Clark Denied Stay Of Order Denying Removal Motion

Jeffrey Clark’s persistent efforts to avoid an adjudication of the merits of ethics charges have hit a bump in the road as the United States District Court for the District of Columbia (Judge Contreras) denied his motion for a stay pending appeal of his failed effort to remove the bar case to federal court

The Hearing Committee has deferred exercising jurisdiction pending “receipt of a certified copy” of the Court’s remand order. Hr’g Comm. Order at 12. Though ODC originally suggested that, given the nature of the Board’s disciplinary proceeding, there may not be a clerk’s office to receive such a mailing, see ODC’s Opp’n to Mot. Stay at 9–10, the Hearing Committee clarified that disciplinary proceedings are initiated in the DCCA, which “certainly has a clerk’s office,” Hr’g Comm. Order at 9. And Mr. Clark acknowledges that the mailing of a certified copy to the Clerk of the DCCA satisfies any requirement under section 1447(c). See Mot. Stay at 14. Accordingly, the Court will order the Clerk of the U.S. District Court for the District of Columbia to execute such mailing to the Clerk of the District of Columbia Court of Appeals forthwith.

Well played.

His rejected contentions

Mr. Clark presents three alternative arguments as to why a stay is warranted. First, he argues that a stay pending resolution of his appeal is mandatory under the Supreme Court’s decision in BP P.L.C. v. Mayor & City Council of Baltimore, 141 S. Ct. 1532 (2021). See Mot. Stay at 6–13. Second, he argues that a temporary stay is required pending compliance with section 1447(c)’s provision for the mailing of a certified copy of the Court’s remand order to the relevant state court clerk. See id. at 13–17. Third, he argues that a discretionary stay is warranted pending resolution of his appeal. See id. at 17–26. 

Mandatory stay

the Court declines to divine from dicta in a case focused on a different issue a new rule requiring district courts to automatically stay appealable remand orders pending resolution of their appeal.

Discretionary stay

This is the case here, as the sole question on appeal of the Court’s remand order is whether the Board’s disciplinary proceeding and related subpoena enforcement action should proceed before the Board or this Court. In addition, Mr. Clark stated his intention to move in parallel, within three days after filing the present motion, for a stay in the D.C. Circuit pursuant to Federal Rule of Appellate Procedure 8(a)(2), see Mot. Stay at 26, a motion that will be governed by the same standards he asks the Court to apply here, see Hilton, 481 U.S. at 776.11 Accordingly, the Court finds that it lacks jurisdiction to grant Mr. Clark’s motion for a discretionary stay.

A mug shot in Georgia and this order make for a well-earned bad day. (Mike Frisch)