Part 1 of a Full Analysis of the Reines Decision: The Procedural Rules (edited)

(I clerked for Chief Judge Rader ending 18 months ago.  Full disclosure done.)

The Federal Circuit’s Rules.

Under the Federal Circuit’s rules on attorney discipline (here), unless a disciplinary matter arises in connection with a pending case (e.g., I make a frivolous legal argument in an appeal, in which case the panel hearing the case deals with it), a standing panel handles disciplinary matters. Specifically Rule 4 provides:

(c)  Standing Panel on Attorney Discipline.

(1)  The Standing Panel shall conduct proceedings in any matter in which disbarment, suspension, or a monetary sanction over $1000 may be considered, or in any matter referred by a merits or motions panel.

(2)  The Standing Panel shall consist of three judges, at least two of whom shall be active judges, appointed by the Chief Judge. The Chief Judge may serve as a member of the Standing Panel. The initial appointments shall be for one, two, and three year terms, so that the members’ terms are staggered. Thereafter, a member shall be appointed for a three-year term. A member who has served on the Standing Panel for three years shall not be eligible for appointment to another term until three years after termination of his or her last appointment

(3)  The chairperson of the Standing Panel shall be the senior active judge.

The panel has authority to issue a show-cause order.  Rule 5(b).

The panel must issue a decision.  Rule 5(f) (“At the conclusion of a proceeding, a panel shall issue a final order in the matter. The order may direct the attorney or the Clerk to send a copy of the order to all other courts and agencies before which an attorney is admitted….”).

That decision is then afforded at least two subsequent reviews:  after the panel decision, then rules regarding en banc hearings kick in:

An attorney may file a petition for rehearing by the panel or a combined petition for rehearing by the panel and suggestion for rehearing by the active judges of the court, or a majority of the active judges may order that a disciplinary matter be heard or reheard by them. Such a hearing or rehearing is not favored and ordinarily will not be ordered except when necessary to secure or maintain uniformity of the court’s decisions or when the proceeding involves a question of exceptional importance. Any such petition shall be filed within 30 days of the date of the panel’s final order. The procedures governing a petition for rehearing or a combined petition/ suggestion will otherwise be in accordance with the provisions of Federal Rules of Appellate Procedure 35 and 40 and Federal Circuit Rules 35 and 40.

What Happened Here?

No panel ever issued a show cause order; it was issued listing every active judge (except obviously CJ Rader).  (The show cause order is attached to the end of the en banc opinion, here.)  Thus, from the start the court was not following its own procedure.

Then, rather than issuing a panel decision, which would be subject to a motion for panel rehearing and rehearing en banc, without notice to Reines (that I could see) the court short-circuited the procedural safeguards in its own rules and issued an en banc decision.  The rules on attorney discipline do not permit, so far as I can see, this process.  Only after the panel decision do the ordinary rules that allow for sua sponte en banc proceedings kick in.

So what?  Well, this is a disciplinary proceeding. They ruin careers.  One argument, no appeal?  No court in the land permits that that I’m aware of, and certainly no state.

Beyond that, what could he have done?  He had in his brief said that he didn’t think an evidentiary hearing was necessary, but offered to appear.  Had the court indicated that it was eliminating all rehearing rights, perhaps he would have expressly requested for a hearing.

But putting that to the side, the Court from the beginning did not follow its own rules in a quasi-criminal proceeding.

Would the outcome have been the same?  Who knows.  Does it raise questions about due process?  I think so.

The substance is also interesting.  More to come.

About David

Professor of Law, Mercer University School of Law. Formerly Of Counsel, Taylor English Duma, LLP and in 2012-13, judicial clerk to Chief Judge Rader.

22 thoughts on “Part 1 of a Full Analysis of the Reines Decision: The Procedural Rules (edited)

  1. 11

    18 U.S.C. 201(b) – Bribery of public officials and witnesses
    Whoever — (1) directly or indirectly, corruptly gives, offers or promises anything of value to any public official or person who has been selected to be a public official, or offers or promises any public official or any person who has been selected to be a public official to give anything of value to any other person or entity, with intent – (A) to influence any official act; or ……

    A concert ticket is a thing of value. A seating upgrade and backstage access are acts of value.

  2. 10

    The reason the en banc proceeding doesn’t seem problematic here (whereas it might in a different context) is that this case seems to raise a serious appearance of impropriety on behalf of a Judge, the former Chief Judge, not just misconduct by an attorney. Given the facts here I have to wonder if retired Judge Rader will be subject to disciplinary proceedings, and if there could be investigations of potential ethics laws violations as well. There is a lot that looks wrong here and it’s an egg to the face for the CAFC.

    There are a lot of things in this situation that look very bad on the Federal Circuit. Taking it en banc without notice to Mr. Reines feels like the absolute last concern.

  3. 9

    David, I don’t know whether there is a right to practice before the Federal Circuit.

    Does due process extend to withdrawing privileges?

  4. 8

    I much appreciate your providing additional information recasting in full some of the communications to give a clearer picture than presented in the opinion.

    I have a question, though, based on your comments that the CAFC is not following its own rules, in particular because it did not run it through the standing panel formed under 4(c) and have issued a show cause order as also seems required under 4(c).

    Note 4(c)(1) includes the idea that the potential stakes for consideration by a standing panel are “disbarment, suspension, or a monetary sanction over $1000”.

    I’m not sure what was “considered” in this case, but the outcome (reprimand) certainly didn’t get close to reaching the described level of discipline.

    4(c)(1) additionally has the standing panel’s oversight covering a partial catchall, “or in any matter referred by a merits or motions panel.”

    So I wonder does your argument that 4(c) was not followed beg the question of whether 4(c) even applies?

    But this was not a matter relating something that arose before a merits panel (so discipline Rule 4(b) also seems inapplicable).

    Maybe I just haven’t followed these things closely enough, but if the Reines matter didn’t come up during a case (was not relating to act/omission before a merits panel) and was not reciprocal discipline from state court or other authority (which obviously often reach disbarment/suspension), how under the CAFC’s current set of disciplinary rules does it discipline him at all?

  5. 7

    This sums the matter up quite nicely:

    ” the court apparently went out of its way to lash out at an attorney as retribution for an intemperate e-mail from the former chief judge.”

  6. 6

    Suppose you’re right. What remedy? If Reines wants to submit some sort of request for consideration he should just do it. If it’s legit, the en banc court can equally change its mind. Nothing stopping him or the court.

  7. 5

    I’m not sure what to make of this. In Evitts v. Lucey, 469 U.S. 387 (1985) the Supreme Court reaffirmed (or at least reiterated without expressing doubt) that due process does not require states to grant appeals of right, even in criminal cases. When they do, though, the procedures have to comport with due process:

    Almost a century ago, the Court held that the Constitution does not require States to grant appeals as of right to criminal defendants seeking to review alleged trial court errors. McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867 (1894). Nonetheless, if a State has created appellate courts as “an integral part of the … system for finally adjudicating the guilt or innocence of a defendant,” Griffin v. Illinois, 351 U.S., at 18, 76 S.Ct., at 590, the procedures used in deciding appeals must comport with the demands of the Due Process and Equal Protection Clauses of the Constitution.

    link to scholar.google.com

    This seems relevant, but I’m not sure which way it cuts.

    On the one hand, courts have the inherent power to impose discipline, and at least some authority to suspend their rules for odd cases. FRAP 2 isn’t directly relevant, as it’s limited to FRAP, but it allows courts to suspend any nonjurisdictional provision of the rules for good cause. This would seem to answer Judge Newman’s Abbott dissent in part–she’s probably wrong to argue that the court *can’t* do what it did, but probably right to argue that the court *shouldn’t* have done what it did. The difference between the en banc court and panels of three isn’t about giving parties two bites at the apple (or what one might call an “intra-court appeal”). Rather, it’s about the court being able to manage the uniformity of its own precedents. Thus, parties can ask for “initial hearing en banc” as well as “rehearing en banc” in ordinary cases, and no one thinks (as far as I know) that the former procedure somehow deprives litigants in ordinary cases of due process.

    On the other hand, for quasi-criminal procedures, the court really should cut square corners, and if it’s going to allow for panel and en banc hearing, it should follow those procedures unless there’s a reason not to. In disciplinary proceedings, moreover, the proceeding starts in the Federal Circuit–as opposed to a district court or an agency. So there’s some value in having an appeal right of some kind. Regardless of the procedural posture, an appeal gives the disappointed litigant an opportunity to respond to the initial decisionmaker’s ruling and to make that response to someone with higher authority. Maybe the issue is that the court should allow a reconsideration petition or something similar to serve that purpose here. If this is truly the end of the process, it’s a shame.

    For whatever it’s worth, compliance with the technical letter of the disciplinary procedures seems more relevant not because of the lack of an internal appeal — but because the court apparently went out of its way to lash out at an attorney as retribution for an intemperate e-mail from the former chief judge. As your other posts point out, the substance and reasoning of the order have some issues too.

  8. 4

    1. Can’t the en banc court waive or change its own rules? (assuming they are how you interpret them)

    2. If Reines believes his due process rights have been violated, he has a remedy.

    3. The court has a responsibility to litigants as well as attorneys. Reines apparently bills himself as one of the most respected members of the bar in a court where his name appears to be mud. How does the court fix that “problem” once they become aware of it?

    What is a better outcome for Reines in this situation that also satisfies the court’s needs for the actual and apparent fair and open resolution of all disputes before it?

  9. 3

    More importantly, I guess, is this: in an attorney disciplinary matter, a court gives the litigant one chance, only? Seriously?

    1. 2.1

      Where is the requirement that there has to be notice?

      Practice Notes
      HEARING OR REHEARING EN BANC. The court may sua sponte order that an appeal be initially heard or be reheard en banc. The panel or a judge on the panel that is considering a case may at any time request the active judges of the court to hear or rehear the case en banc with or without further briefs or argument by counsel.

      1. 2.1.1

        I do not know enough about due process to say whether this violates any of those rights; my point is that the argument that the Federal Circuit of not following its own rules seems incorrect.

        1. 2.1.1.1

          Jumping in here just to throw in a case cite for discussion: Judge Newman’s dissent Abbott Labs v. Sandoz, Inc., 566 F.3d 1262 (2009).

          1. 2.1.1.1.1

            Thanks Jason. That viewpoint is interesting, though I’m not sure how relevant here. Judge Newman appears to have been concerned about changes in substantive law brought about by en banc hearing. Specifically, Judge Newman says:

            The breadth of the en banc court’s ruling, the solidity of the precedent now overruled, the importance of the technologies affected, and the untold issued patents that are now placed in limbo, require this court’s compliance with Federal Rules 34 and 35.

            Those issues aren’t implicated here, nor am I sure are any issues that would raise equivalent levels of concern. As to the public, we would not have been given notice in any event, since the rules set the proceedings under seal. Furthermore, I’m not sure the issues “transcend[] the interests of the parties to the specific case” as Judge Newman was concerned with and which appears to have motivated her belief in the requirement of notice. As a side note, we don’t know whether Reines was apprised of the “en banc” nature of the ruling beforehand. It is possible that he was, given the initial order to show cause was before the full court.

            I’m not saying that Reines may not be able to argue that his due process rights were limited, but I’m struggling to see how the rules weren’t followed. Instead, I think the better argument would be the rules themselves are that which caused any purported violation.

            1. 2.1.1.1.1.1

              Those rules don’t apply until after the standing panel issues an order. See the text of the disciplinary rule. I agree with you that this isn’t likely to affect anyone beyond the actors in this case, but that’s saying a lot.

              And the idea that a lawyer can receive a single hearing in a disciplinary case with no avenue to appeal is, to me, breathtakingly frightening. I am pretty sure that’s not the circumstance any where (including the CAFC under its own rules).

              1. 2.1.1.1.1.1.1

                What about at the Supreme Court? The rules there don’t seem to indicate any right to appeal to any other tribunal for disciplinary matters relating to the Supreme Court.

        2. 2.1.1.2

          I stand by my post. The attorney disciplinary rules do not provide that rehearing en banc rules for appeals apply. Instead it specifically states that the panel SHALL issue an order and only then do the rules governing panel and en banc rehearing kick in. It even says those rules “otherwise” apply.

          (g) Review by the Panel or the Active Judges of the Court. An attorney may file a petition for rehearing by the panel or a combined petition for rehearing by the panel and suggestion for rehearing by the active judges of the court, or a majority of the active judges may order that a disciplinary matter be heard or reheard by them. Such a hearing or rehearing is not favored and ordinarily will not be ordered except when necessary to secure or maintain uniformity of the court’s decisions or when the proceeding involves a question of exceptional importance. Any such petition shall be filed within 30 days of the date of the panel’s final order. The procedures governing a petition for rehearing or a combined petition/ suggestion will otherwise be in accordance with the provisions of Federal Rules of Appellate Procedure 35 and 40 and Federal Circuit Rules 35 and 40.

          1. 2.1.1.2.1

            This language seems to track rule 35 and its allowance for initial hearing en banc: “Such a hearing or rehearing is not favored and ordinarily will not be ordered except when necessary to secure or maintain uniformity of the court’s decisions or when the proceeding involves a question of exceptional importance.”

            I don’t think it’s a model of clarity, but I don’t think it’s as impermissible as you make it out to be.

      2. 2.1.2

        Let me look at the text, again. But this was not an “appeal” so on its face the practice note doesn’t apply.

        1. 2.1.2.1

          The practice note uses “appeal” in the first sentence, then switches to “case”. If we’re going to go by canons of construction, “case” and “appeal” should be given different meanings (otherwise why not just use the same word?)

  10. 1

    Rule 35, Fed. R. App. P.:

    Rule 35. En Banc Determination
    (a) When Hearing or Rehearing En Banc May Be Ordered.
    A majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc. An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless:
    (1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or
    (2) the proceeding involves a question of exceptional importance.

    From the Opinion, page 4:

    “Because of the importance of this matter, we determined to consider it en banc.”

    1. 1.1

      I don’t think you can read “or other proceeding” to cover attorney disciplinary proceedings because it then renders the attorney disciplinary rules meaningless, since they require a panel hearing first, and then say that Rule 35 kicks in for panel and en banc rehearing. I can understand mandamus, etc., being within “proceeding” but this doesn’t make sense of the rules as a whole and specifically ignores the language quoted in the post.

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