Petition for Writ of Certiorari — Lenore Albert, Petitioner v. Roxanne Gonzalez, et al.

Supreme Court briefSep 26, 2024

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VII.

APPENDIX .................................................................................................. 13

A. Ninth Circuit Memorandum Aug. 20, 2024 .......................................... 14

B. Eastern District Order May 24, 2024 .................................................... 19

C. Central District Order Oct. 6, 2023 ....................................................... 25

D. Constitutional and Statutory Provisions............................................... 44

1. V Amend. U.S. Const. ....................................................................... 44

2. XIV Amend. U.S. Const. § 1.............................................................. 44

3. 28 U.S.C. §2071 ................................................................................. 44

4. 28 U.S.C. § 2072 ................................................................................ 44

5. E.D.C.A. Local Rule 180(b) 2017 ...................................................... 44

6. E.D.C.A. Local Rule 184(c) (2017) ................................................... 45

7. Cal. Bus. & Prof. Code §6124 ........................................................... 45

8. Cal. Bus. & Prof. Code §6125 ........................................................... 45

9. Cal. Bus. & Prof. Code § 6126 .......................................................... 45

No. 23-3322

United States Court of Appeals, Ninth Circuit

Albert v. Gonzalez

Decided Aug 20, 2024

23-3322 24-3496

08-20-2024

LENORE ALBERT, an individual, Plaintiff - Appellant, v. ROXANNE GONZALEZ; DOES, 1 through 10,

inclusive, Defendants - Appellees. Ms. LENORE L. ALBERT, Attorney, Petitioner - Appellant.

NOT FOR PUBLICATION

Submitted August 16, 2024 [**] Pasadena, California

Appeal from the United States District Court for the Central District of California Fred W. Slaughter, District

Judge, Presiding D.C. No. 8:23-cv-00635-FWS-JDE

Appeal from the United States District Court for the Eastern District of California Kimberly J. Mueller, District

Judge, Presiding D.C. No. 2:24-mc-00117-KJM

Before: BADE and FORREST, Circuit Judges, and CURIEL, District Judge. [***]

MEMORANDUM [*] *2

In Albert v. Gonzalez, No. 23-3322, Plaintiff-Appellant Lenore Albert, appearing pro se, appeals an order from

the Central District of California dismissing her case alleging that Defendant-Appellee Roxanne Gonzalez, a

clerk for the Eastern District of California, committed various constitutional violations in applying that court's

attorney discipline rules. In In re Albert, No. 24-3496, Albert appeals an order from the Eastern District

disbarring her from practicing before that court. We have jurisdiction under 28 U.S.C. § 1291, see In re

Corrinet, 645 F.3d 1141, 1143 (9th Cir. 2011), and we affirm.

A. Albert v. Gonzalez, No. 23-3322.

Following two disciplinary proceedings, Albert was suspended from practicing law in California from February

14, 2018, to March 16, 2018, and from June 28, 2018, to February 21, 2021. See In re Albert, No. SBC-22-O30348, 2024 WL 1231293, at *2 (Cal. Bar Ct. Mar. 11, 2024). During her suspension, Albert filed several court

documents in the Eastern District that represented she was an attorney. See e.g., Kilgore v. Wells Fargo Home

Mortg., No. 1:12-cv-00899, Dkts. 67-70 (E.D. Cal. Aug. 18, 2019); Avalos v. Gonzalez, No. 1:20-cv-01578,

Dkt. 14 (E.D. Cal. Feb. 19, 2021). She *3 also applied for a certificate of good standing from the Eastern

District's clerk's office. Gonzalez processed this application, noticed that Albert was listed as "inactive" on the

California State Bar's website, and changed Albert's standing to practice before the Eastern District from

"active" to "inactive" pursuant to Eastern District Local Rules 180(c) and 184(b), which impose automatic

reciprocal suspensions. In May 2021, the Eastern District reinstated Albert to "active" status after her

California suspension was lifted.

App. A p. 2

Albert v. Gonzalez

No. 23-3322 (9th Cir. Aug. 20, 2024)

Albert then sued Gonzalez in the Central District of California for (1) declaratory relief that Local Rules 180

and 184 were unconstitutional as applied to her; (2) an injunction preventing Gonalez from changing Albert's

status from "active" to "inactive" without giving Albert an opportunity to be heard and an appealable order; (3)

a violation of her First and Fourteenth Amendment rights under Bivens v. Six Unknown Named Agents of the

Federal Bureau of Narcotics, 403 U.S. 388 (1971); and (4) a violation of California's Unfair Competition Law

(UCL) for engaging in an "unlawful, unfair, or fraudulent" business act or practice.

Gonzalez moved to dismiss the complaint, and the district court granted that motion. We review de novo a

district court's decision to dismiss for failure to state a claim, "viewing factual allegations in the complaint as

true and construing the pleadings in the light most favorable to the nonmoving party." Magassa v. Mayorkas, 52

F.4th 1156, 1161 (9th Cir. 2022), cert. denied, 144 S.Ct. 279 (2023). *4 We conclude that the district court did

not err in dismissing Albert's complaint.

1. Albert first argues that the district court erred by applying Younger abstention to her claims for declaratory

and injunctive relief. We do not consider this argument because we conclude that Albert's claims seeking

declaratory and injunctive relief fail. For the reasons explained in Subpart B of this disposition, the Eastern

District's application of its local rules to Albert did not violate her due process rights. Thus, Albert's claims for

declaratory and injunctive relief based on the alleged unconstitutionality of those same local rules are

foreclosed. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89 (1998) (recognizing dismissal for lack

of subject matter jurisdiction is proper where a "claim is so insubstantial, implausible, foreclosed by prior

decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy"

(internal quotation marks and citation omitted)). We therefore affirm the district court's dismissal of Albert's

claims for declaratory and injunctive relief, albeit on different grounds.

2. Albert next argues that the district court erred by dismissing her Bivens claim. When analyzing Bivens

claims, we recognize that "most claims seeking to extend Bivens are dead on arrival," but still "apply a two-step

framework, asking first whether the claim arises in a new context, and second, if *5 so, whether other special

factors counsel hesitation against extending Bivens." Stanard v. Dy, 88 F.4th 811, 816 (9th Cir. 2023) (internal

quotation marks and citations omitted).

The parties agree that Albert's claim arises in a new Bivens context. Albert's argument is solely that the district

court erred at step two. At step two, we do not "independently assess the costs and benefits of implying a cause

of action." Egbert v. Boule, 596 U.S. 482, 496 (2022). Instead, we ask only "whether there is any rational

reason (even one) to think that Congress is better suited to weigh the costs and benefits of allowing a damages

action to proceed." Id. (internal quotation marks and citation omitted). While only one rational reason is

needed, multiple rational reasons counsel against implying a Bivens action here, including that Congress is in a

better position to assess the social costs of litigation that would potentially inhibit public officials from

performing their duties, see id. at 499, and that Albert had alternative ways to challenge the decision to change

her admission status from active to inactive, see id. at 497-98; Mejia v. Miller, 61 F.4th 663, 669 (9th Cir. 2023)

(noting that the plaintiff had "alternative administrative remedies"), including by "written motion to the Chief

Judge" of the Eastern District of California. E.D. Cal. L.R. 184(b). Thus, the district court did not err in

dismissing her Bivens claim. *6

3. Albert next challenges the district court's holding that Gonzalez had absolute quasi-judicial immunity from

Albert's UCL and Bivens claims. We conclude that Gonzalez, who served as the Operations Supervisor for the

Fresno Division of the Eastern District of California, was performing a ministerial action integral to the judicial

function when she followed the district's local rules and changed Albert's status to inactive. See In re Castillo,

App. A p. 3

Albert v. Gonzalez

No. 23-3322 (9th Cir. Aug. 20, 2024)

297 F.3d 940, 952 (9th Cir. 2002), as amended, (Sept. 6, 2002); E.D. Cal. L.R. 184(b). Because the Bivens

claim and the UCL claim alleged that Gonzalez was liable for that action, the district court properly dismissed

these claims.

4. The district court did not abuse its discretion in denying Albert leave to amend. See Garmon v. County of Los

Angeles, 828 F.3d 837, 842 (9th Cir. 2016). Albert contends that because she incorrectly pleaded her Bivens

claim as a Fourteenth Amendment claim, rather than a Fifth Amendment claim, she could "fix subject matter

jurisdiction." But amendment of the Bivens claim would be futile because, despite Albert's inartful pleading,

the district court analyzed her claims "under the Fifth, not Fourteenth, Amendment because legal conclusions in

a complaint are not controlling." We do not consider Albert's alternative theories for amending her complaint

because she advances them for the first time on appeal. See Consumer Fin. Prot. Bureau v. Aria, 54 F.4th 1168,

1173 (9th Cir. 2022) ("Because [the plaintiff] did not adequately raise these arguments to *7 preserve them

below, he has forfeited them."); One Indus., LLC v. Jim O'Neal Distrib., Inc., 578 F.3d 1154, 1158 (9th Cir.

2009) ("A party normally may not press an argument on appeal that it failed to raise in the district court.").

B. In re Albert, No. 24-3496.

In a third disciplinary proceeding, the California State Bar Court Review Department (the Review Department)

recommended that Albert be disbarred and placed her on involuntary inactive status. See In re Albert, 2024 WL

1231293. Albert notified the Eastern District of this suspension and, as permitted by the court's local rules,

asked the district court for a show cause order "on the grounds that [she] believe[d] that a reciprocal suspension

or disbarment is not warranted." Following Local Rule 184(b)1, the Eastern District automatically suspended

Albert and, after she had an opportunity to show cause, disbarred her from practicing before that court. Albert

appeals both the automatic suspension and the ultimate disbarment order.

1 That rule provides that if an attorney has a change in status that would make her "ineligible for membership in the Bar

of this Court or ineligible to practice in this Court," then "the attorney shall forthwith be suspended from practice

before this Court without any order of Court until becoming eligible to practice." E.D. Cal. L.R. 184(b). "Upon written

motion to the Chief Judge, an attorney shall be afforded an opportunity to show cause why the attorney should not be

suspended or disbarred from practice in this Court." Id.

1. Albert first argues that that the district court violated due process by automatically suspending her under

Rule 184(b) without conducting an *8 independent examination of the state record. "A district court's failure to

conduct adequate review of a state bar disciplinary procedure is a question of law reviewed de novo." In re

North, 383 F.3d 871, 874 (9th Cir. 2004). We conclude that Rule 184(b)'s automatic temporary suspension,

which afforded Albert an opportunity to challenge that suspension, did not violate her due process rights.

It is the attorney's "burden to demonstrate, by clear and convincing evidence, that one of the Selling [v.

Radford, 243 U.S. 46, 50-51 (1917)] elements precludes reciprocal discipline." In re Kramer, 282 F.3d 721, 724

(9th Cir. 2002). Independent examination of the record is not necessary when an attorney "concedes that the

action of the [state] courts satisfies Selling and its progeny." In re Kramer, 193 F.3d 1131, 1133 (9th Cir. 1999).

Here, Albert has not made that concession, but she also has not made any showing to meet her burden to

demonstrate a due process violation by clear and convincing evidence. See In re Kramer, 282 F.3d at 724. At

best, she has offered bare, conclusory allegations. Accordingly, we conclude that the district court did not have

to independently review the state court record because the local rules provided Albert with notice of the

automatic suspension and an opportunity to challenge it.2 See E.D. Cal. L.R. 184(b) *9 ("Upon written motion

to the Chief Judge, an attorney shall be afforded an opportunity to show cause why the attorney should not be

App. A p. 4

Albert v. Gonzalez

No. 23-3322 (9th Cir. Aug. 20, 2024)

suspended or disbarred from practice in this Court."); In re Corrinet, 645 F.3d 1141, 1145 (9th Cir. 2011)

(Attorneys "subject to disbarment [are] entitled to due process, including notice and an opportunity to be

heard.").

2 Albert calls for improvements to "[t]he practicalities of the system of notifying the Eastern District of a state court

suspension." Even if we construe this as a claim that the current procedures violate due process, Albert does not cite

any legal authority for her argument, so it fails. See Blumenkron v. Multnomah County, 91 F.4th 1303, 1317 (9th Cir.

2024) (concluding the plaintiffs abandoned their claims on appeal because their argument was "vague, unsupported by

any citations to case authority, and untethered to the applicable legal standards").

We likewise reject Albert's contention that imposing discipline without a "State Court Order of Disbarment"

lacked "due process" because only the California Supreme Court can issue an order of disbarment. Albert's

placement on inactive status by the Review Department made her ineligible for admission to practice before the

Eastern District, see E.D. Cal. L.R. 180(a)(1), and that change triggered the automatic suspension provision in

Rule 184(b).

In short, we conclude the district court did not violate Albert's due process rights by applying the procedure set

forth in Rule 184(b).

2. Albert next argues that the district court abused its discretion by reciprocally disbarring her. We disagree.

An attorney challenging a federal court's imposition of reciprocal discipline based on a state bar's disciplinary

adjudication must show, by clear and convincing *10 evidence, that the state court record revealed: "(1) a

deprivation of due process; (2) insufficient proof of misconduct; or (3) grave injustice that would result from

the imposition of such discipline." In re Kramer, 282 F.3d at 724 (citing Selling, 243 U.S. at 50-51) (setting

forth three Selling elements). We review the district court's disbarment order for abuse of discretion. In re

Corrinet, 645 F.3d at 1145.

In the California State Bar proceedings, Albert was charged with a violation of California Rule of Professional

Conduct 3.4(f)-that she "knowingly disobey[ed] [her] obligation under" the Eastern District's local rules to

notify the Eastern District of her suspension. In re Albert, 2024 WL 1231293, at *7-8. Albert was also charged

with the "unauthorized practice of law in another jurisdiction" in violation of California Business and

Professional Code § 6068(a) and California Rule of Professional Conduct 5.5(a)(1) by holding herself out as a

licensed attorney entitled to practice law in California in two cases before the Eastern District. Id. at *9.

Albert first contends that the California State Bar proceedings deprived her of due process and that the district

court erred by "relying on [a] State Bar recommendation which d[id] not consider" her argument that the

Eastern District's "automatic suspension" was unconstitutional. This argument fails because the

constitutionality of the Eastern District's automatic suspension provision in Rule 184(b) is irrelevant to the two

claims the state bar adjudicated. The local rule *11 providing for automatic suspension does not inform whether

Albert provided proper notice of her state discipline to the Eastern District or improperly held herself out as an

attorney.3

3 Albert also argues that the Eastern District violated due process by disbarring her when the Review Department had

only recommended disbarment and ordered her "involuntar[ily] inactive." This claim fails because Albert does not

explain how she was prejudiced by the district court's failure to wait for the final order. See United States v. Lovasco,

431 U.S. 783, 790 (1977) ("[P]roof of prejudice is generally a necessary . . . element of a due process claim.").

App. A p. 5

Albert v. Gonzalez

No. 23-3322 (9th Cir. Aug. 20, 2024)

Furthermore, shortly after the Eastern District ordered her disbarred, the California Supreme Court ordered Albert's

disbarment. In re Albert, Case No. SBC-22-O-30348 (Cal. June 17, 2024),

https://discipline.calbar.ca.gov/portal/Home/. Thus, any error was harmless.

Albert next argues that there was insufficient proof that she failed to give prompt notice to the Eastern District

of her change in status. But she fails to point to evidence showing that she notified the Eastern District of her

August 28, 2019, suspension before March 3, 2021. She only identifies filings that occurred before her August

28, 2019 suspension. Thus, the district court did not abuse its discretion when it concluded these notices failed

to meet Rule 184(b)'s requirement that an attorney "promptly notify the Court of any disciplinary action . . .

that would make the attorney ineligible for membership in the Bar of this Court."

Finally, Albert argues that the punishment recommended by the Review Department in the state bar's third

disciplinary proceeding "was so ill-fitted" to her *12 "misconduct" that the Eastern District's reciprocal

disbarment resulted in "grave injustice" because it was based on her suspensions imposed in her two prior

disciplinary proceedings. She also contends that the district court "ignored [a] course of events" where the

Ninth Circuit Bankruptcy Appellate Panel reversed dismissal of a civil claim. These arguments do not establish

a "grave injustice." First, Albert ignores that this third disciplinary proceeding found her culpable on new

charges. And second, Albert's pending civil claim was irrelevant to whether her punishment imposed was a

"grave injustice." Because Albert's arguments are irrelevant, and because of her history of inappropriate

behavior and ethical violations, we hold that the district court did not abuse its discretion in concluding that the

punishment imposed did not result in grave injustice. See In re Albert, 2024 WL 1231293, at *19 (recounting

Albert's lengthy disciplinary history).

Albert has not demonstrated by clear and convincing evidence that reciprocal disbarment is inappropriate under

any of the Selling elements. Therefore, the district court did not abuse its discretion by reciprocally disbarring

her.4

4 We deny Albert's motions for judicial notice (No. 23-3322, Dkts. 33, 44; No. 24-3496, Dkt. 13) because the documents

are "not relevant to the disposition of this appeal." Cuellar v. Joyce, 596 F.3d 505, 512 (9th Cir. 2010).

AFFIRMED.

[*]

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit

Rule 36-3.

[**]

The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App.

P. 34(a)(2).

[***]

The Honorable Gonzalo P. Curiel, United States District Judge for the Southern District of California,

sitting by designation.

App. A p. 6

2:24-mc-00117-KJM

United States District Court, Eastern District of California

In re Albert

Decided May 24, 2024

2:24-mc-00117-KJM

05-24-2024

Lenore Albert, Petitioner.

ORDER ADMINISTRATIVE MATTER

The court ordered Lenore Albert to show cause why she should not be suspended or disbarred from practice in

this court. Ms. Albert has responded. After reviewing the record and reviewing Ms. Albert's responses, the

court denies Ms. Albert's request and disbars her from practice in this court.

I. BACKGROUND

Ms. Albert initiated a communication with the court following her “third discipline matter since she obtained

her law license in December 2000.” In the Matter of Albert, No. 22-30348, 2024 WL 1231293, at *1 (Cal. Bar

Ct. Mar. 11, 2024). Earlier this year, a California state bar hearing judge found Ms. Albert culpable on five of

six counts, and, on review, the Review Department of the State Bar of California found her culpable of all six

counts. Id. (finding Ms. Albert culpable of moral turpitude in addition to the five counts found by the hearing

judge, which included failure to comply with local rules, failure to comply with California law and *2

unauthorized practice of law). On March 11, 2024, the Review Department ordered Ms. Albert suspended

effective March 14, 2024, pending disbarment. Id. at 19-20.

On March 12, 2024, Ms. Albert filed a motion for an order to show cause in this court regarding her notice of

impending suspension and disbarment by the California State Bar. See Mot. Order Show Cause, McMahon v.

Whitney, No. 23-1972 (E.D. Cal. Mar. 12, 2024), ECF No. 59. The court interpreted the motion as being filed

in the court generally as opposed to being filed in McMahon, a case in which Ms. Albert is counsel for the

plaintiff. See Order Show Cause, ECF No. 2. The court subsequently opened this miscellaneous case regarding

the attorney admissions status of Ms. Albert. The court granted Ms. Albert's request for an order to show cause,

as provided by the local rules, and directed Ms. Albert to show cause why she “should not be suspended or

disbarred from practice in this Court.” Id. at 1 (citing E.D. Cal. L.R. 184(b)). Ms. Albert has filed three

responses. First Resp., ECF No. 5; Second Resp., ECF No. 5-1; Third Resp., ECF No. 5-2.

II. LEGAL STANDARD

“If an attorney's status so changes with respect to eligibility, the attorney shall forthwith be suspended from

practice before this Court without any order of Court until becoming eligible to practice.” E.D. Cal. L.R.

184(b). “Upon written motion to the Chief Judge, an attorney shall be afforded an opportunity to show cause

why the attorney should not be suspended or disbarred from practice in this Court.” Id. “[A] federal court's

imposition of reciprocal discipline on a member of its bar based on a state's disciplinary adjudication is proper

App. B p. 7

In re Albert

2:24-mc-00117-KJM (E.D. Cal. May. 24, 2024)

unless an independent review of the record reveals” at least one of the following conditions is met: “(1) a

deprivation of due process; (2) insufficient proof of misconduct; or (3) grave injustice which would result from

the imposition of such discipline.” In re Kramer, 282 F.3d 721, 724 (9th Cir. 2002) (citing In re Kramer

(“Kramer III'), 193 F.3d 1131, 1132 (9th Cir. 1999)); see also Selling v. Radford, 243 U.S. 46, 50-51 (1917).

Federal courts “extend great deference to the state [bar] court's determination unless” the court independently

determines one of the enumerated conditions exists. Gadda v. Ashcroft, 377 F.3d 934, 943 (9th Cir. 2004).

However, the court “must accord a presumption of correctness to the state court factual findings.” *3 In re

Rosenthal, 854 F.2d 1187, 1188 (9th Cir. 1988) (per curiam). It is the attorney's burden to demonstrate by “clear

and convincing evidence” that one of the available conditions prevents a finding of reciprocal discipline. In re

Kramer, 282 F.3d at 724-25.

III. PAGE LIMITS

The court notes Ms. Albert has explicitly and intentionally not complied with the court's standing order,

available on its web page, by significantly exceeding the court's page limits. See Standing Order at 31; First

Resp. at i (“Ms. Albert understands that the Court limits page size to twenty pages, but Ms. Albert would not

have a fair chance of laying out the reasons why she should not be suspended or disbarred from this Court.”);

Second Resp. at i (same); Third Resp. at i (same). Rather than requesting leave to exceed the page limitations,

Ms. Albert has simply assumed she could do so and filed three separate briefs, totaling 37 pages without the

tables of contents, in response to the court's order to show cause.

1 Chief Judge Kimberly J. Mueller, Civil Standing Order, https://www.caed.uscourts.gov/caednew/index.cfm/judges/all-

judges/5020/civil-standing-order.

“The district court has considerable latitude in managing the parties' motion practice and enforcing local rules

that place parameters on briefing.” Christian v. Mattel, Inc., 286 F.3d 1118, 1129 (9th Cir. 2002). This includes

setting page limits on briefs and enforcing its orders. See Swanson v. U.S. Forest Serv., 87 F.3d 339, 345 (9th

Cir. 1996) (affirming district court's decision to strike an overlength brief). As Ms. Albert acknowledges, this

court has specific rules regarding the length and format of motion papers. See Standing Order at 3

(“Memoranda of Points and Authorities in support of or in opposition to motions shall not exceed twenty (20)

pages.”). These page limits are not mere formalities. They promote judicial economy and “encourage litigants

to hone their arguments and to eliminate excessive verbiage.” Fleming v. County of Kane, 855 F.2d 496, 497

(7th Cir. 1988) (citation omitted); see also N/S Corp. v. Liberty Mut. Ins. Co., 127 F.3d 1145, 1146 (9th Cir.

1997) (“[R]esources are limited. In order to give fair consideration to those who call upon us for justice, we

must insist that parties not clog the system by presenting us with a slubby mass of words rather than a true

brief. Hence we have briefing rules.”); Snyder v. HSBC Bank, USA, N.A., 913 F.Supp.2d 755, 766 (D. Ariz.

2012) (“Judicial economy and concise *4 argument are purposes of the page limit.” (citation omitted)). District

courts have imposed various sanctions for noncompliance with page limits, including disregarding

noncompliant briefs, striking only portions of the brief that exceed the page limit and imposing monetary

sanctions. See Snyder, 913 F.Supp.2d at 766 (collecting cases). After receiving notice of her suspension and

pending disbarment, on multiple grounds including failure to comply with local rules, Ms. Albert proceeded to

flagrantly disregard an established rule of practice here. Given the gravity of the consequences Ms. Albert is

facing, the court will nonetheless consider the merits of her responses without striking or disregarding the

responses in part or in full. The court also notes Ms. Albert has attached over a thousand pages to her briefs,

without providing pinpoint cites. The court is under no obligation to comb this voluminous record to find what

may be helpful to Ms. Albert, if anything, but will take account of portions of the exhibits to the extent they are

App. B p. 8

In re Albert

2:24-mc-00117-KJM (E.D. Cal. May. 24, 2024)

obviously relevant and pertain to the State Bar Court record. See In re Kramer, 282 F.3d at 723; see also, e.g.,

Orr v. Bank of America, 285 F.3d 764, 775 (9th Cir. 2002) (“Judges need not paw over the files without

assistance from the parties.” (internal marks and citation omitted)).

IV. DISCUSSION

Before proceeding to the analysis of the Selling factors, the court briefly addresses two arguments raised by

Ms. Albert in her first response. First, Ms. Albert argues suspension or disbarment is not warranted by a local

rules violation. First Resp. at 5. She argues the Ninth Circuit has limited discipline for local rules violations to

small sanctions. But review of the State Bar Court record makes clear her suspension pending disbarment was

based not only on her violation of the local rule, but on other bases such as unauthorized practice of law and

moral turpitude. See generally In the Matter of Albert, 2024 WL 1231293. Second, Ms. Albert argues the state

bar refused to consider legal precedent that prevents federal courts from automatically suspending or disbarring

an attorney based on a state court decision. First Resp. at 8. However, the State Bar court specifically discussed

the automatic suspension provision and noted the procedure in this court's Local Rules to challenge automatic

suspensions. See In the Matter of Albert, 2024 WL 121293, at *4 (“Suspended attorneys can challenge the

automatic EDCA suspension through the process detailed in EDCA L.R. 184(b), which requires the suspended

*5 attorney to take the proactive step of filing a motion directed to the Chief Judge for the EDCA.”). The court

finds neither of these arguments meritorious.

A. Due Process

Although Ms. Albert claims she was deprived of due process, she has not demonstrated such a deprivation. To

establish a violation, Ms. Albert must show by clear and convincing evidence “that the state procedure, from

want of notice or opportunity to be heard, was wanting in due process.” Selling, 243 U.S. at 51. “The lawyer

subject to discipline is entitled to procedural due process, including notice and an opportunity to be heard.”

Rosenthal v. Justs. of the Sup. Ct. of Cal., 910 F.2d 561, 564 (9th Cir. 1990); Rosenthal, 854 F.2d at 1188. Ms.

Albert claims “she was not informed that placing her State Bar Number . . . next to her name would be a form

of [unauthorized practice of law] (advertising/holding oneself out [as a lawyer]).” First Resp. at 13. However,

as the State Bar Court of California Review Department concluded, her use of her “State Bar number[, her]

signed pleadings as counsel of record, and her signature line [being placed above that of the practicing attorney

she was working with when she was suspended from practice] . . . are all clear signals she held herself out as an

attorney on the matter.” In the Matter of Albert, 2024 WL 1231293, at *9; see Cal. Bus. & Prof. Code § 6126;

cf. Matter of Wyrick, No. 88-10804, 1992 WL 70556, at *2-5 (Cal. Bar Ct. Apr. 6, 1992) (finding suspended

attorney held himself out to be an attorney by using “Member, State Bar of CA” and “Esq.” to describe

himself).

Additionally, Ms. Albert appears to argue she was deprived of due process when the state bar refused to

consider her federal constitutional claim. Resp. at 13-14. The court is not persuaded. The case Ms. Albert

seems to quote, for which she provides no citation, disproves her argument and concludes that under the

California Constitution, the State Bar Court is not able to consider federal constitutional arguments. See First

Resp. at 13; Albert v. Gonzalez, No. 2300635, 2023 WL 8895708, at *6 (C.D. Cal. Oct. 6, 2023); Hirsh v. Justs.

of Sup. Ct., 67 F.3d 708, 713 (9th Cir. 1995) (“The California Constitution precludes the Bar Court from

considering federal constitutional claims.” (citing Cal. Const. art. III, § 3.5)). The State Bar did not deprive Ms.

Albert of due process when it did not consider her constitutional claims. *6

App. B p. 9

In re Albert

2:24-mc-00117-KJM (E.D. Cal. May. 24, 2024)

Moreover, Ms. Albert argues she did not have notice the State Bar would find she committed unauthorized

practice of law in federal court because the State Bar Act is meant to be limited to state court practice. See First

Resp. at 17-19. This argument is wholly without merit. Compliance with the State Bar Act is required by this

court's local rules, which require attorneys practicing here to “comply with the standards of professional

conduct required of members of the State Bar of California and contained in the State Bar Act, the Rules of

Professional Conduct of the State Bar of California, and court decisions applicable thereto[.]” E.D. Cal. L.R.

180(e); see Birbrower, Montalbano, Condon & Frank v. Superior Ct., 17 Cal.4th 119, 130 (1998), as modified

(Feb. 25, 1998) (recognizing while “[t]he [State Bar] Act does not regulate practice before Unite States

courts[,]” several federal district courts “today condition[] admission to their respective bars . . . on active

membership and good standing in California State Bar”).

The court is also unpersuaded by Ms. Albert's arguments regarding the timing of the State Bar Court hearing,

see id. at 14, the “[u]nfair[ness]” of the ruling on her request for judicial notice, see id. at 14-16, and the

purported lack of any basis for the Review Department's finding of moral turpitude, see id. at 19-20. Ms. Albert

provides either no relevant legal authority or no legal authority at all in support of these arguments. She was

heard on the merits by a hearing officer and on appeal, and she has not shown by clear and convincing evidence

that she was deprived of due process. See, e.g., In re Scannell, 411 Fed.Appx. 110, 112 (9th Cir. 2011).

B. Proof of Misconduct

Ms. Albert contends there is insufficient proof of her misconduct. For her to benefit from this condition would

require “that there was such an infirmity of proof as to facts found to have established the want of fair private

and professional character as to give rise to a clear conviction on [the court's] part that [the court] could not,

consistently with [the court's] duty, accept as final the conclusion on that subject[.]” Selling, 243 U.S. at 51.

Ms. Albert repeatedly mentions in support of this argument a letter she received from the U.S. Supreme Court

and a recent opinion from the Ninth Circuit Bankruptcy Appeals Panel. See, e.g., Second Resp. at 1 (making

references without citation). Though Ms. Albert claims the letter from the Supreme Court “demonstrate[s] that

any suspension or disbarment would be premature under the Rules,” the *7 letter says nothing of the sort. See

Letter from U.S. Supreme Court Clerk, ECF No. 5-9. Rather, the letter acknowledges her notice of interim

suspension and notes “Supreme Court Rule 8 does not provide an avenue for [her] to seek the review of

disbarment or disciplinary proceedings.” Id. Nothing in the letter supports the argument that the State Bar's

interim suspension is premature. See First Resp. at 1; Second Resp. at 1.

Similarly, she vaguely states the Ninth Circuit Bankruptcy Appeals Panel “reversed dismissal of Ms. Albert's

claim that the State Bar violated her constitutional rights with such disproportionate State Bar costs.” First

Resp. at 1; Second Resp. at 1. However, she omits the critical detail that the opinion actually concluded “[t]he

bankruptcy court properly dismissed Albert's Eighth Amendment Claim for excessive fines against the State

Bar,” and the opinion otherwise reversed dismissal of “Albert's claims under the California constitution”

because the bankruptcy court incorrectly determined there was no subject matter jurisdiction. See In re AlbertSheridan, No. 18-01065, 658 B.R. 516, 527, 543. (B.A.P. 9th Cir. Apr. 2, 2024). This finding has no bearing on

the merits of her claim or the relevant analysis here under Selling. Moreover, the Bankruptcy Appeals Panel, in

issuing the reversal on jurisdictional grounds, noted “Albert's scattered pleading and ever-changing arguments

have confused the jurisdictional analysis,” id. at 545, and the concurrence in that case concluded Ms. Albert's

“briefing and oral argument . . . were incompetent” and “[s]he richly deserved the suspension and other

discipline that the California Supreme Court imposed,” id. at 550 (Farris, J., concurring). The opinion in no

way supports Ms. Albert's argument that there was insufficient proof of misconduct. Her referencing it is of a

piece with Ms. Albert's practice of making false and misleading statements to the court.

App. B p. 10

In re Albert

2:24-mc-00117-KJM (E.D. Cal. May. 24, 2024)

Ms. Albert disputes the State Bar's conclusions that her notification of her second suspension to this court was

not “prompt,” as required by the local rules. Second Resp. at 2. She contends the lack of explicit statements by

courts, judges and court staff that her notification of her suspension was not “prompt” amounts to evidence that

her notification was, in fact, “prompt.” Id. at 2. Her argument is a logical fallacy, without any legal support. Id.

at 2-3. Though there is no clear deadline required by the “prompt” notice requirement in the Local Rules, Ms.

Albert *8 waited more than six months before providing the court notice of her suspension. See In the Matter of

Albert, 2024 WL 1231293, at *8. As the Review Board explained in its opinion, Ms. Albert even had “actual

direct notice” of the relevant local rules and their requirements when the opposing party in a case she was

working on cited them in reference to her eligibility to practice law, months before she notified the court. See

id. Under no reasonable formulation could the six months Ms. Albert waited before giving notice to the court

qualify as “prompt.” The Review Department provided sufficient proof of her misconduct.

Ms. Albert contends, also without citation, there was insufficient evidence to support the conclusion she was a

“burden” on Judge McAuliffe and others in this court. Second Resp. at 3. The court construes this argument as

pertaining to the Review Department's determination that “limited weight in aggravation [was] warranted”

under the aggravating factor regarding “[significant harm to the client, the public, or the administration of

justice.” In the Matter of Albert, 2024 WL 1231293, at *14; Matter of Reiss, No. 09-10499, 2012 WL 5406816

(Cal. Bar Ct. Oct. 3, 2012) (giving weight in aggravation for wasted judicial time and resources). In support of

its determination, the Review Department pointed to the “wasted judicial time and resources” that stemmed

from Ms. Albert's inability to simply comply with this court's Local Rules and appropriately provide notice of

her suspension, which would have obviated the need for the additional burdens placed on the court. Id. The

court finds the Review Department relied on sufficient proof.

Ms. Albert argues her appeals of her suspensions rendered the dates of her suspension “speculative,”

potentially validating her conduct at the time. Second Resp. at 4-5. But her pending appeal did not nullify the

suspension imposed by the State Bar and does not detract from the proof the Review Department determined

established her culpability for her violations of the suspension at the time.

Finally, Ms. Albert argues there was insufficient proof because she was listed on this court's website as having

active status. Id. at 5; In the Matter of Albert, 2024 WL 1231293, at *6. This argument is meritless. As the

Review Department pointed out, “[t]he only reason the EDCA website showed Albert as active on February 12,

2021, is because Albert did not comply with *9 EDCA L.R. 184 and inform the EDCA of her suspensions.” In

the Matter of Albert, 2024 WL 1231293, at *12.

For these reasons, and upon an independent review of the record, the court finds there was sufficient proof of

misconduct to support Ms. Albert's suspension and disbarment.

C. Grave Injustice

Ms. Albert argues grave injustice would result if the discipline imposed by the State Bar were honored by this

court. See generally Third Resp. She argues “reciprocal suspension or disbarment would result in a manifest

injustice because the practice of law is [her] sole source of support.” Id. at 1. She provides no legal authority to

support this argument. She appears to “confuse[] the painful repercussion from reciprocal discipline itself (i.e.,

disbarment) with the legal standard of whether imposing reciprocal discipline would result in grave injustice

because the discipline was improperly imposed.” Matter of Dubin, No. 20-00419, 2021 WL 4496948, at *16

(D. Haw. Sept. 30, 2021) (alteration omitted). “Instead, [the court] inquire[s] only whether the punishment

imposed by another disciplinary authority or court was so ill-fitted to an attorney's adjudicated misconduct that

reciprocal disbarment would result in grave injustice.” In re Kramer, 282 F.3d at 727.

App. B p. 11

In re Albert

2:24-mc-00117-KJM (E.D. Cal. May. 24, 2024)

Ms. Albert's argument the disciplinary decision is retaliation for the lawsuit she brought against the State Bar

regarding a data breach is equally unconvincing. Ms. Albert identifies the relevant date as her filing of the State

Bar data breach putative class action on March 18, 2022, after which she was the subject of State Bar

disciplinary proceedings. But the State Bar's disciplinary actions against her began in 2015, predating the data

breach lawsuit, with additional proceedings initiated virtually annually through the present.2

2 Attorney Profile for Lenore LuAnn Albert, STATE BAR OF CALIFORNIA,

https://apps.calbar.ca.gov/attorney/Licensee/Detail/210876.

The court also is not persuaded by Ms. Albert's meandering argument that there was an unjustifiable and

unpredictable break in the law. See Third Resp. at 3-6. In making this argument, Ms. Albert seems to request

review of the merits of her case based on the underlying acts and law. However, “[i]n reviewing a reciprocal

disbarment, we do not re-try an attorney for *10 misconduct.” In re Kramer, 282 F.3d at 727. As explained

above, the court finds the Review Department provided sufficient proof regarding Ms. Albert's misconduct.

The court is not convinced by Ms. Albert's arguments that grave injustice would occur if she were suspended or

disbarred in this court because “[t]he putative class action of the State Bar data breach needs a home if the

Central District cannot reopen the case,” Third Resp. at 1, 7-9, and “[h]er client Ryan McMahon cannot find

other counsel due to the negative publicity and cancel-culture in the current environment,” id. at 1. Assuming

without deciding that Mr. McMahon is unable to find other counsel, whatever the reason, that cannot provide a

reason for Ms. Albert's avoiding the consequences of her actions.

Ms. Albert has not shown by clear and convincing evidence that the third condition under Selling, grave

injustice, applies here to spare her from reciprocal disbarment.

D. Conclusion

Ms. Albert has not shown any of the three conditions under Selling are satisfied to preclude disbarment. Ms.

Albert is hereby disbarred from practice in the Eastern District of California.

This order resolves ECF No. 5.

IT IS SO ORDERED.

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_____________________________________________________________________

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

JS-6

CIVIL MINUTES – GENERAL

Case No.: 8:23-cv-00635-FWS-JDE

Title: Lenore Albert v. Roxanne Gonzalez et al.

Date: October 6, 2023

Present: HONORABLE FRED W. SLAUGHTER, UNITED STATES DISTRICT JUDGE

Melissa H. Kunig

Deputy Clerk

N/A

Court Reporter

Attorneys Present for Plaintiff:

Attorneys Present for Defendant:

Not Present

PROCEEDINGS: ORDER GRANTING IN PART AND DENYING AS MOOT IN PART

DEFENDANT’S MOTION TO DISMISS OR TRANSFER [19]

Before the court is Defendant Roxanne Gonzalez’s (“Defendant”) Motion to Dismiss, or,

in the Alternative, Transfer this Action to the Eastern District of California. (Dkt. 19 (“Motion”

or “Mot.”).) Plaintiff Lenore Albert (“Plaintiff”) opposes. (Dkt. 22 (“Opposition” or “Opp.”).)

Defendant has replied. (Dkt. 24 (“Reply”).) Based on the state of the record, as applied to the

applicable law, the court GRANTS IN PART AND DENIES AS MOOT IN PART the

Motion.

Background

This case arises from Defendant, a court clerk for the United States District Court for the

Eastern District of California (“Eastern District”), changing Plaintiff’s status from an “active”

member of the Bar of the Eastern District to an “inactive” one pursuant to Eastern District Local

Rules 180(c) and 184(b).1 (Dkt. 1 (“Complaint” or “Compl.”) ¶¶ 3, 7, 9, 17.) Plaintiff asserts

this involuntary change in status violated her constitutional rights and consequently seeks

Although Plaintiff appears in this action pro se, the liberal construction of pleadings

customarily afforded to pro se parties does not apply because she is an attorney. Huffman v.

Lindgren, --- F.4th ----, 2023 WL 5660151, at *3 (9th Cir. Sept. 1, 2023); Holtz v. Rockefeller

& Co., 258 F.3d 62, 82 n.4 (2d Cir. 2001).

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_____________________________________________________________________

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No.: 8:23-cv-00635-FWS-JDE

Title: Lenore Albert v. Roxanne Gonzalez et al.

Date: October 6, 2023

various forms of equitable relief, including declaratory and injunctive relief, in addition to

damages. (Id. ¶¶ 20-59.)

To put the matter in context requires some review of the record. Plaintiff was previously

suspended2 by the California Supreme Court in 2017 for one year, stayed, and was placed on

probation for one year with actual suspension for 30 days.3 Within a week of her suspension

and prior to paying the sanctions award underlying the suspension, Plaintiff filed for Chapter 13

bankruptcy. See Albert v. Williams, 2018 WL 6092578, at *3 (C.D. Cal. Nov. 21, 2018). The

bankruptcy court ultimately discharged some of the sanctions award against Plaintiff but

required her to pay discipline costs. (Dkt. 19-1 (“Pinchas Decl.”), Exh. 1 at 5.) Plaintiff paid

the amounts owed on April 21, 2021, after which the State Bar determined Plaintiff should be

reinstated.4 (Id. at 6.)

Around this time in 2021, Plaintiff participated in the defense of at least one case in the

Eastern District, Avalos v. Gonzalez, No. 1:20-cv-01578 (E.D. Cal.). In connection with that

case, Plaintiff requested a certificate of good standing from Defendant on or about February 12,

2021. (Compl. ¶ 33.) After receiving Plaintiff’s request, Defendant changed Plaintiff’s status

from “active” to “inactive” pursuant to Eastern District Local Rules 180(c) and 184(b) on or

about March 3, 2021.5 (Id. ¶¶ 9, 11.) Defendant decided to change Plaintiff’s status after

Defendant notes Plaintiff has some history in proceedings before the State Bar, (see Mot. at 12); the bulk of these are not relevant here.

See State Bar Court of California Case No. 15-O-12260, available at

https://apps.statebarcourt.ca.gov/dockets.aspx.

Plaintiff’s license was apparently briefly reinstated on June 1, 2018, backdated to March 16,

2018 due to developments in the Chapter 13 proceedings. See Albert, 2018 WL 6092578, at *3.

The suspension was re-imposed on June 28, 2018 after the Bankruptcy converted her case into a

Chapter 7 proceeding. See id.

In sum, Rule 180(c) requires attorneys admitted to the Eastern District to notify the court of

changes in status in other jurisdictions that would make them ineligible to practice in that

District, and provides a procedure by which ineligible attorneys may be suspended form

practice without a separate court order in certain circumstances. See E.D. Cal. L.R. 180(c).

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_____________________________________________________________________

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No.: 8:23-cv-00635-FWS-JDE

Title: Lenore Albert v. Roxanne Gonzalez et al.

Date: October 6, 2023

observing Plaintiff was listed on the California State Bar’s website as “not eligible” to practice

law in California. (Id. ¶¶ 10, 34.)

On February 19, 2021, Plaintiff filed an answer in the Avalos litigation. Request for

Ruling at 1, Avalos v. Gonzalez, No. 1:20-cv-01578 (E.D. Cal.) (Dkt. 15). Plaintiff later sought

an order from the court on March 3, 2021 permitting her to represent a party in that action. Id.

Two days later, the presiding Magistrate Judge ordered Plaintiff to show cause why her request

for admission should not be denied based on her suspension from the practice of law in

California. Order to Show Cause at 1-2, Avalos v. Gonzalez, No. 1:20-cv-01578 (E.D. Cal.)

(Dkt. 16). Plaintiff submitted several filings in response, and a hearing was held on April 16,

2021. See, e.g., Memorandum of Points and Authorities in Support of Lenore Albert’s

Response to the Court’s Order to Show Cause, Avalos v. Gonzalez, No. 1:20-cv-01578 (E.D.

Cal.) (Dkt. 22); Minutes for Proceedings, Avalos v. Gonzalez, No. 1:20-cv-01578 (E.D. Cal.)

(Dkt. 33). The order was discharged as moot on May 12, 2021, after Plaintiff’s reinstatement.

Order Discharging Order to Show Cause at 1-2, Avalos v. Gonzalez, No. 1:20-cv-01578 (E.D.

Cal.) (Dkt. 39).

A California State Bar disciplinary proceeding, Case No. 22-O-30348, was initiated

against Plaintiff on April 29, 2022. (Pinchas Decl., Exh. 1, at 2.) After a four-day trial in

December 2022, the State Bar Court issued its opinion on April 3, 2023 recommending, in part,

that Plaintiff be suspended from practice for eighteen months, pay monetary sanctions and

costs, and remain on parole for 3 years. (Pinchas Decl., Exh. 1 at 49, 51-56.) The State Bar

Court based its recommendation on its findings that Plaintiff knowingly violated the rules of a

tribunal (i.e., the Eastern District’s Local Rules) in violation of State Bar Rule 3.4(f), that

Plaintiff failed to comply with California law by engaging in the unauthorized practice of law in

Likewise, Rule 184(b) requires admitted attorneys to provide similar notice of a change in

status in another jurisdiction or disciplinary actions taken against them, an automatic suspension

if that attorney becomes ineligible to practice in the Eastern District as a consequence, and a

procedure by which the attorney may receive an opportunity to contest their suspension or

disbarment from the Eastern District. See E.D. Cal. L.R. 184(b).

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CIVIL MINUTES – GENERAL

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_____________________________________________________________________

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No.: 8:23-cv-00635-FWS-JDE

Title: Lenore Albert v. Roxanne Gonzalez et al.

Date: October 6, 2023

the Eastern District, and that insufficient evidence supported a finding that Plaintiff’s actions

involved moral turpitude, dishonesty, or corruption. (Id. at 21-34.)

This action was filed in this court on April 12, 2023. (Dkt. 1.) In it, Plaintiff seeks (1)

declaratory relief that (a) Local Rules 180 and 184 are unconstitutional as applied to Plaintiff,

(b) she has a right to contest her change in status in the Eastern District of California, and (c) a

right to an appealable order of decision; (2) to enjoin Defendant from changing Plaintiff’s status

from “active” to “inactive” without a prior hearing and accompanying appealable order; (3)

damages on account of Defendant’s asserted violations of Plaintiff’s First and Fifth6

The complaint alleges Plaintiff’s “due process” rights were violated, (Compl. ¶ 39), but only

explicitly references the Fourteenth Amendment, (e.g., id. ¶ 51). The Fourteenth Amendment is

not a proper vehicle for the relief Plaintiff seeks because it “applies to actions by a State,” not

the federal government. San Francisco Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S.

522, 542 n.21 (1987). Because Defendant is an employee of the federal government, Plaintiff’s

due process claims arise under the Fifth Amendment. See, e.g., Bingue v. Prunchak, 512 F.3d

1169, 1174 (9th Cir. 2008) (“The Fifth Amendment prohibits the federal government from

depriving persons of due process, while the Fourteenth Amendment explicitly prohibits

deprivations without due process by the several States.”) (quoting Castillo v. McFadden, 399

F.3d 993, 1002 n.5 (9th Cir. 2005)). Relatedly, Plaintiff filed a notice of errata and declaration

indicating her desire to have the Complaint reference the Fifth Amendment instead of the

Fourteenth. (See Dkts. 22-23.) Filing an erratum concurrently with an opposition to a noticed

motion is not the proper procedure to correct inconsistencies in a challenged complaint. See

Gunn v. Tilton, 2010 WL 3744610, at *3 (E.D. Cal. Sept. 21, 2010) (noting “it is not proper” a

plaintiff to use errata to add claims and allegations to a lodged amended complaint and

consequently denying request to append those claims to the lodged amended complaint). The

court will nevertheless analyze Plaintiff’s constitutional claims under the Fifth, not Fourteenth,

Amendment because legal conclusions in a complaint are not controlling. See, e.g., Whitaker v.

Tesla Motors, Inc., 985 F.3d 1173, 1176 (9th Cir. 2021).

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CIVIL MINUTES – GENERAL

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_____________________________________________________________________

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No.: 8:23-cv-00635-FWS-JDE

Title: Lenore Albert v. Roxanne Gonzalez et al.

Date: October 6, 2023

Amendment rights; and (4) equitable relief under California’s Unfair Competition Law, Cal.

Bus. & Prof. Code § 17200 et seq. (“UCL”).7 (Id. ¶¶ 20-59.)

Meanwhile, Plaintiff has appealed the State Bar Court’s recommendation in California

Superior Court, filing her opening brief in the State Bar Court Review Department on June 29,

2023. (Pinchas Decl., Exh. 2.) In her brief, Plaintiff argues, as she does in this action, that

Eastern District Local Rules 180 and 184 are unconstitutional and violate Supreme Court law,

and that she was denied due process by the Eastern District of California. (Id. at 12, 15.)

II.

Relevant Legal Standards8

Motion to Dismiss under Rule 12(b)(1)

“Federal courts are courts of limited jurisdiction, possessing only that power authorized

by Constitution and statute.” Gunn v. Minton, 568 U.S. 251, 257 (2013) (citation and internal

Given they overlap in the relief requested, (see Compl. ¶¶ 26-27, 29, 31), and are materially

indistinguishable for purposes of the court’s analysis, the court refers to Plaintiff’s sought

declaratory and injunctive relief as her “first” and “second” claims. The court refers to

Plaintiff’s claim for damages based on asserted constitutional violations as her “third” or

“Bivens” claim, and her claim under the UCL as her “fourth” or “UCL” claim.

Defendant does not clearly establish whether a particular argument for the dismissal it seeks

under Younger is brought under Rule 12(b)(1) or 12(b)(6). The court is unaware of Supreme

Court or Ninth Circuit authority squarely resolving the issue, and notes that federal courts apply

both standards. See, e.g., Parker v. Jud. Inquiry Comm’n of the State of Alabama, 212 F. Supp.

3d 1171, 1174 n.1 (M.D. Ala. 2016) (observing split). For present purposes, the court finds the

Rule 12(b)(1) standard is better suited to this aspect of the Motion. See Steel Co. v. Citizens for

a Better Env’t, 523 U.S. 83, 100 n.3 (1998) (describing the Supreme Court’s “treat[ment]” of

Younger as “jurisdictional”); Washington v. Los Angeles Cnty. Sheriff’s Dep’t, 833 F.3d 1048,

1057-58 (9th Cir. 2016) (treating dismissal under Younger as a Rule 12(b)(1) motion for

purposes of calculating strikes under the Prisoner Litigation Reform Act because Younger

“contemplates the outright dismissal of the federal suit, and the presentation of all claims, both

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_____________________________________________________________________

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No.: 8:23-cv-00635-FWS-JDE

Title: Lenore Albert v. Roxanne Gonzalez et al.

Date: October 6, 2023

quotation marks omitted). Pursuant to Federal Rule of Civil Procedure 12(b)(1), a party may

move to dismiss a case for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A

defendant’s challenge under the Rule may be either facial or factual. Safe Air for Everyone v.

Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A facial attack “accepts the truth of plaintiff’s

allegations but asserts that they ‘are insufficient on their face to invoke federal jurisdiction.’”

Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014) (quoting Safe Air for Everyone, 373

F.3d at 1039). A factual attack “contests the truth of the plaintiff’s factual allegations, usually

by introducing evidence outside of the pleadings.” Id.

“In resolving a factual attack on jurisdiction, the district court may review evidence

beyond the complaint without converting the motion to dismiss into a motion for summary

judgment.” Safe Air for Everyone, 373 F.3d at 1039 (citation omitted). The court need not

presume the truthfulness of the plaintiff’s allegations in doing so. Id. “Once the moving party

has converted the motion to dismiss into a factual motion by presenting affidavits or other

evidence properly brought before the court, the party opposing the motion must furnish

affidavits or other evidence necessary to satisfy its burden of establishing subject matter

jurisdiction.” Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003)

(citation omitted). Where “the jurisdictional disputes [are] not intertwined with the merits of

state and federal, to the state courts”) (quoting Gibson v. Berryhill, 411 U.S. 564, 577 (1973)).

The court notes either standard would yield the same outcome; the court may take judicial

notice of the Superior Court filings submitted by Defendant in the Rule 12(b)(6) context, see

Tye v. Cnty. of Los Angeles, 785 F. App’x 479, 480 (9th Cir. 2019), and the court is permitted

on a Rule 12(b)(1) motion to “look beyond the complaint and consider extrinsic evidence,”

Warren v. Fox Fam. Worldwide, Inc., 328 F.3d 1136, 1141 n.5 (9th Cir. 2003) (citation

omitted). The court will likewise consider the supplementary materials submitted by Plaintiff in

analyzing Younger abstention. (Dkts. 22-23.) However, absent a party demonstrating an

exception applies that permits consideration of extrinsic materials to evaluate an issue relevant

to Defendant’s challenges under Rule 12(b)(6), the court will cabin its consideration of those

materials to the Younger analysis. See Fed. R. Civ. P. 12(d); (see also Reply at 9 (objecting to

considering Plaintiff’s declaration and exhibits because “[a] motion to dismiss for failure to

state a claim is based on the pleadings . . . .”).)

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_____________________________________________________________________

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No.: 8:23-cv-00635-FWS-JDE

Title: Lenore Albert v. Roxanne Gonzalez et al.

Date: October 6, 2023

the claim” and “the existence of jurisdiction turn[s] on disputed factual issues,” the court may

“resolve those factual disputes” where necessary. See Friends of the Earth v. Sanderson Farms,

Inc., 992 F.3d 939, 944 (9th Cir. 2021) (citation and internal quotation marks omitted);

Kingman Reef Atoll Invs., L.L.C. v. United States, 541 F.3d 1189, 1195 (9th Cir. 2008).

Motion to Dismiss under Rule 12(b)(6)

Rule 12(b)(6) permits a defendant to move to dismiss a complaint for “failure to state a

claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “[C]ourts must consider the

complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule

12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by

reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues

& Rts., Ltd., 551 U.S. 308, 322 (2007). To withstand a motion to dismiss brought under Rule

12(b)(6), a complaint must allege “enough facts to state a claim to relief that is plausible on its

face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). While “a complaint attacked by a

Rule 12(b)(6) motion to dismiss does not need detailed factual allegations,” a plaintiff must

provide “more than labels and conclusions” and “a formulaic recitation of the elements of a

cause of action” such that the factual allegations “raise a right to relief above the speculative

level.” Id. at 555 (citations and internal quotation marks omitted); see also Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (reiterating that “recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice”). “A Rule 12(b)(6) dismissal ‘can be

based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a

cognizable legal theory.’” Godecke v. Kinetic Concepts, Inc., 937 F.3d 1201, 1208 (9th Cir.

2019) (quoting Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)).

“Establishing the plausibility of a complaint’s allegations is a two-step process that is

‘context-specific’ and ‘requires the reviewing court to draw on its judicial experience and

common sense.’” Eclectic Props. E., LLC v. Marcus & Millichap Co., 751 F.3d 990, 995-96

(9th Cir. 2014) (quoting Iqbal, 556 U.S. at 679). “First, to be entitled to the presumption of

truth, allegations in a complaint . . . must contain sufficient allegations of underlying facts to

give fair notice and to enable the opposing party to defend itself effectively.” Id. at 996

(quoting Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)). “Second, the factual allegations

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Title: Lenore Albert v. Roxanne Gonzalez et al.

Date: October 6, 2023

that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to

require the opposing party to be subjected to the expense of discovery and continued litigation.”

Id. (quoting Starr, 652 F.3d at 1216); see also Iqbal, 556 U.S. at 681.

Plausibility “is not akin to a ‘probability requirement,’ but it asks for more than a sheer

possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly,

550 U.S. at 556). On one hand, “[g]enerally, when a plaintiff alleges facts consistent with both

the plaintiff’s and the defendant’s explanation, and both explanations are plausible, the plaintiff

survives a motion to dismiss under Rule 12(b)(6).” In re Dynamic Random Access Memory

(DRAM) Indirect Purchaser Antitrust Litig., 28 F.4th 42, 47 (9th Cir. 2022) (citing Starr, 652

F.3d at 1216). But, on the other, “[w]here a complaint pleads facts that are merely consistent

with a defendant’s liability, it stops short of the line between possibility and plausibility of

entitlement to relief.” Eclectic Props. E., 751 F.3d at 996 (quoting Iqbal, 556 at U.S. 678).

Ultimately, a claim is facially plausible where “the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” See Iqbal, 556 U.S. at 678 (citing Twombly, 550 at 556); accord Wilson v. HewlettPackard Co., 668 F.3d 1136, 1140 (9th Cir. 2012).

In Sprewell v. Golden State Warriors, the Ninth Circuit described legal standards for

motions to dismiss made pursuant to Rule 12(b)(6):

Review is limited to the contents of the complaint. All allegations of material fact

are taken as true and construed in the light most favorable to the nonmoving party.

The court need not, however, accept as true allegations that contradict matters

properly subject to judicial notice or by exhibit. Nor is the court required to accept

as true allegations that are merely conclusory, unwarranted deductions of fact, or

unreasonable inferences.

266 F.3d 979, 988 (9th Cir. 2001) (citations omitted).

III.

Discussion

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No.: 8:23-cv-00635-FWS-JDE

Title: Lenore Albert v. Roxanne Gonzalez et al.

Date: October 6, 2023

Defendant argues the relief sought by Plaintiff either impermissibly interferes with

ongoing proceedings related to Plaintiff’s appeal of the State Bar Court’s recommendation or

are otherwise legally deficient. (Mot.) Specifically, Defendant contends the court should

abstain from adjudicating Plaintiff’s claims seeking injunctive and declaratory relief based on

asserted constitutional violations under Younger v. Harris, 401 U.S. 37 (1971), that there is no

private right of action for damages for those asserted violations under Bivens v. Six Unknown

Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and Plaintiff’s other claims

against Defendant are barred by quasi-judicial immunity. (Id. at 4-10; Reply at 1-6.) In the

alternative, Defendant argues this case should be transferred to the Eastern District. (Mot. at

10-11; Reply at 6-8.)

Plaintiff asserts that Younger does not require abstention because she is not bringing suit

against the State Bar specifically and certain elements necessary for abstention are not met, her

Bivens claim is permissible because it asserts violations of her Fifth Amendment due process

right, and quasi-judicial immunity does not apply. (Opp. at 1-18.) Plaintiff disputes that this

case should be transferred to the Eastern District but requests a transfer rather than dismissal if

the court concludes otherwise, and seeks leave to amend if the court finds dismissal for another

reason raised by Defendant is appropriate. (Id. at 18-22.)

Younger Abstention

In “exceptional circumstances,” federal courts may decline to hear a case when parallel

state proceedings are ongoing under the Younger abstention doctrine. New Orleans Pub. Serv.,

Inc. v. Council of New Orleans (NOPSI), 491 U.S. 350, 368 (1989). Younger is “an

extraordinary and narrow exception to the general rule that federal courts ‘have no more right to

decline the exercise of jurisdiction which is given, than to usurp that which is not given.’”

Potrero Hills Landfill, Inc. v. Cnty. of Solano, 657 F.3d 876, 882 (9th Cir. 2011) (quoting

NOPSI, 491 U.S. at 358). The doctrine applies in three categories of proceedings: (1) “ongoing

state criminal prosecutions”; (2) “certain civil enforcement proceedings”; and (3) “civil

proceedings involving certain orders uniquely in furtherance of the state courts’ ability to

perform their judicial functions.” Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 78 (2013)

(citing NOPSI, 491 U.S. at 368) (alterations and internal quotation marks omitted).

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No.: 8:23-cv-00635-FWS-JDE

Title: Lenore Albert v. Roxanne Gonzalez et al.

Date: October 6, 2023

To warrant Younger abstention, a state civil action must also satisfy three factors: “the

state proceeding must be (1) ‘ongoing,’ (2) ‘implicate important state interests,’ and (3) provide

‘an adequate opportunity . . . to raise constitutional challenges.’” Herrera v. City of Palmdale,

918 F.3d 1037, 1044 (9th Cir. 2019) (quoting Middlesex Cnty. Ethics Comm. v. Garden State

Bar Ass’n, 457 U.S. 423, 432 (1982)). If the state proceeding both falls into one of the three

NOPSI categories and satisfies the three Middlesex factors, Younger abstention is appropriate

only if the requested relief “seek[s] to enjoin—or ha[s] the practical effect of enjoining—

ongoing state proceedings.” ReadyLink Healthcare, Inc. v. State Comp. Ins. Fund, 754 F.3d

754, 758 (9th Cir. 2014). Each of these requirements must be met. AmerisourceBergen Corp.

v. Roden, 495 F.3d 1143, 1148 (9th Cir. 2007) (citing Middlesex, 457 U.S. at 423, 431-34, 437;

NOPSI, 491 U.S. at 372-73).

The proceedings pending in California state court related to Plaintiff’s disciplinary

proceedings before the California State Bar are subject to Younger abstention. The Supreme

Court has held that bar disciplinary proceedings that are “judicial in nature . . . are of a character

to warrant federal-court deference” under Younger. See Middlesex, 457 U.S. at 433-34 (internal

quotation marks omitted). That logic applies with equal force to California’s State Bar

disciplinary proceedings, given California’s Supreme Court similarly recognizes that “[t]he

State Bar is a constitutional entity, placed within the judicial article of the California

Constitution, and thus [is] expressly acknowledged as an integral part of the judicial function.”

In re Rose, 22 Cal. 4th 430, 438 (2000) (citing, inter alia, CAL. CONST. art. VI, § 9).

The court concludes that each of the three Middlesex factors are satisfied here. With

respect to the first factor, State Bar appellate proceedings were ongoing as of the date this action

was filed. See ReadyLink, 754 F.3d at 759 (“[T]he date for determining whether Younger

applies is the date the federal action is filed.”) (citations and internal quotation marks omitted).

The second Middlesex factor is likewise met. California has “an extremely important interest in

maintaining and assuring the professional conduct of the attorneys it licenses” which “calls

Younger abstention into play.” See Middlesex, 457 U.S. at 434-35.

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No.: 8:23-cv-00635-FWS-JDE

Title: Lenore Albert v. Roxanne Gonzalez et al.

Date: October 6, 2023

The third Middlesex factor is also satisfied. In short, while “[t]he California Constitution

precludes the Bar Court from considering federal constitutional claims . . . [,] such claims may

be raised in judicial review of the Bar Court’s decision. This opportunity satisfies the third

requirement of Younger.” Hirsh v. Justices of Supreme Ct. of State of Cal., 67 F.3d 708, 713

(9th Cir. 1995) (citing, inter alia, Ohio C.R. Comm’n v. Dayton Christian Sch., Inc., 477 U.S.

619, 627 (1986)); see also Juidice v. Vail, 430 U.S. 327, 337 (1977) (“No more” than “an

opportunity to present [the] federal claims in the state proceedings” is “required to invoke

Younger abstention”); Albert, 2018 WL 6092578, at *4 (C.D. Cal. Nov. 21, 2018) (finding that

Plaintiff’s earlier California State Bar appellate proceedings provided “an adequate opportunity

to litigate federal constitutional claims” and noting the “Ninth Circuit has repeatedly held” that

the opportunity to raise federal constitutional claims in judicial review of the State Bar Court’s

decision “is sufficient to satisfy [this] factor”) (citations omitted).

With these requirements met, the remaining inquiry9 is whether granting relief in this

case would effectively enjoin the pending state court proceedings. The court finds it would.

Plaintiff seeks from this court various forms of relief, all of which are dependent on the court

finding Local Rules 180 and 184 are unconstitutional or “unfair business practices” under

California law. As Defendant notes, Plaintiff can and does raise substantially similar arguments

in her opening appellate brief, and it is undisputed that her suspension from practice was based

on an application of the same Local Rules. Given the crux of the State Bar proceedings against

Plaintiff is her suspension from practice in the Eastern District under Local Rules 180 and 184,

a ruling from this court invalidating the same Rules would effectively nullify ongoing

proceedings in Plaintiff’s appeal from the State Bar Court’s recommendation. See Citizens for

Free Speech, LLC v. Cnty. of Alameda, 953 F.3d 655, 656-57 (9th Cir. 2020) (holding the

plaintiff’s “federal action could substantially delay the abatement proceeding, thus having the

practical effect of enjoining it” where the plaintiff challenged the constitutionality of billboard

Because the court finds Younger abstention appropriate, it does not reach Defendant’s

argument that Plaintiff’s sought injunction and declaratory relief are premature because Plaintiff

is currently permitted to practice law in California and the district courts in which she is

admitted. (Mot. at 6.)

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No.: 8:23-cv-00635-FWS-JDE

Title: Lenore Albert v. Roxanne Gonzalez et al.

Date: October 6, 2023

ordinances pursuant to which ongoing state abatement proceedings were brought against the

plaintiff); see also Gilbertson v. Albright, 381 F.3d 965, 982 (9th Cir. 2004) (en banc) (holding

that where the issues raised in a complaint went “to the heart of [the plaintiff’s] opposition” to

the defendant’s assertedly unconstitutional actions challenged in the state proceeding, “a federal

court’s decision on the merits of [the plaintiff’s] claims would have the same practical effect on

the state proceeding as an injunction”) (citation omitted).

Finally, the record before the court does not support a finding that the California State

Bar brought the disciplinary proceedings against Plaintiff to harass or in bad faith. See World

Famous Drinking Emporium, Inc. v. City of Tempe, 820 F.2d 1079, 1083 (9th Cir. 1987) (citing

Huffman v. Pursue, Ltd., 420 U.S. 592, 611 (1975)); see also Canatella v. California, 404 F.3d

1106, 1112 (9th Cir. 2005) (“[A]ctual evidence [is necessary] to overcome the presumption of

honesty and integrity in those serving as adjudicators . . . . We have also specifically rejected

arguments . . . that the California Supreme Court has an inherent conflict of interest in

considering constitutional challenges to state bar disciplinary proceedings.”) (citations and

internal quotation marks omitted). Therefore, the court finds Younger abstention appropriate as

to Plaintiff’s first and second claims for injunctive and declaratory relief. Because Defendant

does not request abstention as to Plaintiff’s damages claim, and the court finds, as stated below,

Plaintiff’s sought damages do not attach to a viable legal theory, the court DISMISSES

Plaintiff’s first and second claims. See Gilbertson, 381 F.3d at 980-82 & n.18 (discussing

reasons why courts may stay instead of dismissing claims on abstention grounds, noting that

“[w]hen an injunction is sought and Younger applies” absent a claim for damages, “it makes

sense to abstain, that is, to refrain from exercising jurisdiction, permanently by dismissing the

federal action because the federal court is only being asked to stop the state proceeding”).

Cause of Action under Bivens

The Supreme Court in Bivens recognized an implied cause of action against federal

officials for “unreasonable searches and seizures” violative of the Fourth Amendment. 403

U.S. at 389-90, 397. “Since then, the Supreme Court has extended Bivens exactly twice.”

Marquez v. C. Rodriguez, --- F. 4th ----, 2023 WL 5733889, at *2 (9th Cir. Sept. 6, 2023); see

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No.: 8:23-cv-00635-FWS-JDE

Title: Lenore Albert v. Roxanne Gonzalez et al.

Date: October 6, 2023

also Ziglar v. Abbasi, 582 U.S. 120, 131 (2017) (“These three cases—Bivens, Davis, and

Carlson—represent the only instances in which the Court has approved of an implied damages

remedy under the Constitution itself.”). In the first instance, the Supreme Court “permitted an

administrative assistant to seek a damages remedy against her former employer, a congressman,

for alleged sex discrimination in violation of the Fifth Amendment.” Marquez, --- F.4th ----,

2023 WL 5733889, at *2 (citing Davis v. Passman, 442 U.S. 228 (1979)); see also Davis, 442

U.S. at 248-49. In the second, the high Court “recognized a Bivens remedy in an action brought

by a federal prisoner’s estate contending that prison officials infringed the Eighth Amendment’s

Cruel and Unusual Punishment Clause by failing to provide adequate medical treatment.”

Marquez, --- F.4th ----, 2023 WL 5733889, at *2 (citing Carlson v. Green, 446 U.S. 14 (1980));