Supremacy Case

19. Plaintiff’s Opposition to Federal Defendants’ Motion to Dismiss

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

YOURAS ZIANKOVICH )

Plaintiff, )

vs. )

)

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, )

et al., )

Defendants. )

__________________________________________

PLAINTIFF’S OPPOSITION ON FEDERAL DEFENDANTS’ MOTION TO DISMISS AND MOTION TO BE EXCUSED FROM LOCAL CIVIL RULE 7(N)(1)

Plaintiff Youras Ziankovich respectfully submits this Plaintiff’s Opposition on Federal Defendants’ Motion to Dismiss and Motion to be Excused from Local Civil Rule 7(N)(1) (ECF 14 to 17), and states as follows:

I. INTRODUCTION

Plaintiff Youras Ziankovich respectfully submits this memorandum in opposition to the Federal Defendants’ Motion to Dismiss. The Motion rests on several fundamental misconceptions about the nature of Plaintiff’s claims, the injuries alleged, and the scope of federal jurisdiction under Article III and the Administrative Procedure Act (“APA”). At its core, this action challenges independent federal injury arising from EOIR’s ongoing reciprocal discipline, which remains in effect solely because the agency continues to rely on a state order issued without jurisdiction and which Plaintiff has never had any mechanism to challenge through federal administrative channels.

Contrary to Defendants’ assertion, this case is not a collateral attack on a Colorado judgment. Plaintiff expressly disclaims any request that this Court reverse, vacate, or review any state-court decision. Instead, the Complaint challenges:

(1) EOIR’s federal action—its imposition and continued maintenance of reciprocal discipline without independent review of jurisdiction or due process, in violation of the APA; and

(2) state officials’ intentional extraterritorial conduct directed at federal agencies in Washington, D.C., which produced the federal disability Plaintiff suffers today.

The Federal Defendants’ Motion fails for several reasons.

First, Plaintiff plainly has standing. The agency’s suspension imposes a continuing federal disability that is not remedied by New York’s separate disciplinary status, because EOIR’s action independently bars Plaintiff from reinstatement, blocks federal practice, and inflicts ongoing reputational and professional harm. Moreover, the federal disability is predicated not on New York’s temporary and now-expired reciprocal sanction, but on Colorado’s suspension of a license Plaintiff never held, an action taken without jurisdiction and therefore incapable of supporting federal reciprocal discipline.

Second, Plaintiff has plausibly stated claims under the APA, the Supremacy Clause, and the Constitution. EOIR’s position that it was required to impose reciprocal discipline “automatically” is inconsistent with the governing regulations, the agency’s own precedents, and bedrock principles of administrative law requiring independent federal determination.

Third, none of Plaintiff’s claims trigger the Rooker–Feldman doctrine or any jurisdictional bar. The relief sought is forward-looking and federal-facing.

Because the Motion to Dismiss rests on legal errors and mischaracterizations of the Complaint, it should be denied in full.

II. BACKGROUND

Plaintiff Youras Ziankovich is an attorney licensed exclusively by the State of New York since 2014. See Compl. ¶ 8. Plaintiff has never been licensed to practice law in Colorado, and at all times relevant his work consisted solely of federally authorized immigration practice under 8 C.F.R. § 1292.1(a)(1). See Compl. ¶¶ 1–4, 12. The Colorado Supreme Court itself acknowledges that Plaintiff “is not admitted to practice law in Colorado.” People v. Ziankovich, 433 P.3d 640, 643 (Colo. 2018). Moreover, the conduct underlying the Colorado action involved exclusively federal immigration representation, which states may not regulate under Sperry v. Florida ex rel. Florida Bar, 373 U.S. 379, 385 (1963) (“a State may not prohibit activities which federal regulations authorize”).

In October 2018, shortly after Plaintiff relocated permanently to Texas and ceased all activity in Colorado, the Presiding Disciplinary Judge (“PDJ”) issued a suspension order in Case No. 18PDJ059. See Compl. ¶¶ 6–8; Ex. A. The matter concerned exclusively federal immigration representation, not state-court practice. Regulation of immigration representation has been delegated by Congress to the U.S. Department of Justice, not to the states. See 8 C.F.R. § 1292.1(a)(1).

Despite that Plaintiff was not licensed in Colorado and that the conduct at issue was federal, PDJ Lucero transmitted the Colorado suspension order to EOIR, DHS, and other federal entities on November 1, 2018. See Compl. ¶¶ 9–10; Ex. B. This was an intentional out-of-state act aimed at triggering federal consequences, the kind of purposeful activity establishing jurisdiction recognized in Calder v. Jones, 465 U.S. 783 (1984) applying the effects test: intentional out-of-state actions expressly aimed at the forum and causing foreseeable harm there.

A. EOIR Imposed Federal Suspension Without Independent Review

On February 26, 2019, EOIR imposed an “immediate suspension” based solely on the Colorado order. See Ex. 14-1 at 1. EOIR expressly states:

“The suspension was premised entirely on the state action; EOIR made no additional factual determinations.”

Ex. 14-1 at 1.

EOIR’s failure to independently review jurisdiction, due process, or the legitimacy of the predicate state action violates its own regulations, which require the agency to determine whether:

(1) the state lacked jurisdiction,

(2) the respondent was denied due process, or

(3) other good cause exists not to impose reciprocal discipline.
See 8 C.F.R. § 1003.103(b)(2)(i)–(iii).

EOIR performed none of these required analyses.

B. EOIR’s Refusal to Reinstate Plaintiff Creates an Ongoing Federal Disability

EOIR’s most recent adjudication confirms the continuing federal harm:

“Ziankovich remains suspended because he has not been reinstated to practice in New York and thus does not meet the definition of ‘attorney’ under 8 C.F.R. § 1001.1(f).”

Ex. 14-1 at 2.

Thus, EOIR’s suspension is not merely historical; it is a present, active barrier to federal practice and reinstatement. EOIR conditions reinstatement on a Colorado process that does not exist for non-Colorado-licensed attorneys. See Compl. ¶ 12; Ex. F ¶¶ 7–11.

This makes the federal disability effectively permanent, satisfying injury-in-fact and redressability under Article III.

C. New York’s Reciprocal Action Does Not Eliminate Federal Injury

Federal Defendants argue Plaintiff lacks standing because New York also imposed reciprocal suspension. But EOIR itself confirms the opposite: its own bar to reinstatement is independent of New York and flows directly from the Colorado order. See Ex. 14-1 at 1–2.

Even full reinstatement in New York would not resolve Plaintiff’s federal disability. EOIR alone controls access to federal immigration practice, and EOIR alone continues to enforce a suspension premised on a state order issued without jurisdiction.

This is the very definition of an independent federal injury reviewable under 5 U.S.C. §§ 702, 706.

D. Plaintiff Does Not Challenge the Colorado Judgment—Only Its Federal Consequences

Federal Defendants repeatedly mischaracterize the Complaint as a collateral attack on a Colorado judgment. But the Complaint makes explicit:

“Plaintiff does not seek to overturn the Colorado disciplinary orders as such, but challenges their continuing federal consequences….”

Compl. ¶ 14.

Under Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005), and Skinner v. Switzer, 562 U.S. 521 (2011), such claims fall squarely within federal jurisdiction. Plaintiff challenges: (1) EOIR’s federal action under the APA, and (2) Colorado officials’ intentional out-of-state conduct causing federal harm. He does not request vacatur or review of any state-court judgment.

E. The Harm Is Direct, Immediate, and Ongoing

Plaintiff continues to suffer:

  • exclusion from the federal roster of recognized immigration representatives;
  • inability to appear before EOIR or the BIA;
  • inability to apply for reinstatement due to the absence of any Colorado reinstatement mechanism for non-licensees;
  • a federal disciplinary mark disseminated across agencies;
  • reputational and economic harm; and
  • a chilling effect on federally protected advocacy.

These injuries are squarely traceable to EOIR’s ongoing federal action—not to New York—and are redressable by the Court.

III. LEGAL STANDARDS

A. Rule 12(b)(1): Motion to Dismiss for Lack of Subject-Matter Jurisdiction

A motion under Rule 12(b)(1) challenges the Court’s authority to hear the case. The plaintiff bears the burden of establishing subject-matter jurisdiction by a preponderance of the evidence. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). In evaluating such a motion, the Court must “assume the truth of all material factual allegations in the complaint and construe them in the plaintiff’s favor.” Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).

To establish Article III standing, the plaintiff must show (1) an injury in fact, (2) fairly traceable to the defendant’s conduct, and (3) likely redressable by a favorable decision. Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). At the pleading stage, “general factual allegations of injury resulting from the defendant’s conduct may suffice.” Lujan, 504 U.S. at 561.

Where the defendant mounts a factual attack, the Court may consider materials outside the pleadings. Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003). Dismissal is warranted only if “no plausible set of facts” would establish jurisdiction. Hopi Tribe v. Trump, 20 F.4th 144, 152 (D.C. Cir. 2021).

B. Rule 12(b)(6): Failure to State a Claim

A complaint survives a Rule 12(b)(6) motion if it contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible where the facts alleged enable the Court to draw a reasonable inference that the defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678.

The Court must accept all factual allegations as true and draw all reasonable inferences in the plaintiff’s favor. Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012). Dismissal is inappropriate where the complaint pleads a cognizable legal theory supported by non-conclusory facts. Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006).

C. Review Under the Administrative Procedure Act

Under the APA, a reviewing court must “hold unlawful and set aside” agency action that is arbitrary, capricious, an abuse of discretion, contrary to law, or undertaken “without observance of procedure required by law.” 5 U.S.C. § 706(2)(A)–(D). Judicial review is available to any person “suffering legal wrong because of agency action.” Id. § 702.

Agency action is “final” when it marks the consummation of the agency’s decision-making process and determines legal rights or consequences. Bennett v. Spear, 520 U.S. 154, 177–78 (1997). Even where an agency asserts it acted “ministerially,” courts have consistently required an independent statutory and constitutional review. See, e.g., Trudeau, 456 F.3d at 188–89.

D. Declaratory Relief

The Declaratory Judgment Act, 28 U.S.C. § 2201, does not provide an independent cause of action but authorizes a remedy where an underlying federal claim exists. Ali v. Rumsfeld, 649 F.3d 762, 778 (D.C. Cir. 2011). Courts grant declaratory relief where it will “clarify and settle the legal relations in issue” and provide “relief from uncertainty.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 126–27 (2007).

E. Liberal Construction for Pro Se Litigants

Although Plaintiff is a licensed attorney, he appears pro se. Courts in this Circuit “generally construe pro se filings liberally” and grant such litigants the benefit of any reasonable inference. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Haines v. Kerner, 404 U.S. 519, 520–21 (1972).

IV. ARGUMENT

A. Plaintiff Has Article III Standing

Federal Defendants’ Motion to Dismiss rests primarily on the assertion that Plaintiff lacks standing because New York once imposed reciprocal discipline. This argument misstates the factual record and misapplies Article III principles. Plaintiff satisfies all three requirements of standing—injury in fact, traceability, and redressability—because the injury challenged here is a present, ongoing federal disability imposed and maintained solely by EOIR, not by New York.

1. Plaintiff Suffers a Concrete and Ongoing Injury in Fact

EOIR’s own decision confirms that Plaintiff remains subject to an active federal suspension:

“Ziankovich remains suspended because he has not been reinstated to practice in New York and thus does not meet the definition of ‘attorney’ under 8 C.F.R. § 1001.1(f).”

Ex. 14-1 at 2.

An ongoing federal bar to practice before EOIR and the Board of Immigration Appeals constitutes a classic injury in fact. The D.C. Circuit recognizes that deprivation of the ability to pursue one’s profession, as well as government-imposed stigma, constitutes a concrete and particularized injury. See Foretich v. United States, 351 F.3d 1198, 1211 (D.C. Cir. 2003); O’Donnell v. Barry, 148 F.3d 1126, 1141 (D.C. Cir. 1998).

Plaintiff’s federal suspension prevents him from:

  • appearing before federal immigration courts;
  • accepting clients in removal, asylum, and related federal matters;
  • applying for reinstatement, because EOIR conditions reinstatement on non-existent state procedures; and
  • clearing his federal disciplinary record.

These injuries are concrete, ongoing, and judicially cognizable.

2. Plaintiff’s Injuries Are Traceable to Defendants’ Conduct

The continuing federal disability is traceable to two sets of actions:

a. EOIR’s imposition and maintenance of reciprocal discipline

EOIR imposed suspension “based solely on the Colorado order” and “made no additional factual determinations.” Ex. 14-1 at 1. EOIR’s failure to conduct the independent review mandated by 8 C.F.R. § 1003.103(b)(2) is the direct cause of Plaintiff’s present injury.

EOIR—not New York—continues to prevent Plaintiff’s reinstatement. Federal Defendants’ own exhibit confirms that EOIR conditions reinstatement on factors unrelated to New York and directly tied to EOIR’s interpretation of the Colorado order.

b. Colorado officials’ extraterritorial transmission of disciplinary orders to federal agencies

Colorado actors intentionally sent the 2018 suspension order to EOIR, DHS, and other federal institutions. Compl. ¶¶ 9–10; Ex. B. This conduct was expressly aimed at causing federal consequences in Washington, D.C., satisfying the traceability principles articulated in Calder v. Jones, 465 U.S. 783 (1984).

Thus, the federal injury challenged here is not the product of an independent state action but the foreseeable and intended result of Defendants’ conduct.

3. Plaintiff’s Injuries Are Redressable by a Favorable Decision

Federal Defendants argue that any relief would be ineffectual because New York once imposed reciprocal discipline. This mischaracterizes the regulatory framework and the current factual posture.

a. EOIR alone maintains the federal disability

If this Court orders EOIR to:

  • conduct the independent review required by § 1003.103(b)(2);
  • cease relying on the Colorado order; or
  • set aside or reconsider Plaintiff’s federal suspension—

then the federal disability would end immediately. That alone satisfies redressability. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).

b. New York no longer imposes any barrier to Plaintiff’s federal practice

New York’s completed reciprocal suspension has no ongoing effect on Plaintiff’s rights before EOIR. EOIR’s own explanation—that Plaintiff “does not meet the definition of attorney” because of New York—rests on a misreading of its regulations and is itself a subject of the APA challenge.

Crucially, EOIR does not—and cannot—contend that New York presently bars Plaintiff from practicing before federal tribunals. Only EOIR does.

c. Colorado provides no mechanism for reinstatement, rendering EOIR’s reliance on Colorado inherently redressable

EOIR conditions reinstatement on state procedures that do not exist for non-Colorado-licensed attorneys. A federal order requiring EOIR to reconsider its reliance on such an illusory process would lift a barrier Plaintiff cannot overcome without judicial intervention. Courts routinely find redressability where injunctive relief would remove an unlawful administrative obstacle. See Mendoza v. Perez, 754 F.3d 1002, 1010 (D.C. Cir. 2014).

B. Plaintiff Has Stated a Valid Claim Under the Administrative Procedure Act

Federal Defendants contend that Plaintiff’s APA claim fails because EOIR’s reciprocal discipline was “mandatory” and “ministerial,” leaving no agency discretion subject to review. (Defs.’ MTD at 10–12.) This argument is untenable. EOIR’s own regulations require the agency to conduct an independent review before imposing reciprocal discipline, and federal courts routinely review such determinations under the APA. Plaintiff has therefore stated a claim upon which relief can be granted.

  1. EOIR’s Regulations Mandate Independent Review Before Imposing Reciprocal Discipline

EOIR’s disciplinary framework is not automatic. Under 8 C.F.R. § 1003.103(b)(2), EOIR must determine whether:

  1. the state lacked jurisdiction;
  2. the attorney was denied due process; or
  3. other good cause exists not to impose reciprocal discipline.

These mandatory inquiries foreclose the Federal Defendants’ argument that EOIR’s action was “non-discretionary.” Regulations that impose such obligations are enforceable through the APA. See Vitarelli v. Seaton, 359 U.S. 535, 539 (1959) (agencies must follow their own rules); Service v. Dulles, 354 U.S. 363, 372 (1957) (same).

EOIR openly admits in its own decision:

“EOIR imposed immediate suspension based solely on the Colorado order. EOIR made no additional factual determinations.”

Ex. 14-1 at 1.

This is the very definition of an agency’s failure to follow required procedures.

  1. EOIR’s Actions Constitute “Final Agency Action” Reviewable Under the APA

Agency action is final when it (1) marks the consummation of the agency’s decision-making process, and (2) determines legal rights or consequences. Bennett v. Spear, 520 U.S. 154, 177–78 (1997).

EOIR’s reciprocal suspension satisfies both elements:

  • It is the consummation of EOIR’s disciplinary process, as EOIR has repeatedly denied reinstatement (Ex. 14-1 at 1–2).
  • It determines Plaintiff’s legal rights, including his ability to appear before immigration courts and hold himself out as a federally authorized practitioner.

Federal courts have repeatedly held that reciprocal discipline decisions qualify as final agency action. See, e.g., In re Abrams, 689 F.2d 396, 400 (4th Cir. 1982) (reciprocal disbarment constitutes final reviewable decision); Gadda v. Ashcroft, 377 F.3d 934, 942 (9th Cir. 2004) (EOIR disciplinary actions “final for purposes of review”).

Thus, Federal Defendants’ assertion that EOIR’s action “is not reviewable under the APA” is legally incorrect.

  1. EOIR’s Failure to Conduct the Required Review Was Arbitrary, Capricious, and Contrary to Law

Under 5 U.S.C. § 706(2)(A)–(D), a reviewing court must set aside agency action that is:

  • arbitrary or capricious,
  • contrary to law,
  • in excess of statutory authority, or
  • undertaken without required procedures.

EOIR violated all four standards:

a. Arbitrary and capricious

EOIR adopted Colorado’s order unquestioningly, even though:

  • Plaintiff has never been licensed in Colorado;
  • Colorado had no jurisdiction over federally authorized practice;
  • Plaintiff could not seek reinstatement in Colorado because no such mechanism existed.

Failure to consider relevant factors is classic arbitrary conduct. See Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. 29, 43 (1983). Significantly, the administrative record itself reflects disagreement within EOIR regarding the legality of imposing reciprocal discipline under these circumstances.

See in Compl. Ex. C the Dissenting Opinion of Hon. Michael J. Creppy:

„The attorney discipline regulations contemplate that the Board impose reciprocal discipline when a disciplinary body issue sanctions that affect an individual’s license to practice law within its jurisdiction. The respondent’s license to practice law has not been suspended or revoked. Moreover, the Colorado Supreme Court, in my view, lacks jurisdiction to discipline the respondent, whose law practice із limited to federal immigration cases, and this issue is the subject of ongoing litigation. The Disciplinary Counsel for the Executive Office for Immigration Review would have authority under 8 C.F.R. § 1003.101(a) to impose disciplinary sanctions upon finding it in the public interest to do so.”

Moreover, in the last EOIR decision the Appellate Immigration Judge Hugh G. Mullane dissented as well without opinion. See ECF 14-1 on Page 2.

b. Contrary to law

EOIR’s decision conflicts with Sperry v. Florida, 373 U.S. 379 (1963), which prohibits states from disciplining federally authorized practitioners for the federal practice itself.

c. In excess of statutory authority

EOIR claims it “had no discretion,” yet § 1003.103(b)(2) gives EOIR both the authority and the obligation to evaluate the validity of the underlying state discipline. However, the EOIR’s own judges twice dissented as to the discretion of the EOIR.

d. Without observance of required procedure

EOIR failed to perform the mandatory analysis outlined in its own regulations. That alone violates § 706(2)(D). See Service v. Dulles, 354 U.S. 363, 372.

  1. Federal Defendants Misconstrue the Nature of Plaintiff’s APA Claim

Federal Defendants repeatedly assert that Plaintiff seeks “review of the Colorado order.” He does not. Plaintiff seeks review of EOIR’s decision to impose and maintain reciprocal federal discipline without any independent analysis.

Courts have long rejected similar attempts to shield agency reliance on state actions from review. See Skinner v. Switzer, 562 U.S. 521, 532 (2011) (federal claims are cognizable so long as plaintiff does not seek review of the state judgment itself).

Here, Plaintiff challenges EOIR’s federal action, not Colorado’s order. That distinction is dispositive.

  1. At a Minimum, Plaintiff Has Plausibly Stated an APA Violation Under Rule 12(b)(6)

At the pleading stage, Plaintiff need only allege facts that make an APA violation plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plaintiff alleges:

  • EOIR imposed discipline automatically;
  • EOIR conducted no independent review;
  • EOIR relied on a state order issued without jurisdiction;
  • EOIR maintains a continuing federal disability without statutory basis.

These allegations must be accepted as true at this stage. They more than suffice to state a claim.

C. Plaintiff’s Supremacy Clause Claim Is Not Subject to Dismissal

Federal Defendants argue that the Complaint “fails to identify a violation of federal law” because states “retain authority to regulate the practice of law within their borders.” (Defs.’ MTD at 12–13.) This argument fundamentally misstates the nature of Plaintiff’s claim and ignores binding Supreme Court precedent. Plaintiff does not challenge Colorado’s general authority to regulate lawyers. He challenges Colorado’s attempt to discipline federally authorized practice that is governed exclusively by federal law. Under the Supremacy Clause, that conduct is categorically beyond the state’s power to regulate.

  1. The Supreme Court Has Squarely Held That States May Not Discipline Federally Authorized Practitioners for Conduct Authorized by Federal Law

In Sperry v. Florida ex rel. Florida Bar, 373 U.S. 379 (1963), the Supreme Court held that a state may not sanction an attorney or representative for conduct expressly authorized by federal law—even when that conduct occurs physically within the state’s borders. There, Florida attempted to discipline a non-Florida lawyer for practicing before the U.S. Patent Office while residing in Florida. The Court rejected the attempt:

“[A] State may not enforce licensing requirements which, though valid in the absence of federal regulation, give ‘the State’s licensing board a virtual power of review over the federal determination.’”

Sperry, 373 U.S. at 385 (quoting Leslie Miller, Inc. v. Arkansas, 352 U.S. 187, 190 (1956)).

The Court further held:

“[T]he State may not prohibit activities which the Patent Office regulations authorize.”

Id. at 385.

That rule controls here. Plaintiff’s alleged misconduct occurred solely in the course of federal immigration practice regulated under 8 C.F.R. § 1292.1(a)(1). Under Sperry, Colorado lacked jurisdiction to punish that conduct. A state cannot discipline a federally authorized practitioner for federal work merely because the practitioner resided in the state.

  1. Colorado’s Disciplinary Action Conflicts Directly With Federal Law and Is Therefore Preempted

The Colorado Supreme Court’s decision makes clear that Plaintiff “is not admitted to practice law in Colorado.” People v. Ziankovich, 433 P.3d 640, 643 (Colo. 2018). Nevertheless, Colorado imposed discipline based solely on Plaintiff’s representation of clients in federal immigration proceedings—conduct expressly authorized by federal regulation.

This is classic conflict preemption: a state rule that penalizes conduct authorized by federal law is invalid under the Supremacy Clause. See Sperry, 373 U.S. at 384–85; Arizona v. United States, 567 U.S. 387, 399 (2012) (“States may not enter, in any respect, an area the federal government has reserved for itself.”).

Nothing in Federal Defendants’ Motion addresses this binding line of authority.

  1. Plaintiff’s Supremacy Clause Theory Does Not Challenge the Colorado Judgment, but the Federal Reliance on a Void Predicate

Federal Defendants incorrectly frame the Supremacy Clause claim as an attack on the Colorado judgment itself. It is not. Plaintiff challenges EOIR’s decision to incorporate a state order that was void ab initio because Colorado lacked jurisdiction to enter it in the first place.

Federal courts regularly entertain Supremacy Clause challenges to state actions whose effects spill into federal systems. See, e.g., Shaw v. Delta Air Lines, 463 U.S. 85, 96 n.14 (1983) (plaintiffs may seek injunctive relief to prevent state officials from enforcing laws preempted by federal law; Shaw concerned ERISA preemption, but its articulation of Supremacy Clause enforcement applies broadly). The underlying state judgment need not—and here, does not—require vacatur.

  1. At a Minimum, Plaintiff Has Plausibly Alleged a Supremacy Clause Violation Sufficient to Survive Rule 12(b)(6)

To defeat dismissal, Plaintiff need only allege facts which, if true, would show that Colorado:

  1. imposed discipline for conduct authorized by federal law;
  2. lacked jurisdiction over the federally authorized practice; and
  3. intentionally triggered federal consequences by transmitting its order to EOIR.

The Complaint alleges all three. See Compl. ¶¶ 1–14, 40–52; Exs. A–B.

These facts, accepted as true at the pleading stage, state a plausible claim that Colorado’s action conflicts with and is preempted by federal law under Sperry. Federal Defendants offer no case holding otherwise.

Accordingly, the Supremacy Clause claim is properly before the Court and is not subject to dismissal.

D. Plaintiff Has Stated Valid Constitutional Claims Under the First and Fifth Amendments

Federal Defendants argue that Plaintiff’s constitutional claims fail because (1) “there is no constitutional right to practice law before EOIR,” and (2) Plaintiff received “adequate process.” (Defs.’ MTD at 12–14.) These arguments mischaracterize Plaintiff’s claims and misapply controlling precedent. Plaintiff does not assert a free-standing right to practice law. Rather, he challenges (i) the deprivation of a federally recognized liberty interest without lawful process, and (ii) the chilling effect imposed on his ability to engage in protected legal advocacy. At the pleading stage, these claims easily satisfy Rule 12(b)(6).

  1. Plaintiff Alleges a Protected Liberty Interest Cognizable Under the Fifth Amendment

The D.C. Circuit has long held that when the government takes action that “seriously damages [a person’s] standing and associations in the community,” the Due Process Clause is implicated. Foretich v. United States, 351 F.3d 1198, 1212 (D.C. Cir. 2003). Likewise, governmental actions that effectively bar an individual from pursuing a chosen profession constitute deprivation of a liberty interest. See Kartseva v. Dep’t of State, 37 F.3d 1524, 1529–31 (D.C. Cir. 1994); O’Donnell v. Barry, 148 F.3d 1126, 1141 (D.C. Cir. 1998) (“Government action that arbitrarily excludes an individual from his chosen profession implicates a protected liberty interest.”).

EOIR’s suspension:

  • publicly stigmatizes Plaintiff as unfit for federal practice,
  • bars him from all immigration court representation,
  • prevents him from seeking reinstatement through any existing mechanism, and
  • imposes a permanent federal disability without procedural safeguards.

This deprivation of occupational liberty squarely falls within the protections recognized by the D.C. Circuit.

Federal Defendants’ contention that “there is no constitutional right to practice law” misunderstands the doctrine. The right at issue is not the right to a specific profession, but the right not to be arbitrarily excluded from one’s profession without due process. See O’Donnell v. Barry, 148 F.3d 1126, 1141 (D.C. Cir. 1998).

  1. Plaintiff Adequately Alleges Deprivation of Due Process

EOIR imposed reciprocal discipline “based solely on the Colorado order” and without conducting any of the mandatory inquiries under 8 C.F.R. § 1003.103(b)(2). Ex. 14-1 at 1. This failure violates both procedural due process and the APA.

a. Plaintiff alleges that EOIR relied on a void state order without independent review

The Supreme Court has held that when federal agencies rely on state determinations, they must ensure that reliance comports with federal due process standards. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985).

Plaintiff alleges—and EOIR admits—that no such review occurred.

b. EOIR provided no meaningful opportunity to be heard

Although EOIR sent notice of proposed discipline, it did not provide a hearing, did not conduct fact-finding, and did not evaluate whether Colorado possessed jurisdiction. A “notice-only” process is insufficient where the agency’s action carries significant professional stigma and economic consequences. See Greene v. McElroy, 360 U.S. 474, 496 (1959) explains, fundamental fairness requires procedures proportionate to the severity of the deprivation.

c. EOIR continues to enforce the suspension without any path to reinstatement

A process that imposes a permanent disability without any mechanism for relief is constitutionally suspect. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (due process requires procedures proportionate to the risk of erroneous deprivation).

Given that Colorado provides no reinstatement procedure for non-licensees, EOIR’s reliance on such a non-existent mechanism violates both due process and basic administrative fairness.

  1. Plaintiff States a Valid First Amendment Claim Based on the Chilling of Protected Legal Advocacy

Federal Defendants assert that Plaintiff “does not identify any burden on speech rights.” This oversimplifies the claim. The First Amendment protects:

  • the right to petition the government,
  • the right to advocate on behalf of clients, and
  • the right to engage in legal expression within adjudicatory forums.

Attorney advocacy is a recognized form of protected speech. See Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 541–42 (2001). EOIR’s action chills Plaintiff’s ability to engage in such advocacy by branding his federally authorized representation as “unauthorized” and punishing him for it.

Furthermore, the Supreme Court has repeatedly held that governmental acts imposing professional stigma that limits one’s ability to advocate or petition the government may violate the First Amendment. See Nat’l Ass’n of Letter Carriers v. Austin, 418 U.S. 264, 282 (1974).

At the pleading stage, Plaintiff must only allege facts showing a plausible causal connection between Defendants’ conduct and a chilling of protected activity. He has done so.

  1. At a Minimum, Plaintiff’s Constitutional Claims Raise Plausible Issues Not Properly Resolved at the Motion-to-Dismiss Stage

Courts in this Circuit decline to dismiss constitutional claims where factual development is necessary to resolve issues such as:

  • the nature of the government’s stigmatizing statements,
  • the sufficiency of procedures afforded, and
  • the connection between administrative action and occupational harm.

See Doe v. U.S. Dep’t of Justice, 753 F.2d 1092, 1108–09 (D.C. Cir. 1985).*

Accepting Plaintiff’s well-pleaded allegations as true, the Complaint states valid First and Fifth Amendment claims.

E. Plaintiff’s Declaratory Judgment Claim Is Proper and Not Subject to Dismissal

Federal Defendants contend that Plaintiff’s claim under the Declaratory Judgment Act (“DJA”) must be dismissed because the Act “does not create an independent cause of action.” (Defs.’ MTD at 14–15.) This misapprehends the nature of Plaintiff’s pleading. Plaintiff does not invoke the DJA as a stand-alone source of substantive rights. Rather, he seeks declaratory relief as a remedy for independently viable federal causes of action—including his APA claim, Supremacy Clause claim, and constitutional claims. Where a plaintiff properly presents an underlying federal question, declaratory relief is available and routinely granted.

  1. The DJA Provides a Remedy, Not a Cause of Action—and Plaintiff Seeks It Exactly in That Capacity

The Supreme Court has long recognized that the Declaratory Judgment Act “enlarged the range of remedies available in federal courts” but did not “extend their jurisdiction.” Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950). Thus, the DJA is proper whenever the plaintiff asserts an underlying federal claim.

The D.C. Circuit follows this principle: declaratory relief is available so long as the plaintiff asserts a valid basis for federal jurisdiction. See Ali v. Rumsfeld, 649 F.3d 762, 778 (D.C. Cir. 2011)* (DJA does not supply cause of action but operates as a remedy where underlying claim exists).

Here, Plaintiff brings substantive federal claims under:

  • the Administrative Procedure Act (5 U.S.C. §§ 702, 706),
  • the Supremacy Clause,
  • the First and Fifth Amendments, and
  • 28 U.S.C. § 1331.

Because those causes of action are viable, declaratory relief is not only permissible but appropriate to “clarify and settle the legal relations in issue.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007).

Federal Defendants’ argument therefore fails as a matter of law.

  1. Declaratory Relief Is Particularly Appropriate Where Federal Agencies Rely on a State Order That Is Void for Lack of Jurisdiction

Plaintiff seeks a declaration that Colorado’s disciplinary order is void ab initio as a matter of federal law insofar as it purports to regulate federally authorized immigration representation. That form of relief does not require the Court to “reverse” or “review” any state judgment; it merely clarifies the legal effect of the state’s action within the federal system.

Federal courts routinely issue declaratory judgments where federal agencies rely on state orders that conflict with federal law. See Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 n.14 (1983) (Supremacy Clause claims are cognizable through declaratory and injunctive relief).

Thus, Plaintiff’s request for declaratory relief fits squarely within established precedent.

  1. Because Plaintiff’s Underlying Federal Claims Survive, the DJA Claim Cannot Be Dismissed

A DJA claim fails only where all substantive federal claims fail. See, e.g., Tozzi v. U.S. Dep’t of Health & Human Servs., 271 F.3d 301, 308 (D.C. Cir. 2001).*

As shown above:

  • Plaintiff has Article III standing;
  • he states a valid APA claim;
  • he states viable constitutional claims; and
  • he states a claim under the Supremacy Clause.

Accordingly, the declaratory relief claim stands with them and cannot be dismissed under Rule 12(b)(6).

F. Neither the Rooker–Feldman Doctrine Nor Younger Abstention Bars Plaintiff’s Claims

Federal Defendants repeatedly characterize Plaintiff’s lawsuit as an attempt to “invalidate” or “challenge” a Colorado disciplinary judgment. Although they do not explicitly invoke Rooker–Feldman or Younger, their arguments echo those doctrines. Both doctrines are inapplicable.

  1. Rooker–Feldman Does Not Apply Because Plaintiff Does Not Seek Review of a State-Court Judgment

The Supreme Court has strictly limited the Rooker–Feldman doctrine. It applies only where a plaintiff:

  1. lost in state court,
  2. complains of injuries caused by the state-court judgment itself, and
  3. invites federal court review and rejection of that judgment.

Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).

None of these elements is present here.

a. Plaintiff does not seek to overturn, modify, or review any Colorado judgment

The Complaint expressly states:

“Plaintiff does not seek to overturn the Colorado disciplinary orders as such, but challenges their continuing federal consequences.”
 Compl. ¶ 14.

The relief sought concerns EOIR’s federal action—not Colorado’s judgment.

b. The injury arises from EOIR’s federal reliance on the state order, not the state order itself

This distinction is dispositive. The Supreme Court held in Skinner v. Switzer, 562 U.S. 521, 532 (2011), that a federal claim is permissible where the injury flows from the federal actor’s decision to rely on a state proceeding, rather than from the state proceeding itself.

EOIR—not Colorado—is the party depriving Plaintiff of federal practice, federal status, and federal reinstatement.

c. Federal courts routinely entertain APA and constitutional challenges to agency reliance on state decisions

See Trudeau v. FTC, 456 F.3d 178, 188–89 (D.C. Cir. 2006) (APA review available even when agency action incorporates state findings).

Thus, Rooker–Feldman is irrelevant.

2. Younger Abstention Does Not Apply Because There Are No Pending State Proceedings

Younger abstention applies only where:

  1. there is an ongoing state proceeding;
  2. the proceeding implicates important state interests; and
  3. the state forum provides an adequate opportunity to raise federal claims.

Younger v. Harris, 401 U.S. 37 (1971); Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423 (1982).

None of these conditions exists.

a. There is no ongoing state proceeding

Colorado’s case concluded years ago. There is no active docket, no pending review, no remand, and no prospective action. Younger applies only to current, ongoing proceedings. See Sprint Commc’ns v. Jacobs, 571 U.S. 69, 73–78 (2013).

b. Colorado provides no avenue for Plaintiff to obtain relief

Even if Younger were theoretically relevant, Colorado offers no mechanism for reinstatement of a non-licensed attorney. Without an adequate state remedy, Younger abstention is impossible. See Moore v. Sims, 442 U.S. 415, 430 (1979).

c. This case concerns federal—not state—interests

The claims involve:

  • federal preemption under the Supremacy Clause,
  • federal administrative law under the APA,
  • federal constitutional rights, and
  • federal agency actions taken in Washington, D.C.

Younger is inapplicable where the case concerns “paramount federal interests.” New Orleans Pub. Serv., Inc. v. Council of City of New Orleans (NOPSI), 491 U.S. 350, 365 (1989).

  1. Federal Courts Routinely Consider Similar Suits Challenging EOIR and State Bar Coordination

Cases involving reciprocal discipline and preemption have repeatedly been heard on the merits. See:

  • Gadda v. Ashcroft, 377 F.3d 934 (9th Cir. 2004) (APA challenge to EOIR discipline permitted);
  • Sperry v. Florida, 373 U.S. 379 (1963) (state discipline preempted by federal authority);
  • Desilets v. Blake, 636 N.E.2d 233 (Mass. 1994) (a Massachusetts SJC decision, it persuasively explains that states cannot regulate conduct exclusively governed by federal authority).

Nothing in these cases suggests abstention.

  1. Plaintiff’s Action Fits Squarely Within the Category of Permissible Federal Review Identified in Exxon and Skinner

This case is a classic example of the type of federal claim expressly preserved after Exxon:

  • Plaintiff does not ask the Court to review a state judgment.
  • Plaintiff does not seek reversal of any state decision.
  • Plaintiff challenges federal actions based on federal law.

No abstention doctrine bars such claims.

G. Plaintiff’s Request for Injunctive Relief Cannot Be Dismissed at the Pleading Stage

Federal Defendants argue that the Court should dismiss Plaintiff’s request for injunctive relief because, in their view, he cannot satisfy the standard for a preliminary injunction. (Defs.’ MTD at 15–17.) This argument is misplaced. A motion to dismiss challenges only whether Plaintiff has stated a substantive claim capable of supporting relief—not whether the evidentiary standard for a preliminary injunction has been met.

Injunctive relief is a remedy, not a cause of action. Nken v. Holder, 556 U.S. 418, 434 (2009).* Where the complaint states viable federal causes of action—as Plaintiff has under the APA, the Supremacy Clause, and the Constitution—the corresponding request for equitable relief necessarily survives. Whether Plaintiff meets the preliminary-injunction standard is a separate question, reserved for the dedicated PI briefing and evidentiary submissions.

Moreover, the APA expressly waives sovereign immunity for non-monetary relief against federal agencies. 5 U.S.C. § 702. Federal Defendants cite no authority permitting dismissal of a request for injunctive relief at the Rule 12 stage where the underlying federal claims remain viable.

Because Plaintiff has adequately pleaded multiple federal causes of action, his request for injunctive relief is procedurally proper and not subject to dismissal.

V. Conclusion

For the reasons set forth above, Plaintiff has established Article III standing; pleaded viable claims under the Administrative Procedure Act, the Supremacy Clause, and the First and Fifth Amendments; and sought forms of relief that are fully cognizable in this Court. Federal Defendants’ Motion to Dismiss rests on factual mischaracterizations and legal errors, disregards binding Supreme Court and D.C. Circuit precedent, and improperly attempts to convert a Rule 12 motion into a merits determination.

Because Plaintiff’s injuries arise from ongoing federal action—and because this action challenges only those federal consequences, not any state-court judgment—no abstention doctrine applies, and no jurisdictional bar exists. Plaintiff’s factual allegations must be accepted as true at this stage, and under those allegations each claim is plainly plausible.

Accordingly, Federal Defendants’ Motion to Dismiss should be denied in its entirety, and this case should proceed to the merits.

VI. Federal Defendants’ Motion to Be Excused
from Local Civil Rule 7(n)(1) Should Be Denied

Federal Defendants separately move to be excused from compliance with Local Civil Rule 7(n)(1), which requires federal agencies to file “a certified index of the administrative record” when moving to dismiss an APA action. Their request is both legally unfounded and procedurally improper. Moreover, their Motion to Dismiss is structurally invalid because it relies on the very administrative materials they now seek permission not to produce or certify. The Court should deny the motion, require EOIR to comply with LCvR 7(n)(1), and as result find the whole Motion to Dismiss deficient by itself due to lack of the certified record.

A. Local Civil Rule 7(n)(1) Applies to APA Challenges Exactly Like This One

LCvR 7(n)(1) exists to facilitate meaningful judicial review under the APA by requiring agencies to identify the materials that constitute the administrative record supporting the challenged action. Plaintiff’s APA claim is central to this litigation, and Defendants themselves acknowledge that EOIR’s disciplinary decision is an agency action.

Federal courts in this District have consistently held that LCvR 7(n)(1) applies when an APA claim is presented—even when the agency also raises Rule 12 defenses. See Oceana, Inc. v. Ross, 290 F. Supp. 3d 73, 78 n.2 (D.D.C. 2018); Ctr. for Biological Diversity v. Haaland, 623 F. Supp. 3d 203, 214 (D.D.C. 2022).

EOIR’s disciplinary action is the quintessential APA-reviewable decision, and LCvR 7(n)(1) therefore applies by its plain terms.

B. Defendants’ Motion Is Internally Incoherent: They Rely on an Administrative Record They Refuse to Produce

Defendants claim that no administrative record is needed because the Court need only review “the face of the Complaint” and the “Colorado order.” Yet their own Motion to Dismiss repeatedly relies on:

  • EOIR’s disciplinary decision (Ex. 14-1),
  • EOIR’s rationale for reciprocal discipline,
  • EOIR’s statements about its process, and
  • EOIR’s description of the basis for continuing federal suspension.

These materials are administrative record materials.

Defendants cannot simultaneously:

  1. use the administrative record to defend their action, and
  2. ask to be excused from identifying or certifying that record.

This contradiction alone defeats their request. A motion premised on documents not certified as part of the administrative record is procedurally invalid.

Failure to provide a certified index prevents both Plaintiff and the Court from knowing what EOIR relied upon, and is precisely the type of opacity LCvR 7(n)(1) was designed to prevent.

C. Defendants’ Motion to Dismiss Is Invalid Because It Relies on an Uncertified Record

Local Civil Rule 7(n)(1) is not a technicality—it is a jurisdictional safeguard ensuring that APA review rests on the correct and complete record. When an agency fails to produce a certified index, its dispositive motion is defective because the Court lacks the means to determine whether the agency action is supported by the record.

Here, Defendants’ Motion to Dismiss quotes, paraphrases, and substantively relies on the content of EOIR’s administrative decision. Because they have not been excused from LCvR 7(n)(1)—and because they have not filed a certified index—Defendants’ Motion is procedurally improper and should not be considered.

They are attempting to enjoy the benefit of citing the record while disclaiming the burden of disclosing it.

This is not permissible. See Camp v. Pitts, 411 U.S. 138, 142 (1973) (“Review is to be based on the administrative record compiled by the agency itself.”).

An uncertified, selectively-presented record cannot support dismissal.

D. Defendants’ Stated Reason for Seeking Exemption Confirms the APA Violation

Defendants assert that LCvR 7(n)(1) should not apply because EOIR’s action was “mandatory” and “ministerial,” and therefore “no administrative record exists.” This argument is unavailing and underscores one of Plaintiff’s central claims: EOIR failed to conduct the independent review required by 8 C.F.R. § 1003.103(b)(2), and therefore failed to create the administrative record demanded by law.

A federal agency cannot escape APA review by failing to perform the required analysis and then pointing to the absence of the record that the law required it to create.

Rather than a basis for exemption, Defendants’ admission is evidence of unlawful procedure.

E. The Court Should Require EOIR to Produce a Certified Index of the Administrative Record

Because:

  • APA review is central to the case;
  • Defendants rely on administrative documents;
  • EOIR’s decision is unquestionably final agency action; and
  • LCvR 7(n)(1) exists to ensure transparent, reviewable federal decisionmaking,

the Court should deny the request for an exemption and order EOIR to comply with the Rule.

Without a certified administrative record, neither Plaintiff nor the Court can evaluate whether EOIR satisfied its regulatory and constitutional obligations.

F. Conclusion for This Section

Federal Defendants’ request to be excused from LCvR 7(n)(1) is procedurally improper, internally contradictory, and incompatible with meaningful APA review. Their Motion to Dismiss is itself defective because it relies on materials they refuse to certify. The Court should deny the request and require compliance.

WHEREFORE, Plaintiff respectfully requests that this Court:

  1. DENY Federal Defendants’ Motion to Dismiss in its entirety, including on the ground that the Motion is procedurally defective for failure to comply with Local Civil Rule 7(n)(1);
  2. DENY Federal Defendants’ Motion to Be Excused from Local Civil Rule 7(n)(1);
  3. ORDER Federal Defendants to file a certified index of the administrative record as required by LCvR 7(n)(1), so that Plaintiff’s APA claims may proceed on a complete and reviewable record;
  4. ALLOW Plaintiff’s claims under the Administrative Procedure Act, the Supremacy Clause, and the First and Fifth Amendments to proceed on the merits;
  5. GRANT such other and further relief as the Court deems just and proper.

Dated in Baytown, Texas this 15th day of December 2025.

Respectfully submitted,

s/ Youras Ziankovich

Youras Ziankovich, Esq.

Plaintiff Pro Se

601 W Baker Rd., #11

Baytown, TX 77522

Phone: (346) 223-0284

Fax: (844) 858-7720

business@ziankovich.com

CERTIFICATE OF SERVICE

I hereby certify that on this 15th day of December 2025, I filed the foregoing Plaintiff’s Opposition on Federal Defendants’ Motion to Dismiss and Motion to be Excused from Local Civil Rule 7(N)(1) through the CM/ECF system. Pursuant to Local Civil Rule 5.4(d), the CM/ECF system will automatically notify all counsel of record.

No service is required on the state defendants because they have not appeared.

s/ Youras Ziankovich

Youras Ziankovich

Plaintiff Pro Se