UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
-----------------------------------------------------------------X
ALTON H. MADDOX, JR.,

Appellant,
Docket No. -07-0187CV
-against-
MEMORANDUM
OF LAW
A. GAIL PRUDENTI as Presiding Justice
of the APPELLATE DIVISION, SECOND
JUDICIAL DEPARTMENT; DAVID S.
RITTER, MYRIAM J. ALTMAN; NANCY
E. SMITH, FRED T. SANTUCCI, ANITA
R. FLORIO; HOWARD MILLER; STEPHEN
G. CRANE; THOMAS A. ADAMS; DANIEL
F. LUCIANO; GABRIEL M. KRAUSMAN;
SONDRA MILLER; GLORIA GOLDSTEIN;
ROBERT W. SCHMIDT; STEVEN W.
FISHER; ROBERT A. SPOLZINO; WILLIAM
F. MASTRO; BARRY A. COZIER; REINALDO
E. RIVERA; PETER B. SKELOS; ROBERT
A. LIFSON as Associate Justices of the
Appellate Division, Second Judicial Department,

Appellees.
-------------------------------------------------------------X

Statement of Facts
This civil rights action seeks to challenge the mechanism for the reinstatement of a suspended attorney under 22 NYCRR §691.11. Appellant was indefinitely suspended from the practice of law, without a hearing, on May 21, 1990 amid the trial of People v. Sharpton in Manhattan Supreme Court. Appellant now seeks to extend the time of his oral argument from five minutes to fifteen minutes under Rule 34 of the FRAP.
After a public hearing which commenced in May 1993, appellant was suspended from the practice of law for a definite period of five years on August 1, 1994. Because of public representations made by Eliot Spitzer, a candidate for state attorney general, appellant waited until July 2003 to move for reinstatement to practice law. Appellees denied the motion because it failed to comply with 22 NYCRR §691.11 and, instead, was tailored to comply with either Article 50 of the NYCPLR or Article 440 of the NYCPL.
From the time that this matter was in the Brooklyn Federal Court, four District Court judges were assigned to the case at different times from December 2004 to January 2007. Only one of the judges was assigned to the case in accordance with Rule 50.2 of the Eastern District. This was U.S.D.C. Judge Nina Gershon.
Appellant only appeared before or corresponded with Judge Gershon. After receiving notice that U.S.D.C. Judge Carol B. Amon had initially been assigned to the case, appellant objected under Rule 50.2 of the Eastern Rules. Similarly, appellant objected to the assignment of U.S.D.C. Judge Brian Cogan not only because of Rule 50.2 of the Eastern Rules but also because Judge Cogan was a former law partner of former State Attorney General Robert Abrams. Appellant never received notice that U.S.D.C. Judge Alleyne R. Ross had been assigned to the case.
Although counsel for the appellees had, sua sponte, raised the issue of appellant’s newly-found legal status in the record, the Decision and Order dated December 19, 2006 failed to raise the issue which is, unquestionably, a due process violation within the context of this case. Appellant was actually disbarred without notice and opportunity to be heard.
Similarly, Judge Ross was of the mistaken belief that the issuance of an admonition dated June 29, 2006 made the First Amendment claim ripe for judicial review. 22 NYCRR §691.6 reads differently. Accordingly, no hearing was held until July 2007, more than six months after the Decision and Order dated January 16, 2007 of Judge Ross. In fact, appellant had perfected this appeal, in July 2007.
I
DUE PROCESS MANDATES AN
ORAL ARGUMENT OF
FIFTEEN MINUTES

The United States Supreme Court has noted that “due process of law has never been a term of fixed and invariable content. This is as true with reference to oral argument as with respect to other elements of procedural due process.” FCC v. WJR, The Goodwill Sta., 337 U.S. 265, 275 (1949).
The Supreme Court was addressing the need for an oral argument in the context of an administrative hearing or in a judicial forum. This language is dispositive of this appeal:
Respondent does not contend that it was denied any opportunity to present for the Commission’s consideration any matter of fact or law in connection with its application or that the Commission has not given all matters submitted by it due and full consideration.

The arguments that were lacking in FCC v. WJR, The Goodwill Sta., are present in this appeal. Appellant was denied an opportunity to present to the District Court for its consideration matters concerning appellant’s disbarment and his claim of retaliation under the First Amendment. Moreover, the District Court failed to give either of these matters its consideration.
Any disbarred attorney is entitled to due process of law before the state can strike the name of the attorney from its roll of attorneys. See In re Ruffalo, 390 U.S. 544 (1968). The distinction between a suspended attorney and a disbarred attorney is significant. Without appellant’s knowledge, appellees have surreptitiously treated appellant as a disbarred attorney.
Moreover, appellant was entitled to make out a factual and legal claim in the District Court. Appellees were able to conduct a subsequent, disciplinary hearing without judicial oversight from the federal court. Appellant’s claim of retaliation had been prematurely extinguished. This entire process was not subject to judicial review. Appellant was denied the opportunity to make any legal arguments in the District Court.
II
THIS COURT IS AUTHORIZED
TO GRANT THIS APPLICATION
UNDER LOCAL RULE 34
OF THE FRAP

It is now well-settled that when a party to an appeal requires extra time, the United States Court of Appeals is authorized under Rule 34 of the FRAP to grant the application See Sexton v. Kennedy, 519 F.2d 797 (6th Cir. 1975). In this Court, the allotment of time is governed by Local Rule 34 which places an additional time constraint on pro se appeals.
The operative word in Local Rule 34 is “normally.” In pertinent part, Local Rule 34 provides: Arguments in pro se appeals are normally five minutes.” [Emphasis supplied]. Accordingly, every claim for a need for extended time for oral argument must be decided on a case-by-case basis. The need for an extended, oral argument in this pro se appeal rises to the level of the general rule for oral argument under Local Rule 34:
The judge scheduled to preside over the panel will set the time allowed for argument by each party after considering the appellant’s brief and each party’s request for argument time.

The general rule under Local Rule 34 differs from the pro se rule in that the mechanical rule for pro se appeals is not subject to the same discretion as the general rule. No latitude is available under a pro se appeal to examine the brief and to consider a party’s request for time. For a pro se litigant, a motion under Rule 34 of the FRAP is critical to secure additional time for oral argument.
CONCLUSION
For the foregoing reasons, the motion under Rule 34 of the FRAP and Local Rule 34 should be granted.
Dated: New York, NY
July 24, 2008

Respectfully submitted,


ALTON H. MADDOX, JR.
16 Court Street, Ste. 1901
Brooklyn, NY 11241
718-834-9034
TO: Andrew Cuomo, Esq.
New York State Attorney General
120 Broadway
New York, NY 10271