Petition for Writ of Certiorari — Michael D. J. Eisenberg, Petitioner v. West Virginia Office of Disciplinary Counsel, et al.

Supreme Court briefOct 25, 2021

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No. _______

In The

Supreme Court of the United States

-------------------------- ♦ ---------------------------

MICHAEL EISENBERG,

Petitioner,

WEST VIRGINIA OFFICE OF DISCIPLINARY

COUNSEL, "OLDC", ALSO KNOWN AS OFFICE OF

LAWYERS DISCIPLINARY COUNSEL; RACHAEL L.

FLECHER CIPOLETTI, CHIEF DISCIPLINARY

COUNSEL, OLDC; JESSICA H. DONAHUE RHODES,

LAWYER DISCIPLINARY COUNSEL, OLDC,

Respondents.

-------------------------- ♦ --------------------------

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLOMBIA

-------------------------- ♦ --------------------------

PETITION FOR WRIT OF CERTIORARI

-------------------------- ♦ --------------------------

Michael D.J. Eisenberg

COUNSEL OF RECORD

LAW OFFICE OF MICHAEL D.J. EISENBERG

700 12th Street, NW, Suite 700

Washington, DC 20005

(202) 558-6371

Michael@Eisenberg-Lawoffice.com

Pro Se Petitioner

Dated: October 25, 2021

THE LEX GROUPDC ♦ 1050 Connecticut Avenue, N.W. ♦ Suite 500, #5190 ♦ Washington, D.C. 20036

(202) 955-0001 ♦ (800) 856-4419 ♦ www.thelexgroup.com

QUESTION PRESENTED

The question presented is whether the Younger

abstention doctrine applies when a state has

indicated it will disregard the Supremacy Clause of

the Constitution and this Court's dicta in Sperry,

when it attempts to regulate a non-state party who

has no significant ties to a state, other than

representing a resident of that state before a federal

agency based in D.C., given the clear federal

objectives that Congress wants no state lawyer's bar

regulation over those representing federal employees

before a federal agency.

LIST OF PARTIES TO THE PROCEEDING

All the parties are listed out in the Caption on

the cover.

STATEMENT OF RELATED CASES

There are no related cases.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................... i

LIST OF PARTIES TO THE PROCEEDING ............ ii

STATEMENT OF RELATED CASES ....................... ii

TABLE OF CONTENTS............................................iii

TABLE OF AUTHORITIES ..................................... vii

OPINIONS BELOW ................................................... 1

STATEMENT OF JURISDICTION ........................... 1

STATUTORY PROVISIONS INVOLVED ................. 2

STATEMENT OF THE CASE ................................... 5

Factual Background .............................. 5

II.

Procedural Background ........................ 7

SUMMARY OF THE ARGUMENT ........................... 8

REASON FOR GRANTING THIS

WRIT OF CERTIORARI .......................................... 13

I. Application of Younger Abstention

Doctrine is Improper Because None of

the Necessary Conditions for Younger

Abstention are Satisfied ................................ 13

A. The Younger Abstention Doctrine

Prevents Federal Courts from

Inappropriately

Intervening

Pending State Court Proceedings ............ 13

B. There is No Ongoing State Procedure

that is Judicial in Nature ......................... 14

1. The Investigatory Stage is Distinct

from, and Antecedent to Any State

Judicial Procedure to Which

Younger Might Apply .......................... 15

2. Judicial Procedure Does Not Dispel

Petitioner's Due Process Rights

when a Disciplinary Complaint

is filed. The Facts of Middlesex and

its Progeny do Not Contemplate

the Present Issue Before this

Court .................................................... 17

3. Any Ongoing State Procedures

Being Conducted by OLDC are so

Lacking in Jurisdiction that they

are Extra-Judicial in Nature .............. 18

4. The cases cited by Respondents

required more than just mere

practice before a Federal Agency to

provide it jurisdiction over a party ..... 21

C. Regulating an Attorney Over Which

the State Has No Jurisdiction Does

Not Constitute an Important State

Interest for WV ......................................... 22

D. Petitioner

has

Adequate

Opportunity to Raise Federal Claims

During the OLDC Investigation and

During the Subsequent WV Bar

Complaint Process .................................... 24

II. Even if Younger Applies in this Case,

Both of the Exceptions to Younger

Abstention Doctrine are Satisfied ................. 26

A. OLDC

Conducting

their

Investigation in Bad Faith ....................... 26

B. The

OLDC

Investigation

Flagrantly Unconstitutional Under

Sperry ........................................................ 31

III.Sperry

Confirms

Respondents'

Investigation Lacks Jurisdiction in its

Entirety .......................................................... 32

IV. The WV State Supreme Court case York

does not apply, and the Circuit Court

Misapplied York When Concluding it

Created Jurisdiction for Respondents

Over Petitioner............................................... 34

V. Congress has clearly indicated its

federal objectives of not requiring state

bar regulation in the area Petitioner

represented Complainant .............................. 35

A. Congress has implied authority to

(solely) discipline attorneys and

other professionals before it ..................... 35

B. The Court has not granted states the

ability to regulate a non (bar)

member for their activities solely

before a federal agency based in D.C. ...... 37

C. A federal, let alone state judiciary is

not the place to discipline an attorney

for his activities before a federal

agency ....................................................... 38

VI. Respondents are Not Immune from

Petitioner's Action Under the Eleventh

Amendment .................................................... 38

CONCLUSION ......................................................... 40

APPENDIX:

Judgment of

The United States Court of Appeals for the

District of Columbia Circuit Court

Re: Affirming Decision of the District Court

entered April 16, 2021 ................................... 1a

Order of

The Honorable Amy Berman Jackson

Re: Granting Defendants’ Motion to Dismiss the

Amended Complaint, Denying Plaintiff’s Motion for

Leave to File a Second Amended Complaint and

denying Plaintiff’s Motion for a Preliminary Injunction

entered June 30, 2020 .................................... 7a

Memorandum Opinion of

The Honorable Amy Berman Jackson

entered June 30, 2020 .................................... 9a

Order of

The District of Colombia Court of Appeals

Re: Denying Appellant’s Petition for Rehearing or

Rehearing en banc

entered May 26, 2021................................... 24a

vii

TABLE OF AUTHORITIES

Page(s)

CASES

Camp v. Herzog,

104 F. Supp. 134 (D.D.C. 1952) ................ 35-36

Dombrowski v. Pfister,

380 U.S. 479 (1965) ............................ 10, 28, 29

Doran v. Salem Inn, Inc.,

422 U.S. 922 (1975) ................................ passim

Ex parte Young,

209 U.S. 123 (1908) ............................ 12, 38, 39

Fla. Dep't of State v. Treasure Salvors,

458 U.S. 670, 102 S. Ct. 3304 (1982) ............. 39

Gadda v. Ashcroft,

377 F.3d 934 (9th Cir. 2004) .......................... 21

Gertz v. Robert Welch,

418 U.S. 323, 94 S. Ct. 2997 (1974) ............... 25

Gibson v. Berryhill,

411 U.S. 564 (1973) ........................................ 29

Gillette v. N. Dakota Disciplinary Bd. Counsel,

610 F.3d 1045 (8th Cir. 2010) ........................ 21

Greenberg v. Haggerty,

491 F. Supp. 3d 12 (E.D. Pa. 2020) ......... 22, 23

viii

Hoai v. Sun Ref. Mktg. Co.,

866 F.2d 1515 (D.C. Cir. 1989) ...................... 14

Huffman v. Pursue, Ltd.,

420 U.S. 592 ................................................... 13

Hustler Magazine v. Falwell,

485 U.S. 46, 108 S. Ct. 876 (1988) ................. 25

In re Griffiths,

413 U.S. 717 (1973) ........................................ 36

Int'l Shoe Co. v. Washington,

326 U.S. 310 (1945) ........................................ 27

JMM Corp. v. Dist. of Columbia,

378 F.3d 1117, 1127 (D.C. Cir. 2004) ...... 14, 26

Kentucky v. Graham,

473 U.S. 159 (1985) ............................ 12, 38, 39

Kugler v. Helfant,

421 U.S. 117 (1975) ........................................ 28

Middlesex County Ethics Comm. v.

Garden State Bar Assoc.,

457 U.S. 423 (1982) ................................ passim

Moore v. Sims,

442 U.S. 415 ............................................. 14, 31

Ohio Civil Rights Comm'n v.

Dayton Christian Sch., Inc.,

477 U.S. 619 (1986) ........................................ 13

Pennoyer v. Neff,

95 U.S. 714 (1877) .......................................... 27

Sperry v. Florida,

373 U.S. 379 (1963) ................................ passim

State ex rel. York v.

W. Va. Off of Disciplinary Counsel,

744 S.E.2d 293 (W. Va. 2013) ......................... 5

Steffel v. Thompson,

415 U.S. 452 (1974) ................................ passim

Touche Ross & Co. v. SEC,

609 F.2d 570 (2d Cir. 1979) ........................... 35

U.S. v. Alvarez,

617 F.3d 1198 (9th Cir. 2010) ........................ 25

Ward v. Maryland,

79 U.S. 418, 20 L. Ed. 449 (1871) .................. 32

Young v. Masci,

289 U.S. 253 (1933) ............................ 12, 38, 39

Younger v. Harris,

401 U.S. 37 ............................................. passim

Ziankovich v. Large,

Civil Action No. 17-cv-02039-CMA-NYW,

2019 U.S. Dist. LEXIS 159924

(D. Colo May 31, 2019) ................................... 21

CONSTITUTIONAL PROVISIONS

U.S. Const. art. IV, § 2, cl. 1 ........................... 2, 23, 32

U.S. Const. art. VI, cl. 2.............................................. 2

U.S.Const. amend. 1 ............................................. 2, 23

U.S. Const. amend. 5 .................................................. 2

U.S. Const. amend. 11 ...................................... passim

U.S. Const. amend. 14 .............................................. 32

U.S. Const. amend. 14, § 1 ......................................... 3

STATUTES

5 U.S.C. § 500 ........................................................... 38

5 U.S.C. § 500(e) ....................................................... 38

15 U.S.C § 78w(a)(1) ................................................ 35

28 U.S.C. § 1291.......................................................... 1

28 U.S.C. § 1331.......................................................... 1

28 U.S.C. § 1391(c)(2) ................................................. 1

28 U.S.C. 1254(1) ........................................................ 2

29 U.S.C. § 156.......................................................... 35

42 U.S.C. §1983......................................................... 39

RULES

American Bar Association R. of

Prof'l Conduct 8.4(g) ................................................. 23

Pa. R. of Prof'l Conduct 8.4....................................... 22

Model R. of Prof'l Conduct R. 8.5 ............................... 7

W. Va. R. of Prof'l Conduct 8.5 .................................. 4

W. Va. R. of Prof'l Conduct 8.5(a)............................. 24

WV Rule 1 R. Prof ................................................. 4, 22

TREATISES

Aspen Treatise for Federal Jurisdiction (Aspen

Treatise Series) (p. 912), Wolters Kluwer. Kindle

Edition ....................................................................... 16

Aspen Treatise Series (p. 905-906) ..................... 28, 31

OTHER AUTHORITY

William H. Sager & Leslie S. Shapiro,

Administrative Practice Before Federal Agencies,

4U. Rich. L. Rev. 76 (1969) .............................................. 37

OPINIONS BELOW

Eisenberg v. W. Va. Office of Disciplinary

Counsel, 856 F. App'x 314 (D.C. Cir. 2021), represents

the District of Columbia Circuit's final decision on Mr.

Eisenberg’s case and was decided on April 16, 2021.

This decision appears at Appendix page 1a. Then the

District of Columbia Circuit denied Mr. Eisenberg’s

petition for rehearing en banc (Docket No. 1900188)

on May 26, 2021. This denial appears at Appendix

page 24a. Eisenberg v. W. Va. Office of Disciplinary

Counsel, Civil Action No. 19-3006 (ABJ), 2020 U.S.

Dist. LEXIS 114419 (D.D.C. June 30, 2020),

represents the decision from the District of Columbia.

Decided June 30, 2020, this decision appears at

Appendix page 9a.

STATEMENT OF JURISDICTION

The United States District Court for the

District of Columbia had jurisdiction over this action

under 28 U.S.C. § 1331, which vests district courts

with original jurisdiction of all civil actions arising

under the Constitution, federal laws, or treaties of the

U.S. Proper venue was laid in the District Court

under 28 U.S.C. § 1391(c)(2), as that is the judicial

district in which a substantial part of the events

giving rise to this claim occurred. The United States

Court of Appeals for the District of Columbia Circuit

had subject matter jurisdiction over the resulting

appeal under 28 U.S.C. § 1291. The judgment of the

Court of Appeals was entered on April 16, 2021. By

order on March 19, 2020, this Court extended the

deadline for all petitions for writ of certiorari due on

or after the Court's order to 150 days from the lower

court's judgment or order denying a timely petition for

rehearing. The jurisdiction of this Court rests on 28

U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

Supremacy Clause of the Constitution, U.S.

Const. art. VI, cl. 2.

This Constitution, and the Laws of the [U.S.]

which shall be made in Pursuance thereof; and

all Treaties made, or which shall be made,

under the Authority of the [U.S.], shall be the

supreme Law of the Land; and the Judges in

every State shall be bound thereby, anything in

the Constitution or Laws of any State to the

Contrary notwithstanding.

U.S.C.S. Const. Art. IV, § 2, Cl 1, Privileges and

immunities of citizens.

"The Citizens of each State shall be entitled to

all Privileges and Immunities of Citizens in the

several States."

U.S.C.S. Const. Amend. 1, First Amendment

rights to free speech, free association, and petition:

Congress shall make no law respecting an

establishment of religion, or prohibiting the

free exercise thereof; or abridging the freedom

of speech, or of the press; or the right of the

people peaceably to assemble, and to petition

the Government for a redress of grievances.

U.S.C.S. Const. Amend. 5, Fifth Amendment

rights to equal protection and due process:

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury,

except in cases arising in the land or naval

forces, or in the Militia, when in actual service

in time of War or public danger; nor shall any

person be subject for the same offense to be

twice put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a

witness against himself, nor be deprived of life,

liberty, or property, without due process of law;

nor shall private property be taken for public

use, without just compensation.

U.S.C.S. Const. Amend. 11, Suits against

states—Restriction of judicial power.

The Judicial power of the [U.S.] shall not be

construed to extend to any suit in law or equity,

commenced or prosecuted against one of the

[U.S.] by Citizens of another State, or by

Citizens or Subjects of any Foreign State.

U.S.C.S. Const. Amend 14, § 1,

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof,

are citizens of the United States and of the

State wherein they reside. No State shall make

or enforce any law which shall abridge the

privileges or immunities of citizens of the

United States; nor shall any State deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.

West Virginia Rules of Professional Conduct

Rule 1.

West Virginia Rules of Professional Conduct

Rule 8.5.

(a) Disciplinary Authority. A lawyer admitted

to practice in this jurisdiction is subject to the

disciplinary authority of this jurisdiction,

regardless of where the lawyer's conduct

occurs. A lawyer not admitted in this

jurisdiction is also subject to the disciplinary

authority of both this jurisdiction and another

jurisdiction for the same conduct.

(b) Choice of Law. In any exercise of the

disciplinary authority of this jurisdiction, the

rules of professional conduct to be applied shall

be as follows:

(1) for conduct in connection with a matter

pending before a tribunal, the rules of the

jurisdiction in which the tribunal sits,

unless the rules of the tribunal prove

otherwise; and

(2) for any other conduct, the rules of the

jurisdiction in which the lawyer's conduct

occurred, or, if the predominant effect of the

conduct is in a different jurisdiction, the

rules of that jurisdiction shall be applied to

the conduct. A lawyer shall not be subject to

discipline if the lawyer's conduct conforms

to the rules of a jurisdiction in which the

lawyer

reasonably

believes

the

predominant effect of the lawyer's conduct

will occur.

STATEMENT OF THE CASE

This case concerns the lower courts' power to

enter an injunction when a state entity acts outside

its jurisdiction to regulate a party who has no

significant ties to the state except for appearing

before a federal agency based in D.C. Here, the federal

courts' power must be assessed within the framework

established by Younger v. Harris, 401 U.S. 37, 41

(1971), and Sperry v. Florida, 373 U.S. 379 (1963),

which the state has indicated it will not follow.

The District erred by not applying Sperry. A

panel in the Court of Appeals further erred in its

application of Sperry and in citing State ex rel. York v.

W. Va. Off of Disciplinary Counsel, 744 S.E.2d 293, as

primary case law supporting Respondents’ position.

The Court of Appeals' application of York, a WV

Supreme Court case, contradicts this Court's ruling in

Sperry. The Panel further erred in denying

Petitioner's request for reconsideration and hearing

en banc. In the District Court's June 30, 2020,

decision employing Younger to Petitioner's request for

an injunction, dismiss Respondents’ state action

against Petitioner, and dismiss related causes of

action against Petitioner, and the Circuit Court's

April 16, 2021, decision upholding that order and

denial for request for reconsideration, should be

overturned and remanded with orders consistent with

Petitioner's brief(s).

Factual Background

Before May 21, 2019, Petitioner, an attorney

with an office and licensed only in Washington, DC,

was retained by a West Virginia (WV) resident

(Resident) to represent the Resident before several

federal agencies regarding a separate federal agency.

J.A. Vol 1 at 60, ¶¶3, 7, 9, January 28, 2021, (ECF #

1882443). The various federal agencies are based in

D.C. During his representation, Petitioner visited the

subject federal agency whose target office is in WV.

These trips were only for matters before several

federal agencies based in D.C. with no relevant offices

in WV. Id., ¶9. Petitioner does not practice in a WV

state court nor is a member of any federal court in

WV. Petitioner has never maintained an office in WV,

never resided in WV, and does not advertise in WV.

Petitioner's sole connection to WV is that he had to

travel through it for work-related activities at the

building of the federal agency subject to the other

federal agencies who have no relevant footprint in

WV.

On or about May 21 - 23, 2019, Respondent

Rhodes contacted Petitioner to inform him that a

Resident and her husband had filed individual

complaints against him with WV's Office of Lawyer

Disciplinary Counsel ("OLDC"). OLDC is an

administrative arm of WV Supreme Court of Appeals.

J.A. Vol I at 60-61, ¶¶4, 11. Petitioner inquired with

Rhodes about OLDC's lack of jurisdiction over a party

who had never been a member of WV’s State Bar, does

not practice before WV state courts, and does not

practice before a federal court in WV. She responded

by citing York as a case that supported her alleged

position. J.A. Vol I at 61, ¶¶12–14.

After reviewing the case, Petitioner informed

Rhodes that the case did not apply because Petitioner

does not: "a) maintain an office in [WV]; b) regularly

conduct business in [WV]; c) practice Patent Law[] in

[WV], and; . . . d) practice in [WV] agencies, state, or

federal courts." Id. ¶15. In response, Rhodes "merely

repeated Rule 8.5 of the [WV] Rules of Professional

Conduct ("Rule 8.5")." Model Rules of Prof’l Conduct

R. 8.5; see also J.A. Vol I at 62,¶16.

From on or about September 30, 2019,

Petitioner communicated with Respondent FlecherCipoletti at to "explain the situation" and "discuss

the law and the facts." Id. ¶17. Petitioner "reminded

. . . Cipoletti that this matter falls under [Sperry],"

and he transmitted his previous communications with

Rhodes. Id. ¶¶18–19. Respondents cited other cases

allegedly supporting their position but failed to

respond to Petitioner after he refuted, distinguished,

and dismissed each cited case. Memo. Opp. at 2; see

also J.A. Vol I at 86. Instead, Flecher-Cipoletti replied

by repeating Rule 8.5 without commenting on

Petitioner's discussion of relevant case law. Id. at 8182.

II.

Procedural Background

Petitioner filed the original complaint, along

with a motion for a preliminary injunction, with the

District Court. on October 7, 2019. Compl.; see also

J.A. Vol I at 10-14.; Mot. for Prelim. Inj.; J.A. Vol I at

17-24. Respondents moved to dismiss on November 8,

2019. See J.A. Vol I at 22-40. On December 2, 2019,

Petitioner filed the Amended Complaint. He sought,

and still seeks, declaratory and injunctive relief in an

order directing the Respondents to dismiss OLDC's

case, among other forms of relief. See J.A. Vol I at 63,

¶¶30–34. Respondents moved to dismiss on December

16, 2019. Defs. 'Mot. See JA Vol I 65-68.

The District Court granted Respondents'

Motion to Dismiss and dismissed Petitioner's Motion

for a Preliminary Injunction June 30, 2020, See J.A.

Vol I at 159. Petitioner then timely filed for appeal of

that order before the U.S. Court of Appeals for D.C.

See J.A. Vol I at 173. The Circuit Court affirmed the

lower court's decision on April 16, 2021. Cert. App. at

1a. Petitioner then filed a petition for rehearing and

rehearing en banc on May 17, 2021, which was denied.

Cert. App. at 24a. Petitioner now timely files for

appeal of the order granting Respondents’ Motion to

Dismiss before this Court.

SUMMARY OF THE ARGUMENT

This Court's jurisprudence in Younger v.

Harris, 401 U.S. 37, 41 (1971) ensures state court

proceedings are not unduly interrupted by federal

court action. Younger's abstention doctrine requires

federal courts, based on principles of equity and

comity, to abstain from ruling on cases involving state

proceedings where specific criteria are met. However,

applying the Younger abstention doctrine is

inappropriate here because the circumstances do not

fulfill the requisite elements. First, this matter does

not involve an ongoing state procedure that is judicial

in nature. Instead, this matter involves an

investigatory process under a state bar complaint.

This Court has concluded, in cases such as Steffel and

Doran, that investigations lacking procedural

protection are immune from Younger abstention

doctrine.

While this Court recognized bar proceedings

may constitute ongoing state proceedings, e.g.,

Middlesex, here Respondents have brought no charge

against Petitioner. Since there is no codified

procedural process to follow, Respondents fail to

provide procedural due process protections during

their OLDC investigations. Thus, Steffel and Doran

serve as a bar to the applicability of Middlesex. This

Court could not have based Middlesex on the principle

that criminals under investigation are afforded more

due process rights than ordinary citizens, especially

those who advocate on their behalf. Finally,

Respondents

lack

jurisdiction

since

their

investigation is extra-judicial in nature. Respondents

lack jurisdiction to interfere with Petitioner's practice

before a federal agency 1, as this Court's decision in

Sperry confirms federal authorization supersedes a

state's attempted interference based on the

Constitution's Supremacy .

The second requirement for invoking Younger

abstention doctrine, the existence of an important

state interest, is also not met. While WV undoubtedly

maintains a valid interest in protecting their citizens

from erroneous attorneys practicing law within their

jurisdiction, that interest is irrelevant where WV's

jurisdiction is lacking. 2 Petitioner has no significant

contacts with WV including noting living or

advertising in WV. As a Pennsylvania District Court

reasoned in Greensberg, a state bar association cannot

infringe upon an attorneys' constitutional rights.

1 Respondents failed to provide any disciplinary action

they can actually pursue against Respondent, other than to

claim they will not interfere with Petitioner’s federal practice.

Given the lack of available regulatory action it can take,

Respondents' actions are suspect at best.

2 Congress has not relinquished to the states its power to

regulate professionals who appear before federal agencies. See

§ V, infra.

The third requirement for invoking Younger

abstention doctrine is not met here. The extra-judicial

investigatory process to which Petitioner is being

subjected lacks any procedural safeguards.

Respondents have been uncomfortably forthcoming

about the fact that they will not give Petitioner's

federal claims due consideration, specifically refusing

to apply Sperry, which contains this Court's dicta and

reasoning

critical

matters

involving

representatives before federal agencies.

Even if this Court finds the requisite elements

for invoking Younger abstention doctrine exists,

Younger abstention still may not be employed because

both exceptions are satisfied. First, Respondents are

investigating in bad faith, as evidenced by the rule

Respondents assert to claim jurisdiction requires the

attorney to be (1) a member of WV’s State Bar or (2)

practice in WV. Petitioner does not meet either

requirement. Thus, WV is acting beyond the scope of

its state constitution.

Petitioner's conduct falls within the scope of

Sperry, and Respondents cannot cite a single case

affirming jurisdiction over attorneys from another

state practicing exclusively before federal agencies.

Instead, Respondents argue that Petitioner should

submit to a frivolous proceeding which will ultimately

be found invalid by this Court. In Dombrowski, this

Court already determined petitioners in such a

position need not succumb to substantial loss or

impairment while waiting for the ultimate review of

this Court.

Second,

Respondents'

investigation

flagrantly unconstitutional because they invoke Rule

8.5, which expressly governs lawyers admitted to

practice in the jurisdiction and those offerings and

providing legal services in WV jurisdiction. The

application of such a rule to Petitioner is absurd. He

does not maintain significant contacts with WV.

Petitioner's single connection to WV is occasionally

visiting a federal building located in WV regarding

federal issues for other federal agencies not located in

WV. Petitioner's office is in D.C. Therefore,

unjustified attempts to regulate Petitioner by OLDC

interfere with Petitioner's constitutional right to

travel between states, as guaranteed by the Privileges

and Immunities Clause.

Similarly, this Court's dicta in Sperry confirm

that Respondents' investigation is improper. Sperry

permeates every aspect of this case: (1) Younger

abstention does not apply because the investigation is

extra-judicial by impeding federal power to authorize

representation before federal entities; (2) the

jurisdictional issues in Sperry confirm that WV has

no valid state interest in regulating Petitioner; (3)

Petitioner's federal claim arises under Sperry and

Respondents have made clear they will ignore Sperry

in any future proceedings. Sperry also confirms the

exceptions to the Younger abstention doctrine are

satisfied because: (a.) Respondents persist despite

Sperry

and

(b.)

Respondents'

conduct

unconstitutional by running afoul of Sperry. The

courts cannot accurately adjudicate this case without

rectifying the erroneous application and disregard for

Sperry.

York, cited by Respondents and used by the

Circuit Court to facilitate Respondents’ mistaken

jurisdiction over Petitioner, does not apply here.

While the petitioner in York was an attorney under a

bar complaint, that attorney was also a resident of

WV, maintained an office in WV, and was formally

charged by LBD. Imperatively, the resolution over

York was based on the location of his patent law office

in WV. Thus, York simply cannot be likened to the

present circumstances, as the primary basis upon

which

Petitioner

challenges

Respondents'

investigation, Respondents’ jurisdiction (or lack

thereof), was clearly established in York via factors

which do not exist for Petitioner. Allowing this flawed

interpretation to persist will have significant

consequences for a host of representatives

nationwide, e.g., union leaders appearing before

federal agencies, attorneys and other professionals

representing Veterans before the Department of

Veterans Affairs ("VA"), JAG lawyers appearing

before Article I courts, and many others.

Finally, the Eleventh Amendment does not

insulate Respondents Flecher-Cipoletti or Donahue

from these proceedings. Where state government

actors are not acting in the scope of their state's

jurisdiction, they can be sued in their individual

capacities. See Ex parte Young and Kentucky

discussed in § VI, infra. Petitioner has successfully

named these Respondents in their individual

capacity; thus dismissal against them was improper.

Petitioner respectfully asks this Court to

overturn the decision of the Circuit Court and remand

for declaratory and injunctive relief in an order

directing the Respondents to dismiss OLDC's case

and other relief consistent with this writ.

REASON FOR GRANTING THIS

WRIT OF CERTIORARI

The lower courts erred by incorrectly applying

the Younger abstention doctrine to Petitioner's case,

thereby abstaining from this critical matter when the

grounds for abstention are not satisfied. Even if this

matter did satisfy the criteria for Younger abstention,

the lower courts were wrong to abstain because both

exceptions to Younger are satisfied. Further, the

lower Courts erred in their flawed applications of

Sperry and York. Finally, the Eleventh Amendment

does not insulate Respondents Flecher-Cipoletti or

Donahue from this action.

I. Application of Younger Abstention Doctrine Is

Improper Because None of the Necessary

Conditions for Younger Abstention are Satisfied.

A. The

Younger

Abstention

Doctrine

Prevents

Federal

Courts

from

Inappropriately Intervening in Pending

State Court Proceedings.

The Younger abstention doctrine requires that

"except under special circumstances," a federal court

should not "enjoin pending state court proceedings."

Younger at 41; see Ohio Civil Rights Comm'n v.

Dayton Christian Sch., Inc., 477 U.S. 619, 626–27

(1986) (extending Younger to a pending state

administrative proceeding); Huffman v. Pursue, Ltd.,

420 U.S. 592, 594 (1975) (extending Younger to

pending civil state court proceedings). The doctrine is

based upon principles of equity and comity,

precluding federal intervention where three criteria

are met: (1) there are ongoing state proceedings that

are judicial in nature, (2) the state proceedings

implicate important state interests, and (3) the

proceedings afford an adequate opportunity to raise

federal claims. See Younger at 43–44; Hoai v. Sun Ref.

Mktg. Co., 866 F.2d 1515, 1518 (D.C. Cir. 1989), citing

Middlesex County Ethics Comm. v. Garden State Bar

Assoc., 457 U.S. 423, 432 (1982). Extraordinary

circumstances may supply grounds for a federal court

to intervene when a state action was brought in bad

faith or where a state law is flagrantly

unconstitutional. JMM Corp. v. Dist. of Columbia,

378 F.3d 1117, 1127 (D.C. Cir. 2004), citing Younger,

401 U.S. at 41, 53–54.

This Court has reasoned that the Younger

abstention doctrine applies to noncriminal judicial

proceedings, including pending administrative

proceedings, where important state interests are

involved. See Moore v. Sims, 442 U.S. 415, 423 (1979);

Middlesex at 434. Petitioner acknowledges that the

Court has specifically extended this reasoning to

cover state bar disciplinary proceedings. See

Middlesex at 434. But none of the Younger abstention

criteria bar the lower courts from interceding.

B. There is No Ongoing State Procedure that

is Judicial in Nature.

The Younger abstention doctrine requires there

be an ongoing state procedure that is judicial in

nature. Sub judice, no such procedure is ongoing.

First, Respondents have not yet started any formal

disciplinary process. OLDC's conduct remains only

investigatory. Second, judicial procedure cannot begin

with filing a disciplinary complaint when a party is

not afforded due process protections during the

investigation, as this precise issue has not been

previously contemplated by the Court. Third, even

had OLDC started a formal disciplinary process, i.e.,

beyond its investigation, such a process would be so

lacking in jurisdiction it would be extra-judicial in

nature and thus, not qualify as an ongoing state

judicial process.

1. The Investigatory Stage Is Distinct from,

and Antecedent to Any State Judicial

Procedure to Which Younger Might Apply.

The Supreme Court in Steffel and Doran

determined that disciplinary proceedings are akin to

criminal proceedings with all of their procedural

protections but that investigations lacking any

procedural protections are immune from the Younger

abstention doctrine. See Steffel v. Thompson, 415 U.S.

452, 462 (1974); Doran v. Salem Inn, Inc., 422 U.S.

922, 930-31 (1975). This Court's findings were

premised that such investigations lack the procedural

protections that might attach later once the

investigatory stage gave way to formal proceedings.

Id.

Then this Court concluded, by analogy, that a

state bar complaint process has similar protections to

a criminal process. Middlesex, at 432. Based on this

stare decisis, we must use a similar analogy to

determine (1) when a state bar complaint process

begins and (2) whether this court could intervene in

an analogous criminal investigation. The Supreme

Court has found federal court intervention acceptable

when there are no actual ("criminal") court

proceedings.

In Steffel, this Court found that "[w]hen no

state criminal proceeding is pending when the federal

complaint is filed, federal intervention does not result

in duplicative legal proceedings or disruption of the

state criminal justice system." Steffel at 462. Absent

a pending state proceeding, federal court action

cannot "be interpreted as reflecting negatively upon

the state court's ability to enforce constitutional

principles." Chemerinsky, Erwin. Aspen Treatise for

Federal Jurisdiction (Aspen Treatise Series) (p. 912),

Wolters Kluwer. Kindle Edition.

This Court's ruling in Doran bolsters this

Court's intervention. In Doran, the Court found that

petitioners, the two not in state court proceedings,

should receive an injunction issued by the federal

court "...because there is no available forum in which

to raise the constitutional claims [as they were being

threatened with state prosecution]." Id. at 889. Just

as here, Petitioner is being threatened with state

prosecution, but no actual prosecution is taking place;

thus, this Court's intervention is not barred.

In both Steffel and Doran, the successful

parties defeated the Younger argument because the

respective state was only investigating the matters.

The state officials were not prosecuting the matters in

court, nor were their investigations, in-and-ofthemselves, appealable to a state court. There were

no procedural protections, i.e., hearings, oversight by

a judge, ability to appeal, at the investigation stage,

just as there are none available to Petitioner. Thus,

the present investigation of Petitioner is not the sort

of judicial procedure courts have found deserving of

Younger abstention or contemplated in Middlesex.

2. Judicial Procedure Does Not Dispel

Petitioner's Due Process Rights when a

Disciplinary Complaint is filed. The Facts of

Middlesex and its Progeny do Not

Contemplate the Present Issue Before this

Court.

The Appeal Court's Panel cited Middlesex to

support that a judicial proceeding begins with filing a

complaint. The court then concluded federal court

intervention here would be inappropriate because a

state court could adequately adjudicate constitutional

issues. But the facts in Middlesex are markedly

different from the facts sub judice. Forced application

of Middlesex in Petitioner's case is not consistent with

this Court's decisions, detailed above, in Steffel and

Doran.

Contrary to Respondents' facts, the bar

associations in Middlesex and similar cases had filed

formal charges against Middlesex, et al. The

investigation had concluded, and the accused party

had an opportunity to respond to formal charges. Sub

judice, no formal charges have been filed against

Petitioner. Respondents are still only in their

investigation stage. The investigation stage is

precisely what Petitioner is petitioning this Court

against. There is no codified process to allow an

appeal of the investigation itself or hold a hearing to

stop or end this action. The right to appeal or be

heard by a disciplinary body's investigation

stage, i.e., activity before the filing of formal

charges, was not contemplated by the Court in

Middlesex. Disregarding this distinction contradicts

the Supreme Court's prior rules in Steffel and Doran.

The extension of Younger to cases where a state

is only investigating the matter without due process

rights cannot be the intent of this Court's decision in

Middlesex. Due Process should not fall prey to

circumvention when a state actor places an

"investigation stage" under the "judicial process" and

prevents a party from seeking relief during

unconstitutional investigation. Attorneys are entitled

to the same Due Process rights as those under

criminal investigation: They should have the same

right to seek court intervention when their

constitutional rights are being violated by an

investigation that lacks jurisdiction.

3. Any Ongoing State Procedures by OLDC

Are so Lacking in Jurisdiction that they Are

Extra-Judicial in Nature.

Even if Respondents' investigation of

Petitioner qualifies as an ongoing state procedure,

Respondents' lack of jurisdiction renders any

investigation of Petitioner extra-judicial and thus, not

subject to Younger abstention doctrine. Under Sperry

and its progeny, it is well established by this Court

that states may not interfere with regulations of

practice before a federal agency. Thus, Petitioner's

practice before federal agencies based in D.C., e.g.,

EEOC, MSPB, OWCP, on behalf of a WV resident

cannot, standing alone, serve as a basis of jurisdiction

for Respondents.

The Circuit Court misdirected focus on one

aspect of Sperry to bestow WV non-existent

jurisdiction over Petitioner. In Sperry, Sperry was

registered to practice before the U.S. Patent Office

("USPTO") while not admitted to practice law before

the Florida. Sperry, at 381. When the Florida Bar

instituted proceedings to enjoin Petitioner from

representing Florida clients before the USPTO,

rendering opinions as to patentability, and preparing

various legal instruments, this Court concluded that,

"the law of the state . . . must yield when incompatible

with federal legislation." Id, at 384. The Court then

reaffirmed the Patent Commissioner's power to

proscribe regulations, stating where, "authorization

is unqualified, then, by virtue of the Supremacy

Clause Florida may not deny to those failing to meet

its own qualifications the right to perform the

functions within the scope of the federal authority."

Id, at 385.

Just as the petitioner in Sperry could represent

clients before the USPTO, Petitioner is authorized by

Congress to practice before the Office of Workers

Compensation (OWCP), the Equal Employment

Opportunity Commission (EEOC), the Merit Systems

Protection Board (MSPB), and any Federal

Government administrative board. The Circuit Court

was correct in asserting that Sperry held, "federal

regulations allowing non-lawyers to appear before the

Patent Office preempted state regulations to the

contrary." 3 Cert. App. at 4a. By limiting its

consideration of Sperry illustrates, the Circuit Court

disregards Sperry's relevancy.

While the federal agency before which

Petitioner appeared does not require representatives

3 Respondents have failed to show where Congress has

relinquished its control of licensure before federal agencies. See

§V, infra, for in-depth discussion. Further, Respondents failed to

discuss how they have any jurisdiction over Petitioner if this bar

did not exist. See §I.B.4, supra.

to pass a separate bar examination, federal agencies

have their own explicit requirements for

representatives appearing before them. For instance,

the VA accreditation program requires an attorney to

complete 3 hours of qualifying continuing legal

education ("CLE") requirements during the first

twelve-month period following the date of initial

accreditation, an additional three hours of CLE

within three years of accreditation, and an additional

three hours of CLE every two years thereafter, as well

show an annual certification of good standing for any

court, bar, or Federal or State agency to which the

attorney is admitted to practice. 4 Such requirements

are separate and distinct from those for obtaining

certification with the WV State Bar. Petitioner

possessed the requisite authorization to represent

WV’s Resident before the federal agencies, and this

Court's dicta in Sperry indicates state actors may not

impede such authorization. As discussed above and in

§ V, infra, there is no indication that Congress has

relinquished its authority to the states for admission

and discipline of professionals before federal agencies.

Impediment of Petitioner's federally authorized

acts by a state lacking jurisdiction over him violates

the Supremacy Clause: Violating Petitioner's

Constitutional Rights cedes any application of

Younger.

For requirement by other federal agencies, see

https://www.va.gov/ogc/accreditation.asp. (last viewed on

October 18, 2021).

4. The cases cited by Respondents required

more than just mere practice before a

Federal Agency to provide it jurisdiction

over a party.

In Respondents cited cases, the courts found

jurisdiction on grounds separate to mere practice

before a federal agency. See J.A. Vol I at 131-151.

(Providing in-depth analysis of, and distinguishing

from, each case presented by Respondents); see

Gillette v. N. Dakota Disciplinary Bd. Counsel, 610

F.3d 1045 (8th Cir. 2010)(Holding plaintiff attorney

liable due to their former membership in N.D. State

Bar, as opposed to finding liability for practice on

tribal land.); Gadda v. Ashcroft, 377 F.3d 934 (9th Cir.

2004)(Finding that plaintiff attorney was an active

member of relevant state bar association.);

Ziankovich v. Large, Civil Action No. 17-cv-02039CMA-NYW, 2019 U.S. Dist. LEXIS 159924 (D. Colo

May 31, 2019)(Noting, though plaintiff attorney was

not a member of state bar association in question,

they were practicing in federal court within the state

at the time.). Middlesex at 432 (Noting that plaintiff

attorney was a member of the state bar association.).

No such additional grounds exist here.

Respondents are bereft of jurisdiction. Jurisdiction is

the start and end of this matter. No investigation of

Petitioner can be allowed to continue if no authority

existed for that investigation to begin. Respondents’

conduct is extra-judicial and not subject to Younger,

which requires that a legitimate ongoing state

procedure be judicial in nature.

C. Regulating an Attorney Over Which the

State Has No Jurisdiction Does Not

Constitute an Important State Interest for

WV.

Respondents have a state interest in protecting

their citizens from alleged erroneous attorneys

practicing law within their jurisdiction, including

members of WV’s state bar and out-of-state attorneys

appearing before state agencies, state courts, and

federal courts in WV. But Petitioner has no

significant ties to WV 5. It is not WV's place to regulate

Petitioner's conduct which occurs outside of WV's

jurisdiction. Petitioner cannot be restrained where

the state has no jurisdiction to act.

Petitioner does not practice law in WV.

Respondents assert they have interests in protecting

WV citizens and maintaining the standard of

professional ethics and conduct of the bench and bar.

But WV is exceeding the limits of its Constitution,

and WV Rule 1: Petitioner does not appear before that

bench, nor is he a member of that bar. His

appearances are before federal agencies based in D.C.

WV's "interest" and state rule do not create

jurisdiction where none exists. Respondents have

failed to produce a suitable tie to Petitioner to grant

it jurisdiction over him. Even compelling state

interests do not trump the Supremacy Clause. See

Greenberg v. Haggerty, 491 F. Supp. 3d 12, 32 (E.D.

Pa. 2020).

In Greensberg, an attorney moved for a

preliminary injunction based on the state's amended

Pennsylvania Rule of Professional Conduct 8.4. The

5 See § II.B, supra.

amended Rule, based on the American Bar

Association Model Rule of Professional Conduct

8.4(g), was too broad as it infringed upon Greenberg's

Constitutional Right of Free Speech. U.S. Const.

amend. I. Sub judice, Rule 8.5 is being interpreted so

broadly it will allow states to regulate federal agency

practice where Congress or Sperry has not invited

them. This will have a chilling effect on out-of-state

parties,

both

attorneys

and

non-attorneys,

discouraging them from taking cases for WV citizens

when a D.C.-based federal agency is investigating a

separate federal agency with a building in that

client's state. Besides defying this Court's dicta in

Sperry,

this

interferes

with

Petitioner's

Constitutional Rights of Free Speech (to advocate on

behalf of parties before the federal government

wherever the federal office is located), Freedom

to Travel between states to represent parties

before federal agencies in D.C, Freedom to

Assemble/Associate with WV citizens, and Freedom to

Contract without State interference. Article I and

Article IV, § 2, cl. 1.

Throughout the proceedings before the lower

courts, Respondents failed to produce one case

demonstrating their power to regulate an attorney

who represented a WV citizen before a federal agency

based solely on the subject federal agency building

being in their state. Sperry was clear when it

provided:

While acknowledging that prosecution and

preparation of patent applications for others

constituted the practice of law and that Florida

had "a substantial interest in regulating the

practice of law within the State," the Supreme

Court invalidated the Florida law, because

Florida

could

not

"enforce

licensing

requirements which, though valid in the

absence of federal regulation," imposed

"additional conditions not contemplated by

Congress."

Id. at 384-85 (emphasis added). Sperry is the

controlling law of the land. Respondents must

establish jurisdiction for any enforcement, but they

provided no congressional regulation permitting them

to act against Petitioner's federal agency practice. See

also § V, infra. Likewise, they have offered no

examples of what it can do beyond interfering with

Petitioner's federal agency practice. The Supremacy

Clause of the U.S. Constitution supplants state law.

Article VI, ¶2. Therefore, Respondents can have no

compelling state interest where they lack jurisdiction.

D. Petitioner has no Adequate Opportunity

to Raise Federal Claims During the

Investigation

and

Subsequent

Bar

Complaint Process.

The investigatory stage of the disciplinary

process offers no opportunity to raise federal claims.

As discussed in § I.B.1, supra., the pre-investigation

and investigation portion of Respondents' action

provides no proceeding for Petitioner to raise his

federal "jurisdictional" claims. Respondents assert

that the Investigative Panel of the Lawyer

Disciplinary Board ("LBD") reviewed the matter and

decided that WV Rule 8.5(a) solely applied. See J.A.

Vol II at 169. Petitioner was not provided any notice

of the Panel's meeting, an opportunity to appear or be

heard before the Panel, or a copy of their alleged

decision. Without an opportunity to bring forth

Petitioner's constitutional claims during the

investigation, abstention under Younger is improper

and seriously prejudicial to Petitioner.

WV’s Supreme Court of Appeals has made clear

that it will not give Petitioner’s claims fair

consideration. Petitioner will not get a fair and

unbiased hearing from Respondents after they

conclude their investigation. Respondents are the

regulatory body of WV’s Supreme Court of Appeals.

As an administrative arm of the state court,

Respondents have signaled, with no process for

Petitioner to participate, that their State Supreme

Court will find Sperry does not apply in Petitioner's

situation: This is bolstered by Respondents'

proclamation that after Petitioner has been through

its state Supreme Court, then he can seek redress

before this Court. See Defs.' Memo at 10, n. 7; see also

Vol I at 39. By such time, the underlying allegations

of this case will have been made public in the state

process, and the defamation to Petitioner's

professional reputation will have been done. When it

comes to defamatory falsehoods, "the truth rarely

catches up with a lie," so the "opportunity for rebuttal

seldom suffices to undo harm." Gertz v. Robert Welch,

418 U.S. 323, 394, 94 S. Ct. 2997, 3033 (1974); see also

Hustler Magazine v. Falwell, 485 U.S. 46, 108 S. Ct.

876 (1988) (explaining that defamatory falsehoods

"cause damage to an individual's reputation that

cannot easily be repaired by counterspeech, however

persuasive or effective"). The harm caused by

defamation is thought to be irreparable even when the

truth is brought to light." U.S. v. Alvarez, 617 F.3d

1198, 1211 (9th Cir. 2010). Thus, the proceedings

during the investigation phase fail to provide

adequate opportunity to raise federal claims.

Because there is no ongoing federal

constitutionally valid state procedure that is judicial

in nature, regulating an attorney over which the state

has no jurisdiction does not constitute an important

state interest for WV, and Petitioner has no adequate

opportunity to raise federal claims during the

investigation process, Younger abstention doctrine

does not apply.

II. Even if Younger Applies, Both Exceptions to

Younger Abstention Doctrine Are Satisfied.

Younger is not an absolute shield such that

states may commit any evil free from federal

interference. Extraordinary circumstances may

supply grounds for a federal court to intervene when

a state action was brought in bad faith or where a

state statute is flagrantly unconstitutional. JMM

Corp. v. Dist. of Columbia, 378 F.3d 1117, 1127 (D.C.

Cir. 2004), citing Younger at 41, 53–54. These

extraordinary circumstances are manifest as

Respondents' actions are being conducted in bad faith

and Respondents' authorizing state law (Rule 8.5), if

interpreted to allow OLDC's conduct, is flagrantly

unconstitutional.

A. OLDC Is Conducting their Investigation

in Bad Faith.

Respondents have maintained that Rule 8.5

grants them authority to conduct disciplinary

proceedings against Petitioner. However, Rule 8.5

requires that a lawyer be a member of WV’s State Bar

or practice in WV. 6 Petitioner meets neither

requirement. It is undisputed that Petitioner is not a

member of WV’s State Bar. Rule 8.5 and WV's

constitution can exert control only over attorneys

falling under the jurisdiction of WV, i.e., a member of

WV’s State Bar and attorneys practicing either before

WV's state courts or state agencies, or before a federal

court in WV. Petitioner's practice before federal

agencies based in D.C., under Sperry, does not trigger

WV jurisdiction. Instead, Petitioner's only connection

to WV is that he represented a WV citizen who had

matters before federal administrative bodies based in

DC about her former federal agency of employment

with an office in WV. Petitioner did not practice law

in WV's jurisdiction but rather in a distinct legal

sphere.

Petitioner's conduct fell within the scope of

Sperry. As discussed above in § I.B.4, Respondents

cannot cite a single case affirming jurisdiction of a

state bar association over attorneys from another

state practicing exclusively before federal agencies.

The Circuit Court was in error when it stated in its

Opinion denying Appellant his Requests for

Reconsideration or for En Banc Hearing by citing

York as on point to be supporting Appellee's claim to

jurisdiction over Appellant. The crux to York is that

York had an office in WV and lived in WV. See § I.B.4,

6 Further,

the jurisdiction of a state's constitution is

limited to its jurisdiction. See generally Pennoyer v. Neff, 95 U.S.

714, 733 (1877). Petitioner does not have "... certain minimum

contacts with it such that the maintenance of the suit does not

offend 'traditional notions of fair play and substantial justice.'"

Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (internal

citations omitted). Respondents’ jurisdiction cannot intrude in

other states' or federal jurisdiction.

supra. Respondents specifically lack precedent

supporting their jurisdiction over an attorney without

significant contacts with it. Respondents' inability to

refute this most fundamental issue of jurisdiction

shows that OLDC knew or should have known that

their case against Petitioner could not ultimately

succeed on the merits.

Respondents' actions constitute bad-faith

prosecution. "[A] bad-faith prosecution is when 'a

prosecution has been brought without reasonable

expectation of obtaining a valid conviction.'" Aspen

Treatise Series (p. 905-906) (citing Kugler v. Helfant,

421 U.S. 117, 126 n.6 (1975) (emphasis added)).

Respondents know the controlling nature of Sperry,

i.e., they lack jurisdiction over Petitioner. This

implies that either Respondents intend to pursue

their course of action knowing it is futile or

Respondents anticipate an unconstitutional ruling

from the WV Supreme Court of Appeals, which this

Court must then overturn. 7 In either event,

Respondents know they fight from a false position yet

persist regardless, in bad faith.

The case of Dombrowski v. Pfister provides

further support Respondents are acting in bad faith.

The Younger Court, "distinguished [Dombrowski] by

observing that the latter case involved successive

state court prosecutions for the purpose of

harassment and not conviction." Aspen Treatise at

906 (internal citation omitted). In Dombrowski, the

Court found that the petitioners faced "substantial

7 Even if Petitioner is 100% accurate on the facts and

case law in this matter (which he asserts he is), there is no

guarantee this Honorable Court will take the case given its

discretion to grant certiorari.

loss or impairment of [Constitutional Rights] ... if

[petitioners] must await the state court's disposition

and ultimate review in this Court of any adverse

determination. [Their] allegations, if true, clearly

show irreparable injury." Dombrowski v. Pfister, 380

U.S. 479, 486 (1965); See also Gibson v. Berryhill, 411

U.S. 564 (1973). Respondents do not provide a

meaningful process to appeal their unconstitutional

assumption of jurisdiction during their "preinvestigation" and "investigation phase." Recall, no

charges have been brought whereupon then he would

redress. But currently, Petitioner has no statutory

right to appeal.

At the lower courts, Respondents have argued

Petitioner should submit to a frivolous proceeding

that will ultimately be found by this Court to be fatal

for their position. Respondents' investigation provides

no due process to afford any protection of Petitioner's

jurisdictional, constitutional rights. This only serves

as evidence that Respondents are acting in bad faith.

Respondents infer that Petitioner can file a writ with

its supreme court. See J.A. Vol I at 148. But the option

is neither provided in its regulations nor be fruitful as

discussed above. By Respondents' logic, they would

first professionally, economically, and emotionally

harm him once posting its decision on the internet; it

will never be erased regardless of a later correction.

Respondents are running Petitioner through a predetermined state process. Only then could Petitioner

hope this Court grant cert and WV be corrected by this

Court via Sperry, long after that process has

irrevocably injured Petitioner. 8

Respondents' lack of enforceable sanctions over

Petitioner further reflects Respondents' bad faith

motives. Respondents' counsel provides "[v]arious

disciplinary sanctions are available .... [that] would

not affect Petitioner’s practice of [federal agency

law]." Respondents' Br., J.A. Vol I at 137. But

Respondents provide no example of what action they

could take, if any. Respondents only proffer that

"[WV] citizens filed complaints with [OLDC] against

Eisenberg arising from his representation before a

federal agency in [WV]." Actually, Petitioner's

representation is before the EEOC, OWCP, and

MSPB, based in D.C. with no offices in WV. Further,

Petitioner does not have significant contacts with WV.

Last, Respondents provide no federal

regulation permitting them to act. See § I.B.4, supra.

Thus, they have no form of punishment or regulatory

action to exude upon Petitioner without imposing

regulations outside their jurisdiction and not

contemplated by Congress. Respondents' only

available course of action is to run him through an

embarrassing public inquisition. This will tarnish

Petitioner's reputation through a process that lacked

jurisdiction to start and failed to provide him due

process rights.

Petitioner has made no defense of any charges

Respondents have raised against Petitioner. Doing so could

admit WV has jurisdiction and waive Petitioner's argument

before this Court.

B. OLDC's Investigation Is Flagrantly

Unconstitutional Under Sperry.

Petitioner's matter meets the second exception

to the Younger abstention doctrine because

Respondents’ application of Rule 8.5 is flagrantly

unconstitutional. "Justice Rehnquist concluded [in

Moore v. Sims, 442 U.S. 415] that a federal court

should abstain as long as proceedings exist in the

state system to adjudicate the constitutional claim.

He wrote that 'abstention is appropriate unless state

law clearly bars the interposition of the constitutional

claim.'" Aspen Treatise at 70. Respondents rest their

argument solely on WV Rule 8.5. Respondents' rules

are based on WV legislation and its constitution. If its

rules and legislation under its constitution were

strictly enforced to its licensed members, business

entities, attorney-residents, and attorneys with

routine contacts to its state, then it may not be

flagrantly unconstitutional.

But such an application is starkly different

from this case: Petitioner is not a member of WV’s

Bar, is not a resident of WV, does not have an office

in WV, and does not maintain regular contacts with

the state. When Respondents attempt to use state law

to encroach upon areas of federal law solely

administered by the federal government 9 , as

precluded by Sperry, then that application of state

law cannot stand. Thus, meeting the Younger

exception and is ripe for this Court to hear and strike

down.

Further, Respondents' actions amount to

violating Petitioner's right to travel between states

9 See also §V, infra.

freely. The Fourteenth Amendment's "Privileges and

Immunities" clause guarantees citizens of one state to

pass into any other state to engage in lawful business,

without molestation. See also U.S. Const. Art. IV, § 2,

cl. l; Ward v. Maryland, 79 U.S. 418, 20 L. Ed. 449

(1871). Petitioner should be able to freely travel

between states and practice before a federal agency

without (regulatory) interference by a state where he

has no meaningful contacts otherwise. Last,

Respondents' actions infringe upon Petitioner's

Constitutional Right to freely assemble and associate

with WV citizens.

III. Sperry Confirms Respondents'

Lacks Jurisdiction in its Entirety.

Investigation

Sperry permeates every aspect of this case.

Younger abstention doctrine does not apply because:

(1) OLDC's investigation is extra-judicial due to

impeding federal authority articulated in Sperry; (2)

the jurisdictional issues raised by Sperry clarify that

WV has no jurisdiction and thus has no valid state

interest in regulating Petitioner; and (3) Petitioner's

federal claim arises under Sperry, and he knows WV

will not provide an adequate forum for raising this

claim at this investigation stage (and later if need be)

because Respondents have already declared that they

(and WV’s Supreme Court of Appeals by extension)

will ignore Sperry. The Younger exceptions are

satisfied because: (1) Respondents persist in their

action despite Sperry rendering their investigation

meritless; and (2) Respondents' conduct is flagrantly

unconstitutional because it runs afoul of Sperry.

Perhaps with the sole exception of Younger, Sperry is

the most important case to this entire issue.

The lower courts failed to invoke Sperry

appropriately. It is unconscionable that the District

Court made no discussion of Sperry in its opinion. J.A.

Vol I at 160-172. (The word "Sperry appears only once

and in a quote of Petitioner's words, not in the main

body of the text). The Circuit Court's Panel Decision

interprets the Supreme Court's decision in Sperry,

contrary to decades of interpretation across the

circuits with no case law to support its actions. The

Panel's discussion of Sperry is significantly flawed: (1)

The Respondents’ actions cannot be jurisdictional in

nature where the federal Congress and WV’s state

constitution have not provided it jurisdiction to act.

At minimum, this is extra-jurisdictional. See §§ I.B.34, supra. (2) state proceedings cannot implicate

important jurisdiction where the federal government

or a state constitution has not given it authority (let

alone authorize the use of state funds) to act.

(3) Petitioner is not afforded due process when he

cannot appeal the investigation stage itself:

Suspected criminals should not have more protection

during an investigation than attorneys do during a

bar association's investigation. See § I.B.1, infra.

discussing Steffel and in Doran. As detailed in § V,

allowing this interpretation to stand will create an

artificial ban for union officials, Judge Advocate

Generals, non-profit organizations, and others to

appear on behalf of others in matters before federal

agencies.

This Court cannot accurately adjudicate this

case without rectifying the erroneous disregard for

and mischaracterization of Sperry in the lower courts,

as this Court's holding and dicta in Sperry permeate

every aspect of the jurisdictional issue now before this

Court.

IV. WV’s State Supreme Court case York Does Not

Apply, and the Circuit Court Misapplied York

When Concluding it Created Jurisdiction for

Respondents Over Petitioner.

The Circuit Court's Panel decision proclaims

York provides the very basis upon which Respondents

may act: "The [WV] Rules of Professional Conduct

apply to 'an attorney who, 'like [Petitioner], 'provides

or offers legal services in th[e] state, even where such

attorney's entire practice consists of federal agency

matters." March 16, 2021, Court of Appeals Judgment

at 2. York does not apply here. A thorough review of

York reflects the Panel's error.

York filed a writ of prohibition against OLDC

and LDB. OLDC and LDB had issued a statement of

charges against York. WV's Supreme Court

explained, "…resolution of the jurisdictional question

hinges upon a determination of whether the

petitioner's practice of patent law in an office located

in Huntington, [WV], constituted the 'practice of law

in [WV]'." York, at 188. York's WV office is precisely

what gave OLDC and LDB jurisdiction over him.

Petitioner is neither a resident nor maintains an

office in WV; thus, the threshold basis for York is not

met!

The Circuit Court created jurisdiction where

none exists. If this flawed interpretation is allowed to

proceed, representatives, attorneys, federal employee

union representatives who represent federal

employees before their respective agency, attorneys

who represent Veterans before the VA for VA benefits

appeals, JAG lawyers solely appearing before Article

I courts, inter alia, could be regulated by state bar

associations for actions solely before the federal

government. This flawed interpretation could subject

these and others to Unlicensed Practice of Law

Claims by a state.

As York is inapplicable to this case, there is not

one case on record in this matter that supports the

Circuit Court's decision. Further, Petitioner does not

have significant contacts with WV. Respondents have

nothing to regulate Petitioner for except his federal

agency activities, primarily based in D.C. Because

Respondents provided no relevant federal regulations

allowing it to tread into Petitioner's federal agency

practice, its spurious actions must end.

V. Congress has clearly indicated its federal

objectives of not requiring state bar regulation in

the area Petitioner represented Complainant.

The Circuit Court opined that Petitioner raised

no federal objective that Congress contemplated to

that conflict with WV Rules. Cert. App. at 4a. The

public record is inapposite to this premise:

A. Congress has implied authority to (solely)

discipline

attorneys

and

other

professionals before it.

The Circuit Courts have upheld an agency's

"implied authority" to discipline professionals even

though Congress did not statutorily approve. 15

U.S.C § 78w(a)(1) (1982) (SEC), upheld in Touche

Ross & Co. v. SEC, 609 F.2d 570 (2d Cir. 1979); 29

U.S.C. § 156 (1976) (NLRB), upheld in Camp v.

Herzog, 104 F. Supp. 134 (D.D.C. 1952). 10 Moreover,

attorneys are not even "officers of the state court to

which they are licensed" when they act in a capacity

before a federal agency. 11 Public law appears void

that Congress has relinquished its authority to state

regulations, and the Respondents have failed to prove

otherwise.

Scholars have opined that Congress, in crafting

the APA, kept the regulation of those practicing before

federal government agencies to the sole discretion of the

agencies.12 "[Congress decided that] the subject should

be covered by separate legislation." Cox, supra at 174175 (internal citations omitted). This may create a

"jurisdictional gap" where an attorney may escape

disciplinary action by a bar association where an

attorney practices before an agency. Id. at 178. But

there is no implied delegation by Congress that states

may step in where the agencies have sole discretion to

act (or not act).

Respondents’ failed to provide any federal

legislation removing disciplinary authority from

10 See generally Michael P. Cox, Regulation of Attorneys

Practicing before Federal Agencies, 34 Case W. Rsrv. L. Rev. 173

(1983-1984).

11 See Cox, supra note 10 at 203-204, referencing In re

Griffiths, 413 U.S. 717 (1973). The majority and dissenting

members agreed on this point. C.J. Berger even wrote "In some

countries the legal system is so structured that all lawyers are

literally agents of government and as such bound to place the

interests of government over those of the client. That concept is

. . . alien to our system " Id. at 732, 733.

12 Moreover, states lack the expertise of practice before

federal agencies. Id. citing ABA Standing Comm. on Professional

Discipline, Report to the House of Delegates 4 (Aug. 1980).

federal agencies. The federal agencies have not acted

to permit concurrent jurisdiction over attorneys, let

alone any professionals, before them. Without it,

states cannot intrude on a professional's activity

before a federal agency. As Congress has exclusive

(federal) powers to regulate its agencies, states have

no business attempting to regulate professionals

practicing before federal agencies. 13

B. The Court has not granted states the

ability to regulate a non (bar) member for

their activities solely before a federal

agency based in D.C.

This Court's dicta in Sperry has long held that

"... activities relating to federal administrative practice

are clearly preempted by the federal government."

William H. Sager & Leslie S. Shapiro, Administrative

Practice Before Federal Agencies, 4U. Rich. L. Rev. 76

(1969). There are exceptions to this rule.14 See § I.B.4,

supra. None of the cases Respondents have proffered to

13 WV

State Law appears void authorizing the use of

state funds to regulate federal professional standards.

Respondents’ fail to provide what regulatory actions they can do

given the only tenuous connection Petitioner has to WV is the

fact that the complaining party is a resident of WV and the

federal agency subject to other D.C. based federal agencies'

jurisdiction has a building located in its state. See § I.B.4, supra.

This is why the investigation must stop!

Troubling, the Respondents claim they have no

intention of regulating Petitioner's federal agency activities. But

the record is void of what they assert they can do, if anything, to

Respondent. Petitioner has no significant ties to or minimum

contacts with WV. See § I.B.4, supra. Thus, supporting

Petitioner's premise that the only purpose of this ill-gotten

process is to publicly embarrass Petitioner and tarnish his

professional reputation.

Petitioner applies to him. Respondents simply do not

have jurisdiction over Petitioner.

C. A federal, let alone state judiciary, is not

the place to discipline an attorney for his

activities before a federal agency.

"Delegation to the ... judiciary would be

inappropriate, despite that branch's experience with

attorney discipline. The issue in question is not

misconduct by judicially admitted attorneys before

federal [or state] courts, but rather misconduct by

congressionally admitted attorneys before federal

agencies." Cox, supra note 10 at 207. Remember,

"[a]lthough the Agency Practice Act, 5 U.S.C. § 500

(1982), provides that an attorney licensed by and

currently in good standing with a state court may

practice before federal agencies, a state license is not

in and of itself the authority enabling an attorney to

practice

before

federal

agencies.

Congress

theoretically could have set some other requirement,

such as a federal bar examination. Indeed, a state

license to practice law does not entitle a person to

practice before the Patent and Trademark Office;

Congress empowered that agency to impose its own

requirements." Id. fn 150 referencing 5 U.S.C. § 500(e)

(1982). Thus, Respondents' attempt to regulate

Petitioner, with only tenuous connections to the state,

encroaches on federal congressional powers.

VI. Respondents Are Not Immune from Petitioner's

Action Under the Eleventh Amendment.

Respondents Flecher-Cipoletti and Donahue do

not have immunity under the Eleventh Amendment.

Ex parte Young and Kentucky indicate state

government actors can be sued in their individual

capacity. Ex parte Young, 209 U.S. 123, 155-56 (1908);

Kentucky v. Graham, 473 U.S. 159, 169 (1985). If

these parties are not acting in the scope of their

state's jurisdiction, then they cannot be deemed

acting in their state government job. Fla. Dep't of

State v. Treasure Salvors, 458 U.S. 670, 102 S. Ct.

3304 (1982). Petitioner is suing Flecher-Cipoletti and

Donahue in their individual capacities. The Eleventh

Amendment immunity with which Respondents

formerly sought to cloak themselves is nonexistent.

Plaintiff has filed his claims against FlecherCipoletti and Donahue under 42 U.S.C. § 1983 in their

individual capacity. See Compl., J.A. Vol I at 11, 60.

The Eleventh Amendment does not bar suits for

injunctive or declaratory relief against individual

state officials acting in violation of federal law. See Ex

parte Young at 155-56. However, to fall within the Ex

parte Young exception to sovereign immunity, a

plaintiff must name individual state officials as

defendants in their individual capacities. See

Kentucky at 159 ("In an injunctive or declaratory

action grounded on federal law, the State's immunity

can be overcome by naming state officials as

defendants."). Thus, as Flecher-Cipoletti and

Donahue are named in their individual capacity, the

Ex parte Young exception to sovereign immunity

applies. This Honorable Court should find the lower

courts erred in dismissing this action against FlecherCipoletti and Donahue.

CONCLUSION

As this matter raises important Constitutional

issues regarding Federalism and States Rights and

the upholding of this Court's dicta, Petitioner

respectfully asks this Court to Grant Certiorari.

Respectfully submitted,

/s/ Michael D. J. Eisenberg

Michael D. J. Eisenberg

Law Office of Michael D.J. Eisenberg

700 12th Street, N.W., Suite 700

Washington, D.C. 20005

(202) 5586371

michael@eisenberg-lawoffice.com

Pro Se Petitioner

APPENDIX

-i-

APPENDIX TABLE OF CONTENTS

Page

Judgment of

The United States Court of Appeals for the

District of Columbia Circuit Court

Re: Affirming Decision of the District Court

entered April 16, 2021 ................................... 1a

Order of

The Honorable Amy Berman Jackson

Re: Granting Defendants’ Motion to Dismiss the

Amended Complaint, Denying Plaintiff’s Motion for

Leave to File a Second Amended Complaint and

enying Plaintiff’s Motion for a Preliminary

Injunction

entered June 30, 2020 .................................... 7a

Memorandum Opinion of

The Honorable Amy Berman Jackson

entered June 30, 2020 .................................... 9a

Order of

The District of Colombia Court of Appeals

Re: Denying Appellant’s Petition for Rehearing or

Rehearing en banc

entered May 26, 2021................................... 24a

[ENTERED: April 16, 2021]

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 20-7070

September Term, 2020

FILED ON: APRIL 16, 2021

MICHAEL D.J. EISENBERG,

APPELLANT

WEST VIRGINIA OFFICE OF DISCIPLINARY COUNSEL,

“OLDC”; RACHAEL L. FLECHER CIPOLETTI, CHIEF

DISCIPLINARY COUNSEL, OLDC; JESSICA H. DONOHUE

RHODES, LAWYER DISCIPLINARY COUNSEL, OLDC,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:19-cv-03006)

Before: SRINIVASAN, Chief Judge, WILKINS and

WALKER, Circuit Judges.

JUDGMENT

This appeal from the United States District

Court for the District of Columbia was considered on

the record and on the briefs of the parties. See Fed. R.

App. P. 34(a)(2); D.C. Cir. Rule 34(j). The court has

accorded the issues full consideration and has

determined that they do not warrant a published

opinion. See D.C. Cir. R. 36(d). It is hereby

ORDERED AND ADJUDGED that the

decision of the district court be AFFIRMED.

Appellant Michael Eisenberg, an attorney

based in Washington, D.C., was retained by a West

Virginia resident to represent her in a matter before

a federal agency in West Virginia. In 2019,

Eisenberg’s client filed a formal complaint against

Eisenberg with the West Virginia Office of Lawyer

Disciplinary Counsel (OLDC). The OLDC ordered

Eisenberg to respond to the complaint, but he refused,

contending that the OLDC lacks jurisdiction over him

because he is not a member of the West Virginia State

Bar and does not regularly conduct business in the

State. The OLDC’s Investigative Panel found that it

possesses jurisdiction over Eisenberg and again asked

for his response.

Eisenberg then filed suit in the district court.

He contends that the OLDC’s exercise of jurisdiction

over him violates the Supremacy Clause, U.S. Const.

art. VI, cl. 2, and he seeks (among other relief)

declaratory and injunctive relief in the form of an

order directing the OLDC to dismiss the case against

him. Am. Compl. at 1, ¶¶ 30–34, Eisenberg v. W. Va.

Off. Of Law. Disciplinary Counsel, No. 19-cv-3006

(D.D.C. Dec. 2, 2019). The district court dismissed the

complaint based on principles of Younger abstention,

i.e., the abstention doctrine established in Younger v.

Harris, 401 U.S. 37 (1971).

We review the district court’s application of

Younger abstention de novo. See Statewide Bonding,

Inc. v. U.S. Dept. of Homeland Sec., 980 F.3d 109, 114

(D.C. Cir. 2020). Younger abstention is grounded in

considerations of federalism and comity. Under

Younger abstention, when a party seeks injunctive or

declaratory relief in federal court against an ongoing,

parallel state proceeding, the federal court will

abstain from resolving the suit in recognition of the

“longstanding public policy against federal court

interference with state court proceedings.” Younger,

401 U.S. at 43–44; Samuels v. Mackell, 401 U.S. 66,

73 (1971). Younger abstention applies when, as here,

the ongoing state proceedings are state bar

disciplinary proceedings. See Middlesex Cnty Ethics

Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432

(1982).

Younger abstention is called for when three

conditions are satisfied: “first, . . . there are ongoing

state proceedings that are judicial in nature; second,

the state proceedings must implicate important state

interests; third, the proceedings must afford an

adequate opportunity in which to raise the federal

claims.” Hoai v. Sun Ref. & Mktg. Co., 866 F.2d 1515,

1518–19 (D.C. Cir. 1989) (citing Middlesex, 457 U.S.

at 432). All three conditions are met here.

First, the OLDC proceedings are judicial in

nature, and Eisenberg does not argue otherwise. See

Middlesex, 457 U.S. at 433. Eisenberg instead

contends that, because the OLDC’s actions remain in

an investigatory phase, the proceedings do not qualify

as ongoing. That is incorrect. A formal complaint

(which must be sworn by the complainant) has been

made against Eisenberg, and the filing of a formal

complaint marks the commencement of West Virginia

state bar disciplinary proceedings. Cf. Middlesex, 457

U.S. at 433 (“From the very beginning a disciplinary

proceeding is judicial in nature, initiated by filing a

complaint.”).

Eisenberg next contends that Younger

abstention is unwarranted because the OLDC lacks

jurisdiction over him under Sperry v. Florida, 373

U.S. 379 (1963). That, too, is incorrect. Even

assuming a federal plaintiff could overcome Younger

abstention by demonstrating a jurisdictional problem

in the ongoing state proceedings, there is no reason to

doubt the OLDC’s exercise of jurisdiction over

Eisenberg. The West Virginia Rules of Professional

Conduct apply to “an attorney who,” like Eisenberg,

“provides or offers to provide legal services in th[e]

state, even where such attorney’s practice consists

entirely of federal matters.” State ex rel. York v. W.

Va. Off. of Disciplinary Counsel, 744 S.E.2d 293, 301–

02 (2013). Such a rule is entirely consistent with

Sperry, which merely held that federal regulations

allowing non-lawyers to appear before the Patent

Office preempted state regulation to the contrary. 373

U.S. at 384–87. Indeed, Sperry emphasized that “the

State maintains control over the practice of law

within its borders except to the limited extent

necessary for the accomplishment of the federal

objectives.” Id. at 402. Here, Eisenberg has not

alleged that West Virginia’s disciplinary rules conflict

with any federal regulations.

Second, the OLDC proceedings “implicate

important state interests.” Hoai, 866 F.2d at 1518. In

particular, West Virginia has an important state

interest in protecting its citizens from attorney

misconduct within its jurisdiction regardless of

whether the lawyer in question belongs to the state

bar. “States traditionally have exercised extensive

control over the professional conduct of attorneys” to

ensure “the protection of the public.” Middlesex, 457

U.S. at 434. Even if Eisenberg is not a West Virginia

bar member and does not regularly practice in the

State, the State retains an interest in protecting its

citizens from attorney misconduct in its jurisdiction.

Third, Eisenberg has not alleged that state

procedures bar presentation of his federal claims. See

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 14–15 (1987).

Rather, he contends that the OLDC process affords

him an inadequate opportunity to raise his claims,

noting that his jurisdictional challenge was rejected

without notice or an opportunity to appear before the

OLDC investigative panel. But if the OLDC

recommends formal charges against Eisenberg, he

will have the opportunity to be heard by the West

Virginia Supreme Court of Appeals. W. Va. R. of Law.

Disciplinary P. 3.10, 3.13. Eisenberg has not

suggested that his federal claims would receive

inadequate consideration at that stage. In fact, when

a similarly situated plaintiff raised an identical

jurisdictional argument before the West Virginia

Supreme Court of Appeals, the court addressed and

resolved the claim. See York, 744 S.E.2d at 302–04.

Cf. JMM Corp. v. Dist. of Columbia, 378 F.3d 1117,

1127 (D.C. Cir. 2004) (finding Younger abstention

appropriate because, even if federal plaintiff could not

raise his federal claims in administrative

proceedings, he would have an adequate opportunity

to raise them on appeal to the D.C. Court of Appeals).

Finally, this case does not involve

“extraordinary circumstances warranting equitable

relief” notwithstanding the applicability of abstention

principles. JMM Corp., 378 F.3d at 1127 (quoting

Trainor v. Hernandez, 431 U.S. 434, 446 (1977)).

Eisenberg has not shown that “the pending state

action was brought in bad faith or for the purpose of

harassing” him. Id. As the district court determined,

nothing in the record suggests any desire on the

part of the OLDC to threaten or intimidate Eisenberg.

Nor is the West Virginia provision allowing

for disciplinary proceedings against out-of-state

attorneys “flagrantly and patently” unconstitutional.

Id. As a result, the district court was correct to

dismiss Eisenberg’s complaint based on principles of

Younger abstention.

Pursuant to D.C. Cir. R. 36(d), this disposition

will not be published. The Clerk is directed to

withhold issuance of the mandate until seven days

after resolution of any timely petition for rehearing or

rehearing en banc. See Fed. R. App. P. 41(b); D.C. Cir.

R. 41.

FOR THE COURT:

Mark J. Langer, Clerk

BY:

/s/

Daniel J. Reidy

Deputy Clerk

[ENTERED: June 30, 2020]

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_________________________________

)

MICHAEL D.J. EISENBERG,

)

Plaintiff,

)

) Civil Action No.

) 19-3006 (ABJ)

WEST VIRGINIA OFFICE OF

)

DISCIPLINARY COUNSEL, et al., )

)

Defendants.

)

_________________________________)

ORDER

Pursuant to Federal Rules of Civil Procedure

12 and 58, and for the reasons stated in the

accompanying Memorandum Opinion, it is hereby

ORDERED that defendants’ Motion to

Dismiss the Amended Complaint [Dkt. # 14] is

GRANTED. It is further

ORDERED that plaintiff’s Motion for Leave to

File a Second Amended Complaint [Dkt. # 22] is

DENIED as futile. And it is further

ORDERED that plaintiff’s Motion for a

Preliminary Injunction [Dkt. # 2] is DENIED as

moot. This is a final appealable order.

SO ORDERED.

/s/

AMY BERMAN JACKSON

United States District Judge

DATE: June 30, 2020

[ENTERED: June 30, 2020]

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_________________________________

)

MICHAEL D.J. EISENBERG,

)

Plaintiff,

)

) Civil Action No.

) 19-3006 (ABJ)

WEST VIRGINIA OFFICE OF

)

DISCIPLINARY COUNSEL, et al., )

)

Defendants.

)

_________________________________)

MEMORANDUM OPINION

Plaintiff Michael D.J. Eisenberg, a lawyer, has

sued the West Virginia Office of Lawyer Disciplinary

Counsel (“OLDC”); Rachael L. Fletcher Cipoletti, the

Chief Disciplinary Counsel of the OLDC who is

named in her personal and official capacity; and

Jessica H. Donahue Rhodes, a lawyer at the OLDC

who is also named in her personal and official

capacity. Am. Compl. [Dkt. # 13] ¶¶ 3–6. Eisenberg

objects to the defendants’ efforts to investigate a

complaint that was lodged against him by a client, a

West Virginia resident who alleged that he violated

the West Virginia Rules of Professional Conduct. See

generally Am. Compl. He submits that the

defendants’ actions were arbitrary, capricious,

contrary to federal law, and unsupported by

substantial evidence. Am. Compl. ¶¶ 11, 26. In

10a

particular, he alleges that defendants have violated

the Supremacy Clause of the Constitution, U.S.

Const. art. VI, cl. 2, and that they have intentionally

caused him emotional distress. Am. Compl. at 1. He

seeks injunctive relief in the form of a Court order

requiring defendants to dismiss the pending West

Virginia matter, as well as declaratory relief and

other forms of relief. Am. Compl. ¶¶ 30–34.

Defendants have moved to dismiss the amended

complaint on the grounds that the Court is precluded

from entertaining the case under the Younger

abstention doctrine. Defs.’ Mot. to Dismiss the Am.

Compl. [Dkt. # 14] (“Defs.’ Mot.”); Defs.’ Mem. in

Supp. of Defs.’ Mot. [Dkt. # 14-1] (“Defs.’ Mem.”). The

Court agrees that the doctrine applies, and it will

decline to intervene in pending state bar disciplinary

proceedings and dismiss this case.1

BACKGROUND

Before May 21, 2019, plaintiff, an attorney

based in Washington, D.C., was retained by a West

Virginia resident to represent the Resident in a

matter before a federal agency. Am. Compl. ¶¶ 3, 7, 9.

In the course of the representation, plaintiff appeared

before a federal agency that was located in West

Virginia. Am. Compl. ¶ 9.

On or about May 21 and May 23, 2019,

defendant Rhodes contacted plaintiff to inform him

that the Resident and her husband had filed a

complaint against him with the West Virginia Office

Because the Court will dismiss this case based on the

Younger doctrine, it does not need to take up defendants’ other

objections to the complaint.

11a

of Lawyer Disciplinary Counsel (“OLDC”),2 a West

Virginia State government agency. Am. Compl. ¶¶ 4,

11. When plaintiff inquired with Rhodes about the

OLDC’s jurisdiction over an attorney who had never

been a member of the West Virginia State Bar, she

responded by citing State Ex. Rel. York v. W.Va. Office

of Disc. Counsel, 744 S.E.2d 293 (W. Va. 2013), as a

case that supported what plaintiff describes as “her

alleged position.” Am. Compl. ¶¶ 12–14.

After reviewing the case, plaintiff informed

Rhodes that in his view, the case did not apply

because: “a) [plaintiff] does not maintain an office in

West Virginia; b) [plaintiff] does not regularly conduct

business in West Virginia; c) [plaintiff] does not

practice Patent Law[] in West Virginia, and; . . .

d) [plaintiff] does not practice in West Virginia

agencies, state or federal courts.” Am. Compl. ¶ 15. In

response, according to the complaint, Rhodes “merely

repeated Rule 8.5 of the West Virginia Rules of

Professional Conduct (“Rule 8.5”).” Am. Compl. ¶ 16.

From on or about September 30, 2019, plaintiff

communicated with defendant Cipoletti at the OLDC

to “explain the situation” and “discuss the law and the

facts.” Am. Compl. ¶ 17. Plaintiff “reminded . . .

Cipoletti that this matter falls under Sperry v.

Florida, 373 U.S. 379 [] (1963),” and he transmitted

his previous communications with Rhodes. Am.

Compl. ¶¶ 18–19. Cipoletti allegedly responded by

repeating Rule 8.5 without commenting on plaintiff’s

position. Am. Compl. ¶ 20. When plaintiff asked for

The Court notes that the proper name of the agency is

the Office of Disciplinary Counsel not the Office of Lawyer

Disciplinary Counsel. See Office of Disciplinary Counsel,

http://www.wvodc.org/ (last visited June 23, 2020).

12a

Cipoletti’s response position regarding his filing a

preliminary

injunction,

Cipoletti

purportedly

responded, “how could she provide her position when

she had yet received the ‘injunction?’” Am. Compl. ¶¶

21–22.

Plaintiff filed the original complaint in this

matter, along with a motion for a preliminary

injunction, on October 7, 2019. Compl. [Dkt. # 1]; Mot.

for Prelim. Injunction [Dkt. # 2]. Defendants moved to

dismiss on November 8, 2019. See Def.’s Mot. to

Dismiss [Dkt. # 8]. On December 2, 2019, plaintiff

filed the Amended Complaint. He seeks declaratory

and injunctive relief in the form of an order directing

the defendants to dismiss the OLDC case, among

other forms of relief. See Am. Compl. ¶¶ 30–34.

Defendants moved to dismiss on December 16, 2019,

Defs.’ Mot., and the matter is fully briefed.3

STANDARD OF REVIEW

In evaluating a motion to dismiss under either

Rule 12(b)(1) or 12(b)(6), the Court must “treat the

complaint’s factual allegations as true and must grant

plaintiff ‘the benefit of all inferences that can be

derived from the facts alleged.’” Sparrow v. United Air

Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000)

(internal citation omitted), quoting Schuler v. United

States, 617 F.2d 605, 608 (D.C. Cir. 1979); see also Am.

Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir.

2011), quoting Thomas v. Principi, 394 F.3d 970, 972

(D.C. Cir. 2005) (applying principle to a Rule 12(b)(1)

motion). Nevertheless, the Court need not accept

See Pl.’s Mem. in Opp. to Def.’s Mot. to Dismiss [Dkt. #

20] (“Pl.’s Opp.”); Defs.’ Reply in Supp. of Defs.’ Mot. to Dismiss

[Dkt. # 24] (“Defs.’ Reply”).

13a

inferences drawn by the plaintiff if those inferences

are unsupported by facts alleged in the complaint, nor

must the Court accept plaintiff’s legal conclusions.

Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir.

2002) (rule 12(b)(6) case); Food and Water Watch, Inc.

v. Vilsack, 808 F.3d 905, 913 (D.C. Cir. 2015) (rule

12(b)(1) case).

Subject Matter Jurisdiction

Under Rule 12(b)(1), the plaintiff bears the

burden

establishing

jurisdiction

preponderance of the evidence. See Lujan v. Defs. of

Wildlife, 504 U.S. 555, 561 (1992); Shekoyan v. Sibley

Int’l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002).

Federal courts are courts of limited jurisdiction, and

the law presumes that “a cause lies outside this

limited jurisdiction.” Kokkonen v. Guardian Life Ins.

Co. of Am., 511 U.S. 375, 377 (1994); see also Gen.

Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir.

2004) (“As a court of limited jurisdiction, we begin,

and end, with an examination of our jurisdiction.”).

“[B]ecause subject-matter jurisdiction is ‘an Art[icle]

III as well as a statutory requirement . . . no action of

the parties can confer subject-matter jurisdiction

upon a federal court.’” Akinseye v. District of

Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003), quoting

Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de

Guinee, 456 U.S. 694, 702 (1982).

When considering a motion to dismiss for lack

of jurisdiction, unlike when deciding a motion to

dismiss under Rule 12(b)(6), the court “is not limited

to the allegations of the complaint.” Hohri v. United

States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on

other grounds, 482 U.S. 64 (1987). Rather, “a court

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may consider such materials outside the pleadings as

it deems appropriate to resolve the question [of]

whether it has jurisdiction to hear the case.” Scolaro

v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18,

22 (D.D.C. 2000), citing Herbert v. Nat’l Acad. of Scis.,

974 F.2d 192, 197 (D.C. Cir. 1992); see also Jerome

Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253

(D.C. Cir. 2005).

II.

Failure to State a Claim

“To survive a [Rule 12(b)(6)] 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), quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007). In Iqbal, the Supreme Court

reiterated the two principles underlying its decision

in Twombly: “First, the tenet that a court must accept

as true all of the allegations contained in a complaint

is inapplicable to legal conclusions,” and “[s]econd,

only a complaint that states a plausible claim for

relief survives a motion to dismiss.” Id. at 678–79,

citing Twombly, 550 U.S. at 555–56.

A claim is facially plausible when the pleaded

factual content “allows the court to draw the

reasonable inference that the defendant is liable for

the misconduct alleged.” Id. at 678, citing Twombly,

550 U.S. at 556. “The plausibility standard is not akin

to a ‘probability requirement,’ but it asks for more

than a sheer possibility that a defendant has acted

unlawfully.” Id., quoting Twombly, 550 U.S. at 556. A

pleading must offer more than “labels and

conclusions” or a “formulaic recitation of the elements

of a cause of action,” id., quoting Twombly, 550 U.S.

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at 555, and “[t]hreadbare recitals of the elements of a

cause of action, supported by mere conclusory

statements, do not suffice.” Id., citing Twombly, 550

U.S. at 555.

When considering a motion to dismiss under

Rule 12(b)(6), the Court is bound to construe a

complaint liberally in the plaintiff’s favor, and it

should grant the plaintiff “the benefit of all inferences

that can be derived from the facts alleged.” Kowal v.

MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir.

1994), citing Schuler, 617 F.2d at 608. Where the

action is brought by a pro se plaintiff, a district court

has an obligation “to consider his filings as a whole

before dismissing a complaint,” Schnitzler v. United

States, 761 F.3d 33, 38 (D.C. Cir. 2014), citing

Richardson v. United States, 193 F.3d 545, 548 (D.C.

Cir. 1999), because such complaints are held “to less

stringent standards than formal pleadings drafted by

lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972).

Nevertheless, the Court need not accept inferences

drawn by the plaintiff if those inferences are

unsupported by facts alleged in the complaint, nor

must the Court accept plaintiff’s legal conclusions.

See Kowal, 16 F.3d at 1276; see also Browning, 292

F.3d at 242. In ruling upon a motion to dismiss for

failure to state a claim, a court may ordinarily

consider only “the facts alleged in the complaint,

documents attached as exhibits or incorporated by

reference in the complaint, and matters about which

the Court may take judicial notice.” Gustave-Schmidt

v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002), citing

EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d

621, 624–25 (D.C. Cir. 1997).

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ANALYSIS

The Younger Doctrine

The Younger doctrine requires that “except

under special circumstances,” a federal court should

not “enjoin pending state court proceedings.” Younger

v. Harris, 401 U.S. 37, 41 (1971); see Ohio Civil Rights

Comm’n v. Dayton Christian Sch., Inc., 477 U.S. 619,

626–27 (1986) (extending Younger to a pending state

administrative proceeding); Huffman v. Pursue, Ltd.,

420 U.S. 592, 594 (1975) (extending Younger to

pending civil state court proceedings). The doctrine is

based upon principles of equity and comity, see

Younger, 401 U.S. at 43–44, and it precludes federal

intervention where three criteria are met: 1) there are

ongoing state proceedings that are judicial in nature,

2) the state proceedings implicate important state

interests, and 3) the proceedings afford an adequate

opportunity to raise the federal claims. Hoai v. Sun

Ref. Mktg. Co., 866 F.2d 1515, 1518 (D.C. Cir. 1989),

citing Middlesex County Ethics Comm. v. Garden

State Bar Assoc., 457 U.S. 423, 432 (1982).

Extraordinary circumstances may supply grounds for

a federal court to intervene when the state action was

brought in bad faith or where a state statute is

flagrantly unconstitutional JMM Corp. v. Dist. of

Columbia, 378 F.3d 1117, 1127 (D.C. Cir. 2004), citing

Younger, 401 U.S. at 41, 53–54.

The Supreme Court has reasoned that the

Younger doctrine applies to noncriminal judicial

proceedings, including pending administrative

proceedings where important state interests are

involved. See Moore v. Sims, 442 U.S. 415, 423 (1979);

Middlesex, 457 U.S. at 434. The Court has specifically

17a

extended this reasoning to cover to state bar disciplinary

proceedings. See Middlesex, 457 U.S. at 434.

In Middlesex, the Court held that state bar

disciplinary proceedings underway in New Jersey

against a New Jersey-licensed attorney constituted a

“judicial” action because the Supreme Court of New

Jersey, which was vested with “the authority to fix

standards, regulate admissions to the bar, and

enforce professional discipline among members of the

bar,” recognized the “local District Ethics Committees

. . . as the arm of the court in performing the function

of receiving and investigating complaints and holding

hearings.” 457 U.S. at 433. The Court found that the

State had “an extremely important interest in

maintaining and assuring the professional conduct of

the attorneys it licenses,” and it recognized that

“[s]tates traditionally have exercised extensive

control over the professional conduct of attorneys,”

because “[t]he judiciary as well as the public is

dependent upon professional ethical conduct of

attorneys and thus has a significant interest in

assuring and maintaining high standards of conduct

of attorneys engaged in practice.” Id. at 434–35.

The Court also addressed the respondent’s

claim that a federal court should hear the matter

because he had no opportunity to raise federal

constitutional claims in the state disciplinary

proceedings. It found that because the respondent had

“failed to respond to the complaint filed by the local

Ethics Committee,” and the record did not indicate

that the members of the Ethics Committee would

have refused to consider a constitutional claim, it was

“difficult to conclude that there was no adequate

opportunity for respondent [] to raise his constitutional

18a

claims.” Middlesex, 457 U.S. at 435–36. The Court

reiterated its instruction in Younger that “‘the accused

should first set up and rely upon his defense in the

state courts, even though this involves a challenge of

the validity of some statute, unless it plainly appears

that this course would not afford adequate protection.”

Id. at 435, quoting Younger, 401 U.S. at 45.

Since Middlesex, the D.C. Circuit has upheld a

district court’s invocation of the abstention doctrine in

cases involving an action by the District of Columbia

Bar, where an appellant “has not demonstrated

changed or extraordinary circumstances that would

warrant federal intervention in the state court

proceedings.” Lawrence v. Carlin, No. 13-7017, 2013

WL 6801204, at *1 (D.C. Cir. Dec. 11, 2013). And

courts in this district have held that boards of

professional responsibility created by state courts,

have “inherent power over members of the legal

profession.” Ford v. Tait, 163 F. Supp. 2d 57, 65

(D.D.C. 2001) (internal quotation omitted); see also

Lawrence v. Carlin, 541 F. Supp. 2d 189, 193 (D.D.C.

2008). In a case similar to this one, a court in this

district also abstained from intervening in a state bar

proceeding in Florida against an attorney who was

based in the District of Columbia. See Richardson v.

The Florida Bar, Civ. Action No. 90-0984, 1990 WL

116727, at **1, 4 (D.D.C. May 15, 1990).

II.

Application of the Younger Doctrine and

its progeny to this case

To determine whether defendants have

properly invoked the abstention doctrine as grounds

to dismiss a plaintiff’s claims, a court must undertake

the three-part analysis set forth by the Supreme

Court in Middlesex: first it must determine if there

19a

are ongoing state proceedings that are judicial in

nature, second it must consider whether the state

proceedings implicate important state interests, and

finally, it must be satisfied that the proceedings afford

an adequate opportunity to raise the federal claims.

Middlesex, 457 U.S. at 432.

With respect to the first question, the West

Virginia OLDC proceeding is judicial in nature. Like

the District Ethics Committees in Middlesex, the

Lawyer Disciplinary Board in West Virginia was

established by the Supreme Court of Appeals of West

Virginia

to investigate complaints of violations of

the Rules of Professional Conduct

promulgated by the Supreme Court of

Appeals to govern the professional

conduct of those admitted to the practice

of law in West Virginia or any individual

admitted to the practice of law in another

jurisdiction who engages in the practice

of law in West Virginia and to take

appropriate action in accordance with

the provisions of the Rules of Lawyer

Disciplinary Procedure.

W. Va. R. of Law. Disc. P. 1 (emphasis added). Under

Rule 2 of the West Virginia Rules of Lawyer

Disciplinary Procedure, the Investigative Panel of the

Lawyer Disciplinary Board is charged with

determining “whether probable cause exists to

formally charge a lawyer with a violation of the Rules

of Professional Conduct,” W. Va. R. of Law. Disc. P. 2,

and pursuant to Rule 3, “[t]he Hearing Panel . . . shall

conduct hearings and make findings of fact,

20a

conclusions of law, and recommendations of lawyer

discipline to the Supreme Court of Appeals on formal

charges filed by the Investigative Panel.” W. Va. R. of

Law. Disc. P. 3. In addition, Rule 8.5 of the West

Virginia Rules of Professional Conduct specifically

provides that “[a] lawyer not admitted in [West

Virginia] is also subject to the disciplinary authority

of the jurisdiction if the lawyer provides or offers to

provide any legal services in this jurisdiction.” As was

the case in Middlesex, these rules show that the

Supreme Court of West Virginia has conferred on the

OLDC the power to carry out “judicial” actions to

ensure that attorneys who practice in West Virginia

abide by that state’s professional rules.

And the case here is certainly ongoing.

According to the complaint, the OLDC complaint was

filed on or about May 21, 2019, and the OLDC has

issued an order directing plaintiff to respond. See Am.

Compl. ¶¶ 11, 23. The whole point of the lawsuit is to

have this Court direct the defendants to “dismiss

their alleged case,” Am. Compl. ¶ 32, so the complaint

is premised on the fact that the case is ongoing. The

first prong of the test is, therefore, met.

With respect to the second prong of the test,

whether the proceedings implicate important state

interests, Comment One to Rule 8.5 states that

“[e]xtension of the disciplinary authority of the

jurisdiction to other lawyers who provide or offer to

provide legal services in this jurisdiction is for the

protection of the citizens of this jurisdiction.” And both

the Supreme Court in Middlesex and courts in this

district have found that ensuring that practicing

attorneys abide by the ethical rules in the jurisdictions

where they practice is a significant state interest. See

21a

Middlesex, 457 U.S. at 434; Lawrence, 541 F. Supp. 2d

at 193; Richardson, 1990 WL 116727, at *4. West

Virginia shares that same interest in this case.

So the Court will move on to the final step in

the test: assessing whether plaintiff is afforded an

adequate opportunity to raise his federal claims in the

pending state proceeding. Importantly, although the

OLDC is charged with investigating complaints of

attorney misconduct, holding hearings, and making

findings of fact and conclusions of law, it ultimately

does not have the power to make final determinations

about formal charges against attorneys. See W. Va. R.

of Law. Disc. P. 3. Instead, that power falls to the

Supreme Court of Appeals. See id. (explaining that

the Hearing Panel of the Lawyer Disciplinary board

“shall . . . make recommendations of lawyer discipline

to the Supreme Court of Appeals on formal charges

filed by the Investigative Panel.”). Indeed, cases from

the Supreme Court of Appeals reinforce that “the

exclusive authority to define, regulate and control the

practice of law in West Virginia is vested in the

Supreme Court of Appeals.” State ex rel. York v. W.

Va. Office of Disciplinary Counsel, 744 S.E.2d 293,

298 (2013); see also Lawyer Disciplinary Bd. V. Allen,

479 S.E.2d 317, 324 (1996) (holding that attorneys

who solicit clients within West Virginia but are not

barred in and do not practice in the state are subject

to discipline by the Court). And Middlesex instructs

that “[m]inimal respect for the state processes, of

course, precludes any presumption that the state

courts will not safeguard federal constitutional

rights.” 457 U.S. at 431.

Like the claimant in Middlesex, plaintiff has

not yet answered, and he has not even tried to assert

22a

a constitutional claim. Nor has he alleged any facts to

show that if the OLDC recommended action against

him, he would be precluded from presenting

constitutional arguments to the West Virginia

Supreme Court of Appeals. For those reasons, the

Court finds based on the information before it that

plaintiff’s right to raise his federal claims in West

Virginia is adequately protected.

III.

Younger exceptions

In Younger, the Supreme Court advised that

there may be “extraordinary circumstances” in which

a plaintiff will suffer irreparable injury by being

foreclosed from obtaining injunctive relief in federal

court. 401 U.S. at 53. And the D.C. Circuit has

explained that “[s]uch extraordinary circumstances

include situations in which ‘there is a showing of bad

faith or harassment by state officials . . . or where the

state law to be applied . . . is flagrantly and patently

violative of express constitutional prohibitions.’’”

JMM Corp., 378 F.3d at 1122 (D.C. Cir. 2004), quoting

Trainor v. Hernandez, 431 U.S. 434, 443 n.7 (1977).

Plaintiff alleges that defendants should be held

liable for “harassing and intimidating [him] by

mailing threatening communications and causing

substantial emotional distress.” Am. Compl. ¶ 29. But

neither the OLDC officials’ tone nor the fact that

plaintiff understandably found the pendency of this

investigation to be stressful is relevant to the

availability of the Younger exception; the Supreme

Court has instructed that harassment is found when

a court determines that the state proceeding “is

motivated by a desire to harass.” Huffman, 420 U.S.

at 611 (1975) (emphasis added). Here, plaintiff has

23a

failed to allege any facts that give rise to a plausible

inference that defendants – who allegedly received

the complaint brought by plaintiff’s client and

undertook to process it – were motived by a desire to

harass him. In the communications recounted in the

complaint, the defendants are quoted as seeking

plaintiff’s response in accordance with OLDC

procedures and responding to plaintiff’s inquiries

about the scope of their jurisdiction. So plaintiff has

not identified any basis to invoke any exception to the

Younger doctrine.

CONCLUSION

For the foregoing reasons, the Court finds that

the Younger doctrine applies to this case and plaintiff

has failed to demonstrate any circumstances that

would warrant the Court’s intervention in the state

proceedings. For that reason, the Court will abstain

for reasons equity and comity and dismiss the action.4

A separate Order will issue.

/s/

AMY BERMAN JACKSON

United States District Judge

DATE: June 30, 2020

Based on the Court’s determination that the Younger

abstention doctrine applies to this case, defendant’s Motion for

Leave to File a Second Amended Complaint [Dkt. # 22] is denied

as futile. See Atchinson v. District of Columbia, 73 F.3d 418, 42526 (D.C. Cir. 1995) (“futility of the amendment” is one of the

factors a court must consider in evaluating whether to grant

leave to amend). See also James Madison Ltd. by Hecht v.

Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996) (“Courts may deny

a motion to amend as futile . . . if the proposed claim would not

survive a motion to dismiss.”).

24a

[ENTERED: May 26, 2021]

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________

No. 20-7070

September Term, 2020

1:19-cv-03006-ABJ

Filed On: May 26, 2021

Michael D.J. Eisenberg,

Appellant

West Virginia Office of Disciplinary

Counsel, “OLDC”, also known as Office

of Lawyers Disciplinary Counsel, et al.,

Appellees

BEFORE:

Srinivasan, Chief Judge; Henderson,

Rogers, Tatel, Millett, Pillard, Wilkins,

Katsas, Rao, and Walker, Circuit

Judges

ORDER

Upon consideration of appellant’s petition for

rehearing en banc, and the absence of a request by

any member of the court for a vote, it is

ORDERED that the petition be denied.

Per Curiam

BY:

FOR THE COURT:

Mark J. Langer, Clerk

/s/

Kathryn D. Lovett

Deputy Clerk

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.