Attorney's Disbarment Is Not an Actionable 'Judicial Taking'

By Robyn Hagan Cain on February 26, 2013 | Last updated on March 21, 2019

David Smith thinks his lost legal career is worth $5 million.

Too bad the Federal Circuit Court of Appeals thinks that he can't bring his federal claims.

The Tenth Circuit Court of Appeals disbarred Smith in 1996. In reciprocal disciplinary proceedings, the federal district court and the Colorado Supreme Court also disbarred him. In 2007, the Tenth Circuit reinstated Smith. Based on that reinstatement, Smith sought to be reinstated to the federal district court. He request was denied because he remained disbarred by the Colorado Supreme Court.

(Sidebar: According to the district court's local rules, an attorney must be in good standing in all courts to which he was admitted.)

Smith repeatedly -- and unsuccessfully -- asked the district court to reconsider. When that didn't work, he turned to the Tenth Circuit for relief. The appellate court wouldn't budge.

So Smith moved on to the Court of Federal Claims, demanding $5 million in damages based on Fifth and Fourteenth Amendment violations that constituted "judicial takings of [Smith's] private property right to practice law and make a living."

The Court of Federal Claims granted the government's motion to dismiss for lack of jurisdiction under the Tucker Act. The Federal Circuit Court of Appeals affirmed that ruling last week.

To be cognizable under the Tucker Act, a claim must be for money damages against the U.S., and the substantive law must be money-mandating. The Tucker Act does not, of itself, create a substantive right enforceable against the U.S.; instead, the plaintiff must identify a separate contract, regulation, statute, or constitutional provision that provides for money damages. Here, Smith did not present a due process or equal protection claim that met this requirement. The panel explained:

The law is well settled that the Due Process clauses of both the Fifth and Fourteenth Amendments do not mandate the payment of money and thus do not provide a cause of action under the Tucker Act. It is equally clear that the Fourteenth Amendment's Equal Protection Clause does not mandate the payment of money. The Court of Federal Claims therefore had no jurisdiction over plaintiff's alleged violations of these rights.

Smith, however, also argued disbarment constituted a judicial taking based on the Supreme Court's 2010 ruling in Stop the Beach Renourishment, Inc. v. Florida DEP, and appealed the Court of Federal Claims' ruling that it was time-barred.

Smith thought he could pursue the claim because his cause of action originated with Stop the Beach. The Federal Circuit panel disagreed, noting, "Contrary to Mr. Smith's assertion that Stop the Beach 'created a cause of action for judicial takings,' the theory of judicial takings existed prior to 2010. The Court in Stop the Beach did not create this law, but applied it."

Because Smith's cause of action was not newly-established, the appellate court also concluded that Smith's claims were time-barred by the six-year statute of limitations, which began to toll with each court's 90s-era disbarment order.

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