Silverton v. Department of Treasury of the U.S. of America
| Decision Date | 11 May 1981 |
| Docket Number | No. 78-2964,78-2964 |
| Citation | 644 F.2d 1341 |
| Parties | Ronald R. SILVERTON, Plaintiff-Appellant, v. DEPARTMENT OF the TREASURY OF the UNITED STATES OF AMERICA, Office of the Director of Practice, Leslie S. Shapiro, Director of Practice, John J. Corcoran, County Clerk and Clerk of the Superior Court of California, County of Los Angeles, the State Bar of California, the California State Board of Accountancy, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Ronald R. Silverton, Los Angeles, Cal., for plaintiff-appellant.
Lawrence Gotlieb, Robert M. Sweet, Alan A. Mangels, Los Angeles, Cal., argued, Dzintra I. Janavs, Los Angeles, Cal., on brief, for defendants-appellees.
Appeal from the United States District Court for the Central District of California.
Before HUG and FERGUSON, Circuit Judges, and EAST, * District Judge.
Silverton appeals from the judgment entered by the District Court on May 9, 1978, 449 F.Supp. 1004 (C.D.Cal.1978), dismissing with prejudice Silverton's First Amended Complaint and Civil Rights Action (42 U.S.C. §§ 1981 and 1983) as to each of the defendants-appellees Department of the Treasury of the United States of America, Office of the Director of Practice, and Leslie S. Shapiro, Director of Practice (Treasury); John J. Corcoran, County Clerk and Clerk of the Superior Court of California, County of Los Angeles, (Clerk); The State Bar of California (Bar); and The California State Board of Accountancy (Board).
We note jurisdiction under 28 U.S.C. § 1291, and affirm.
SILVERTON'S STATE CONVICTIONS:
In April, 1972, Silverton was convicted of one count of conspiracy to defraud an insurance company and one count of solicitation of grand theft in a California Superior Court. The convictions were affirmed by the California Court of Appeal on October 31, 1972. The California Supreme Court denied Silverton's petition for review on December 9, 1972, and the United States Supreme Court dismissed Silverton's appeal for want of a substantial federal question. 412 U.S. 901, 93 S.Ct. 2292, 36 L.Ed.2d 967 (1973).
SILVERTON'S DISBARMENTS AND REVOCATION:
Following the finality of Silverton's felony convictions, he was, upon findings and recommendations of the Bar, disbarred by the California Supreme Court from the practice of law in California. Silverton v. State Bar, 14 Cal.3d 517, 121 Cal.Rptr. 596, 535 P.2d 724, 121 Cal.Rptr. 596 (1975), and his certified public accountant certificate was revoked by the Board. Also an administrative law judge, after a hearing, suspended Silverton from practice for three months before the Internal Revenue Service pursuant to 31 C.F.R. §§ 10, et seq. The General Counsel of Treasury, acting for the Secretary of the Treasury, after a full review of the record, modified the three-month suspension to complete disbarment.
PRIOR STATE AND FEDERAL HABEAS PROCEEDINGS:
During September, 1973, Silverton filed a Petition for a Writ of Habeas Corpus in the California Superior Court (State Habeas 1). An evidentiary hearing was held and the petition was denied. The California Court of Appeal affirmed.
On March 8, 1974, Silverton filed a habeas petition in the California Court of Appeal (State Habeas 2). That court denied the petition on April 3, 1974. A petition for rehearing was denied by the California Supreme Court on May 1, 1974.
On June 12, 1974, Silverton petitioned the United States District Court, Central District of California, for habeas relief. That District Court on March 3, 1975 denied the petition without an evidentiary hearing on the several grounds of a failure to state facts sufficient to grant relief, lack of subject matter jurisdiction, and that Silverton's federal habeas claims were barred under the doctrine of res judicata and/or collateral estoppel. Subsequently, the District Court denied reconsideration and refused to issue a certificate of probable cause for appeal. This court declined to issue a certificate of probable cause on the grounds that Silverton's attempted appeal was "legally frivolous" (C.A. 75-8390). The Supreme Court of the United States denied Silverton's petition for certiorari, Silverton v. California Adult Authority, 425 U.S. 912, 96 S.Ct. 1509, 46 L.Ed.2d 762 (1976).
SILVERTON'S CLAIMS IN EACH OF THE HABEAS PROCEEDINGS:
In each of the two state and the one federal habeas proceedings, Silverton relied upon these allegations of Fifth and Sixth Amendment infringements:
(1) Lack of a Fifth Amendment due process trial because the Superior Judge considered extrajudicial matters and information;
(2) Sixth Amendment violation of Silverton's right to a jury trial because he submitted his case to the Superior Court on the record of the preliminary hearing after the Superior Court told his advisory counsel that there was no way Silverton could be convicted on those facts; and
(3) Sixth Amendment violation of Silverton's right to confrontation of witnesses for the same reasons of submission.
In the California Court of Appeals State Habeas 2 proceedings, as well as in the federal habeas proceedings, Silverton raised five alleged procedural or evidentiary defects.
As stated above, each of those alleged principal claims were rejected as meritless in the two state and one federal habeas proceedings, and the five procedural or evidentiary defects were rejected by the California Court of Appeals and the District Court in the federal habeas proceedings as not reaching constitutional proportions. 1
PROCEEDINGS IN THE DISTRICT COURT IN THESE PROCEEDINGS:
In his original complaint, Silverton only sought to set aside his disbarment by Treasury under the Administrative Procedure Act (APA), 5 U.S.C. §§ 701 and 706, on the grounds that the APA was unconstitutional.
On February 18, 1978, Silverton filed a first amended complaint joining as additional defendants the Clerk, 2 the Bar, and the Board. The first amended complaint sought expunction of the records of his two felony convictions, his California disbarment, the disbarment by Treasury, and the revocation by the Board pursuant to the Civil Rights Act, 42 U.S.C. §§ 1981 and 1983.
The Bar and the Board each filed a motion for a dismissal of the amended complaint and actions thereunder. The District Court heard the motions, before any appearance was made by the Treasury, and granted the motions.
As to the Clerk, Bar, and Board, the District Court held that the complaint failed to state a claim upon which relief can be granted against those defendants because the alleged federal constitutional issues relating to the validity of Silverton's criminal conviction and the subsequent disciplinary proceedings resulting in Silverton's disbarment have been fully and fairly heard and determined against Silverton, and Silverton's action is, therefore, barred by the doctrine of prior adjudication (i. e., collateral estoppel and/or res judicata). As to the Treasury, the District Court, sua sponte, dismissed the action for the reason that Silverton's disbarment was clearly supported by the evidence of record; i. e., Silverton's felony convictions.
The District Court further held as to the Bar that it lacked subject matter jurisdiction to review alleged federal constitutional defects in the final order of the Supreme Court of California disbarring Silverton from the practice of law under the "Theard Doctrine," Theard v. United States, 354 U.S. 278, 281, 77 S.Ct. 1274, 1276, 1 L.Ed.2d 1342 (1957). Furthermore, the District Court held that the Bar and Board were not a "person" within the context of § 1983 and Silverton had not alleged that his criminal conviction or the subsequent disciplinary proceedings culminating in his disbarment were the result of racial discrimination within the context of § 1981.
The judgment appealed from followed.
ISSUES ON REVIEW:
We are convinced that the following two issues are dispositive of this appeal. 3
(1) Did the District Court err in dismissing the amended complaint and cause with prejudice against Treasury?
(2) Did the District Court err in dismissing the amended complaint and cause with prejudice against the Clerk, the Bar, and the Board by the application of the doctrine of res judicata and/or collateral estoppel?
DISCUSSION:
Issue 1 (Treasury) :
We emphasize that at the time the District Court dismissed the action against Treasury, not then appearing, it had before it two of the state appellees' motions to dismiss, as well as various exhibits filed in support of said motions and Silverton's opposition thereto. The record here reveals that in addition to the various court decisions upholding Silverton's disbarments and convictions, the District Court had before it the transcript of the State Habeas 1 evidentiary hearing, the transcript of the hearing before the California State Bar, and the Clerk's transcript which included a transcript of the preliminary hearing.
A District Court may properly on its own motion dismiss an action as to defendants who have not moved to dismiss where such defendants are in a position similar to that of moving defendants or where claims against such defendants are integrally related. Rogers v. Fuller, 410 F.Supp. 187, 192 (M.D.N.C.1976); Walner v. Friedman, 410 F.Supp. 29, 34 (S.D.N.Y.1975); Piemonte v. Chicago Board Options Exchange, Inc., 405 F.Supp. 711, 718 (S.D.N.Y.1975).
We are satisfied that Treasury's disbarment of Silverton pursuant to the provisions of 31 C.F.R. Part 10 (Treasury Department Circular 230) was not arbitrary, capricious nor an abuse of discretion, but, on the contrary, the decision was fully supported by substantial relevant evidence.
The District Court did not err in sua sponte dismissing the first amended complaint and action, with prejudice, as against Treasury. (See the discussion under Issue 2).
Issue 2 (Clerk, Bar and Board) :
Res Judicata-Collateral Estoppel :
In order for Silverton to prevail against...
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