Manookian v. Flippin

IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

BRIAN P. MANOOKIAN, )

)

Plaintiff, )

) NO. 3:19-cv-00350

v. )

) JUDGE CAMPBELL

FLOYD FLIPPIN et al., )

)

Defendants. )

MEMORANDUM

Before the Court is Defendants’ Motion to Dismiss. (Doc. No. 23). Plaintiff filed a

Response (Doc. No. 28), Defendants filed a Reply (Doc. No. 31), and Plaintiff filed a Sur-Reply

(Doc. No. 37-1). Also pending before the Court is Plaintiff’s Motion for Temporary Restraining

Order and/or Preliminary Injunction. (Doc. No. 44). Defendants filed a Response (Doc. No. 49)

and Plaintiff filed a Reply (Doc. No. 56). The Court previously denied Plaintiff’s motion for a

temporary restraining order (Doc. No. 47) and now considers the Motion for Preliminary

Injunction.

Plaintiff Brian Manookian is an attorney whose license to practice law in Tennessee was

temporarily suspended on September 21, 2018, by the Supreme Court of Tennessee. The

Tennessee Supreme Court found that Plaintiff represented a “substantial threat to the public.”

Order of Temp. Suspension, In re: Brian Phillip Manookian, BPR #026455, No. M2018-01711-

SC-BAR-BP (Tenn. Sept. 21, 2018) (Doc. No. 24-1).

Plaintiff’s claims the Board of Professional Responsibility of the Supreme Court of

Tennessee (“BPR”) filed the petition for temporary suspension in retaliation for Plaintiff’s suit

against a state court judge filed one day earlier. In addition, he claims the temporary suspension

is a conspiracy by Defendants, who are individual members of the BPR, to restrain trade and

exclude Plaintiff from the legal market in Tennessee. Plaintiff filed this case on April 29, 2019,

asserting claims under 42 U.S.C. § 1983 for violation of his rights to free speech, due process, and

equal protection, and a claim for conspiracy to restrain trade under the Sherman Act, 15 U.S.C. § 1.

I. PROCEDURAL BACKGROUND

After filing this case, the disciplinary proceedings at the Tennessee Supreme Court and

before the BPR have proceeded.1 After the September 21, 2018 Order of Temporary Suspension,

Plaintiff sought dissolution of the temporary suspension three times—on November 21, 2018,

February 27, 2019, and April 9, 2019. At the direction of the Tennessee Supreme Court, a panel

held hearings on Plaintiff’s petitions for dissolution and issued reports and recommendations. The

Tennessee Supreme Court adopted the recommendations of the panels, denying the first two

petitions, and granting the third petition on May 17, 2019, subject to Plaintiff’s “ongoing

compliance with conditions set forth in the panel’s Report and Recommendation.” Shortly after

the initial order of temporary suspension was dissolved, on June 24, 2019, the BPR filed a petition

for reinstatement of the temporary suspension. The Tennessee Supreme Court referred the matter

for a hearing to the panel that had heard Plaintiff’s second and third petitions for dissolution and

ordered the panel to submit a report and recommendation on the petition for reinstatement of the

temporary suspension. The BPR filed a supplemental petition on August 6, 2019. This petition

was referred for hearing and report and recommendation to the same panel. After several delays,

1 The procedural background of the underlying disciplinary proceeding is summarized from the Tennessee

Supreme Court’s October 11, 2019 Order Reinstating Temporary Suspension. In re Brian Phillip

Manookian, BPR #026455, No. M2019-00630-SC-BAR-BP (Tenn. Oct. 11, 2019) (recounting procedural

history) and from the Order Denying Petition for Dissolution of Order of Temporary Suspension, In re

Brian Phillip Manookian, BPR #026455, No. M2019-00630-SC-BAR-BP (Tenn. Oct. 17, 2019). The

details of the complaints in the disciplinary proceeding are not relevant to the Court’s opinion.

the panel conducted a hearing on September 26, 2019, and filed its report and recommendation on

October 7, 2019. Plaintiff filed a “Motion to Dismiss Supplemental Petition to Reinstate

Temporary Suspension and Objection to the Report and Recommendation” and a supplement to

the motion to dismiss. In these motions he argued that the petition does not provide a sufficient

basis to reinstate the temporary suspension, that two members of the panel should have recused

themselves because they are defendants in this action, and that Tennessee Supreme Court Rule 9,

section 12.3, governing attorney disciplinary enforcement, is unconstitutional. The Tennessee

Supreme Court denied Plaintiff’s motion to dismiss and adopted the panel’s finding that Plaintiff

“violated a condition of the Order Granting Petition for Dissolution of Order of Temporary

Suspension.” The court also found Plaintiff “poses a threat of substantial harm to the public” and

determined that it “should reinstate the temporary suspension of [Plaintiff’s] law license.”

The same day the Tennessee Supreme Court issued the Order reinstating Plaintiff’s

temporary suspension, Plaintiff again petitioned that Court for dissolution of the temporary

suspension, which the Court denied on October 17, 2019. In the October 17, 2019 Order, the

Tennessee Supreme Court stated, “The most recent hearing demonstrated ample basis for

determining that Mr. Manookian poses a threat of substantial harm to the public and for the

reinstatement of his temporary suspension.” The Court acknowledged pending disciplinary

charges and directed that “Mr. Manookian and the Board shall proceed with all due speed toward

ultimate resolution of the petition for discipline currently pending before the Board.” Id.

On October 26, 2019, Plaintiff filed with this Court a Motion for Temporary Restraining

Order and/or Preliminary Injunction. (Doc. No. 44). Through that motion, Plaintiff asked the Court

to restrain Defendants from “again ‘temporarily’ suspending Mr. Manookian’s law license without

due process” and enjoin Defendants from “further retaliating against him for his protected First

Amendment activity.” (Id.) The Court denied Plaintiff’s motion for a temporary restraining order

on grounds that Plaintiff did not show immediate irreparable harm. (Doc. No. 47).

Plaintiff filed this case against the attorney members of the BPR in their official and

individual capacities. He alleges the actions of the BPR constitute a violation of federal antitrust

regulations, and violations of his rights to free speech, due process and equal protection. He alleges

that the temporary suspension mechanism in Tennessee Supreme Court Rule 9, section 12.3 is

unconstitutional on its face and as applied to him. Defendants’ moved to dismiss the complaint

on grounds of sovereign immunity, Parker immunity, and quasi-judicial immunity, and argue that

the Younger abstention doctrine bars involvement in ongoing attorney disciplinary proceedings.

II. STANDARD OF REVIEW2

In deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court

must take all the factual allegations in the complaint as true. Ashcroft v. Iqbal, 556 U.S. 662 (2009).

To survive a motion to dismiss, a complaint must contain sufficient factual allegations, accepted

as true, to state a claim for relief that is plausible on its face. Id. A claim has facial plausibility

when the plaintiff pleads facts that allow the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged. Id. In reviewing a motion to dismiss, the Court

construes the complaint in the light most favorable to the plaintiff, accepts its allegations as true,

and draws all reasonable inferences in favor of the plaintiff. Directv, Inc. v. Treesh, 487 F.3d 471,

476 (6th Cir. 2007).

In considering a Rule 12(b)(6) motion, the Court may consider the complaint and any

exhibits attached thereto, public records, items appearing in the record of the case and exhibits

2 Defendants’ Motion to Dismiss is filed pursuant to both Rule 12(b)(1) and 12(b)(6). The Court did

not reach the sovereign immunity defense and accordingly decided the Motion under the standard

prescribed by Rule 12(b)(6).

attached to Defendant’s motion to dismiss so long as they are referred to in the Complaint and are

central to the claims. Bassett v. National Collegiate Athletic Assn., 528 F.3d 426, 430 (6th Cir.

2008); Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (on a motion to

dismiss the Court may consider documents referenced in a plaintiff’s complaint that are central to

plaintiff’s claims, matters of which a court may take judicial notice, documents that are a matter

of public record, and letters that constitute decisions of a government agency). The Court has

considered the record of the disciplinary proceedings before the Supreme Court of Tennessee as

referred to in the Complaint and as public records.

III. ANALYSIS

Defendants assert a variety of abstention and immunity defense as a bar to Plaintiff’s

claims. Defendants argue: (1) the Younger v. Harris abstention doctrine bars claims arising out of

the ongoing state disciplinary proceeding; (2) claims for damages in their official capacity are

barred by sovereign immunity; (3) claims for damages in their individual capacity are barred by

quasi-judicial immunity; and (4) antitrust claims are barred by Parker immunity.3

A. Parker Immunity Bars Plaintiff’s Antitrust Claim

Plaintiff claims “the BPR, along with individual market-participant defendants, entered

into an agreement to exclude one of the state’s most competitively successful medical malpractice

lawyers, Mr. Manookian, from the market.” (Comp., Doc. No. 1, ¶ 132). Plaintiff claims the

alleged agreement was the decision to “punish” Plaintiff with a temporary suspension of his law

license, to publicize the suspension to the media, and to “resist all efforts by Mr. Manookian to

3 Defendants also raise the Rooker-Feldman Doctrine as a bar to review of state court decisions “[t]o

the extent the state disciplinary proceedings have been concluded.” As the state disciplinary proceedings

have not concluded and the Court finds Plaintiff’s claims are otherwise barred, the Court does not reach the

Rooker-Feldman issue.

petition for dissolution of the suspension.” (Id., ¶ 134). Plaintiff seeks treble damages under 15

U.S.C. § 15 and injunctive relief under 15 U.S.C. § 26. (Id., ¶ 145).

Defendants urge dismissal of Plaintiff’s Sherman Act claims on the ground that the action

complained of—the temporary suspension—was an act of the Tennessee Supreme Court and

entitled to sovereign immunity under the Eleventh Amendment and state-action immunity under

Parker. Plaintiff argues that the BPR is not entitled to state-action immunity because it did not act

pursuant to clearly articulated state policy and was not actively supervised by the Supreme Court.

In Parker v. Brown, 317 U.S. 341 (1943), the Supreme Court, relying on principles of

federalism and state sovereignty, interpreted the antitrust laws to confer immunity on

anticompetitive conduct by the States when acting in their sovereign capacity. N.C. State Bd. of

Dental Examiners, 135 S.Ct. 1101, 1110 (2015). Without Parker immunity, “federal antitrust law

would impose an impermissible burden on the States’ power” to subordinate market competition

to “other values a State may deem fundamental.” Id. at 1109. “[A] decision of a state supreme

court, acting legislatively rather than judicially, is exempt from Sherman Act liability as state

action.” Hoover v. Ronwin, 466 U.S. 558, 568 (1984) (citing Goldfarb v. Virginia State Bar, 421

U.S. 773, 790 (1975)); see also, N.C. State Bd. 135 S.Ct. at 1110 (“State legislation and

‘decision[s] of a state supreme court, acting legislatively rather than judicially,’ … ‘ipso facto are

exempt from the operation of the antitrust laws’ because they are an undoubted exercise of state

sovereign authority.”).

If the action is not “an exercise of state sovereign authority,” but is instead a non-sovereign

state agency controlled by active market participants, state-action immunity applies only if the

actions meets the two-part Midcal4 test as articulated by the Supreme Court in N.C. State Board.

4 California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U.S. 97 (1980).

135 S.Ct. at 1112. Under Midcal, “[a] state law or regulatory scheme cannot be the basis for

antitrust immunity unless, first, the State has articulated a clear … policy to allow the

anticompetitive conduct, and second, the State provides active supervision of [the] anticompetitive

conduct.” Id. (quoting F.T.C. v. Ticor Title Ins. Co., 504 U.S. 621, 634 (1992)).

Here, the conduct complained of is that of the Tennessee Supreme Court. The Tennessee

Supreme Court issued the Order of Temporary Suspension. “Where the conduct is that of the

sovereign itself, … the danger of unauthorized restraint of trade does not arise.” Hoover, 466 U.S.

at 569. The Tennessee Supreme Court Rules specify that the Disciplinary Counsel may petition

the court for an order of temporary suspension, but only the Tennessee Supreme Court can

temporarily suspend an attorney. Tenn.Sup. Ct. R. 9, § 12.3. At best, Defendants’ authority under

the Rules was limited to petitioning for an order of temporary suspension and filing reports and

recommendations with the Tennessee Supreme Court.5 Ultimate action on the petition or report

and recommendation is vested solely with the Tennessee Supreme Court.

The Supreme Court considered a similar circumstance in Hoover v. Ronwin, 466 U.S. 558

(1984). In Hoover, the plaintiff alleged anticompetitive conduct with regard to bar admission on

the part of individual members of Arizona Supreme Court’s Committee on Examinations and

Admission. The Supreme Court found that although the Arizona Supreme Court had “necessarily

delegated the administration of the admissions process to the Committee,” because the court itself

had made the final decision to admit or deny admission to practice, the “conduct [the plaintiff]

challenges was in reality that of the Arizona Supreme Court” and “is therefore exempt from

5 The Rules do not even appear to confer this much authority on the members of the BPR. The Rules

provide that a petition for temporary suspension may be made by Disciplinary Counsel, who reports to the

BPR. Tenn. Ct. App. R. 9, §§ 7.1, 12.3. The Board or a panel conducts hearings on a petition for dissolution

of temporary suspension and files a report and recommendation with the Tennessee Supreme Court. Id. at

§ 12.3(d).

Sherman Act liability under the state-action doctrine of Parker v. Brown.” Id. at 573. In Hoover,

the Supreme Court stated that it did not need to address issues of “clear articulation” and “active

supervision” when the conduct at issue was in fact that of the Supreme Court. Id. at 569.

The Court finds that the Midcal test does not apply because the anticompetitive activity

complained of was that of the Tennessee Supreme Court which is ipso facto exempt from the

antitrust laws. Plaintiff cannot evade state-action immunity by suing only the members of the BPR

and not the sovereign entity. “If a government actor is independently responsible for causing the

alleged antitrust injury, ‘once [it] is determined to be immune …, the immunity should be extended

to include private parties acting under [its] direction.” Edinboro College Park Apartments v.

Edinboro Univ., 850 F.3d 567, 574 (3d Cir. 2017) (quoting Zimomra v. Alamo Rent-A-Car, Inc.

111 F.3d 1495, 1500 (10th Cir. 1997)). “Otherwise, plaintiffs could sue only the private parties

and by winning antitrust judgments against then, could thwart state policies as if there were no

state [i]mmunity.” Id. (quoting A.D. Bedell Wholesale Co., Inc. v. Philip Morris Inc., 263 F.3d

239, 256 (3d Cir. 2001)); see also, Hoover, 466 U.S. 569 (alleged anticompetitive conduct by

individual members of the bar admissions committee was subject to Parker immunity because the

actions complained of were taken by the state supreme court, a sovereign entity).

Although Plaintiff has brought suit against the individual members of the BPR, the

anticompetitive action complained of—temporary suspension and dissolution of temporary

suspension—was that of the Tennessee Supreme Court, which is immune from antitrust laws under

the claims presented in this case.

B. Absolute Quasi-Judicial Immunity Bars Claims Against Defendants

Defendants assert they are absolutely immune to suits for damages under the doctrine of

quasi-judicial immunity. The Court agrees.6

Judges are entitled to absolute judicial immunity from suits for money damages for all

actions taken in the judge’s official capacity, unless they were taken in the complete absence of

jurisdiction. Bush v. Rauch, 38 F.3d 842, 847 (6th Cir. 1994). “[S]uch immunity has also been

extended to non-judicial officers performing ‘quasi-judicial’ duties.” Quatkemeyer v. Kentucky

Bd. of Med. Licensure, 506 F. App’x 342, 345 (6th Cir. 2012). “Quasi-judicial immunity extends

to those persons performing tasks so integral or intertwined with the judicial process that these

persons are considered an arm of the judicial officer who is immune.” Bush, 38 F.3d at 847. Quasi-

judicial immunity has been extended to members of professional licensing or disciplinary boards

that perform investigatory, prosecutorial or judicial functions. See Moncier v. Jones, 557 F. App’x

407, 409 (6th Cir. 2014) (holding that Chief Disciplinary Counsel for the Board was entitled to

quasi-judicial immunity); Quatkemeyer, 506 F. App’x at 345-49 (members of the Board of Medical

Licensure, an agency of the state, were entitled to quasi-judicial immunity); Watts v. Burkart, 978

F.2d 269, 276 (6th Cir. 1992) (members of state medical licensing board entitled to absolute

immunity).

In Moncier v. Jones, the Sixth Circuit affirmed dismissal of claims for damages against the

Chief Disciplinary Counsel of the Tennessee Board of Professional Responsibility, when the

conduct alleged to have violated the plaintiff’s civil rights occurred when the defendant was

6 Plaintiff only seeks damages against Defendants in their individual capacities for the Section 1983

claims. However, to the extent damages are sought against Defendants in their official capacities, such

claims are barred by the Eleventh Amendment. See Moncier v. Jones, 557 F. App’x 407, 409 (6th Cir.

2014) (“[T]he Eleventh Amendment bars official-capacity claims for damages against state officials”)

(citing Will v. Mich. Dept. of State Police, 491 U.S. 58, 71 (1989)).

performing her official role as Chief Disciplinary Counsel. 557 F. App’x 407, 409 (6th Cir. 2014).

The same conclusion is warranted here. The conduct alleged to have violated Defendant’s civil

rights—petitioning the Tennessee Supreme Court for temporary suspension of Plaintiff’s law

license, conducting hearings at the direction of the Court, and drafting reports and

recommendations—falls squarely within the duties and obligations delegated by the Tennessee

Supreme Court. See Tenn. R. App. P. 9, § 4. Accordingly, Defendants are entitled to absolute

quasi-judicial immunity from Plaintiff’s claims for damages against them personally.

C. The Younger v. Harris Abstention Doctrine Bars Involvement in the Ongoing State

Disciplinary Proceedings

Defendants argue the Court should abstain from review of the merits of this case pursuant

to Younger v. Harris, 401 U.S. 37 (1971). “In Younger, the United States Supreme Court

counseled federal courts to abstain from enjoining certain pending state court criminal

proceedings.” Danner v. Bd of Prof’l Responsibility of the Tenn. Sup. Ct, 277 F. App’x 575, 577

(6th Cir. 2008). “This doctrine is borne out of a ‘proper respect for state functions, a recognition

of the fact that the entire country is made up of a Union of separate state governments, and a

continuance of the belief that the National Government will fare best if the States and their

institutions are left free to perform their separate functions in their separate ways.” Id. (quoting

Younger, 401 U.S. at 44). The doctrine has been extended to ongoing civil proceedings and

ongoing state administrative proceedings. Id. (citing Huffman v. Pursue, Ltd., 420 U.S. 592

(1975); Middlesex Cty Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423 (1982)). Younger

counsels that a federal district court should abstain when: “(1) the underlying proceedings

constitute an ongoing state judicial proceeding; (2) the proceedings implicate important state

interests; and (3) there is an adequate opportunity to raise constitutional challenges in the course

of the underlying proceeding.” Danner, 277 F. App’x at 578.

Plaintiff does not challenge that the State has an important interest in regulating the practice

of law or that there is adequate opportunity to raise constitutional challenges in the courts of the

underlying proceeding.7 Instead, Plaintiff argues that Younger abstention does not apply because

the underlying proceedings are not “ongoing judicial proceedings,” and that the claims at issue fall

within an exception to the application of Younger because the members of the BPR are biased.

State bar disciplinary proceedings are “judicial proceedings.” See Danner, 277 F. App’x at

578-79; Fieger v. Thomas, 74 F.3d 740 (6th Cir. 1996) (holding a board was enforcing rules of

professional conduct was performing an adjudicative function and thus satisfied the first

requirement for Younger); Berger v. Cuyahoga Bar Ass’n., 983 F.2d 718 (6th Cir. 1993) (ruling

that when a state supreme court is the ultimate decision maker in attorney discipline proceedings,

those proceedings are judicial in nature for Younger purposes); Squire v. Coughlan, 469 F.3d 551

(6th Cir. 2006) (investigations into judicial misconduct are an adjudicative function for Younger

purposes). In Danner, the Sixth Circuit specifically considered disciplinary proceedings of the

Tennessee Board of Professional Responsibility and held that “the Tennessee disciplinary

proceedings at issue are judicial in nature.” 277 F. App’x at 579.

If the state proceeding was pending at the time of the filing, the matter is considered

“ongoing.” Id. at 579. The action “remains pending until the litigant has exhausted his state

appellate remedies.” Id. (quoting Huffman, 520 U.S. at 609). Plaintiff argues that the proceedings

are not “ongoing” because the Order of Temporary Suspension has already been entered and that

because the temporary suspension was “not brought in conjunction with any underlying

7 During the course of the underlying disciplinary proceedings before the Tennessee Supreme Court,

Plaintiff raised and the Tennessee Supreme Court rejected the constitutional challenge to Rule 9, § 12.3.

See Order Reinstating Temp. Suspension, In re Brian Phillip Manookian, BPR #026455, No. M2019-

00630-SC-BAR-BP (Tenn. Oct. 11, 2019).

disciplinary action, the proceedings regarding the now-dissolved suspension are not ongoing now.”

(Pl. Resp., Doc. No. 28 at 23). This argument is flatly contradicted by the long procedural history

in the disciplinary proceeding recounted by the Tennessee Supreme Court. See In re Manookian,

BPR #026455, No. M2019-00630-SC-BAR-BP (Tenn. Oct. 11, 2019). This history shows that

not only was the disciplinary proceeding pending at the time the complaint was filed, it is still

pending. Moreover, the October 17, 2019 Order Denying Petition for Dissolution of Order of

Temporary Suspension clearly indicates that the temporary suspension is part of an underlying

disciplinary complaint that is unresolved. In re Manookian, BPR #026455, No. M2019-00630-SC-

BAR-BP (Tenn. Oct. 17, 2019) (ordering the parties to “proceed with all due speed toward ultimate

resolution of the petition for discipline currently pending before the Board”).

Even Plaintiff recognizes, in the context of a claim preclusion, that the proceedings are not

yet final, arguing that “there has simply not been a final state-court judgment for preclusion

purposes because the underlying disciplinary charges—including those from the original

suspension have not been heard.” (Pl. Reply, Doc. No. 56 at 1). The Court does not suggest

Plaintiff is disingenuous in his arguments. Rather, the evolution of Plaintiff’s argument reflects

the ongoing nature of the disciplinary proceedings at issue and underscores the rationale for

abstention from those proceedings.

Plaintiff maintains that even if the prerequisites for Younger abstention have been met, the

following exceptions to the doctrine allow the case to proceed: bad faith, harassment, and bias.

Plaintiff alleges the initial temporary suspension was initiated in retaliation for Plaintiff’s filing a

lawsuit against a state court judge and issuing a subpoena to the BPR and that thereafter

“Defendants and their agents have engaged in an unprecedented, aggressive pursuit of [Plaintiff]

since he first sued a state court judge and served a subpoena on the board in the fall of 2018.

Specifically they have: (i) pursued a temporary suspension based on protected out-of-court speech;

(ii) failed to bring or adjudicate underlying disciplinary charges for months, asserted that [Plaintiff]

had the burden of proof to dissolve the suspension; (iii) engaged in extensive gamesmanship to

prevent hearings that would actually put them to their proof; (iv) brought new disciplinary petitions

immediately after a suspension was dissolved; (v) filed a new petition to reinstate the temporary

suspension based on flagrantly baseless allegations of noncompliance and fabricated misconduct

complaints; (vi) refused to recuse themselves; and (vii) disregarded evidence that contradicted

their preordained result.” (Pl. Br. on Mot. for Prelim. Inj., Doc. No. 43 at 13). The allegations of

bias are directed at the alleged financial incentive for the Board Members to remove Plaintiff as

competition in the legal market, and the three-member panel that held a hearing on the petition to

reinstate temporary suspension when two of the members of the panel are defendants in this case.

“While bias is an exception to Younger abstention, it is an extraordinary one, and the

petitioner alleging such must offer ‘actual evidence to overcome the presumption of honesty and

integrity in those serving as adjudicators.’” Danner, 277 F. App’x at 580. Younger “requires more

than mere allegation and more than a conclusory finding to bring a case within the harassment

exception. It appears that such a finding must be supported by specific evidence from which it can

be inferred that state officials have been enforcing the statute against the plaintiffs in bad faith for

purposes of harassment.” Grandco Corp. v. Rochford, 536 F.2d 197, 203 (7th Cir. 1976)).

Exceptions to Younger abstention have been interpreted narrowly. Zalman v. Armstrong, 802 F.2d

199, 205 (6th Cir. 1986).

Importantly, the body that effected the temporary suspension was not the BPR, but the

Tennessee Supreme Court. The Rules provide that a petition for temporary suspension is made by

Disciplinary Counsel to the Tennessee Supreme Court and that “the Court may issue an order …

temporarily suspending said attorney.” Tenn. R. App. P. 9, § 12.3. As the temporary suspension

was not ultimately carried out by the BPR, any alleged bias imputed to the BPR is irrelevant, or,

at a minimum, would be cured when the Tennessee Supreme Court reviews the petition. Here, the

Tennessee Supreme Court specifically found on more than one occasion that Plaintiff posed a

threat of substantial harm to the public that justified the temporary suspension of his law license.

There is no allegation that the Tennessee Supreme Court reached this conclusion because of its

bias against Plaintiff.

The case cited by Plaintiff, Gibson v. Berryhill, 411 U.S. 564 (1973), involved a level of

institutional bias not established by Plaintiff’s conclusory allegations against individual BPR

members. Gibson involved a state optometry board on which only independent optometrists were

eligible to serve. Plaintiffs were licensed optometrists employed by corporations (i.e. not

independent optometrists) who sought to enjoin license revocation hearings before the state

optometry board on charges of unprofessional conduct. The alleged unprofessional conduct was

employment by a corporation. At the time, almost half of the state’s optometrists were employed

by corporations. The Supreme Court noted that Younger “presupposes the opportunity to raise and

have timely decided by a competent state tribunal the federal issues involved” and that the state

board was “incompetent by reason of bias to adjudicate the issues pending before it.” Id. at 577-

78. The board, which was composed entirely of independent optometrists, sought to revoke the

licenses of “all optometrists in the State who were employed by business corporations …, and that

these optometrists accounted for nearly half of all the optometrists practicing in Alabama.” Id. at

578. The Supreme Court affirmed that “the pecuniary interest of the members of the Board of

Optometry had sufficient substance to disqualify them, given the context in which the case arose.”

Id. at 579.

The facts alleged here do not present such an extreme circumstance. First, unlike in the

Gibson where the Board of Optometry had the authority to suspend licenses, the temporary

suspensions at issue are made by the Tennessee Supreme Court in the first instance on petition by

the Disciplinary Counsel and later on report and recommendation by a three-member panel. At no

point in the proceedings to date did the BPR temporarily suspend Plaintiff’s law license, nor could

it. More importantly, however, the pecuniary interest of the board in Gibson is not present here.

In Gibson, the board effectively sought to revoke licenses of half of the optometrists in the state

when those to be excluded from practice were also categorically excluded from participation on

the board.

The BPR does not have a pecuniary interest comparable to that of the board in Gibson that

would disqualify them from hearing the disciplinary charges. The temporary suspension is

directed at a single attorney, not an entire category of practitioners; nor is the Rule of Professional

Conduct on which Plaintiff’s suspension was based a rule that affects Plaintiff but not any of the

members of the BPR. Nor is there any indication that the members of the BPR have a pecuniary

interest in Plaintiff’s suspension sufficient to render the BPR incompetent to adjudicate complaints

against Plaintiff. There are over 18,000 licensed attorneys in Tennessee.8 It strains credulity to

conclude that the individual member of the BPR would benefit substantially from the removal of

a single attorney, no matter how successful he is.

Moreover, it appears from the record in the disciplinary proceedings before the Tennessee

Supreme Court, that Plaintiff is able to raise complaints of bias before the Tennessee Supreme

Court. Indeed, in his objections to the report and recommendation of the panel recommending

8 See American Bar Association National Lawyer Population Survey (2019), available at

https://www.americanbar.org/content/dam/aba/administrative/market_research/national-lawyer-

population-by-state-2019.pdf

reimposition of the temporary suspension, Plaintiff objected to the alleged bias of members of the

panel. The Tennessee Supreme Court considered and overruled the objection.

Finally, Plaintiff argues that Younger abstention does not apply to claims for prospective

equitable relief. Plaintiff claims he “specifically seeks prospective relief unrelated to the

proceedings that have already occurred.” (Pl. Resp., Doc. No. 28 at 22). He requests: (1) that the

Court “enjoin defendants from utilizing the ‘good cause’ standard of § 12.3 or otherwise placing

the burden of proof on Mr. Manookian or others”; (2) “enjoin defendants from violating their own

procedural rules”; and (3) “enjoin defendants from suspending Mr. Manookian’s law license based

upon any evidence that it not admissible under the rules of evidence.” Although in some

circumstances, Younger does not preclude prospective equitable relief, the injunctive relief sought

here directly and unequivocally applies to the ongoing disciplinary proceedings and is precisely

the sort of interference in ongoing state proceedings Younger seeks to avoid.

The case cited by Plaintiff, Wooley v. Maynard, 430 U.S. 705, 710 (1977), involved an

entirely different procedural posture. In Wooley, the Plaintiff did not seek prospective relief

regarding an ongoing case, but to enjoin future prosecution under a state statute he argued was

unconstitutional. The Wooley plaintiff had been convicted of violating the state statute multiple

times and served time in jail rather than pay a fine, but he did not seek to overturn his previous

convictions or expunge his criminal record or any other action that would touch upon the

concluded criminal proceedings. Instead, the plaintiff sought to enjoin the state from prosecuting

him again. In contrast, the underlying proceeding Plaintiff seeks to affect is still ongoing. As

Plaintiff stated, “[T]he Rule contemplates that further proceedings should be adjudicated … the

charges underlying the original suspension have not yet been decided.” (Pl. Reply, Doc. No. 56 at

1).

Based on the foregoing, the Court finds that abstention pursuant to Younger v. Harris is

watranted.

IV. CONCLUSION

For the reasons stated, Defendants’ Motion to Dismiss (Doc. No. 23) is GRANTED, in

part. Plaintiff's antitrust claim in Court IV is subject to Parker immunity and is DISMISSED

WITH PREJUDICE. The claims for damages against Defendants under 42 U.S.C. § 1983 in

Counts I, II, and II are barred by quasi-judicial immunity and are DISMISSED WITH

PREJUDICE. The remaining claims for injunctive and declaratory relief are STAYED pursuant

to Younger v. Harris. See Quackenbush, 517 U.S. at 721 (recognizing the court’s power to stay

cases based on abstention principles where the relief sought is equitable in nature). In light of the

ruling on Defendants’ Motion to Dismiss, Plaintiff's Motion for Preliminary Injunction (Doc. No.

44) is MOOT.

WILLIAM Canoe J dj

UNITED STATES DISTRICT JUDGE

17