MEMORANDUM OPINION
RANDOLPH D. MOSS, UNITED STATES DISTRICT JUDGE
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 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).
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] 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 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 “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
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 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 ...