In Wisconsin Voters Alliance v. Harris, No. 21-5056 (D.C. Cir. Mar. 22, 2022), the D.C. Circuit holds that a district court judge’s decision to refer a lawyer to a bar disciplinary committee for misconduct was not a final judgment subject to appeal under 28 U.S.C. § 1291.
“To call the underlying action in this case ambitious would be an understatement. On December 22, 2020, just over two weeks before Congress was to certify the presidential election results, plaintiffs sued Vice President Pence, the U.S. House of Representatives, the U.S. Senate, the Electoral College, and a raft of state officials to prevent the counting of their states’ electoral votes. Invoking Article II of the Constitution, as well as the Equal Protection Clause and the Due Process Clause, plaintiffs argued that only state legislatures may certify Presidential electors.”
The district court denied a preliminary injunction “pointing to several shortcomings: (1) the plaintiffs lacked standing; (2) the court appeared to lack personal jurisdiction over the defendants; and (3) the suit’s Article II argument not only lay ‘somewhere between a willful misreading of the Constitution and fantasy,’ but also contravened two Supreme Court decisions.” The judge found that it was “difficult to believe that the suit [was] meant seriously,” rather than as a “symbolic political gesture.”
The judge referred the lawyer to the district court’s Committee on Grievances for discipline. The lawyer appealed, “urg[ing] us to vacate the referral order, claiming that the district court ‘abused its discretion’ by (1) issuing an order ‘based on an erroneous view of the law or a clearly erroneous assessment of the evidence,’ . . . and (2) announcing the decision to make the referral in a public, non-confidential proceeding[.]”
The D.C. Circuit dismisses the appeal for lack of jurisdiction. Skipping over the issue of standing, the panel holds that the referral merely initiates a disciplinary process rather than metes penalties.
“A referral to the Committee on Grievances neither determines whether an attorney will receive discipline nor what form that discipline may take. If the Committee deems a complaint potentially actionable, an investigation may ensue, either by the Committee or by the Office of Bar Counsel. Ultimately, the Office of Bar Counsel or the Disciplinary Panel, composed of three district court judges, decides whether an attorney should face punishment and, if so, what disciplinary measures are appropriate. Along the way to a final decision, there are multiple opportunities to discharge a complaint meriting no further action, and if the Disciplinary Panel reaches an adverse decision, the attorney may appeal to our court.”
The panel draws a parallel to administrative law. “In principle, the district court’s referral order is no different from a run-of-the-mill agency order initiating an administrative investigation. Even though the administrative agency—the SEC, the FTC, the NLRB, etc.—has concluded that a corporation or individual may have violated federal law, its order initiating enforcement proceedings is nonreviewable.”
It also finds that the public nature of the referral was interlocutory in nature. “Setting aside the merits of this claim—it is unclear whether the confidentiality rules that [counsel] cites apply to a judge’s referral decision, see LCvR 83.14(d)—[counsel’s] challenge is essentially interlocutory, and we may hear interlocutory appeals only in limited circumstances, i.e., pursuant to one of the exceptions listed in 28 U.S.C. section 1292 or the collateral order doctrine.”