Rodriguez v. Shulman

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

IRENE RODRIGUEZ, et al.,

Plaintiffs,

v. Civil Action No. 11-1183 (JEB)

DOUGLAS SHULMAN, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Pro se Plaintiffs Isidoro Rodriguez and his wife Irene (whose role in all of this remains

unclear) have brought this suit as the latest in a long line of actions seeking to overturn his

disbarment by the Virginia Bar Disciplinary Board, which became effective on October 27,

2006. See ECF No. 47-1, Exh. G (Order of Disbarment by D.C. Circuit referencing Virginia

disbarment). In this current suit, the contents of which are largely incomprehensible, Plaintiffs

again name a farrago of defendants, including Internal Revenue Service employees, D.C. Circuit

judges, the clerk of the United States Supreme Court, former White House Counsels, Justice

Department Officials, and Justices of the Virginia Supreme Court. See Am. Compl. at 1-5.

Plaintiffs then moved on Aug. 18, 2011, to disqualify the entire United States Attorney’s

Office for the District of Columbia (USAO/DC) from representing any of the federal defendants.

See ECF No. 8. Plaintiffs argued that the USAO/DC could not represent those defendants

because they “willfully acted outside of their authority” by concealing that the Supreme Court of

Virginia had “promulgated unconstitutional court rules,” and, “by acts of treason,” the federal

defendants “enforced the void order of the [Virginia Bar Disciplinary] Board to disbar Isidoro

from federal practice.” Id. at 1 (emphasis original).

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Perhaps believing discretion to be the better part of valor, the USAO/DC withdrew, and

the U.S. Attorney’s Office for the Eastern District of Pennsylvania (USAO/EDPA) took over

representation of the federal defendants in this matter. See ECF No. 33 (Mot. for Enlargement of

Time to Respond to Compl.), ¶ 1. Undeterred, Plaintiffs have now filed a new Motion to

Disqualify the USAO/EDPA from representing the federal defendants.

I. Analysis

Although the basis of Plaintiffs’ arguments remains elusive, they appear to maintain that

the disqualification of the USAO/EDPA is mandated by three different sources of authority: 28

U.S.C. § 547, 28 C.F.R. § 50.15, and the U.S. Attorney Manual Chapter 3-2.170. See Mot. at 1.

The Court will address each in turn after first looking at the law regarding disqualification of an

entire United States Attorney’s Office generally.

A. USAO Disqualification

The disqualification of an entire United States Attorney’s Office is a step not to be taken

lightly. The Tenth Circuit has held that “we are strongly influenced by the fact that we can only

rarely-if ever-imagine a scenario in which a district court could properly disqualify an entire

United States Attorney's office. Indeed, the disqualification of Government counsel is a drastic

measure.” United States v. Bolden, 353 F.3d 870, 875-76 (10th Cir. 2003) (citing Bullock v.

Carver, 910 F. Supp 551, 559 (D. Utah 1995)) (internal citations omitted). Indeed, “because

disqualifying an entire United States Attorney's office is almost always reversible error

regardless of the underlying merits of the case, a reviewing court will rarely have to delve into

the underlying claim to conclude that the disqualification was unwarranted.” Id. at 876.

In Bolden, the plaintiff entered into a plea agreement containing language that it was in

the sole discretion of the United States to evaluate his cooperation in determining whether a

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motion for downward departure from the Sentencing Guidelines or a reduction of sentence was

appropriate. Id. at 873. The plaintiff then sent a letter to the U.S. Attorney's Office in the

Western District of Oklahoma (USAO/WDOK), requesting that the Government seek a reduction

of his sentence. Id. An Assistant United States Attorney notified him that the downward

departure committee there had elected not to seek such reduction. Id. The plaintiff then moved

to compel the Government to file a motion for reduction of sentence, alleging multiple instances

of bad faith. Id. He also filed a motion to recuse the USAO/WDOK, and the district court

entered an order disqualifying the entire Office, directing it to arrange for an Assistant United

States Attorney from another district to respond to the original motion to compel. Id. The 10th

Circuit, however, reversed the disqualification order and explained:

[C]ourts have allowed disqualification of government counsel in limited

circumstances. See, e.g., Young v. United States, 481 U.S. 787, 807

(1987) (actual conflict of interest because appointed prosecutor also

represented another party); United States v. Heldt, 668 F.2d 1238, 1275

(D.C. Cir. 1981) (bona fide allegations of bad faith performance of official

duties by government counsel in a civil case); United States v. Prantil, 764

F.2d 548, 552-53 (9th Cir. 1985) (prosecutor who will act as a witness at

trial). . . . In light of these principles, every circuit court that has

considered the disqualification of an entire United States Attorney's office

has reversed the disqualification.

Id. at 878 -79.

Similarly, the Eleventh Circuit affirmed a district court’s order refusing to disqualify

counsel in United States v. Sharma, 394 Fed. Appx. 591 (11th Cir. 2010). In that case, the

plaintiff asserted that the court should have disqualified an Assistant U.S. Attorney and the entire

U.S. Attorney's Office for the Middle District of Florida from participating in her prosecution.

Id. at 593-94. Specifically, she contended that it was foreseeable before trial that the

Government would call the Assistant U.S. Attorney as a witness, yet the Government still

proceeded under the indictment that that AUSA had obtained, even though the AUSA did not

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represent the Government at trial. Id. at 594-95. Consequently, Plaintiff concluded that this

denied her a fair trial because a lawyer may not serve both as a lawyer and a witness in the same

case. Id. The Eleventh Circuit affirmed the denial of disqualification and cited to Bolden’s

language about the drastic nature of such a measure. Id. at 595; see also United States v.

Hasarafally, 529 F.3d 125, 128 (2d Cir. 2008) (“[w]hile a private attorney's conflict of interest

may require disqualification of that attorney's law firm in certain cases, such an approach is not

favored when it comes to the office of a United States Attorney”) (internal citations omitted).

Bearing in mind the unusual nature of Plaintiffs’ request, the Court now turns to their

specific allegations in support of disqualification.

B. 28 U.S.C. § 547

Plaintiffs first contend that 28 U.S.C. § 547 permits only the USAO/DC to represent the

United States or its employees in the District of Columbia. Mot. at 5-6. This statute, however,

enumerates the duties of a United States Attorney, but does not limit representation of the

Government in a particular district to the United State Attorney’s Office for that district. In any

event, 28 U.S.C. § 515 clearly provides:

The Attorney General or any other officer of the Department of

Justice, or any attorney specially appointed by the Attorney

General under law, may, when specifically directed by the

Attorney General, conduct any kind of legal proceeding . . . which

United States attorneys are authorized by law to conduct, whether

or not he is a resident of the district in which the proceeding is

brought.

Furthermore, 28 U.S.C § 517 states:

The Solicitor General, or any officer of the Department of Justice,

may be sent by the Attorney General to any State or district in the

United States to attend to the interests of the United States in a suit

pending in a court of the United States, or in a court of a State, or

to attend to any other interest of the United States.

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The statutes themselves thus deny Plaintiffs the relief they seek.

Nor does Plaintiffs’ argument make any practical sense. For example, the USAO/DC

routinely recuses itself from the prosecution of a defendant who is an employee of that office and

even, on occasions, if he is a police officer who has worked closely with AUSAs in that office.

Surely, Plaintiffs would not wish to bar recusal in such an instance.

C. 28 C.F.R. § 50.15

Plaintiffs next argue that, pursuant to 28 C.F.R. § 50.15, the United States Attorney’s

Office should not represent the federal defendants because their conduct was not within the

scope of their employment. See Mot. at 6. Plaintiffs claim that under 28 C.F.R. §50.15,

“representation is not available to a federal employee whenever the conduct ‘does not reasonably

appear to have been performed within the scope of employment,’ and is not in the interest of the

United States to provide representation.” Id. Plaintiffs’ subjective belief as to whether

Defendants’ conduct was within the scope of their employment is irrelevant because the

language of the regulation makes clear it is for the Government to determine whether federal

employees should receive representation. See 28 C.F.R. § 50.15 (“a federal employee . . . may

be provided representation in civil . . . proceedings in which he is sued . . . when the actions for

which representation is requested reasonably appear to have been performed within the scope of

the employee's employment and the Attorney General or his designee determines that providing

representation would otherwise be in the interest of the United States”).

In this case, moreover, it is difficult to conceive how the federal defendants, most of

whom are judges and high-ranking Justice Department officials, could be said not to have been

acting within the scope of their employment.

D. USAO Manual

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Plaintiffs next turn to the United States Attorney Manual, Chapter 3-2.170, to mandate

disqualification of the USAO/EDPA. See Mot. at 7-8. This chapter states that if the United

States Attorney, or his office, becomes aware of an issue that could require recusal as a result of

“a personal interest or professional relationship with the parties involved in the matter,” recusal

might be appropriate. See U.S. Atty. Manual, Ch. 3-2.170. The chapter does not mandate

recusal or disqualification, but rather outlines a procedure that should be followed if the U.S.

Attorney becomes aware of a matter that might require recusal. Id.

Plaintiffs contend that recusal here is appropriate because the USAO/EDPA may be a

party or witness in Plaintiffs’ litigation with the Internal Revenue Service. To support this novel

theory, Plaintiffs allege:

The evidence confirms that the Internal Revenue Code has been

criminally violated by government employees in Philadelphia,

Pennsylvania, conspiring to declare Irene and Isidoro’s law office

operating and litigation expenses “frivolous” based on “legal” so to

unlawfully assess taxes greater then [sic] that permitted by law. Thus,

the AUSA for ED of Penn., is either a witness or a party, depending on

discovery of additional information, and must recuse.

Mot. at 8. It is unclear precisely what Plaintiffs mean here or how this is a basis to disqualify the

whole office.

Even if it were a solid allegation that some member of the USAO/EDPA might be a

witness, a failure of a United States Attorney’s Office to comply with Chapter 3-2.170 of the

Manual provides no basis upon which Plaintiffs could bring a motion to disqualify. See, e.g.,

United States v. Fernandez, 231 F.3d 1240, 1246 (9th Cir. 2000) (“To begin, it is clear that the

USAM does not create any substantive or procedural rights, including discovery rights. The

USAM explicitly states that [t]he Manual provides only internal Department of Justice guidance.

It is not intended to, does not, and may not be relied upon to create any rights, substantive or

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procedural, enforceable at law by any party in any manner civil or criminal.”); United States v.

Blackley, 167 F.3d 543, 548-49 (D.C. Cir. 1999) (“violations of [DOJ] Manual policies by DOJ

attorneys or other federal prosecutors afford a defendant no enforceable rights”).

II. Conclusion

As disqualification of the USAO/EDPA is neither mandated nor warranted under 28

U.S.C. § 547, 28 C.F.R. § 50.15, or the U.S. Attorney Manual, the Court ORDERS that

Plaintiffs’ Motion is DENIED.

IT IS SO ORDERED.

/s/ James E. Boasberg

JAMES E. BOASBERG

United States District Judge

Date: Feb. 16, 2012

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