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

                                 1
No. 02-1897                    Dubuc v. Mich. Board of        3    4    Dubuc v. Mich. Board of                     No. 02-1897
                                 Law Examiners et al.                   Law Examiners et al.

reapply are unconstitutional. He also claims that defendants       against him. During a hearing on October 6, 1995, Dubuc
unconstitutionally use First Amendment activity as grounds         told Judge Burress that he had filed criminal charges against
for denying applications for admission to the Bar. He seeks        him for conspiracy, bribery, bribery attempt, and abuse of
declaratory and injunctive relief allowing him to reapply          process. In an affidavit he filed in support of his criminal
immediately for admission to the Bar and prohibiting               charges, Dubuc attested that Judge Burress was engaged in a
defendants from considering First Amendment activity when          “conspiracy to destroy [him],” obstruction of justice, abuse of
considering applications for admission to the Bar.                 process, bribery, and attempted bribery.
  In an oral ruling, the district court sua sponte dismissed the      Judge Burress ordered Dubuc to pay over $180,000 in
case on immunity grounds, and Dubuc appeals. For the               sanctions for violating several court orders, and after a bench
following reasons, we affirm in part and reverse in part the       trial, Judge Burress dismissed Dubuc’s lawsuit as frivolous.
district court’s dismissal on immunity grounds and remand          The Michigan Court of Appeals affirmed Judge Burress’s
the case for further proceedings.                                  decision to award sanctions and dismiss the lawsuit. Dubuc
                                                                   v. Green Oak Township, No. 191293, 1999 WL 33455145
                    I. BACKGROUND                                  (Mich. Ct. App., Jan. 5, 1999). The Michigan Supreme Court
                                                                   denied Dubuc’s application for leave to appeal, 604 N.W.2d
   Dubuc graduated from an accredited law school, passed the       679 (Mich. 1999), and denied his subsequent motion to
February 1998 Michigan Bar examination, and applied for            reconsider, 609 N.W.2d 829 (Mich. 2000). In conjunction
admission to the Michigan Bar. The Bar recommended to the          with the denial of his motion to reconsider, Justice Corrigan,
Board that his application be denied because it found that he      joined by a majority of the other Michigan Supreme Court
lacked good moral character, a statutory requirement for           justices, issued a statement encouraging the trial court to
admission. See M.C.L.A. § 600.934(1). Dubuc exercised his          consider “extraordinary sanctions to deter [Dubuc] from
right to challenge the Bar’s determination in a de novo            continuing his vexatious tactics that have led to years of
hearing in front of the Board. On June 9, 2000, the Board          abusive litigation.” 609 N.W.2d at 829. Among many other
issued an opinion denying Dubuc’s application. According to        things, Justice Corrigan found that Dubuc had engaged in
its opinion, the Board found that Dubuc had failed to prove        abusive and frivolous tactics to delay the proceedings,
that he was a person of good moral character in view of his        including “naming the trial judge as a witness; seeking to
failure to accept responsibility for his wrongful actions when     depose the judge; accusing the judge of criminal conduct and
representing himself in previous lawsuits.                         of conspiring with defense counsel; and threatening to file a
                                                                   complaint with the Judicial Tenure Commission against the
  According to his testimony in front of the Board, as             judge.” Id. at 830.
reflected in the Board’s opinion, Dubuc had been involved in
approximately thirty-eight lawsuits in the twenty-five years          Relying upon the Michigan Supreme Court’s decision
preceding his Board hearing. He filed one of these lawsuits        denying Dubuc’s motion to reconsider, the Board found that
in Michigan’s Livingston County Circuit Court in 1992. In          the issue of whether sanctions were appropriate against
1993, he moved to disqualify the presiding judge, Judge            Dubuc had been decided against Dubuc and was no longer an
Daniel Burress. During a hearing on September 27, 1995,            issue for the Board to resolve. Dubuc’s attorney admitted to
Dubuc accused Judge Burress of engaging in a conspiracy            the Board that he knew of no facts that would support a
No. 02-1897                    Dubuc v. Mich. Board of        5    6     Dubuc v. Mich. Board of                       No. 02-1897
                                 Law Examiners et al.                    Law Examiners et al.

criminal charge against Judge Burress for bribery or               while if he had not appealed to the Board he would have been
conspiracy. Dubuc stated to the Board that he had not              eligible to reapply in 2001. Dubuc claims that “punishing”
intended to accuse Judge Burress of bribery, but that he meant     applicants for exercising their right to challenge the Bar’s
only to accuse Judge Burress of knowing that bribery was           recommendation violates the First Amendment right to
occurring and doing nothing to stop it. According to the           petition the government and the Fourteenth Amendment
Board, Dubuc refused to accept responsibility for falsely          rights to substantive due process and equal protection. He
accusing a judge of criminal actions and persisted in believing    asserts that the RCSBM are facially unconstitutional in this
that the issues in front of the Board were not his fault. In its   regard.
opinion, the Board found that his failure to accept
responsibility for his actions prevented him from carrying his       In support of his request for an injunction and declaratory
burden to prove that he was fit to practice law.                   judgment prohibiting defendants from considering his alleged
                                                                   First Amendment activities in evaluating his second
   Dubuc sought leave to appeal the Board’s decision to the        application, Dubuc advances two claims. First, he asserts that
Michigan Supreme Court, which declined to grant review.            “the practice of law is a profession of advocacy and attorney-
Dubuc then filed a petition for a writ of certiorari with the      advocacy is a quintessential First Amendment activity.”
Supreme Court of the United States, which also declined to         Therefore, he argues, Michigan’s attorney-licensing
grant review. Dubuc then filed this lawsuit.                       procedure, which considers one’s “moral character,” is a prior
                                                                   restraint on a First Amendment activity and is facially
  In his complaint, filed pursuant to 42 U.S.C. § 1983, Dubuc      unconstitutional because it lacks adequate procedural
does not challenge the denial of his 1998 application for          safeguards and is too vague.
admission to the Michigan Bar. Instead, Dubuc seeks an
injunction ordering defendants to allow him to reapply                Second, he claims that in practice defendants consider an
immediately for admission to the Michigan Bar. In addition,        applicant’s prior First Amendment activity in determining
he seeks declaratory and injunctive relief prohibiting             whether an applicant has good moral character. He cites the
defendants from using his alleged First Amendment activities       denial of his first application as one of two “illustrations” that
(criticizing a judge) as a basis for denying his second            evidence the defendants’ practice. As his other example, he
application.                                                       alleges that a law school graduate named Stephen Dean was
                                                                   told by a Bar official that he would be denied admission to the
  According to his complaint, the Michigan Supreme Court           Bar because he picketed against his law school over
Rules Concerning the State Bar of Michigan (RCSBM)                 classroom comments by one of his professors regarding the
prohibit Dubuc from reapplying for five years from the date        impeachment proceedings of former President Clinton. He
the Board denied his initial application. Under the RCSBM,         contends that denying one’s bar application based upon one’s
according to Dubuc, if he had acquiesced in the Bar’s              protected speech is unconstitutional. He therefore claims that
recommendation and not exercised his right to a de novo            the moral character requirement, as it is being applied, is
hearing in front of the Board, he would have been eligible to      unconstitutional.
reapply three years after the Bar’s recommendation.
Therefore, according to Dubuc, because he challenged the             Along with his complaint, which he filed on March 28,
Bar’s recommendation he must wait until 2005 to reapply,           2002, in the United States District Court for the Eastern
No. 02-1897                         Dubuc v. Mich. Board of             7    8      Dubuc v. Mich. Board of                   No. 02-1897
                                      Law Examiners et al.                          Law Examiners et al.

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

    2                                                                           To determine whether an entity is a state department or
      This court, however, has observed that “[t]his reviewing court, and
more importantly, the parties, are much better served when, as is the
                                                                             agency for purposes of the Eleventh Amendment, the primary
custom in this circuit, the district court prepares a written opinion        issue is whether the state would ultimately be liable for any
explaining its ruling and the reasoning, factual and legal, in support,      money judgment against the entity. Brotherton v. Cleveland,
especially when the ruling disposes of the case in a final judgment.” Peck   173 F.3d 552, 560-61 (6th Cir. 1999). Courts, however, also
v. Bridgeport Machines, Inc., 237 F.3d 614 , 617 (6th C ir. 200 1).
No. 02-1897                    Dubuc v. Mich. Board of        9    10    Dubuc v. Mich. Board of                          No. 02-1897
                                 Law Examiners et al.                    Law Examiners et al.

look to other factors, such as how state law defines the entity    101 (1984). The Supreme Court, however, recognized an
and the degree of control the state maintains over the entity.     important exception to this general rule in Ex parte Young,
Id. at 561 (declining to decide whether these other factors are    209 U.S. 123 (1908), where it held that the Eleventh
relevant to the inquiry).                                          Amendment does not bar a lawsuit seeking an injunction
                                                                   against a state official prohibiting the state official from
   The parties have not submitted any evidence regarding           enforcing a state statute that allegedly violates the United
whether the State of Michigan would be ultimately                  States Constitution. “In determining whether the doctrine of
responsible for any money judgment against the Board or the        Ex parte Young avoids an Eleventh Amendment bar to suit,
Bar. The other factors, however, weigh in favor of finding         a court need only conduct a ‘straightforward inquiry into
the Board and the Bar immune from this lawsuit. In                 whether [the] complaint alleges an ongoing violation of
Michigan, for purposes of promulgating rules relating to Bar       federal law and seeks relief properly characterized as
membership and determining whether to grant or deny Bar            prospective.’” Verizon Maryland, Inc. v. Public Service
applications, the Board and the Bar are merely extensions of       Commission of Maryland, 535 U.S. 635, 645 (2002) (quoting
the Michigan Supreme Court. Michigan law provides that the         Justice O’Connor’s concurring opinion in Idaho v. Coeur
“Michigan Supreme Court has the power to provide for the           d’Alene Tribe of Idaho, 521 U.S. 261, 296 (1997)).
organization, government, and membership of the State Bar
of Michigan, and to adopt rules and regulations concerning            Dubuc’s complaint alleges an ongoing violation of federal
. . . the investigation and examination of applicants for          law and seeks relief properly characterized as prospective. He
admission to the bar.” M.C.L.A. § 600.904.                         alleges that the Bar admission rules, facially and as currently
                                                                   applied, violate the United States Constitution, and he seeks
   Because they are arms of the Michigan Supreme Court for         only injunctive and declaratory relief, not a money judgment
all purposes relevant to this lawsuit, the Board and the Bar are   or any other retrospective relief.              Therefore, neither
state agencies immune from this lawsuit under the Eleventh         Googasian nor Berry is entitled to immunity under the
Amendment. Kish v. Michigan State Bd. of Law Exam’rs,              Eleventh Amendment pursuant to the “straightforward
999 F. Supp. 958, 964 (E.D. Mich. 1998) (finding that the          inquiry” that applies to this issue. Verizon Maryland, 535
Board is a judicial agency of the state entitled to Eleventh       U.S. at 645 (“Here Verizon sought injunctive and declaratory
Amendment immunity); see also Thiel v. State Bar of                relief . . . . The prayer for injunctive relief – that state officials
Wisconsin, 94 F.3d 399, 401-02 (7th Cir. 1996) (holding that       be restrained from enforcing an order in contravention of
the State Bar of Wisconsin is a state agency entitled to           controlling federal law – clearly satisfies our ‘straightforward
Eleventh Amendment immunity). Therefore, we affirm the             inquiry.’”); see also Roe # 2 v. Ogden, 253 F.3d 1225, 1233-
district court’s dismissal of the claims against the Board and     34 (10th Cir. 2001) (holding that members of the Colorado
the Bar.                                                           State Board of Law Examiners were not entitled to immunity
                                                                   under the Eleventh Amendment from a lawsuit challenging
  Defendants Googasian and Berry assert that as state              bar admission rules). Importantly, determining whether the
officials they are also immune from this lawsuit under the         Ex parte Young doctrine applies does not involve an analysis
Eleventh Amendment. In general, the Eleventh Amendment             of the merits of a plaintiff’s claims. Verizon Maryland, 535
immunizes state officials from suit in federal court.              U.S. at 646.
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,
No. 02-1897                    Dubuc v. Mich. Board of       11    12   Dubuc v. Mich. Board of                     No. 02-1897
                                 Law Examiners et al.                   Law Examiners et al.

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

  Googasian’s and Berry’s reliance on Coeur d’Alene is               If the act which the state attorney general seeks to
unavailing because the present lawsuit is not the functional         enforce be a violation of the Federal Constitution, the
equivalent of a quiet title action that implicates a state’s         officer, in proceeding under such enactment, comes into
sovereign interest in its lands or waters. In arguing for a          conflict with the superior authority of that Constitution,
broader interpretation of the holding in Coeur d’Alene,              and he is in that case stripped of his official or
Googasian and Berry mistakenly cite portions of Justice              representative character and is subjected in his person to
Kennedy’s principal opinion that were not joined by a                the consequences of his individual conduct. The state
majority of the Court. Justice Kennedy, in a section of his          has no power to impart to him any immunity from
principal opinion joined only by Chief Justice Rehnquist,            responsibility to the supreme authority of the United
advocated adopting a case-by-case balancing test that would          States.
narrow the circumstances under which the Ex Parte Young
doctrine applies. Id. at 278. A majority of the Court,             209 U.S. 123, 159-60 (1908).
however, explicitly rejected this approach. Id. at 296
(O'Connor, J., joined by Scalia and Thomas, JJ., concurring          Therefore, the RCSBM do not immunize any defendant
in part and concurring in judgment and advocating the              from this § 1983 lawsuit alleging ongoing violations of
retention of the traditional “straightforward inquiry” for         federal law.
determining when the Ex parte Young doctrine applies); id at
298-99 (Souter, J., dissenting, joined by Stevens, Ginsburg,
and Breyer, JJ.). In Verizon Maryland, the Court reaffirmed
No. 02-1897                     Dubuc v. Mich. Board of        13    14       Dubuc v. Mich. Board of                            No. 02-1897
                                  Law Examiners et al.                        Law Examiners et al.

C. The Rooker-Feldman doctrine                                       rule. Id. at 484-85 (quoting Doe v. Pringle, 550 F.2d 596,
                                                                     599 (10th Cir. 1976)).3
   The district court found that the Rooker-Feldman doctrine
“probably” bars this lawsuit. We disagree. “The Rooker-                 In this lawsuit, Dubuc has explicitly not challenged the
Feldman doctrine merely recognizes that 28 U.S.C. § 1331 is          denial of his 1998 application. As Dubuc correctly
a grant of original jurisdiction, and does not authorize district    recognizes, his “prior licensing decision is history” and “[n]o
courts to exercise appellate jurisdiction over state-court           outcome in this lawsuit could or would reverse any prior state
judgments.” Verizon Maryland, 535 U.S. at 644 n. 3.                  court judgment.” With this lawsuit, Dubuc launches a general
                                                                     attack on the constitutionality of the RCSBM’s rule that an
  In District of Columbia Court of Appeals v. Feldman, the           unsuccessful applicant must wait longer before reapplying if
two plaintiffs were denied permission to sit for the District of     the applicant sought a de novo hearing from the Board
Columbia bar exam because one had not graduated from law             regarding his first application. Dubuc also seeks injunctive
school and the other had not graduated from an accredited law        and declaratory relief prohibiting defendants from using First
school. 460 U.S. 462, 465, 470 (1983). Each plaintiff                Amendment activities as a basis for denying admission to the
unsuccessfully appealed the bar admission committee’s                Bar. Because Dubuc does not seek to have the district court
decision to the District of Columbia Court of Appeals.               overturn the denial of his 1998 application, the Rooker-
Instead of then seeking review from the Supreme Court, each          Feldman doctrine is inapplicable to this lawsuit. See Edwards
plaintiff filed a lawsuit in the United States District Court for    v. Illinois Bd. of Admissions to Bar, 261 F.3d 723, 729 (7th
the District of Columbia, seeking a declaration that the             Cir. 2001) (“When the litigant is challenging the
District of Columbia Court of Appeals’ decision was                  constitutionality of a rule that was applied to him, but is not
unconstitutional and an injunction allowing him to sit for the       asking to correct or revise the determination that he violated
bar exam. Id. at 468-69.                                             the rule, Rooker-Feldman is no obstacle to the maintenance
                                                                     of the suit.” (internal quotation marks omitted)).
  The Supreme Court determined that a district court has no
jurisdiction to hear a challenge to a state court’s final decision     The Seventh Circuit considered an analogous situation in
in a bar admission matter. Id. at 482. The Court concluded           Buckley v. Illinois Judicial Inquiry Bd., 997 F.2d 224 (7th Cir.
that plaintiffs “should have sought review of the District of        1993). The Illinois Judicial Inquiry Board filed charges
Columbia Court of Appeals’ judgments in this Court.” Id.             against Robert Buckley, an Illinois state court justice, for
The Court, however, determined that a district court does            violating a state rule regulating the speech of candidates for
have jurisdiction to hear “a general challenge to the                judicial office. Id. at 226. The Illinois Courts Commission
constitutionality” of a bar admission rule. Id. at 483.              ruled that Buckley had violated the rule in his 1990 judicial
Therefore, a district court cannot reverse a state court’s final     campaign, and according to the Illinois state constitution, the
decision to deny “a particular application for admission,” but
a district court may resolve a general challenge to the future
enforcement of an allegedly unconstitutional bar admission                3
                                                                           In making its decision, the Supreme Court in Feldman expressly did
                                                                     not reach the question of whether the doctrine of res judicata forecloses
                                                                     plaintiffs’ generalized attacks on the constitutionality of the bar admission
                                                                     rules. Feldman, 460 U.S. at 487 -88.
No. 02-1897                    Dubuc v. Mich. Board of        15   16   Dubuc v. Mich. Board of                      No. 02-1897
                                 Law Examiners et al.                   Law Examiners et al.

commission’s decision was final because Buckley had no             1998 application or do anything else to correct or revise
avenue for appeal within the state court system. Id.               defendants’ denial of his 1998 application. Therefore,
                                                                   Rooker-Feldman does not bar his lawsuit.
  Buckley filed suit in federal district court, not seeking to
overturn the final decision from the Illinois Courts                  In support of their Rooker-Feldman argument, defendants
Commission, but instead seeking a declaratory judgment that        cite Patmon v. Michigan Supreme Court, where this court
the state rule regulating the speech of judicial candidates is     held that the Rooker-Feldman doctrine barred an attorney’s
unconstitutional. The Seventh Circuit held that:                   constitutional challenge to a state court’s decision to
                                                                   temporarily suspend him from the practice of law. 224 F.3d
  Justice Buckley’s challenge to the constitutionality of          504, 510 (6th Cir. 2000). This court’s decision in Patmon,
  Illinois Supreme Court Rule 67(B)(1)(c) does not entail          however, is distinguishable from the present case because in
  a challenge to the ruling by the Illinois Courts                 Patmon the plaintiff sought to have the district court, among
  Commission that he violated the rule. It is true that if as      other things, declare that his rights had been violated, restore
  in Leaf v. Supreme Court, 979 F.2d 589 (7th Cir.1992),           his law license, and purge his disciplinary records. Id. at 507.
  Buckley were seeking not only to clear away the rule so          Dubuc does not seek a declaration that defendants violated his
  that he could run in future judicial elections unimpeded         rights with regard to the denial of his 1998 Bar application,
  by it but also to obtain relief against the discipline           nor does he seek to have the denial of his 1998 application
  imposed upon him, he would be in effect appealing from           overturned or purged. Instead, the relief he seeks relates only
  the Illinois Courts Commission’s judgment (though that           to his rights with regard to reapplying for admission to the
  would be only a part of what he was doing), which                Bar. Cf. Patmon, 224 F.3d at 506 n. 2 (“Although plaintiff’s
  Rooker-Feldman forbids him to do. But he is not asking           suspension has run its course, and he was eligible as of
  us to expunge the disciplinary finding or do anything else       April 6, 1998 to seek reinstatement, plaintiff has not done
  to correct or revise the Commission’s judgment. He is            so.”). There has been no state court judgment with regard to
  not, in short, asking for any relief of the kind an appellant    his rights to reapply for admission to the Bar, and, therefore,
  seeks – relief directed against a judgment. Of course that       Dubuc is not seeking a review of any state court judgment in
  judgment, which by virtue of Rooker-Feldman Justice              contravention of the Rooker-Feldman doctrine.
  Buckley cannot attack in this suit, might by principles of
  res judicata bar him from maintaining this suit. But res         D. Other grounds upon which to affirm
  judicata is a defense, not a limitation on jurisdiction.
                                                                     This lawsuit was filed a little more than two months before
Id. at 227.                                                        the district court dismissed it sua sponte on immunity
                                                                   grounds. Defendants had not filed a motion to dismiss on any
   As in Buckley, if Dubuc were seeking to obtain relief           ground except venue, and the parties had not presented any
against the denial of his 1998 application, instead of simply      evidence to the district court. Defendants have not asserted
seeking to clear away the allegedly unconstitutional rules so      any other ground upon which to affirm the dismissal of this
that he can reapply to the Bar in the future unimpeded by
these rules, then Rooker-Feldman would apply. But Dubuc
is not asking the district court to expunge the denial of his
No. 02-1897                          Dubuc v. Mich. Board of             17     18   Dubuc v. Mich. Board of                      No. 02-1897
                                       Law Examiners et al.                          Law Examiners et al.

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

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