# MULLANE v. ALMON

> District Court, N.D. Florida · October 14, 2021

URL: https://www.frixlaw.com/law-library/cases/10116521

## Case

- **Court:** District Court, N.D. Florida
- **Decided:** October 14, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10116521

## How later opinions describe it (automated extraction)

- 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
- 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
- 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

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10116521. Public record. Not legal advice.