Albert v. Gonzalez

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 20, 2024
• Docket: 23-3322
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 20 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LENORE ALBERT, an individual, No. 23-3322 D.C. No. Plaintiff - Appellant, 8:23-cv-00635-FWS-JDE v. MEMORANDUM*

ROXANNE GONZALEZ; DOES, 1 through 10, inclusive,

Defendants - Appellees.

Appeal from the United States District Court for the Central District of California Fred W. Slaughter, District Judge, Presiding

Ms. LENORE L. ALBERT, Attorney, No. 24-3496 D.C. No. Petitioner - Appellant. 2:24-mc-00117-KJM MEMORANDUM*

Appeal from the United States District Court for the Eastern District of California Kimberly J. Mueller, District Judge, Presiding Submitted August 16, 2024**

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Pasadena, California

Before: BADE and FORREST, Circuit Judges, and CURIEL, District Judge.***

In Albert v. Gonzalez, No. 23-3322, Plaintiff-Appellant Lenore Albert,

appearing pro se, appeals an order from the Central District of California

dismissing her case alleging that Defendant-Appellee Roxanne Gonzalez, a clerk

for the Eastern District of California, committed various constitutional violations in

applying that court’s attorney discipline rules. In In re Albert, No. 24-3496, Albert

appeals an order from the Eastern District disbarring her from practicing before

that court. We have jurisdiction under 28 U.S.C. § 1291, see In re Corrinet, 645

F.3d 1141, 1143 (9th Cir. 2011), and we affirm.

A. Albert v. Gonzalez, No. 23-3322. Following two disciplinary

proceedings, Albert was suspended from practicing law in California from

February 14, 2018, to March 16, 2018, and from June 28, 2018, to February 21,

2021. See In re Albert, No. SBC-22-O-30348, 2024 WL 1231293, at *2 (Cal. Bar

Ct. Mar. 11, 2024). During her suspension, Albert filed several court documents in

the Eastern District that represented she was an attorney. See e.g., Kilgore v. Wells

Fargo Home Mortg., No. 1:12-cv-00899, Dkts. 67–70 (E.D. Cal. Aug. 18, 2019);

Avalos v. Gonzalez, No. 1:20-cv-01578, Dkt. 14 (E.D. Cal. Feb. 19, 2021). She

*** The Honorable Gonzalo P. Curiel, United States District Judge for the Southern District of California, sitting by designation.

2 23-3322; 24-3496 also applied for a certificate of good standing from the Eastern District’s clerk’s

office. Gonzalez processed this application, noticed that Albert was listed as

“inactive” on the California State Bar’s website, and changed Albert’s standing to

practice before the Eastern District from “active” to “inactive” pursuant to Eastern

District Local Rules 180(c) and 184(b), which impose automatic reciprocal

suspensions. In May 2021, the Eastern District reinstated Albert to “active” status

after her California suspension was lifted.

Albert then sued Gonzalez in the Central District of California for

(1) declaratory relief that Local Rules 180 and 184 were unconstitutional as

applied to her; (2) an injunction preventing Gonalez from changing Albert’s status

from “active” to “inactive” without giving Albert an opportunity to be heard and an

appealable order; (3) a violation of her First and Fourteenth Amendment rights

under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,

403 U.S. 388 (1971); and (4) a violation of California’s Unfair Competition Law

(UCL) for engaging in an “unlawful, unfair, or fraudulent” business act or practice.

Gonzalez moved to dismiss the complaint, and the district court granted that

motion. We review de novo a district court’s decision to dismiss for failure to state

a claim, “viewing factual allegations in the complaint as true and construing the

pleadings in the light most favorable to the nonmoving party.” Magassa v.

Mayorkas, 52 F.4th 1156, 1161 (9th Cir. 2022), cert. denied, 144 S. Ct. 279

3 23-3322; 24-3496 (2023). We conclude that the district court did not err in dismissing Albert’s

complaint.

1. Albert first argues that the district court erred by applying

Younger abstention to her claims for declaratory and injunctive relief. We do not

consider this argument because we conclude that Albert’s claims seeking

declaratory and injunctive relief fail. For the reasons explained in Subpart B of

this disposition, the Eastern District’s application of its local rules to Albert did not

violate her due process rights. Thus, Albert’s claims for declaratory and injunctive

relief based on the alleged unconstitutionality of those same local rules are

foreclosed. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998)

(recognizing dismissal for lack of subject matter jurisdiction is proper where a

“claim is so insubstantial, implausible, foreclosed by prior decisions of this Court,

or otherwise completely devoid of merit as not to involve a federal controversy”

(internal quotation marks and citation omitted)). We therefore affirm the district

court’s dismissal of Albert’s claims for declaratory and injunctive relief, albeit on

different grounds.

2. Albert next argues that the district court erred by dismissing her

Bivens claim. When analyzing Bivens claims, we recognize that “most claims

seeking to extend Bivens are dead on arrival,” but still “apply a two-step

framework, asking first whether the claim arises in a new context, and second, if

4 23-3322; 24-3496 so, whether other special factors counsel hesitation against extending Bivens.”

Stanard v. Dy, 88 F.4th 811, 816 (9th Cir. 2023) (internal quotation marks and

citations omitted).

The parties agree that Albert’s claim arises in a new Bivens context.

Albert’s argument is solely that the district court erred at step two. At step two, we

do not “independently assess the costs and benefits of implying a cause of action.”

Egbert v. Boule, 596 U.S. 482, 496 (2022). Instead, we ask only “whether there is

any rational reason (even one) to think that Congress is better suited to weigh the

costs and benefits of allowing a damages action to proceed.” Id. (internal

quotation marks and citation omitted). While only one rational reason is needed,

multiple rational reasons counsel against implying a Bivens action here, including

that Congress is in a better position to assess the social costs of litigation that

would potentially inhibit public officials from performing their duties, see id. at

499, and that Albert had alternative ways to challenge the decision to change her

admission status from active to inactive, see id. at 497–98; Mejia v. Miller, 61

F.4th 663, 669 (9th Cir. 2023) (noting that the plaintiff had “alternative

administrative remedies”), including by “written motion to the Chief Judge” of the

Eastern District of California. E.D. Cal. L.R. 184(b). Thus, the district court did

not err in dismissing her Bivens claim.

5 23-3322; 24-3496 3. Albert next challenges the district court’s holding that Gonzalez

had absolute quasi-judicial immunity from Albert’s UCL and Bivens claims. We

conclude that Gonzalez, who served as the Operations Supervisor for the Fresno

Division of the Eastern District of California, was performing a ministerial action

integral to the judicial function when she followed the district’s local rules and

changed Albert’s status to inactive. See In re Castillo, 297 F.3d 940, 952 (9th Cir.

2002), as amended, (Sept. 6, 2002); E.D. Cal. L.R. 184(b). Because the Bivens

claim and the UCL claim alleged that Gonzalez was liable for that action, the

district court properly dismissed these claims.

4. The district court did not abuse its discretion in denying Albert

leave to amend. See Garmon v. County of Los Angeles, 828 F.3d 837, 842 (9th

Cir. 2016). Albert contends that because she incorrectly pleaded her Bivens claim

as a Fourteenth Amendment claim, rather than a Fifth Amendment claim, she

could “fix subject matter jurisdiction.” But amendment of the Bivens claim would

be futile because, despite Albert’s inartful pleading, the district court analyzed her

claims “under the Fifth, not Fourteenth, Amendment because legal conclusions in a

complaint are not controlling.” We do not consider Albert’s alternative theories

for amending her complaint because she advances them for the first time on

appeal. See Consumer Fin. Prot. Bureau v. Aria, 54 F.4th 1168, 1173 (9th Cir.

2022) (“Because [the plaintiff] did not adequately raise these arguments to

6 23-3322; 24-3496 preserve them below, he has forfeited them.”); One Indus., LLC v. Jim O’Neal

Distrib., Inc., 578 F.3d 1154, 1158 (9th Cir. 2009) (“A party normally may not

press an argument on appeal that it failed to raise in the district court.”).

B. In re Albert, No. 24-3496. In a third disciplinary proceeding, the

California State Bar Court Review Department (the Review Department)

recommended that Albert be disbarred and placed her on involuntary inactive

status. See In re Albert, 2024 WL 1231293. Albert notified the Eastern District of

this suspension and, as permitted by the court’s local rules, asked the district court

for a show cause order “on the grounds that [she] believe[d] that a reciprocal

suspension or disbarment is not warranted.” Following Local Rule 184(b)1, the

Eastern District automatically suspended Albert and, after she had an opportunity

to show cause, disbarred her from practicing before that court. Albert appeals both

the automatic suspension and the ultimate disbarment order.

1. Albert first argues that that the district court violated due

process by automatically suspending her under Rule 184(b) without conducting an

1 That rule provides that if an attorney has a change in status that would make her “ineligible for membership in the Bar of this Court or ineligible to practice in this Court,” then “the attorney shall forthwith be suspended from practice before this Court without any order of Court until becoming eligible to practice.” E.D. Cal. L.R. 184(b). “Upon written motion to the Chief Judge, an attorney shall be afforded an opportunity to show cause why the attorney should not be suspended or disbarred from practice in this Court.” Id.

7 23-3322; 24-3496 independent examination of the state record. “A district court’s failure to conduct

adequate review of a state bar disciplinary procedure is a question of law reviewed

de novo.” In re North, 383 F.3d 871, 874 (9th Cir. 2004). We conclude that Rule

184(b)’s automatic temporary suspension, which afforded Albert an opportunity to

challenge that suspension, did not violate her due process rights.

It is the attorney’s “burden to demonstrate, by clear and convincing

evidence, that one of the Selling [v. Radford, 243 U.S. 46, 50–51 (1917)] elements

precludes reciprocal discipline.” In re Kramer, 282 F.3d 721, 724 (9th Cir. 2002).

Independent examination of the record is not necessary when an attorney

“concedes that the action of the [state] courts satisfies Selling and its progeny.” In

re Kramer, 193 F.3d 1131, 1133 (9th Cir. 1999). Here, Albert has not made that

concession, but she also has not made any showing to meet her burden to

demonstrate a due process violation by clear and convincing evidence. See In re

Kramer, 282 F.3d at 724. At best, she has offered bare, conclusory allegations.

Accordingly, we conclude that the district court did not have to independently

review the state court record because the local rules provided Albert with notice of

the automatic suspension and an opportunity to challenge it.2 See E.D. Cal. L.R.

2 Albert calls for improvements to “[t]he practicalities of the system of notifying the Eastern District of a state court suspension.” Even if we construe this as a claim that the current procedures violate due process, Albert does not cite any legal authority for her argument, so it fails. See Blumenkron v. Multnomah County,

8 23-3322; 24-3496 184(b) (“Upon written motion to the Chief Judge, an attorney shall be afforded an

opportunity to show cause why the attorney should not be suspended or disbarred

from practice in this Court.”); In re Corrinet, 645 F.3d 1141, 1145 (9th Cir. 2011)

(Attorneys “subject to disbarment [are] entitled to due process, including notice

and an opportunity to be heard.”).

We likewise reject Albert’s contention that imposing discipline without a

“State Court Order of Disbarment” lacked “due process” because only the

California Supreme Court can issue an order of disbarment. Albert’s placement on

inactive status by the Review Department made her ineligible for admission to

practice before the Eastern District, see E.D. Cal. L.R. 180(a)(1), and that change

triggered the automatic suspension provision in Rule 184(b).

In short, we conclude the district court did not violate Albert’s due process

rights by applying the procedure set forth in Rule 184(b).

2. Albert next argues that the district court abused its discretion by

reciprocally disbarring her. We disagree.

An attorney challenging a federal court’s imposition of reciprocal discipline

based on a state bar’s disciplinary adjudication must show, by clear and convincing

91 F.4th 1303, 1317 (9th Cir. 2024) (concluding the plaintiffs abandoned their claims on appeal because their argument was “vague, unsupported by any citations to case authority, and untethered to the applicable legal standards”).

9 23-3322; 24-3496 evidence, that the state court record revealed: “(1) a deprivation of due process;

(2) insufficient proof of misconduct; or (3) grave injustice that would result from

the imposition of such discipline.” In re Kramer, 282 F.3d at 724 (citing Selling,

243 U.S. at 50–51) (setting forth three Selling elements). We review the district

court’s disbarment order for abuse of discretion. In re Corrinet, 645 F.3d at 1145.

In the California State Bar proceedings, Albert was charged with a violation

of California Rule of Professional Conduct 3.4(f)—that she “knowingly

disobey[ed] [her] obligation under” the Eastern District’s local rules to notify the

Eastern District of her suspension. In re Albert, 2024 WL 1231293, at *7–8.

Albert was also charged with the “unauthorized practice of law in another

jurisdiction” in violation of California Business and Professional Code § 6068(a)

and California Rule of Professional Conduct 5.5(a)(1) by holding herself out as a

licensed attorney entitled to practice law in California in two cases before the

Eastern District. Id. at *9.

Albert first contends that the California State Bar proceedings deprived her

of due process and that the district court erred by “relying on [a] State Bar

recommendation which d[id] not consider” her argument that the Eastern District’s

“automatic suspension” was unconstitutional. This argument fails because the

constitutionality of the Eastern District’s automatic suspension provision in Rule

184(b) is irrelevant to the two claims the state bar adjudicated. The local rule

10 23-3322; 24-3496 providing for automatic suspension does not inform whether Albert provided

proper notice of her state discipline to the Eastern District or improperly held

herself out as an attorney.3

Albert next argues that there was insufficient proof that she failed to give

prompt notice to the Eastern District of her change in status. But she fails to point

to evidence showing that she notified the Eastern District of her August 28, 2019,

suspension before March 3, 2021. She only identifies filings that occurred before

her August 28, 2019 suspension. Thus, the district court did not abuse its

discretion when it concluded these notices failed to meet Rule 184(b)’s

requirement that an attorney “promptly notify the Court of any disciplinary

action . . . that would make the attorney ineligible for membership in the Bar of

this Court.”

Finally, Albert argues that the punishment recommended by the Review

Department in the state bar’s third disciplinary proceeding “was so ill-fitted” to her

3 Albert also argues that the Eastern District violated due process by disbarring her when the Review Department had only recommended disbarment and ordered her “involuntar[ily] inactive.” This claim fails because Albert does not explain how she was prejudiced by the district court’s failure to wait for the final order. See United States v. Lovasco, 431 U.S. 783, 790 (1977) (“[P]roof of prejudice is generally a necessary . . . element of a due process claim.”). Furthermore, shortly after the Eastern District ordered her disbarred, the California Supreme Court ordered Albert’s disbarment. In re Albert, Case No. SBC-22-O- 30348 (Cal. June 17, 2024), https://discipline.calbar.ca.gov/portal/Home/. Thus, any error was harmless.

11 23-3322; 24-3496 “misconduct” that the Eastern District’s reciprocal disbarment resulted in “grave

injustice” because it was based on her suspensions imposed in her two prior

disciplinary proceedings. She also contends that the district court “ignored [a]

course of events” where the Ninth Circuit Bankruptcy Appellate Panel reversed

dismissal of a civil claim. These arguments do not establish a “grave injustice.”

First, Albert ignores that this third disciplinary proceeding found her culpable on

new charges. And second, Albert’s pending civil claim was irrelevant to whether

her punishment imposed was a “grave injustice.” Because Albert’s arguments are

irrelevant, and because of her history of inappropriate behavior and ethical

violations, we hold that the district court did not abuse its discretion in concluding

that the punishment imposed did not result in grave injustice. See In re Albert,

2024 WL 1231293, at *19 (recounting Albert’s lengthy disciplinary history).

Albert has not demonstrated by clear and convincing evidence that

reciprocal disbarment is inappropriate under any of the Selling elements.

Therefore, the district court did not abuse its discretion by reciprocally disbarring

her.4

AFFIRMED.

4 We deny Albert’s motions for judicial notice (No. 23-3322, Dkts. 33, 44; No. 24-3496, Dkt. 13) because the documents are “not relevant to the disposition of this appeal.” Cuellar v. Joyce, 596 F.3d 505, 512 (9th Cir. 2010).

12 23-3322; 24-3496