liability. See Martin v. Franklin Capital Corp., 546
U.S. 132, 141 (2005) (holding that a party may be liable under
§ 1447(c) "only where the removing party lacked an objec-
tively reasonable basis for seeking removal"). Courts would
also be forced to decide, without legislative guidance, when
an attorney should be held solely liable, when an attorney
should be held jointly and severally liable with a client, or
whether fees should be apportioned between lawyer and client
(or lawyers and clients, as the case may be) based on some yet
unknown formula.
Plus, § 1447(c)’s application to lawyers could promote the
provision’s use as a disruptive litigation tactic, employed to
pit lawyer and client against each other, thereby causing fur-
ther friction and delay. Forcing an attorney to defend his
actions in the midst of litigation might create a conflict of
interest or rift in the lawyer-client relationship, possibly forc-
ing the lawyer to withdraw, see Healey v. Chelsea Res., Ltd.,
947 F.2d 611, 623 (2d Cir. 1991), or require the attorney to
reveal privileged and confidential information relating to the
case.
Additionally, exposing lawyers to personal monetary liabil-
ity whenever they remove a case risks chilling the right of
In Re: CRESCENT CITY ESTATES 13
removal. Removal is a federal right, which Congress has long
provided and which courts have long protected. See Martin,
546 U.S. at 137 (citing 28 U.S.C. § 1441). Making lawyers
potentially liable for every erroneous removal would likely
result in fewer removals altogether, including many meritori-
ous ones. In close cases, lawyers may err on the side of cau-
tion, "exercis[ing] this right only in cases where the right to
remove was obvious." Id. at 140. And "there is no reason to
suppose Congress meant to confer a right to remove, while at
the same time discouraging its exercise in all but obvious
cases." Id.
Furthermore, holding counsel responsible under § 1447(c)
could begin to transform what it means to practice law. A
lawyer should not be required to risk personal liability merely
for acting in a representational capacity or for seeking to place
a client in a more favorable litigation posture. Generally, an
attorney is held liable in a representational capacity only
when he engages in misconduct — not for legal judgments.
See DeBauche v. Trani, 191 F.3d 499, 511 (4th Cir. 1999).
The standard for imposing sanctions on legal judgment is
high, usually requiring vexatiousness, malfeasance, bad faith,
or the like. See, e.g., 28 U.S.C. § 1927; Fed. R. Civ. P. 11.
Thus, holding lawyers accountable under § 1447(c) would
go too far. Erroneous removal need not entail misconduct.
Questions of removal are often complicated, generating the
most extensive commentary in the most learned of treatises.
See, e.g., 14B & 14C Charles Alan Wright, Arthur R. Miller,
et al., Federal Practice and Procedure, §§ 3721-40 (4th ed. &
supp. 2009); 29A Federal Procedure, Lawyer’s Edition
§§ 69:1 to 69:200 (2009). Erroneous removal might very well
be the result of an honest but forgivable mistake of legal judg-
ment or perhaps the product of a lawyer’s operating at the
behest of a client’s desires and demands.
To be sure, no one wishes to encourage improper removals.
Wrongful or erroneous removals impose their own litigious
14 In Re: CRESCENT CITY ESTATES
burdens on the system. As the Supreme Court has noted,
"[t]he process of removing a case to federal court and then
having it remanded back to state court delays resolution of the
case, imposes additional costs on both parties, and wastes
judicial resources." Martin v. Franklin Capital Corp., 546
U.S. 132, 140 (2005). But fee-shifting by itself operates as a
deterrent on such practices. To go further and expose attor-
neys to personal liability risks, as we have noted, equating
professional judgment calls with misconduct and chilling
legitimate exercises of the removal right.
There are, however, cases where removal is not just errone-
ous but egregiously so. Where an attorney’s decision to
remove is particularly blameworthy, courts do not need
§ 1447(c) to impose sanctions. For example, courts have at
their disposal Federal Rule of Civil Procedure 11, 28 U.S.C.
§ 1927, and their inherent powers, all of which may permit
awards of attorneys’ fees against attorneys whose actions
compromise standards of professional integrity and compe-
tence. "The power of a court over members of its bar is at
least as great as its authority over litigants. If a court may tax
counsel fees against a party who has litigated in bad faith, it
certainly may assess those expenses against counsel who will-
fully abuse judicial processes." Roadway Express, Inc. v.
Piper, 447 U.S. 752, 766 (1980) (citations omitted).
We are asked here, however, to impose liability on lawyers
solely on the basis of § 1447(c). We are asked further to
import into law a species of liability that Congress has in no
way seen fit to adopt. Lacking explicit direction from the leg-
islative branch, we refuse to read § 1447(c) to authorize the
imposition of legal fees upon attorneys for erroneous remov-
als.
VI.
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.