Klayman v. Porter

104 F.4th 298

Larry Elliott KLAYMAN, Appellant v. Julia PORTER, et al., Appellees

No. 22-7123

Consolidated with 23-7120

United States Court of Appeals, District of Columbia Circuit

Argued October 16, 2023

Decided June 11, 2024

Appeals from the United States District Court for the District of Columbia, (No. 20-cv-3109) Larry E. Klayman, pro se, argued the cause and filed the briefs for appellant.

Lide E. Paterno argued the cause for appellees. With him on the brief were Preston Burton, Jackson Hagen, Mark J. MacDougall, and Caroline L. Wolverton.

Before: Millett and Rao, Circuit Judges, and Rogers, Senior Circuit Judge.

Concurring opinion filed by Circuit Judge Rao.

Millett, Circuit Judge:

In recent years, the District of Columbia Bar's Office of Disciplinary Counsel has initiated multiple disciplinary investigations and proceedings against attorney Larry Klayman. In response, Klayman has brought a series of lawsuits against the District of Columbia Bar, the Office of Disciplinary Counsel, and individual D.C. Bar officials, alleging a variety of torts and constitutional claims. We have previously affirmed dismissal of several of those lawsuits.

In June 2020, the District of Columbia Court of Appeals ordered a ninety-day suspension of Klayman's license to practice law in the District of Columbia. Employees of the Office of Disciplinary Counsel mailed notice of that suspension to other jurisdictions to which Klayman is admitted to practice law. Two of those jurisdictions then initiated reciprocal disciplinary actions or investigations against him.

Klayman brought three lawsuits against the Office of Disciplinary Counsel employees and the Chair of the D.C. Board on Professional Responsibility, alleging that the notification letters amounted to tortious interference and abuse of process. The district court dismissed Klayman's suits in full and entered a pre-filing injunction restricting Klayman's ability to file any related actions or claims for relief in any forum, state or federal.

Klayman challenges both the pre-filing injunction and the dismissal of his claims. We vacate the pre-filing injunction. We affirm on immunity grounds the district court's dismissal of Klayman's claims for damages, but we affirm in part and reverse in part the district court's dismissal of Klayman's claims for injunctive relief.

I

A

All members of the District of Columbia Bar are subject to the disciplinary jurisdiction of the D.C. Court of Appeals and its Board on Professional Responsibility. D.C. Bar Rule XI, § 1(a); D.C. CODE § 11-2502.¹ Accordingly, the Board has the power to "consider and investigate any alleged ground for discipline or alleged incapacity of any attorney * * * and to take such action with respect thereto as shall be appropriate[.]" D.C. Bar Rule XI, § 4(e)(1).

Members of the Office of Disciplinary Counsel ("ODC") prosecute attorney-discipline matters before the Board. See D.C. Bar Rule XI, § 6(a)(4). In that role, Disciplinary Counsel are empowered to investigate, prosecute, and dispose of all matters involving alleged attorney misconduct, see id. § 6(a)(2)-(4), and to "maintain permanent records of all matters processed and the disposition thereof," id. § 6(a)(6). D.C. Bar Rule XI provides that members of the Board and the ODC "shall be immune from * * * civil suit for any conduct in the course of their official duties." Id. § 19(a).

Over the past several years, the ODC has investigated and sought discipline against Klayman multiple times. See, e.g., In re Klayman, 282 A.3d 584, 587-590, 598 (D.C. 2022); In re Klayman, 228 A.3d 713, 715-717, 719-720 (D.C. 2020); Report and Recommendation of Hearing Committee Number Nine at 1-2, In re Larry Klayman, No. 18-BD-070 (D.C. Bd. Prof. Resp. Sept. 20, 2023).

Klayman, for his part, has repeatedly sued the District of Columbia Bar, the ODC, and individual D.C. Bar officials, alleging tortious conduct and constitutional harms arising from their proceedings against him. See generally Klayman v. Fox, No. 18-cv-1579, 2019 WL 2396538 (D.D.C. June 5, 2019); Klayman v. Lim, No. 18-cv-2209, 2019 WL 2396539 (D.D.C. June 5, 2019); Order, Klayman v. Porter, No. 2020-CA-000756-B (D.C. Super. Ct. Oct. 1, 2020); Klayman v. Porter, No. 22-cv-80642, 2022 WL 4229383 (S.D. Fla. Aug. 8, 2022); Klayman v. Kaiser, No. 21-cv-727, 2023 WL 8941317 (D.D.C. Jan. 23, 2023); Klayman v. Porter, No. 22-cv-953, 2023 WL 2496738 (D.D.C. Mar. 14, 2023).

We have previously affirmed dismissals of several of these suits. See Klayman v. Kaiser, No. 23-7020, 2023 WL 8890505, at *1 (D.C. Cir. Dec. 26, 2023); Klayman v. Lim, 830 F. App'x 660, 661 (D.C Cir. 2020); see also Klayman v. Porter, No. 23-7034, 2024 WL 137330, at *1 (D.C. Cir. Jan. 12, 2024).

As relevant here, in June 2020, the District of Columbia Court of Appeals accepted the Board's recommendation that the court suspend Klayman for ninety days for violating a conflict-of-interest provision in the District of Columbia Rules of Professional Conduct. See In re Klayman, 228 A.3d at 715; see also D.C. Rule of Professional Conduct 1.9 (Conflict of Interest: Former Client). Klayman challenged the order by petitioning for rehearing and rehearing en banc. Both motions were denied.

While Klayman's rehearing petitions were pending before the D.C. Court of Appeals, ODC employees sent ex parte letters to courts to which Klayman is admitted that notified them of the suspension order. The employees did not copy Klayman on those communications.

Klayman alleges that, after receiving notice of the suspension, the U.S. District Court for the Northern District of Texas opened a reciprocal disciplinary case against him, directed the clerk to remove Klayman's electronic filing privileges, and ordered Klayman not to file any more cases in that court. Klayman further alleges that the Ninth Circuit issued an order to show cause as to why it should not issue reciprocal discipline.

B

Klayman filed three separate lawsuits against the ODC employees and Matthew Kaiser, the Chair of the Board, (collectively, "ODC Employees") in federal district courts in Texas and California. See Complaint, Klayman v. Porter, 20-cv-2526 (N.D. Tex. Aug. 26, 2020); Complaint, Klayman v. Porter, 20-cv-1014 (W.D. Tex. Oct. 2, 2020); Complaint, Klayman v. Kaiser, 20-cv-9490 (N.D. Cal. Dec. 31, 2020). In each suit, Klayman alleged that the ODC Employees were engaged in a politically motivated agenda aimed at removing him from the practice of law, see App. 3, 103, 207, and asserted that the ex parte letters tortiously interfered with his business relationships with his clients and constituted an unethical abuse of the attorney-discipline process, see App. 9-11, 109-111, 218-220. Klayman sought damages and, in one suit, an injunction ordering the ODC Employees to provide him with copies of the ex parte letters. See App. 11-12, 111, 221.

The cases were transferred to the U.S. District Court for the District of Columbia and consolidated. The ODC Employees subsequently filed two motions relevant to this appeal. First, they moved for a permanent injunction that would, among other things, prevent Klayman from "filing any new action, complaint, or claim for relief against" the ODC Employees, the Office of Disciplinary Counsel, current and former employees of the Office of Disciplinary Counsel and the Board of Professional Responsibility, or any D.C. Bar officials "in any federal court, state court, or any other forum * * * without first making application to and receiving the consent of [the district court] and any other court where the litigation is proposed to be filed." App. 440. The ODC Employees argued that such an injunction was necessary because Klayman's "vexatious" and "meritless" motions and lawsuits imposed unjustified burdens on the parties and the court, and had "extract[ed] a substantial personal toll on the [ODC Employees] and their families[.]" App. 440 (quotation marks omitted).

The ODC Employees also moved to dismiss Klayman's consolidated lawsuits in full, asserting that the D.C. Bar Rules confer absolute immunity on ODC employees for their official actions. The ODC Employees further argued that the court should dismiss Klayman's request for injunctive relief based on Younger abstention, which generally obligates federal courts to abstain from enjoining ongoing state proceedings. See Younger v. Harris, 401 U.S. 37, 43-45, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); see also Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 431-435, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982).²

The district court granted both motions in a single order.

To start, the district court entered a pre-filing injunction against Klayman. The court's order provided that:

[W]ithout first making application to and receiving the consent of this Court or any other court where additional litigation is proposed to be pursued, [Klayman wa]s ENJOINED from:

(1) filing, in any federal court, any new action, complaint, or claim for relief concerning any matter derived from [Klayman's] disciplinary proceedings which are the subject of this case as well as Klayman v. Fox, Civil Action No. 18-cv-1579; Klayman v. Lim, Civil Action No. 18-cv-2209; and Klayman v. Porter, No. 2020 CA 000756 B, and against the [ODC Employees]; their employer, the Office of the Disciplinary Counsel; current and former employees of the office of Disciplinary Counsel, the Board of Professional Responsibility; or any D.C. Bar officials; or

(2) serving or causing to be served any of the [ODC Employees] with a subpoena or any other instrumentality of civil discovery in any other legal proceeding concerning any matter derived from [Klayman's] disciplinary proceedings which are the subject of this case as well as Klayman v. Fox, Civil Action No. 18-cv-1579; Klayman v. Lim, Civil Action No. 18-cv-2209; and Klayman v. Porter, No. 2020 CA 000756 B.

App. 424 (formatting modified).

In imposing the pre-filing injunction, the court pointed to six of Klayman's...