                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0243n.06
                              Filed: May 6, 2008

                                           No. 07-5647

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


DAVID E. DANNER,                                         )
                                                         )         ON APPEAL FROM THE
       Plaintiff-Appellant,                              )         UNITED STATES DISTRICT
                                                         )         COURT FOR THE MIDDLE
               v.                                        )         DISTRICT OF TENNESSEE
                                                         )
BOARD OF PROFESSIONAL RESPONSIBILITY                     )
OF THE TENNESSEE SUPREME COURT, and                      )
LANCE B. BRACY,                                          )
                                                         )
      Defendants-Appellees.                              )
__________________________________________               )


BEFORE: COLE and GRIFFIN, Circuit Judges; and FORESTER, District Judge.*

       GRIFFIN, Circuit Judge.

       Plaintiff David Danner appeals the district court’s February 12, 2007, Order (1) adopting the

Report and Recommendation of the Magistrate Judge, (2) overruling plaintiff’s objection to the

Report and Recommendation, (3) granting defendants’ Motion to Dismiss the Amended Complaint,

and (4) dismissing the case without prejudice under the abstention principles elucidated in Younger

v. Harris, 401 U.S. 37 (1991). Danner additionally appeals the district court’s April 13, 2007, Order

denying plaintiff’s Motion to Alter and Amend Judgment, and the district court’s June 28, 2007,




       *
       The Honorable Karl S. Forester, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
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Danner v. Bd. of Prof’l Resp.


Order denying plaintiff’s Motion to Set Aside Judgments. For the reasons set forth below, we affirm

the orders of the district court.

                                                  I.

        Plaintiff is an attorney licensed to practice law in the state of Tennessee. Danner had

previously represented a client in a federal employment discrimination action. This matter was

eventually settled with the client receiving settlement proceeds. A dispute arose between Danner

and his client over the client’s discovery deposition and the terms of the financial settlement. This

dispute culminated in the client filing a complaint against Danner with the Board of Professional

Responsibility of the Tennessee Supreme Court (“the Board”) on February 25, 2005.

        On April 4, 2005, the Board forwarded a summary of the complaint to Danner. Danner

responded to the complaint on April 19, 2005, with further correspondence exchanged thereafter

between Danner, his former client, and Lance B. Bracy, Chief Disciplinary Counsel for the Board.

On January 30, 2006, Bracy informed Danner that the Board had voted to recommend diversion of

the matter to a practice and professional enhancement program pursuant to Tennessee Supreme

Court Rule 9, Section 30. Danner would attend this program at his own expense and, after

successful completion, his disciplinary complaint would be dismissed. Danner was additionally

informed that “[d]iversion into a practice and professional enhancement program does not constitute

a disciplinary sanction and is confidential.” Bracy notified Danner that he had the right to reject the

recommended diversion, which would result in the matter being returned to the Board for further

proceedings and the likely issuance of a private admonition or private reprimand.


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       On February 17, 2006, Danner responded to the January 30, 2006, letter. Danner informed

Bracy and the Board that he “contest[ed] the Board action and decline[d] the alternate solution it

propose[d].” He additionally requested “a hearing on this matter if discipline [was] imposed after

the Board’s reconsideration of this matter . . . .” The Board acknowledged receipt of this letter on

February 22, 2006.

       The Board considered the matter on March 10, 2006, and determined that a private informal

admonition was an appropriate discipline. On March 31, 2006, the Board sent Danner notice of the

discipline, as well as a proposed informal admonition. Both the notice and the informal admonition

advised Danner that he could request a formal hearing within twenty days, as provided in Rule 9,

Section 8.1, of the Tennessee Supreme Court Rules.

       Danner filed the present civil action in the United States District Court for the Middle District

of Tennessee on April 24, 2006, nineteen days after he received the notice and the proposed informal

admonition. The suit named the Board and Bracy, in both his individual and official capacity, as

defendants and alleged violations of 42 U.S.C. §§ 1983, 1985, the First, Fifth, and Fourteenth

Amendments to the United States Constitution, as well as Article 1, §§ 8, 19, and 21 of the

Tennessee Constitution. Danner sought to have the proposed, but not imposed, discipline vacated

and withdrawn; to recover general, special, consequential, punitive, and exemplary damages, plus

attorney’s fees and court costs; to have the district court enjoin any policy, practice, or conduct by

defendants determined to be in violation of the United States and/or the Tennessee Constitution; and

to have a declaratory judgment that defendants violated his constitutional rights.


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       On August 31, 2006, defendants filed a Motion to Dismiss the Amended Complaint. On

December 13, 2006, the Magistrate Judge issued a Report and Recommendation recommending

dismissal pursuant to Younger.         Defendants filed a timely objection to the Report and

Recommendation. On February 12, 2007, the district court issued an Order adopting the Report and

Recommendation and dismissing the case without prejudice pursuant to the Younger abstention

doctrine. Danner then filed a Motion to Alter or Amend Judgment and a Motion to Set Aside

Judgments, both of which were denied. Danner filed a Notice of Appeal on May 14, 2007, and later

filed a second Notice of Appeal on July 26, 2007. This second appeal, which concerned the Order

denying the Motion to Set Aside Judgments, was dismissed for failure to prosecute.

                                                  II.

       In Younger, the United States Supreme Court counseled federal courts to abstain from

enjoining certain pending state court criminal proceedings. This doctrine is borne out of a “proper

respect for state functions, a recognition of the fact that the entire country is made up of a Union of

separate state governments, and a continuance of the belief that the National Government will fare

best if the States and their institutions are left free to perform their separate functions in their

separate ways.” Younger, 401 U.S. at 44.

       This doctrine has subsequently been extended to apply to both ongoing state civil

proceedings, see Huffman v. Pursue, Ltd., 420 U.S. 592 (1975), and ongoing state administrative

proceedings, Middlesex County Ethics Commission v. Garden State Bar Association, 457 U.S. 423

(1982). A federal court should abstain only when three criteria are met, specifically: (1) the


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

important state interests; and (3) there is an adequate opportunity to raise constitutional challenges

in the course of the underlying proceeding. See Loch v. Watkins, 337 F.3d 574, 578 (6th Cir. 2003);

Tindall v. Wayne County Friend of the Court, 269 F.3d 533, 538 (6th Cir. 2001). A federal district

court’s decision to abstain from review of the merits of a case is reviewed de novo. Squire v.

Coughlan, 469 F.3d 551, 555 (6th Cir. 2006) (citing Berger v. Cuyahoga County Bar Ass’n, 983

F.2d 718, 721 (6th Cir. 1993)).

       Turning to the question of whether the underlying proceedings constitute an ongoing judicial

proceeding, we first note that the Supreme Court has previously held that state bar disciplinary

proceedings can be considered “judicial in nature” despite the lack of a formal government action.

Middlesex, 457 U.S. at 425-27. In Middlesex, the Court determined that the discipline proceedings

at issue were “judicial in nature” and thus “warrant[ed] federal-court deference” because the New

Jersey Supreme Court regarded the disciplinary hearings as judicial proceedings. Id. at 433. The

Court’s view stemmed from the fact that Article 6, Section 2, Paragraph 3 of the New Jersey State

Constitution vested the power to discipline members of the state bar in the state supreme court, and

the local New Jersey “District Ethics Committees” act as the disciplinary arm of that court.

Middlesex, 457 U.S. at 425. Thus, to file a complaint with the local ethics committee was, in effect,

the same as filing a complaint with the New Jersey Supreme Court. Id. at 433 (citing Toft v.

Ketchum, 113 A.2d 671, 673-74 (N.J. 1955)).




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       The Tennessee Supreme Court performs a regulatory function similar to that of the Supreme

Court of New Jersey. While the Tennessee Constitution does not formally assign the state supreme

court the role of regulating and disciplining attorneys as seen in Middlesex, the Tennessee Supreme

Court has itself held that it is “well settled and indisputable that the Supreme Court has the ‘inherent

supervisory power to regulate the practice of law . . . .’” Brown v. Bd. of Prof’l Resp., 29 S.W.3d

445, 449 (Tenn. 2000) (quoting In re Burson, 909 S.W.2d 768, 773 (Tenn. 1995)). Further, in

examining the function and role of the Tennessee Board of Examiners, the Tennessee Supreme Court

has held that when the Tennessee General Assembly created the Board, they were merely creating

an aid to the judiciary, and therefore the Board became part of the judicial branch of government.

Belmont v. Bd. of Law Examiners, 511 S.W.2d 461, 463 (Tenn. 1974). The Court has noted that the

Tennessee Board of Professional Responsibility, like the Board of Examiners, derived its functions

and authority from the Supreme Court. Brown, 29 S.W.3d at 449; Mercer v. HCA Health Svs. of

Tennessee, Inc., 87 S.W.3d 500, 504 (Tenn. Ct. App. 2002).

       Moreover, we have held previously that investigations by disciplinary counsel into suspected

attorney misconduct, and concomitant disciplinary proceedings, are adjudicative functions for

purposes of Younger analysis. See Squire, 469 F.3d at 556 (holding such in context of Disciplinary

Counsel for the Supreme Court of Ohio); Fieger v. Thomas, 74 F.3d 740, 744 (6th Cir. 1996)

(holding such in context of Michigan Attorney Grievance Commission). We similarly hold that the

Tennessee disciplinary proceedings at issue are judicial in nature.




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       Our remaining inquiry as to the first Younger element concerns whether the underlying state

proceeding was “ongoing.” In conducting this inquiry, we have looked previously to the day of the

federal complaint’s filing. If the state proceeding was pending at the time of the filing, we consider

the matter ongoing for purposes of the first Younger question. Loch, 337 F.3d at 578 (citing Zalman

v. Armstrong, 802 F.2d 199, 204 (6th Cir. 1986)). The action “remains pending until a litigant has

exhausted his state appellate remedies.” Id. (citing Huffman, 420 U.S. at 609). Here, Danner filed

his federal suit nineteen days after receiving the notice of proposed discipline, which was one day

prior to the deadline for requesting a full hearing on the misconduct charge. At the time he filed his

federal complaint, punishment had not been imposed and Danner had yet to avail himself of

available appellate remedies. We therefore conclude that the state disciplinary matter was ongoing,

and subsequently hold that the first element of Younger is satisfied.

                                                 III.

       The second question in our Younger analysis is whether the disciplinary proceedings

implicate important state interests. There can be no serious question that the regulation and

discipline of attorneys is an important state function. As the Supreme Court has noted, the regulation

of lawyers is of “especially great” interest to the state, as lawyers are “essential to the primary

governmental function of administering justice, and have historically been ‘officers of the courts.’”

Goldfarb v. Virginia State Bar, 421 U.S. 773, 792 (1975) (quoting Sperry v. Florida ex rel. Florida

Bar, 373 U.S. 379, 383 (1965)). See also Fieger, 74 F.3d at 745. Thus, we must conclude that the

second element of the Younger abstention doctrine is satisfied.


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                                                  IV.

       The final question in our Younger inquiry is whether the state proceeding offered an adequate

opportunity for Danner to raise constitutional challenges. As we have noted previously:

       Abstention is appropriate “unless state law clearly bars the interposition of the
       constitutional claims.” Fieger, 74 F.3d at 745 (citations and quotation marks
       omitted). The plaintiff bears the burden of showing that state law barred presentation
       of his or her constitutional claims. Id. at 746. Once this third and final requirement
       is met, abstention is appropriate “unless the plaintiff can show that one of the
       exceptions to Younger applies, such as bad faith, harassment, or flagrant
       unconstitutionality.” Id. at 750 (citation and quotation marks omitted).

Squire, 469 F.3d at 556. We note that Rule 9, Section 13 of the Tennessee Supreme Court explicitly

provides for judicial review of the Board’s decisions when it is alleged that these findings violate

either statutory or constitutional provisions.

       Danner is unable to demonstrate that the relevant statutory scheme prohibits the presentation

of his constitutional arguments. Indeed, disciplinary counsel acknowledged Danner’s constitutional

arguments and stated that these arguments would be forwarded on to the Board. Danner instead

proceeds by arguing that the Tennessee judiciary is biased against him. Specifically, in his brief,

appellant asserts that there has been a “history of hostile, harassing treatment by Tennessee judges

throughout his formative professional career which judicial treatment has included illegal sanctions,

unlawful rulings, and irregular procedures [that] should provide sufficient basis for a state-court bias

finding for an exception to Younger abstention . . . .” While bias is an exception to Younger

abstention, it is an extraordinary one, and the petitioner alleging such must offer “actual evidence

to overcome the presumption of honesty and integrity in those serving as adjudicators.” Canatella


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v. California, 404 F.3d 1106, 1112 (9th Cir. 2005) (citations and quotations omitted). Danner

attempts to meet this burden by supplying five letters that he sent to various judiciary officials which

he claims were ignored. This production falls woefully short of demonstrating that there is

institutional bias against Danner in the Tennessee judiciary. We therefore conclude that the third

prong of the Younger inquiry is satisfied and abstention is warranted.

                                                  V.

       Danner additionally argues that the district court erred in failing to grant his “secondary post-

judgment-relief motion concerning continuing bias against him in Tennessee state tribunals.” The

district court’s order denying this motion was appealed only in appellant’s second Notice of Appeal.

This appeal, case number 07-5921, was dismissed for failure to prosecute. Danner’s arguments

regarding this point are therefore not properly before this court.

                                                  VI.

       Finally, appellant contends that his appeal should be allowed to proceed because it is not

barred under the Rooker-Feldman doctrine, which prohibits parties that have received an adverse

state court decision from obtaining review of those decisions in federal district court. D.C. Court

of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); see

also Powers v. Hamilton County Pub. Defenders Comm’n, 501 F.3d 592, 606 (6th Cir. 2007)

(“Rooker-Feldman prevents an unsuccessful state court party ‘from seeking what in substance would

be appellate review of the state judgment in a United States district court, based on the losing party’s

claim that the state judgment itself violates the loser’s federal rights’”) (quoting Johnson v.


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DeGrandy, 512 U.S. 997, 1005-06 (1994)). Assuming Danner is correct in arguing that the doctrine

does not bar the instant suit, a conclusion that is suspect given the relief plaintiff seeks, the doctrine

certainly does not compel review in the present matter. The district court’s opinion and order for

dismissal rested on abstention principles, not on the Rooker-Feldman doctrine. This argument,

therefore, has no merit.

                                                  VII.

        For these reasons, we affirm the orders of the district court.




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