Richard Abbott v. Luke Mette ( 2021 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 21-1804
______________
RICHARD L. ABBOTT,
Appellant
v.
LUKE W. METTE; KATHLEEN M. VAVALA; COLLINS J. SEITZ, JR.; JAMES T.
VAUGHN, JR.; TAMIKA R. MONTGOMERY-REEVES; GARY F. TRAYNOR;
KAREN L. VALIHURA
______________
Appeal from the United States District Court
for the District of Delaware
(D.C. No. 1-20-cv-00131)
District Judge: Hon. Richard G. Andrews
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
December 6, 2021
______________
Before: SHWARTZ, PORTER, and FISHER, Circuit Judges.
(Filed: December 14, 2021)
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OPINION*
______________
*
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
SHWARTZ, Circuit Judge.
Richard Abbott, an attorney licensed in Delaware, sued the five Justices of the
Delaware Supreme Court and two attorneys from the Delaware Office of Disciplinary
Counsel (“ODC”), an arm of the Supreme Court, claiming that the disciplinary
investigation into his conduct violated state and federal law. He seeks solely declaratory
and injunctive relief against the ongoing disciplinary proceeding. The District Court
properly dismissed the case based on Younger abstention and so we will affirm.
I
A
The Delaware Supreme Court regulates the legal profession in Delaware. Through
its rules, the Court has established several entities to oversee the investigation and
prosecution of Delaware Bar members who are alleged to have violated the ethics rules
and it appoints individuals to handle these duties. Del. Sup. Ct. R. 62(a), 62(c), 64(a).
One of the entities is ODC. ODC screens and evaluates all complaints and conducts
investigations. Del. Sup. Ct. R. 64(e)(1-3). If ODC determines that formal proceedings
are necessary, it presents the matter to the Preliminary Review Committee (“PRC”) of the
Board on Professional Responsibility (“Board”). If PRC approves the institution of
formal charges, then the Board holds formal proceedings and produces a final report for
the Court. The Court then determines whether the charges have been proven and what
2
discipline, if any, is warranted. Del. Sup. Ct. R. 63.
B
Abbott has been the subject of ODC disciplinary investigations and proceedings.
Most recently, Abbott received a notice from ODC that it planned to present five charges
against him to the PRC and would recommend the filing of a petition for discipline with
the Board. After receiving this notice, but before ODC presented charges to the PRC,
Abbott filed this lawsuit. Shortly thereafter, the PRC approved ODC’s petition to bring
formal charges against Abbott.
Defendants moved to dismiss Abbott’s complaint under Fed. R. Civ. P. 12(b)(6),
arguing, among other things, that the District Court should abstain from hearing his
claims under Younger v. Harris, 401 U.S. 37 (1971). Over Abbott’s objections, the
District Court adopted the Magistrate Judge’s Report & Recommendation that Younger
abstention was warranted and dismissed the complaint.1
Abbott appeals.
II2
A
Federal courts should decline to exercise jurisdiction under the Younger abstention
1
The District Court also declined to grant a stay in lieu of dismissal as it found the
Defendants would be immune from suit.
2
The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367. We have
jurisdiction pursuant to 28 U.S.C. § 1291. Dismissals under Younger are subject to de
novo review. PDX North, Inc. v. Comm’r N.J. Dep’t of Labor & Workforce Dev., 978
3
doctrine in deference to ongoing state proceedings “in only a narrow range of cases.”
ACRA Turf Club, LLC v. Zanzuccki, 748 F.3d 127, 136 (3d Cir. 2014). Such cases fall
into three categories: (1) state criminal prosecutions, (2) state civil enforcement
proceedings, or (3) state civil proceedings involving orders in furtherance of the state
courts’ judicial function. Id. at 138 (citing Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69,
73 (2013)). With respect to this final category, in Middlesex County Ethics Committee v.
Garden State Bar Association, 457 U.S. 423 (1982), the Supreme Court held that attorney
disciplinary proceedings are “of a character to warrant federal-court deference” because
they implicate vital state interests. Id. at 434. Abbott challenges his ongoing attorney
disciplinary proceedings in Delaware. Accordingly, his case falls into the narrow range
of cases where Younger abstention may be appropriate.
Concluding this threshold requirement has been met, we next consider whether:
(1) there are “ongoing judicial proceeding[s]”; (2) those “proceedings implicate important
state interests”; and (3) there is “an adequate opportunity in the state proceeding to raise
[federal] challenges.” PDX North, Inc. v. Comm’r N.J. Dep’t of Labor & Workforce
Dev., 978 F.3d 871, 883 (3d Cir. 2020) (citation omitted). Abbott does not dispute that
Delaware’s attorney disciplinary proceedings implicate important state interests.
Therefore, we will address only the first and third factors.
F.3d 871, 881 n.11 (3d Cir. 2020) (detailing the shift to de novo review for Younger
abstention in the Third Circuit).
4
1
We must first determine whether Delaware’s disciplinary proceeding against
Abbott constitutes an “ongoing judicial proceeding.” Abbott argues that, because he filed
his suit before formal charges were brought, there were no ongoing judicial proceedings,
so his case is unlike Middlesex. Middlesex, however, is directly on point. First, like the
New Jersey disciplinary system in Middlesex, the Delaware Supreme Court possesses
ultimate authority over each stage of the proceedings, from complaint to final resolution,
which either the Court or an arm of the Court carries out. See In re Pelletier, 84 A.3d
960, 962 (Del. 2014) (“This Court has the ‘inherent and exclusive authority to discipline
members of the Delaware Bar.’” (quoting In re Abbott, 925 A.2d 482, 484 (Del. 2007)));
see also In re Infotechnology, Inc., 582 A.2d 215, 218 (Del. 1990) (noting that the court
“alone[] has sole responsibility for . . . enforcing the Rules of Professional Conduct”);
Del. Law. Disc. P. R. 1(a) (noting that the court is responsible for “dispos[ing] of
individual cases of lawyer discipline” and “administer[ing] the lawyer disciplinary
system”); Del. Sup. Ct. R. 64 cmt. (recognizing ODC as an “independent arm” of the
court involved in regulating the conduct of lawyers and the practice of law).
Second, Middlesex arose in a similar procedural posture to this case. Like Abbott,
an ethics complaint had been filed against the attorney in Middlesex before he decided to
file suit in federal court. 475 U.S. at 428-29. Although Abbott is correct that formal
charges were already brought against the attorney in Middlesex and Abbott was informed
5
only that charges would be brought, the filing of formal charges is not the start of the
judicial proceedings. Rather, the filing of an ethics complaint itself was “in effect a filing
with the [state’s] Supreme Court” of a case that its designee thereafter investigates and
the state supreme court adjudicates. Id. at 433 (quoting Toft v. Ketchum, 113 A.2d 671,
674 (1955)). Thus, “[f]rom the very beginning[,] a disciplinary proceeding is judicial in
nature.” Id. at 433.
Abbott similarly filed his suit after an ethics complaint was filed and after ODC
had conducted disciplinary investigations and proceedings and issued a notice of
impending disciplinary charges. Thus, Abbott’s argument that there were no ongoing
judicial proceedings because formal proceedings had not yet begun fails.
2
There was also an adequate opportunity in the Delaware disciplinary proceedings
for Abbott to raise his federal claims. When opposing Younger abstention, a federal
plaintiff bears the burden of demonstrating that “state procedural law barred presentation
of [his] claims.” Schall v. Joyce, 885 F.2d 101, 107 (3d Cir. 1989) (quoting Pennzoil Co.
v. Texaco, Inc., 481 U.S. 1, 14 (1987)). Abbott has not carried his burden. First, Rule 9
of the Delaware Lawyers’ Rules of Disciplinary Procedure does not bar an attorney from
raising constitutional or RICO claims. Rule 9(d)(2) provides only that, in formal
proceedings before the Board, an attorney shall serve an answer upon ODC within twenty
6
days of being served with a petition.3 Del. Law. Disc. P. R. 9(d)(2). Thus, Rule 9’s text
does not explicitly bar an attorney from filing counterclaims or otherwise raising federal
or state claims in attorney disciplinary proceedings. Second, ODC informed Abbott that
it would recommend filing a petition for discipline and that he could send a “written
statement” to ODC for submission to the PRC. A-95. Nothing in the record shows
Abbott attempted to raise any federal or state claims in the statement he was invited to
provide. A party may not “escape Younger abstention by failing to assert [his] state
remedies in a timely manner.” Pennzoil, 481 U.S. at 16 n.16. Furthermore, when a
litigant has not attempted to present his federal claims in the related state-court
proceedings, we presume that state procedures will afford an adequate remedy “in the
absence of unambiguous authority to the contrary.” Id. at 15. Abbott has presented no
such authority.
This failure is unsurprising. As the Supreme Court observed in Middlesex,
because the New Jersey Supreme Court had ultimate authority over disciplinary
3
Notably, the Delaware Superior Court Rules of Civil Procedure do not separately
address the filing of counterclaims, but Rules 7(a) and 8(a) of those rules set forth
permissible pleadings, including answers with cross-claims and replies to counterclaims.
Del. Super. Ct. R. Civ. P. 7(a), 8(a). Given that the civil procedure rules refer to answers
without specifically referring to counterclaims, yet permits replies to them, it is fair to
infer that use of the word “answer” envisions the use of counterclaims. This inference is
strengthened by Rule 8(a)’s mention of counterclaims as a permissible pleading form. It
is therefore reasonable to infer that use of the word “answer” in Rule 9 of the disciplinary
rules carries a similar meaning. In any event, even if what constitutes an “answer” under
Rule 9 is ambiguous, “[w]e cannot assume that state judges will interpret ambiguities in
state procedural law to bar presentation of federal claims.” Pennzoil, 481 U.S. at 15.
7
procedures and the ethics committees were arms of the court, it would be “difficult” to
conclude that there was no adequate opportunity to raise constitutional claims in attorney
disciplinary proceedings. See 457 U.S. at 435-36 (noting the “unique relationship” of the
court and the committees). Similarly, Abbott has not shown in this case that the
Delaware Supreme Court lacks authority to consider constitutional or statutory federal
claims. See Tafflin v. Levitt, 493 U.S. 455, 458 (1990) (recognizing concurrent federal
and state jurisdiction over RICO claims). Because Abbott has failed to show that there is
any procedural bar prohibiting him from raising counterclaims in the attorney
disciplinary proceedings, we conclude that those proceedings present an adequate
opportunity for Abbott to raise his claims.4
For these reasons, the District Court correctly abstained under Younger.
B
Furthermore, none of the Younger exceptions apply. Abstention may be
inappropriate where there is a showing of bad faith or harassment. Middlesex, 457 U.S.
at 435. A prosecution or proceeding is conducted in “bad faith” for abstention purposes
when it is brought “without hope” of success. Perez v. Ledesma, 401 U.S. 82, 85 (1971).
The bad faith exception may also be implicated when a plaintiff shows that the state
4
Abbott also asserts that his inability to obtain the discovery he seeks during the
attorney disciplinary proceedings impedes his ability to fully pursue his claims. Pennzoil,
however, requires only an inquiry into whether state law bars the assertion of claims, 481
U.S. at 14, and the Delaware Supreme Court can address his complaints about the
discovery orders.
8
proceeding was “initiated with and is animated by a retaliatory, harassing, or other
illegitimate motive.” Diamond “D” Constr. Corp. v. McGowan, 282 F.3d 191, 199 (2d
Cir. 2002). The plaintiff bears the burden of showing bad faith or harassment. Schall,
885 F.2d at 106.
Abbott has not demonstrated that ODC instituted the proceedings without any
expectation of success. ODC is proceeding based upon a complaint from the Vice
Chancellor of the Delaware Court of Chancery arising from Abbott’s alleged conduct in a
case before that court. His assertion of bad faith and harassment, premised on his view
that ODC is engaging in a “fishing expedition” and his past encounters with ODC, A-37,
does not show that ODC’s case has no hope of success. Moreover, Abbott’s
disagreement with the merits of the disciplinary action does not mean it was pursued in
bad faith. Furthermore, he has adduced no evidence that the current proceedings were
initiated to harass him. As a result, Abbott’s assertions do not show bad faith or
harassment.5
Abbott has also failed to identify any extraordinary circumstances that counsel
against applying Younger abstention. Extraordinary circumstances exist if the state
proceeding “present[s] a significant and immediate potential for irreparable harm to the
5
Abbott asserts that ODC’s charge of engaging in undignified and discourteous
conduct was in retaliation for private and privileged statements he made in a pro se
capacity. Because the record does not reveal the substance of his comments, we cannot
determine whether the speech was protected or the charge is brought in bad faith or stems
from an improper motive.
9
federal interests asserted.” Schall, 885 F.2d at 106; see also Zahl v. Harper, 282 F.3d
204, 210 (3d Cir. 2002) (recognizing that comity is not strained when a federal court
“cuts off state proceedings that entrench upon the federal domain” (quotation marks and
citations omitted)). In these circumstances, the appropriateness of abstention is
predicated solely “upon the significance of the federal interest invoked.” Zahl, 282 F.3d
at 210 (quotation marks and citation omitted).
Abbott has not identified any federal interest that is jeopardized by the Delaware
disciplinary proceedings. Moreover, it is undisputed that Delaware has a substantial
interest in regulating the conduct of members of the Delaware Bar. See District of
Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 n.16 (1983) (noting state’s
interest in regulating the legal professional “is especially great since lawyers are essential
to the primary governmental function of administering justice” (quoting Goldfarb v.
Virginia State Bar, 421 U.S. 773, 792 (1975))); see also Middlesex, 457 U.S. at 434(observing state has an “extremely important interest in maintaining and assuring the
professional conduct of the attorneys it licenses”). Given that there is a substantial state
interest and Abbott has failed to identify any federal interest at risk, there are no
extraordinary circumstances that make Younger abstention inappropriate here.
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III
For the foregoing reasons, we will affirm the order dismissing the complaint based
upon Younger.6
6
Because Abbott does not address the District Court’s decision not to stay the case
in his opening brief, he has forfeited any challenge to that ruling. See In re Wettach, 811
F.3d 99, 115 (3d Cir. 2016) (holding that the failure to develop arguments in an opening
brief constitutes forfeiture of those issues).
11