Dubuc v. Googasian

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Dubuc v. Mich. Board of No. 02-1897 ELECTRONIC CITATION: 2003 FED App. 0313P (6th Cir.) Law Examiners et al. File Name: 03a0313p.06 _________________ UNITED STATES COURT OF APPEALS COUNSEL FOR THE SIXTH CIRCUIT ARGUED: Robert D. Horvath, Troy, Michigan, for _________________ Appellant. Katherine C. Galvin, MICHIGAN DEPARTMENT OF ATTORNEY GENERAL, Lansing, DENNIS DUBUC, X Michigan, Thomas K. Byerley, Lansing, Michigan, for Plaintiff-Appellant, - Appellees. ON BRIEF: Robert D. Horvath, Troy, Michigan, - for Appellant. Margaret A. Nelson, MICHIGAN - No. 02-1897 DEPARTMENT OF ATTORNEY GENERAL, Lansing, v. - Michigan, Thomas K. Byerley, Lansing, Michigan, for > Appellees. , MICHIGAN BOARD OF LAW - EXAMINERS , GEORGE _________________ - GOOGASIAN , STATE BAR OF - OPINION MICHIGAN , and JOHN BERRY , - _________________ Defendants-Appellees. - - JULIA SMITH GIBBONS, Circuit Judge. Appellant N Dennis Dubuc brought this action against the Michigan Board Appeal from the United States District Court of Law Examiners (the Board); George Googasian, in his for the Eastern District of Michigan at Detroit. capacity as Chairperson of the Board;1 the State Bar of No. 02-71193—Bernard A. Friedman, District Judge. Michigan (the Bar); and John Berry, in his capacity as the Executive Director of the Bar. The Board denied Dubuc’s Argued: July 30, 2003 application for membership in the Michigan Bar because it found that he had failed to demonstrate that he was a person Decided and Filed: September 3, 2003 of good moral character. Dubuc seeks to reapply for membership in the Michigan Bar, and he filed this lawsuit Before: GILMAN and GIBBONS, Circuit Judges; claiming that the rules governing the time of his eligibility to JORDAN, District Judge.* 1 According to the Bo ard and Goo gasian’s brief, Goo gasian is no longer the chairperson or a member of the Board. Dubuc sued Googasian in his capacity as chairperson of the Board, and he states in his reply brief that, if there is a new chairperson, he will amend his complaint upon * remand. The p arties have submitted no evidence on this issue, and for The Honorab le Leon Jordan, United States District Judge for the purposes of this appeal we acc ept as true the comp laint’s allegations, Eastern District of Tennessee, sitting by designation. which name Googasian as the chairperson of the Board.

No. 02-1897 Dubuc v. Mich. Board of 3 4 Dubuc v. Mich. Board of No. 02-1897 Law Examiners et al. Law Examiners et al.

reapply are unconstitutional. He also claims that defendants against him. During a hearing on October 6, 1995, Dubuc unconstitutionally use First Amendment activity as grounds told Judge Burress that he had filed criminal charges against for denying applications for admission to the Bar. He seeks him for conspiracy, bribery, bribery attempt, and abuse of declaratory and injunctive relief allowing him to reapply process. In an affidavit he filed in support of his criminal immediately for admission to the Bar and prohibiting charges, Dubuc attested that Judge Burress was engaged in a defendants from considering First Amendment activity when “conspiracy to destroy [him],” obstruction of justice, abuse of considering applications for admission to the Bar. process, bribery, and attempted bribery. In an oral ruling, the district court sua sponte dismissed the Judge Burress ordered Dubuc to pay over $180,000 in case on immunity grounds, and Dubuc appeals. For the sanctions for violating several court orders, and after a bench following reasons, we affirm in part and reverse in part the trial, Judge Burress dismissed Dubuc’s lawsuit as frivolous. district court’s dismissal on immunity grounds and remand The Michigan Court of Appeals affirmed Judge Burress’s the case for further proceedings. decision to award sanctions and dismiss the lawsuit. Dubuc v. Green Oak Township, No. 191293, 1999 WL 33455145 I. BACKGROUND (Mich. Ct. App., Jan. 5, 1999). The Michigan Supreme Court denied Dubuc’s application for leave to appeal, 604 N.W.2d Dubuc graduated from an accredited law school, passed the 679 (Mich. 1999), and denied his subsequent motion to February 1998 Michigan Bar examination, and applied for reconsider, 609 N.W.2d 829 (Mich. 2000). In conjunction admission to the Michigan Bar. The Bar recommended to the with the denial of his motion to reconsider, Justice Corrigan, Board that his application be denied because it found that he joined by a majority of the other Michigan Supreme Court lacked good moral character, a statutory requirement for justices, issued a statement encouraging the trial court to admission. See M.C.L.A. § 600.934(1). Dubuc exercised his consider “extraordinary sanctions to deter [Dubuc] from right to challenge the Bar’s determination in a de novo continuing his vexatious tactics that have led to years of hearing in front of the Board. On June 9, 2000, the Board abusive litigation.” 609 N.W.2d at 829. Among many other issued an opinion denying Dubuc’s application. According to things, Justice Corrigan found that Dubuc had engaged in its opinion, the Board found that Dubuc had failed to prove abusive and frivolous tactics to delay the proceedings, that he was a person of good moral character in view of his including “naming the trial judge as a witness; seeking to failure to accept responsibility for his wrongful actions when depose the judge; accusing the judge of criminal conduct and representing himself in previous lawsuits. of conspiring with defense counsel; and threatening to file a complaint with the Judicial Tenure Commission against the According to his testimony in front of the Board, as judge.” Id. at 830. reflected in the Board’s opinion, Dubuc had been involved in approximately thirty-eight lawsuits in the twenty-five years Relying upon the Michigan Supreme Court’s decision preceding his Board hearing. He filed one of these lawsuits denying Dubuc’s motion to reconsider, the Board found that in Michigan’s Livingston County Circuit Court in 1992. In the issue of whether sanctions were appropriate against 1993, he moved to disqualify the presiding judge, Judge Dubuc had been decided against Dubuc and was no longer an Daniel Burress. During a hearing on September 27, 1995, issue for the Board to resolve. Dubuc’s attorney admitted to Dubuc accused Judge Burress of engaging in a conspiracy the Board that he knew of no facts that would support a

No. 02-1897 Dubuc v. Mich. Board of 5 6 Dubuc v. Mich. Board of No. 02-1897 Law Examiners et al. Law Examiners et al.

criminal charge against Judge Burress for bribery or while if he had not appealed to the Board he would have been conspiracy. Dubuc stated to the Board that he had not eligible to reapply in 2001. Dubuc claims that “punishing” intended to accuse Judge Burress of bribery, but that he meant applicants for exercising their right to challenge the Bar’s only to accuse Judge Burress of knowing that bribery was recommendation violates the First Amendment right to occurring and doing nothing to stop it. According to the petition the government and the Fourteenth Amendment Board, Dubuc refused to accept responsibility for falsely rights to substantive due process and equal protection. He accusing a judge of criminal actions and persisted in believing asserts that the RCSBM are facially unconstitutional in this that the issues in front of the Board were not his fault. In its regard. opinion, the Board found that his failure to accept responsibility for his actions prevented him from carrying his In support of his request for an injunction and declaratory burden to prove that he was fit to practice law. judgment prohibiting defendants from considering his alleged First Amendment activities in evaluating his second Dubuc sought leave to appeal the Board’s decision to the application, Dubuc advances two claims. First, he asserts that Michigan Supreme Court, which declined to grant review. “the practice of law is a profession of advocacy and attorney- Dubuc then filed a petition for a writ of certiorari with the advocacy is a quintessential First Amendment activity.” Supreme Court of the United States, which also declined to Therefore, he argues, Michigan’s attorney-licensing grant review. Dubuc then filed this lawsuit. procedure, which considers one’s “moral character,” is a prior restraint on a First Amendment activity and is facially In his complaint, filed pursuant to 42 U.S.C. § 1983, Dubuc unconstitutional because it lacks adequate procedural does not challenge the denial of his 1998 application for safeguards and is too vague. admission to the Michigan Bar. Instead, Dubuc seeks an injunction ordering defendants to allow him to reapply Second, he claims that in practice defendants consider an immediately for admission to the Michigan Bar. In addition, applicant’s prior First Amendment activity in determining he seeks declaratory and injunctive relief prohibiting whether an applicant has good moral character. He cites the defendants from using his alleged First Amendment activities denial of his first application as one of two “illustrations” that (criticizing a judge) as a basis for denying his second evidence the defendants’ practice. As his other example, he application. alleges that a law school graduate named Stephen Dean was told by a Bar official that he would be denied admission to the According to his complaint, the Michigan Supreme Court Bar because he picketed against his law school over Rules Concerning the State Bar of Michigan (RCSBM) classroom comments by one of his professors regarding the prohibit Dubuc from reapplying for five years from the date impeachment proceedings of former President Clinton. He the Board denied his initial application. Under the RCSBM, contends that denying one’s bar application based upon one’s according to Dubuc, if he had acquiesced in the Bar’s protected speech is unconstitutional. He therefore claims that recommendation and not exercised his right to a de novo the moral character requirement, as it is being applied, is hearing in front of the Board, he would have been eligible to unconstitutional. reapply three years after the Bar’s recommendation. Therefore, according to Dubuc, because he challenged the Along with his complaint, which he filed on March 28, Bar’s recommendation he must wait until 2005 to reapply, 2002, in the United States District Court for the Eastern

No. 02-1897 Dubuc v. Mich. Board of 7 8 Dubuc v. Mich. Board of No. 02-1897 Law Examiners et al. Law Examiners et al.

District of Michigan, Dubuc filed a motion for a preliminary immunity. The district court also stated that “the Rooker- injunction. Defendants filed answers to the complaint and Feldman doctrine probably would apply, too,” but the district moved to dismiss for improper venue or, in the alternative, to court explicitly declined to ground its ruling on this issue. transfer the case to the Western District of Michigan, where Having dismissed the action, the district court denied all the offices of the Board and Bar are located. The district pending motions as moot. court scheduled a hearing on Dubuc’s motion for a preliminary injunction and defendants’ motion relating to Dubuc appeals. He argues that the district court erred in venue for June 5, 2002. finding defendants immune and asserts that the Rooker- Feldman doctrine is inapplicable to bar this lawsuit. Before hearing argument or evidence with regard to the Furthermore, he urges this court to consider and grant his parties’ pending motions, the district court at the beginning of motion for a preliminary injunction. the hearing on June 5, 2002, asked the parties to address “the issue of immunity.” In their answers, defendants asserted two II. ANALYSIS claims of immunity. They all claimed immunity under the Eleventh Amendment, and the Bar and Berry claimed A. Eleventh Amendment immunity immunity under the RCSBM, which provide that the staff and committee members of the Bar and the Board are “absolutely The Eleventh Amendment provides: immune from suit for conduct arising out of the performance of their duties.” The Board and Googasian did not raise the The Judicial power of the United States shall not be RCSBM’s grant of immunity in their answer. construed to extend to any suit in law or equity, commenced or prosecuted against one of the United At the conclusion of the parties’ arguments, the district States by Citizens of another State, or by Citizens or court made an oral ruling dismissing the action “based upon Subjects of any Foreign State. the immunity argument.” The district court’s reasoning is unclear. The district court stated that “[t]here’s no reason for U.S. Const. amend. XI. Absent the state’s consent, the me to go into a lot of details.”2 In announcing its ruling, the judicial power of the United States also does not extend to district court referred to the RCSBM’s grant of “absolute suits against a state by that state’s own citizens, even though immunity” and cited two unpublished district court cases this limitation was not made explicit in the Eleventh dealing with the Eleventh Amendment, but the district court Amendment. Hans v. Louisiana, 134 U.S. 1, 13-15 (1890). did not distinguish between the two claims of immunity nor In addition to the states themselves, the Eleventh Amendment did it specify which defendant was entitled to which type of immunizes departments and agencies of the states. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984).

2 To determine whether an entity is a state department or This court, however, has observed that “[t]his reviewing court, and more importantly, the parties, are much better served when, as is the agency for purposes of the Eleventh Amendment, the primary custom in this circuit, the district court prepares a written opinion issue is whether the state would ultimately be liable for any explaining its ruling and the reasoning, factual and legal, in support, money judgment against the entity. Brotherton v. Cleveland, especially when the ruling disposes of the case in a final judgment.” Peck 173 F.3d 552, 560-61 (6th Cir. 1999). Courts, however, also v. Bridgeport Machines, Inc., 237 F.3d 614 , 617 (6th C ir. 200 1).

No. 02-1897 Dubuc v. Mich. Board of 9 10 Dubuc v. Mich. Board of No. 02-1897 Law Examiners et al. Law Examiners et al.

look to other factors, such as how state law defines the entity 101 (1984). The Supreme Court, however, recognized an and the degree of control the state maintains over the entity. important exception to this general rule in Ex parte Young, Id. at 561 (declining to decide whether these other factors are 209 U.S. 123 (1908), where it held that the Eleventh relevant to the inquiry). Amendment does not bar a lawsuit seeking an injunction against a state official prohibiting the state official from The parties have not submitted any evidence regarding enforcing a state statute that allegedly violates the United whether the State of Michigan would be ultimately States Constitution. “In determining whether the doctrine of responsible for any money judgment against the Board or the Ex parte Young avoids an Eleventh Amendment bar to suit, Bar. The other factors, however, weigh in favor of finding a court need only conduct a ‘straightforward inquiry into the Board and the Bar immune from this lawsuit. In whether [the] complaint alleges an ongoing violation of Michigan, for purposes of promulgating rules relating to Bar federal law and seeks relief properly characterized as membership and determining whether to grant or deny Bar prospective.’” Verizon Maryland, Inc. v. Public Service applications, the Board and the Bar are merely extensions of Commission of Maryland, 535 U.S. 635, 645 (2002) (quoting the Michigan Supreme Court. Michigan law provides that the Justice O’Connor’s concurring opinion in Idaho v. Coeur “Michigan Supreme Court has the power to provide for the d’Alene Tribe of Idaho, 521 U.S. 261, 296 (1997)). organization, government, and membership of the State Bar of Michigan, and to adopt rules and regulations concerning Dubuc’s complaint alleges an ongoing violation of federal . . . the investigation and examination of applicants for law and seeks relief properly characterized as prospective. He admission to the bar.” M.C.L.A. § 600.904. alleges that the Bar admission rules, facially and as currently applied, violate the United States Constitution, and he seeks Because they are arms of the Michigan Supreme Court for only injunctive and declaratory relief, not a money judgment all purposes relevant to this lawsuit, the Board and the Bar are or any other retrospective relief. Therefore, neither state agencies immune from this lawsuit under the Eleventh Googasian nor Berry is entitled to immunity under the Amendment. Kish v. Michigan State Bd. of Law Exam’rs, Eleventh Amendment pursuant to the “straightforward 999 F. Supp. 958, 964 (E.D. Mich. 1998) (finding that the inquiry” that applies to this issue. Verizon Maryland, 535 Board is a judicial agency of the state entitled to Eleventh U.S. at 645 (“Here Verizon sought injunctive and declaratory Amendment immunity); see also Thiel v. State Bar of relief . . . . The prayer for injunctive relief – that state officials Wisconsin, 94 F.3d 399, 401-02 (7th Cir. 1996) (holding that be restrained from enforcing an order in contravention of the State Bar of Wisconsin is a state agency entitled to controlling federal law – clearly satisfies our ‘straightforward Eleventh Amendment immunity). Therefore, we affirm the inquiry.’”); see also Roe # 2 v. Ogden, 253 F.3d 1225, 1233- district court’s dismissal of the claims against the Board and 34 (10th Cir. 2001) (holding that members of the Colorado the Bar. State Board of Law Examiners were not entitled to immunity under the Eleventh Amendment from a lawsuit challenging Defendants Googasian and Berry assert that as state bar admission rules). Importantly, determining whether the officials they are also immune from this lawsuit under the Ex parte Young doctrine applies does not involve an analysis Eleventh Amendment. In general, the Eleventh Amendment of the merits of a plaintiff’s claims. Verizon Maryland, 535 immunizes state officials from suit in federal court. U.S. at 646. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,

No. 02-1897 Dubuc v. Mich. Board of 11 12 Dubuc v. Mich. Board of No. 02-1897 Law Examiners et al. Law Examiners et al.

In support of their claim for immunity under the Eleventh the traditional “straightforward inquiry” advocated by Justice Amendment, Googasian and Berry cite Idaho v. Coeur O’Connor in her concurring opinion in Coeur d’Alene. d’Alene Tribe of Idaho, 521 U.S. 261 (1997). In Coeur Therefore, the individual defendants are not entitled to d’Alene, an Indian tribe sought a declaratory judgment Eleventh Amendment immunity from this suit. establishing its rights to quiet enjoyment over the submerged lands of Lake Coeur d’Alene, as well as prospective B. Immunity under the RCSBM injunctive relief against numerous Idaho state officials to prevent them from exercising the state’s asserted regulatory According to the RCSBM, “The State Bar staff, the jurisdiction over those submerged lands. Id. at 264. A members of the district and standing committees and the sharply divided Court held that the state officials were members and staff of the Board of Law Examiners are immune from this lawsuit under the Eleventh Amendment absolutely immune from suit for conduct arising out of the because the suit was the “functional equivalent of a quiet title performance of their duties.” The district court cited this action” and “if the Tribe were to prevail, Idaho’s sovereign provision in its oral ruling finding defendants immune from interest in its lands and waters would be affected in a degree this lawsuit. While this provision may immunize the fully as intrusive as almost any conceivable retroactive levy individual defendants from state law claims, no state law or upon funds in its Treasury.” Id. at 281, 287. “Under these rule can immunize anyone from liability for violating the particular and special circumstances, we find the Young United States Constitution. In Ex parte Young, the Supreme exception inapplicable.” Id. at 287. Court explained the supremacy of federal law over state law:

Googasian’s and Berry’s reliance on Coeur d’Alene is If the act which the state attorney general seeks to unavailing because the present lawsuit is not the functional enforce be a violation of the Federal Constitution, the equivalent of a quiet title action that implicates a state’s officer, in proceeding under such enactment, comes into sovereign interest in its lands or waters. In arguing for a conflict with the superior authority of that Constitution, broader interpretation of the holding in Coeur d’Alene, and he is in that case stripped of his official or Googasian and Berry mistakenly cite portions of Justice representative character and is subjected in his person to Kennedy’s principal opinion that were not joined by a the consequences of his individual conduct. The state majority of the Court. Justice Kennedy, in a section of his has no power to impart to him any immunity from principal opinion joined only by Chief Justice Rehnquist, responsibility to the supreme authority of the United advocated adopting a case-by-case balancing test that would States. narrow the circumstances under which the Ex Parte Young doctrine applies. Id. at 278. A majority of the Court, 209 U.S. 123, 159-60 (1908). however, explicitly rejected this approach. Id. at 296 (O'Connor, J., joined by Scalia and Thomas, JJ., concurring Therefore, the RCSBM do not immunize any defendant in part and concurring in judgment and advocating the from this § 1983 lawsuit alleging ongoing violations of retention of the traditional “straightforward inquiry” for federal law. determining when the Ex parte Young doctrine applies); id at 298-99 (Souter, J., dissenting, joined by Stevens, Ginsburg, and Breyer, JJ.). In Verizon Maryland, the Court reaffirmed

No. 02-1897 Dubuc v. Mich. Board of 13 14 Dubuc v. Mich. Board of No. 02-1897 Law Examiners et al. Law Examiners et al.

C. The Rooker-Feldman doctrine rule. Id. at 484-85 (quoting Doe v. Pringle, 550 F.2d 596, 599 (10th Cir. 1976)).3 The district court found that the Rooker-Feldman doctrine “probably” bars this lawsuit. We disagree. “The Rooker- In this lawsuit, Dubuc has explicitly not challenged the Feldman doctrine merely recognizes that 28 U.S.C. § 1331 is denial of his 1998 application. As Dubuc correctly a grant of original jurisdiction, and does not authorize district recognizes, his “prior licensing decision is history” and “[n]o courts to exercise appellate jurisdiction over state-court outcome in this lawsuit could or would reverse any prior state judgments.” Verizon Maryland, 535 U.S. at 644 n. 3. court judgment.” With this lawsuit, Dubuc launches a general attack on the constitutionality of the RCSBM’s rule that an In District of Columbia Court of Appeals v. Feldman, the unsuccessful applicant must wait longer before reapplying if two plaintiffs were denied permission to sit for the District of the applicant sought a de novo hearing from the Board Columbia bar exam because one had not graduated from law regarding his first application. Dubuc also seeks injunctive school and the other had not graduated from an accredited law and declaratory relief prohibiting defendants from using First school. 460 U.S. 462, 465, 470 (1983). Each plaintiff Amendment activities as a basis for denying admission to the unsuccessfully appealed the bar admission committee’s Bar. Because Dubuc does not seek to have the district court decision to the District of Columbia Court of Appeals. overturn the denial of his 1998 application, the Rooker- Instead of then seeking review from the Supreme Court, each Feldman doctrine is inapplicable to this lawsuit. See Edwards plaintiff filed a lawsuit in the United States District Court for v. Illinois Bd. of Admissions to Bar, 261 F.3d 723, 729 (7th the District of Columbia, seeking a declaration that the Cir. 2001) (“When the litigant is challenging the District of Columbia Court of Appeals’ decision was constitutionality of a rule that was applied to him, but is not unconstitutional and an injunction allowing him to sit for the asking to correct or revise the determination that he violated bar exam. Id. at 468-69. the rule, Rooker-Feldman is no obstacle to the maintenance of the suit.” (internal quotation marks omitted)). The Supreme Court determined that a district court has no jurisdiction to hear a challenge to a state court’s final decision The Seventh Circuit considered an analogous situation in in a bar admission matter. Id. at 482. The Court concluded Buckley v. Illinois Judicial Inquiry Bd., 997 F.2d 224 (7th Cir. that plaintiffs “should have sought review of the District of 1993). The Illinois Judicial Inquiry Board filed charges Columbia Court of Appeals’ judgments in this Court.” Id. against Robert Buckley, an Illinois state court justice, for The Court, however, determined that a district court does violating a state rule regulating the speech of candidates for have jurisdiction to hear “a general challenge to the judicial office. Id. at 226. The Illinois Courts Commission constitutionality” of a bar admission rule. Id. at 483. ruled that Buckley had violated the rule in his 1990 judicial Therefore, a district court cannot reverse a state court’s final campaign, and according to the Illinois state constitution, the decision to deny “a particular application for admission,” but a district court may resolve a general challenge to the future enforcement of an allegedly unconstitutional bar admission 3 In making its decision, the Supreme Court in Feldman expressly did not reach the question of whether the doctrine of res judicata forecloses plaintiffs’ generalized attacks on the constitutionality of the bar admission rules. Feldman, 460 U.S. at 487 -88.

No. 02-1897 Dubuc v. Mich. Board of 15 16 Dubuc v. Mich. Board of No. 02-1897 Law Examiners et al. Law Examiners et al.

commission’s decision was final because Buckley had no 1998 application or do anything else to correct or revise avenue for appeal within the state court system. Id. defendants’ denial of his 1998 application. Therefore, Rooker-Feldman does not bar his lawsuit. Buckley filed suit in federal district court, not seeking to overturn the final decision from the Illinois Courts In support of their Rooker-Feldman argument, defendants Commission, but instead seeking a declaratory judgment that cite Patmon v. Michigan Supreme Court, where this court the state rule regulating the speech of judicial candidates is held that the Rooker-Feldman doctrine barred an attorney’s unconstitutional. The Seventh Circuit held that: constitutional challenge to a state court’s decision to temporarily suspend him from the practice of law. 224 F.3d Justice Buckley’s challenge to the constitutionality of 504, 510 (6th Cir. 2000). This court’s decision in Patmon, Illinois Supreme Court Rule 67(B)(1)(c) does not entail however, is distinguishable from the present case because in a challenge to the ruling by the Illinois Courts Patmon the plaintiff sought to have the district court, among Commission that he violated the rule. It is true that if as other things, declare that his rights had been violated, restore in Leaf v. Supreme Court, 979 F.2d 589 (7th Cir.1992), his law license, and purge his disciplinary records. Id. at 507. Buckley were seeking not only to clear away the rule so Dubuc does not seek a declaration that defendants violated his that he could run in future judicial elections unimpeded rights with regard to the denial of his 1998 Bar application, by it but also to obtain relief against the discipline nor does he seek to have the denial of his 1998 application imposed upon him, he would be in effect appealing from overturned or purged. Instead, the relief he seeks relates only the Illinois Courts Commission’s judgment (though that to his rights with regard to reapplying for admission to the would be only a part of what he was doing), which Bar. Cf. Patmon, 224 F.3d at 506 n. 2 (“Although plaintiff’s Rooker-Feldman forbids him to do. But he is not asking suspension has run its course, and he was eligible as of us to expunge the disciplinary finding or do anything else April 6, 1998 to seek reinstatement, plaintiff has not done to correct or revise the Commission’s judgment. He is so.”). There has been no state court judgment with regard to not, in short, asking for any relief of the kind an appellant his rights to reapply for admission to the Bar, and, therefore, seeks – relief directed against a judgment. Of course that Dubuc is not seeking a review of any state court judgment in judgment, which by virtue of Rooker-Feldman Justice contravention of the Rooker-Feldman doctrine. Buckley cannot attack in this suit, might by principles of res judicata bar him from maintaining this suit. But res D. Other grounds upon which to affirm judicata is a defense, not a limitation on jurisdiction. This lawsuit was filed a little more than two months before Id. at 227. the district court dismissed it sua sponte on immunity grounds. Defendants had not filed a motion to dismiss on any As in Buckley, if Dubuc were seeking to obtain relief ground except venue, and the parties had not presented any against the denial of his 1998 application, instead of simply evidence to the district court. Defendants have not asserted seeking to clear away the allegedly unconstitutional rules so any other ground upon which to affirm the dismissal of this that he can reapply to the Bar in the future unimpeded by these rules, then Rooker-Feldman would apply. But Dubuc is not asking the district court to expunge the denial of his

No. 02-1897 Dubuc v. Mich. Board of 17 18 Dubuc v. Mich. Board of No. 02-1897 Law Examiners et al. Law Examiners et al.

lawsuit against the individual defendants.4 As a general rule, 1995). In determining whether a district court has abused its appellate courts do not consider any issue not passed upon discretion in denying a motion for a preliminary injunction, below. See Singleton v. Wulff, 428 U.S. 106, 119-20 (1976) this court reviews a district court’s factual findings for clear (criticizing the Eighth Circuit for addressing the merits of an error and its legal conclusions de novo. Id. Because the action that had been dismissed in an early stage of litigation district court dismissed as moot Dubuc’s motion for a solely on standing grounds). We therefore leave for preliminary injunction before hearing any evidence or resolution by the district court upon remand the issues of argument as to the merits of the motion, the district court claim and issue preclusion, constitutional standing, failure to made no factual or legal findings for this court to review. state a claim upon which relief can be granted, and any other Moreover, the district court did not exercise any discretion for basis upon which this lawsuit may potentially be dismissed in this court to review for abuse. We therefore leave for the whole or part. district court the initial resolution of Dubuc’s motion for a preliminary injunction. E. Preliminary injunction motion III. Dubuc urges this court to consider the merits of his preliminary injunction motion, which the district court denied For all these reasons, we affirm the district court’s as moot. Because we reverse the district court’s decision dismissal of the claims against the Board and the Bar, reverse dismissing the claims against the individual defendants on the district court’s dismissal of the claims against the immunity grounds, we vacate the district court’s denial of individual defendants on immunity grounds, vacate the Dubuc’s preliminary injunction motion. district court’s orders denying as moot Dubuc’s motion for a preliminary injunction and defendants’ motion regarding Absent extraordinary circumstances, however, the merits of venue, and remand for further proceedings consistent with a preliminary injunction motion should be heard and ruled on this opinion. by the district court first. This court generally reviews a district court’s decision to deny a motion for a preliminary injunction for an abuse of discretion. Performance Unlimited, Inc. v. Questar Publishers, Inc., 52 F.3d 1373, 1378 (6th Cir.

4 Dubuc argues in his brief against granting defendants judicial immunity in this case. The defendants, howe ver, did not assert jud icial immunity in their answers to the compla int or their briefs to this court. In any event, Dubuc is correct that judicial immunity does not apply here because defendants are not judges and do not act in a judicial capacity when enforcing the Bar admission rules that D ubuc challenges in this lawsuit. Sup reme C ourt of Virginia v. Co nsum ers Union of the United States, 446 U.S. 719 , 736 (1980) (holding that the chief justice of the Virginia Supreme Co urt was not immune from a lawsuit seeking declaratory and injunctive relief prohibiting the chief justice from enforcing an allegedly unconstitutional rule regulating attorneys).