MULLANE v. ALMON

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

JONATHAN MULLANE,

Plaintiff,

v. Case No. 4:21-cv-164-MW/MJF

JAMES ALMON and MICHELE

GAVAGNI,

Defendants.

/

REPORT AND RECOMMENDATION

This matter is before the court on Defendants’ motion to dismiss (Doc. 14).

Plaintiff filed a response in opposition (Doc. 20). Because Plaintiff’s claims for

injunctive and declaratory relief are barred by Younger v. Harris, 401 U.S. 37

(1971), and Defendants enjoy quasi-judicial immunity from Plaintiff’s claims for

damages, the undersigned recommends that Defendants’ motion to dismiss be

granted.1

1 The District Court referred this case to the undersigned to address preliminary

matters and to make recommendations regarding dispositive matters. See N.D. Fla.

Loc. R. 72.2; see also 28 U.S.C. § 636(b); Fed R. Civ. P. 72(b).

I. BACKGROUND

Plaintiff—a law-school graduate and applicant for admission to the Florida

Bar who has not yet taken the Florida Bar examination—commenced this section

1983 action against Defendants Michele A. Gavagni and James T. Almon. Gavagni

is the executive director, and Almon is the general counsel, of the Florida Board of

Bar Examiners (“the Board”). Plaintiff alleges that Gavagni and Almon violated his

constitutional rights because the Board has not approved Plaintiff’s application for

admission to the Florida Bar.2

A. The Process for Admission to the Florida Bar

Under the Florida Bar admission rules, law students seeking to apply for

admission to the Florida Bar may register with the Board by filing a “Registrant Bar

Application,” which later must be converted into a “Bar Application” by filing a

supplement to the “Registrant Bar Application.” Fla. Bar Admission R. 2-21.2. Upon

filing a “Bar Application” or a “Registrant Bar Application,” the Board initiates a

character and fitness investigation. Fla. Bar Admission R. 2-22. For a law student

filing a “Registrant Bar Application,” the Board will conduct “a basic character and

2 Plaintiff filed a nearly identical lawsuit against, inter alia, the Massachusetts Board

of Bar Examiners. In that case, the district court in Massachusetts granted the

defendants’ motion to dismiss based on Younger and quasi-judicial immunity.

Mullane v. Mass. Bd. of Bar Exam’rs, No. 20-cv-11382-DJC, 2021 WL 4132579, at

*3, 5 (D. Mass. Sept. 10, 2021).

fitness investigation.” Fla. Bar Admission R. 2-21.2. When the applicant files his

supplement to the “Registrant Bar Application,” the Board updates the character and

fitness investigation. Fla. Bar Admission R. 2-22.

An applicant is entitled to admission to the Florida Bar only if he passes the

bar examination and “meets the state’s ‘character and fitness’ requirements.”

Lawrence v. Schwiep, No. 4:05-cv-14-RH/WCS, 2005 WL 2491564, at *1 (N.D.

Fla. Oct. 7, 2005), aff’d sub nom. Lawrence v. Rigsby, 196 F. App’x 858 (11th Cir.

2006); Fla. Bar Admission R. 5-10. The purpose of the Board’s character and fitness

investigation “is to protect the public and safeguard the judicial system.” Fla. Bar

Admission R. 1-14.1. Under the Florida Bar admission rules, an applicant seeking

admission to the Florida Bar has the burden of establishing his “good moral

character, an adequate knowledge of the standards and ideals of the profession,” and

his fitness “to take the oath and to perform the obligations and responsibilities of an

attorney.” Fla. Bar Admission R. 2-12.

As a part of the character and fitness investigation, the Board reviews the

applicant’s background and may conduct an investigative hearing. Fla. Bar

Admission R. 3-22. Following any investigative hearing, the Board may determine

that the applicant “has established his . . . qualifications as to character and fitness”

or “file specifications charging the applicant . . . with matters that, if proven, would

preclude a favorable finding by the Board.” Fla. Bar Admission R. 3-22.5.

An applicant against whom the Board files specifications is entitled to a

formal hearing before the Board. Such an applicant has the right to representation,

to call witnesses and introduce exhibits, and to cross-examine witnesses. Fla. Bar

Admission R. 3-23.2. At any such hearing, the Board determines, “based on the

evidence presented at the hearing, whether the applicant has established his or her

character and fitness to practice law.” Lawrence, 2005 WL 2491564, at *1. If the

Board concludes that the applicant has failed to establish his good character and

fitness to practice law, the Board will recommend to the Florida Supreme Court that

the applicant or registrant be “denied admission to The Florida Bar.” Fla. Bar

Admission R. 3-23.6(d). In such cases, the Board must enter findings of facts and

conclusions of law. Id.

An applicant may request review by the Florida Supreme Court, “which may

independently review the record . . . and address all challenges to the Board’s

determination, including those based on the United States Constitution.” Lawrence,

2005 WL 2491564, at *1. The Board’s “[f]indings, conclusions, and

recommendations are final, if not appealed” to the Florida Supreme Court. Fla. Bar.

Admission R. 3-23.7.

B. Plaintiff’s Application to the Florida Bar

On February 16, 2018, Plaintiff submitted a petition for admission to the

Florida Bar. (Doc. 12 at ¶ 7). On September 7, 2018, Plaintiff filed a complaint which

initiated “non-public and confidential” administrative proceedings against a federal

judge. (Id. at ¶ 10). On or about April 12, 2018, the Board requested additional

information from Plaintiff. (Doc. 14-2). On October 4, 2018, the Board canceled

Plaintiff’s bar application because Plaintiff failed to respond within 90 days to the

Board’s requests for information relating to his education, employment, and

litigation activity. (Id.).

On April 9, 2020, Plaintiff sent a letter to the Board in which Plaintiff

indicated that he desired to take the July 2020 Florida bar examination. (Doc. 14-3).

On May 11, 2020, the Board responded to Plaintiff’s letter and informed Plaintiff

that he was required to provide to the Board documents or information. (Doc. 14-4).

On February 18, 2021, the Board served Plaintiff with a “notice to appear for

investigative hearing” (“Notice”).3 (Doc. 12 at ¶ 18; Doc. 14-1). In his amended

verified complaint, Plaintiff alleges that the “sole purpose” of the proposed

investigative hearing was to retaliate against Plaintiff for filing the complaint against

the federal judge. (Doc. 12 at ¶ 20). But the Notice identified twelve broad categories

3 Plaintiff mentioned this notice in his complaint and quoted portions of it in exhibits

attached to his complaint. (Doc. 3 at 10; Doc. 12 at ¶¶ 13, 18, 23). On a motion to

dismiss, a court may consider documents to which a plaintiff refers in his complaint

when those documents are central to the plaintiff’s claim. Brooks v. Blue Cross &

Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997); see Horsley v. Feldt,

304 F.3d 1125, 1134 (11th Cir. 2005).

of issues that the Board wished to address at the hearing. Among other things, the

Board stated that it desired to question Plaintiff about:

 Plaintiff’s “termination of . . . employment with Kempen & Co. USA”;

 Plaintiff’s “April 2015 claim for unemployment benefits and [his] receipt of

unemployment benefits”, “the New York State Department of Labor’s

August 2, 2016, Notice of Determination of Ineligibility or Disqualification

and any related appeals,” and “the status of any debts that [Plaintiff owed]

relating to unemployment benefits”;

 Plaintiff’s failure “to disclose on [his] April 16, 2020, Florida Bar

Application” his “debt to the New York State Department of labor arising

from the Notice of Determination of Ineligibility”;

 Plaintiff’s failure to disclose his internship with the U.S. Attorney’s Office;

and

 Plaintiff’s failure to disclose “the facts and circumstances, including the final

dispositions, of the citations for excessive speed and careless or negligent

driving that were issued to [Plaintiff] on November 23, 2018. This topic

includes the issuance of a bench warrant in connection with the citations.”

(Doc. 14-1). The Board also sought information relating to the facts underlying

Plaintiff’s complaint about the federal judge—but not the confidential administrative

proceedings themselves—as well as approximately ten other lawsuits that Plaintiff

failed to disclose on his April 16, 2020 Florida bar application. (Doc. 3-2; Doc. 14-

1).

On February 19, 2021, Plaintiff sent a letter to Defendants in which he stated

that at the hearing scheduled by the Board he could not address the administrative

proceedings that he had initiated against the federal judge. (Doc. 12 at ¶ 23). Plaintiff

also stated that he would not attend the hearing, and he asked the Board to withdraw

its request for Plaintiff’s attendance at the hearing. (Id. at ¶ 24).

Defendants refused to withdraw their request for an investigative hearing. (Id.

at ¶ 25; Doc. 12-3). In a letter, they informed Plaintiff:

The Florida Board of Bar Examiners received your letter dated

February 19, 2021, declining the board’s request for your appearance

at an investigating hearing. . . .

The board has requested your appearance at an investigative hearing

under rule 3-22 of the Rules of the Supreme Court Relating to

Admissions to the Bar. I direct your attention to rule 3-22.2 which

states:

3-22.2 - Response and Selection of a Preferred Hearing Date. An

applicant or registrant who has been requested to appear for an

investigative hearing must promptly respond to written notice from

the board and give notice of preferred dates. Failure to respond

within 60 days will result in termination of the application for non-

compliance as provided in rule 3-14.6.

Your options are to: (1) select a date for your investigation hearing

within 60 days of the Notice to Appear for Investigative Hearing; (2)

request an extension of a specified period of time to select an

investigate hearing date; or (3) withdraw your application until you are

ready to appear at the hearing and pursue admission to The Florida Bar.

If you withdraw, your file will be placed on inactive status.

A failure to select one of those options by April 19, 2021, will result in

the termination of your file under rule 3-14.6(a) and rule 3-22. If your

file is terminated, you will be required to reapply and pay all fees as if

you were applying for the first time.

(Doc. 12-3).

Plaintiff informed Defendants that he intended to file the instant civil action.

In response, Defendants assured Plaintiff that they would not terminate his

application “at this time to preserve the status quo.” (Doc. 14-5). Thus, despite three

years passing from the date Plaintiff submitted his application, Defendants have not

“admit[ed] and/or certif[ied] Plaintiff for admission.” (Doc. 12 at ¶ 32).

In this action filed pursuant to 42 U.S.C. § 1983, Plaintiff alleges that

Defendants Gavagni and Almon violated Plaintiff’s constitutional rights. Plaintiff’s

amended verified complaint characterizes his claims as follows:

 Count 1: “‘Facial’ and ‘As-Applied’ Constitutional Challenge to the ‘Rules

of the Supreme Court Relating to Admission to the Bar’ pursuant to the

Declaratory Judgment Act, 28 U.S.C. § 2201(a) and 42 U.S.C. § 1983.”

 Count 2: “Ex Parte Young Declaratory and Injunctive Relief.”

 Count 3: “First Amendment—Retaliation Express Right of Action under 42

U.S.C. § 1983.”

 Count 4: “Fourteenth Amendment—Procedural Due Process Express Right

of Action under 42 U.S.C. § 1983.”

 Count 5: “Supremacy Clause Implied Right of Action.”

For relief, Plaintiff requests that the District Court “[i]ssue a mandatory injunction

and order permanently barring and enjoining Defendants from further engaging in

such unlawful conduct”; declaratory relief; and actual, compensatory, and punitive

damages. (Doc. 12 at 20-21). Plaintiff seeks monetary damages against Defendants

only in their individual capacities. (Id. at 21).

II. STANDARD

Motions to dismiss for failure to state a claim are governed by Rule 12(b)(6)

of the Federal Rules of Civil Procedure. To survive a motion to dismiss, “a complaint

must contain sufficient factual matter, accepted as true, to state a claim to relief that

is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation and

citation omitted); Urquilla-Diaz v. Kaplan Univ., 780 F.3d 1039, 1051 (11th Cir.

2015).

A claim is plausible on its face where “the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Iqbal, 556 U.S. at 678 (citation omitted). Plausibility means

“more than a sheer possibility that a defendant has acted unlawfully.” Id. “Where a

complaint pleads facts that are merely consistent with a defendant’s liability, it stops

short of the line between possibility and plausibility of entitlement to

relief.” Id. (quotation and citation omitted).

The determination of whether a complaint states a plausible claim for relief is

“a context-specific task that requires the reviewing court to draw on its judicial

experience and common sense.” Id. at 679 (citation omitted). The pleader is not

entitled to relief “where the well-pleaded facts do not permit the court to infer more

than the mere possibility of misconduct.” Id. (citing Fed. R. Civ. P. 8(a)(2)). Bare

assertions that amount to nothing more than a “formulaic recitation of the elements”

of a claim “are conclusory and not entitled to be assumed true.” Id. at 681 (citation

omitted). Additionally, the court may dismiss a claim when the allegations of the

complaint show that an affirmative defense—such as a defendant’s immunity from

suit—bars recovery on the claim. Sibley v. Lando, 437 F.3d 1067, 1070 n.2 (11th

Cir. 2005).

III. DISCUSSION

A. Plaintiff’s Claims for Declaratory and Injunctive Relief Should Be

Dismissed Pursuant to the Younger Abstention Doctrine

Defendants argue that the District Court should dismiss Plaintiff’s claims for

injunctive and declaratory relief based on the abstention doctrine articulated in

Younger v. Harris, 401 U.S. 37 (1971). (Doc. 14 at 9, 16).

In Younger, the Supreme Court held that a federal court should not enjoin a

pending state criminal proceeding unless an injunction is necessary to prevent great

and immediate irreparable injury.4 401 U.S. at 53-54. As the Supreme Court stated:

“[T]he normal thing to do when federal courts are asked to enjoin pending

proceedings in state courts is not to issue such injunctions.” Id. at 45. The Supreme

Court’s Younger decision was based on a strong federal policy against federal-court

interference with pending state judicial proceedings. Id. at 44 (“[T]he National

Government will fare best if the States and their institutions are left free to perform

their separate functions in their separate ways.”); Green v. Jefferson Cnty. Comm’n,

563 F.3d 1243, 1250 (11th Cir. 2009). The Younger Court noted that abstention was

necessary to afford “proper respect for state functions” and legitimate state interests.

Younger, 401 U.S. at 44.

The Supreme Court subsequently extended the rationale of Younger to civil

and administrative proceedings that involve important state interests. See, e.g., Ohio

C.R. Comm’n v. Dayton Christian Schs., Inc., 477 U.S. 619, 627 (1986); Middlesex

Cnty. Ethics Comm’n v. Garden State Bar Ass’n, 457 U.S. 423, 431 (1982). In such

cases, by “abstaining from exercise of their jurisdiction, the federal courts promote

the value of comity between the states and the federal government and avoid

4 Younger also applies to “declaratory judgments that would effectively enjoin state

proceedings.” Old Republican Union Ins. Co. v. Tillis Trucking Co., 124 F.3d 1258,

1261 (11th Cir. 1997) (citing Samuels v. Mackell, 401 U.S. 66, 73 (1971)); see

Huffman v. Pursue, Ltd., 420 U.S. 592, 602 n.16 (1975); Sundy v. Friendship

Pavilion Acquisition Co., 807 F. App’x 977, 981 (11th Cir. 2020).

unnecessary determinations of federal constitutional questions.” Liedel v. Juv. Ct. of

Madison Cnty., Ala., 891 F.2d 1542, 1546 (11th Cir. 1990); First Ala. Bank of

Montgomery, N.A. v. Parsons Steel, Inc., 825 F.2d 1475, 1483 (11th Cir. 1987).

Younger abstention applies to “civil proceedings involving certain orders that

are uniquely in furtherance of the state courts’ ability to perform their judicial

functions.” New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350,

367-68 (1989). “Proceedings necessary for the vindication of important state policies

or for the functioning of the state judicial system also evidence the state’s substantial

interest in the litigation,” and federal courts should abstain from hearing federal

cases that would interfere with such proceedings. Middlesex Cnty., 457 U.S. at 432.

Consistent with Younger, the Supreme Court has held that federal courts generally

should abstain from hearing cases that involve state bar disciplinary proceedings that

are within the constitutionally prescribed jurisdiction of a State’s supreme court. Id.

In so holding, the Supreme Court recognized “the important state obligation

to regulate persons who are authorized to practice law.” Id. at 432-33. A State has

“an extremely important interest in maintaining and assuring the professional

conduct of the attorneys it licenses. States traditionally have exercised extensive

control over the professional conduct of attorneys.” Id. at 434. “The establishment

of criteria for determining the intellectual competence, academic preparedness, and

moral fitness of persons who petition the court for the privilege of undertaking the

confidential trust of serving the court as one of its professional officers has always

been a function confined to the courts themselves.” Sparks v. Character & Fitness

Comm. of Ky., 859 F.2d 428, 434 (6th Cir. 1988). “A bar composed of lawyers of

good character is a worthy objective . . . .” Konigsberg v. State Bar of Cal., 353 U.S.

252, 273 (1957). “The judiciary as well as the public is dependent upon

professionally ethical conduct of attorneys and thus has a significant interest in

assuring and maintaining high standards of conduct of attorneys engaged in

practice.” Middlesex Cnty., 457 U.S. at 434.

Therefore, federal courts generally should abstain from hearing cases

involving such proceedings unless there is a “showing of bad faith, harassment, or

some other extraordinary circumstance that would make abstention inappropriate.”

Id. at 435; Stoddard v. Fla. Bd. of Bar Exam’rs, 509 F. Supp. 2d 1117, 1121 (N.D.

Fla. 2006), aff’d, 229 F. App’x 911 (11th Cir. 2007); Lawrence, 2005 WL 2491564,

at *2.

Accordingly, Younger would call for abstention only if: (1) the federal civil

action would interfere with certain ongoing state judicial or administrative

proceedings; (2) the state proceedings implicate important state interests; (3) the

underlying state proceedings afford litigants an adequate opportunity to raise federal

claims; and (4) there is no showing of bad faith, harassment, or some other

extraordinary circumstance that would make abstention inappropriate. Middlesex

Cnty., 457 U.S. at 432; Tokyo Gwinnett, LLC v. Gwinnett Cnty., Ga, 940 F.3d 1254,

1268 (11th Cir. 2019); 31 Foster Child. v. Bush, 329 F.3d 1255, 1274 (11th Cir.

2003); Old Republic Union Ins. Co., 124 F.3d at 1261.5

1. Proceedings for Plaintiff’s Admission to the Bar Are Ongoing

In determining whether there is an ongoing state proceeding, courts must look

“to the start and progression of the federal litigation as compared to the start and

progression of the state litigation.” Tokyo Gwinnett, LLC, 940 F.3d at 1268 (citing

For Your Eyes Alone, Inc. v. City of Columbus, Ga., 281 F.3d 1209, 1217 (11th Cir.

2002)). “The date of filing of the federal complaint is the relevant date for purposes

of determining Younger’s applicability.” Liedel, 891 F.2d at 1546 n.6. A “state

proceeding is considered ‘ongoing’ for Younger purposes” when the “state

proceeding was pending at the time the federal suit was filed.” Tokyo Gwinnett, LLC,

940 F.3d at 1268 (citing Jones v. Wade, 479 F.2d 1176, 1181 n.6 (5th Cir. 1973)).

5 Plaintiff argues that Younger is not applicable to his case because in Sprint

Communications v. Jacobs, 571 U.S. 69 (2013), the Supreme Court narrowed the

breadth of Younger. (Doc. 20 at 2). In Sprint, the Supreme Court held that the district

court erred in abstaining from addressing a civil action brought by Sprint against the

Iowa Utilities Board to challenge the imposition of a fee. Id. at 72. The Court

cautioned federal courts not to extend Younger beyond the breadth prescribed by the

Supreme Court. Id. at 73. But Sprint does not hold that Younger does not apply to

state-court proceedings involving admission to a State bar. Plaintiff’s interpretation

of Sprint simply is incorrect.

The lack of a final judgment by the state court is also relevant to this analysis. Page

v. King, 932 F.3d 898, 902 (9th Cir. 2019).

Plaintiff submitted his application to the Florida Bar on February 16, 2018. In

February 2021, Defendants initiated an informal investigative hearing against

Plaintiff. On April 15, 2021, Defendants notified Plaintiff that they would not

terminate Plaintiff’s bar application to maintain the status quo. In other words, his

application remains pending and no state court or administrative body has issued a

final judgment. Plaintiff filed the instant lawsuit on April 16, 2021. (Doc. 1).

Therefore, Plaintiff’s proceedings for admission to the Florida Bar were ongoing

state judicial proceedings at the time he filed this federal action,6 and they remain

ongoing.

2. The Florida Bar Proceedings Implicate an Important State Interest

There is no serious dispute that the Florida Bar admission proceedings—

specifically character and fitness hearings—implicate an important state interest for

purposes of Younger. “The importance of a state interest may be demonstrated by

6 Plaintiff’s proceedings for admission to the Florida Bar are judicial in nature. Fla.

Bar Admission R. 1-11 (“The admission of attorneys to the practice of the profession

is a judicial function.”); Dale v. Moore, 121 F.3d 624, 626 (11th Cir. 1997) (noting

that the Florida Supreme Court’s confirmation of the Board’s recommendation to

accept an applicant’s application to the Florida Bar is a judicial proceeding);

Lawrence, 2005 WL 2491564, at *2 (“Florida bar admission proceedings . . . are

judicial in nature.”).

the fact that the proceedings sought to be enjoined are . . . necessary for the

vindication of important state policies or the functioning of the state judicial

system.” First Ala. Bank of Montgomery, N.A., 825 F.2d at 1483. The ostensible

purpose of the Board’s character and fitness investigation and bar admission process

“is to protect the public and safeguard the judicial system.” Lawrence, 2005 WL

2491564, at *1 (citing Fla. Bar Admission R. 1-14.1); Stoddard, 509 F. Supp. 2d at

1121. As noted above, the Supreme Court opined that a State has “an extremely

important interest in maintaining and assuring the professional conduct of the

attorneys it licenses.” Middlesex Cnty., 457 U.S. at 434; see The Fla. Bar v. Went

For It, Inc., 515 U.S. 618, 625 (1995) (“We have little trouble crediting the [Florida]

Bar’s interest [in regulating its lawyers] as substantial.”); Kirkpatrick v. Shaw, 70

F.3d 100, 103 (11th Cir. 1995) (“States have a compelling interest in the practice of

professions within their boundaries, and . . . [t]he interest of the States in regulating

lawyers is especially great since lawyers are essential to the primary governmental

function of administering justice, and have historically been ‘officers of the

courts.’”) (quoting Goldfarb v. Va. State Bar, 421 U.S. 773, 792 (1975)); Dugas v.

City of Harahan, La., 978 F.2d 193, 198 (5th Cir. 1992) (“[I]t is vitally important

for Florida to ensure the good character and fitness of its Bar applicants. To this end,

the Florida Supreme Court established the Board as an arm of the court to thoroughly

screen Bar applicants.”).

3. Plaintiff Enjoys Adequate Opportunities to Raise Federal Claims

A plaintiff bears the burden of establishing that the state proceedings do not

provide an adequate remedy for his federal claims. 31 Foster Child., 329 F.3d at

1279; Butler v. Ala. Jud. Inquiry Comm’n, 261 F.3d 1154, 1159 (11th Cir. 2001). A

federal court “should assume that state procedures will afford an adequate remedy,

in the absence of unambiguous authority to the contrary.” Pennzoil Co. v. Texaco,

Inc., 481 U.S. 1, 15 (1987).

Here, the Florida Bar admissions rules specify that an applicant who is

dissatisfied with the Board’s recommendation concerning an applicant’s character

and fitness may petition the Supreme Court of Florida. Fla. Bar Admission R. 3-

40.1. Additionally, an applicant may petition the Supreme Court of Florida if the

character and fitness investigation has not been completed within nine months from

the date of the submission of a completed “Bar Application” or “Registrant Bar

Application.” Fla. Bar Admission R. 3-40.2.

Accordingly, a Florida Bar applicant’s constitutional claims can be “presented

fully and fairly for determination by the Florida Supreme Court” and, if dissatisfied

with the Florida Supreme Court’s decision, an applicant may seek review “in the

United States Supreme Court by petition for writ of certiorari.” Lawrence, 2005 WL

2491564, at *4; Wilson v. Gavagni, No. 4:08-cv-361-SPM/WCS, 2009 WL

3055348, at *6 (N.D. Fla. Sept. 21, 2009) (noting that the bar admission “provides

an applicant in Plaintiff’s situation with a full and fair opportunity to raise federal

claims and constitutional challenges”); see Dale, 121 F.3d at 627 (noting that an

applicant “who is dissatisfied with the Board’s recommendation” is permitted to file

a petition with the Florida Supreme Court for review); cf. Fla. Bd. of Bar Exam’rs

re: Applicant, 443 So. 2d 71, 72 (Fla. 1984) (adjudicating a federal due process claim

raised by an applicant to the Florida Bar). Therefore, Plaintiff has not demonstrated

that he lacks an adequate opportunity to raise Constitutional claims in the Florida

judicial proceeding.

4. Plaintiff Failed to Establish the Bad Faith Exception to Younger

Pursuant to Younger, a court should not abstain from adjudicating a federal

case when there is evidence that the state proceeding is motivated by bad faith.

Hughes v. Att’y Gen. of Fla., 377 F.3d 1258, 1263 n.6 (11th Cir. 2004); Redner v.

Citrus Cnty., Fla., 919 F.2d 646, 650 (11th Cir. 1990); see Middlesex Cnty., 457 U.S.

at 435; Moore v. Sims, 442 U.S. 415, 432 (1979); Huffman, 420 U.S. at 611. Plaintiff

argues that the “bad faith” exception applies in this case because he has alleged that

Defendants were motivated by bad faith and were retaliating against him for

engaging in protected speech. (Doc. 20 at 8).

Although “the Supreme Court has not ruled out use of the bad faith exception

in civil cases, it has never directly applied the exception in such a case.” Aaron v.

Target Corp., 357 F.3d 768, 778 (8th Cir. 2004) (internal citation omitted). But even

assuming that the bad faith exception applies to proceedings of a state bar, the bad

faith exception is a narrow one, which principally applies to “cases of proven

harassment . . . by state officials in bad faith.” Perez v. Ledesma, 401 U.S. 82, 85

(1971); Bristol-Meyers Squibb Co. v. Connors, 979 F.3d 732, 738 (9th Cir. 2020);

McNatt v. Texas, No. 93-2925, 1994 WL 558769, at *1 (5th Cir. Sept. 19, 1994)

(unpublished).

To establish bad faith, a plaintiff must show that a defendant has no

“reasonable expectation” of prevailing in the state proceedings. Kugler v. Helfant,

421 U.S. 117, 126 n.6 (1975); Baffert v. Cal. Horse Racing Bd., 332 F.3d 613, 621

(9th Cir. 2003); Diamond “D” Constr. Corp. v. McGowan, 282 F.3d 191, 199 (2d

Cir. 2002); Redner, 919 F.2d at 650. A bald assertion of ill will or a retaliatory

motive is insufficient. Phelps v. Hamilton, 59 F.3d 1058, 1067 (10th Cir. 1995).

“Mere conclusory allegations . . . are insufficient to overcome Younger—a plaintiff

seeking to avoid Younger must affirmatively demonstrate the justification for

application of an exception.” Kirschner v. Klemons, 225 F.3d 227, 236 (2d Cir.

2000); Wilson v. Thompson, 593 F.2d 1375, 1383 (5th Cir. 1979).

Here, Plaintiff’s allegations relating to the alleged retaliation are as follows:

10. On or around September 7, 2018, Plaintiff filed a certain complaint which

initiated the non-public and confidential proceeding . . . .

. . .

13. With the written permission of the appropriate persons, Plaintiff timely

provided written notice of the above-mentioned proceedings to Defendants.7

14. In addition, and in connection with the same subject matter as above-

reference federal proceeding, Plaintiff also brought a civil action in federal

court.

. . .

17. [I]nstead of timely certifying, recommending, and/or approving Plaintiff

for admission to the Florida Bar, in the spring of 2021, Defendants opted to

retaliate against [Plaintiff] for having initiated the above-referenced

federal proceedings.

18. [O]n or about February 18, 2021—i.e., three (3) years after Plaintiff’s

submission of his bar petition—Defendants electronically served Plaintiff

with a “Notice to Appear for Investigative Hearing.”

. . .

20. The actual, sole purpose of Defendants’ “Investigative Hearing”—a

hearing which they belatedly initiated three (3) years after the initial filing of

the bar petition—was to retaliate against [Plaintiff] for having initiated the

above-referenced judicial proceedings, and to unlawfully coerce him into

withdrawing the subject complaints therein.

21. Defendants all knew, or had reason to know, that there was no just cause

and no lawful grounds for such an “Investigative Hearing.”

22. Defendants’ sole motive therefor [sic] was to harass, retaliate against,

intimidate, and coerce [Plaintiff] into withdrawing the above-referenced

complaints.

7 Plaintiff references the letter in which he declined to attend the hearing, which is

dated February 19, 2021. He does not, however, specify at what point Defendants

became aware of Plaintiff’s litigation. Indeed, the oldest exhibit attached to

Plaintiff’s complaint is dated June 20, 2020, which is approximately thirty (30)

months after Plaintiff filed his bar application.

(Doc. 12 at ¶¶ 10, 13-14, 17-18, 20-22). In his response to Defendants’ motion to

dismiss, Plaintiff does not include any additional factual allegations which indicate

that the “bad faith” exception applies. (Doc. 20 at 8).

Plaintiff offers only conclusory assertions to carry his burden of

demonstrating that Defendants were and are acting in bad faith. Plaintiff fails to

provide concrete allegations to support his conclusory assertions. He has not alleged

facts which indicate that Defendants have no reasonable expectation of prevailing in

the state proceedings. Rather, the record indicates that Defendants had legitimate

reasons to question Plaintiff’s character and fitness to practice law. (Doc. 14-1).

Thus, Plaintiff has failed to allege facts which indicate that Defendants made their

decisions in bad faith.8 See Crenshaw v. Sup. Ct. of Ind., 170 F.3d 725, 729 (7th Cir.

1999) (“In order to establish her entitlement to the bad faith exception to the Younger

doctrine, [the plaintiff] must allege specific facts to support her inferences of bad

faith . . . .”). Plaintiff simply has not made allegations of bad faith sufficient to

8 No evidentiary hearing is necessary in this case because the undersigned accepts

Plaintiff’s well-pleaded factual allegations as true, but not his conclusory assertions.

Thompson v. Fla. Bar, 526 F. Supp. 2d 1264, 1277 (S.D. Fla. 2007) (noting that an

evidentiary hearing on the bad faith exception is not warranted when the court

accepts the well-pleaded factual allegations of the complaint as true) (citing Stewart

v. Dameron, 448 F.2d 396, 397 (5th Cir. 1971)).

invoke the “bad faith” exception to Younger.9 See Lawrence v. Carlin, 541 F. Supp.

2d 189, 194-95 (D.D.C. 2008).

Accordingly, because the Younger abstention doctrine applies to this case, the

District Court should dismiss Plaintiff’s claims to the extent that Plaintiff seeks a

declaratory judgment and seeks to enjoin Defendants from further engaging “in such

unlawful conduct.” (Doc. 12 at 21).

B. Defendants are Entitled to Absolute Quasi-Judicial Immunity with

Respect to Plaintiff’s Claims for Damages

With respect to Plaintiff’s claims for damages from Defendants in their

individual capacities, Defendants argue that they are entitled to quasi-judicial

immunity. (Doc. 14 at 18).10

9 Plaintiff also has not shown that this case presents any “extraordinary

circumstances.” For example, he has not shown that the Board is relying on rules

that are “fragrantly and patently violative of express constitutional prohibitions in

every clause, sentence, and paragraph, and in whatever manner and against whom

an effort might be made to apply it.” Younger, 401 U.S. at 53-54. Nor has he shown

that the Board itself—or the Florida Supreme Court—would be incompetent by

reason of bias to adjudicate the issues before it. Gibson v. Berryhill, 411 U.S. 564,

577 (1973).

10 Plaintiff argues that the District Court cannot consider quasi-judicial immunity in

a motion to dismiss. Plaintiff is incorrect. A plaintiff fails to state a claim upon which

relief can be granted when judicial or quasi-judicial immunity precludes a claim.

Murphy v. Stacy, 809 F. App’x 677, 681-82 (11th Cir. 2020) (first citing Sibley, 437

F.3d at 1070 n.2; then citing LaFrere v. Quezada, 582 F.3d 1260, 1263 (11th Cir.

2009)); Prop. Mgmt. & Inv., Inc. v. Lewis, 752 F.2d 599, 602-03 (11th Cir. 1985).

“When officials are threatened with personal liability for acts taken pursuant

to their official duties, they may well be induced to act with an excess of caution or

otherwise to skew their decisions in ways that result in less than full fidelity to the

objective and independent criteria that ought to guide their conduct.” Forrester v.

White, 484 U.S. 219, 224-26 (1988). To prevent this, the law affords some

government officials immunity from suit. For example, the Supreme Court has held

that the adjudicative function that judges perform requires that they be immune from

suit for damages. Stump v. Sparkman, 435 U.S. 349, 355-56 (1978). Judicial

immunity, therefore, provides judges absolute immunity from suits arising from acts

taken in their judicial capacity unless they acted in the clear absence of all

jurisdiction. Id. at 357; Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir. 2000).

The Supreme Court has extended this immunity to government officials who

perform quasi-judicial duties. See Forrester, 484 U.S. at 225-26. Quasi-judicial

immunity affords “protection from suit to officials who are ‘intimately associated

with the judicial’” process. Washington v. Rivera, 939 F.3d 1239, 1243 (11th Cir.

2019) (quoting Hughes v. Chesser, 731 F.2d 1489, 1490 (11th Cir. 1984)); Roland

v. Phillips, 19 F.3d 552, 555 (11th Cir. 1994). Under judicial or quasi-judicial

immunity, therefore, a defendant is entitled to absolute immunity. Roland, F.3d at

555. But an “official seeking absolute immunity bears the burden of showing that

such immunity is justified for the function in question.” Burns v. Reed, 500 U.S. 478,

486 (1991).

To determine whether a particular government official is entitled to quasi-

judicial immunity, a court must apply a functional analysis and ascertain whether

the action taken by the official has an integral relationship with the judicial process.

Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 435-36 (1993); Imbler v.

Pachtman, 424 U.S. 409, 430 (1976); Roland, 19 F.3d at 555. That is, the court must

look to the “nature of the responsibilities of the individual official” to determine

whether the official was exercising a sufficiently judicial function. Cleavinger v.

Saxner, 474 U.S. 193, 201 (1985); see Forrester, 484 U.S. at 224; Washington, 939

F.3d at 1243. Using this approach, courts have extended quasi-judicial immunity to

officials intimately connected to the judicial process, including federal hearing

examiners and administrative law judges. See Cleavinger, 474 U.S. at 200; Imbler,

424 U.S. at 430.

In this case, Plaintiff is suing Defendants solely for their conduct in carrying

out their duties as Executive Director and General Counsel of the Board to the extent

they addressed Plaintiff’s application for admission to the Florida Bar. Defendants

derive their authority to address applications to the Florida Bar from the Florida

Supreme Court. Fla. Bar Admission R. 1-13 (“The [Board] is an administrative

agency of the Supreme Court of Florida created by the court to implement the rules

relating to bar admission.”); Dugas, 978 F.2d at 198 (noting that the “the Florida

Supreme Court established the Board as an arm of the court to thoroughly screen

Bar applicants”). Plaintiff concedes that Defendants are “both tasked with, inter alia,

the enforcement of the ‘Rules of the Supreme Court relating to Admissions to the

Bar’ of the State of Florida,” that they were responsible for the processing of his

application to the Florida Bar, and that they were responsible for initiating his

informal character and fitness investigative hearing. (Doc. 12 at ¶¶ 8-9, 19).

The processing of an application to practice in a State’s courts is a judicial

function. The “power to determine eligibility for membership in the bar has

historically been reposed exclusively in the courts.” Sparks, 859 F.2d at 434. “The

establishment of criteria for determining the intellectual competence, academic

preparedness, and moral fitness of persons who petition the court for the privilege

of undertaking the confidential trust of serving the court as one of its professional

officers has always been a function confined to the courts themselves.” Id. “Federal

courts have consistently held, as a matter of federal law, that admission to a

jurisdiction’s bar is neither a legislative, administrative, nor ministerial act, but is

peculiarly a judicial function, for it is within the exclusive province of the judiciary

to determine who is to be permitted to practice before the courts.” McFarland v.

Folsom, 854 F. Supp. 862, 875 (M.D. Ala. 1994). When the supreme court of a State

issues a final order excluding an applicant from practicing law, that order is a judicial

order reviewable—to the extent an applicant claims constitutional infirmity—only

by the United States Supreme Court. See Schware v. Bd. of Bar Exam’rs of the State

of N.M., 353 U.S. 232, 238 (1957); In re Summers, 325 U.S. 561, 568-69 (1945).

With respect to Florida in particular, the Florida Constitution states: “The

supreme court shall have exclusive jurisdiction to regulate the admission of persons

to the practice of law and the discipline of persons admitted.” FLA. CONST. art. V, §

15. It also is undisputed that the Board “is an agency of the Florida Supreme Court

created for the purpose of regulating the admission of persons to practice law within

the State.” Diaz v. Moore, 861 F. Supp. 1041, 1049 n.23 (N.D. Fla. 1994); Fla. Bar

Admission R. 1-11, 1-13. The Board’s recommendation to the Florida Supreme

Court to accept or reject an application for admission to the Florida Bar is a “judicial

proceeding.” Dale, 121 F.3d at 626. In Florida, therefore, “bar admissions, bar

disciplinary actions, and disbarments are essentially judicial in nature.” Norkin v.

Fla. Bar, 311 F. Supp. 3d 1299, 1305 (S.D. Fla. 2018) (quoting Matter of Calvio, 88

F.3d 962, 965 (11th Cir. 1996)).

More specifically, actions of the Board regarding the processing of bar

applications, evaluation of the character and fitness of applicants, and

recommendation to the Florida Supreme Court to admit or deny admission to

applicants are integrally judicial in nature. Diaz, 861 F. Supp. at 1049. Defendants—

who are officials assigned to perform these functions—therefore are intimately

connected to the judicial process. As one court explained:

The act of considering an application to the bar is a judicial act. And it

is no less a judicial act simply because it is performed by nonjudicial

officers in whom the responsibility for the performance of such duties

is lawfully delegated by the judiciary. Therefore, those who perform

those duties on behalf of the judiciary are entitled to the same judicial

immunity as would be enjoyed by judicial officers performing the same

act.

Id. (quoting Sparks, 859 F.2d at 431).

Accordingly, Defendants are entitled to absolute quasi-judicial immunity for

their functions and actions relating to Plaintiff’s application to the Florida Bar. See

Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993) (holding that members of the

Florida Bar attorney grievance committees were entitled to absolute immunity

because they were acting as agents of the Florida Supreme Court). Because

Defendants, in their individual capacities, are entitled to absolute quasi-judicial

immunity, the District Court should dismiss Plaintiff’s claims to the extent he seeks

damages from Defendants in their individual capacities. See Washington, 939 F.3d

at 1243 (noting that when a defendant is engaging in a sufficiently judicial function,

the defendant is entitled to absolute immunity).11

11 Because Plaintiff’s claims are precluded by Younger and quasi-judicial immunity,

the undersigned did not address Defendant’s other arguments, namely Eleventh-

Amendment immunity, qualified immunity, and failure to state a claim upon which

relief can be granted.

C. Plaintiff’s Motion for Leave to Amend Count Four of His Complaint

Finally, Plaintiff moves to amend Count Four of his complaint to state a claim

for a violation of “substantive” due process. (Doc. 27). For the reasons discussed

above, any due-process claim—whether characterized as “substantive” or

otherwise—is barred by the Younger abstention doctrine and absolute quasi-judicial

immunity. Plaintiff cannot plead facts that would prevent application of Younger and

absolute quasi-judicial immunity, which means that Plaintiff’s proposed amendment

of Count Four would be futile. Thus, the undersigned recommends that the District

Court deny Plaintiff’s motion for leave to amend Count Four.

IV. CONCLUSION

Because Plaintiff’s claims for injunctive and declaratory relief are barred by

Younger v. Harris, 401 U.S. 37 (1971), and Defendants enjoy absolute quasi-judicial

immunity from Plaintiff’s claims for damages, the undersigned respectfully

RECOMMENDS that:

1. Plaintiff’s Motion for Leave to Amend Count Four (Doc. 28) be

DENIED because any amendment would be futile.

2. Defendants’ Motion to Dismiss (Doc. 14) be GRANTED.

3. Plaintiff’s claims for declaratory and injunctive relief be dismissed

without prejudice.

4. Plaintiff’s claims for damages be dismissed.

5. The clerk of the court terminate all pending motions and close the case

file.

At Pensacola, Florida, this 14th day of October, 2021.

/s/ Michael J. Frank

Michael J. Frank

United States Magistrate Judge

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations must

be filed within fourteen (14) days of the date of the report and

recommendation. Any different deadline that may appear on the

electronic docket is for the court’s internal use only and does not

control. An objecting party must serve a copy of its objections upon

all other parties. A party who fails to object to the magistrate

judge’s findings or recommendations contained in a report and

recommendation waives the right to challenge on appeal the

district court’s order based on unobjected-to factual and legal

conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636. If the parties

dispute the accuracy of any facts taken from judicially-noticed

documents, or if they otherwise wish to be heard on the propriety

of the court taking judicial notice of those facts, they must raise this

issue in an objection to this report and recommendation.