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In re Bailey

May 17, 1999

IN RE R. GREG BAILEY


Before Michel, Rader, and Schall, Circuit Judges.

The opinion of the court was delivered by: Michel, Circuit Judge.

Appealed from: United States Court of Appeals for Veterans Claims Chief Judge Frank Q. Nebeker

Opinion for the court filed by Circuit Judge MICHEL. Dissenting opinion filed by Circuit Judge SCHALL.

R. Greg Bailey appeals from a June 11, 1998 disciplinary order of public reprimand issued against him by the United States Court of Appeals for Veterans Claims. *fn1 The court disciplined Bailey for failing to prosecute diligently the appeal of a veteran whom he had volunteered to represent on a pro bono basis and for failing, without excuse, to respond to lawful requests for documents and information from the court itself, and from a disciplinary agency of the court during a disciplinary investigation duly ordered by the court with notice to Bailey. See In re Bailey, 11 Vet. App. 267 (Ct. Vet. App. 1998). The appeal was submitted for our decision, on the briefs, on February 2, 1999. We hold we have jurisdiction to review the order, but only insofar as its constitutionality is challenged. *fn2

Because we also hold, contrary to Bailey's contentions, that his Due Process rights, under the Fifth Amendment to the United States Constitution, to reasonable notice and an opportunity to be heard were not violated during the proceedings leading to the order, we affirm the Court of Appeals for Veterans Claims's disciplinary order. As to Bailey's non-constitutional contentions, the appeal is dismissed for lack of jurisdiction.

The Court of Appeals for Veterans Claims and its Committee on Admission and Practice (the "Committee"), a disciplinary agency of the court, provided Bailey with multiple written notices of the alleged misconduct and the proposed discipline, an opportunity to respond to each notice, of which he took full advantage each time, and a telephonic evidentiary hearing, to which he made no objection, and in which he testified. Subsequently, the court reviewed the transcript of the hearing and the report of the Committee with new and full briefing by Bailey. Following an independent review of the record, the court accepted the Committee's recommendation of a public reprimand, but rejected the recommendation of a two-year suspension from practice before the court, declining to order any period of suspension. Under these circumstances, we hold that Bailey received all the process due to an attorney in a disciplinary proceeding before a court of law respecting the right to continue to practice before such court.

BACKGROUND

On April 24, 1994, the Court of Appeals for Veterans Claims permitted attorney Bailey to appear pro hac vice before it as counsel for Joseph Odrosky, after Odrosky's appeal, Odrosky v. Brown, No. 94-193, was assigned to Bailey through the Veterans Consortium Pro Bono Program (the "Consortium"). On June 2, 1995, more than a year later, the court dismissed the veteran's appeal because Bailey still had not filed a long-overdue brief, or otherwise prosecuted the appeal, despite both general and specific orders to him from the court to do so. Prior to the eventual dismissal, Bailey failed even to contact Odrosky, and he only indirectly communicated with him thereafter, through a telephone call made by Bailey's father, a non-attorney.

On June 28, 1995, the court reinstated Odrosky's appeal pursuant to a memorandum submitted by the Consortium and, in connection with Bailey's request to withdraw as counsel, it ordered Bailey to provide specific documents and information relating to his apparent failure to prosecute the veteran's appeal. Bailey filed a late response to the order, stating only why, in his view, he could not properly have complied with one item in the order. He either declined to respond, due to his belief that the court's order was unlawful and unethical, or ignored each of the other four items that he had been requested to produce by the order. Thereafter, the court ordered Bailey to show cause why this matter should not be referred to its Committee, requesting limited and specific information related only to his conduct of the veteran's appeal. *fn3 Bailey filed a timely response in which he stated that he did not believe he should be required to provide the information and documents referenced in the court's June 28, 1995 order.

Considering the foregoing, on December 1, 1995, the court referred the disciplinary issue to its Committee for review of Bailey's prosecution of the veteran's appeal. In connection with its review, the Committee communicated by letter with both the Consortium and with Bailey. Following such communications and its preliminary investigation, the Committee, in a letter dated April 5, 1996, advised Bailey of its preliminary view that the available evidence supported the Conclusion that he had committed misconduct as described in the American Bar Association ("A.B.A.") Model Rules of Professional Conduct 1.3 and 8.1, made applicable to him by Rule 1(b) of the Court of Appeals for Veterans Claims's Rules of Admission and Practice. The Committee further advised Bailey that he had thirty days after the mailing date of its letter to respond to the Committee's preliminary Conclusion. Bailey filed a timely response on May 3, 1996. After considering Bailey's response, the Committee concluded that a hearing was unnecessary, because the material facts were undisputed and Bailey had been given repeated opportunities, both by the court and the Committee, to present all relevant facts and any explanation or excuse concerning his handling of the veteran's appeal and had in fact done so.

On July 18, 1996, the Committee filed a report with the court detailing its findings and recommending that Bailey's privilege of practicing before the court be suspended for a period of two years and that the court's disciplinary action be reported to the other bars of which Bailey was a member. In a submission to the court, Bailey objected to this report, asserting a violation of his Due Process rights by the Committee, due to its failure to conduct a live evidentiary hearing. The court thereupon referred the matter back to the Committee and ordered it to conduct such a hearing. In addition, the court directed the Committee to provide Bailey with advance notice of any evidence on which it intended to rely, and to afford Bailey the opportunity to respond, both in writing and at a hearing, to any and all of this evidence, as well as to provide any new and pertinent evidence of his own. On February 27, 1998, after conducting a telephonic hearing with Bailey, to which Bailey did not object, and considering additional information and evidence provided by Bailey, the Committee filed a supplemental and final report with the court confirming its earlier recommendation.

On March 30, 1998, the court ordered Bailey to show cause why it should not impose the recommended discipline. Bailey timely replied on April 30, 1998. Thereafter, on June 11, 1998, the court ordered that Bailey be publicly reprimanded by published order for his lack of diligence in prosecuting the veteran's appeal and for his inexcusable failure to respond to lawful requests for documents and information from both the court and the Committee. Despite the Committee's recommendation, however, no suspension was ordered by the court.

Bailey appeals, contending that the disciplinary proceedings, as conducted, violated his Due Process rights and that his prosecution of the veteran's appeal fell short of adequate grounds for imposing any discipline, even a reprimand without suspension. Because Bailey filed this appeal within thirty days of the disciplinary order, the appeal to this court is timely. Whether we have jurisdiction, however, is less clear.

DISCUSSION

I.

Before considering the merits, we must first determine whether it is within this court's subject-matter jurisdiction to review any of the issues presented by Bailey in this appeal. See Yarway Corp. v. Eur-Control USA, Inc., 775 F.2d 268, 273 (Fed. Cir. 1985) (noting that, whether or not the issue is raised by a party, a court must always satisfy itself that jurisdiction exists). Bailey contends that the attorney disciplinary proceedings, as conducted, violated his Due Process rights and that his prosecution of the veteran's appeal fell short of adequate grounds for imposing any discipline. Regarding the constitutional issue -- Due Process -- we hold that we may exercise jurisdiction. As to Bailey's challenge to the factual sufficiency of the evidence supporting the disciplinary order, we hold that we do not have jurisdiction.

A.

Although we have never addressed the underlying issue of the authority of the Court of Appeals for Veterans Claims to discipline attorneys practicing before it, we have no doubt that the Court of Appeals for Veterans Claims does indeed have such power. *fn4 The United States Supreme Court and federal courts of appeals have repeatedly recognized that regulation of attorney behavior is an inherent power of any court of law and falls within the discretion of such court. See Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) ("[A] federal court has the power to control admission to its bar and to discipline attorneys who appear before it."); In re Jacobs, 44 F.3d 84, 87 (2d Cir. 1994) (holding that a district court's authority to discipline attorneys admitted to appear before it is an inherent power of the court); Yagman v. Republic Ins., 987 F.2d 622, 628 (9th Cir. 1993) ("Courts are endowed with inherent powers which are necessary to the conduct of their business, including the power to sanction."); Cunningham v. Sears, Roebuck and Co., 854 F.2d 914, 916 (6th Cir. 1988) (holding that it is an inherent power of the court to impose sanctions upon counsel who have acted in bad faith). Accepting that the Court of Appeals for Veterans Claims has this inherent power, we must still determine whether it is within this court's jurisdiction to review any of the issues presented by Bailey in this appeal.

B.

Bailey presents a constitutional issue on appeal that does not include a challenge to the validity of a statute or regulation or interpretation thereof. We have never expressly decided in clear and explicit terms whether this court has jurisdiction to review such a "free-standing" constitutional issue, i.e., one not also involving a challenge to the interpretation or validity of a statute or regulation. Now we do. We hold that we do have such subject-matter jurisdiction.

The Federal Circuit's jurisdiction over decisions of the Court of Appeals for Veterans Claims is governed by a section of a 1988 statute codified at 38 U.S.C. § 7292 (1994), as amended by the Veterans Programs Enhancement Act of 1998, Pub. L. No. 105-368, sec. 511, 112 Stat. 3315, 3341 (1998). Section 7292, entitled Review by United States Court of Appeals for the Federal Circuit, provides in pertinent part:

"(a) After a decision of the United States Court of Appeals for Veterans Claims is entered in a case, any party to the case may obtain a review of the decision with respect to the validity of any statute or regulation . . . or any interpretation thereof (other than a determination as to a factual matter) that was relied on by the Court in making the decision. . . .

(c) The United States Court of Appeals for the Federal Circuit shall have exclusive jurisdiction to review and decide any challenge to the validity of any statute or regulation or any interpretation thereof brought under this section, and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision. . . .

(d)(1) The Court of Appeals for the Federal Circuit shall decide all relevant questions of law, including interpreting constitutional and statutory provisions. The court shall hold unlawful and set aside any regulation or any interpretation thereof (other than a determination as to a factual matter) that was relied upon in the decision of the Court of Appeals for Veterans Claims that the Court of Appeals for the Federal Circuit finds to be-

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in ...


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