Larry Klayman v. Hamilton Fox, III ( 2020 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 19-7099 September Term, 2020
FILED ON: OCTOBER 6, 2020
LARRY ELLIOTT KLAYMAN, AN INDIVIDUAL,
APPELLANT
v.
ESTHER LIM, IN HER INDIVIDUAL CAPACITY, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cv-02209)
No. 19-7100
LARRY ELLIOTT KLAYMAN, AN INDIVIDUAL,
APPELLANT
v.
HAMILTON P. FOX, III, IN HIS INDIVIDUAL CAPACITY, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cv-01579)
Before: HENDERSON, MILLETT and PILLARD, Circuit Judges.
JUDGMENT
These two appeals were considered on the record from the United States District Court for
the District of Columbia and on the briefs of the parties. See FED. R. APP. P. 34(a)(2); D.C. CIR.
R. 34(j). 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 United States District Court for
the District of Columbia in both cases be AFFIRMED.
In these two related cases, attorney Larry Klayman challenges three professional
disciplinary proceedings that the D.C. Office of Disciplinary Counsel (Disciplinary Counsel or
ODC) initiated against him—the Judicial Watch matter, the Sataki matter, and the Bundy matter.
In Klayman v. Fox, he sued the Disciplinary Counsel and four ODC employees, challenging their
prosecution of two disciplinary proceedings against him: one for representing individuals in a suit
against the organization he had previously served as General Counsel (the Judicial Watch matter),
and the other for letting his personal interests interfere with his representation of a client (the Sataki
matter). In Klayman v. Lim, he sued the same defendants plus the D.C. Bar and its President,
challenging Disciplinary Counsel’s prosecution of a third disciplinary charge—in which Klayman
is accused of making misleading or incomplete representations to courts within the Ninth Circuit
(the Bundy matter)—and the D.C. Bar’s failure to stop Disciplinary Counsel’s allegedly selective
pursuit of the three matters. The district court dismissed all claims in both cases in two separate
orders. See Klayman v. Fox, 2019 WL 2396538 (D.D.C. June 5, 2019); Klayman v. Lim, 2019 WL
2396539 (D.D.C. June 5, 2019).
On appeal, Klayman contests the district court’s determinations (1) that the individual ODC
officials are absolutely immune from suit for damages; (2) to abstain from adjudicating Klayman’s
challenges insofar as they address matters in ongoing D.C. disciplinary proceedings; and (3) that
Klayman failed to state a claim against the D.C. Bar defendants. We have jurisdiction under
28 U.S.C. § 1291 and our review is de novo. See Jackson v. Office of the Mayor, 911 F.3d 1167,
1170 (D.C. Cir. 2018). All three challenges fail.
First, the district court was correct that the individual Disciplinary Counsel employees are
immune from liability for damages on federal- or D.C.-law claims arising from their official
actions of initiating and adjudicating disciplinary charges. D.C. officials charged with disciplining
individuals engaged in the unauthorized practice of law are “entitled to the protection of absolute
immunity.” Simons v. Bellinger, 643 F.2d 774, 782 (D.C. Cir. 1980); see also In re Banks, 805
A.2d 990, 1001 (D.C. 2002) (applying Simons to claims arising under D.C. law); D.C. BAR R. XI,
§ 19(a). Klayman agrees that Disciplinary Counsel officials enjoy absolute immunity for their acts
in performance of their “official duties,” but contends that absolute immunity cannot protect them
against suits arising from pursuit of “meritless” charges in “bad faith.” Klayman Fox Br. 14-15;
accord Klayman Lim Br. 15. Yet absolute immunity, unlike “qualified or good-faith immunity,”
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provides Disciplinary Counsel attorneys prosecuting misconduct charges with “complete
protection from suit.” See Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). Whether or not they
had good reason to pursue charges, Disciplinary Counsel’s inquiry into Klayman’s affairs and
decision to seek disciplinary action “was plainly within the general matters . . . committed to
[their] discretion” under D.C. law, entitling ODC employees to absolute immunity from the
damages claims. Simons, 643 F.2d at 786.
Second, Klayman fails to show that the district court erred by abstaining under Younger v.
Harris, 401 U.S. 37 (1971), from deciding his claims for injunctive relief against ongoing
proceedings within the District of Columbia’s system of attorney discipline. Federal-court
abstention from interference with pending state proceedings (including D.C. proceedings) is
appropriate “so long as there is no showing of bad faith, harassment, or some other extraordinary
circumstance” on the part of the state “that would make abstention inappropriate.” Middlesex Cty.
Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 435 (1982); see also JMM Corp. v. District
of Columbia, 378 F.3d 1117, 1125 (D.C. Cir. 2004) (holding that Younger is applicable to D.C.
proceedings). Klayman does not dispute there are ongoing disciplinary proceedings that would
ordinarily lead to federal-court abstention, 1 see Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 81
(2013) (discussing Middlesex, 457 U.S. at 433-35), but contends that Disciplinary Counsel acted
with sufficient “bad faith” to make abstention inappropriate in this case. Klayman Lim Br. 11-14;
see also Klayman Fox Br. 10-14.
The facts Klayman alleged—that he and the ODC defendants had diametrically opposed
political affiliations, that he had several heated exchanges with some of the defendants, and that
the Florida and Pennsylvania bars independently decided not to pursue the Sataki matter—do not
amount to “extraordinary circumstances” justifying federal intervention. Middlesex, 457 U.S.
at 437. Klayman has made no “substantial,” nonconclusory allegations that the Disciplinary
Counsel defendants have pursued the matters “with[out] any expectation of” sustaining the charges
against him. Younger, 401 U.S. at 48 (quoting Dombrowski v. Pfister, 380 U.S. 479, 482 (1965)).
Indeed, the Ninth Circuit’s portrayal of the facts underlying the Bundy matter reinforces that
Disciplinary Counsel’s decision to proceed was reasonable and bore no indicia of bad faith. See
In re Bundy, 852 F.3d 945, 951 (9th Cir. 2017) (per curiam) (“At best, Klayman has shown such
a casual acquaintance with the facts that he is guilty of at least gross negligence in his
representations to this court.”). We therefore conclude that no exception to Younger abstention
applies.
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After the parties fully briefed this appeal, the D.C. Court of Appeals resolved the Judicial Watch
disciplinary proceeding. See In re Klayman, 228 A.3d 713 (D.C. 2020) (per curiam). Because there is no
longer any ongoing disciplinary proceeding from which to abstain, we dismiss as moot Klayman’s claim
for injunctive relief against the disciplinary proceedings in that matter. See Wood v. Several Unknown
Metro. Police Officers, 835 F.2d 340, 341-42 (D.C. Cir. 1987) (holding that the plaintiff’s challenge to
the district court’s invocation of the Younger doctrine was moot where the D.C. courts had since resolved
their proceedings).
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Third, the district court correctly determined that Klayman failed to state a claim against
the D.C. Bar and its President, whom he accuses of “refus[ing] to act” to prevent Disciplinary
Counsel’s alleged abuse. Klayman Lim Br. 16. Klayman points to nothing plausibly suggesting
that the D.C. Bar defendants had any duty to act on his complaints against ODC attorneys or
otherwise to intercede on his behalf. To the contrary, not only do the D.C. Bar’s rules make clear
that “all assistants and employees of [ODC] . . . shall be immune from disciplinary complaint,”
D.C. Bar R. XI, § 19(a), but Disciplinary Counsel attorneys are accountable to the D.C. Board on
Professional Responsibility, not the D.C. Bar or its President, see id. § 4(e). As the district court
held, Klayman also does not plausibly allege that an unlawful motive lay behind the D.C. Bar
defendants’ decision not to intercede in his behalf. See Lim, 2019 WL 2396539, at *5.
In addition to contesting the dismissal of his claims, Klayman also challenges the denial of
his post-dismissal motion for recusal of the district judge under 28 U.S.C. §§ 144 and 455. See
Klayman v. Lim, 2019 WL 3752774 (D.D.C. Aug. 8, 2019); Klayman v. Fox, 2019 WL 3752773
(D.D.C. Aug. 8, 2019). Klayman’s motion for recusal reprises the same ground pressed in his
unsuccessful pre-dismissal recusal requests—alleging that the district judge’s preconfirmation
partisan and professional activities suggest his political beliefs align with Disciplinary Counsel’s
and against Klayman’s.
Whether evaluated under section 144 or section 455, Klayman’s motion for recusal is
untimely and meritless. A motion for recusal under section 144 must be filed “not less than ten
days before the beginning of the term at which the proceeding is to be heard, [unless] good cause
shall be shown,” 28 U.S.C. § 144, yet Klayman impermissibly waited without any good cause
through almost a year of litigation before invoking section 144, see SEC v. Loving Spirit Found.
Inc., 392 F.3d 486, 492-93 (D.C. Cir. 2004). Section 455—unlike section 144—“contains no
express timeliness provision,” but is similarly understood to require litigants to “raise the
disqualification issue within a reasonable time after the grounds for it are known.” United States
v. Barrett, 111 F.3d 947, 951 (D.C. Cir. 1997) (collecting cases). Here, Klayman knew about the
district judge’s pre-judicial background at the outset of these cases but delayed moving for recusal
until after he knew how the judge would rule on the merits—raising the very specter of
gamesmanship that the timeliness requirement is designed to prevent. See Loving Spirit, 392 F.3d
at 492-93; Barrett, 111 F.3d at 951-52. Even had the motion been timely filed, on its merits “[t]he
fact of past political activity alone will rarely require recusal, and we conclude it does not do so
here.” Higganbotham v. Oklahoma ex rel. Okla. Transp. Comm’n, 328 F.3d 638, 645 (10th Cir.
2003).
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For all of the foregoing reasons, we affirm the district court’s judgment in both cases.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is
directed to withhold issuance of the mandate herein until seven days after resolution of any timely
petition for rehearing or petition for rehearing en banc. See FED. R. APP. P. 41(b); D.C. CIR.
R. 41(a)(1).
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Daniel J. Reidy
Deputy Clerk
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