YELVERTON v. FOX
Filing
45
MEMORANDUM OPINION accompanying Final Order 44 . Signed by Chief Judge Richard W. Roberts on 11/1/2013. (DCL)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_____________________________
)
STEPHEN THOMAS YELVERTON,
)
)
Plaintiff,
)
)
v.
)
Civil Action No. 13-314 (RWR)
)
HAMILTON P. FOX, III,
)
)
Defendant.
)
_____________________________ )
MEMORANDUM OPINION
Plaintiff Stephen Yelverton has filed an amended four-count
complaint against Hamilton Fox, III, in his capacity as the
assistant bar counsel of the Office of Bar Counsel of the
District of Columbia Court of Appeals (“OBC”), seeking, among
other things, an injunction that would halt an ongoing
disciplinary proceeding before the District of Columbia Court of
Appeals’ Board of Professional Responsibility (“BPR”) that could
result in a temporary suspension of Yelverton’s ability to
practice law in the District of Columbia.
The defendant has
moved to dismiss or for summary judgment, arguing that, among
other things, this Court should exercise equitable restraint by
dismissing this case to avoid interfering with an ongoing
District of Columbia court proceeding.
Yelverton opposes, and
has moved for a preliminary injunction.
Because Fox has shown
that this Court should exercise equitable restraint by dismissing
Yelverton’s complaint, his motion to dismiss will be granted, and
-2Yelverton’s motion for a preliminary injunction will be denied as
moot.
BACKGROUND
Yelverton has been licensed to practice law in the District
of Columbia since April 1979.
First Am. Compl. ¶ 1.
Yelverton
represented a complaining witness in a criminal case brought in
D.C. Superior Court that resulted in an acquittal.
Id. ¶¶ 21-22.
Yelverton unsuccessfully moved for a mistrial, and in March 2010,
Yelverton filed a notice of appeal of the trial court’s order
denying his motion for a mistrial with the D.C. Court of Appeals.
That appeal was denied.
See Snow v. Carrick, Nos. 10-CO-384, 10-
CO-453, slip op. at 2 (D.C. June 7, 2010).
The D.C. Court of
Appeals referred Yelverton to the OBC for disciplinary
proceedings, stating:
The conduct of counsel for both appellant . . . and
cross-appellant . . . raise serious concerns as to the
propriety of the actions taken and the judgment
exercised by both and the matter is hereby referred to
Bar Counsel for investigation in that regard.
Snow, Nos. 10-CO-384, 10-CO-453, slip op. at 1.1
1
A helpful synopsis of the District of Columbia Court of
Appeals’ disciplinary process was set forth in Ford v. Tait, 163
F. Supp. 2d 57 (D.D.C. 2001):
The Office of the Bar Counsel is responsible for
processing complaints of attorney misconduct. After
the Bar Counsel investigates allegations of misconduct,
it initiates formal disciplinary proceedings and
prosecutes the case before a three-member Hearing
Committee appointed by the Board and in the presence of
the attorney charged with misconduct, i.e., the
-3In October 2011, Fox, as an assistant Bar Counsel, filed
with the OBC a Specification of Charges alleging that Yelverton
violated Rules of Professional Responsibility 1.1(a) (failing to
provide competent representation to a client), 1.1(b) (failing to
serve a client with the skill and care commensurate with that
generally afforded clients by other lawyers in similar matters),
3.1 (filing frivolous motions), and 8.4(d) (engaging in conduct
that seriously interfered with the administration of justice).
First Am. Compl. ¶ 4; Def.’s Mem. of P. & A. in Supp. of Mot. to
Dismiss (“Def.’s Mem.”) Ex. 1 (“Specification of Charges”).2
respondent. The respondent may choose to retain
counsel. The Hearing Committee then submits findings,
with the record of the proceedings, to the Board of
Professional Responsibility. The Board has the option
to schedule oral arguments and can affirm, modify,
remand, or dismiss the charges. The Board then submits
its recommendation and the full record to the D.C.
Court of Appeals. Upon request, the Court of Appeals
may also hear oral argument. Lastly, the Court of
Appeals issues a final order. The D.C. Court of
Appeals will adopt the Board’s recommendation, unless
it rules that the recommendation is unwarranted or
unsupported by “substantial evidence.”
Ford, 163 F. Supp. 2d at 59 (internal citations omitted).
2
Yelverton attempted to remove the disciplinary proceedings
to the United States District Court for the District of Columbia,
arguing in his notice of removal that, among other things,
removal was proper because the Specification of Charges
implicated his First Amendment right to access the courts, and
because Fox acted in bad faith and harassed Yelverton. See In Re
Yelverton, 11-mc-669 (UNA), Docket Entry #1, Notice of Removal,
¶¶ 2-4, 6-9 (D.D.C. November 8, 2011). However, his attempted
removal action was dismissed for lack of subject matter
jurisdiction and remanded to the BPR. Id., Docket Entry #3,
Order (D.D.C. December 6, 2011). Yelverton appealed that
-4The Ad Hoc Hearing Committee of the BPR held a hearing on
the complaint against Yelverton in February 2012, during which
both the OBC and Yelverton were offered an opportunity to present
evidence and argument.
First Am. Compl. ¶ 48.
In August 2012,
the Ad Hoc Committee issued a Report and Recommendation to the
full BPR.
Two of the three members of the board recommended
against imposing disciplinary sanctions against Yelverton.
Def.’s Mem., Ex. 2 at 23.
and Recommendation.
The OBC filed objections to the Report
In July 2013, the BPR issued its final
decision which found that Yelverton violated each of the Rules of
Professional Conduct listed in the Specification of Charges, and
recommending that Yelverton be suspended from the practice of law
for 90 days and be allowed reinstatement only after he
demonstrates his fitness to continue practicing law.
See Def.’s
Notice of Decision and Supplemental Mem. of P. & A. in Supp. of
Def.’s Mot. to Dismiss, Ex. 1 at 23-24.
On March 11, 2013, Yelverton filed his original complaint in
this action.
Yelverton filed the first amended complaint on
April 1, 2013, alleging four claims against Fox.3
Counts One and
decision, the U.S. Court of Appeals for the D.C. Circuit
dismissed the appeal for lack of jurisdiction, and the Supreme
Court denied certiorari. See In Re Yelverton, No. 12-7004 (D.C.
Cir. Jan. 30, 2012); Yelverton v. D.C. Office of Bar Counsel, 133
S. Ct. 332 (2012).
3
In addition to the original complaint and the first
amended complaint, Yelverton has moved for leave to amend the
complaint seven additional times, seeking to add additional
-5Three seek a declaratory judgment under 28 U.S.C. § 2201 that the
Specification of Charges is null and void because it had no basis
in fact or law and violated Yelverton’s rights under the First,
Fifth, and Fourteenth Amendments to the U.S. Constitution, and
that D.C. Bar Rule XI, Section 19(a) violates the D.C. Bar
members’ right to equal protection because the OBC can act with
immunity from violations of the Rules of Professional Conduct
while prosecuting violations of the Rules of Professional
Conduct.
First Am. Compl. ¶ 78.
Counts Two and Four seek
injunctive relief under 28 U.S.C. § 2283 to enjoin the
prosecution in the D.C. Court of Appeals of the Specification of
Charges against Yelverton, and to permanently enjoin the OBC from
giving its members immunity for violations of the Rules of
Professional Conduct while they prosecute alleged violations of
the Rules of Professional Responsibility.
Id.
Fox has moved
under Rule 12(b)(1) to dismiss the first amended complaint for
lack of subject matter jurisdiction, arguing that this Court
theories under which the District of Columbia Court of Appeals’
disciplinary proceedings are improper, and to certify a class
action. Leave to amend may be denied if the proposed amendments
are “futil[e].” Foman v. Davis, 371 U.S. 178, 182 (1962). “An
amended complaint is futile if it merely restates the same facts
as the original complaint in different terms, reasserts a claim
on which the court previously ruled, fails to state a legal
theory or could not withstand a motion to dismiss.” Pietsch v.
McKissack, 677 F. Supp. 2d 325, 328 (D.D.C. 2010). Because none
of Yelverton’s proposed amendments affects the analysis of
whether to exercise equitable restraint, the motions for leave to
amend will be denied as futile.
-6should exercise equitable restraint to avoid interfering with an
ongoing District of Columbia court proceeding.4
Yelverton
opposes.5
DISCUSSION
Under Rule 12(b)(1), a defendant may move to dismiss a
complaint for lack of subject-matter jurisdiction.
P. 12(b)(1).
Fed. R. Civ.
“‘Before a court may address the merits of a
complaint, it must assure that it has jurisdiction to entertain
the claims.’”
Ferguson v. Long, 885 F. Supp. 2d 294, 297 (D.D.C.
2012) (quoting Sierra Club v. U.S. Environmental Protection
Agency, 850 F. Supp. 2d 300, 302 (D.D.C. 2012) (internal
4
In light of the finding that principles of equitable
restraint justify dismissing this case, this opinion does not
address Fox’s alternative arguments that the case should be
dismissed for lack of subject matter jurisdiction based on res
judicata, or that the complaint should be dismissed for failure
to state a claim for which relief can be granted.
5
Yelverton has moved for a preliminary injunction staying
the effect of the BPR’s decision until the conclusion of this
action. Pl.’s Mot. for P. I. at 2. A plaintiff seeking a
preliminary injunction “carries the burden of persuasion by a
clear showing 1) of a substantial likelihood of success on the
merits, 2) of irreparable injury if the injunction is not issued,
3) that the injunction would not substantially injure other
interested parties, and 4) that the injunction is in the public
interest.” Diwan v. EMP Global, 841 F. Supp. 2d 246, 249 (D.D.C.
2012) (citing Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir.
2004)). Because Fox’s motion to dismiss will be granted,
Yelverton’s motion for a preliminary injunction will be denied as
moot. However, if Yelverton’s motion for a preliminary
injunction had been addressed on the merits, it would have been
denied, because Yelverton has neither shown that he has a
substantial likelihood of succeeding on the merits, nor shown
that a temporary suspension of his license to practice law would
constitute an irreparable injury.
-7quotation omitted)).
However, because Fox requests, under the
doctrine first elucidated in Younger v. Harris, 401 U.S. 37
(1971), an equitable restraint of jurisdiction to defer to
ongoing state court proceedings, the question of whether an
equitable restraint is warranted will be addressed first.6
See
Tenet v. Doe, 544 U.S. 1, 6 n.4 (2005).
A federal court applies a three-part test to determine
whether it should dismiss a case based on the Younger doctrine.
First, the court determines whether the ongoing state proceedings
are judicial in nature; second, the court determines whether the
state proceedings implicate important state interests; and third,
the court looks at whether the proceedings afford adequate
opportunity in which to raise the federal claims.
Ford v. Tait,
163 F. Supp. 2d 57, 62 (D.D.C. 2001) (citing Hoai v. Sun Ref.
& Mtkg. Co., 866 F.2d 1515, 1517 (D.C. Cir. 1989).
The federal
court must also consider whether the party opposing abstention
has made a sufficient showing of bad faith, harassment, or
exceptional circumstances that would warrant federal
jurisdiction.
Ford, 163 F. Supp. 2d at 62 (D.D.C. 2001) (further
stating that an “example of an exceptional circumstance is a
6
While the opinion in Younger mentions state court
proceedings only, the Younger doctrine applies to judicial
proceedings in the District of Columbia as well. JMM Corp. v.
District of Columbia, 378 F.3d 1117, 1120-25 (D.C. Cir. 2004).
-8statute that ‘flagrantly and patently’ violates a constitutional
provision”).
Ford held that the District of Columbia Court of Appeals’
disciplinary proceedings are judicial in nature, that they
implicate important District of Columbia interests, and that they
provide respondents with an adequate opportunity to raise
constitutional claims.
Ford, 163 F. Supp. 2d at 64-66.
Yelverton argues that the Younger equitable restraint doctrine is
not applicable here because the Ad Hoc Hearing Committee denied
his constitutional claims, Pl.’s Opp’n at 33-34, and because the
complaint alleges that Fox and the OBC created extraordinary
circumstances, acted in bad faith and harassed Yelverton in 2012,
by pressuring Yelverton’s client to file complaints against
Yelverton with the D.C. Bar, Pl.’s Opp’n at 27-28.
However, his
lack of success with the constitutional claims he raised before
the BPR’s Ad Hoc Committee does not mean that the entire
disciplinary process lacked the authority to consider
constitutional claims.
As Ford stated:
District of Columbia case law demonstrates that the
D.C. Court of Appeals can hear federal claims arising
from attorney disciplinary proceedings. For example,
the D.C. Court of Appeals recently considered an
attorney’s allegation that the Hearing Committee, the
Board of Professional Responsibility, and the Bar
Counsel violated his due process rights by denying a
request for a continuance and conducting a hearing in
his absence. See In re Chris H. Asher, 772 A.2d 1161,
1165 (D.C. 2001). In another case involving a
reciprocal disciplinary proceeding, the D.C. Court of
Appeals heard an argument that the disciplining state
-9violated the attorney’s right to free speech. See In
re Benjamin, 698 A.2d 434, 441 (D.C. 1997). Moreover,
the defendants note that the plaintiff will have an
opportunity to raise these claims before the D.C. Court
of Appeals.
Ford, 163 F. Supp. 2d at 66.
In addition, Yelverton does not
cite any authority that the conduct he alleges that Fox and the
OBC engaged in rises to the level of bad faith, harassment, or
extraordinary circumstances that would justify declining to
exercise equitable restraint.7
CONCLUSION
Because Fox has shown that equitable restraint should be
exercised to avoid interfering with ongoing District of Columbia
7
Yelverton moved to strike Fox’s reply brief in support of
his motion to dismiss for purportedly exceeding by three pages
the Local Civil Rules’ 25-page limit. The Federal Rules of Civil
Procedure provide that a court “may strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent,
or scandalous matter.” Fed. R. Civ. P. 12(f). Courts possess
significant discretion in deciding whether to grant motions to
strike. See Nwachukwu v. Rooney, 362 F. Supp. 2d 183, 189
(D.D.C. 2005). As such motions are generally disfavored, the
movant’s burden is heavy. Ascom Hasler Mailing Systems v.
United States Postal Serv., 815 F. Supp. 2d 148, 162 (D.D.C.
2011). The file containing Fox’s reply was indeed 28 pages.
However, the first page was a cover sheet, the second page was a
table of contents, and the final page was the Certificate of
Service. Excluding those pages, the memorandum itself is twentyfive pages long and therefore complies with Local Civil Rule
7(e). The Local Civil Rules’ page limitation refers to the
memorandum itself, not exhibits. See Taylor v. Mills, 892 F.
Supp. 2d 124, 149 (D.D.C. 2012) (denying motion to strike
defendant’s reply containing 21-page memorandum and 14-page
exhibit). Therefore, Yelverton’s motion to strike will be
denied.
-10judicial proceedings, his motion to dismiss will be granted.
appropriate final order accompanies this memorandum opinion.
SIGNED this 1st day of November, 2013.
/s/
RICHARD W. ROBERTS
Chief Judge
An
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