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
v.
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
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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.
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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.
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FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Daniel J. Reidy
Deputy Clerk