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Irene Rodriguez, et al v. Douglas Shulman

February 16, 2012

IRENE RODRIGUEZ, ET AL.,
PLAINTIFFS,
v.
DOUGLAS SHULMAN, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: James E. Boasberg United States District Judge

MEMORANDUM OPINION AND ORDER

Pro se Plaintiffs Isidoro Rodriguez and his wife Irene (whose role in all of this remains unclear) have brought this suit as the latest in a long line of actions seeking to overturn his disbarrment by the Virginia Bar Disciplinary Board, which became effective on October 27, 2006. See ECF No. 47-1, Exh. G (Order of Disbarrment by D.C. Circuit referencing Virginia disbarrment). In this current suit, the contents of which are largely incomprehensible, Plaintiffs again name a farrago of defendants, including Internal Revenue Service employees, D.C. Circuit judges, the clerk of the United States Supreme Court, former White House Counsels, Justice Department Officials, and Justices of the Virginia Supreme Court. See Am. Compl. at 1-5.

Plaintiffs then moved on Aug. 18, 2011, to disqualify the entire United States Attorney's Office for the District of Columbia (USAO/DC) from representing any of the federal defendants. See ECF No. 8. Plaintiffs argued that the USAO/DC could not represent those defendants because they "willfully acted outside of their authority" by concealing that the Supreme Court of Virginia had "promulgated unconstitutional court rules," and, "by acts of treason," the federal defendants "enforced the void order of the [Virginia Bar Disciplinary] Board to disbar Isidoro from federal practice." Id. at 1 (emphasis original).

Perhaps believing discretion to be the better part of valor, the USAO/DC withdrew, and the U.S. Attorney's Office for the Eastern District of Pennsylvania (USAO/EDPA) took over representation of the federal defendants in this matter. See ECF No. 33 (Mot. for Enlargement of Time to Respond to Compl.), ¶ 1. Undeterred, Plaintiffs have now filed a new Motion to Disqualify the USAO/EDPA from representing the federal defendants.

I.Analysis

Although the basis of Plaintiffs' arguments remains elusive, they appear to maintain that the disqualification of the USAO/EDPA is mandated by three different sources of authority: 28 U.S.C. § 547, 28 C.F.R. § 50.15, and the U.S. Attorney Manual Chapter 3-2.170. See Mot. at 1. The Court will address each in turn after first looking at the law regarding disqualification of an entire United States Attorney's Office generally.

A. USAO Disqualification

The disqualification of an entire United States Attorney's Office is a step not to be taken lightly. The Tenth Circuit has held that "we are strongly influenced by the fact that we can only rarely-if ever-imagine a scenario in which a district court could properly disqualify an entire United States Attorney's office. Indeed, the disqualification of Government counsel is a drastic measure." United States v. Bolden, 353 F.3d 870, 875-76 (10th Cir. 2003) (citing Bullock v. Carver, 910 F. Supp 551, 559 (D. Utah 1995)) (internal citations omitted). Indeed, "because disqualifying an entire United States Attorney's office is almost always reversible error regardless of the underlying merits of the case, a reviewing court will rarely have to delve into the underlying claim to conclude that the disqualification was unwarranted." Id. at 876.

In Bolden, the plaintiff entered into a plea agreement containing language that it was in the sole discretion of the United States to evaluate his cooperation in determining whether a motion for downward departure from the Sentencing Guidelines or a reduction of sentence was appropriate. Id. at 873. The plaintiff then sent a letter to the U.S. Attorney's Office in the Western District of Oklahoma (USAO/WDOK), requesting that the Government seek a reduction of his sentence. Id. An Assistant United States Attorney notified him that the downward departure committee there had elected not to seek such reduction. Id. The plaintiff then moved to compel the Government to file a motion for reduction of sentence, alleging multiple instances of bad faith. Id. He also filed a motion to recuse the USAO/WDOK, and the district court entered an order disqualifying the entire Office, directing it to arrange for an Assistant United States Attorney from another district to respond to the original motion to compel. Id. The 10th Circuit, however, reversed the disqualification order and explained:

[C]courts have allowed disqualification of government counsel in limited circumstances. See, e.g., Young v. United States, 481 U.S. 787, 807 (1987) (actual conflict of interest because appointed prosecutor also represented another party); United States v. Heldt, 668 F.2d 1238, 1275 (D.C. Cir. 1981) (bona fide allegations of bad faith performance of official duties by government counsel in a civil case); United States v. Prantil, 764 F.2d 548, 552-53 (9th Cir. 1985) (prosecutor who will act as a witness at trial). . . . In light of these principles, every circuit court that has considered the disqualification of an entire United States Attorney's office has reversed the disqualification.

Id. at 878 -79.

Similarly, the Eleventh Circuit affirmed a district court's order refusing to disqualify counsel in United States v. Sharma, 394 Fed. Appx. 591 (11th Cir. 2010). In that case, the plaintiff asserted that the court should have disqualified an Assistant U.S. Attorney and the entire U.S. Attorney's Office for the Middle District of Florida from participating in her prosecution. Id. at 593-94. Specifically, she contended that it was foreseeable before trial that the Government would call the Assistant U.S. Attorney as a witness, yet the Government still proceeded under the indictment that that AUSA had obtained, even though the AUSA did not represent the Government at trial. Id. at 594-95. Consequently, Plaintiff concluded that this denied her a fair trial because a lawyer may not serve both as a lawyer and a witness in the same case. Id. The Eleventh Circuit affirmed the denial of disqualification and cited to Bolden's language about the drastic nature of such a measure. Id. at 595; see also United States v. Hasarafally, 529 F.3d 125, 128 (2d Cir. 2008) ("[w]hile a private attorney's conflict of interest may require disqualification of that attorney's law firm in certain cases, such an approach is not favored when it comes to the office of a United States Attorney") (internal citations omitted).

Bearing in mind the unusual nature of Plaintiffs' request, the Court now turns to their specific allegations ...


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