In Re Attorney Grievance Complaint Filed by Harris

Opinion

23-90040-am In re Attorney Grievance Complaint Filed by Harris

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 28th day of June, two thousand twenty-three.

PRESENT:

José A. Cabranes, Richard C. Wesley, Myrna Pérez,

Circuit Judges.

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In re Attorney Grievance Complaint 23-90040-am Filed by David Harris.

ORDER OF GRIEVANCE PANEL

_____________________________________

David Harris has submitted an attorney grievance complaint to this Court, alleging that an

attorney involved in Harris’s recent appeal, Harris v. American Accounting Association, 2d Cir. 22-811,

engaged in misconduct in the course of that appeal. The appeal concluded in April 2023, when this

Court affirmed the district court’s dismissal of Harris’s action but reversed the district court’s award

of attorney’s fees and costs against Harris. See Harris, 2d Cir. 22-811, doc. 141 (summary order).

Harris already moved in his appeal for sanctions to be imposed against the attorney now at

issue, which the merits panel denied. See id., doc. 137 (motion for sanctions), doc. 159 (order denying

sanctions). However, Harris now argues that this Court’s local rules require such sanctions motions

to be decided by this panel—the Court’s “Grievance Panel”—and not the merits panel. That

argument is based on this Court’s Local Rule 46.2(a), which states that “[a]ll attorney grievance and

disciplinary matters are initially handled by” the Grievance Panel.

Upon due consideration, it is hereby ORDERED that Harris’s request for an investigation by

this panel is DENIED and this disciplinary matter is terminated. First, the authority granted to the

Grievance Panel under Local Rule 46.2(a) has never been viewed as requiring that all sanctions matters

be sent to this panel. To the contrary, other panels of the Court (often referred to as “motions

panels” and “merits panels”) retain the authority to decide sanctions issues under, for example, 28

U.S.C. § 1927, Federal Rule of Appellate Procedure 38, and the Court’s inherent authority. See, e.g.,

Watkins v. Smith, 561 F. App’x 46, 48 (2d Cir. 2014) (granting Rule 38 sanctions). Additionally,

although the terms “discipline” and “sanctions” are not defined in the relevant rules, and are on some

occasions used interchangeably, this Court has generally treated a disciplinary proceeding as distinct

from a request for (or sua sponte consideration of) sanctions in a pending appeal.1 See, e.g., Jin Qiu

Zheng v. Gonzales, 163 F. App’x 10, 12 (2d Cir. 2005) (“Counsel is warned that her continued failure to

comply with the Rules of Appellate Procedure could result in discipline or sanctions. See Fed. R.

App. P. 38, 46(b), (c).”).

Second, once a motions or merits panel has decided a misconduct issue, the Grievance Panel

lacks authority to revisit that decision (except under unusual circumstances not present here). In re

1 However, the distinction between “discipline” and “sanctions” does not mean that a motions or merits panel cannot refer a sanctions issue to this panel if it so chooses.

3

Payne, 707 F.3d 195, 205 (2d Cir. 2013). Third, even if any of Harris’s misconduct allegations are not

specifically covered by the merits panel’s decisions—i.e., the summary order disposing of the merits

of the appeal and the order denying Harris’s sanctions motion—the misconduct allegations are

sufficiently intertwined with the matters decided by the merits panel that it would be inappropriate for

this panel to separately address them. In re Attorney Grievance Complaint Filed by Peeples, 842 F. App’x

690, 693 (2d Cir. 2021). Harris’s present misconduct allegations are closely related to both the merits

of his appeal and the manner in which the parties’ appellate arguments were presented in their briefs

and oral argument. Similar to the situation in Peeples, a new disciplinary proceeding before this panel

“might conflict with, or unnecessarily duplicate, the factfinding and legal conclusions of the judges

who are most familiar with the relevant events”—in this case, the judges who ruled on Harris’s appeal.

Id.

Finally, we note that the above discussion only concerns this panel’s authority to revisit the

misconduct issues that were presented to the merits panel or are intertwined with issues presented to

that panel. We reach no conclusions as to whether any other disciplinary authority can review the

matters raised in Harris’s attorney grievance complaint.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

[Text of Emailed Complaint Received by Court]

From: david harris <dgharris3@yahoo.com> Sent: Sunday, June 18, 2023 3:55 PM To: hlevine@woh.com; John Siffert <JSiffert@lswlaw.com>; dhernandez@cravath.com;

SHEILA.BOSTON@ARNOLDPORTER.COM; tmc@connorsllp.com; Leslie.Dubeck@ag.ny.gov; jglasser@wiggin.com

Subject: Re: Atorney grievance in the Second Circuit Court of Appeals

Dear Madams and Sirs:

My name is David Harris and this communica�on to you is in respect of my case in the Second Circuit Court of Appeals, 22-811. I am a full professor at Syracuse University who has taught Federal Income tax law and legal research for more than 40 years. Though technically Pro Se, I have five college degrees, including a JD and an LLM, and am a previously-licensed atorney of 30 years (in Illinois, un�l re�ring my license to focus on academic research) who has prac�ced before the IRS, but never represented a client in court, and who has writen numerous legal memorandums successfully dispu�ng IRS posi�ons. I have published more than a dozen original research papers in blind, peer-reviewed, na�onal-level law journals, including some based on my LLM disserta�on. Another of my publica�ons has been favorably discussed on the floor of Congress.

I apologize if I am contac�ng you in error, but it is unclear how I am to pursue the mater of my grievance against the opposing atorney in my ac�on, Andrew S. Holland.

Simply put, I filed a mo�on for sanc�ons against him (Dkt. 137), which the panel denied (Dkt. 159). However, in examining Local Rule 46.2(a), which states,

Grievance Panel. All atorney grievance and discipline maters are ini�ally handled by a panel of judges, the "Grievance Panel."

I see that my complaint should have been considered "ini�ally" by the Grievance Panel. That is, as the Supreme Court has defined the word "all," it is comprehensive; admi�ng of no excep�ons.

But, my complaint was never acted upon by this panel as far as I have been informed. I am contac�ng you, because the members of this Grievance Panel and how one contacts them to file a grievance cannot be found on the Second Circuit's website, as far as I can determine. Neither is there a statement as to procedure, such as how a grievance gets to this Panel. I am asking you to assist me in this mater, as I have no idea of whom else to contact.

I've atached a copy of my mo�on for sanc�ons, (I do apologize, but have also sent to you a second email with my mo�on for sanc�ons atached. However, as some firms’ email programs do not allow atachments I am also sending this version.) and have also put the relevant documents on my dropbox website, which are 1) Dkt 137, mo�on for sanc�ons, 2) Dkt 149, Mr. Holland's response, 3) Dkt 152, my Reply, 4) Dkt 153, my mo�on for rehearing, 5) Dkt 159, the Panels denial of the mo�on for sanc�ons, and 6) Dkt 165, the denial of my mo�on for rehearing and en banc review.

The URL for my Dropbox files is: htps://www.dropbox.com/sh/wk1isp9dxaky2w1/AABgk5anaBlu9xf3pKdUa2Gha?dl=0 Obviously, you can also retrieve these from Pacer.

My complaint is that Mr. Holland, first, copied unrelated parts of sentences from my Brief and reassembled them in his Brief as if they were connected, and then "interpreted" this fabrica�on to state a cause of ac�on unrelated to the actual cause of ac�on. His fabrica�on, as opposed to the actual cause of ac�on, is indefensible. At oral argument, as proved in its audio recording, the Court aggressively asserted that my cause of ac�on was what Mr. Holland falsely wrote, and told me that it was outside of the Court’s purview. The Court also said my case was unsupportable for not pleading elements of that imaginary cause of ac�on, when, in fact, my Amended Complaint and Brief was crystal clear as to allega�ons of the elements of the cause of ac�on actually pled. Also, Mr. Holland quoted NY Court of Appeals decisions in his Brief, omi�ng parts of the quota�on, and then argued that they stood for a proposi�on that, in fact, was the opposite of exactly what he omited.

In his verified response, Mr. Holland did not deny any of these allega�ons. Specifically, he did not deny the charges that: in his papers and at oral argument he lied to the Panel about the cause of ac�on, the facts, and the law, and that the Panel was materially misled by his lies. He did try to excuse his ac�ons, such as by sta�ng that the Panel had all of the original documents and should have realized that he was lying to them.

Mr. Holland also commited similar frauds on the District Court (see Dkt 49-3, Case No. 5:20-cv-01057- MAD-ATB). My mo�on for sanc�ons against him before the District Court, which the judge did not allow me to file and did not decide, is also on Dropbox.

Mr. Holland lied repeatedly and egregiously for the simple reason that he had no legi�mate defense; if he had such, then he would not have needed to lie. Unfortunately, this is a fact to which no one has paid the slightest heed.

If what Mr. Holland has done is not sanc�onable, even by so much as a gentle admoni�on not to do the same in the future, then, frankly, I have no idea what could be! Any sen�ent person must realize that his ac�ons have been officially endorsed by the Panel and conclude that there are no rules of legal ethics in this Court.

There is a bright side of sorts to this, no mater anything else. My case in chief deals with plagiarism of my academic research and the damages are my consequent loss of a valuable publica�on. Mr. Holland’s successful frauds on the Panel and the Panel’s inexcusable inac�ons well support another law-journal ar�cle, tenta�vely �tled, The So-Called “Ethical” Legal Prac�ces of and before the Second Circuit Court of Appeals. Surely, new lawyers, law professors, and law students, one and all, deserve to learn how the law is actually prac�ced in this puta�vely august court.

Sincerely, Dr. David Harris