[00:00:00] Speaker 00: Case number 23-7073, Ed Al. [00:00:04] Speaker 00: Inry Jeffrey B. Clark, Jeffrey B. Clark, a member of the Bar of the District of Columbia Court of Appeals, Bar Registration number 455315, Appellant, versus DC Office of Disciplinary Counsel. [00:00:17] Speaker 00: Mr. McDougall for the appellant, Mr. Metzler for the appellee. [00:00:22] Speaker 06: Good morning. [00:00:23] Speaker 06: I'm Harry McDougall for the appellant, Jeffrey Clark. [00:00:26] Speaker 06: May it please the court? [00:00:28] Speaker 06: The primary issue in this case is whether bar discipline cases are removable to federal court under the federal officer removal statute. [00:00:37] Speaker 06: And we submit that the answer to that question is emphatically yes, if the requirements of the statute are met, which they are, which is that Mr. Clark was a federal officer and he asserts federal defenses. [00:00:50] Speaker 06: Therefore, he's entitled to the federal forum. [00:00:54] Speaker 06: The case arises from a confidential internal deliberative draft of a letter that in the final analysis was never sent and never left the office. [00:01:08] Speaker 06: The case arose [00:01:11] Speaker 06: in response to a complaint letter from a single Democrat senator, Senator Richard Durbin. [00:01:17] Speaker 06: The main arguments about whether the case is removable are, are bar cases a category that is or is not removable? [00:01:26] Speaker 06: Does the McDade Act, which is 28 USC 530B, and the regulations under that change the analysis in any way? [00:01:35] Speaker 06: And then third, should the court follow the 11th Circuit's decision in Georgia versus Meadows? [00:01:41] Speaker 06: Bar cases should be removable in order to uphold purposes of the federal officer removal statute, which are to vindicate and protect federal supremacy and give federal officers a federal Article 3 forum to adjudicate their federal defenses to protect them from local passion and prejudice. [00:02:04] Speaker 06: There has been one case, an appellate case, a federal appellate case, Kolabash in the Fourth Circuit from Judge [00:02:10] Speaker 06: Wilkinson wrote the opinion and he held that or the court held that bar cases were removed and that the issue of the hybrid nature of a bar proceeding should not matter, that the court should not get hung up on matters of form and should focus on whether a state judicial process is asserting power over a federal official. [00:02:36] Speaker 05: What do you do with McDade? [00:02:39] Speaker 05: OK. [00:02:40] Speaker 05: To me, that's your toughest issue. [00:02:43] Speaker 05: You have Judge Wilkinson. [00:02:46] Speaker 05: You have least colorable arguments on any proceeding. [00:02:50] Speaker 05: But McDade says DOJ lawyers are subject to rules, state rules governing lawyers, to the same extent. [00:03:04] Speaker 05: and in the same manner as private lawyers. [00:03:07] Speaker 06: So we have several points in response to McDade, but the first one is that McDade is a statute that supplies the rule of decision. [00:03:16] Speaker 06: It does not specify the form. [00:03:19] Speaker 06: It says nothing about the form in which the case was heard. [00:03:22] Speaker 01: In the same manner? [00:03:23] Speaker 01: In the same manner? [00:03:25] Speaker 06: That language is a protection against singling out federal attorneys [00:03:32] Speaker 06: which is the primary concern of the federal officer removal statute, which is to protect federal officers from local passion and prejudice. [00:03:41] Speaker 06: And that problem was precisely anticipated in the Colabash case. [00:03:46] Speaker 05: Rules governing lawyers. [00:03:50] Speaker 05: If you just had that phrase, one might read it to be focused on the primary conduct of the lawyers. [00:04:02] Speaker 05: and to the same extent is consistent with that. [00:04:07] Speaker 05: But in the same manner seems to extend that phrase to the adjudicatory process. [00:04:19] Speaker 06: Respectfully disagree with the premise of the question, your honor, and I would cite to you as an example. [00:04:25] Speaker 06: the preamble to the regulations that were adopted under 530B as printed in the Federal Register. [00:04:33] Speaker 06: And it says, Section 530B directs department attorneys to comply with rules of ethical conduct, but is silent on enforcement mechanisms. [00:04:44] Speaker 06: For this reason, Section 530B does not change the enforcement authority of the Department of Justice's Office of Professional Responsibility [00:04:53] Speaker 06: state authorities or federal courts. [00:04:56] Speaker 06: And so the question, the dominant question, predominant question under the federal officer removal statute is whether a state judicial process is asserting enforcement authority over a federal officer. [00:05:10] Speaker 06: And in the Willingham case, Willingham versus Morgan, the court said that the scope of what's a removable action should be at least as broad as immunity. [00:05:22] Speaker 06: and we have asserted a number of immunity defenses arising from federal supremacy and his status as a federal officer. [00:05:29] Speaker 05: Suppose the case were removed. [00:05:33] Speaker 05: Yes, sir. [00:05:34] Speaker 05: What process would apply in US district court? [00:05:41] Speaker 05: Would the district court summon hearing committee somehow or appoint its own hearing committee [00:05:51] Speaker 05: Would it ask the hearing committee and you have the board and you have all these. [00:06:07] Speaker 05: administrative actors who are under the DC Court of Appeals, and there's no parent mechanism to replicate that in federal court. [00:06:18] Speaker 05: So how does the federal court, how would the federal court proceeding? [00:06:22] Speaker 06: In federal court would follow the federal rules of procedure. [00:06:26] Speaker 06: Now, because it's a quasi criminal case. [00:06:28] Speaker 06: Jury trial or bench trial? [00:06:32] Speaker 06: I haven't thought that far ahead to be perfectly candid with you, Your Honor. [00:06:35] Speaker 06: I mean, I guess, but it's a procedural questions and because substantive law would be the DC bar rules. [00:06:41] Speaker 06: The procedural rules would be the rules of procedure in federal court. [00:06:46] Speaker 05: Point is. [00:06:47] Speaker 05: It's going to be a lot more variance. [00:06:52] Speaker 05: Than just. [00:06:54] Speaker 05: decision maker at the end of the process is a U.S. [00:06:58] Speaker 05: district judge rather than the D.C. [00:07:01] Speaker 05: Court of Appeals judges. [00:07:03] Speaker 05: It's going to be starkly different, which just makes it a little hard to say that the removing lawyer is being subject to the state bar rules in the same manner as a private lawyer would [00:07:19] Speaker 06: I don't know if this is the specific answer to the procedural question that you're posing, but the rules of the federal district court in DC have an entire disciplinary process with a review panel of judges and a committee of lawyers to hear cases. [00:07:37] Speaker 06: Now, we haven't litigated how that would apply to a removed bar case, but in the Colabash case, you know, there was a [00:07:47] Speaker 06: argument there was a tension between the state's interest in enforcing its laws and the federal interest in protecting supremacy. [00:07:54] Speaker 06: It was pitched as a federalism fight and that was resolved by holding that the federal interest in supremacy was paramount. [00:08:02] Speaker 01: In relation to this issue that Judge Katz has raised is about the anomaly of [00:08:09] Speaker 01: of proceeding being, um, in the same manner where it would actually have to be in a different manner. [00:08:14] Speaker 01: Do you have any information what happened in Colabash after that as a sort of example of how this might work? [00:08:23] Speaker 06: We do, but it's not in the record. [00:08:25] Speaker 01: And it's not, uh, [00:08:27] Speaker 01: available in a public court record? [00:08:29] Speaker 06: We have obtained those records, and we could file those in, but we... No, I just... If you could just tell us. [00:08:34] Speaker 01: I just am trying to get an idea of how that goes. [00:08:36] Speaker 06: I think the case went away. [00:08:38] Speaker 06: I think the case went away. [00:08:40] Speaker 06: It was a politically charged case from West Virginia at the time of primarily Democrat state against a U.S. [00:08:49] Speaker 06: attorney and a Republican administration. [00:08:51] Speaker 06: And needless to say, this case has political overtones as well. [00:08:55] Speaker 01: So are you treating the subpoena and the disciplinary hearing as separate matters? [00:09:05] Speaker 01: Or in your view, do they rise and fall together? [00:09:09] Speaker 01: In other words, if there's no removal of the disciplinary proceeding, are you still seeking removal somehow separately of subpoena enforcement? [00:09:21] Speaker 06: So that's actually a good question. [00:09:23] Speaker 06: We filed the initial removal with respect to the first subpoena that was served in August and with respect to the charges. [00:09:33] Speaker 06: And the statute says that subpoenas are removable and can bring the rest of the case with it if there is a basis for federal jurisdiction, which there certainly is in this case. [00:09:45] Speaker 06: Now, to be clear, the subpoenas were held unenforceable [00:09:49] Speaker 06: by the DC Court of Appeals back in late February. [00:09:54] Speaker 01: I'm sorry to interrupt you. [00:09:55] Speaker 01: Just to get clear, you said the subpoenas are enforceable and can bring the rest of the case with them. [00:10:03] Speaker 01: So again, I'm trying to understand, if we thought, no, the rest of the case doesn't go, then do you have an interest as your client, have an interest in any kind of separate removal of the subpoena process itself? [00:10:19] Speaker 06: Well, if there is removal jurisdiction as to the subpoena or any other part of the case, then any action taken by the local forum is void because they didn't have jurisdiction. [00:10:34] Speaker 06: The case should have been in federal court. [00:10:35] Speaker 06: So that the odd thing... Go ahead, please. [00:10:39] Speaker 04: odd thing is that you've won. [00:10:41] Speaker 04: Yes, in state court. [00:10:43] Speaker 04: So it seems to me that what you would get if we took an action that rendered the Court of Appeals decision void is a chance to lose in federal court. [00:10:53] Speaker 04: And I'm not sure that's the kind of interest that keeps the case alive in an article three cents point taken your honor every time you walk in the door and you have a chance of losing. [00:11:02] Speaker 06: But let me give you an example of what one reason why we would rather be in federal court. [00:11:07] Speaker 06: The law in federal practice is that jurisdictional questions are decided first before an evidentiary hearing. [00:11:16] Speaker 06: We asserted that in the bar process, and the bar process says, well, we don't make jurisdictional rulings before evidentiary hearings. [00:11:24] Speaker 06: We have evidentiary hearings, and then we decide legal questions. [00:11:28] Speaker 06: But under Roar Gas and Steel Company, we're entitled to jurisdictional rulings [00:11:33] Speaker 06: before we're put to the trouble and expense of an evidentiary hearing. [00:11:36] Speaker 06: We lost that right because we were not in a federal form. [00:11:39] Speaker 01: What jurisdictional ruling are you thinking about? [00:11:43] Speaker 06: We say we have several. [00:11:47] Speaker 06: One, we don't believe that the Office of Disciplinary Counsel has jurisdiction [00:11:53] Speaker 06: to regulate confidential and privileged discussions between the president and his senior legal advisors at the apex of the Justice Department when no action is taken as a result of that. [00:12:05] Speaker 06: That is an interference with the supremacy of the Article 2 [00:12:10] Speaker 06: executive branch. [00:12:12] Speaker 01: But it wouldn't be the ODC, it would be, so you're seeking to go to federal court so the federal court would first hear that, but the federal court doesn't have the jurisdictional defect that the DC bar discipline process, that you're asserting against the DC bar discipline process. [00:12:29] Speaker 01: So the sequence would go away in federal court, but you'd be in federal court. [00:12:33] Speaker 06: We'd be in federal court, and we would be entitled to a decision on our jurisdictional defenses, which go beyond the one I've identified before the evidentiary hearing. [00:12:41] Speaker 01: The jurisdictional defense that you mentioned is one that relates to the jurisdiction of the DC disciplinary procedure, which is why I'm confused. [00:12:49] Speaker 01: Do you have jurisdictional defenses that go to the jurisdiction of the federal court? [00:12:55] Speaker 06: Can the substantive rule of decision, can a bar discipline case be made against a federal attorney over a draft confidential document that never leaves the office? [00:13:08] Speaker 06: If the answer to that is yes, then confidential draft documents prepared in your offices that are never published would likewise be subject to discipline by the Office of Disciplinary Counsel. [00:13:19] Speaker 01: But that's a merits issue. [00:13:20] Speaker 06: Yes, it is. [00:13:21] Speaker 06: But it's a jurisdictional question because there are federal immunities that derive from the constitutional order and the federal supremacy clause and the separation of powers. [00:13:30] Speaker 01: Most immunities, federal immunities, not jurisdictional. [00:13:33] Speaker 01: Pardon? [00:13:34] Speaker 01: I'm not sure that I'm tracking you, are you? [00:13:36] Speaker 01: My colleagues also. [00:13:39] Speaker 04: Counsel, can we just, oh, please go ahead. [00:13:43] Speaker 06: My answer would be immunity defenses are couched as subject matter jurisdiction. [00:13:49] Speaker 06: in many, many cases. [00:13:51] Speaker 06: There's also official sovereign immunity or qualified immunity. [00:13:57] Speaker 05: Subject matter, jurisdictional or purposes of the rule that they have to be considered first. [00:14:06] Speaker 05: Okay. [00:14:06] Speaker 05: I mean, they're special in some ways like interlocutory appeal purposes, but they can be waived. [00:14:13] Speaker 06: then we have an argument that 530B does not grant disciplinary authority to the District of Columbia because the statute says states, it doesn't say District of Columbia. [00:14:27] Speaker 05: I'm just puzzling over the subpoena piece because we are only separately addressing [00:14:39] Speaker 05: the removal, removability of the subpoena enforcement action if you've lost on the main part of your case. [00:14:49] Speaker 05: I think that's right. [00:14:49] Speaker 05: We disagree with you that the whole thing is removable. [00:14:54] Speaker 05: And then we're just talking about the little piece of it in which your friend sought subpoenas from the DC Court of Appeals. [00:15:04] Speaker 05: And as far as I can tell, [00:15:08] Speaker 05: one of those proceedings is over because she won and the other, the other subpoena was never enforced. [00:15:16] Speaker 05: So what's left in the subpoena part of the controversy? [00:15:23] Speaker 05: If hypothetically we've ruled against you on the main removal argument. [00:15:27] Speaker 06: So we litigated the subpoenas, we asserted the jurisdictional and immunity defenses to the subpoenas. [00:15:34] Speaker 06: Now the decision on enforcement of the subpoena went off on a different ground. [00:15:39] Speaker 06: When it was decided, it was based on Fifth Amendment privilege. [00:15:42] Speaker 06: But we also asserted that the ODC did not have authority to intrude into the inner sanctums of the Oval Office and the apex of the Justice Department to discipline lawyers over confidential internal deliberations about disputed [00:16:00] Speaker 05: but subpoena proceeding in the DCCA. [00:16:05] Speaker 05: has zero likelihood of causing that intrusion because the DCCA has refused to enforce. [00:16:13] Speaker 06: But that's a close talk. [00:16:15] Speaker 06: The analysis is undertaken at the time of the subpoena. [00:16:19] Speaker 06: And if we prevail on removability, that decision is taken away. [00:16:23] Speaker 06: And then the question of whether the subpoena unlawfully or unconstitutionally intrudes on the operations of the executive branch or the federal government under the supremacy clause [00:16:34] Speaker 06: is a front and center question. [00:16:36] Speaker 01: So I think we're still, your answers are still a little bit opaque. [00:16:47] Speaker 01: If, let's say there were a federal statute that said, [00:16:52] Speaker 01: federal officials that are subject to bar discipline must be disciplined according to the process that goes from hearing committee to the board to the DCCA. [00:17:10] Speaker 01: Let's say it was completely clear, and we are bound by that. [00:17:15] Speaker 01: But there's a subpoena that is sought to be enforced. [00:17:21] Speaker 01: in DC court, and you challenge that and say, no, under federal officer removal, the enforcement proceeding should go to federal court. [00:17:36] Speaker 01: If that's the posture, is there an interest on the part of your client in taking this? [00:17:42] Speaker 01: I think we're talking about the October subpoena to federal court, or if it were the case, and I realize that is not your position, but if it were the case, that there's no chance that it could carry the [00:17:56] Speaker 01: disciplinary proceeding to federal court. [00:18:00] Speaker 01: Would you be asserting that that subpoena should go to court? [00:18:04] Speaker 06: So first, I apologize for being okay with my answers. [00:18:06] Speaker 06: Secondly, if I understand the question correctly, the premise is that there would have been an explicit federal statute that excludes bar cases explicitly from removability. [00:18:21] Speaker 06: And in that situation, we would not have recourse [00:18:24] Speaker 06: to remove the subpoena because the subpoena would be, I think, unless the statute talks about ancillary, but 1445, 28-1445 is a list of actions that are specifically not removable. [00:18:41] Speaker 06: Bar proceedings are not on there. [00:18:43] Speaker 06: They were not added to that list by 530B and so on. [00:18:46] Speaker 01: You're moving into a separate argument. [00:18:47] Speaker 01: But I think another way of putting my hypothetical, a different way of putting it, is assume that we hear and will reach your argument that there's a relationship between the subpoena and the bar proceeding, such that we will address whether the subpoena being removable necessarily carries with it the bar proceeding. [00:19:10] Speaker 01: If you're satisfied that we will get that right on the merits in your view, do you separately have a claim? [00:19:17] Speaker 01: And I take you to be saying not really. [00:19:18] Speaker 01: Your client doesn't have an interest in... [00:19:23] Speaker 01: in separating the two so that the subpoena might be adjudicated in federal court if for whatever reason it is correct that the bar proceeding. [00:19:35] Speaker 06: If bar cases are specifically excluded from removability and we're just talking about the removability of a subpoena that's from the first party to the second party, [00:19:47] Speaker 06: we would be in a much tougher spot. [00:19:51] Speaker 06: I don't know how that would come out. [00:19:52] Speaker 06: You might, at that point, have a challenge to the constitutionality of the exclusion of bar cases from removability because it weakens in protection of federal supremacy. [00:20:05] Speaker 06: That's the point. [00:20:06] Speaker 01: And could you bring a federal case mandamus on that federal ground to try to stop the bar proceeding? [00:20:15] Speaker 06: I think your first step would be to try to remove it. [00:20:19] Speaker 06: That would be the statutory remedy. [00:20:21] Speaker 06: And if you sought an injunction, the answer would be you've got an adequate remedy at law under the removal statute. [00:20:27] Speaker 01: So back on the question about, you said that it would be, if we were just talking about removable subpoena, that would be, I think you said a harder case. [00:20:39] Speaker 01: Yes, ma'am. [00:20:40] Speaker 01: But I think there are issues we would need to reach. [00:20:43] Speaker 01: on that point, if we were to treat them separately. [00:20:47] Speaker 01: And I'm just trying to understand actually what you are putting before us. [00:20:54] Speaker 06: Okay, so in our notices of removal. [00:20:57] Speaker 06: So we had a first notice of removal as to the October subpoena and the charges. [00:21:03] Speaker 06: After we filed that, they served or attempted to serve a second subpoena. [00:21:07] Speaker 06: And we're like, [00:21:09] Speaker 06: We don't think you should do that. [00:21:11] Speaker 06: We think you're barred from doing that. [00:21:12] Speaker 06: But since you've done it, we're going to remove the second subpoena. [00:21:15] Speaker 06: And that was repeated with the third subpoena until finally the DCCA said this case has stayed pending resolution of the removal proceedings. [00:21:26] Speaker 06: So we had to come back and back and back because we were getting pounded with these subpoenas. [00:21:35] Speaker 06: It depends on what the subpoena asks for. [00:21:38] Speaker 06: If the subpoena asks for information that intrudes on constitutionally privileged deliberations at the apex of the Justice Department, it should be quashed on constitutional grounds. [00:21:52] Speaker 06: And among those constitutional grounds is- Council, sorry. [00:21:55] Speaker 04: I just want to break this down because there's two separate subpoenas, right? [00:21:59] Speaker 04: One is the one served in December. [00:22:02] Speaker 04: which my understanding is your client voluntarily complied without filing a motion to quash or anything else. [00:22:10] Speaker 06: I need to correct you on that. [00:22:12] Speaker 04: We objected to that subpoena. [00:22:14] Speaker 04: In what fashion? [00:22:15] Speaker 06: In a lengthy set of letters that we wrote back to disciplinary counsel. [00:22:21] Speaker 06: Then there was a motion to enforce that subpoena. [00:22:26] Speaker 06: that was litigated up to the decent that's filed as an original that's the October that's the October subpoena the litigation over the first subpoena was resolved in September of twenty two that was followed by a second subpoena and the rest of the basis of the resolution [00:22:46] Speaker 06: by the DCCA of that first subpoena was that it was mooted by the filing of the charges because it was an investigative state subpoena. [00:22:54] Speaker 01: I think they were talking about only, you're right, there are three subpoenas, but the first subpoena is not subject to the briefing in the case. [00:23:01] Speaker 01: So when we say first, I think we mean what you're referring to as second. [00:23:05] Speaker 04: I apologize. [00:23:05] Speaker 04: The first was in August, the second is in October, and the third is in December, correct? [00:23:13] Speaker 04: Okay, we'll call it the second. [00:23:14] Speaker 06: I don't have the sequence, the dates exactly, I apologize. [00:23:16] Speaker 04: My understanding based on the briefing and the records is that the third subpoena, the last notice of removal, is one that before the district court ruled on the removal issue, you complied with. [00:23:29] Speaker 04: Is that correct? [00:23:30] Speaker 06: We partially complied with the third subpoena. [00:23:32] Speaker 04: Okay. [00:23:33] Speaker 04: And so is it fair to say, what is the live dispute over that subpoena? [00:23:39] Speaker 04: Isn't it? [00:23:40] Speaker 06: Well, it depends on whether you are looking at it from the point as if the rulings were never made in the DCCA. [00:23:49] Speaker 06: If the federal court accepts removal jurisdiction, those things go away and then all those issues are wiped. [00:23:54] Speaker 06: But as we sit here today, if there is no removal jurisdiction, [00:23:58] Speaker 06: If we're out of federal court, there are no more live subpoena issues. [00:24:02] Speaker 04: The subpoena that results in the DCCA opinion. [00:24:06] Speaker 04: If that's all this case is about, in the District DC Court of Appeals, essentially what happened is there is a court judgment saying that subpoena cannot be enforced against your client, right? [00:24:20] Speaker 04: Correct. [00:24:21] Speaker 04: And so the other side files a notice and says, we've lost. [00:24:25] Speaker 04: We think this is moot. [00:24:27] Speaker 04: I just want to understand directly, just as to that subpoena, why is it moot if the only outcome in federal court, the best possible outcome on the subpoena is subpoena is not enforced. [00:24:40] Speaker 04: You've already got that result. [00:24:42] Speaker 06: It goes to the question of whether the federal court should have taken jurisdiction of this case. [00:24:49] Speaker 06: And if removal jurisdiction is proper, then as a matter of law, [00:24:53] Speaker 06: all proceedings subsequent to the removal in this local forum are void, because they were issued without jurisdiction. [00:25:01] Speaker 04: That's the problem. [00:25:02] Speaker 04: I totally understand. [00:25:03] Speaker 04: And maybe if you were right on all of your arguments, you shouldn't have even been subjected to litigating the subpoena in the way. [00:25:11] Speaker 04: That is our argument. [00:25:12] Speaker 04: But that's happened. [00:25:13] Speaker 04: We cannot make that reality change. [00:25:16] Speaker 04: As an Article III court, why is it now effectual relief [00:25:22] Speaker 04: to give you the chance to re-litigate the very same issues in federal court. [00:25:26] Speaker 06: We have been injured by being deprived of our right to a federal forum because notwithstanding our federal defenses, which include jurisdictional defenses, which should have been decided before the evidentiary hearing, we've had to go through an evidentiary hearing. [00:25:43] Speaker 06: And we have had a preliminary finding. [00:25:46] Speaker 04: But just on the subpoena. [00:25:47] Speaker 04: I totally understand. [00:25:49] Speaker 04: The hearing is extremely live. [00:25:51] Speaker 04: Sorry. [00:25:52] Speaker 04: The subpoena. [00:25:54] Speaker 04: OK. [00:25:55] Speaker 04: OK. [00:25:55] Speaker 04: I think I understand your answer. [00:25:56] Speaker 01: So let me get at that a different way. [00:26:00] Speaker 01: So you have opposed the ODC's suggestion that the challenge to the subpoena enforcement is moot, notwithstanding that your client has prevailed on that. [00:26:12] Speaker 01: But if there were a ruling favorable to your client reversing the district court's remand order on the whole case, on the disciplinary proceeding, that would invalidate the record compiled by the hearing committee. [00:26:29] Speaker 01: So you would have to start over again. [00:26:32] Speaker 01: And Mr. Clark might be exposed to additional subpoenas. [00:26:37] Speaker 01: Those would be issued under the auspices of the federal court. [00:26:40] Speaker 01: Correct. [00:26:41] Speaker 01: But that wouldn't overcome the mootness of the challenge to the October subpoena. [00:26:48] Speaker 01: It would confirm it because that subpoena, you're not getting or enforcing a subpoena issued under the auspices of the disciplinary proceeding and sought to be enforced in the DCCA. [00:27:02] Speaker 01: There would have to be an entirely new subpoena. [00:27:04] Speaker 01: So I'm not sure if you lose [00:27:08] Speaker 01: The effort to remove the underlying disciplinary proceeding, I'm not sure you want to go into federal court on the subpoena alone. [00:27:18] Speaker 01: If you win, I mean, because you've already won that. [00:27:21] Speaker 01: And if you win, it goes away in a more profound sense. [00:27:26] Speaker 01: And so either way, I'm not sure what the continuing interest is in that subpoena. [00:27:33] Speaker 06: So I go back to the willing case. [00:27:37] Speaker 06: The purpose of removal is to vindicate federal supremacy and the scope of what's a removable action is at least broad enough to cover any immunity defenses that the federal officer has because that's necessary to protect federal supremacy from local enforcement encroachment. [00:27:58] Speaker 06: And the way we see this case, [00:28:01] Speaker 06: is that it is a wrongful, politically motivated persecution of conduct that is not a cognizable bar violation because the draft letter was never sent. [00:28:12] Speaker 06: And that's a real Pandora's box. [00:28:14] Speaker 06: If the bar can go into that box and start disciplining lawyers. [00:28:18] Speaker 01: I'm sorry, but I don't see how that's. [00:28:21] Speaker 01: at all responsive to the question that I asked, which is, what is the client's continuing interest, either if the whole thing gets removed, or if only the subpoena would be getting removed, given that the subpoena as a separate matter has been resolved in DC in your client's favor, and if it's packaged together with the disciplinary proceeding and the whole package gets removed, the subpoena is a nullity anyway. [00:28:49] Speaker 06: So if we're in a, I'll try to do a better job of answering your question. [00:28:53] Speaker 06: If the subpoena is the only thing that's removable, then we may change our mind about it. [00:29:01] Speaker 06: But right now, we think the whole case is removable. [00:29:04] Speaker 06: If the whole case is removable, we want it removed. [00:29:07] Speaker 01: Do you have any interest that you can identify today when you say we may change our mind? [00:29:12] Speaker 01: I think that's what I'm really trying to get you to take a position on is, can you identify any interest today in removal if it's the only prospect is to remove it separately? [00:29:25] Speaker 01: And we absolutely hear your arguments that that is not the way to look at the case. [00:29:32] Speaker 06: As a practical matter, [00:29:34] Speaker 06: it would be pretty slim, but the removal statute, it's not just for the benefit of the officer, it's for the benefit of the federal government. [00:29:41] Speaker 01: So would you be, I mean, think about, and you'll have a moment on rebuttal, so maybe you could address it then, but I would reflect on whether, if the court were to rule on, in this or other cases, that you're in, you know, you won a quashal, and if you're stuck, [00:30:03] Speaker 01: in the DC bar proceeding, are you going to want to say to your client, actually, we gave away that partial, and we're going to deal with the subpoena separately in federal court, but that's the only thing we want. [00:30:16] Speaker 06: So I don't have to answer that now, but I just. [00:30:19] Speaker 06: It would be a little bit awkward to have a subpoena enforced after the evidentiary hearing had been completed and briefed. [00:30:26] Speaker 01: And to have the victory that you had given away in an effort to be in federal court on something that [00:30:33] Speaker 06: Well, hopefully the entire case will be removed. [00:30:36] Speaker 01: Right, exactly. [00:30:38] Speaker 05: Another variation on this theme. [00:30:42] Speaker 05: You have one set of arguments for removing the whole matter, and that's your primary position. [00:30:50] Speaker 05: Correct. [00:30:50] Speaker 05: We got that. [00:30:51] Speaker 05: Thank you. [00:30:52] Speaker 05: We can deal with that. [00:30:54] Speaker 05: We'll deal with it. [00:30:55] Speaker 05: You have a much narrower fallback argument that [00:31:02] Speaker 05: the subpoena proceedings are removable, right? [00:31:06] Speaker 05: Under the Clarification Act. [00:31:09] Speaker 05: Correct. [00:31:10] Speaker 05: Okay. [00:31:10] Speaker 05: But that act says if the ancillary subpoena proceeding is removable solely by virtue of the Clarification Act, only that proceeding may be removed to the district court. [00:31:30] Speaker 05: So your fallback argument gives you a second shot at removing the subpoena proceedings, but you can't use that to take up the rest of the case. [00:31:44] Speaker 06: It also says, unless there is no other basis for removal. [00:31:47] Speaker 06: Which just gets us back to your primary argument about the case. [00:31:51] Speaker 06: Correct. [00:31:51] Speaker 06: Correct. [00:31:51] Speaker 06: And so we say there is a basis for removal, which is that there are federal defenses. [00:31:55] Speaker 05: OK, but then what is the fallback argument adding? [00:31:59] Speaker 05: Pardon? [00:32:00] Speaker 05: What is the fallback argument adding if you just... Well, we're... The only way to get the rest of the case removed is not through some sort of pendant theory, like the subpoena action comes in, so the rest of the case therefore comes in. [00:32:19] Speaker 05: You get the subpoena proceeding here, you're still back to your first QP on whether the whole case comes in. [00:32:27] Speaker 06: We're taking statute as we find it. [00:32:29] Speaker 06: and the statutes to be liberally construed and not hung up on matters of form. [00:32:34] Speaker 06: And the 2011 amendments essentially codified the Brandon Williamson versus Williams case on this circuit and also adopted the reasoning of Kolobash and similar cases that dealt with so-called hybrid proceedings. [00:32:49] Speaker 04: being movable question about a separate requirement on for the full hearing itself. [00:32:54] Speaker 04: One of the requirements, as you know, is that it be covered proceeding proceeding in which a judicial order is sought. [00:33:02] Speaker 04: And your argument on that is essentially at the end of the day, they're going to look for a order of disbarment. [00:33:07] Speaker 04: Correct. [00:33:07] Speaker 04: And as I understand it, [00:33:09] Speaker 04: The argument on the other side is that, essentially, a disciplinary proceeding occurs in two phases. [00:33:15] Speaker 04: And we're in phase one, essentially, where the board is making its recommendations. [00:33:19] Speaker 04: And that's subject to DCCA review and all of that. [00:33:22] Speaker 04: Then there's a second phase where they have to actually go to the court and seek the order of disbarment. [00:33:27] Speaker 04: And so what they would say is that first phase is not seeking a judicial order yet. [00:33:35] Speaker 04: And I just want to know what your response is to that. [00:33:37] Speaker 06: So I don't think we can split hairs about the nature of the proceeding in order to take it out of the removal statute. [00:33:47] Speaker 06: It's the statutory definition. [00:33:49] Speaker 06: is any proceeding in which a judicial order is sought. [00:33:53] Speaker 06: And they cannot get what they want, which is disbarment, without a judicial order. [00:33:59] Speaker 01: Except before you even get to the definition, the 1442A refers to a civil action or criminal prosecution commenced in state court. [00:34:10] Speaker 01: So this has not been commenced in state court. [00:34:12] Speaker 01: There's no state court action in DC whatsoever. [00:34:16] Speaker 06: Right. [00:34:16] Speaker 06: So again, it's any proceeding. [00:34:21] Speaker 01: Commenced in state court. [00:34:23] Speaker 06: But the language should not be read narrowly or grudgingly. [00:34:28] Speaker 06: It should be construed as broadly as the scope of the federal officer's community. [00:34:34] Speaker 01: But we can't read out commenced in state court. [00:34:35] Speaker 06: But you can read it in light of the definition. [00:34:38] Speaker 01: The definition is of civil action. [00:34:40] Speaker 01: But the civil action is modified in the substantive provision of 1442A as a civil action commenced in state court. [00:34:48] Speaker 01: So the definition is going to a subpart, but it doesn't vitiate. [00:34:53] Speaker 01: that commenced in state court express requirement of 1442. [00:34:57] Speaker 06: Almost the exact same issue was presented in Coabash where the bar took the position where we're not a court, we're an administrative proceeding. [00:35:07] Speaker 06: And Judge Wilkinson went through that and said it's close enough for the removal statute because it's an adversary process with a compulsory process, cross-examination, evidentiary rulings, and ultimately legal rulings that are higher [00:35:22] Speaker 06: level and then ultimately for sanction, a judicial order. [00:35:26] Speaker 06: And so the Brandon Williamson case and Cola bash and Willingham and so on, along with the clarifying amendments, [00:35:36] Speaker 06: make it clear that courts construing the removal statute should not get hung up on formalisms and that the focus has to be on whether the state judicial process is acting upon a federal officer with federal defenses. [00:35:56] Speaker 06: Thank you very much. [00:36:09] Speaker 02: I think the simplest way to understand why this case does not belong in federal court is to focus on what is ultimately at stake. [00:36:23] Speaker 02: in the disciplinary proceeding. [00:36:24] Speaker 02: And that is Mr. Clark's license to practice law in the District of Columbia. [00:36:29] Speaker 02: The Congress gave the DC Court of Appeals the exclusive authority to grant that license. [00:36:35] Speaker 02: And it gave the DC Court of Appeals the exclusive authority to discipline attorneys that are members of RISPAR or to expel them. [00:36:44] Speaker 02: And it didn't give that authority to the federal courts. [00:36:48] Speaker 02: Now, that is the same relationship that federal courts have with state courts [00:36:52] Speaker 02: all over the country. [00:36:53] Speaker 02: Federal courts don't tell state courts who they are allowed to license, and they don't tell them whether or not to discipline their attorneys. [00:37:03] Speaker 02: And there's a good reason for that. [00:37:06] Speaker 02: As the DC Circuit put it, the license to practice law in the District of Columbia is a continuing proclamation by the Court of Appeals that the holder is fit to be entrusted with legal matters and to assist in the administration of justice as an officer of the court. [00:37:23] Speaker 02: The question here is whether the DC Court of Appeals should continue to make that proclamation on behalf of Mr Clark and the district court can't answer the question for the DC Court of Appeals. [00:37:37] Speaker 02: So it's no surprise then that the removal statutes themselves don't cover disciplinary matters. [00:37:45] Speaker 02: And that's true even with regard to federal officers. [00:37:49] Speaker 02: My friend talked about the purpose of federal officer removal. [00:37:53] Speaker 02: It's not actually to protect the officer. [00:37:55] Speaker 02: It's to protect state interests from impeding the operation of the federal government. [00:38:01] Speaker 02: And we know that disciplinary proceedings [00:38:04] Speaker 02: don't impede the federal government because Congress told us so in the McDade Amendment. [00:38:08] Speaker 02: It said we want our attorneys to be subject to the same rules to the same extent and in the same manner as the panel has pointed out. [00:38:20] Speaker 02: in the same manner is pretty important. [00:38:23] Speaker 02: That means they, Congress wanted federal attorneys to be subject to the same procedures as other attorneys. [00:38:31] Speaker 02: And in this case, that means the hearing committee procedure that is going forth right now. [00:38:38] Speaker 02: Go ahead. [00:38:41] Speaker 05: McDade covers state rules governing attorneys, emphasis on attorneys. [00:38:50] Speaker 05: not on courts or adjudicators. [00:38:54] Speaker 05: And there's a pretty basic distinction in the law between substance and procedure, primary conduct and secondary conduct. [00:39:06] Speaker 05: Why can't you read that phrase to mean that government lawyers are subject to all of the same substantive law that governs private attorneys? [00:39:21] Speaker 05: And to the same extent and in the same manner is just a couplet, a phrase saying exactly the same with respect to that substantive law. [00:39:35] Speaker 02: Well, I take your question to be as why don't we treat part of the statute as surplusage? [00:39:40] Speaker 02: And the answer to that is, is it the question, right? [00:39:43] Speaker 02: We don't treat parts of the, you know, the can against surplusage says we should. [00:39:50] Speaker 05: It may be surplusage. [00:39:51] Speaker 05: It may be a couple of phrasal synonyms. [00:39:55] Speaker 02: Well, I mean, I think the place to look where the jurisdiction comes from to discipline the disciplined attorneys in DC is the DC Courts Organization Act. [00:40:08] Speaker 02: And there, Congress said directly what it wants to happen to attorneys in the District of Columbia. [00:40:15] Speaker 02: They should be subject to discipline by the... Just stick with Nick Dade. [00:40:18] Speaker 02: Sure. [00:40:18] Speaker 02: The answer to the question is Congress has already spoken there. [00:40:22] Speaker 02: And so even if you thought that Nanner doesn't mandate that [00:40:29] Speaker 02: the words in the same manner don't mandate that the exact procedures be used. [00:40:35] Speaker 02: Congress has already spoken to that. [00:40:37] Speaker 02: And it's said attorneys in DC are subject to the disciplinary authority of the Court of Appeals. [00:40:43] Speaker 04: But your position is that McDade and the words in the same manner override the removal statute, even assuming the removal statute would otherwise apply. [00:40:55] Speaker 04: If we held, I'm not sure that it would be surplusage if we rejected that broad argument, right? [00:41:02] Speaker 04: The default in every case is going to be even assuming that extent means substance and manner means procedure, that the same substance and procedures are followed. [00:41:12] Speaker 04: But then there is still another statute specifically to federal officer removal. [00:41:17] Speaker 04: And if they elect to remove, they can remove. [00:41:21] Speaker 02: So I'm sure I have the essence of the question. [00:41:28] Speaker 04: Here's another way of asking. [00:41:30] Speaker 04: You're essentially saying there is a conflict between McDade and the Federal Officer Removal Statute, right? [00:41:38] Speaker 04: And the normal way we would resolve that is to ask which one is more specific. [00:41:43] Speaker 04: And one view would be that the question of when a federal official gets to remove a case to federal court is specifically addressed by [00:41:55] Speaker 04: The officer removal statute and McDade certainly speaks to our disciplinary procedures, but there's no real indication it had anything in mind about removal or not. [00:42:05] Speaker 02: So I don't think our position is that there is any conflict between the two. [00:42:08] Speaker 02: We think they are completely aligned in that the removal statutes themselves don't cover disciplinary matters. [00:42:17] Speaker 04: But that's the whole point of your McDade argument, right? [00:42:19] Speaker 04: You have to assume that he could otherwise remove the case. [00:42:23] Speaker 04: and then you would be saying they'd nevertheless comes in and trumps the removal statute. [00:42:30] Speaker 02: Otherwise we can just forget about the date section and talk about the removal statute sure so I guess I would say my answer would be that. [00:42:39] Speaker 02: If you are following directions and you ignore the first three directions, then the fourth one's not going to make any sense. [00:42:46] Speaker 02: And that's what I take to be the question is, if you ignore all the reasons why we win on the statutes itself, then you go to us. [00:42:55] Speaker 02: I don't think we're not relying on McDade by itself. [00:42:58] Speaker 02: We think that in McDade, what Congress told you is how it wants federal attorneys to be subject to discipline. [00:43:09] Speaker 02: And it also told you that in the DC Courts Organization Act, where it gave directly the jurisdiction to the Court of Appeals. [00:43:17] Speaker 02: And it's not like in 1970 when that was passed, Congress was under any illusion that there might be federal attorneys in DC and barred by the DC Court of Appeals. [00:43:29] Speaker 02: So Congress knew that it was, it knew that [00:43:34] Speaker 02: that when it gave that authority to the DC Court of Appeals, that included federal attorneys. [00:43:38] Speaker 02: So that's specific. [00:43:40] Speaker 02: And then it confirmed when there was a question from when the executive branch said, well, look, the ethical rules are posing an impediment to the operation of the federal government in this sphere. [00:43:55] Speaker 02: Congress came in and said, [00:43:57] Speaker 02: No, they're not. [00:43:58] Speaker 02: We are aligned with the use of state authority to discipline government attorneys. [00:44:06] Speaker 04: Now, as to the... Could I just ask a specific question about the whole subpoena issue? [00:44:12] Speaker 04: Sure. [00:44:12] Speaker 04: Do you intend to seek cert from this DCCA opinion? [00:44:17] Speaker 02: No, we don't. [00:44:18] Speaker 02: Just one correction. [00:44:20] Speaker 02: I know my friend has said that everything would be undone if [00:44:25] Speaker 02: Yeah, because if if you're diverse on the speed question that would mean there was no jurisdiction in the in the court of appeals to resolve that and that is just not true there was a remand order here and what the removal statute say is when there's a remand and [00:44:42] Speaker 02: you send a certified letter to the court, then the state court can proceed and the state court did proceed here and to determine that issue. [00:44:52] Speaker 02: So on the question of mootness, the second subpoena, as he'll call it, the second removal, there's nothing left to decide there. [00:45:04] Speaker 01: On October 1, is there something left to decide? [00:45:07] Speaker 02: No, Your Honor. [00:45:09] Speaker 01: Why is that? [00:45:09] Speaker 01: I mean, the information was never turned over, but because the DC Court of Appeals has ruled? [00:45:15] Speaker 02: Right. [00:45:16] Speaker 02: So the DC Court of Appeals, regardless of how you might rule on that question, DC Court of Appeals had jurisdiction to decide it because there was a remand, and it decided it ended the case. [00:45:29] Speaker 01: And if we were to hold under the statute that a subpoena can itself be a civil action, and even if [00:45:36] Speaker 01: it would only be removable under the officer removal statute to the extent that, you know, it relies on that. [00:45:44] Speaker 01: I'm sorry, I'm not being very clear, but let's say we said that under the statute, the subpoena enforcement was itself removable, a removable action. [00:45:55] Speaker 01: Therefore, it had to go to federal court. [00:45:59] Speaker 01: Would you be still seeking to enforce that subpoena or I guess it would require reissuing it [00:46:06] Speaker 02: Right. [00:46:06] Speaker 02: So our position is that we have no cognizable interest in idea site has an interest in in resolving that. [00:46:13] Speaker 02: We don't want any more documents. [00:46:15] Speaker 02: We've got all that we're going to get. [00:46:16] Speaker 02: We don't want any more. [00:46:17] Speaker 05: What's happened on the ground? [00:46:19] Speaker 05: The hearing has already happened, correct? [00:46:22] Speaker 02: That's correct. [00:46:23] Speaker 02: The hearing has happened. [00:46:24] Speaker 05: Are you satisfied with the factual record that you've developed there? [00:46:28] Speaker 02: Yes. [00:46:29] Speaker 05: So you don't, do you intend to issue any other subpoenas? [00:46:32] Speaker 02: No. [00:46:33] Speaker 05: So we have one subpoena that's been [00:46:37] Speaker 05: for which the DC Court of Appeals has refused enforcement you've committed to not seeking cert, the other one you never tried to enforce and you're representing here that you won't try to enforce it. [00:46:48] Speaker 02: Right. [00:46:48] Speaker 02: With regards to the last subpoena, I think the answer is what we asked for was included in the documents that Mr. Clark produced. [00:46:56] Speaker 02: And so we aren't seeking any more documents in that case. [00:47:00] Speaker 02: either. [00:47:00] Speaker 02: Now, as to the the rule statutes themselves, they don't cover disciplinary actions. [00:47:08] Speaker 02: And that's no surprise given the given how the Congress has said that the [00:47:15] Speaker 02: licensing of DC attorneys should be handled. [00:47:18] Speaker 02: And that's true even for federal officers, because the purpose is to protect the operation of the federal government. [00:47:27] Speaker 02: And as I said before, Congress has already told us how it wants that conflict, if there is one. [00:47:34] Speaker 04: That's certainly a purpose that's recognized in the cases. [00:47:39] Speaker 04: that's recognized in all the Supreme Court cases is to ensure federal acts, the legality of federal official acts are judged in federal court and that federal immunity defenses are resolved in federal court. [00:47:53] Speaker 04: And that purpose would be more consistent with a reading that this statute allows. [00:47:58] Speaker 04: I'm getting to the current versus former official argument. [00:48:01] Speaker 04: That latter, the immunity purpose, would certainly support the reading that it encompasses former officials, wouldn't it? [00:48:09] Speaker 04: Not necessarily dispositive, of course. [00:48:11] Speaker 02: I mean, there are certainly arguments on both sides. [00:48:13] Speaker 02: The Georgia versus Meadows decision was a departure. [00:48:18] Speaker 02: It was at least a new idea in the case law. [00:48:24] Speaker 02: And so I think we would stand on our arguments in the brief with regard to that. [00:48:29] Speaker 02: We agree with the decision. [00:48:31] Speaker 04: Do you think the other grounds are clearer for why this isn't removable, the hearing itself? [00:48:35] Speaker 02: Yes, and I think actually well stated by the concurrence in that case, in which they said, look, the statute says what it says. [00:48:49] Speaker 02: We think it's possible that people, that state officials could go after former officials. [00:48:56] Speaker 02: But that's not what the officer removal has been. [00:49:03] Speaker 02: statute says, and it's not something that the court can change on our own. [00:49:12] Speaker 02: Now, of course, that's not the only impediment to removal in the statutes that Mr. Clark has. [00:49:18] Speaker 02: We've talked, I think, a little bit about whether it's civil action or criminal prosecution. [00:49:24] Speaker 02: It's not. [00:49:24] Speaker 02: It's not a subpoena removal. [00:49:26] Speaker 05: Let's talk about civil action for a second. [00:49:30] Speaker 05: It's proceeding. [00:49:34] Speaker 05: It's very formal. [00:49:38] Speaker 05: There are adverse parties. [00:49:40] Speaker 05: There are due process rights at stake. [00:49:45] Speaker 05: It looks like if this were in an Article III court, it would be a classic caser controversy. [00:49:56] Speaker 05: It's an administrative enforcement action. [00:50:02] Speaker 05: And if you have a federal agency that is allowed to go to federal court to enforce some federal law, that's a civil action. [00:50:16] Speaker 05: So why wouldn't this be a civil action? [00:50:19] Speaker 02: Well, I think the difference is, in fact, the case law would show you that there are several cases out there where state administrative actions are not removable for exactly this reason. [00:50:32] Speaker 02: And before the act was amended, tribal courts. [00:50:38] Speaker 05: Actions before a state agency as opposed to a court [00:50:44] Speaker 05: Right, but here the agency is the court. [00:50:46] Speaker 05: This proceeding by law is vested in the DC Court of Appeals, which is exactly what you would think. [00:50:55] Speaker 05: It's the highest court of the District of Columbia. [00:50:58] Speaker 02: Sure, but with respect to the licensing of attorneys, it is more like an agency. [00:51:05] Speaker 05: Go ahead. [00:51:07] Speaker 05: I mean, the statute, the scheme distinguishes between [00:51:16] Speaker 05: licensing on the front end. [00:51:21] Speaker 05: Admission, censure, suspension, and expulsion. [00:51:27] Speaker 05: And it's not surprising admission can be done totally administratively. [00:51:34] Speaker 05: There are no rules governing it. [00:51:36] Speaker 05: If I get admitted to the DC bar, there's no individualized adjudication. [00:51:42] Speaker 02: Well, you do have to use hordes, so it has to move your admission. [00:51:45] Speaker 02: And the court has to grant that motion. [00:51:47] Speaker 05: But that is very informal in a way that seems administrative. [00:51:56] Speaker 05: The process for censure, suspension, and expulsion [00:52:03] Speaker 05: is very rigorous and very trial-like and leads to a decision that just looks like a judicial order. [00:52:12] Speaker 05: You look at Henry Artis, which you all discuss, the published opinion by the DC Court of Appeals, it's in the Atlantic Second, just looks like a judicial order. [00:52:24] Speaker 02: Sure. [00:52:25] Speaker 02: Well, of course, it is a judicial order. [00:52:28] Speaker 02: But I think my answer is Congress used these words and they have a meaning. [00:52:35] Speaker 02: And civil action, if you look at rule one of the federal rules of civil procedure, is two adverse parties with interest in a controversy. [00:52:43] Speaker 02: We could not sue. [00:52:44] Speaker 05: I don't think you're adverse to Mr. Quartermaster. [00:52:46] Speaker 02: We certainly are adverse. [00:52:48] Speaker 02: But the Office of Disciplinary Counsel is a creature of the Court of Appeals. [00:52:53] Speaker 02: sue in Superior Court or in the Federal District Court for an order of disbarment. [00:53:03] Speaker 05: We have cases that [00:53:05] Speaker 05: stand for the proposition when Congress divides the executive branch in two. [00:53:13] Speaker 05: And there's a dispute between, I don't know, the Tennessee Valley Authority and the Department of Transportation or whatever. [00:53:19] Speaker 05: That's a case. [00:53:20] Speaker 05: That can be a case or controversy. [00:53:22] Speaker 05: So the fact that you all are constituted within the DC Court of Appeals doesn't preclude a structure in which you're the enforcer, [00:53:36] Speaker 05: Mr. Clark is the target and the court is the adjudicator. [00:53:41] Speaker 05: And that just looks like an enforcement action in a court. [00:53:46] Speaker 02: Sure. [00:53:46] Speaker 02: Well, even if you disagree with us about whether this is a civil action, there are, I think, four other obstacles in the statute that Mr. Clark will need to cross every single one of them. [00:54:03] Speaker 02: And I don't think he gets any of them. [00:54:05] Speaker 02: One is whether he's a federal officer, in that he was not currently a federal officer when this was brought against him. [00:54:13] Speaker 02: Second, he is stopped from claiming that the acts were in furtherance of his official, under color of his official title. [00:54:25] Speaker 02: And again, I'll stand on my argument except for one thing. [00:54:30] Speaker 01: Which is said for so federal not a no longer federal officer stopped by the Georgia proceedings to more to more would be that it is a you know that this was not. [00:54:41] Speaker 02: Commenced in a state court is that is defined by the statute and finally the notice of removal was not timely. [00:54:47] Speaker 01: But in terms of commencing the state court, there's this anomaly in the statute, I guess, definition section 1442D6. [00:54:59] Speaker 01: The state court includes the DC Superior Court, but not the DC Court of Appeals. [00:55:07] Speaker 01: And I guess the most sense I can make out of that is that the DC Superior Court is where cases ordinarily commence. [00:55:13] Speaker 01: Yes. [00:55:14] Speaker 01: It seems odd that if we rely on that only that you could have a bar discipline structure just like DC's in another state where it could be treated as a civil action commencing in state court because there's no similar limitation to state trial courts elsewhere. [00:55:39] Speaker 02: And that's correct. [00:55:42] Speaker 02: It would be odd, but that is that's the way Congress set it up when in the DC courts reorganization act they decided to decided to make to say well. [00:55:56] Speaker 02: DC is a state and Superior Court is a state court. [00:56:01] Speaker 02: I don't know why they didn't include the Court of Appeals. [00:56:04] Speaker 02: I think it's probably because they didn't think something like this would be an issue, and for 50 years it hasn't been. [00:56:09] Speaker 02: But nevertheless, that's the language that Congress passed, and the courts typically... You said the state court includes Superior Court. [00:56:17] Speaker 02: Sure. [00:56:18] Speaker 02: I mean, I think the [00:56:20] Speaker 05: And a bunch of other tribunals which are front of mind because they're typically the first instance tribunals, right? [00:56:30] Speaker 05: The equivalent. [00:56:30] Speaker 05: Sure. [00:56:31] Speaker 02: Well, actually, no, because it's not quite so specific. [00:56:35] Speaker 02: It says a court of. [00:56:36] Speaker 05: Yeah, fair enough. [00:56:37] Speaker 05: Insular possessions in Indian country. [00:56:39] Speaker 02: And before that, there are cases where removal has been denied from a tribal court because it was not defined in the statute. [00:56:49] Speaker 02: I take it that when that congress was responding to that when it said no tribal court is going to be included and for now the language just says the superior court. [00:56:58] Speaker 02: But I'll go back to my third reason, I think, because I just wanted to make one point on the estoppel. [00:57:08] Speaker 02: In the reply brief, Mr. Clark says that the estoppel doesn't apply to the Georgia ruling that the acts were not in the scope of his official office because that case is still on appeal. [00:57:23] Speaker 02: And I just want to point out that the law in this circuit [00:57:25] Speaker 02: and in every circuit, is that a ruling that is final enough to be appealed is also final enough for the application of collateral estoppel. [00:57:34] Speaker 02: This case is not even more brief, but one case from this court is Southern Pacific Communications versus AT&T, which is 740 a second 1110. [00:57:47] Speaker 02: Otherwise, we stand on that. [00:57:49] Speaker 02: And then the last the last reason is that the removal here was not timely in that the specification of charges was served on Mr Clark in July of 2022. [00:58:04] Speaker 02: And he found a notice of removal more than 30 days later. [00:58:07] Speaker 02: It was in October of 2022. [00:58:10] Speaker 01: And your best argument, in your view, the best route for you to win. [00:58:17] Speaker 02: So I think like I'll go back to where I started, which is that the, uh, the easiest way to understand this is to realize that, uh, [00:58:36] Speaker 02: simply doesn't have any authority to tell the DC Court of Appeals what to do with its own lawyers as a matter of correct to find that it can't and it shouldn't try and make that decision about whether Mr. Clark should be licensed to practice law in DC. [00:58:55] Speaker 02: As far as the statutory route, I think- Well, for example, civil action. [00:59:01] Speaker 01: You know, you make a lot of arguments. [00:59:02] Speaker 01: This isn't a civil action. [00:59:03] Speaker 01: It's not the kind of civil action. [00:59:04] Speaker 01: And, you know, Judge Cassis pressed you on that. [00:59:07] Speaker 01: But it's a little difficult under the definitions in 1442 D1. [00:59:12] Speaker 01: The term civil action includes any proceeding to the extent that in such proceeding a subpoena is sought. [00:59:24] Speaker 01: And in this proceeding, subpoenas were sought and issued. [00:59:29] Speaker 01: So it seems like it is defined thereby as a civil action. [00:59:35] Speaker 02: So I think the two parts that you need to focus on would be to the extent that is first. [00:59:41] Speaker 01: Right. [00:59:42] Speaker 01: But so it is a civil proceeding to the extent that in that proceeding. [00:59:46] Speaker 01: So it isn't otherwise. [00:59:48] Speaker 01: And it doesn't say limited to this, like a proceeding issuing or enforcing a subpoena is a civil action. [00:59:55] Speaker 01: It says that the proceeding then becomes a civil action to the extent that there's subpoena in it. [01:00:01] Speaker 02: I would disagree with you on that, but I think the resolution to that disagreement is the very next sentence when it says, only that proceeding, that is the one that's described before. [01:00:12] Speaker 01: But the proceeding is the proceeding in which the subpoena is sought. [01:00:17] Speaker 01: So I think if you read it that way, only that proceeding, not only that order or subpoena, it says only the proceeding in which which seems like it's the container for that. [01:00:28] Speaker 02: So I think the way to understand the language that Congress was using there is it was distinguishing proceeding [01:00:37] Speaker 02: mostly, from the terms civil action and criminal prosecution, right? [01:00:45] Speaker 02: So that's sort of an overall case. [01:00:47] Speaker 02: And when it said proceeding, Congress was thinking about some part, like the enforcement of a subpoena. [01:00:55] Speaker 02: And also passed along with the, in the same act, they amended 1440 [01:01:04] Speaker 02: six and added subsection G, which tells you about the time period to remove. [01:01:09] Speaker 02: It's just as a technical matter. [01:01:10] Speaker 01: I want to follow up on that. [01:01:11] Speaker 01: So in the Clarification Act, they were talking about rendering a civil action or including within the definition of civil action sort of prior the lead up pre-filing discovery, right? [01:01:26] Speaker 02: So what they're addressing specifically is procedures in some states where you could seek a deposition without actually filing any other than that. [01:01:35] Speaker 01: Why isn't this analogous to the extent that the hearing procedure and the passing on it by the board is sort of, it's in a way, it's maybe more deluxe, but it's in a way like pre-filing discovery. [01:01:51] Speaker 02: Um, I'm not sure I see that as being very close, but it's, it's different in a way that, uh, be what I would look to, if you were to say, well, it's any, any, anything where you might eventually ultimately, um, wind up with a court order. [01:02:11] Speaker 01: Or that's structured to end up in a court. [01:02:13] Speaker 01: It's structured to tee something up for a court. [01:02:17] Speaker 02: If that's the interpretation, then they certainly use a lot of extra words and language to do that a lot more than they really would have needed. [01:02:29] Speaker 02: And you can see what they had in mind. [01:02:31] Speaker 02: It's in the conference report in that act. [01:02:35] Speaker 02: And they had in mind this idea of hauling a federal officer into court. [01:02:42] Speaker 02: And if you read it and sort of think, well, would this also apply to former federal officers? [01:02:47] Speaker 02: I think you'd come to the conclusion that no, they're worried about, and this is actually the same reasoning that this court used in the Brown and Williamson case, where what the court hinged its decision on is an officer deciding [01:03:04] Speaker 02: As in his federal office, I'm not going to comply with the subpoena, right? [01:03:10] Speaker 02: Because I have a federal reason not to do so. [01:03:12] Speaker 02: Not because I once was a federal officer, because my job right now, that act of refusing, that's what the subpoena is getting to. [01:03:20] Speaker 02: That's what could be sanctioned if you were subject to contempt, for example. [01:03:24] Speaker 02: So the subpoena or the removal clarification argument had that in mind. [01:03:31] Speaker 02: And that's just not what's going on. [01:03:33] Speaker 02: in a disciplinary proceeding, that's a matter between really the court and the licensing court and the attorney. [01:03:41] Speaker 04: Just a technical question. [01:03:42] Speaker 04: When you went to court for the motion to enforce the subpoena, was that docketed as a new separate proceeding in the DC Court of Appeals? [01:03:50] Speaker 04: Or was there already a? [01:03:52] Speaker 04: The answer to that is I'm not sure. [01:03:57] Speaker 04: Then separately, [01:04:00] Speaker 04: I just want to understand the argument on untimeliness. [01:04:04] Speaker 04: It seems quite straightforward. [01:04:06] Speaker 04: 90 days is greater than 30. [01:04:09] Speaker 04: One of the things they say in response is that because of the investigative subpoena, the July charges weren't effective until September 15. [01:04:18] Speaker 04: And so you should start the counter on September 15th and then they filed on 30 days after that. [01:04:25] Speaker 04: Could you just give us your response to that? [01:04:27] Speaker 04: That doesn't make any sense. [01:04:29] Speaker 02: And why is that? [01:04:34] Speaker 02: A couple of reasons. [01:04:34] Speaker 02: One is very circular, because the DC Court of Appeals said, this first investigative subpoena is moot because you filed a specification of charges. [01:04:44] Speaker 02: And they're saying, well, no, we weren't allowed to file a specification of charges, because there was no jurisdiction to do that. [01:04:50] Speaker 02: So I don't see how those two things can both be true. [01:04:53] Speaker 04: And the Court of Appeals has basically squarely held that no, the July 15 specification of charges was effective when it was issued. [01:05:00] Speaker 02: Right, yeah. [01:05:01] Speaker 02: And just a couple just a couple more minor things in response to the question about what happened in the call a bash case. [01:05:08] Speaker 02: That case did not make it to trial. [01:05:11] Speaker 02: It involved call a bash himself was a supervisor who had not. [01:05:16] Speaker 02: Who had not prevented another attorney from. [01:05:19] Speaker 02: being involved with matters where he had a conflict. [01:05:23] Speaker 02: And Kolabash issued a letter saying, I'm sorry, I didn't do better. [01:05:27] Speaker 02: And the bar authorities dropped the case, I think not surprisingly, because they were encountered with this idea of what exactly was the district court supposed to do with that case. [01:05:41] Speaker 02: As far as I'm aware, there has been no case ever in which a state disciplinary proceeding was heard in federal court for anyone. [01:05:51] Speaker 02: And if there are no further questions, the court should. [01:05:55] Speaker 02: Just one. [01:05:56] Speaker 05: You gave us a list of grounds, and I'm not sure we've hit commenced in a state court yet. [01:06:02] Speaker 05: So you want to talk about that and just assume, for purposes of this discussion, that I think the DC Court of Appeals is a court. [01:06:10] Speaker 02: is a is a state is a court in the state court and this is a state court. [01:06:14] Speaker 02: You have any other sure that that is. [01:06:19] Speaker 02: I guess I'd say that's not the one I would hang my hat on, but certainly this was not commenced in the DC Court of Appeals. [01:06:26] Speaker 02: Ultimately, the hearing committee and the Board of Professional Responsibility are both creatures of the Court of Appeals, but it wasn't actually commenced. [01:06:41] Speaker 05: Creatures who, under the DCCA rules, can't issue [01:06:49] Speaker 05: any sanction beyond reprimand that has the force and effect of law. [01:06:54] Speaker 05: Right. [01:06:54] Speaker 05: And just make a recommendation. [01:06:56] Speaker 02: That's correct. [01:06:59] Speaker 02: OK. [01:06:59] Speaker 02: And so we ask that the court affirm the district court's ruling that it is not going to try and should try to tell the DC Court of Appeals whether to sanction its own attorneys. [01:07:11] Speaker 02: And we think the other two appeals should be dismissed as moved. [01:07:15] Speaker 02: Thank you. [01:07:16] Speaker 01: Thank you. [01:07:17] Speaker 01: Mr. McDougall. [01:07:18] Speaker 06: Thank you very much, your honor. [01:07:21] Speaker 06: Quite a few topics were covered and perhaps I would begin by inviting questions about what was covered in the council's argument that you're most interested in hearing about. [01:07:30] Speaker 06: If not, I'll pick what I think are the winners. [01:07:33] Speaker 01: This is your time to remind what you heard. [01:07:36] Speaker 06: On the implied repeal argument, whether 530B implied repeals the officer removal statute, we say no. [01:07:44] Speaker 06: Implied repeals are not favored. [01:07:46] Speaker 06: It did not add, it did not change the enumeration of non-removable actions. [01:07:54] Speaker 06: to the extent that we think or you might think that the 530B did change the removability of hybrid actions, then the 2011 clarification amendments changed it back. [01:08:07] Speaker 05: It's a little bit messy for you, right? [01:08:10] Speaker 05: Because if we put a lot of weight on the implied repeal canon to buttress the original removal statute as against the [01:08:23] Speaker 05: 1998 McDade statute. [01:08:27] Speaker 05: And some of your strongest language comes from the Clarification Act, which is 2011. [01:08:32] Speaker 05: So, I don't know, the 2011 Act has a high threshold to impliedly repeal McDade. [01:08:42] Speaker 06: Well, for there to be an implied repeal, there needs to be some tension or conflict between the two statutes. [01:08:48] Speaker 06: And there isn't because 530B is a rule of decision statute and the removal statute is a forum statute. [01:08:57] Speaker 06: So they can coexist without tension and there's no need to take it into the domain of implied. [01:09:03] Speaker 05: If we look at all three statutes as a corpus, that's fine. [01:09:10] Speaker 05: If we introduce [01:09:12] Speaker 05: temporal component and look at three different statutes enacted at three different times and think about implied repeal. [01:09:20] Speaker 05: It's a little bit of a two-edged sword for you. [01:09:23] Speaker 06: Well, I mean, this case started long after even 2011. [01:09:27] Speaker 06: So we're dealing with the net result of that evolution. [01:09:32] Speaker 06: And there's no argument that can be made that it doesn't even mention the statute. [01:09:39] Speaker 06: There's no concept or discussion of removal. [01:09:42] Speaker 06: The regulations implementing 530B and the preamble say this doesn't change anything about how they're enforced. [01:09:51] Speaker 06: My time has expired and you've already been very generous with your time and so I will stop unless there are additional questions. [01:09:57] Speaker 01: And thank you for being generous with your time and we had a lot of questions. [01:10:02] Speaker 06: It is an honor. [01:10:04] Speaker 01: Thank you very much. [01:10:05] Speaker 01: The case is submitted.