Klayman v. Fox

• Court: District Court, District of Columbia
• Decided: June 5, 2019
• Docket: Civil Action No. 2018-1579
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

LARRY KLAYMAN,

Plaintiff,

v. Civil Action No. 18-1579 (RDM) HAMILTON FOX, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Larry Klayman, proceeding pro se, brings this action against the D.C. Office of

Disciplinary Counsel (“ODC”), which serves as the chief prosecutor for attorney disciplinary

matters involving members of the D.C. Bar, and four of its members, Hamilton Fox, Elizabeth

Herman, H. Clay Smith, III, and Julia Porter. According to Plaintiff, Defendants are conspiring

to disbar him or to force him to resign from the D.C. Bar (1) because they disagree with his

“political beliefs [and] public interest activism” and hope to silence him and (2) because of his

gender. Dkt. 10 at 2 (Amd. Compl. ¶ 1). He asks that the Court enjoin the disciplinary

proceedings pending against him and award him at least $75,000 in damages. Id. at 25 (Amd.

Compl. Prayer). The matter is before the Court on Defendants’ motion to dismiss. Dkt. 15. For

the reasons set forth below, the Court will grant that motion and will dismiss Plaintiff’s amended

complaint on the grounds that Younger abstention bars Plaintiff’s claims for injunctive relief; the

ODC is non sui juris; and Plaintiff’s claims for damages are barred by the doctrine of absolute

immunity. The Court will also grant Plaintiff’s motion for leave to file a surreply. Dkt. 27. I. BACKGROUND

A. District of Columbia Bar Attorney Discipline System

The D.C. Court of Appeals is authorized “to make such rules as it deems proper

respecting the examination, qualification, and admission of persons to membership in its bar, and

their censure, suspension, and expulsion.” D.C. Code § 11-2501(a); see also Nwachukwu v.

Rooney, 362 F. Supp. 2d 183, 191 (D.D.C. 2005) (quoting same). Pursuant to this authority, the

D.C. Court of Appeals created the Board of Professional Responsibility (“the Board”) “[t]o

consider and [to] investigate any alleged ground for discipline;” to take other actions on its own

initiative “to effect the purpose” of the disciplinary rules; “[t]o appoint Disciplinary Counsel,

Special Disciplinary Counsel, and such assistant disciplinary counsel and staff as may be

required to perform the duties and functions of that office;” “[t]o appoint . . . Hearing

Committees;” “[t]o reprimand attorneys subject to the disciplinary jurisdiction of the Court and

the Board;” and “[t]o adopt rules, procedures, and policies” as appropriate. D.C. Bar R. XI,

§ 4(e); see also Nwachukwu, 362 F. Supp. 2d at 192. The Board, in turn, established the ODC,

formerly known as the Office of Bar Counsel, to investigate attorney misconduct and to

prosecute disciplinary matters before Hearing Committees appointed by the Board, the Board

itself, and the D.C. Court of Appeals. Thomas v. Knight, 257 F. Supp. 2d 86, 89 (D.D.C. 2003);

see also D.C. Bar R. XI § 4(e)(2).

The attorney discipline process is structured as follows: First, the ODC investigates a

complaint of attorney misconduct and decides whether to open an investigation “to ascertain if

grounds exist to initiate formal proceedings.” Nwachukwu, 362 F. Supp. 2d at 192 (noting that

this decision is “well-recognized as a determination which is comparable to judicial decision-

making” (quoting Simons v. Bellinger, 643 F.2d 744, 780 (D.C. Cir. 1980))). At the conclusion

2 of the investigation, the ODC may—with approval from a “Contact Member” of the Board’s

Hearing Committee—dismiss the complaint, issue an informal admonition, make a formal

“referral of charges” to the Board, or resolve the charges by way of “diversion” or “negotiated

disposition.” D.C. Bar R. XI § 6(a)(3). Formal charges are prosecuted by the ODC before a

Board-appointed Hearing Committee comprised of two members of the Bar and one non-lawyer.

Id. §§ 4(e)(4), 4(e)(5), 6(a)(4). The members of the Hearing Committee have the power and duty

to conduct hearings and to “submit their findings and recommendations on formal charges of

misconduct to the Board.” Id. § 5(c)(2).

Once the Hearing Committee provides a recommendation to the Board, “[e]xceptions to

the report . . . may be filed in accordance with rules promulgated by the Board,” and the Board

must provide the attorney facing disciplinary charges and the ODC with an opportunity to submit

briefs and to present oral argument. Id. § 9(a)–(b). The Board then either adopts or modifies the

recommendation of the Hearing Committee and, unless the Board dismisses the charges or

remands the case to the Hearing Committee, the Board must submit its own findings and

recommendation to the D.C. Court of Appeals. Id. § 9(d). Both the attorney facing disciplinary

changes and the ODC may, at that point, file “exceptions” to the Board’s report with the D.C.

Court of Appeals. Id. § 9(e). If the Board recommends “disbarment, suspension requiring proof

of fitness as a condition of reinstatement, or suspension of one year or more without a fitness

requirement,” the D.C. Court of Appeals must provide the attorney facing disciplinary charges

with yet another opportunity to be heard. Id. § 9(g) (requiring order to show cause). The D.C.

Court of Appeals issues the final order, imposing disciplinary measures, if any. Id. § 9(h).

3 B. Ongoing Disciplinary Proceedings Against Plaintiff

Plaintiff Larry Klayman has been a member of the D.C. Bar since 1980. Dkt. 10 at 4

(Amd. Compl. ¶ 13). According to the amended complaint, Plaintiff “is a prominent

conservative and non-partisan attorney and public interest activist who has brought lawsuits

against Hillary Clinton, Barack Obama, George W. Bush, and other politicians and government

officials.” Id. at 9 (Amd. Compl. ¶ 41). He is also the founder of “prominent public interest

watchdog groups, Judicial Watch, Inc. and Freedom Watch, Inc.” Id. In the last decade,

Plaintiff has been the subject of multiple complaints, resulting in the three disciplinary

proceedings at issue here. See Dkt. 15-2 (Ex. 1); Dkt. 15-3 (Ex. 2); Dkt. 15-4 (Ex. 3). The Court

may consider the official records relating to these charges, which are attached to Defendants’

motion to dismiss, without converting that motion into a motion for summary judgment because

their authenticity is undisputed, they are referenced in the amended complaint, and they are

“integral” to Plaintiff’s claims. Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1133 (D.C.

Cir. 2015); see also Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004); Dufur v. U.S. Parole

Comm’n, 314 F. Supp.3d 10, 13 (D.D.C. 2018). The Court does not, however, accept the truth of

any of the underlying allegations set forth in those records.

1. Judicial Watch Charges

In November 2012, the ODC “submitted proposed charges against” Plaintiff relating to

his representation of three Judicial Watch employees in lawsuits against Judicial Watch. Dkt.

15-3 at 2 (Ex. 2 ¶ 2). The Hearing Committee determined that Plaintiff’s representation of these

individuals presented a conflict of interest in violation of Rule 1.9 because he had served as

General Counsel of Judicial Watch when the events underlying the lawsuits took place. Dkt. 15-

2 at 7 (Ex. 1). The Hearing Committee also found that Plaintiff’s conduct “seriously interfer[ed]

4 with the administration of justice,” in violation of Rule 8.4. Id. at 1 (Ex. 1). The Hearing

Committee recommended that Plaintiff be suspended for 90 days “with readmission contingent

upon a showing of his fitness to practice law.” Id. at 2 (Ex. 1). The Board adopted the Hearing

Committee’s findings with respect to the conflict of interest charges but “conclude[d] that

Disciplinary Counsel failed to prove the Rule 8.4(d) allegation.” 1 Id. at 3 (Ex. 1). Based on the

Board’s “own review of the evidence, [it] recommend[ed] that [Plaintiff] be suspended for ninety

days with no fitness requirement.” Id. The matter is currently fully briefed and pending before

the D.C. Court of Appeals.

2. Sataki Charges

In July 2017, Plaintiff was charged by the ODC with violating Rules 1.2(a), 1.4(b),

1.5(b), 1.5(c), 1.6(a)(1), 1.6(a)(3), 1.7(b)(4), 1.16(a)(3), and 8.4(c), arising from his

representation of Elham Sataki in a sexual harassment suit against her former employer, Voice of

America (“VOA”). Dkt. 15-4 at 2–4, 7, 11 (Ex. 3). According to the Specification of Charges,

Plaintiff told Sataki in January 2010 that he would “represent her on a contingent fee basis

and . . . take 40% of any recovery,” but he did not set forth those terms in writing. Id. (Ex. 3

¶¶ 2–3). The Specification of Charges further alleged that, after “Sataki declined [Plaintiff’s]

entreaties to establish a romantic relationship,” he “informed [her] that he would change the

terms . . . and require 50% of any recovery she may receive.” Id. (Ex. 3 ¶¶ 6–7). Based on this

alleged conduct, the ODC charged Plaintiff with violating Rules 1.5(b) and (c) for failing to set

forth the terms of his representation in writing and Rule 1.7(b)(4) for allowing his “professional

1 Initially, Plaintiff signed an affidavit stipulating to the facts in a petition for negotiated discipline. After a hearing on the petition, however, the Hearing Committee rejected the proposed disciplinary measure—public censure—as “unduly lenient.” Dkt. 15-3 at 3 (Ex. 2 ¶¶ 3–4). The matter was then referred to another Hearing Committee for further proceedings on the charges. Id. (Ex. 2 ¶ 6).

5 judgment on behalf of his client” to be “adversely affected by [his] own personal interests.” Id.

at 3–4 (Ex. 3 ¶ 8).

The Specification of Charges also alleged that Plaintiff failed to abide by Sataki’s wishes

to pursue her case “simply and quietly” and, instead, used her case to further his own personal

interests in violation of Rules 1.2(a), 1.4(b), and 1.7(b)(4). Id. at 5–8 (Ex. 3 ¶¶ 14, 16, 22, 34).

The ODC alleged that Plaintiff named numerous, unnecessary defendants in Sataki’s suit,

including Hillary Clinton, id. at 6 (Ex. 3 ¶¶ 18–19); filed a motion to have the case reassigned

because the presiding judge allegedly “harbor[ed] an animus” against him “because of her

association with former President . . . Clinton and former First Lady Hillary Rodham Clinton and

because of certain lawsuits [Plaintiff] had filed against the Clintons,” id. at 6–7 (Ex. 3 ¶ 21); and

moved to disqualify the judge on the same ground, id. at 4–5 (Ex. 3 ¶ 13). After Sataki

terminated Plaintiff in August 2010, id. at 7 (Ex. 3 ¶ 26), moreover, Plaintiff allegedly refused to

withdraw from the case and continued to litigate on Sataki’s behalf, in violation of the above

rules as well as Rule 1.16(a)(3), id. at 7–8 (Ex. 3 ¶¶ 27–33).

Finally, Plaintiff was charged with violating Rules 1.2(a), 1.6(a)(1) and (3), 1.7(b)(4), and

8.4(c) for publishing eleven articles about the case in an online periodical, WorldNetDaily. Id. at

8–12 (Ex. 3 ¶¶ 36–48). Each article allegedly “described, in part, his representation of [Sataki]

and her claims against VOA.” Id. According to the Specification of Charges, in an article

published on December 25, 2010, Plaintiff also “falsely reported that the presiding judge had

‘dishonestly denied, without factual or legal bas[is] . . . [the] request for [Sataki] to be put back

at work at the Los Angeles office [of] VOA.’” Id. at 11 (Ex. 3 ¶ 47) (emphasis added). With

respect to each of the articles, Sataki allegedly complained that she “did not know [Plaintiff]

would author” the article; that she “did not consent” to its publication; and that she was

6 “embarrassed by [Plaintiff’s] disclosure of facts that he gained during the course of the

representation.” Id. at 9–12 (Ex. 3 ¶¶ 37–47).

The Hearing Committee conducted hearings on these charges and issued a preliminary

finding that Plaintiff had violated at least one of the Rules at issue. Dkt. 15 at 13–14. Both

parties then submitted post-hearing briefing addressing, among other things, the presence of any

“aggravat[ing]” evidence, such as a prior disciplinary record. Id. at 14. The Hearing Committee

has yet to submit any findings and recommendations to the Board, and Defendants note that “it is

difficult to predict with any degree of accuracy when the Hearing Committee” will do so. Id.

3. Bundy Charges

Finally, in August 2018—after this case was filed—the ODC charged Plaintiff with

violating Rules 3.1, 3.3(a), 8.1, 8.4(a), 8.4(c), and 8.4(d), in connection with his repeated

attempts to convince the U.S. District Court for the District of Nevada to admit him pro hac vice

to represent his client, Cliven Bundy. Dkt. 15-3 (Ex. 2). According to the Specification of

Charges, the district court in the Bundy case found that Plaintiff’s “statement that the matter

regarding Judicial Watch” was “likely to be resolved in [his] favor” and that no disciplinary

action had been taken “was ‘misleading and incomplete.’” Id. at 6 (Ex. 2 ¶ 19). After his

petition to appear pro hac vice was twice denied by Chief Judge Gloria Navarro of the U.S.

District Court for the District of Nevada, Bundy filed a Bivens action against her, alleging that

the denial was motivated by “political reasons.” Id. at 8 (Ex. 2 ¶ 23). Plaintiff also filed several

successive petitions for writs of mandamus with the U.S. Court of Appeals for the Ninth Circuit

and with the U.S. Supreme Court, seeking orders compelling the district court to admit him and

to set aside the decisions finding that he had misled the district court. Id. at 9–16 (Ex. 2 ¶¶ 27–

52). In his fourth petition before the Ninth Circuit, Plaintiff allegedly argued that “Judge

7 Bybee’s order” denying his previous petition to the Ninth Circuit should be vacated because of

Judge Bybee’s “extrajudicial bias.” Id. at 13 (Ex. 2 ¶ 46). According to the Specification of

Charges, Plaintiff’s “claim that Judge Bybee had extrajudicial bias” included “a number of

assertions that had no basis and were frivolous.” Id. at 14 (Ex. 2 ¶ 47). Finally, the Specification

of Charges alleges that Plaintiff also made certain misleading or incomplete representations in

connection with his petitions for writs of mandamus. Id. at 15 (Ex. 2 ¶¶ 48–49). These charges

are currently pending. 2

C. Present Lawsuit

According to Plaintiff, the above charges reflect Defendants’ “pattern and practice of

abusing and exceeding their position of authority . . . to . . . intentionally violate [his]

constitutional and other rights by selectively prosecuting [him] because of his political activism,

free speech, and gender.” Dkt. 10 at 38 (Amd. Compl. ¶ 39). His amended complaint asserts the

following causes of action against the ODC and the individual defendants: abuse of process,

malicious prosecution, and violations of the First and Fourteenth Amendments to the U.S.

Constitution. Id. at 21–24 (Amd. Compl. ¶¶ 96–114). In support of his claims, Plaintiff

primarily offers conclusory assertions. He avers, for instance,

It is clear that Defendants’ goal is to prevent Mr. Klayman from being able to practice law because they do not agree with his political and other beliefs, and in retaliation for his gender during this highly charged period when men are frequently presumed guilty of even provably false allegations.

Id. at 10 (Amd. Compl. ¶ 43). He further alleges:

Because of Mr. Klayman’s conservative beliefs, Defendants Herman and Porter, who are Deputy Bar Disciplinary Counsel, in particular, apparently see him as anti-woman, which is not true. It was apparent to Mr. Klayman that

2 On September 24, 2018, Plaintiff filed a separate lawsuit against the ODC, its staff, and others based on these charges. See Dkt. 1 (Compl.), Klayman v. Lim, No. 18-cv-2209 (D.D.C. Sept. 24, 2018). That case is also pending before this Court.

8 Defendants Herman and Porter in particular wanted to take disciplinary action against him due to his gender and activism, and thus enlisted the other Defendants, including the new Bar Disciplinary Counsel, Defendant Fox, to follow suit and work in concert with them.

Id. (Amd. Compl. ¶ 44).

Beyond these conclusory allegations, Plaintiff also alleges the following:

First, in support of his claim of political bias—or propensity for political bias—he alleges

that “Defendant Fox, as well as Deputy Bar Disciplinary Counsel Elizabeth Herman[,] both

donated significant sums of monies to Hillary Clinton and Barack Obama as well as other liberal

Democrats.” Id. at 9 (Amd. Compl. ¶ 42). He further alleges, moreover, that “a group of law

professors,” including someone who “perhaps not coincidentally, [has] been placed on the

hearing committee that is adjudicating the Sataki Complaint,” filed a disciplinary complaint

against Kellyanne Conway, who currently serves as Counselor to the President, “seeking to

discipline her for her political activities and beliefs.” See id. at 19–20 (Amd. Compl. ¶¶ 89–91).

In Plaintiff’s view, the Conway disciplinary complaint constitutes “further evidence of [the]

ODC and the District of Columbia Bar’s political biases and motivations to chill free speech and

other constitutional rights by conservatives.” Id. at 19 (Amd. Compl. ¶ 88). None of the

signatories to that disciplinary complaint nor Kellyanne Conway, however, is a party to this case,

and Plaintiff does not allege that any of the Defendants in this action had anything to do with that

separate matter.

Second, Plaintiff alleges that the ODC has pursued the Sataki Complaint without good

cause. He alleges, in particular, that the ODC “revived” the complaint eight years after the

conduct at issue to “pile on . . . cases before the Board” so that he “would not be reinstated”

following his suspension on the Judicial Watch charges, “effectively disbarring him,” and that

reviving this stale complaint constituted a “tactical” move designed to “bankrupt” him. Id. at

9 10–11 (Amd. Compl. ¶¶ 45–47). In support of these allegations, Plaintiff attaches a letter

Defendant Smith sent to Sataki in July 2011, which states:

Enclosed is a copy of the attorney’s answer to your complaint . . . . If we do not hear from you promptly, we may assume that you are satisfied with your attorney’s explanations.

Dkt. 10-1 at 50 (July 7, 2011 Ltr.). He also attaches an email dated January 16, 2014, from

Defendant Smith to two investigators, requesting their help to “locate” Sataki, who “ha[d]

dropped off the map.” Id. at 51 (Jan. 16, 2014 Email). The email states that “[her] only

correspondence with [the ODC] was the ethical complaint” and that she never responded to the

ODC’s July 7, 2011 Letter. Id. From these two communications, Plaintiff concludes that Sataki

had “abandoned” her complaint and that “Defendants, for their own unethical, unconstitutional,

illegal, and tactical reasons, outrageously and incredibly themselves resurrected [her] complaint

six years later,” even though “corresponding identical complaints” with the Florida and

Pennsylvania Bar had been “summarily dismissed.” Dkt. 10 at 7 (Amd. Compl. ¶¶ 33, 35).

Third, Plaintiff alleges that the ODC’s prosecution of the other two disciplinary charges

reflects a similar desire to subject him to disproportionate or unjustified discipline. With respect

to the Judicial Watch charges, Plaintiff alleges that “[t]he dishonesty of the [i]ndividual

[d]efendants” is evidenced by the fact that the “ODC[] fil[ed] a frivolous assignment of error to

the Board’s decision to remove” the reinstatement requirement after his recommended 90-day

suspension. Id. at 11 (Amd. Compl. ¶ 48). He further alleges that one of the ODC members,

Defendant Smith, stated that “he was relieved that the reinstatement provision was removed, as

he ‘didn’t think it was right,’” but that the decision “was ‘out of his hands.’” Id. (Amd. Compl.

¶ 50). Plaintiff also points to the Bundy charges—although not by name—as another example of

Defendants’ unlawful conduct. See, e.g., id. at 10–11 (Amd. Compl. ¶ 47) (“Other recent threats

10 of an additional bar proceeding, [were] forwarded by Defendant Porter on her own behalf and on

behalf of the other Defendants, acting in concert . . . .”); id. at 14 (Amd. Compl. ¶ 64)

(“[Defendant Porter] . . . , confirming her complicity, on multiple occasions threatened Mr.

Klayman with another bar proceeding, claiming to have even prepared a draft Specification of

Charges before Mr. Klayman could even respond to this threat.”).

Fourth, Plaintiff alleges that the individual defendants allegedly displayed animus

towards him at three meetings:

At the first meeting, held on July 28, 2017, Defendant Herman allegedly displayed an

“extremely hostile and disrespectful demeanor” towards Plaintiff. Id. at 12 (Amd. Compl. ¶ 52).

Plaintiff alleges that she “refused to say whether she had had contact and/or met with Ms.

Sataki” and, when asked, told Plaintiff it was “none of his . . . business.” Id. (Amd. Compl.

¶ 53). According to Plaintiff, Defendant Herman further “brazenly and openly admitted her bias

and animus against [him] due to his political beliefs, activism, free speech, and gender, . . . when

she curtly and in a hostile manner, on more than one occasion, stated . . . , ‘I [we] don’t like the

way you practice law.’” Id. (Amd. Compl. ¶ 54). She also allegedly responded, “we couldn’t

care less,” when Plaintiff noted that the Florida and Pennsylvania bars had dismissed Sataki’s

complaints. Id. (Amd. Compl. ¶ 56).

Plaintiff also points to his meeting with “Defendant Smith on September 29, 2017,”

which was held to discuss the Judicial Watch and Sataki charges. Id. at 13 (Amd. Compl. ¶ 57).

Plaintiff alleges that Defendant Smith’s conduct at this meeting “clearly demonstrated and

confirmed” that Defendants have engaged in a “gender-based and political vendetta against”

him. Id. Defendant Smith allegedly “stated that[,] if [Plaintiff] would agree to resigning, it

could be done quietly . . . preventing embarrassment and bad publicity.” Id. (Amd. Compl.

11 ¶ 60). According to Plaintiff, “such a strange and outrageous suggestion” was, in fact, “a

warning . . . that there was a concerted effort by [Defendant Smith’s] superiors at [the] ODC,

including but not limited to Defendants Fox, Herman, and Porter, to remove him from the

practice of law . . . .” Id. at 14 (Amd. Compl. ¶ 62).

At the last meeting mentioned, held on May 11, 2018, Defendant Fox allegedly acted “in

an extremely hostile manner” when he met with Plaintiff to discuss the Sataki Specification of

Charges. Id. at 15 (Amd. Compl. ¶ 69). According to Plaintiff, Defendant Fox allegedly

“lurch[ed] towards him and scream[ed] ‘this meeting is over,’” id. at 16 (Amd. Compl. ¶ 72)

(alterations in original); “demanded that he ‘leave his office,’” id.; and, when Plaintiff “indicated

that [Defendants’] gross prosecutorial misconduct would leave him no recourse but to file this

instant Complaint” and “bar grievances,” Defendant Fox purportedly responded, “do you

seriously believe that I would not welcome the opportunity through discovery to show how you

practice law?” id. (Amd. Compl. ¶ 73).

Finally, Plaintiff avers that the ODC and the Board have engaged in misconduct and have

failed to pursue disciplinary proceedings against those aligned against him. Id. at 16–17 (Amd.

Compl. ¶¶ 76–79). He alleges that “Defendants purposefully and intentionally withheld

exculpatory documents and evidence” regarding his disciplinary proceedings. Id. at 17 (Amd.

Compl. ¶ 77). He also avers that, while the Sataki charges are moving forward, his complaints of

misconduct against Paul Orfanedes, Judicial Watch’s litigation director, and the ODC members,

Dkt. 10-2 at 1, were not pursued. See Dkt. 10 at 17–19 (Amd. Compl. ¶¶ 79–86). According to

Plaintiff, the failure of the Board to pursue his complaint against the ODC members is an

“apparent ‘cover up’ to protect their own.” Id. at 19 (Amd. Compl. ¶ 86).

12 Plaintiff filed suit on July 3, 2018, seeking “actual, compensatory, and punitive

damages . . . in an amount no less than $75,000, as well as preliminary and permanent injunctive

relief.” Id. at 25 (Amd. Compl. Prayer). Defendants’ motion to dismiss, Dkt. 15, and Plaintiff’s

motion for leave to file a surreply, Dkt. 27, are pending before the Court.

II. LEGAL STANDARD

Defendants move to dismiss the case on two grounds: lack of subject-matter jurisdiction,

Fed. R. Civ. P. 12(b)(1), and failure to state a claim, Fed. R. Civ. P. 12(b)(6). In evaluating a

Rule 12(b)(1) motion to dismiss, “[t]he party invoking federal jurisdiction bears the burden of

establishing” jursidiction. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). The Court may

dismiss the complaint if the plaintiff fails to plead facts sufficient to establish that the Court has

jurisdiction but, “where necessary, the court may [also] consider the complaint supplemented by

undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus

the court’s resolution of disputed facts.” Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C.

Cir. 1992); see also Pub. Citizen, Inc. v. Trump, 361 F. Supp. 3d 60, 71 (D.D.C. 2019). Thus,

the Court may look beyond the allegations of the complaint to the extent necessary to satisfy

itself that it has jurisdiction to hear the suit.

A motion to dismiss brought under Rule 12(b)(6), in contrast, is designed to “test[] the

legal sufficiency of a complaint.” Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). In

evaluating such a motion, the Court “must first ‘tak[e] note of the elements a plaintiff must plead

to state [the] claim’ to relief, and then determine whether the plaintiff has pleaded those elements

with adequate factual support.” Blue v. District of Columbia, 811 F.3d 14, 20 (D.C. Cir. 2015)

(alterations in original) (internal citation omitted) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675,

678 (2009)). Although “detailed factual allegations” are not necessary to withstand a Rule

13 12(b)(6) motion, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), “a complaint must

contain sufficient factual matter, [if] accepted as true, to ‘state a claim to relief that is plausible

on its face,’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).

III. ANALYSIS

Defendants’ arguments are three-fold. First, they contend that the Court should dismiss

Plaintiff’s claims for injunctive relief under Younger v. Harris, 401 U.S. 37 (1971). Dkt. 15 at

19–23. Second, they assert that neither the ODC nor its staff members are subject to suit for

damages: the ODC because it is non sui juris, and its members because they are absolutely

immune from suit for performing their officials duties. Id. at 23–25. Third, and finally,

Defendants argue that, even if the Court were to reach the merits of Plaintiff’s case, the amended

complaint fails to state a claim. Id. at 26–30. Because resolution of the first two arguments is

sufficient to dispose of Plaintiff’s claims, the Court will cabin its analysis accordingly.

A. Younger Abstention

The Supreme Court has long held that “Younger v. Harris [401 U.S. 37 (1971)] and its

progeny espouse a strong federal policy against federal-court interference with pending state

judicial proceedings absent extraordinary circumstances.” Middlesex Cty. Ethics Comm. v.

Garden State Bar Ass’n, 457 U.S. 423, 431 (1982). “The policies underlying Younger are fully

applicable to noncriminal judicial proceedings when important state interests are involved.” Id.

at 432 (citing Moore v. Sims, 442 U.S. 415, 423 (1979); Huffman v. Pursue, Ltd., 420 U.S. 592,

604–05 (1975)). Those policies and the Younger doctrine itself, moreover, apply to enforcement

proceedings pending in the District of Columbia; they do so because “Congress’ intent” in

enacting the District of Columbia Court Reorganization Act of 1970, Pub. L. No. 91-358, § 111,

84 Stat. 473, 475–521 (1970), “was to give the District ‘a court system comparable to those of

14 the states,’ H.R. Rep. No. 91-907, at 23,” and to place this Court “on a par with other United

States District Courts” in its relationship with the local courts. JMM Corp. v. District of

Columbia, 378 F.3d 1117, 1120–25 (D.C. Cir. 2004).

Plaintiff argues that Younger abstention is inapplicable to his claims for injunctive relief

for two reasons, neither of which is persuasive:

First, Plaintiff argues that the Supreme Court “narrow[ed] [the] scope of the Younger

doctrine” in Sprint Communications, Inc. v. Jacobs, 571 U.S. 69 (2013), and that, as refined in

that decision, the doctrine applies only to “ongoing state criminal prosecutions,” “certain ‘civil

enforcement proceedings,’” and “pending ‘civil proceedings involving certain

orders . . . uniquely in furtherance of the state court’s ability to perform their judicial functions.’”

Dkt. 25 at 16 (quoting Sprint Commc’ns, Inc., 571 U.S. at 73, 78 (citations omitted)). Putting

aside the question whether Sprint Communications “narrowed” or merely reflected the Court’s

prior Younger abstention decisions, Plaintiff correctly describes the “three ‘exceptional’

categories” to which Younger abstention applies, and, indeed, the Sprint Communications

decision made explicit that these categories “define Younger’s scope” in full. 571 U.S. at 78.

That, however, is as far as Plaintiff’s argument takes him because the attorney disciplinary

proceedings that he seeks to enjoin fall squarely within the “scope of the Younger doctrine,” as

explicated in Sprint Communications and other binding Supreme Court precedents.

In identifying the type of “civil enforcement” proceedings to which Younger extends, the

Sprint Communications decision pointed to the Supreme Court’s earlier decision in Middlesex,

457 U.S. 423 (1982), which, like this case, involved a suit seeking to enjoin an attorney

disciplinary proceeding pending under the auspices of the state’s highest court. In Middlesex, as

here, an attorney was charged with misconduct pursuant to the state bar disciplinary procedures,

15 and he sought to enjoin that proceeding as violative of his First Amendment rights. Id. at 428–

29. There, as here, the defendants invoked Younger abstention as a basis to dismiss the action.

Id. at 429. And the Supreme Court agreed that Younger applied, holding that the state had “an

extremely important interest in maintaining and assuring the professional conduct of the

attorneys it licenses” and that “[t]he importance of the state interest in the pending state judicial

proceedings . . . call[ed] Younger abstention into play.” Id. at 434–35. As the Court explained:

“So long as the constitutional claims of respondents can be determined in the state proceedings

and so long as there is no showing of bad faith, harassment, or some other extraordinary

circumstance that would make abstention inappropriate, the federal courts should abstain.” Id. at

435. In other words, the principle that Younger abstention applies to attorney disciplinary

proceedings not only survived the Court’s decision in Sprint Communications, it was expressly

reaffirmed. See 571 U.S. at 79 (“Younger abstention [is] appropriate where ‘noncriminal

proceedings bear a close relationship to proceedings criminal in nature’” (quoting Middlesex,

457 U.S. at 432)); id. (identifying “state-initiated disciplinary proceedings against lawyer for

violation of state ethics rules” as an example of the type of action subject to Younger abstention)

(citing Middlesex, 457 U.S. at 433–34)). The Court, therefore, concludes that the attorney

disciplinary proceedings at issue in this case implicate Younger and its progeny.

Second, Plaintiff argues that the bad-faith exception to Younger abstention precludes

application of the doctrine to his claims for injunctive relief. Even prior to Younger, the

Supreme Court recognized an exception to the limitation on federal judicial authority to enjoin

certain state court proceedings, if those proceedings were initiated in bad faith. Most notably, in

Dombrowski v. Pfister, 380 U.S. 479 (1965), the Supreme Court reversed the decision of a three-

judge court to abstain from addressing the constitutionality of a criminal statute pending the

16 “state prosecution and possible review . . . of [an] adverse state determination.” Id. at 483, 497–

98. The Court’s decision was premised, in part, on the plaintiffs’ allegations that the state

officials in that case sought to enforce the statute in bad faith, “without any hope of ultimate

success, but only to discourage [the plaintiffs’] civil rights activities.” Id. at 490; see also id. at

482 (noting the complaint alleged “that the threats to enforce the statutes [were] not made with

any expectation of securing valid convictions, but rather as part of a plan to employ arrests,

seizures, and threats of prosecution under color of the statutes to harass” plaintiffs). Returning to

this theme in Younger, the Supreme Court recognized an exception to the abstention doctrine in

cases involving “bad faith” or “harassment,” 401 U.S. at 54—that is, where the complaint

contains “substantial allegations” that a threat of enforcement has been made without “‘any

expectation of securing valid convictions, but rather [as] part of a plan . . . to harass’” the

plaintiff, 401 U.S. at 48 (quoting Dombrowski, 380 U.S. at 482).

Beyond confirming that the exception is a “narrow” one, the Supreme Court’s post-

Younger decisions “have not shed a great deal of additional light” on what constitutes bad faith.

17B Charles Alan Wright & Arthur R. Miller et al., Federal Practice and Procedure § 4255 (3d

ed. Apr. 2019 update) [hereinafter “Wright & Miller”]. One decision, however, provides some

guidance on the scope of the exception and how it applies in the present context. In Kugler v.

Helfant, 421 U.S. 117 (1975), the plaintiff, a municipal court judge and member of the state bar,

filed suit in federal court to enjoin the New Jersey Attorney General and other state officials

from proceeding with an indictment against him. He alleged that the Chief Justice and other

members of the New Jersey Supreme Court coerced him into waiving his Fifth Amendment right

not to testify in front of a state grand jury out of fear that he would lose his judgeship and bar

membership. Id. at 121. The plaintiff was subsequently indicted for obstruction of justice and

17 “false swearing” and sought to enjoin his prosecution. Id. In his civil action, Kugler alleged that

the prosecution and members of the State Supreme Court engaged in “prejudicial collusion” to

deprive him of his constitutional rights and that, in light of their conduct, he would be unable to

obtain a fair trial. Id. at 122. The district court dismissed the complaint and, after an intervening

appeal to the Third Circuit, the Supreme Court agreed that Younger abstention barred Kugler’s

claims. Id. at 119–20, 126.

Of significance for present purposes, the Supreme Court upheld the dismissal of the

complaint under Federal Rule of Civil Procedure 12(b)(6); it evaluated whether the bad-faith

exception was available based on the allegations contained in the complaint, without relying on a

factual hearing, and it held that the bad-faith exception did not apply, notwithstanding the

plaintiff’s conclusory allegations of “prejudicial collusion” and “bad faith.” Id. at 122–26 & n.5.

As the Supreme Court explained, even though the complaint contained the allegation that “the

collusive actions of members of the State Supreme Court and the Deputy Attorney General

demonstrat[ed] prosecutorial bad faith warranting federal intervention,” more was required to

avoid Younger abstention. Id. at 126 n.6. “Bad faith” requires allegations sufficient to show that

the prosecution was brought for purposes of harassment or intimidation, “without a reasonable

expectation of obtaining a valid conviction.” Id. To meet this burden, a plaintiff seeking to

invoke the bad-faith exception must “allege specific facts to support an inference of bad faith.”

Arkebauer v. Kiley, 985 F.2d 1351, 1359 (7th Cir. 1993) (emphasis added) (citation omitted).

Under current pleading standards, this means that a plaintiff must allege facts that, if

accepted as true, set forth a claim of bad faith “that is plausible on its face.” Twombly, 550 U.S.

at 570. In other words, a plaintiff must allege “factual content” sufficient to “allow[] the court to

draw the reasonable inference that the defendant” is subject to suit in federal court, Iqbal, 556

18 U.S. at 678, notwithstanding Younger and its progeny. When assessing the plaintiff’s complaint,

moreover, the Court must identify legal conclusions “couched as . . . factual allegation[s],”

Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)), and must

“decline to extend the presumption of truth to such conclusory allegations,” Tracy v. United

States, No. 16-cv-651, 2016 WL 76664716, at *4 (D.D.C. Nov. 18, 2016) (citing Iqbal, 556 U.S.

at 678). Given this demanding standard, it is not surprising that there has been “no case since

Younger was decided in which the [Supreme] Court . . . [has] found that the exception for bad

faith or harassment was applicable” and that “[l]itigants who have sought to bring themselves

within the exceptions to Younger have had almost as little success in the lower courts.” Wright

& Miller, Federal Practice and Procedure § 4255.

Plaintiff does not take issue with the premise that the Court must assess whether he has

alleged an adequate factual basis for invoking the bad-faith exception but, rather, argues that the

allegations set forth in his complaint satisfy that standard. Dkt. 25 at 17–19. The Court

disagrees. The “crux” of Plaintiff’s claim of bad faith is that Defendants are pursuing

disciplinary charges against him because they disagree with his political beliefs and

“conservative public advocacy” and because of his gender. See Dkt. 25 at 18. But putting aside

Plaintiff’s conclusory assertions, as the Court must, see Twombly, 550 U.S. at 555, his amended

complaint fails to allege facts sufficient to invoke the bad-faith exception.

Liberally construed, Plaintiff’s claim of political motivation rests on five sets of factual

allegations: First, that Plaintiff has “brought lawsuits against Hillary Clinton, Barack Obama,

George W. Bush, and other politicians and government officials;” “conceived and

founded . . . Judicial Watch, Inc. and Freedom Watch, Inc.;” and “r[an] for the U.S. Senate in the

Florida Primary.” Dkt. 10 at 9 (Am. Compl. ¶ 41). Second, that two of the four individual

19 defendants “donated significant sums of monies to Hillary Clinton and Barack Obama as well as

other liberal Democrats.” Id. (Am. Compl. ¶ 42). Third, that one of the members of “the hearing

committee that is adjudicating the Sataki Complaint” signed a complaint “seeking to discipline”

Kellyanne Conway “for her political beliefs” and “to . . . chill[] . . . free speech on behalf of

President Donald J. Trump.” Id. 19–20 (Am. Compl. ¶¶ 89-92). Fourth, that one of the

individual defendants allegedly has a conflict of interest, unrelated to any political activity, id. at

15 (Am. Compl. ¶ 68), and acted in a hostile manner towards Plaintiff at a meeting, id. at 15–16

(Am. Compl. ¶¶ 69–75); another individual defendant acted in a “hostile” manner and with a

“disrespectful demeanor” towards Plaintiff, id. at 12 (Am. Compl. ¶¶ 52–56); and yet another

individual defendant suggested that Plaintiff resign from the bar to avoid “embarrassment and

bad publicity,” id. at 13–14 (Am. Compl. ¶¶ 60–61). Finally, that, in Plaintiff’s view, the Sataki

Complaint is “clearly non-meritorious,” as evidenced by the fact that the Florida and

Pennsylvania Bars summarily rejected the same charges. Id. at 17 (Am. Compl. ¶ 80).

The Courts of Appeals are divided on the question whether the bad-faith exception to

Younger applies to any prosecution brought in retaliation for (or to deter) constitutionally

protected activity, or to only those prosecutions brought without a reasonable expectation of

obtaining a conviction. Compare Lewellen v. Raff, 843 F.2d 1103, 1109–10 (8th Cir. 1988), and

Cullen v. Fliegner, 18 F.3d 96, 103–04 (2d Cir. 1994), with In re Kunstler, 914 F.2d 505, 517

(4th Cir. 1990). Under either line of precedents, however, Plaintiff’s allegations of political bias

are insufficient to overcome Younger abstention. Indeed, if courts were to permit claims for

injunctive relief to proceed on such reedy allegations, Younger would lose much of its force.

Those facing prosecution in state court, for example, could use a federal forum to intrude on

those proceedings based on little more than their known political affiliation, a past political

20 contribution to a candidate from a different political party by a member of the prosecution team,

and conclusory allegations that the prosecution is not well-founded. That would flip the

presumption of good faith in the discharge of governmental authority on its head, China Trade

Ctr., LLC v. Wash. Metro. Area Transit Auth., 34 F. Supp. 2d 67, 70-71 (D.D.C. 1999), aff’d,

No. 99-7029, 1999 WL 615078 (D.C. Cir. 1999) (per curiam), leaving the public with the

misguided impression that those trusted to act in the public interest are—invariably—incapable

of separating their past personal political views from their existing official responsibilities.

Nothing in the principles of equity on which Younger is premised or in existing precedent invites

such a pernicious result. Plaintiff’s allegations that a law professor who is a member of the

Sataki Hearing Committee signed a complaint against Kellyanne Conway or that the individual

defendants had acted in a “hostile” manner toward him, Dkt. 10 at 12, 15, 16 (Amd. Compl.

¶¶ 52–54, 69, 74), moreover, add no meaningful substance to his claim of bad faith. The law

professor is not a defendant in this action; this case is not about the merit, or lack of merit, of the

Conway complaint; and, even if the law professor’s objectivity were at issue in this proceeding,

Plaintiff’s amended complaint alleges prosecutorial abuse, not bias by the Hearing Committee.

Likewise, although one would hope that prosecutors would always avoid displays of disrespect

and “hostility,” expressions of annoyance, frustration, and even anger are not enough to open the

door to a federal court’s interference in a state court proceeding.

Plaintiff’s theory of gender bias is even more tenuous. He merely alleges that the two

female ODC members “apparently see him as anti-woman” and “apparent[ly] . . . wanted to take

disciplinary action against him due to his gender and activism.” Dkt. 10 at 10 (Am. Compl.

¶ 44). But he fails to offer a single non-conclusory allegation in support of that assertion. The

one relevant allegation that he does make, moreover, contains a puzzling addition: He alleges

21 that “Herman abruptly and in a hostile voice refused to say whether she had had contact with

and/or met with Ms. Sataki” and that “this was ‘none of his [male] business.’” Dkt. 10 at 12

(Am. Compl. ¶ 53). It is unclear what Plaintiff intends the bracketed reference to his gender to

mean. If he simply means to emphasize that Herman said that whether she had contacted Sataki

was none of “his” business, that allegation adds nothing. But, if he means to convey more than

this—for example, if Herman had used a synonym for “male” that he was not inclined to

repeat—the complaint fails to offer any insight regarding what he claims actually occurred. In

any event, it is safe to say that Plaintiff’s amended complaint would not come close to satisfying

pleading requirements in a gender-based employment discrimination case, see Czekalski v.

Peters, 475 F.3d 360, 364 (D.C. Cir. 2007) (discussing standard for alleging prima facie case of

disparate treatment), and, for the same reason, it does not come close to alleging facts sufficient

to invoke the bad-faith exception to Younger.

The only remaining possibility is that Plaintiff seeks to allege that Defendants initiated

charges against him “without a reasonable expectation of obtaining a valid conviction” and have,

instead, brought disciplinary charges merely to harass him, as contemplated by Kugler, 421 U.S.

at 124. With minor exception, Plaintiff’s allegations are, once again, too conclusory to invoke

the bad-faith exception under this theory. All that Plaintiff alleges with specificity is that two

other jurisdictions “summarily dismissed” complaints that were “identical” to the Sataki

Complaint and that one of the individual defendants told Plaintiff “that he was relieved that the

reinstatement provision” included in an earlier resolution of the Judicial Watch Complaint “was

removed,” because he “didn’t think it was right.” Dkt. 10 at 7, 11 (Amd. Compl. ¶¶ 33, 50).

These allegations of bad faith, however, fail for at least three reasons: (1) the initial charges were

based on a third-party complaint, Dkt. 15-4 (Ex. 3); (2) the charges were instituted only after a

22 “contact” member of the Hearing Committee—an individual who is independent from the ODC

and not a defendant in this case—approved them; see D.C. Bar R. XI § 6(a)(3); and (3) the

Hearing Committee conducted hearings on the charges and issued a preliminary finding that

Plaintiff had violated at least one of the Rules of Professional Conduct at issue, see Dkt. 15 at

13–14. There is no basis for the Court to hold that the ODC is proceeding without a reasonable

expectation of obtaining relief when the Hearing Committee has already concluded otherwise.

Similarly, even assuming that one of the individual defendants indicated that he thought the

remedy the ODC sought for the Judicial Watch charges was too harsh, that fact, alone, does not

establish bad faith or that the ODC did not reasonably expect the Board to agree with its position.

It bears emphasis, yet again, that the bad-faith exception is a “narrow” one, Huffman, 420

U.S. at 611–12, and that, if accepted, Plaintiff’s theories would allow the exception to swallow

the rule. It is not this Court’s role to decide whether the disciplinary charges pending against

Plaintiff are well-founded or whether Plaintiff is likely to ultimately prevail. The question is not

whether other state bars have declined to pursue similar charges or whether everyone on the

ODC team agrees with each decision the office has made. The only issue before this Court is

whether Plaintiff has alleged specific facts that, if accepted as true, plausibly show that the ODC

is proceeding without a reasonable expectation of success. Plaintiff has failed to satisfy that

burden.

The Court, accordingly, concludes that Plaintiff has failed to allege sufficient facts to

support an application of the bad-faith exception.

B. Judicial Immunity

Plaintiff is correct, however, that application of Younger does not necessarily resolve his

claims for damages. See J.M.M. Corp. v. District of Columbia, 253 F. Supp. 2d 15, 16, 18–19

23 (D.D.C. 2003) (applying Younger to dismiss plaintiff’s claims for declaratory and equitable relief

but staying its claim for damages under § 1983). Nevertheless, as further explained below, the

Court will also dismiss Plaintiff’s damages claims on the grounds that (1) the ODC is not subject

to suit, and (2) the individual defendants are entitled to absolute immunity.

1. Claims Against the ODC

As a threshold matter, the ODC, an instrumentality of the D.C. Court of Appeals, is not

subject to suit. “[T]he overwhelming weight of precedent in this Circuit . . . holds that[,] in the

absence of explicit statutory authorization, bodies within the District of Columbia government

are not suable as separate entities.” Newman v. District of Columbia Courts, 125 F. Supp. 3d 95,

102–03 (D.D.C. 2015) (alterations in original) (quoting Kundrat v. District of Columbia, 106 F.

Supp. 2d 1, 7 (D.D.C. 2000)); see also Hoai v. Superior Court of the District of Columbia, 539 F.

Supp. 2d 432, 435 (D.D.C. 2008) (“[N]aming the D.C. courts, and their components, as

defendants does not save plaintiffs’ claims because those entities are non sui juris.”). Plaintiff

has failed to identify any “explicit statutory authorization” that would subject the ODC to suit,

nor is the Court aware of any. In fact, Plaintiff fails to offer any response to the ODC’s

argument and has, accordingly, conceded the point. See Hopkins v. Women’s Div., Gen. Bd. of

Glob. Ministries, 238 F. Supp. 2d 174, 178 (D.D.C. 2002).

The Court will therefore dismiss Plaintiff’s damages claims against the ODC.

2. Claims Against the Individual Defendants

The legal precedent is equally clear that judicial immunity shields the individual

defendants from liability for carrying out their official duty: prosecuting attorney misconduct

24 charges on behalf of the D.C. Court of Appeals, see D.C. Bar R. XI § 6(a)(4). 3 Since “[a]s early

as 1872,” the Supreme Court has recognized that, “a judicial officer, in exercising the authority

vested in him, [should] be free to act upon his own convictions.” Stump v. Sparkman, 435 U.S.

349, 355 (1978) (quoting Bradley v. Fisher, 80 U.S. 335, 347 (1871)). The Supreme Court has,

accordingly, exempted judges from civil suit for their judicial acts, “even when such acts [were]

in excess of their jurisdiction, and [were] alleged to have been done maliciously or corruptly.”

Stump, 435 U.S. at 356 (quoting Bradley, 80 U.S. at 351). In Stump, for example, the Court held

that a state court judge was entitled to absolute immunity against suit for approving a parent’s

petition to have her child sterilized. Id. at 351, 355, 359. Although acknowledging the “tragic

consequences” of the judge’s actions, id. at 363, the Court explained that absolute judicial

immunity applied because the judge had subject-matter jurisdiction to consider the petition, see

id. at 357–58, and because his act of approving a petition was a “judicial” act, see id. at 360–63.

Over the years, courts have extended this immunity to other officials performing “quasi-

judicial functions” if two conditions are met: (1) “the act must not have been taken in ‘the clear

absence of jurisdiction;’” and (2) “the act must be a judicial act.” Nwachukwu, 362 F. Supp. 2d

at 192 (citations omitted); see also Butz v. Economou, 438 U.S. 478, 512–13 (1978) (extending

3 Although not binding for purposes of Plaintiff’s federal claims, the D.C. Bar Rules expressly confer the ODC members immunity from suit for acts carried out in their official capacity:

Members of the Board, its employees, members of Hearing Committees, Disciplinary Counsel, and all assistants and employees of Disciplinary Counsel, all persons engaged in counseling, evaluating or monitoring other attorneys pursuant to a Board or Court order or a diversion agreement, and all assistants or employees of persons engaged in such counseling, evaluating or monitoring shall be immune from disciplinary complaint under this rule and from civil suit for any conduct in the course of their official duties.

D.C. Bar R. XI, § 19(a) (emphasis added).

25 immunity to participants in agency administrative adjudication). Consistent with Butz, the D.C.

Circuit held in Simons v. Bellinger, 643 F.2d 774 (D.C. Cir. 1980), that D.C. Bar disciplinary

proceedings are judicial proceedings and that officials who participate in those proceedings are

engaged in judicial acts that are entitled to absolute immunity. See id. at 779–82. As the D.C.

Circuit explained in Simons, members of a committee “empowered to investigate and prosecute”

charges of unauthorized practice of law were entitled to absolute immunity because the

committee members “serve[d] as an arm of the court and perform[ed] a function which

traditionally belongs to the judiciary”—in other words, “[the committee members’] efforts to

ascertain those practicing law without proper authority [were] judicial efforts.” Id. at 780. Of

particular concern to the D.C. Circuit was also the fact that, “[l]ike judges and prosecutors,”

officials involved in bar discipline “are probable targets for harassing lawsuits.” Id. at 782.

Since Simons was decided, this Court has repeatedly upheld disciplinary counsels’ absolute

immunity from suit in situations similar to the case at bar. See, e.g., Rodriguez v. Shulman, 844

F. Supp. 2d 1, 11–12 (D.D.C. 2012); Richardson v. District of Columbia, 711 F. Supp. 2d 115,

128 (D.D.C. 2010); Nwachukwu, 362 F. Supp. 2d at 192–93; Thomas v. Knight, 257 F. Supp. 2d

86, 94 (D.D.C. 2003).

In light of the above, the Court concludes that the ODC members are entitled to absolute

immunity for their conduct in the ongoing disciplinary proceedings. Plaintiff cannot plausibly

argue—given the long line of precedent and D.C. Bar Rules expressly authorizing the ODC to

institute disciplinary charges—that the prosecution against him exceeded the ODC’s jurisdiction

or that it did not constitute a judicial act. The fact that Plaintiff sued the ODC members in their

individual capacities, moreover, is of no import because all of his allegations relate to the

conduct they engaged in during the course of their official duties. This Court has time and again

26 rejected such an attempted end-run around absolute immunity. See Richardson, 711 F. Supp. 2d

at 128 (granting bar officials absolute immunity even though plaintiff sought “relief against the

defendants . . . ‘individually or in their representative capacities’”); see also Nwachukwu, 362 F.

Supp. 2d at 192; Thomas, 257 F. Supp. 2d at 88 n.2.

Plaintiff’s only rejoinder is that the individual defendants in this case exceeded the scope

of their official duties. See Dkt. 10 at 8 (Amd. Compl. ¶ 39) (stating that Defendants engaged in

a “pattern and practice of abusing and exceeding their position of authority” to intentionally

violate his rights). But Plaintiff offers no factual allegations to support this conclusory assertion.

He merely argues that the individual defendants were acting beyond the scope of their official

duties because “[he] has not engaged in any unethical conduct.” Dkt. 25 at 21. The fact that

“plaintiff disagrees with the defendants’ conclusion” that he engaged in misconduct, however,

“does not strip the defendants’ privilege of immunity.” Nwachukwu, 362 F. Supp. 2d at 193.

Otherwise, disciplinary counsel would be subject to suit every time an attorney alleges that he

was wrongfully charged. That cannot be right. Cf. Briggs v. Goodwin, 569 F.2d 10, 15 (D.C.

Cir. 1977) (The argument that “any allegation that an official, acting under color of law, has

deprived someone of his rights necessarily implies that . . . the official exceeded his

authority . . . would completely abrogate the doctrine of immunity.”).

The two cases Plaintiff cites offer no support to the contrary. In Fields v. Wharrie, 740

F.3d 1107, 1113–14 (7th Cir. 2014), the Seventh Circuit held that an Illinois prosecutor who

fabricated evidence “pre-prosecution as an investigator” and later introduced that evidence at

trial was not entitled to absolute prosecutorial immunity. The court reasoned that “[a] prosecutor

may not shield his investigative work with the aegis of absolute immunity merely because, after a

suspect is eventually arrested, indicted, and tried, that work may be retrospectively described as

27 ‘preparation’ for a possible trial.” Id. (emphasis added). Fields is inapposite here. This case

concerns judicial, not prosecutorial, immunity, and the crux of Plaintiff’s complaint is not that he

has been subject to an investigation—it is that he has been unfairly charged with disciplinary

violations. The second case Plaintiff cites, Keller v. State Bar of California, 496 U.S. 1 (1990),

is even less on point. There, the Supreme Court held that the California Bar’s use of compulsory

dues to finance political and ideological activities with which members disagreed violated their

First Amendment right to free speech when such expenditures were not for the purpose of

regulating the legal profession or improving the quality of services. Id. at 15–16. Keller makes

no mention of judicial immunity from suit for damages.

The Court will, accordingly, dismiss Plaintiff’s damages claims against the individual

defendants as barred by absolute immunity.

C. Plaintiff’s Motion for Leave to File Surreply

One final issue remains: Plaintiff filed a motion for leave to file a surreply, Dkt. 27,

which Defendants opposes, Dkt. 28. “[S]urreplies are generally disfavored,” and the

determination as to “whether to grant or deny leave is entrusted to the sound discretion” of the

Court.” Banner Health v. Sebelius, 905 F. Supp. 2d 174, 187 (D.D.C. 2012). It is well-

established that the purpose of a surreply is to “enable the nonmovant to contest matters

presented for the first time in the opposing party’s reply.” Nix El v. Williams, 174 F. Supp. 3d

87, 92 (D.D.C. 2016). Here, Plaintiff’s proposed surreply goes beyond that limited purpose.

Before deciding to dismiss Plaintiff’s amended complaint, however, the Court—out of an

abundance of caution and as an exercise of its discretion—reviewed Plaintiff’s surreply to ensure

that the Court was fully informed of Plaintiff’s contentions. Because that review did not give

Plaintiff an unfair advantage, and, indeed, merely confirmed the Court’s understanding of the

28 limited scope of the contentions Plaintiff has made, the Court will grant Plaintiff’s motion for

leave to file a surreply.

CONCLUSION

For the foregoing reasons, the Court will GRANT Defendants’ motion to dismiss, Dkt.

15, and will dismiss the amended complaint without prejudice. See Attias v. Carefirst, Inc., 865

F.3d 620, 623–24 (D.C. Cir. 2017). The Court will also GRANT Plaintiff’s motion for leave to

file a surreply, Dkt. 27.

A separate order will issue.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: June 5, 2019