NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________

No. 21-1804 ______________

RICHARD L. ABBOTT, Appellant

v.

LUKE W. METTE; KATHLEEN M. VAVALA; COLLINS J. SEITZ, JR.; JAMES T. VAUGHN, JR.; TAMIKA R. MONTGOMERY-REEVES; GARY F. TRAYNOR; KAREN L. VALIHURA ______________

Appeal from the United States District Court for the District of Delaware (D.C. No. 1-20-cv-00131) District Judge: Hon. Richard G. Andrews ______________

Submitted Under Third Circuit L.A.R. 34.1(a) December 6, 2021 ______________

Before: SHWARTZ, PORTER, and FISHER, Circuit Judges.

(Filed: December 14, 2021) ______________

OPINION* ______________

* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. SHWARTZ, Circuit Judge.

Richard Abbott, an attorney licensed in Delaware, sued the five Justices of the

Delaware Supreme Court and two attorneys from the Delaware Office of Disciplinary

Counsel (“ODC”), an arm of the Supreme Court, claiming that the disciplinary

investigation into his conduct violated state and federal law. He seeks solely declaratory

and injunctive relief against the ongoing disciplinary proceeding. The District Court

properly dismissed the case based on Younger abstention and so we will affirm.

I

A

The Delaware Supreme Court regulates the legal profession in Delaware. Through

its rules, the Court has established several entities to oversee the investigation and

prosecution of Delaware Bar members who are alleged to have violated the ethics rules

and it appoints individuals to handle these duties. Del. Sup. Ct. R. 62(a), 62(c), 64(a).

One of the entities is ODC. ODC screens and evaluates all complaints and conducts

investigations. Del. Sup. Ct. R. 64(e)(1-3). If ODC determines that formal proceedings

are necessary, it presents the matter to the Preliminary Review Committee (“PRC”) of the

Board on Professional Responsibility (“Board”). If PRC approves the institution of

formal charges, then the Board holds formal proceedings and produces a final report for

the Court. The Court then determines whether the charges have been proven and what

2 discipline, if any, is warranted. Del. Sup. Ct. R. 63.

B

Abbott has been the subject of ODC disciplinary investigations and proceedings.

Most recently, Abbott received a notice from ODC that it planned to present five charges

against him to the PRC and would recommend the filing of a petition for discipline with

the Board. After receiving this notice, but before ODC presented charges to the PRC,

Abbott filed this lawsuit. Shortly thereafter, the PRC approved ODC’s petition to bring

formal charges against Abbott.

Defendants moved to dismiss Abbott’s complaint under Fed. R. Civ. P. 12(b)(6),

arguing, among other things, that the District Court should abstain from hearing his

claims under Younger v. Harris,

(1971). Over Abbott’s objections, the

District Court adopted the Magistrate Judge’s Report & Recommendation that Younger

abstention was warranted and dismissed the complaint.1

Abbott appeals.

II2

A

Federal courts should decline to exercise jurisdiction under the Younger abstention

1 The District Court also declined to grant a stay in lieu of dismissal as it found the Defendants would be immune from suit. 2 The District Court had jurisdiction under

and 1367. We have jurisdiction pursuant to

. Dismissals under Younger are subject to de novo review. PDX North, Inc. v. Comm’r N.J. Dep’t of Labor & Workforce Dev., 978 3 doctrine in deference to ongoing state proceedings “in only a narrow range of cases.”

ACRA Turf Club, LLC v. Zanzuccki,

(3d Cir. 2014). Such cases fall

into three categories: (1) state criminal prosecutions, (2) state civil enforcement

proceedings, or (3) state civil proceedings involving orders in furtherance of the state

courts’ judicial function.

at 138 (citing Sprint Commc’ns, Inc. v. Jacobs,

(2013)). With respect to this final category, in Middlesex County Ethics Committee v.

Garden State Bar Association,

(1982), the Supreme Court held that attorney

disciplinary proceedings are “of a character to warrant federal-court deference” because

they implicate vital state interests.

. Abbott challenges his ongoing attorney

disciplinary proceedings in Delaware. Accordingly, his case falls into the narrow range

of cases where Younger abstention may be appropriate.

Concluding this threshold requirement has been met, we next consider whether:

(1) there are “ongoing judicial proceeding[s]”; (2) those “proceedings implicate important

state interests”; and (3) there is “an adequate opportunity in the state proceeding to raise

[federal] challenges.” PDX North, Inc. v. Comm’r N.J. Dep’t of Labor & Workforce

Dev.,

(3d Cir. 2020) (citation omitted). Abbott does not dispute that

Delaware’s attorney disciplinary proceedings implicate important state interests.

Therefore, we will address only the first and third factors.

F.3d 871, 881 n.11 (3d Cir. 2020) (detailing the shift to de novo review for Younger abstention in the Third Circuit). 4 1

We must first determine whether Delaware’s disciplinary proceeding against

Abbott constitutes an “ongoing judicial proceeding.” Abbott argues that, because he filed

his suit before formal charges were brought, there were no ongoing judicial proceedings,

so his case is unlike Middlesex. Middlesex, however, is directly on point. First, like the

New Jersey disciplinary system in Middlesex, the Delaware Supreme Court possesses

ultimate authority over each stage of the proceedings, from complaint to final resolution,

which either the Court or an arm of the Court carries out. See In re Pelletier,

(Del. 2014) (“This Court has the ‘inherent and exclusive authority to discipline

members of the Delaware Bar.’” (quoting In re Abbott,

(Del. 2007)));

see also In re Infotechnology, Inc.,

(Del. 1990) (noting that the court

“alone[] has sole responsibility for . . . enforcing the Rules of Professional Conduct”);

Del. Law. Disc. P. R. 1(a) (noting that the court is responsible for “dispos[ing] of

individual cases of lawyer discipline” and “administer[ing] the lawyer disciplinary

system”); Del. Sup. Ct. R. 64 cmt. (recognizing ODC as an “independent arm” of the

court involved in regulating the conduct of lawyers and the practice of law).

Second, Middlesex arose in a similar procedural posture to this case. Like Abbott,

an ethics complaint had been filed against the attorney in Middlesex before he decided to

file suit in federal court. 475 U.S. at 428-29. Although Abbott is correct that formal

charges were already brought against the attorney in Middlesex and Abbott was informed

5 only that charges would be brought, the filing of formal charges is not the start of the

judicial proceedings. Rather, the filing of an ethics complaint itself was “in effect a filing

with the [state’s] Supreme Court” of a case that its designee thereafter investigates and

the state supreme court adjudicates. Id. at 433 (quoting Toft v. Ketchum,

(1955)). Thus, “[f]rom the very beginning[,] a disciplinary proceeding is judicial in

nature.” Id. at 433.

Abbott similarly filed his suit after an ethics complaint was filed and after ODC

had conducted disciplinary investigations and proceedings and issued a notice of

impending disciplinary charges. Thus, Abbott’s argument that there were no ongoing

judicial proceedings because formal proceedings had not yet begun fails.

2

There was also an adequate opportunity in the Delaware disciplinary proceedings

for Abbott to raise his federal claims. When opposing Younger abstention, a federal

plaintiff bears the burden of demonstrating that “state procedural law barred presentation

of [his] claims.” Schall v. Joyce,

(3d Cir. 1989) (quoting Pennzoil Co.

v. Texaco, Inc.,

(1987)). Abbott has not carried his burden. First, Rule 9

of the Delaware Lawyers’ Rules of Disciplinary Procedure does not bar an attorney from

raising constitutional or RICO claims. Rule 9(d)(2) provides only that, in formal

proceedings before the Board, an attorney shall serve an answer upon ODC within twenty

6 days of being served with a petition.3 Del. Law. Disc. P. R. 9(d)(2). Thus, Rule 9’s text

does not explicitly bar an attorney from filing counterclaims or otherwise raising federal

or state claims in attorney disciplinary proceedings. Second, ODC informed Abbott that

it would recommend filing a petition for discipline and that he could send a “written

statement” to ODC for submission to the PRC. A-95. Nothing in the record shows

Abbott attempted to raise any federal or state claims in the statement he was invited to

provide. A party may not “escape Younger abstention by failing to assert [his] state

remedies in a timely manner.” Pennzoil,

n.16. Furthermore, when a

litigant has not attempted to present his federal claims in the related state-court

proceedings, we presume that state procedures will afford an adequate remedy “in the

absence of unambiguous authority to the contrary.”

. Abbott has presented no

such authority.

This failure is unsurprising. As the Supreme Court observed in Middlesex,

because the New Jersey Supreme Court had ultimate authority over disciplinary

3 Notably, the Delaware Superior Court Rules of Civil Procedure do not separately address the filing of counterclaims, but Rules 7(a) and 8(a) of those rules set forth permissible pleadings, including answers with cross-claims and replies to counterclaims. Del. Super. Ct. R. Civ. P. 7(a), 8(a). Given that the civil procedure rules refer to answers without specifically referring to counterclaims, yet permits replies to them, it is fair to infer that use of the word “answer” envisions the use of counterclaims. This inference is strengthened by Rule 8(a)’s mention of counterclaims as a permissible pleading form. It is therefore reasonable to infer that use of the word “answer” in Rule 9 of the disciplinary rules carries a similar meaning. In any event, even if what constitutes an “answer” under Rule 9 is ambiguous, “[w]e cannot assume that state judges will interpret ambiguities in state procedural law to bar presentation of federal claims.” Pennzoil,

. 7 procedures and the ethics committees were arms of the court, it would be “difficult” to

conclude that there was no adequate opportunity to raise constitutional claims in attorney

disciplinary proceedings. See

(noting the “unique relationship” of the

court and the committees). Similarly, Abbott has not shown in this case that the

Delaware Supreme Court lacks authority to consider constitutional or statutory federal

claims. See Tafflin v. Levitt,

(1990) (recognizing concurrent federal

and state jurisdiction over RICO claims). Because Abbott has failed to show that there is

any procedural bar prohibiting him from raising counterclaims in the attorney

disciplinary proceedings, we conclude that those proceedings present an adequate

opportunity for Abbott to raise his claims.4

For these reasons, the District Court correctly abstained under Younger.

B

Furthermore, none of the Younger exceptions apply. Abstention may be

inappropriate where there is a showing of bad faith or harassment. Middlesex,

. A prosecution or proceeding is conducted in “bad faith” for abstention purposes

when it is brought “without hope” of success. Perez v. Ledesma,

(1971).

The bad faith exception may also be implicated when a plaintiff shows that the state

4 Abbott also asserts that his inability to obtain the discovery he seeks during the attorney disciplinary proceedings impedes his ability to fully pursue his claims. Pennzoil, however, requires only an inquiry into whether state law bars the assertion of claims,

, and the Delaware Supreme Court can address his complaints about the discovery orders. 8 proceeding was “initiated with and is animated by a retaliatory, harassing, or other

illegitimate motive.” Diamond “D” Constr. Corp. v. McGowan,

, 199 (2d

Cir. 2002). The plaintiff bears the burden of showing bad faith or harassment. Schall,

.

Abbott has not demonstrated that ODC instituted the proceedings without any

expectation of success. ODC is proceeding based upon a complaint from the Vice

Chancellor of the Delaware Court of Chancery arising from Abbott’s alleged conduct in a

case before that court. His assertion of bad faith and harassment, premised on his view

that ODC is engaging in a “fishing expedition” and his past encounters with ODC, A-37,

does not show that ODC’s case has no hope of success. Moreover, Abbott’s

disagreement with the merits of the disciplinary action does not mean it was pursued in

bad faith. Furthermore, he has adduced no evidence that the current proceedings were

initiated to harass him. As a result, Abbott’s assertions do not show bad faith or

harassment.5

Abbott has also failed to identify any extraordinary circumstances that counsel

against applying Younger abstention. Extraordinary circumstances exist if the state

proceeding “present[s] a significant and immediate potential for irreparable harm to the

5 Abbott asserts that ODC’s charge of engaging in undignified and discourteous conduct was in retaliation for private and privileged statements he made in a pro se capacity. Because the record does not reveal the substance of his comments, we cannot determine whether the speech was protected or the charge is brought in bad faith or stems from an improper motive. 9 federal interests asserted.” Schall,

; see also Zahl v. Harper,

(3d Cir. 2002) (recognizing that comity is not strained when a federal court

“cuts off state proceedings that entrench upon the federal domain” (quotation marks and

citations omitted)). In these circumstances, the appropriateness of abstention is

predicated solely “upon the significance of the federal interest invoked.” Zahl,

(quotation marks and citation omitted).

Abbott has not identified any federal interest that is jeopardized by the Delaware

disciplinary proceedings. Moreover, it is undisputed that Delaware has a substantial

interest in regulating the conduct of members of the Delaware Bar. See District of

Columbia Court of Appeals v. Feldman,

, 482 n.16 (1983) (noting state’s

interest in regulating the legal professional “is especially great since lawyers are essential

to the primary governmental function of administering justice” (quoting Goldfarb v.

Virginia State Bar,

(1975))); see also Middlesex,

(observing state has an “extremely important interest in maintaining and assuring the

professional conduct of the attorneys it licenses”). Given that there is a substantial state

interest and Abbott has failed to identify any federal interest at risk, there are no

extraordinary circumstances that make Younger abstention inappropriate here.

10 III

For the foregoing reasons, we will affirm the order dismissing the complaint based

upon Younger.6

6 Because Abbott does not address the District Court’s decision not to stay the case in his opening brief, he has forfeited any challenge to that ruling. See In re Wettach,

(3d Cir. 2016) (holding that the failure to develop arguments in an opening brief constitutes forfeiture of those issues). 11