William Pangman v. Keith Sellen ( 2020 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 18, 2020
Decided December 1, 2020
Before
DIANE S. SYKES, Chief Judge
MICHAEL S. KANNE, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 20-1634
WILLIAM A. PANGMAN, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of Wisconsin.
v. No. 19-C-1615
KEITH L. SELLEN and LORRY ELDIEN, Lynn Adelman,
Defendants-Appellees. Judge.
ORDER
William Pangman sued two employees of Wisconsin’s Office of Lawyer
Regulation (“OLR”) under 42 U.S.C. § 1983 for alleged violations of his constitutional
rights that occurred during an investigation into whether to reinstate his license to
practice law. Shortly after Pangman filed this suit, the Wisconsin Supreme Court denied
his petition for reinstatement. The district court dismissed the complaint for failure to
state a claim upon which relief could be granted. Because Pangman filed his suit before
the state-court judgment was entered, the Rooker-Feldman doctrine does not deprive this
court of jurisdiction. But the judge correctly determined that Pangman did not state a
claim, so we affirm.
No. 20-1634 Page 2
In 1998 the Wisconsin Supreme Court suspended Pangman from practicing law
for both administrative and disciplinary reasons. Pangman’s conduct in his postdivorce
litigation resulted in a disciplinary suspension starting in April 1998. In re Disciplinary
Proceedings Against Pangman, 574 N.W 2d 232 (Wis. 1998). The suspension was for
90 days, but Pangman’s license would remain inactive until he paid the costs of the
proceeding. Id. at 241. In June of the same year, the court suspended him for not
complying with Wisconsin’s mandatory continuing legal education requirements. His
license was suspended again in October for failing to pay bar dues.
More than 20 years later, Pangman (who now resides primarily in the Dominican
Republic) petitioned for reinstatement from all three suspensions. Pangman’s petition
was subject to the rules promulgated by the Wisconsin Supreme Court. When a
suspended attorney has not been reinstated after three years, the attorney must file a
petition for reinstatement with the Wisconsin Supreme Court. See WIS. S. CT.
R. 22.28(1)(c)–(d). The court refers the petition to the OLR to investigate the petitioner’s
eligibility for reinstatement and recommend whether the court should grant or deny the
petition. See id. R. 10.03(6m)(b); 31.11(1m)(a), (c). The OLR investigation includes
whether the petitioner has “good moral character and the fitness to practice law” in
Wisconsin. Polk v. Office of Lawyer Regulation, 732 N.W.2d 419, 421 (Wis. 2007). The OLR
must submit a recommendation to the court within 90 days of receiving the petition.
See WIS. S. CT. R. 31.11(1m)(c).
Several days after receiving Pangman’s petition for reinstatement on July 19,
2019, the OLR opened an investigation. Later that month on the OLR’s
recommendation, the Wisconsin Supreme Court reinstated Pangman from his
disciplinary suspension after determining that he had been making regular payments
toward the costs of the proceeding, but his administrative suspensions remained in
effect. Over the next few months, the OLR contacted Pangman several times for further
information omitted from his petition. He provided some, but he also argued that the
OLR was engaged in “unadopted rule usurpation” and the investigator showed
“sentiments of potentially retaliatory resentment” in her questions. Pangman urged the
investigator to narrow the scope of the inquiry because it extended beyond the
investigative power delegated by the court. On October 16 (the day before the 90-day
deadline for submission of the OLR report), the OLR sent a letter to the court (copying
Pangman) explaining that because of its back and forth with Pangman about additional
information, it could not complete its investigation within the deadline but would
submit a recommendation no later than December 1.
No. 20-1634 Page 3
Pangman then filed this suit in the Eastern District of Wisconsin on November 4,
2019, against Keith Sellen, the Director of the OLR, and Lorry Eldien, the investigator.
Pangman alleged that they deprived him of substantive due process by withholding his
law license and of procedural due process by failing to provide proper notice and a
hearing or to submit a report within the 90-day time frame. He also asserted that the
OLR employees violated the Equal Protection Clause under a class-of-one theory by
penalizing Pangman for “conduct for which other attorneys enjoy no such
impediment.” Finally, Pangman asserted that the OLR’s role in the attorney
reinstatement process is a constitutionally impermissible violation of separation of
powers. Pangman sought a court order requiring the OLR to recommend reinstatement.
He also requested damages incurred because of the alleged violations, such as loss of
potential income during the investigation. The defendants quickly moved to dismiss the
complaint.
Three weeks after Pangman filed suit, the OLR filed its recommendation against
reinstating Pangman with the Wisconsin Supreme Court. The report articulated
multiple concerns about his activities over the past 20 years that raised questions about
his moral character and fitness to practice law. To give a few examples: The report
explained that Pangman had criminal charges filed against him in 2004 for eight counts
of failing to pay child support that resulted in a bench warrant when he did not show
up for court. It also expressed concern about how Pangman had been supporting
himself for two decades; he claimed involvement in different capacities with over
200 companies, but he would not elaborate on the dates of his involvement or what
positions he held. The report explained Pangman had unsatisfied tax warrants in
several counties in Wisconsin and that he has also not paid United States taxes while
residing in the Dominican Republic. Pangman did not file a response, and on
February 11, 2020, the Wisconsin Supreme Court denied his petition for reinstatement.
The next month the district court dismissed Pangman’s complaint for failure to
state a claim. The judge concluded that neither his due-process claim nor his equal-
protection claim could survive the defendants’ motion to dismiss. Assuming without
deciding that Pangman had a property or liberty interest in the reinstatement of his law
license, the judge determined that the OLR did not deprive him of any interest because
its role is purely investigatory. The judge also concluded that the equal-protection
challenge could not proceed because Pangman did not identify what alleged conduct
was discriminatory. He explained that although he would ordinarily grant leave to
amend, Pangman’s many filings made it clear he had no viable claim, so amendment
would be futile.
No. 20-1634 Page 4
On appeal Pangman argues that the judge erred by dismissing his case because
he pleaded valid § 1983 claims for due-process violations, an equal-protection class-of-
one claim, and a separation-of-powers claim.
First, we assure that these claims are not jurisdictionally barred by the
Rooker-Feldman doctrine as an attempt to challenge a state-court judgment. See Rooker v.
Fid. Tr. Co., 263 U.S. 413 (1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983). At
first glance the doctrine seems applicable; indeed, as the defendants point out, the case
is quite like Feldman. Although Pangman’s arguments focus on the OLR’s procedures
rather than directly challenging the Wisconsin Supreme Court’s judgment, the primary
wrong Pangman wishes to redress is the court’s refusal to reinstate his law license.
Attempts to challenge a final judgment masquerading as attempts to challenge
procedures are jurisdictionally barred. See Jakupovic v. Curran, 850 F.3d 898, 903 (7th Cir.
2017); Kelley v. Med-1 Sols., LLC, 548 F.3d 600, 605 (7th Cir. 2008).
Yet Rooker-Feldman does not apply because Pangman filed his suit before the
Wisconsin Supreme Court issued its judgment. As the Supreme Court has explained,
the Rooker-Feldman doctrine applies only to suits by state-court losers, whose injuries
were caused by state-court judgments “rendered before the district court proceedings
commenced.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).
Here, Pangman filed the complaint in federal court on November 4, 2019, before the
Wisconsin Supreme Court denied his petition for reinstatement on February 11, 2020,
and even before the OLR submitted its recommendation to the court on November 29,
2019. Although Pangman’s complaint seemed to anticipate the court’s adverse ruling,
he was not aggrieved by any judgment at the time he sued. And the Supreme Court has
made clear that the entry of a state-court judgment after a federal lawsuit has
commenced also does not trigger a jurisdictional bar. See id. at 292.
Because we have jurisdiction, we turn to Pangman’s challenge to the dismissal of
his complaint, a decision we review de novo, accepting his factual allegations as true
and drawing reasonable inferences in his favor. Tucker v. City of Chicago, 907 F.3d 487,
491 (7th Cir. 2018). Pangman first contends that he stated a procedural due-process
claim against the defendants. He needed to allege that the defendants deprived him of a
valid liberty or property interest without adhering to the basic procedural obligations
required by the Due Process Clause. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542
(1985); Black Earth Meat Mkt., LLC v. Village of Black Earth, 834 F.3d 841, 848–49 (7th Cir.
2016). The district court assumed that Pangman had a property interest in his right to
practice law. State law dictates whether a professional license is property for purposes
No. 20-1634 Page 5
of federal due process. Babchuk v. Ind. Univ. Health, Inc., 809 F.3d 966, 969 (7th Cir. 2016).
Although the Wisconsin Supreme Court has explained that a candidate not admitted to
the bar has no liberty or property interest in employment in the legal profession, see In
re Martin, 510 N.W.2d 687, 692–93 (Wis. 1994), it is not clear whether this applies to the
reinstatement of a law license.
Regardless, even if Pangman had a protected interest in reinstatement, the OLR
defendants did not—and could not—deprive him of that interest. For liability to exist
under § 1983, an individual must have “personal involvement in the alleged
constitutional deprivation.” Colbert v. City of Chicago, 851 F.3d 649, 657 (7th Cir. 2017)
(quoting Minix v. Canarecci, 597 F.3d 824, 833 (7th Cir. 2010)). Pangman asserts that the
OLR employees are personally involved because they failed to conduct a timely
investigation, would not provide him with notice or a hearing, and “refus[ed] to lift the
suspension.” But the OLR investigates reinstatement petitions and provides a
recommendation to the Wisconsin Supreme Court. See WIS. S. CT. R. 31.11(1m)(c). The
employees of the OLR have no power to grant or deny Pangman’s petition. See id.R. 21.09(1), 31.11(1m)(a). The OLR’s failure to submit the report within 90 days as
required by the Wisconsin Supreme Court also did not violate Pangman’s federal due-
process rights. The Constitution “does not enforce compliance with state procedural
rules.” Manley v. Law, 889 F.3d 885, 893 (7th Cir. 2018). Moreover, Pangman himself
slowed the process: the OLR explained that it would be several weeks late submitting
the report because of difficulty communicating with and gathering additional
information from Pangman. Finally, from the complaint it is clear that Pangman
received the cornerstones of due process, including notice of the proceedings (he
initiated them) and an opportunity to be heard. See Mathews v. Eldridge, 424 U.S. 319, 333
(1976). But he failed to engage fully with the OLR investigation and did not respond to
its filing with the Wisconsin Supreme Court before the court denied his petition.
Pangman asserts that the defendants also violated his substantive due-process
right (a theory the district court did not address), but this claim cannot proceed either.
Substantive due process is very limited in scope and protects against “only the most
egregious and outrageous government action.” Campos v. County of Cook, 932 F.3d 972,
975 (7th Cir. 2019). To state a substantive due-process claim, a plaintiff must allege that
the government abused its power in a manner that is “so arbitrary and oppressive that
it shocks the conscience.” Catinella v. County of Cook, 881 F.3d 514, 519 (7th Cir. 2018).
Nothing in Pangman’s complaint about the actions of the OLR comes remotely close to
shocking the conscience. Rather, the employees requested additional relevant
No. 20-1634 Page 6
information and then delivered a report and recommendation to the Wisconsin
Supreme Court, as state law requires. See WIS. S. CT. R. 10.03(6m)(b); 31.11(1m)(a), (c).
Pangman also argues that he stated an equal-protection claim because the OLR
discriminated against him as a “class of one.” To survive a motion to dismiss on a
class-of-one claim, a plaintiff must allege that he was “intentionally treated differently
from others similarly situated and that there is no rational basis for the difference in
treatment.” D.B. ex rel. Kurtis B. v. Kopp, 725 F.3d 681, 685–86 (7th Cir. 2013) (quoting
Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). Here, even if the OLR did treat
Pangman differently than similarly situated individuals by asking more follow-up
questions, his own complaint reveals the rational basis for doing so. See Miller v. City of
Monona, 784 F.3d 1113, 1121 (7th Cir. 2015). Pangman explained that he had been unable
to provide documentation about his financial and employment history that other
individuals routinely provide to the OLR. The Wisconsin Supreme Court has explained
that employment during a suspension is relevant to investigating a petition for
reinstatement, see In re Disciplinary Proceedings against Riley, 882 N.W.2d 820, 832–33
(Wis. 2016), so the OLR had a rational basis for asking Pangman for more information.
Pangman also asserts he stated a claim for a violation of “separation of powers.”
But the federal doctrine of separation of powers is irrelevant. And the “Constitution
does not prescribe any particular separation of powers, or other internal structure, of
state government.” Pittman v. Chi. Bd. of Educ., 64 F.3d 1098, 1102 (7th Cir. 1995).
Finally, Pangman asserts that the district court erred by not granting his motion
for reinstatement to the bar of the Eastern District of Wisconsin. But the judge properly
refrained from acting on this request. As the judge noted at the hearing, federal bar
admission is an administrative process determined by the Clerk of Court, not a judge.
E.D. WIS. LOCAL R. 83(c)(2). The Eastern District of Wisconsin imposes reciprocal
discipline on a lawyer who is suspended from practice by the highest court in a state
where the lawyer is licensed, see id., but that, too, has nothing to do with this case,
which involves admission to the Wisconsin bar, see WIS. S. CT. R. 21.01-02.1
AFFIRMED
1
The attorney admission roll of the Eastern District of Wisconsin reflects that
Pangman is suspended, see https://ecf.wied.uscourts.gov/cgi-bin/BarLookup.pl (last
visited Nov. 18, 2020), but he has not informed us whether he ever filed a request for
reinstatement. Given the reciprocal discipline rule, it likely would not matter.