       IN THE UNITED STATES COURT OF APPEALS
                FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                Fifth Circuit

                                             FILED
                                                                   May 7, 2009

                                No. 07-60110                  Charles R. Fulbruge III
                                                                      Clerk

EARL STEPHEN DEAN
                                          Plaintiff-Appellant
v.
MISSISSIPPI BOARD OF BAR ADMISSIONS, ET. AL.
                                          Defendants-Appellees


                                ____________
                                  07-60793
                                ____________


E. STEPHEN DEAN
                                          Plaintiff-Appellant
v.
JAMES R. MOZINGO, In his Official Capacity as Chairman
of the Mississippi Board of Bar Admissions
                                          Defendant-Appellee




               Appeals from the United States District Court
                   for the Southern District of Mississippi
                         USDC No. 2:06-CV-00046
                         USDC No. 3:06-CV-00068
                             Nos. 07-60110 and 07-60793




Before GARZA and DENNIS, Circuit Judges, and MINALDI, District Judge.*
PER CURIAM:**
       Plaintiff-Appellant E. Stephen Dean (“Dean”) appeals the sua sponte
dismissal of his Americans with Disabilities Act (“ADA”) and 42 U.S.C. § 1983
action, Appeal No. 07-60110, against the Mississippi Board of Bar Admissions
et. al. (“Board”) for lack of subject matter jurisdiction pursuant to Fed. R. Civ.
P. 12(h)(3). Dean also appeals the sua sponte dismissal of his action, Appeal No.
07-60793, for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P.
12(h)(3), that sought injunctive and declaratory relief on several constitutional
grounds against James R. Mozingo in his official capacity as Chairman of the
Board.      Dean also appeals the award of summary judgment on several
alternative grounds, including Younger abstention, res judicata, and collateral
estoppel. This Court granted Dean’s motion to consolidate cases 07-60110 and
07-60793 for this appeal.
       Because we conclude that the lower courts failed to consider the
application of the Rooker-Feldman doctrine in light of the explicit limitations
expressed in Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005),
we VACATE and REMAND. Furthermore, in No. 07-60793, because during the
pendency of the appeal the Mississippi Supreme Court rendered a final decision



       *
        District Judge of the Western District of Louisiana, sitting by designation.
       **
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in
5TH CIR . R. 47.5.4.

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                           Nos. 07-60110 and 07-60793

in the concurrent state litigation, the question of whether Younger abstention
is appropriate is now MOOT. Lastly, in No. 07-60793, we VACATE the grant of
summary judgment on res judicata and collateral estoppel and REMAND for
further proceedings in light of In re Dean, 972 So.2d 590 (Miss. 2008).
                       Factual and Procedural History
        Dean filed an application for admission to the Mississippi Bar on March
28, 2002. The Board denied Dean’s application in accordance with the
recommendations of the Committee on Character and Fitness (“the Committee”).
At Dean’s request, he appeared before the Board for reconsideration on April 17,
2003. On January 22, 2004, the Committee recommended the Board deny Dean’s
application because Dean demonstrated “an inclination to be dishonest, an
inclination to take unfair advantage of others, an inclination to fail to exercise
self-control, and an inclination to be mentally or emotionally unstable to the
extent that he was not suited to the practice of law.”
        The Committee conducted a second hearing on August 25, 2005, and the
Board denied Dean’s application for admission again on September 22, 2005.
Dean timely appealed the Board’s decision to the Chancery Court of Hinds
County, Mississippi, on October 24, 2005. The Chancery Court affirmed the
Board’s decision on August 23, 2006, and Dean appealed to the Mississippi
Supreme Court. The appeal to the Mississippi Supreme Court was pending at
the time of both district court opinions, but an opinion was issued on January 17,
2008.
        On February 8, 2006, while the appeal of the Board’s decision was pending
in the Chancery Court, Dean filed suit in the Southern District of Mississippi
alleging violations of the ADA and 42 U.S.C. § 1983 against the Board and its


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                              Nos. 07-60110 and 07-60793

individual members.1 Judge Louis Guirola, Jr. sua sponte dismissed the case for
lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(h)(3). Relying
upon District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 486 (1983),
for the proposition that “[f]ederal courts do not have jurisdiction over challenges
to state court decisions in particular cases arising out of judicial proceedings,”
but that federal courts do have jurisdiction over “general challenges to state bar
rules...which do not require review of a final state court judgment in a particular
case,” Judge Guirola concluded that because Dean’s claims challenge an
individual finding and not the Mississippi Bar admissions rules generally, the
district court lacked jurisdiction over Dean’s claim.
      On May 17, 2006, Dean filed a second suit in the Southern District of
Mississippi against Mozingo for prospective and injunctive relief from the
operation of Mississippi attorney licensing rules.2 Also relying upon Feldman,
460 U.S. at 486, the district court found that it lacked subject matter jurisdiction
“over challenges to state court decisions in particular cases arising out of judicial
proceedings even if those challenges allege that the state court’s action was
unconstitutional.” Finding that Dean’s allegations, although couched in general
terms, are “inextricably intertwined with the denial of his application to practice
law,” Judge Wingate also dismissed Dean’s case sua sponte for lack of subject
matter jurisdiction.
      Judge Wingate also considered Mozingo’s arguments for dismissal raised
by his motion to dismiss and motion for summary judgment under the
abstention doctrine of Younger v. Harris, 401 U.S. 37 (1971), and pursuant to


      1
          This case is Appeal No. 07-60110.
      2
          This case is Appeal No. 07-60793.

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                            Nos. 07-60110 and 07-60793

claim and issue preclusion. Finding that “Younger and its progeny establish a
strong policy against federal court interference with certain pending state
proceedings absent extraordinary circumstances,” the district court agreed with
Mozingo that abstention, given the pending state proceedings, was appropriate.
The district court, without analysis, also granted summary judgment on claim
and issue preclusion.
      On appeal, Dean challenges both district courts’ rulings.
                                      Discussion
      We review a dismissal for lack of subject matter jurisdiction de novo.
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). We also review a
grant of summary judgment de novo. Citibank Texas, N.A. v. Progressive Cas.
Ins. Co., 522 F.3d 591, 593 (5th Cir. 2008). A court should only award summary
judgment when there is no issue of material fact, and the movant is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c). The parties do not argue, and
this court does not find, that there are issues of material fact.
      A.) Rooker-Feldman Doctrine 3
      In Feldman, the Court held that lower federal courts have subject matter
jurisdiction to review general challenges to the constitutionality of state bar
admissions rules but lack jurisdiction to review a state court’s final judgment in
a bar admission matter. 460 U.S. at 482-86 (noting that assessing the validity
of a rule promulgated in a non-judicial proceeding does not violate 28 U.S.C.
§1257 because such review does not implicate the policies prohibiting the district
court from reviewing final state court judicial decisions). Observing that the

      3
        The holding of Feldman, combined with the holding of Rooker v. Fidelity Trust Co.,
263 U.S. 413 (1923), is known as “the Rooker-Feldman doctrine.” Exxon Mobil, 544 U.S. at
283.

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                          Nos. 07-60110 and 07-60793

lower courts have often extended the Rooker-Feldman doctrine “far beyond” its
contours, the Supreme Court explicitly limited the doctrine’s application to
“cases brought by state-court losers complaining of injuries caused by state-court
judgments rendered before the district court proceedings commenced and
inviting district court review and rejection of those judgments.” Exxon Mobil,
544 U.S. at 283-84. The Rooker-Feldman doctrine thus operates to preserve the
Supreme Court’s jurisdiction pursuant to 28 U.S.C. § 1257 in cases that district
courts would otherwise be able to adjudicate. Id. at 291. In so holding, the
Court emphasized that the plaintiffs in both Rooker and Feldman filed suit in
federal district court “after the state proceedings ended, complaining of an injury
caused by the state-court judgment and seeking review and rejection of that
judgment.” Id. at 291-92.
      Both district courts failed to consider the application of the Rooker-
Feldman doctrine in light of the explicit limitations expressed in Exxon Mobil.
Accordingly, we VACATE the district courts’ findings on the Rooker-Feldman
doctrine and REMAND for further analysis.

      B.) Younger Abstention

      In Appeal No. 07-60793, the district court granted summary judgment in
favor of Mozingo on the basis of Younger abstention, due to Dean’s ongoing state
proceedings. Judge Wingate found that any federal relief would interfere with
Dean’s ongoing state court proceedings and thus held Younger abstention was
appropriate. Younger requires an “ongoing state judicial proceeding.” See Texas
Ass’n of Business v. Earle, 388 F.3d 515, 519 (5th Cir. 2004). Because the
Mississippi Supreme Court rendered a final decision while this appeal was
pending, there is no longer an “ongoing state judicial proceeding,” and therefore

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                          Nos. 07-60110 and 07-60793

whether Younger abstention is appropriate is now MOOT.

      C.) Res Judicata and Collateral Estoppel

      In Appeal No. 07-60793, the district court also granted summary judgment
because “the defendant’s arguments in support of claim and issue preclusion in
this case are compelling.” The district court provided no analysis for finding that
Dean’s suit was barred by either doctrine; accordingly, we VACATE and
REMAND for further analysis. On remand, the district court should consider
res judicata and collateral estoppel in light of In re Dean, 972 So.2d 590 (Miss.
2008).

      D.) Other Grounds for Dismissal

      The parties also raise several arguments on appeal that invite a ruling on
the merits. Because the district courts did not entertain the merits of Dean’s
lawsuits, and the district courts may find the suits are barred by res judicata or
collateral estoppel, it is premature and inappropriate for us to consider the
merits.




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                          Nos. 07-60110 and 07-60793




DENNIS, Circuit Judge, specially concurring.

      The majority remands both cases to the district court so that the district
court may re-do its Rooker-Feldman and res judicata analyses. I agree with the
majority that both rulings from the district court as they now stand cannot be
affirmed and that the Younger abstention issue is moot. I write specially only
because it is our duty to consider the Rooker-Feldman and res judicata issues de
novo without remanding it back to the district court. See, e.g., Paulsson
Geophysical Servs., Inc. v. Sigmar, 529 F.3d 303, 306 (5th Cir. 2008) (Rooker-
Feldman); United States v. Davenport, 484 F.3d 321, 326 (5th Cir. 2007) (res
judicata). We need not concern ourselves with how the district court rules in
respect to subject matter jurisdiction and res judicata issues because the
appellate court has to examine these issue with a clean slate once the case
reaches the appellate level. See, e.g., Goodman v. United States, 518 F.2d 505,
509 (5th Cir. 1975). As a practical matter, the losing party below will likely
appeal the district court’s rulings after the remand. Since these cases will be
remanded to two different district court judges, the two cases may result in
conflicting decisions on remand. Both cases would then return here again and
we will be in the same position as we are here today, i.e., reviewing the decisions
de novo, except we would have incurred several months of delay for the parties
and added more work for our district courts. At least for the sake of judicial
economy and expediency, I believe we should have proceeded to examine these
issues.

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