The Claims Of Klayman
Two orders of the United States District Court for the District of Columbia dismiss civil actions brought by Larry Klayman in response to bar charges
In short, Plaintiff, a self described conservative activist, has been a member of the D.C. Bar since 1980. Id. at 4. He is currently the subject of three disciplinary proceedings under the auspices of the D.C. Court of Appeals. The first, based on his representation of three Judicial Watch employees (“Judicial Watch charges”), is awaiting a final decision from the D.C. Court of Appeals. Id. at 4–5. The second, based on his representation of Elham Sataki (“Sataki charges”), is pending before the Board of Professional Responsibility (“the Board”). Id. at 7. The third, based on his attempt to gain admission pro hac vice to appear before the U.S. District Court for the District of Nevada on behalf of Cliven Bundy (“Bundy charges”), has been referred to a Hearing Committee. See Dkt. 7-2 at 55–71 (Ex. 1) (Specification of Charges); see also D.C. Bar R. XI § 5(c)(1) (formal charges are first referred to a Hearing Committee).
Defendants (disclosure: including my co-teacher at Georgetown) moved to dismiss on multiple grounds.
As to his prosecutors
Plaintiff Larry Klayman, proceeding pro se, brings this action against the D.C. Office of Disciplinary Counsel (“ODC”), which serves as the chief prosecutor for attorney disciplinary matters involving members of the D.C. Bar, and four of its members, Hamilton Fox, Elizabeth Herman, H. Clay Smith, III, and Julia Porter. According to Plaintiff, Defendants are conspiring to disbar him or to force him to resign from the D.C. Bar (1) because they disagree with his “political beliefs [and] public interest activism” and hope to silence him and (2) because of his gender.
The contention of bias was grounded in alleged political contributions to Democrats and personal animus
At the first meeting, held on July 28, 2017, Defendant Herman allegedly displayed an “extremely hostile and disrespectful demeanor” towards Plaintiff. Id. at 12 (Amd. Compl. ¶ 52). Plaintiff alleges that she “refused to say whether she had had contact and/or met with Ms. Sataki” and, when asked, told Plaintiff it was “none of his . . . business.” Id. (Amd. Compl. ¶ 53). According to Plaintiff, Defendant Herman further “brazenly and openly admitted her bias and animus against [him] due to his political beliefs, activism, free speech, and gender, . . . when she curtly and in a hostile manner, on more than one occasion, stated . . . , ‘I [we] don’t like the way you practice law.’” Id. (Amd. Compl. ¶ 54). She also allegedly responded, “we couldn’t care less,” when Plaintiff noted that the Florida and Pennsylvania bars had dismissed Sataki’s complaints. Id. (Amd. Compl. ¶ 56)…
At the last meeting mentioned, held on May 11, 2018, Defendant Fox allegedly acted “in an extremely hostile manner” when he met with Plaintiff to discuss the Sataki Specification of Charges. Id. at 15 (Amd. Compl. ¶ 69). According to Plaintiff, Defendant Fox allegedly “lurch[ed] towards him and scream[ed] ‘this meeting is over,’” id. at 16 (Amd. Compl. ¶ 72) (alterations in original); “demanded that he ‘leave his office,’” id.; and, when Plaintiff “indicated that [Defendants’] gross prosecutorial misconduct would leave him no recourse but to file this instant Complaint” and “bar grievances,” Defendant Fox purportedly responded, “do you seriously believe that I would not welcome the opportunity through discovery to show how you practice law?” id. (Amd. Compl. ¶ 73).
Harumph
..although one would hope that prosecutors would always avoid displays of disrespect and “hostility,” expressions of annoyance, frustration, and even anger are not enough to open the door to a federal court’s interference in a state court proceeding.
Plaintiff’s theory of gender bias is even more tenuous. He merely alleges that the two female ODC members “apparently see him as anti-woman” and “apparent[ly] . . . wanted to take disciplinary action against him due to his gender and activism.” Dkt. 10 at 10 (Am. Compl. ¶ 44). But he fails to offer a single non-conclusory allegation in support of that assertion. The one relevant allegation that he does make, moreover, contains a puzzling addition: He alleges that “Herman abruptly and in a hostile voice refused to say whether she had had contact with and/or met with Ms. Sataki” and that “this was ‘none of his [male] business.’” Dkt. 10 at 12 (Am. Compl. ¶ 53). It is unclear what Plaintiff intends the bracketed reference to his gender to mean. If he simply means to emphasize that Herman said that whether she had contacted Sataki was none of “his” business, that allegation adds nothing. But, if he means to convey more than this—for example, if Herman had used a synonym for “male” that he was not inclined to repeat—the complaint fails to offer any insight regarding what he claims actually occurred. In any event, it is safe to say that Plaintiff’s amended complaint would not come close to satisfying pleading requirements in a gender-based employment discrimination case, see Czekalski v. Peters, 475 F.3d 360, 364 (D.C. Cir. 2007) (discussing standard for alleging prima facie case of disparate treatment), and, for the same reason, it does not come close to alleging facts sufficient to invoke the bad-faith exception to Younger.
As to his arguments on the Cliven Bundy charges
First, the assertion that Judge Gould found that Plaintiff “is not guilty of the accusations” contained in the Bundy Specification of Charges mischaracterizes Judge Gould’s opinion. The thrust of Judge Gould’s opinion—as Judge Gould later explained—was that he “believe[d] that Bundy’s needs for experienced defense counsel of his choosing [were] more important than the articulated concerns about [Plaintiff’s] ethics, where he has not been disbarred or suspended by another bar association or proven to have engaged in unethical conduct that could justify disbarment.” In re Bundy, 852 F.3d 945, 953 (9th Cir. 2017) (Gould, J., dissenting). Moreover, although Judge Gould observed that Plaintiff “had no greater duty to disclose any possible blemish on his career or reputation beyond responding to the district court’s further direct requests,” he also suggested that Plaintiff might be faulted for failing to inform the district court why his negotiated discipline “lacked effect”—that is, because “the bar committee” rejected the negotiated discipline as unduly lenient. In Re Bundy, 840 F.3d 1034, 1055 (9th Cir. 2016) (Gould, J., dissenting); see also id. at 1056 (“I do not dismiss lightly the district court’s ethical concerns regarding [Plaintiff], especially the issue of candor.”)
Second, Plaintiff casts Judge Gould’s decision as though it represented the Ninth Circuit’s “finding[s]” with respect to his conduct. Dkt. 13 at 6. In fact, he chastises Defendants for the “arrogan[ce]” of “assuming the role of . . . the U.S. Supreme Court[] to overrule [Judge Gould’s] findings.” Id. at 21. What Plaintiff ignores, however, is that Judge Gould was writing in dissent. Adhering to the views of the majority opinion, rather than the “findings” of the dissent, cannot by any stretch support a claim of “bad faith.” And here, the majority held that Plaintiff “was not forthcoming with the district court,” In re Bundy, 840 F.3d at 1044, in representing that “he withdrew his affidavit” and rejected public censure, “when, in fact, the Hearing Committee rejected it,” id. (quoting district court findings).
Finally, to the extent that Plaintiff contends the ODC’s decision to file charges before the Supreme Court acted on his petition for a writ of mandamus evinces bad faith or fraud, he is, again, mistaken. Mandamus is, of course, an extraordinary form of relief that is rarely granted. Cheney v. U.S. District Court for the District of Columbia, 542 U.S. 367, 380 (2004). To say that a fact-bound petition for a writ of mandamus in the Supreme Court is a longshot is an understatement by any measure. See Stephen M. Shapiro, et al., Supreme Court Practice 668–69 (10th ed. 2013) (“The Supreme Court has long refused to issue writs of mandamus . . . to control . . . the discretionary acts of a lower court.”). Consistent with that high hurdle, the Solicitor General waived its response to Plaintiff’s petition, and the Supreme Court denied the petition on October 1, 2018 without requesting a response. In re Bundy, 139 S. Ct. 266 (Mem.) (Oct. 1, 2018). For present purposes, it is enough to conclude that bringing disciplinary charges against Plaintiff while his Supreme Court petition for a writ of mandamus was pending—even assuming that the ODC did not bring the petition to the attention of the member of the Board required to sign off on the Specification of Charges, Dkt. 1 at 6, 9 (Compl. ¶¶ 21, 37–39)—does not support a claim of bad faith or fraud.
The Court will, accordingly, dismiss Plaintiff’s claims for injunctive relief as barred by Younger abstention for the reasons explained at greater length in Klayman I, slip op. at 14–23.
As to claims against the Bar and its President
There is no provision of the D.C. Bar Rules that either obligates or empowers the president of the D.C. Bar to intercede in ongoing disciplinary proceedings. The D.C. Bar and Lim are thus not liable for the conduct of ODC members under the theory of respondeat superior.