(dissenting):
While both my colleagues apparently concede that Suffling v. Bondurant, 339 F.Supp. 257 (D.N.M.), aff’d mem. sub nom. Rose v. Bondurant, 409 U.S. 1020, 93 S.Ct. 460, 34 L.Ed.2d 312 (1972), does not render appellant’s constitutional claim wholly insubstantial, thereby calling for convocation of a three-judge court, both affirm the lower court’s decision dismissing the action.
To reach this conclusion my colleagues rely on two different, although basically related, theories, neither of which were briefed or argued before either this or the district court. Judge Mulligan rests his argument on Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923), but he also hints at elements of comity. Judge Hays rests his conclusion on res judicata. These theories are related because both allow that if appellant had not filed a petition with the Appellate Division, then his action here would not be dismissed. Both theories advance a notion that appellant had a choice of remedies — either to appeal the Character and Fitness Committee’s determination and interpretation through the New York courts or to bring a § 1983 action in Federal court. Each concludes that Mr. Tang elected to proceed through the New York courts by *144filing a petition with the Appellate Division, and goes on to hold that his only-route to federal adjudication of his constitutional claims was by appeal to the Supreme Court from a determination of the New York Court of Appeals.1 What both my colleagues miss, however, is that appellant never invoked the jurisdiction of the New York courts for any purpose other than to make an application for admission to the bar, and inasmuch as application to the Appellate Division of the Supreme Court is the sole and exclusive manner by which persons may be admitted to the New York bar, Erdmann v. Stevens, 458 F.2d 1205, 1208-1209 (2d Cir.), cert, denied, 409 U.S. 889, 93 S.Ct. 126, 34 L.Ed.2d 147 (1972), making such an application cannot be deemed an election of remedies.
Applications for admission to the New York bar are themselves actions in the Appellate Division. To say that its determination denying an applicant’s admission cannot be challenged in a § 1983 action because it is res judicata would be to make a wholly unreasonable distinction between (a) those who challenge rules of admission (1) prior even to application, Law- Students Civil Rights Research Council, Inc. v. Wadmond, 401 U.S. 154, 91 S.Ct. 720, 27 L.Ed.2d 749 (1971), (2) when denied the opportunity to take the bar examination, Keenan v. Board of Law Examiners, 317 F.Supp. 1350 (E.D.N.C.1970), (3) when denied admission to the bar in states where such decisions are made by administrative agencies, cf. Lipman v. Van Zant, 329 F.Supp. 391 (N.D.Miss.1971), or (4) when denied certification after passing the bar exam, as suggested by my colleagues 2 — all of . whom may bring § 1983 challenges — and (b) those who challenge rules of admission when denied admission by the court to which the original application was made — the situation in this case.
My colleagues construe appellant’s original petition for admission as though it were an appeal of some sort. Rule 9404 of the CPLR, however, provides that “[ujnless otherwise ordered by the appellate division, no person shall be admitted without a certificate from the proper committee . . ..” Appellant had been denied a certificate from the committee, but his application for admission had not been denied. Indeed, the committee does not grant or deny the application for admission; “final disposition” of the application is done “by the appellate division” under Rule 9407. Mr. Tang’s petition to the Appellate Division was, therefore, not an appeal from the committee. Cf. Kon-igsberg v. State Bar of California, 353 U.S. 252, 254, 77 S.Ct. 722, 1 L.Ed.2d 810 (1957). Rather, it was a petition in respect to his still pending application asking for an order under Rule 9404 admitting him without certification or in the alternative directing the committee to certify him. Because appellant in petitioning the Appellate Division was merely following the CPLR Rules gov*145erning admission to the bar and because the petition was the only means by which to become admitted, appellant should not be considered to have elected to pursue his remedy in the state courts, and be thus precluded from .raising his constitutional claim in a federal district court.
Judge Hays states that appellant is foreclosed from raising his constitutional claim in a lower federal court on the ground of res judicata. This cannot be. First, res judicata is an affirmative defense which must be set forth in the pleadings. Fed.R.Civ.P. 8(c). Moreover, the failure to plead res judicata as a defense amounts to a waiver of that defense, and it cannot be raised on appeal for the first time. Badway v. United States, 367 F.2d 22, 25 (1st Cir. 1966). The same is true for collateral estoppel. Cf. Federal Savings and Loan Insurance Corp. v. Szarabajka, 330 F. Supp. 1202, 1205 (N.D.Ill.1971). Here defendants-appellees have never pleaded res judicata or even briefed it. To hold against appellant on this basis would frustrate the whole point of Rule 8(c) —to try to prevent surprise to the other party, who in this case has never had an opportunity to brief the point.
More importantly, where the causes of action are different or the parties different, res judicata does not apply and collateral estoppel extends only to those issues actually litigated and decided. Commissioner v. Sunnen, 333 U.S. 591, 597-598, 68 S.Ct. 715, 92 L.Ed. 898 (1948); Cromwell v. County of Sac, 94 U.S. 351, 353, 24 L.Ed. 195 (1876); IB Moore, Federal Practice ¶ 0.405[3], at 633 (1973). Here, there is no indication that appellant ever claimed before New York courts that the residency requirement of § 9406 was unconstitutional. Judge Mulligan states that appellant conceded on oral argument that he raised this issue in his state proceeding. My memory may not be so good as my colleague’s, but my interpretation of appellant’s comments to us and his papers before the Appellate Division in his appendix to the petition is that he merely informed the New York court of the recent United States Supreme Court decisions concerning residency requirements to aid the court in defining “actual” residence. That this was not interpreted as a constitutional attack on the requirement is shown both by the answering affidavit of the chairman of the Committee on Character and Fitness 3 and the complete failure of the Appellate Division majority to address any constitutional attack, one which was hinted at in the dissenting opinion of the Appellate Division, to be sure, but solely for purposes of a statutory construction argument.
Judge Mulligan cites Rooker as the basis for his decision. Rooker, however, was an action in equity “to have a judgment . . . declared null and void,” 263 U.S. at 414, 44 S.Ct. at 149, on the basis of constitutional error. A reading of the case makes clear that the relief there sought was to reverse or modify the actual judgment of the state court. While appellant here does ask for such relief (paragraphs E and F of Complaint), his complaint is not limited to that. He also asks for a declaratory judgment that Rule 9406(3) is unconstitutional and for an injunction restrain*146ing appellees from further enforcement of it. These latter claims are not covered by the Hooker doctrine, because declaring Rule 9406(3) unconstitutional and granting injunctive relief would not disturb the Appellate Division’s earlier decision. Our decision would not make appellant a member of the New York bar.
Judge Mulligan hints at considerations of comity to justify denying federal relief to appellant, and cites Erdmann v. Stevens, supra, as an example of this court’s reluctance to intrude “into the relationship between the state and those who ask license to practice in its courts.” Erdmann, however, dealt only with an attempt to enjoin disciplinary proceedings against an already admitted lawyer; this court denied the injunction on the basis of the sextet of cases led by Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Federal courts have not been unwilling to consider constitutional challenges to state bar admission rules and practices, and indeed I find no case where a federal court has dismissed a complaint or affirmed a dismissal on the basis of “comity” in a case challenging a state’s bar admission practices.4
In conclusion, therefore, I believe that the district court has jurisdiction and that appellant’s constitutional claims are not insubstantial. I cannot agree that when an application for admission to the New York bar is denied by the only body empowered to grant or deny such applications — the Appellate Division— such a denial insulates the challenged rule from constitutional scrutiny in a § 1983 action.
. Judge Mulligan states, “There is no doubt that after having been denied admission to the New York bar, Tang could have immediately initiated his § 1983 action in the federal district court.” Yet the plain facts of this case show that Tang did initiate his § 1983 action immediately after being denied admission. This is so because only the Appellate Division has the power to deny admission. The committee only denies certification but certification is not indispensable to admission to the bar. CPLR Rule 9404.
. Indeed, had appellant come to federal court after his denial of a certificate by the committee, the State could well have argued that the anti-injunction statute, 28 U.S.C. § 2283, would operate to bar injunctive relief because appellant would still be involved in a proceeding in a state court. See also Chaney v. State Bar of California, 386 F.2d 962, 966 (9th Cir. 1967), cert, denied, 390 Ü.S. 1011, 88 S.Ct. 1262, 20 L.Ed.2d 162 (1968), (alternative ground for denying § 1983 action challenging bar admission requirement — -plaintiff had been denied Committee’s certification, but only state supreme court had power to deny admission; plaintiff thus was not deprived of any right).
. The concluding paragraph of this affidavit filed with the Appellate Division was:
The sole question thus before the Court is the question as to whether or not residence as used in C.P.L.R. Rule 9406 means permanent residence or domicile, or whether a temporary, and indeed “naked” residence, in the sense of renting a hotel room, is enough to satisfy the intent of the statute.
In Commissioner v. Sunnen, 333 U.S. 591, 597, 68 S.Ct. 715, 92 L.Ed. 898 (1948), the Court, in considering a defense of res judi-cata, strongly emphasized that both parties had briefed and argued that issue fully in the lower courts. Appellant here has never been accorded such an opportunity,
. There is dicta in Erdmann, 458 F.2d at 1210, which, on its face, would apply equally to disciplinary and admission proceedings. However, then Chief Judge Friendly, writing for a three-judge court in Law Students Civil Rights Research Council, Inc. v. Wadmond, 299 F.Supp. 117, 124 (S.D. N.Y.1969), aff’d, 401 U.S. 154, 91 S.Ct. 720, 27 L.Ed.2d 749 (1971), explicitly rejected a comity-abstention argument in a direct attack on state bar admission procedures. Even application of tlie doctrine of “comity” in the disciplinary context in Erdmann is open to dispute, moreover, in view particularly of the Supreme Court’s recent decision in Gribson v. Berryhill, 411 U.S. 564, 575-577, 93 S.Ct. 1689, 36 L.Ed. 2d 488 (1973). See Polk v. State Bar of Texas, 480 F.2d 998, 1001-02 & n. 10 (5th Cir. 1973).