UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
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LARRY KLAYMAN, )
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Plaintiff, )
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v. ) Civil Action No. 21-0409 (ABJ)
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HON. ANNA )
BLACKBURNE-RIGSBY, et al., )
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Defendants. )
____________________________________)
MEMORANDUM OPINION
On February 17, 2021, plaintiff Larry Klayman filed a complaint and a motion for a
preliminary injunction against the thirteen judges of the District of Columbia Court of Appeals
(“DCCA”) and the Clerk of that court. Compl. [Dkt. # 1]; Mot. for Prelim. Inj. [Dkt. # 2]. Plaintiff
challenges an order the DCCA issued on January 7, 2021 that temporarily suspended him from the
practice of law in the District of Columbia pending resolution of a disciplinary action against him
in accordance with D.C. Bar XI § 9(g)(2)(a). Compl. ¶¶ 19, 26. Plaintiff also challenges the
DCCA’s denial of an emergency motion to vacate the order, its rejection of his petition for rehearing
en banc, and the court’s handling of various filings in the matter. Id. ¶¶ 27–35. The complaint
includes five claims brought under 42 U.S.C. § 1983, the civil rights statute that provides
individuals the right to sue state officials acting under the color of law for alleged violations of
their constitutional rights. Id. ¶¶ 39–63. Plaintiff asks the Court to enjoin defendants “from
temporarily suspending him from practice as an attorney in the District of Columbia while a bar
disciplinary proceeding is pending,” Mot. for Prelim. Inj. at 1, 10, and for “declaratory and
preliminarily and permanent injunctive relief.” Compl. at 14 (Prayer for Relief).
On February 24, 2021, the Court ordered plaintiff to show cause why his claims should not
be dismissed on the basis that defendants have judicial immunity. Minute Order (Feb. 24, 2021).
Plaintiff responded on March 3, 2021. Pl.’s Resp. to Order to Show Cause [Dkt. # 10] (“Pl.’s
Resp.”). On March 16, 2021, the Court also directed defendants to address the issue of judicial
immunity. See Minute Order (Mar. 16, 2021). Defendants filed a motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6) on April 6, 2021, asserting that the matter should be dismissed
on the basis of judicial immunity, among other reasons, and the motion is fully briefed. See Defs.’
Mot. to Dismiss [Dkt. # 18]; Defs.’ Supp. Mem. [Dkt. # 18-1] (“Defs.’ Mem.”); Pl.’s Opp. to
Defs.’ Mot. to Dismiss [Dkt. # 21]; Defs.’ Reply in Supp. of Mot. to Dismiss [Dkt. # 25].
STANDARD OF REVIEW
“To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In Iqbal,
the Supreme Court reiterated the two principles underlying its decision in Twombly: “First, the
tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable
to legal conclusions.” Iqbal, 556 U.S. at 678. And “[s]econd, only a complaint that states a
plausible claim for relief survives a motion to dismiss.” Id. at 679, citing Twombly, 550 U.S.
at 556.
A claim is facially plausible when the pleaded factual content “allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.
at 678. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more
than a sheer possibility that a defendant has acted unlawfully.” Id. A pleading must offer more
than “labels and conclusions” or a “formulaic recitation of the elements of a cause of action,” id.,
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quoting Twombly, 550 U.S. at 555, and “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id.
In evaluating a motion to dismiss under Rule 12(b)(6), a court must “treat the complaint’s
factual allegations as true and must grant plaintiff ‘the benefit of all inferences that can be derived
from the facts alleged.’” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000)
(internal citation omitted), quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979);
see also Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011), quoting Thomas v.
Principi, 394 F.3d 970, 972 (D.C. Cir. 2005). Therefore, when considering a motion to dismiss, a
court must construe a complaint liberally in the plaintiff’s favor. Kowal v. MCI Commc’ns Corp.,
16 F.3d 1271, 1276 (D.C. Cir. 1994). Nevertheless, the court need not accept inferences drawn by
the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the
court accept plaintiff’s legal conclusions. Id.; see also Browning v. Clinton, 292 F.3d 235, 242
(D.C. Cir. 2002). In ruling upon a motion to dismiss for failure to state a claim, a court may
ordinarily consider only “the facts alleged in the complaint, documents attached as exhibits or
incorporated by reference in the complaint, and matters about which the Court may take judicial
notice.” Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002), citing EEOC v. St.
Francis Xavier Parochial Sch., 117 F.3d 621, 624–25 (D.C. Cir. 1997).
ANALYSIS
I. Plaintiff’s action is barred by section 1983.
Section 1983 enables individuals to bring a civil action against state officials acting under
the color of state law, including officials of the District of Columbia, for violations of the
Constitution, but it contains a significant exception:
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in any action brought against a judicial officer for an act or omission taken
in such officer’s judicial capacity, injunctive relief shall not be granted
unless a declaratory decree was violated or declaratory relief was
unavailable.
42 U.S.C. § 1983 (1996).
Notwithstanding this provision, plaintiff maintains that his section 1983 action for
injunctive relief is not barred by judicial immunity. See Pl.’s Resp. at 8–10 (arguing that “based
on well-settled and established case law,” judicial immunity does not preclude this case because it
seeks only injunctive and declaratory relief, and not monetary damages). Citing a Supreme Court
decision from 1984, plaintiff submits that “judicial immunity is not a bar to prospective injunctive
relief against [judicial officers] acting in [their] judicial capacity.” Id., quoting Pulliam v. Allen,
466 U.S. 522, 541–42 (1984); see also Wagshal v. Foster, 28 F.3d 1249, 1251 (D.C. Cir. 1994). 1
But this argument ignores the statutory immunity Congress accorded judges after Pulliam and
Wagshal.
Pulliam involved a section 1983 action against a state magistrate judge who regularly jailed
individuals arrested for non-jailable misdemeanors when they were unable to meet the bail
obligations she imposed. 466 U.S. at 525–26. The district court enjoined what it found to be the
magistrate judge’s practice of jailing non-incarcerable defendants for failing to make bail, and it
granted attorneys’ fees to plaintiffs. Id. at 526–27. The matter reached the Supreme Court, which
1 Plaintiff does not contend that defendants were not acting in their judicial capacity. See
Pl.’s Resp. at 8–12. Nor could he. Defendants issued the temporary suspension order pursuant to
their authority to establish rules governing the “admission of persons to membership in its bar, and
their censure, suspension, and expulsion.” D.C. Code § 11-2501(a). The application of those rules
in plaintiff’s disciplinary proceeding is a function only performed by judges of the DCCA. See
id.; D.C. Bar Rule XI § 9(g); Mireles v. Waco, 502 U.S. 9, 12 (1991) (the inquiry into judicial
capacity asks “whether it is a function normally performed by a judge . . . to the expectations of
the parties”); Stump v. Sparkman, 435 U.S. 349, 362 (1978) (same).
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analyzed the common law to determine whether the judge was immune. Id. at 541–42; see id. at
529–538 (analyzing common law history from the King’s use of prerogative writs through modern
day jurisprudence). It concluded that “at least in the view of the common law, there was no
inconsistency between a principle of immunity that protected judicial authority from ‘a wide,
wasting, and harassing persecution,’ and the availability of collateral injunctive relief in
exceptional cases.” Id. at 536 (internal citation omitted). It held that “Congress intended § 1983 to
be an independent protection for federal rights and [found] nothing to suggest that Congress
intended to expand the common-law doctrine of judicial immunity to insulate state judges
completely from federal collateral review.” Id. at 541. Notably, though, the Court added that “it
is for Congress, not this Court, to determine whether and to what extent to abrogate the judiciary’s
common-law immunity.” Id. at 543.
In 1996, Congress weighed in, enacting the Federal Courts Improvement Act (“FCIA”) to
amend section 1983. Pub. L. No. 104-317, § 309(c), 110 Stat. 3847, 3853 (codified at 42 U.S.C.
§ 1983); see S. Rep. No. 104–366, at 36–37 (1996) (explaining that Congress sought to “restore[ ]
the doctrine of judicial immunity to the status it occupied prior to . . . Pulliam,” which “weakened
judicial immunity protections”). Section 1983 “as amended in 1996 by the Federal Courts
Improvement Act, explicitly immunizes judicial officers against suits for injunctive relief.” Roth
v. King, 449 F.3d 1272, 1286 (D.C. Cir. 2006) (finding that District of Columbia Superior Court
judges, who established a system for appointing attorneys eligible to receive compensation under
Criminal Justice Act in juvenile delinquency matters, were immune from section 1983 suit for
injunctive relief related to those acts); Moore v. Urguhart, 899 F.3d 1094, 1104 (9th Cir. 2018)
(“Section 1983 (as amended by the FCIA) . . . provides judicial officers immunity from injunctive
relief even when the common law would not.”); Ray v. Jud. Corr. Servs., Inc., No. 12-02819,
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2014 WL 5090723, at *3 (N.D. Ala. Oct. 9, 2014) (“It cannot be seriously disputed that, after the
FCIA, judicial immunity typically bars claims for prospective injunctive relief against judicial
officers acting in their judicial capacity. . . . The abrogation of Pulliam has been widely
recognized.”).
Plaintiff ignores the distinction between the statutory judicial immunity that Congress
created when it amended section 1983 and the common law judicial immunity at issue in Pulliam.
He directs the Court to Smith v. Scalia, 44 F. Supp. 3d 28 (D.D.C. 2014), which cited Pulliam
and Wagshal, and he argues that it stands for the principle that the defendants are not
immune. Pl.’s Resp. at 9. But plaintiff misunderstands that district court opinion. Smith did not
involve claims against state court judges; it involved claims against federal judges, and section
1983 was inapplicable. 44 F. Supp. 3d at 40. Therefore, the court treated the claims as if they
were brought under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), 2 and cited
Pulliam when it observed, before dismissing the case on other grounds, that judicial officers acting
in their judicial capacity are not immune under common law from claims seeking prospective
injunctive relief. Smith, 44 F. Supp. 3d at 42–43.
Plaintiff also argues that the language in section 1983 that states that judges are immune
“unless a declaratory decree was violated or declaratory relief was unavailable” saves his
complaint from dismissal. He contends that “declaratory relief [is] unavailable” to him because
his “requests for rehearing and then en banc [were] his only chance at declaratory relief,” and he
“had no other remedy at law but to file this Complaint for injunctive relief.” Pl.’s Resp. at 10–11.
But as another court in this district held in Hoai v. Superior Ct. of Dist. of Columbia, 539 F. Supp.
2 Bivens authorizes individuals to bring civil actions for violations of constitutional rights
against federal officials acting under color of federal law. See 403 U.S. 388.
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2d 432, 435 (D.D.C. 2008), “failure to get one’s desired decisions in our local courts does not
constitute such ‘unavailability’ and the suit must therefore be dismissed.” See also Roth, 449 F.3d
at 1286–87 (finding that declaratory relief was not “unavailable” in a challenge to D.C. Superior
Court judges’ decisions regarding CJA appointments and compensation). “A declaratory
judgment is meant to define the legal rights and obligations of the parties in anticipation of some
future conduct, not simply to proclaim liability for a past act.” Just. Network Inc. v. Craighead
Cty., 931 F.3d 753, 764 (8th Cir. 2019), quoting Lawrence v. Kuenhold, 271 F. App’x 763, 766
n.6 (10th Cir. 2008).
Here, the lawsuit only attacks past actions of the defendants. See Compl. ¶¶ 26–35
(challenging defendants’ January 7, 2021 interim suspension order, denial of his emergency
motion to vacate the temporary suspension, rejection of his petition for rehearing en banc, and the
court’s handling of his attorney’s motion to appear pro hac vice and other filings). Asking the
Court to declare defendants’ past actions to be unconstitutional and to enjoin them does not
transform his claims into an action for “declaratory relief” within the meaning of the section 1983
exception. See Just. Network, 931 F.3d at 764 (finding that the plaintiff was not entitled to relief
under section 1983 when he asked the court to invalidate the past actions of the judges and holding
that “declaratory relief is limited to prospective declaratory relief”).
Further, plaintiff is not without legal recourse, as he asserts. Pl.’s Resp. at 11. He may
appeal a final decision of the DCCA to the United States Supreme Court. See 28 U.S.C. § 1257
(providing for review by the Supreme Court of the constitutionality of final judgments or decrees
rendered by the highest court of a state, including the District of Columbia Court of Appeals);
William Penn Apartments v. Dist. of Columbia Ct. of Appeals, 39 F. Supp. 3d 11, 19 (D.D.C.
2014), citing JMM Corp. v. District of Columbia, 378 F.3d 1117, 1121 (D.C. Cir. 2004) (“The
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D.C. Court of Appeals’ decision . . . does not make declaratory relief unavailable because
[plaintiff] could have petitioned for a writ of certiorari in the Supreme Court under 28 U.S.C.
§ 1257.”).
II. The Bivens cases that plaintiff cites are in inapposite.
Finally, plaintiff cites three cases involving claims under Bivens v. Six Unknown Named
Agents, 403 U.S. 388 (1971). Plaintiff argues that the cases are analogous because they show
“there is simply no ‘absolute immunity,’ whether judicial or otherwise, when government officials
or judges violate an individual’s constitutional rights.” Pl.’s Resp. at 9, n.2; see also id. at 11–12.
But that is beside the point. Plaintiff is not suing federal officials, and the cases plaintiff
cites did not rule on the basis of judicial immunity. In the first case, Hagan v. Coggins, the Fifth
Circuit held that the Bivens claims were appropriately dismissed and did not address judicial
immunity. No. 00-11272, 2001 WL 822687, at *1 (5th Cir. June 29, 2001) (per curium) (“Hagan’s
claims against [Chief Judge] Buchmeyer were dismissed on summary judgment, without a ruling
on the immunity issue.”). And the other two cases do not involve judicial immunity at all. See
Trulock v. Freeh, 275 F.3d 391 (4th Cir. 2001) (involving claims against FBI employees);
Navab-Safavi v. Broad. Bd. of Governors, 650 F. Supp. 2d 40, 46 (D.D.C. 2009), aff’d sub nom.
Navab-Safavi v. Glassman, 637 F.3d 311 (D.C. Cir. 2011) (action against the Broadcasting Board
of Governors and its officers).
Accordingly, based on the clear language of section 1983, the Court finds that defendants
are immune from plaintiff’s claims. 3
3 Judicial immunity extends to court clerks “who perform tasks that are an integral part of
the judicial process.” Reddy v. O’Connor, 520 F. Supp. 2d 124, 130 (D.D.C. 2007) (internal
quotation marks omitted); Sindram v. Suda, 986 F.2d 1459, 1460 (D.C. Cir. 1993) (“[C]lerks, like
judges, are immune from damage suits for performance of tasks that are an integral part of the
judicial process.”).
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CONCLUSION
For the foregoing reasons, defendants’ motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) [Dkt. # 18] will be GRANTED, and plaintiff’s Motion for Preliminary
Injunction [Dkt. # 2] will be DENIED as moot.
AMY BERMAN JACKSON
United States District Judge
DATE: June 28, 2021
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