                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
_____________________________
                               )
STEPHEN THOMAS YELVERTON,      )
                               )
          Plaintiff,           )
                               )
          v.                   )    Civil Action No. 13-314 (RWR)
                               )
HAMILTON P. FOX, III,          )
                               )
          Defendant.           )
_____________________________ )

                       MEMORANDUM OPINION

     Plaintiff Stephen Yelverton has filed an amended four-count

complaint against Hamilton Fox, III, in his capacity as the

assistant bar counsel of the Office of Bar Counsel of the

District of Columbia Court of Appeals (“OBC”), seeking, among

other things, an injunction that would halt an ongoing

disciplinary proceeding before the District of Columbia Court of

Appeals’ Board of Professional Responsibility (“BPR”) that could

result in a temporary suspension of Yelverton’s ability to

practice law in the District of Columbia.    The defendant has

moved to dismiss or for summary judgment, arguing that, among

other things, this Court should exercise equitable restraint by

dismissing this case to avoid interfering with an ongoing

District of Columbia court proceeding.    Yelverton opposes, and

has moved for a preliminary injunction.    Because Fox has shown

that this Court should exercise equitable restraint by dismissing

Yelverton’s complaint, his motion to dismiss will be granted, and
                                -2-

Yelverton’s motion for a preliminary injunction will be denied as

moot.

                            BACKGROUND

     Yelverton has been licensed to practice law in the District

of Columbia since April 1979.   First Am. Compl. ¶ 1.   Yelverton

represented a complaining witness in a criminal case brought in

D.C. Superior Court that resulted in an acquittal.   Id. ¶¶ 21-22.

Yelverton unsuccessfully moved for a mistrial, and in March 2010,

Yelverton filed a notice of appeal of the trial court’s order

denying his motion for a mistrial with the D.C. Court of Appeals.

That appeal was denied.   See Snow v. Carrick, Nos. 10-CO-384, 10-

CO-453, slip op. at 2 (D.C. June 7, 2010).   The D.C. Court of

Appeals referred Yelverton to the OBC for disciplinary

proceedings, stating:

     The conduct of counsel for both appellant . . . and
     cross-appellant . . . raise serious concerns as to the
     propriety of the actions taken and the judgment
     exercised by both and the matter is hereby referred to
     Bar Counsel for investigation in that regard.

Snow, Nos. 10-CO-384, 10-CO-453, slip op. at 1.1


        1
       A helpful synopsis of the District of Columbia Court of
Appeals’ disciplinary process was set forth in Ford v. Tait, 163
F. Supp. 2d 57 (D.D.C. 2001):

     The Office of the Bar Counsel is responsible for
     processing complaints of attorney misconduct. After
     the Bar Counsel investigates allegations of misconduct,
     it initiates formal disciplinary proceedings and
     prosecutes the case before a three-member Hearing
     Committee appointed by the Board and in the presence of
     the attorney charged with misconduct, i.e., the
                               -3-

     In October 2011, Fox, as an assistant Bar Counsel, filed

with the OBC a Specification of Charges alleging that Yelverton

violated Rules of Professional Responsibility 1.1(a) (failing to

provide competent representation to a client), 1.1(b) (failing to

serve a client with the skill and care commensurate with that

generally afforded clients by other lawyers in similar matters),

3.1 (filing frivolous motions), and 8.4(d) (engaging in conduct

that seriously interfered with the administration of justice).

First Am. Compl. ¶ 4; Def.’s Mem. of P. & A. in Supp. of Mot. to

Dismiss (“Def.’s Mem.”) Ex. 1 (“Specification of Charges”).2


     respondent. The respondent may choose to retain
     counsel. The Hearing Committee then submits findings,
     with the record of the proceedings, to the Board of
     Professional Responsibility. The Board has the option
     to schedule oral arguments and can affirm, modify,
     remand, or dismiss the charges. The Board then submits
     its recommendation and the full record to the D.C.
     Court of Appeals. Upon request, the Court of Appeals
     may also hear oral argument. Lastly, the Court of
     Appeals issues a final order. The D.C. Court of
     Appeals will adopt the Board’s recommendation, unless
     it rules that the recommendation is unwarranted or
     unsupported by “substantial evidence.”

Ford, 163 F. Supp. 2d at 59 (internal citations omitted).
     2
       Yelverton attempted to remove the disciplinary proceedings
to the United States District Court for the District of Columbia,
arguing in his notice of removal that, among other things,
removal was proper because the Specification of Charges
implicated his First Amendment right to access the courts, and
because Fox acted in bad faith and harassed Yelverton. See In Re
Yelverton, 11-mc-669 (UNA), Docket Entry #1, Notice of Removal,
¶¶ 2-4, 6-9 (D.D.C. November 8, 2011). However, his attempted
removal action was dismissed for lack of subject matter
jurisdiction and remanded to the BPR. Id., Docket Entry #3,
Order (D.D.C. December 6, 2011). Yelverton appealed that
                                -4-

     The Ad Hoc Hearing Committee of the BPR held a hearing on

the complaint against Yelverton in February 2012, during which

both the OBC and Yelverton were offered an opportunity to present

evidence and argument.   First Am. Compl. ¶ 48.   In August 2012,

the Ad Hoc Committee issued a Report and Recommendation to the

full BPR.   Two of the three members of the board recommended

against imposing disciplinary sanctions against Yelverton.

Def.’s Mem., Ex. 2 at 23.   The OBC filed objections to the Report

and Recommendation.   In July 2013, the BPR issued its final

decision which found that Yelverton violated each of the Rules of

Professional Conduct listed in the Specification of Charges, and

recommending that Yelverton be suspended from the practice of law

for 90 days and be allowed reinstatement only after he

demonstrates his fitness to continue practicing law.   See Def.’s

Notice of Decision and Supplemental Mem. of P. & A. in Supp. of

Def.’s Mot. to Dismiss, Ex. 1 at 23-24.

     On March 11, 2013, Yelverton filed his original complaint in

this action.   Yelverton filed the first amended complaint on

April 1, 2013, alleging four claims against Fox.3   Counts One and


decision, the U.S. Court of Appeals for the D.C. Circuit
dismissed the appeal for lack of jurisdiction, and the Supreme
Court denied certiorari. See In Re Yelverton, No. 12-7004 (D.C.
Cir. Jan. 30, 2012); Yelverton v. D.C. Office of Bar Counsel, 133
S. Ct. 332 (2012).
     3
       In addition to the original complaint and the first
amended complaint, Yelverton has moved for leave to amend the
complaint seven additional times, seeking to add additional
                                -5-

Three seek a declaratory judgment under 28 U.S.C. § 2201 that the

Specification of Charges is null and void because it had no basis

in fact or law and violated Yelverton’s rights under the First,

Fifth, and Fourteenth Amendments to the U.S. Constitution, and

that D.C. Bar Rule XI, Section 19(a) violates the D.C. Bar

members’ right to equal protection because the OBC can act with

immunity from violations of the Rules of Professional Conduct

while prosecuting violations of the Rules of Professional

Conduct.   First Am. Compl. ¶ 78.   Counts Two and Four seek

injunctive relief under 28 U.S.C. § 2283 to enjoin the

prosecution in the D.C. Court of Appeals of the Specification of

Charges against Yelverton, and to permanently enjoin the OBC from

giving its members immunity for violations of the Rules of

Professional Conduct while they prosecute alleged violations of

the Rules of Professional Responsibility.    Id.   Fox has moved

under Rule 12(b)(1) to dismiss the first amended complaint for

lack of subject matter jurisdiction, arguing that this Court



theories under which the District of Columbia Court of Appeals’
disciplinary proceedings are improper, and to certify a class
action. Leave to amend may be denied if the proposed amendments
are “futil[e].” Foman v. Davis, 371 U.S. 178, 182 (1962). “An
amended complaint is futile if it merely restates the same facts
as the original complaint in different terms, reasserts a claim
on which the court previously ruled, fails to state a legal
theory or could not withstand a motion to dismiss.” Pietsch v.
McKissack, 677 F. Supp. 2d 325, 328 (D.D.C. 2010). Because none
of Yelverton’s proposed amendments affects the analysis of
whether to exercise equitable restraint, the motions for leave to
amend will be denied as futile.
                                 -6-

should exercise equitable restraint to avoid interfering with an

ongoing District of Columbia court proceeding.4   Yelverton

opposes.5

                             DISCUSSION

     Under Rule 12(b)(1), a defendant may move to dismiss a

complaint for lack of subject-matter jurisdiction.    Fed. R. Civ.

P. 12(b)(1).    “‘Before a court may address the merits of a

complaint, it must assure that it has jurisdiction to entertain

the claims.’”    Ferguson v. Long, 885 F. Supp. 2d 294, 297 (D.D.C.

2012) (quoting Sierra Club v. U.S. Environmental Protection

Agency, 850 F. Supp. 2d 300, 302 (D.D.C. 2012) (internal


     4
       In light of the finding that principles of equitable
restraint justify dismissing this case, this opinion does not
address Fox’s alternative arguments that the case should be
dismissed for lack of subject matter jurisdiction based on res
judicata, or that the complaint should be dismissed for failure
to state a claim for which relief can be granted.
     5
       Yelverton has moved for a preliminary injunction staying
the effect of the BPR’s decision until the conclusion of this
action. Pl.’s Mot. for P. I. at 2. A plaintiff seeking a
preliminary injunction “carries the burden of persuasion by a
clear showing 1) of a substantial likelihood of success on the
merits, 2) of irreparable injury if the injunction is not issued,
3) that the injunction would not substantially injure other
interested parties, and 4) that the injunction is in the public
interest.” Diwan v. EMP Global, 841 F. Supp. 2d 246, 249 (D.D.C.
2012) (citing Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir.
2004)). Because Fox’s motion to dismiss will be granted,
Yelverton’s motion for a preliminary injunction will be denied as
moot. However, if Yelverton’s motion for a preliminary
injunction had been addressed on the merits, it would have been
denied, because Yelverton has neither shown that he has a
substantial likelihood of succeeding on the merits, nor shown
that a temporary suspension of his license to practice law would
constitute an irreparable injury.
                                -7-

quotation omitted)).   However, because Fox requests, under the

doctrine first elucidated in Younger v. Harris, 401 U.S. 37

(1971), an equitable restraint of jurisdiction to defer to

ongoing state court proceedings, the question of whether an

equitable restraint is warranted will be addressed first.6     See

Tenet v. Doe, 544 U.S. 1, 6 n.4 (2005).

     A federal court applies a three-part test to determine

whether it should dismiss a case based on the Younger doctrine.

First, the court determines whether the ongoing state proceedings

are judicial in nature; second, the court determines whether the

state proceedings implicate important state interests; and third,

the court looks at whether the proceedings afford adequate

opportunity in which to raise the federal claims.    Ford v. Tait,

163 F. Supp. 2d 57, 62 (D.D.C. 2001) (citing Hoai v. Sun Ref.

& Mtkg. Co., 866 F.2d 1515, 1517 (D.C. Cir. 1989).   The federal

court must also consider whether the party opposing abstention

has made a sufficient showing of bad faith, harassment, or

exceptional circumstances that would warrant federal

jurisdiction.   Ford, 163 F. Supp. 2d at 62 (D.D.C. 2001) (further

stating that an “example of an exceptional circumstance is a




     6
        While the opinion in Younger mentions state court
proceedings only, the Younger doctrine applies to judicial
proceedings in the District of Columbia as well. JMM Corp. v.
District of Columbia, 378 F.3d 1117, 1120-25 (D.C. Cir. 2004).
                                -8-

statute that ‘flagrantly and patently’ violates a constitutional

provision”).

     Ford held that the District of Columbia Court of Appeals’

disciplinary proceedings are judicial in nature, that they

implicate important District of Columbia interests, and that they

provide respondents with an adequate opportunity to raise

constitutional claims.   Ford, 163 F. Supp. 2d at 64-66.

Yelverton argues that the Younger equitable restraint doctrine is

not applicable here because the Ad Hoc Hearing Committee denied

his constitutional claims, Pl.’s Opp’n at 33-34, and because the

complaint alleges that Fox and the OBC created extraordinary

circumstances, acted in bad faith and harassed Yelverton in 2012,

by pressuring Yelverton’s client to file complaints against

Yelverton with the D.C. Bar, Pl.’s Opp’n at 27-28.   However, his

lack of success with the constitutional claims he raised before

the BPR’s Ad Hoc Committee does not mean that the entire

disciplinary process lacked the authority to consider

constitutional claims.   As Ford stated:

     District of Columbia case law demonstrates that the
     D.C. Court of Appeals can hear federal claims arising
     from attorney disciplinary proceedings. For example,
     the D.C. Court of Appeals recently considered an
     attorney’s allegation that the Hearing Committee, the
     Board of Professional Responsibility, and the Bar
     Counsel violated his due process rights by denying a
     request for a continuance and conducting a hearing in
     his absence. See In re Chris H. Asher, 772 A.2d 1161,
     1165 (D.C. 2001). In another case involving a
     reciprocal disciplinary proceeding, the D.C. Court of
     Appeals heard an argument that the disciplining state
                                  -9-

     violated the attorney’s right to free speech. See In
     re Benjamin, 698 A.2d 434, 441 (D.C. 1997). Moreover,
     the defendants note that the plaintiff will have an
     opportunity to raise these claims before the D.C. Court
     of Appeals.

Ford, 163 F. Supp. 2d at 66.     In addition, Yelverton does not

cite any authority that the conduct he alleges that Fox and the

OBC engaged in rises to the level of bad faith, harassment, or

extraordinary circumstances that would justify declining to

exercise equitable restraint.7

                           CONCLUSION

     Because Fox has shown that equitable restraint should be

exercised to avoid interfering with ongoing District of Columbia




     7
       Yelverton moved to strike Fox’s reply brief in support of
his motion to dismiss for purportedly exceeding by three pages
the Local Civil Rules’ 25-page limit. The Federal Rules of Civil
Procedure provide that a court “may strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent,
or scandalous matter.” Fed. R. Civ. P. 12(f). Courts possess
significant discretion in deciding whether to grant motions to
strike. See Nwachukwu v. Rooney, 362 F. Supp. 2d 183, 189
(D.D.C. 2005). As such motions are generally disfavored, the
movant’s burden is heavy. Ascom Hasler Mailing Systems v.
United States Postal Serv., 815 F. Supp. 2d 148, 162 (D.D.C.
2011). The file containing Fox’s reply was indeed 28 pages.
However, the first page was a cover sheet, the second page was a
table of contents, and the final page was the Certificate of
Service. Excluding those pages, the memorandum itself is twenty-
five pages long and therefore complies with Local Civil Rule
7(e). The Local Civil Rules’ page limitation refers to the
memorandum itself, not exhibits. See Taylor v. Mills, 892 F.
Supp. 2d 124, 149 (D.D.C. 2012) (denying motion to strike
defendant’s reply containing 21-page memorandum and 14-page
exhibit). Therefore, Yelverton’s motion to strike will be
denied.
                              -10-

judicial proceedings, his motion to dismiss will be granted.   An

appropriate final order accompanies this memorandum opinion.

     SIGNED this 1st day of November, 2013.


                                        /s/
                               RICHARD W. ROBERTS
                               Chief Judge
