54 F.3d 825 (D.C. Cir. 1995), 93-5233, United States v. Ferrara
|Docket Nº:||93-5233, 93-5250.|
|Citation:||54 F.3d 825|
|Party Name:||UNITED STATES of America, Appellant/Cross-Appellee, v. Virginia L. FERRARA, in her official capacity as the Chief Disciplinary Counsel of the Disciplinary Board of the Supreme Court of New Mexico, Appellee/Cross-Appellant.|
|Case Date:||May 19, 1995|
|Court:||United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit|
Argued Dec. 8, 1994.
As Amended July 28, 1995.
Douglas Letter, Atty., U.S. Dept. of Justice, with whom Asst. Atty. Gen. Frank W. Hunger and Eric H. Holder, Jr., U.S. Atty., Washington, DC, were on the briefs, for appellant/cross-appellee U.S. of America. Thomas M. Bondy, John C. Hoyle, and Barbara L. Herwig, Washington, DC, entered appearances, for U.S.
William W. Taylor, III, with whom Mark W. Foster, Norman L. Eisen, Washington, DC, and Tom Udall, Santa Fe, NM, were on the brief, for appellee/cross-appellant Ferrara.
Before SILBERMAN, BUCKLEY, and SENTELLE, Circuit Judges.
Concurring opinion filed by Circuit Judge SILBERMAN.
BUCKLEY, Circuit Judge:
Acting in her official capacity as the Chief Counsel of the Disciplinary Board of the New Mexico Supreme Court, appellee Virginia Ferrara charged "John Doe," an attorney licensed to practice law by the New Mexico Supreme Court, with violating New Mexico's Rules of Professional Conduct based on his activities while employed as an Assistant United States Attorney in Washington, D.C. In this action, the United States seeks both an injunction preventing Ms. Ferrara from taking further action against Mr. Doe and a declaratory judgment that the Constitution's Supremacy Clause prohibits her from taking any adverse action against attorneys employed by the United States Department of Justice based on the performance of their federal duties. District Judge Norma Holloway Johnson dismissed the complaint for lack of personal jurisdiction over Ms. Ferrara. We affirm.
The Conduct Giving Rise to the Dispute
In 1988, while employed by the United States Attorney's Office for the District of Columbia, Mr. Doe represented the United States in a murder prosecution brought in the D.C. Superior Court. On a number of occasions, Mr. Doe or the detective investigating the case allegedly communicated with the suspect, Darryl Smith, without the permission of Mr. Smith's attorney. The Government claims that all the contacts were initiated by Mr. Smith and that Mr. Doe's supervisors at the United States Attorney's Office authorized him to receive Mr. Smith's calls.
Mr. Smith was subsequently indicted for murder. His attorney charged prosecutorial misconduct and asked the Superior Court to suppress statements made by Mr. Smith to Mr. Doe and his investigator. The court refused to suppress the statements, but it did find that Mr. Doe had violated a D.C. rule of professional conduct prohibiting lawyers from communicating with a party known to be represented by counsel without that counsel's consent, and it referred the issue to the District of Columbia Bar Counsel's Board on Professional Responsibility for its consideration of disciplinary action.
The New Mexico Proceedings
Congress requires that Assistant United States Attorneys, as well as other attorneys employed by the Department of Justice, be licensed to practice law by a State, territory, or the District of Columbia, but not necessarily by the jurisdictions in which they practice. Department of Justice Appropriation Authorization Act, Fiscal Year 1980, Pub.L. No. 96-132, Sec. 3(a), 93 Stat. 1040, 1044 (1979); Department of Justice Appropriation Act of 1988, Pub.L. No. 100-202, Sec. 204(a), 101 Stat. 1329-8, 1329-15 (1987); 28 U.S.C. Sec. 517 (1988). During the relevant period, Mr. Doe was licensed to practice law by New Mexico but not by the District of Columbia. The D.C. Board on Professional Responsibility determined that, although Mr. Doe practiced in the D.C. court system, it lacked jurisdiction to discipline him. As a consequence, it
referred the matter to Ms. Ferrara in Albuquerque, New Mexico, in her capacity as Chief Disciplinary Counsel of the Disciplinary Board of the Supreme Court of New Mexico ("Disciplinary Board"), which was responsible for overseeing the New Mexico Bar.
On August 22, 1990, Ms. Ferrara filed charges with the Board in which she alleged that Mr. Doe had engaged in conduct that violated the professional standards required by New Mexico and the District of Columbia. The New Mexico Rules of Professional Conduct provide that
[i]n representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.
N.M. Rules Prof. Conduct Sec. 16-402 (1986). In addition, the Rules specifically provide that
[a] lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction although engaged in practice elsewhere.
Id. Sec. 16-805 (1986).
Mr. Doe, who was represented by the United States, removed the proceeding to the U.S. District Court for the District of New Mexico pursuant to 28 U.S.C. Sec. 1442, which permits a federal officer to remove a civil suit or criminal prosecution brought against him in a state court for actions taken under color of his office to the federal court in the district in which the state action is pending. 28 U.S.C. Sec. 1442(a)(1) (1988). The New Mexico Disciplinary Board moved for a remand to the state forum. In re Doe, 801 F.Supp. 478, 481 (D.N.M.1992). Finding that it lacked jurisdiction under section 1442, the district court granted the motion. Id.
The court provided two alternative reasons why section 1442 did not provide federal jurisdiction over the charges brought by Ms. Ferrara against Mr. Doe. First, it noted that section 1442 applies only to "civil actions" or "criminal prosecutions" and determined that the disciplinary proceedings were regulatory in nature and did not qualify as either. Id. at 481-84. Second, it found that to remove a case under section 1442, the movant must allege a colorable federal defense; and it ruled that Mr. Doe's defenses to the disciplinary action (including his argument that the Constitution's Supremacy Clause prevented New Mexico from enforcing ethical rules inconsistent with a federal prosecutor's duties) "[we]re not supported by law." Id. at 484.
The Present Proceedings
Following the remand of the Doe disciplinary proceedings to New Mexico, the United States brought suit against Ms. Ferrara, in her official capacity, in the District Court for the District of Columbia. In this action, it sought both an injunction prohibiting her from proceeding with the prosecution of Mr. Doe and a declaration that the Supremacy Clause prohibits her from taking any action against a Department of Justice employee for the performance of his duties consistent with federal law. The Government argued, as did Mr. Doe in the removal proceeding, that the Supremacy Clause prevents state officials from regulating the conduct of federal prosecutors when such regulation would conflict with their federal duties.
Ms. Ferrara moved to dismiss, arguing that the district court lacked personal jurisdiction over her, that the venue was improper, that the Government was collaterally estopped from making its Supremacy Clause argument as a result of the New Mexico district court decision, and that the court should abstain pending the outcome of the New Mexico disciplinary proceedings against Mr. Doe. United States v. Ferrara, 847 F.Supp. 964, 966 (D.D.C.1993). Although Judge Johnson determined that Ms. Ferrara's venue, collateral estoppel, and abstention arguments were meritless, she granted the motion to dismiss for want of personal jurisdiction. Id. at 967-68 & n. 3.
The United States now appeals, renewing its Supremacy Clause claim and arguing that the district court did, in fact, have personal jurisdiction over Ms. Ferrara. Ms. Ferrara cross-appeals, claiming that the court erred by failing...
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