No Removal To Federal Court For Jeffrey Clark

The United States Court of Appeals for the District of Columbia Circuit affirmed the ruling rejecting the federal court claims of Jeffrey Clark

This case was considered on the record from the United States District Court for the District of Columbia and on the briefs and oral argument held on May 10, 2024. The court has afforded the issues full consideration and determined they do not warrant a published opinion. See D.C. Cir. R. 36(d). For the reasons stated below, it is hereby

ORDERED AND ADJUDGED that the judgment of the district court be AFFIRMED.

This appeal concerns whether Jeffrey B. Clark, a former United States Department of Justice (DOJ) official, can remove to federal court under either the federal-officer or general removal statute the District of Columbia Bar’s disciplinary proceedings against him. The District of Columbia Bar initiated disciplinary proceedings against Clark based on actions he took while employed in the Department of Justice. The D.C. Bar’s Office of Disciplinary Counsel charged that Clark attempted to engage in dishonesty and obstruction of the administration of justice when he credited debunked claims of irregularities with the 2020 presidential election and recommended that federal and state officials take specified actions on the unsupported premise that President Joseph R. Biden Jr. had not been validly elected.

Those charges were pending before the D.C. Court of Appeals’ Board on Professional Responsibility (Board) when Clark removed to federal court three matters related to that disciplinary proceeding: (1) the D.C. Bar’s disciplinary hearing, initiated under D.C. Bar Rule XI; (2) a petition to enforce an October 26, 2022, subpoena against Clark as part of the D.C. Bar proceedings; and (3) a second subpoena issued on December 18, 2022, as to which the D.C. Bar’s Office of Disciplinary Counsel did not seek judicial enforcement. The district court held that none of those matters was removable and remanded them to the Board on Professional Responsibility.

We conclude that both the October 26, 2022, subpoena-enforcement proceeding and the December 18, 2022, subpoena are moot, so there is nothing left to remove. For Clark’s Bar disciplinary proceeding itself, we hold that, even if that proceeding were removable, Clark’s notice of removal was untimely. We accordingly affirm.

The removal was untimely as outside the 30-day time limit.

A party in a civil action has 30 days to remove a case after being served with its “initial pleading.” 28 U.S.C. § 1446(b). As mentioned, attorney discipline under the D.C. Bar commences with the filing of a petition and specification of charges with the Board on Professional Responsibility. See D.C. Bar Rule XI § 8(c). Disciplinary Counsel filed its petition instituting formal disciplinary proceedings before the Board on July 19, 2022, see Petition Instituting Disciplinary Proceedings at 1 (J.A. 50), and it served Clark with a specification of charges on July 22, 2022, see First Notice of Removal at 6 (J.A. 6). That specification of charges is the “initial pleading” for purposes of removal, meaning that Clark had to file his notice of removal on or before August 21, 2022. Yet he did not file it until October 17, 2022, well beyond the 30-day deadline, making his removal untimely.

The 30-day time limit to file a notice of removal is “mandatory” and “a timely objection to a late petition will defeat removal.” Fristoe v. Reynolds Metals Co., 615 F.2d 1209, 1212 (9th Cir. 1980). We conclude that, even were such a bar disciplinary proceeding otherwise eligible for removal under either the federal-officer or general removal statute, Disciplinary Counsel timely and accurately objected in the district court that Clark’s notice of removal was untimely. That suffices to defeat his removal of his disciplinary proceeding.

On hold

Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate until seven days after resolution of any timely petition for rehearing or rehearing en banc. See Fed. R. App. P. 41(b); D.C. Cir. R. 41(a).

Circuit Judges Pillard, Katsas and Garcia served on the panel. (Mike Frisch)