Comm. on Grievances v. Feinman, Docket No. 00-6900

Decision Date01 August 2000
Docket NumberDocket No. 00-6900
Parties(2nd Cir. 2001) -Appellee, v. ROGER BRUCE FEINMAN, Respondent-Appellant
CourtU.S. Court of Appeals — Second Circuit

Page 498

239 F.3d 498 (2nd Cir. 2001)
COMMITTEE ON GRIEVANCES OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK, Petitioner-Appellee,
v.
ROGER BRUCE FEINMAN, Respondent-Appellant.
Docket No. 00-6900
August Term, 2000
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Argued December 4, 2000
Decided February 08, 2001

Roger Bruce Feinman appeals from a March 27, 2000 order of the United States District Court for the Eastern District of New York (Charles P. Sifton, Chief Judge and Chairman of the Committee on Grievances of the United States District Court for the Eastern District of New York ("the Committee")) disbarring him from practice before that Court. On appeal, Feinman argues, inter alia, that the disbarment order was entered in violation of the Due Process Clause of the Fifth Amendment to the United States Constitution because he did not receive actual notice of the charges lodged against him by the Committee. We hold, inter alia, that a party's constitutional right to receive actual notice of certain claims against him is not violated when he has himself intentionally and successfully thwarted service of the very notice that he claims not to have received.

Affirmed.

ROGER BRUCE FEINMAN, pro se, Briarwood, New York, for Respondent-Appellant.

Before: WALKER, CABRANES, and STRAUB, Circuit Judges.

Per Curiam:

Roger Bruce Feinman appeals from a March 27, 2000 order ("the March 27 order") of the United States District Court for the Eastern District of New York (Charles P. Sifton, Chief Judge and Chairman of the Committee on Grievances of the United States District Court for the Eastern District of New York ("the Committee")) disbarring him from practice before that Court. The March 27 order was a "reciprocal discipline" order1 based entirely on an order of disbarment previously entered by the United States District Court for the Southern District of New York ("the Southern District order"); the Southern District order was affirmed by this Court on July 23, 1998. See In re Feinman, No. 97-6064, 1998 WL 537825

Page 499

(2d Cir. July 23, 1998). For the reasons stated below, the March 27 order is affirmed.

On appeal, Feinman advances two colorable arguments. First, he contends that issuance of the March 27 order violated the United States Constitution because it was based on the Southern District order, which in turn was based in part on factual findings made by non-judicial officers. However, Feinman raised this argument on his prior appeal to this Court, and we reached and rejected it. See In re Feinman, 1998 WL 537825, at *1. Accordingly, he is barred from pressing it again here. See, e.g., Metromedia Co. v. Fugazy, 983 F.2d 350, 365 (2d Cir. 1992) (noting that collateral estoppel "bars a party from relitigating in a second proceeding an issue of fact or law that was litigated and actually decided in a prior proceeding").

Second, Feinman argues that his disbarment in the Eastern District of New York violated the Due Process Clause of the Fifth Amendment to the United States Constitution because he was not provided with actual notice that amended disciplinary charges had been lodged against him. This argument is sheer casuistry. Feinman sent a letter to the Committee stating that he would accept no further correspondence from it. True to his word, Feinman then refused to take delivery of a Federal Express envelope conveying an amended complaint that listed the charges against him. In light of these facts, the District Court observed that Feinman's actual notice claim "borders on the frivolous." District Court Memorandum and Order at 13 (attached as Appendix). We agree, and hold that a party's constitutional right to receive actual notice of certain claims against him is not violated when he has himself intentionally and successfully thwarted service of the very notice that he claims not to have received. See, e.g., Reliance Ins. Co. v. Mast Constr. Co., 159 F.3d 1311, 1318 (10th Cir. 1998) ("[I]t is well settled that the effect of a written notice cannot be avoided by refusing service of that notice.") (collecting cases); Franklin v. Aycock, 795 F.2d 1253, 1263 n.8 (6th Cir. 1986). See also Patmon & Young Prof'l Corp. v. Comm'r, 55 F.3d 216, 218 (6th Cir. 1995) (holding that actual notice requirement for tax deficiency assessment is satisfied by a party's refusal of certified mail on the ground that "a taxpayer should not be allowed to defeat actual notice by deliberately refusing delivery of the IRS's deficiency notice"); Erhard v. Comm'r, 87 F.3d 273, 274 75 (9th Cir. 1996) (same). See generally Cherry v. Heffernan, 182 So. 427, 429 (Fla. 1938) (stating that if a party "chooses to flout the notice and refuse to accept it, he will not be permitted to say in the next breath that he has not been served").

We have considered Feinman's remaining arguments, and conclude that they are without merit.

Accordingly, the March 27 order is AFFIRMED.

---------------

NOTE:

1. As we have recently explained, "reciprocal discipline" is "disbarment or suspension summarily imposed [by one court] after some other court has taken such action based on a plenary inquiry." In re Edelstein, 214 F.3d 127, 128 (2d Cir. 2000).

---------------

APPENDIX to Opinion 00-6900

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

CV 96 5796 (CPS)

In the Matter of Roger Bruce Feinman, Esq.,

an Attorney and Counselor at Law, Respondent.

MEMORANDUM AND ORDER

This matter is before the Committee on Grievances for the Eastern District of New York (the "Committee on Grievances") to consider the imposition of reciprocal discipline against respondent pro se Roger Feinman following his disbarment by the United States District Court for the Southern District of New York. For the reasons stated below, no evidentiary hearing is required. Respondent is disbarred, and his name shall be stricken from the roll of attorneys of this Court.

BACKGROUND

The following statement of facts is taken from the record of the underlying disciplinary

Page 500

action and from the submissions of respondent and the investigative attorney. Disputes are noted.

By order dated June 18, 1997, issued pursuant to Rule 1.5(d) of the Local Rules of the United States District for the Eastern District of New York, the Committee on Grievances designated Anthony Edward Davis, Esq. to review the allegations that led to respondent Roger Feinman's disbarment by the Southern District of New York, to advise the committee whether prosecution of a reciprocal disciplinary action was appropriate, and if so, to draft a statement of charges for service upon the respondent. Having reviewed the Southern District proceedings, Mr. Davis filed a recommendation that this Court impose reciprocal discipline upon Mr. Feinman together with a proposed statement of charges. By order dated December 3, 1998, the Committee on Grievances adopted the report and recommendation and statement of charges. Mr. Feinman was provided with a copy of the recommendation and statement of charges, to which he responded by a memorandum of law dated January 29, 1999.

Southern District Proceedings

By order dated September 29, 1995, the Committee on Grievances of the Southern District of New York (the "grievance committee") received a complaint against Mr. Feinman in writing and concluded that the complaint against Mr. Feinman warranted prosecution. By order dated October 5, 1995, the grievance committee directed Mr. Feinman to show cause why discipline should not be imposed in connection with the allegations set forth in an accompanying five count statement of charges accusing Mr. Feinman of knowingly making several false accusations against a judge and taking action which served merely to harass or maliciously injure another in violation of DR 8 102(b) and 7 102(a)(1), respectively. On November 16 and 19, 1995, Mr. Feinman submitted letters addressing the subject matter of the charges.

By letter dated January 19, 1996, the panel advised Mr. Feinman and committee counsel that it would "not be restricted to consideration of the provisions of the Code of Professional Responsibility cited in the statement of charges and notified them that the panel intended also "to consider whether Mr. Feinman's conduct violated other provisions of the code, particularly DR 7 106(c)(1) and (6). The letter...

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