Rogers v. Federal Home Loan Bank of San Francisco

Background

Federal Home Loan Bank of San Francisco moved for an order declaring Brian F. Rogers a vexatious litigant. Such an order could restrict a person’s ability to file new cases without first obtaining court approval. The motion was set for a hearing on November 26, 2019, but the court vacated the hearing and decided the matter on the written submissions.

The defendant relied on Rogers’s litigation history. The opinion describes numerous lawsuits involving employment and consumer discrimination, Apartment Management Consultants, Tipton Enterprises, San Diego County officials, the California Department of Consumer Affairs, the City of San Diego and related defendants, and Grover Beach. The opinion states that Rogers appeared without a lawyer in each of the earlier cases discussed. A San Diego County Superior Court had previously declared Rogers a vexatious litigant.

The court did not consider several additional cases identified by the defendant. Rogers denied filing two cases involving Dan Yarchin and Judith Ellen Cohn, and the court could not evaluate the nature of the claims in those cases. The court also declined to consider another 2002 San Diego Superior Court small-claims case because it could not evaluate the claims.

Legal standard

Under the federal All Writs Act, district courts have inherent authority to issue pre-filing orders against vexatious litigants, but the remedy should rarely be used. Under Ninth Circuit precedent, the court must provide notice and an opportunity to be heard, identify the cases and motions supporting the order, make substantive findings that the filings were frivolous or harassing, and narrowly tailor the order to the problem shown.

The court explained that litigiousness alone is not enough. It must examine both the number and content of the filings. The claims must be numerous and plainly without merit, or the filings must show a pattern of harassment. Courts must also consider whether other remedies would adequately protect the courts and the parties.

Analysis

The court found that Rogers’s repeated attempts to litigate issues it considered without merit weighed in favor of a vexatious-litigant finding. The court was particularly concerned about Rogers’s threats to refile cases and accusations of racial bias against judicial officers.

But the court called the question a close one. It noted that not every filing was meritless. Some cases had ended through settlement or stipulated dismissal, some complaints had been accepted after review of requests to proceed without paying filing fees, and some cases had been dismissed with permission to amend. The court stated that a successful motion is not baseless or frivolous.

The court concluded that other remedies were adequate. Because Rogers often requested permission to proceed without paying filing fees, federal courts could dismiss a case at screening if it was frivolous or malicious, failed to state a claim, or sought money from a defendant protected from such relief. The court therefore found that a vexatious-litigant order was not yet warranted, while warning that one might become necessary if Rogers continued filing substantially similar cases. The defendant could notify the court if Rogers filed substantially similar litigation in the Northern District of California or elsewhere.

Disposition

Judge Susan Illston denied the defendant’s motion for a vexatious litigant order. She also denied Rogers’s request for sanctions. The court granted the defendant’s request and supplemental request for judicial notice in their entirety.