Klayman v. Lim

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

LARRY KLAYMAN,

Plaintiff,

v.
Civil Action No. 18-2209 (RDM)
ESTHER LIM, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Larry Klayman, proceeding pro se, brings this action against the District of

Columbia Bar and its president, Esther Lim; the Office of Disciplinary Counsel (“ODC”), which

serves as the chief prosecutor for attorney disciplinary matters; and four of its members:

Hamilton Fox, Elizabeth Herman, H. Clay Smith, III, and Julia Porter. Plaintiff alleges that

Defendants have violated the common law and the U.S. Constitution by pursuing charges against

him for attorney misconduct arising from his efforts to appear pro hac vice as counsel for Cliven

Bundy, a criminal defendant, before the U.S. District Court for the District of Nevada. This is

not Plaintiff’s first lawsuit challenging the lawfulness of pending disciplinary proceedings

against him. In Klayman v. Fox, No. 18-cv-1579 (D.D.C. Jul. 3, 2018), Plaintiff accused many

of the same defendants of conspiring to disbar him (or to force him to resign from the Bar)

because of his political affiliation, conservative advocacy, and gender. After the ODC brought

disciplinary charges against him relating to the Bundy case on August 21, 2018, Plaintiff filed

this lawsuit, seeking to enjoin the pending disciplinary proceedings against him and seeking

damages in excess of $75,000. Dkt. 1 at 21 (Compl. Prayer). This time, in addition to suing the

ODC and its staff, he also sues the D.C. Bar and its president.
 The matter is now before the Court on Defendants’ motion to dismiss. Dkt. 7. The Court

will, for the same reasons set forth in Klayman v. Fox, No. 18-cv-1579, slip op. (D.D.C. June 5,

2019) (“Klayman I”), grant the motion to dismiss Plaintiff’s complaint against the ODC and its

staff based on Younger abstention, the non sui juris status of the ODC, and absolute judicial

immunity, and will dismiss Plaintiff’s claims against the D.C. Bar and Lim for failure to state a

claim. The Court will also grant Plaintiff’s motion for leave to file a surreply. Dkt. 16.

I. BACKGROUND

Much of the relevant background is detailed in Klayman I, No. 18-cv-1579, slip op. at 1–

13, so the Court will only briefly summarize the relevant facts here. 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).

On July 3, 2018, Plaintiff filed his first lawsuit, Klayman I, No. 18-cv-1579, alleging that

Defendants were “pil[ing] on” baseless misconduct charges against him because of “[his]

political beliefs, public activism, and gender,” Dkt. 10 at 2, 10–11 (Amd. Compl. ¶¶ 1, 47),

Klayman I, No. 18-cv-1579 (D.D.C.). At the time, the ODC had yet to charge him in connection

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with his pro hac vice application before the U.S. District Court for the District of Nevada.

Nevertheless, Plaintiff’s amended complaint alleged that the Judicial Watch charges, the Sataki

charges, and the then-impending Bundy charges were all part of Defendants’ “conspiracy” to

bankrupt and to disbar him. See id. at 2, 10–11 (Amd. Compl. ¶¶ 1, 47). After the ODC

formally instituted the Bundy charges on August 21, 2018, see Dkt. 7-2 (Ex. 1) (Specification of

Charges), Plaintiff filed this lawsuit, see Dkt. 1 (Compl.).

Although Plaintiff could have sought leave to file a second amended complaint in

Klayman I, No. 18-cv-1579, based on the Bundy charges, he instead filed this separate case,

alleging:

This instant action is based upon the conduct of Defendants concerning the
Bundy Complaint, wherein the Individual Bar Counsel Defendants and ODC
initiated a proceeding before the Board of Professional Responsibility—by
fraudulently inducing a member of the Board to sign off—when they were on
notice that there are pending appellate proceedings before the Supreme Court
and even the U.S. Court of Appeals for the Ninth Circuit.

Dkt. 1 at 6 (Compl. ¶ 21). The complaint also references both the Judicial Watch and Sataki

charges. See, e.g., id. at 10 (Compl. ¶ 46) (“These three complaints are without merit, . . . and

have been initiated against Mr. Klayman by the Individual Bar Counsel Defendants and ODC for

the purpose of removing Mr. Klayman from the practice of law in order to, in effect, silence his

public interest advocacy and work.”); id. (Compl. ¶ 48) (“Defendants believe that they can ‘pile

on’ by filing a new case or cases before [the Board], . . . effectively disbarring [Plaintiff].”).

Plaintiff’s complaint in this case copies, verbatim, much of his amended complaint in

Klayman I, No. 18-cv-1579, and he alleges the same causes of action against the same

defendants with only three differences. First, the complaint in this case addresses the Bundy

matter in far greater detail. For instance, the complaint alleges that Defendants “rushed to file

the Bundy Complaint” before Plaintiff’s petitions for writs of mandamus before the Supreme

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Court and the Ninth Circuit had “reached any type of final resolution.” Id. at 9 (Compl. ¶¶ 37–

39). He also alleges that “Defendants engaged in further illegalities by causing and furthering

the publication of the filing of the Specification of Charges in the Bundy Complaint through the

website Law360,” id. (Compl. ¶ 41), in an attempt “to unethically communicate with the

appellate courts to attempt to bias and prejudice them while they are deliberating on [his]

pending appeals,” id. (Compl. ¶ 42). Second, Plaintiff adds a fraud claim against Defendants,

alleging that they “induced a member of the Board to sign off on the [Bundy] Specification of

Charges” by “with[holding] . . . material information”—namely, that “there were pending

appeals to the Supreme Court and the Ninth Circuit” challenging the denials of his petitions for

writs of mandamus. Id. at 20 (Compl. ¶¶ 102–03). Third, Plaintiff has added the D.C. Bar and

Lim as defendants in this case. Id. at 2 (Compl. ¶ 1). The relief Plaintiff seeks, however,

remains the same: “actual, compensatory, and punitive damages . . . in an amount no less than

$75,000 . . . as well as preliminary and permanent injunctive relief” enjoining the disciplinary

proceedings against him. Id. at 21 (Compl. Prayer).

On November 1, 2018, Defendants moved to dismiss all of Plaintiff’s claims. Dkt. 7.

That motion, and Plaintiff’s motion for leave to file a surreply, Dkt. 16, are now fully briefed.

II. ANALYSIS

Defendants move to dismiss the complaint on five grounds: (1) Plaintiff’s complaint

violates the prudential rule against claim-splitting, Dkt. 7 at 12–13; (2) Younger abstention bars

Plaintiff’s claims for injunctive relief, id. at 13; (3) absolute immunity shields the individual

ODC members from suit, id. at 13–14; (4) the ODC is not subject to suit, id. at 14; and (5)

Plaintiff’s complaint fails to state a claim for relief, id. at 15. Because the allegations and legal

claims in this case mirror those in Klayman I, No. 18-cv-1579, the Court will dismiss the claims

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against the ODC and its staff on the same grounds is relied on in Klayman I: Younger abstention,

the fact that the ODC is non sui juris, and absolute immunity. The Court will dismiss Plaintiff’s

claims against the D.C. Bar and Lim for failure to state a claim.

A. Injunctive Claims

As the Court explained in Klayman I, Younger abstention bars federal courts from

enjoining certain, ongoing state proceedings. See slip op. at 14–15 (citing Sprint Commc’ns, Inc.

v. Jacobs, 571 U.S. 69, 79, 81 (2013)). Here, as in Klayman I, Plaintiff argues that Younger does

not pose a bar to his claims for injunctive relief for two reasons:

First, Plaintiff argues that the Supreme Court’s recent decision in Sprint

Communications, 571 U.S. 69, narrowed the scope of Younger abstention and that Defendants

have cited “no controlling authority post-Sprint” that holds “the Younger abstention doctrine is

still applicable” to bar disciplinary proceedings. Dkt. 13 at 18. As explained in Klayman I, that

contention is meritless. Indeed, far from holding that Younger abstention no longer applies to

attorney disciplinary proceedings, Sprint Communications cited with approval to Middlesex

County Ethics Committee v. Garden State Bar Ass’n, 457 U.S. 423, 431 (1982), which held that

Younger applies to “state-initiated disciplinary proceedings against [a] lawyer for violation of

state ethics rules.” Sprint Commc’ns, 571 U.S. at 79 (citing Middlesex, 457 U.S. at 433–34); see

also Klayman I, slip op. at 15–16.

Second, Plaintiff argues that this case falls within the bad-faith exception to Younger

abstention because his “well-pled [c]omplaint” alleges that “Defendants acted in bad faith by

selectively prosecuting him in retaliation for his conservative public advocacy, political beliefs,

free speech, and gender.” Dkt. 13 at 20. For the reasons explained at length in Klayman I,

Plaintiff has failed to allege specific facts sufficient to support invocation of Younger’s bad-faith

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exception. In short, Plaintiff’s allegations of bad faith ultimately turn on the notion that a

prosecutor or someone performing a similar function, who has made a political contribution, is

invariably a partisan actor incapable of putting his or her personal views aside when charged

with the fair administration of justice. The bare allegations contained in the complaint in this

action, as in Klayman I, No. 18-cv-1579, are far from sufficient to permit a “plausible” inference

of the type of ubiquitous tribalism that Plaintiff’s claim of bad faith posits. See Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009).

Plaintiff adds one argument in this case, which he did not press in Klayman I. He asserts:

As further strong and compelling evidence of Defendants’ bad faith, they have
flat out ignored a factual finding by Judge Gould that Klayman is not guilty of
the accusations against him in the Specification of Charges. The Individual Bar
Counsel and the other Defendants are well aware of Judge Gould’s finding, and
without an[y] basis to do so, are retaliating against him and arrogantly and
improperly assuming the role of a higher authority, the U.S. Supreme Court, to
overrule his finding.

Dkt. 13 at 21. This new argument is flawed in several respects:

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 fo failing to inform the district court

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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.)

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(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.

B. Damages Claims Against the ODC and Its Staff

Plaintiff’s claims for damages against the ODC and its members are also barred. As the

Court explained in Klayman I, No. 18-cv-1579, “the ODC, an instrumentality of the D.C. Court

of Appeals, is not subject to suit.” Slip op. at 24 (citations omitted). Furthermore, “judicial

immunity shields [members of the ODC] from liability for carrying out their official duty:

prosecuting attorney misconduct.” Id. at 24–25. The ODC members’ immunity is abrogated

only if their conduct falls outside the scope of their official duties. Id. at 27. In its prior opinion,

the Court concluded that initiating charges of misconduct falls well within the ODC members’

official duties. See id. at 27–28. Plaintiff has failed to offer any basis to conclude that the Bundy

charges are any different than the charges addressed in Klayman I. To the contrary, his brief in

this case simply repeats the arguments that the Court has since considered and rejected in

Klayman I. See Dkt. 13 at 21–24.

The Court, accordingly, concludes that the ODC is not subject to suit and that

Defendants’ act of charging Plaintiff in the Bundy matter are protected by absolute immunity.

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C. Failure to State a Claim

That leaves Plaintiff’s claims against the D.C. Bar and its president, Esther Lim. The

sole basis of Plaintiff’s claims against these Defendants is that Lim was “placed on notice of the

illegalities . . . by other Defendants, but has failed to take remedial action.” Dkt. 1 at 6 (Compl.

¶ 22). The Court concludes that this bare allegation fails to state a claim. To begin, Plaintiff has

failed to allege any facts in support of his conclusory assertion that the D.C. Bar and its president

have an obligation to oversee bar disciplinary proceedings and to “take remedial action.” To the

contrary, as Defendants correctly point out, the D.C. Bar Rules make clear that the Board of

Professional Responsibility (“the Board”) and ultimately the D.C. Court of Appeals—not the

president of the D.C. Bar—oversee attorney disciplinary proceedings. See D.C. Bar R. XI,

§ 4(e); see also Klayman I, slip op. at 2–3 (describing bar discipline framework); Dkt. 7 at 14

(“The [ODC] and its lawyers report to and are subject to the oversight authority of the D.C.

Court of Appeals—not the D.C. Bar.”). 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. See Davis v. Megabus Ne. LLC, 301 F. Supp. 3d 105, 110

(D.D.C. 2018) (discussing application of respondeat superior).

But even if there were circumstances under which the president of the D.C. Bar might be

able to intercede in a particular proceeding, that alone would still be insufficient to state a claim

for abuse of process, malicious prosecution, fraud, and violations of his First and Fourteenth

Amendment Rights. See Dkt. 1 at 17–21 (Compl. ¶¶ 80–104). Under established pleading

standards, a plaintiff must allege facts that, if accepted as true, set forth a claim “that is plausible

on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Here, however, Plaintiff

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does not allege that Lim played any role in initiating formal charges against Plaintiff, and he

does not allege that she refused to intercede on his behalf because of his political activity or

gender, or that her failure to do so amounted to fraud. The Court will, accordingly, dismiss

Plaintiff’s claims against the D.C. Bar and Lim for failure to state a claim.

D. Plaintiff’s Motion for Leave to File Surreply

Plaintiff’s motion for leave to file a surreply fails to identify any arguments or material

facts that were raised for the first time in Defendants’ reply. He, accordingly, is not entitled to

what amounts to an effort simply to have the last word. See Nix El v. Williams, 174 F. Supp. 3d

87, 92 (D.D.C. 2016) (denying leave to file surreply); Lewis v. Rumsfeld, 154 F. Supp. 2d 56, 61

(D.D.C. 2001) (same). Nevertheless, the Court reviewed Plaintiff’s surreply to ensure that the

Court was fully informed of Plaintiff’s contentions. Because the Court has already reviewed the

brief, and because the Court’s consideration of the brief will not cause Defendants any prejudice,

the Court will—out of an abundance of caution and as an exercise of its discretion—grant

Plaintiff’s motion for leave to file.

CONCLUSION

For the foregoing reasons, the Court will GRANT Defendants’ motion to dismiss, Dkt. 7,

and will dismiss the complaint without prejudice. See Attias v. Carefirst, Inc., 865 F.3d 620,

623–24 (D.C. Cir. 2017). The Court will also GRANT Plaintiff’s motion for leave to file a

surreply, Dkt. 16.

A separate order will issue.

/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge

Date: June 5, 2019

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