United States Court of Appeals,
Fifth Circuit.
No. 92-2762.
Benton MUSSLEWHITE, and all others similarly situated, Plaintiff-
Appellant,
v.
The STATE BAR OF TEXAS, et al., Defendants-Appellees.
July 19, 1994.
Appeal from the United States District Court for the Southern
District of Texas.
Before WISDOM, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
WISDOM, Circuit Judge:
This case presents a question of subject matter jurisdiction.
The district court held that it was without jurisdiction to proceed
on the appellant's claims. We uphold that determination with one
exception. Accordingly, we affirm in part and reverse and remand
in part.
I.
We limit our discussion of the facts to those bearing on the
issue of jurisdiction. The plaintiff/appellant, Benton
Musslewhite, is a Houston attorney who made a name for himself
representing plaintiffs in complex personal injury cases, usually
involving mass disasters. In 1987, he attracted the attention of
the State Bar of Texas ("State Bar") as the result of his public
statements soliciting clients. Typically, it seems, Musslewhite
held "press conferences" during which he would announce his plan of
action in response to a particular tort and detail his
1
qualifications. Not incidentally, he rarely failed to include
information on how potential clients could reach him if interested
in his services.
The State Bar expressed concern—Musslewhite charges that this
concern was feigned—that these press conferences constituted the
improper solicitation of clients. The State Bar launched an
investigation that focussed in large part on whether Musslewhite
was violating the mandates of professional responsibility.1
Musslewhite perceived the investigation as a direct assault on his
First Amendment right to free speech.
Eventually, the State Bar filed formal charges against
Musslewhite. The two parties reached a settlement, however, and a
trial was unnecessary. Under the terms of the settlement,
Musslewhite was suspended from the practice of law for ninety days
beginning November 1, 1988, and placed on probation for three years
after that. Moreover, he was barred from accepting new employment
until November 1, 1988 (the date his suspension was to begin). As
to this final limitation, however, Musslewhite still was entitled
to refer potential clients to other attorneys. The penalty for
violation of any of these terms was an automatic three year
suspension.
The issue presented in this case stems from an alleged breach
of these settlement provisions. On the heels of an oil platform
explosion in Scotland, Musslewhite went to work, plotting his
1
Musslewhite charges that the investigation was designed
only to harass plaintiffs' attorneys and solo practitioners.
2
strategy for cashing in on the disaster.2 He held his typical
press conferences and issued his self-laudatory press releases.
The State Bar concluded that his tactics violated the terms of
the settlement agreement and sued to revoke his probation.3
Pursuant to the settlement terms, Musslewhite was suspended from
the practice of law for three years beginning January 31, 1989.
That judgment was affirmed on appeal.4 Neither the Texas Supreme
Court nor the U.S. Supreme Court found persuasive reasons to
reexamine the matter.
Having reached a dead end, Musslewhite filed the present
suit—an action under 42 U.S.C. § 1983—in federal court against the
State Bar, its Executive Director, its General Counsel, its former
General Counsel, an attorney employed by the State Bar, and the
2
On July 6, 1988, the Piper Alpha oil platform in the North
Sea exploded. Musslewhite flew to Scotland shortly thereafter to
discuss a possible lawsuit over the incident in the state courts
of Texas. He was in touch with John O'Quinn, another attorney
whom the State Bar had investigated, about referring any cases he
obtained in Scotland to O'Quinn.
3
The State Bar considered Musslewhite's press release
misleading. For one, the press release failed to disclose
Musslewhite's legal handicap which prohibited him from accepting
new clients. The State Bar also objected to a letter written by
Musslewhite associate Kelly Newman addressed to "all victims or
families of victims". The letter extolled the virtues of
Musslewhite's group which boasted "internationally renowned trial
lawyers in the United States". We underscore that, in this case,
we are not testing the validity of these justifications for the
State Bar's actions.
4
Musslewhite v. State Bar of Tex., 786 S.W.2d 437
(Tex.App.—Houston [14th Dist.] 1990, writ denied), cert. denied,
501 U.S. ----, 111 S.Ct. 2891, 115 L.Ed.2d 1056 (1991).
3
members of the State Bar's Board of Directors.5 In his complaint,
he alleged first, that several of the procedures used in his
disciplinary proceeding were unconstitutional and, second, that
some of the State Bar's rules themselves are unconstitutional. He
sought declaratory and injunctive relief, and compensatory and
punitive damages. He feels strongly that he is a victim of the
State Bar's desire to persecute him, allegedly in retaliation for
his willingness to use the right of free speech to enhance his
professional stature.
II.
The district court dismissed Musslewhite's suit for lack of
subject matter jurisdiction under Rule 12(b)(1) of the Federal
Rules of Civil Procedure. We address whether the district court
erred in so doing. After a de novo review,6 we uphold the district
court's dismissal of the appellant's challenges to a series of
Texas State Bar practices as applied to him. We hold, however,
5
In his original complaint, Musslewhite named Karen R.
Johnson, Executive Director of the State Bar (sued in her
official capacity); James M. McCormack, general Counsel of the
State Bar (official capacity); Steven Peterson, then general
counsel to the State Bar (individual and official capacities);
Steven Smoot, then an attorney employed by the State Bar
(individual and official capacities); and the Board of Directors
(all sued in their official capacities): Charles R. Dunn,
Harriet Rivers, James N. Parsons, Tom Cunningham, Richard C.
Hile, Antonio Alvarado, Charles A. Beckham, Martha S. Dickie, M.
Colleen McHugh, Steven L. Martin, Charles O'Reilly, Spencer C.
Relyea, Jerry Secrest, and Kirk Watson.
We refer to the defendants collectively as the "State
Bar". We note, however, that the State Bar of Texas is a
distinct entity that Musslewhite named as a defendant in his
prayer for a declaratory judgment.
6
In re Bradley, 989 F.2d 802, 804 (5th Cir.1993).
4
that Musslewhite has stated a claim upon which relief could be
granted as to his allegations of bad faith and harassment. The
district court did have jurisdiction over that claim and should
have proceeded on that basis.
An explication of the way in which Rules 12(b)(1) and 12(b)(6)
intersect in this case may be helpful. Rule 12(b)(1) requires a
threshold determination of whether subject matter jurisdiction
exists. Sometimes this depends on whether the plaintiff has stated
a particular type of federal claim. To make that determination, we
look to Rule 12(b)(6) which, as is widely understood, deals with
dismissal for failure to state a claim upon which relief can be
granted. With that exception this case turns solely on Rule
12(b)(1).
III.
We start with two decisions that inform our analysis: the
U.S. Supreme Court's decision in District of Columbia Court of
Appeals v. Feldman7 and this Court's decision in Howell v. State
Bar of Texas8. Because they control most of the issues, we discuss
them in some detail.
The Feldman case involved an apparently qualified applicant to
the District of Columbia bar who, in spite of his qualifications,
had not graduated from an accredited law school. The bar refused
him admission, citing the rule requiring a completed legal
7
460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983).
8
710 F.2d 1075 (5th Cir.1983), cert. denied, 466 U.S. 950,
104 S.Ct. 2152, 80 L.Ed.2d 538 (1984) ("Howell II ").
5
education from an accredited law school. Feldman responded with a
petition to the D.C. Court of Appeals for a waiver of the
graduation requirement. That petition was denied.
Feldman sought relief in federal district court. The court
never reached the merits of Feldman's contentions, however, because
it held that the federal courts were without the predicate subject
matter jurisdiction. The court reasoned that the D.C. Court of
Appeals's refusal to grant Feldman a waiver was a decision by a
body tantamount to a state's highest tribunal. The federal courts
may not properly sit in review of such decisions.
Feldman appealed. The Court of Appeals for the D.C. Circuit
disagreed with the district court and, instead, concluded that the
bar criteria proceedings in the D.C. Court of Appeals were
administrative and not judicial. This distinction, as we explain
below, allowed the federal district court to proceed. Accordingly,
the court reversed and remanded the case. Before it went back to
the district court, the U.S. Supreme Court granted certiorari.
The Supreme Court held that the district court had it right
the first time. First, the Court settled the nature of the bar
disciplinary proceedings as judicial, not merely administrative.
The Court reasoned that the purpose of the proceedings was to
"investigate, declare, and enforce liabilities as they [stood] on
present or past facts and under laws supposed already to exist".9
That, the Court concluded, is a judicial charge.
9
Feldman, 460 U.S. at 479, 103 S.Ct. at 1313 (internal
quotations omitted).
6
The Court then turned its attention to the question of the
district court's jurisdiction to entertain Feldman's challenges.
The Court drew a significant distinction between Feldman's
broad-based challenges to the constitutionality of the bar's rules
and his challenges to the constitutionality of his individual
disciplinary proceedings. This distinction reflects the rule
embodied in 28 U.S.C. § 1257: Only the Supreme Court of the United
States may review final judgments or decrees rendered by the
highest court in a state.
The Feldman rule, then, is as follows. The federal courts do
have subject matter jurisdiction over
general challenges to state bar rules, promulgated by state
courts in non-judicial proceedings, which do not require
review of a final state-court judgment in a particular case.10
These we refer to as "general constitutional attacks". The federal
courts do not have 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.11
We applied the Feldman rule in the Fifth Circuit for the first
time in Howell v. State Bar of Texas. In that case, Howell, a
Texas attorney, had filed suit in federal district court to enjoin
his disbarment.12 The district court had held that it lacked
10
Id. at 486, 103 S.Ct. at 1317 (emphasis added).
11
Id.
12
In a factual distinction to the case we decide today,
Howell sought the injunction first while the State proceedings
were pending and again before his state court appeal had been
heard. Eventually, the Texas courts finalized their judgment
against Howell. At that point, he sought to enjoin the
7
jurisdiction. We reversed in Howell I on grounds irrelevant to
this matter and remanded. In the interim, the Supreme Court
decided Feldman and, subsequently, vacated our decision in Howell
I and remanded the case back to us. We then applied the Feldman
rule for the first time. Although we held that dismissal was
proper as to the bulk of Howell's claims, we reversed as to
Howell's due process, equal protection, and privileges and
immunities claims.13
We also fleshed out some of the rules announced in Feldman.
For one, the Feldman distinction meant that a general
constitutional attack that is nonetheless "inextricably
intertwined" with a state court judgment of reprimand cannot be
properly heard in federal court.14 Second, we noted that federal
jurisdiction does not lie for claims that were not presented first
to the state court in the disciplinary proceeding.15
Our task, then, is focussed: Are any of Musslewhite's claims
properly construed as general constitutional attacks on the Texas
State Bar's disciplinary scheme. The district court concluded that
enforcement of his disbarment. Howell v. State Bar of Texas, 674
F.2d 1027 (5th Cir.1982) (before remand) ("Howell I ").
13
Howell II, 710 F.2d at 1076.
14
Id. at 1077.
15
Id. at 1076; Thomas v. Kadish, 748 F.2d 276, 277-78 (5th
Cir.1984), cert. denied, 473 U.S. 907, 105 S.Ct. 3531, 87 L.Ed.2d
655 (1985). Feldman overruled the "Dasher exception" previously
embodied in Dasher v. Supreme Court of Texas, 658 F.2d 1045 (5th
Cir.1981). After Feldman, the federal courts are without
jurisdiction over a plaintiff's claims that could have been
raised, but were not.
8
all of Musslewhite's claims were challenges to the
constitutionality of the State Bar's practices as applied to him in
his disciplinary proceedings. Although the court's reasoning was
sound, we disagree as to the proper classification of one claim in
particular.
IV.
We turn to the specific claims that Musslewhite raises. He
complains that:
(1) The state judge erred in denying Musslewhite's motion for a
change of venue;
(2) The state trial denied Musslewhite's right to trial by jury;
(3) The Texas Court of Appeals, Texas Supreme Court, and U.S.
Supreme Court all erred in refusing to expedite Musslewhite's
appeal of the disciplinary proceeding;
(4) The State Bar's rule governing the making of false and
misleading statements is unconstitutional as applied in
Musslewhite's case;
(5) "[S]everal constitutional travesties ... occurred in the state
court action";
(6) The suspension imposed in the state trial constituted a
violation of Musslewhite's First Amendment rights;
(7) The punishment imposed in the state trial was excessive;
(8) Musslewhite's state trial was tainted by prejudicial publicity;
(9) Musslewhite received inadequate notice of the state trial;
(10) The court refused to suspend Musslewhite's judgment upon his
filing a supersedeas bond while appealing.
We will not belabor our conclusions with a claim-by-claim
analysis. All of these contentions have in common their grounding
in some aspect of the disciplinary proceedings against Musslewhite.
It is plain by the way they are stated that they attack aspects of
9
his particular trial. We have stated that "the Texas scheme for
disciplining attorneys is fully capable of considering the
constitutional arguments of attorney-defendants relating to
specific procedures followed in their cases."16 To evaluate them
would require review of the state court judgment. That, as Feldman
instructed, we are without the jurisdiction to do.
V.
Musslewhite couched some of his averments in the language of
a general constitutional attack on the State Bar's scheme of
disciplining attorneys. Merely using catch phrases, however, will
not vest the federal district court with the jurisdictional
authority to entertain the action. This is about substance, not
form. Instead, we must ascertain what the court really is being
asked to review.
First Musslewhite complains that the State Bar violated the
constitutional guarantee of equal protection by selectively
investigating himself and others similarly situated. We have no
trouble classifying this contention as but another attack on the
State Bar's procedures as applied to Musslewhite. All of the
evidence to which Musslewhite alludes goes solely to his
disciplinary proceeding. That is, the procedures, he charges, were
used in this case to deprive him of his equal protection rights.
This conclusion applies as well to his charge that the State Bar
prosecutes solo practitioners for conduct that it tolerates by
16
Bishop v. State Bar of Texas, 736 F.2d 292, 294 (5th
Cir.1984).
10
large firms. The state court was capable of resolving that claim;
it too is inextricably intertwined with the state case.
Musslewhite also argues that the State Bar rule governing the
making of false and misleading statements is, on its face,
unconstitutionally vague and violates the First Amendment. The
Texas Court of Appeals flatly rejected this contention that the
rule was unconstitutionally vague either on its face or as applied
in Musslewhite's case.17 The district court's judgment that it was
incapable of revisiting that sound judicial decision was correct.
VI.
We turn now to the one claim for which the district court was
properly vested with jurisdiction. Musslewhite contends that the
State Bar's disciplinary proceedings against him were taken in bad
faith in violation of his due process rights. In Bishop v. State
Bar of Texas18, we stated that
Although Texas disciplinary proceedings are capable of
deciding constitutional challenges to specific procedures,
recourse in those proceedings is not a sufficient avenue to
remedy the constitutional injury done by bad faith proceedings
themselves.
The doctrinal underpinnings of this "bad faith exception" are
rooted in the sister exception to the Younger doctrine. In Younger
v. Harris19, the Supreme Court established a policy whereby federal
intervention in ongoing state criminal proceedings is barred absent
extraordinary circumstances. Subsequent decisions teach us that a
17
Musslewhite, 786 S.W.2d at 441-42.
18
736 F.2d at 292 (emphasis added).
19
401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).
11
state prosecution taken in bad faith or for the purposes of
harassment constitutes such extraordinary circumstances and federal
intervention is justified.20 This bad faith exception to the
Younger doctrine has two recognized applications in our Circuit:
First, where the state prosecution is taken for the purpose of
deterring constitutionally protected conduct21 and, second, where
the prosecution is motivated by a design to harass the defendant.22
The Younger doctrine does not apply to the present matter, for
the state proceeding here in question is neither criminal nor
ongoing and, thus, no question of intervention is presented. We
nonetheless have previously borrowed Younger's framework in
clarifying when federal courts may or may not become involved in
state court decisionmaking.23
20
See Trainor v. Hernandez, 431 U.S. 434, 446, 97 S.Ct.
1911, 1919, 52 L.Ed.2d 486 (1977); Huffman v. Pursue, Ltd., 420
U.S. 592, 611-12, 95 S.Ct. 1200, 1212, 43 L.Ed.2d 482 (1975).
21
See Smith v. Hightower, 693 F.2d 359 (5th Cir.1982).
22
See Shaw v. Garrison, 467 F.2d 113, 119-21 (5th Cir.),
cert. denied, 409 U.S. 1024, 93 S.Ct. 467, 34 L.Ed.2d 317 (1972),
aff'g, 328 F.Supp. 390, 393-400 (1971). In Shaw, we detailed
then District Attorney Jim Garrison's harassing prosecution of
Clay Shaw and the bad faith tactics Garrison employed in his
zealous investigation of the assassination of President John F.
Kennedy. Shaw represents perhaps the paradigm in this Circuit of
impermissible prosecutorial motives. Garrison used his
prosecution of Shaw as a means of procuring public
support—financial and otherwise—of his larger investigation into
the assassination of the President. See Shaw v. Garrison, 328
F.Supp. at 393-400.
23
See, e.g., Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60
L.Ed.2d 994 (1979) (borrowing Younger principles for civil
proceedings in which important state interests are involved);
Henry v. First National Bank of Clarksdale, 595 F.2d 291, 301
(5th Cir.1979), cert. denied, 444 U.S. 1074, 100 S.Ct. 1020, 62
L.Ed.2d 756 (1980).
12
The bad faith exception applies here. Musslewhite has
alleged that the state's judicial machinery was appropriated in an
effort to persecute him. Implicit in these allegations is that
both the decision and the mechanism itself are not trustworthy.
The federal courts must have subject matter jurisdiction if a claim
of bad faith and harassment is ever to be proved, for the claim is
levied against the proceedings themselves.
VII.
The next step, after having decided that an allegation of bad
faith or harassment is a proper means of invoking federal
jurisdiction, is to determine whether Musslewhite has properly
stated this claim for the purposes of Rule 12(b)(6). Dismissal
under Rule 12(b)(6) is not appropriate "unless it appears beyond a
doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief".24 That familiar
statement illustrates that the federal courts are properly reticent
to dismiss cases for failure to state a claim. Other mechanisms
such as summary judgment (Rule 56) and a motion for a more definite
statement (Rule 12(e)) are the proper vehicles for narrowing the
issues and illustrating the boundaries of a claim.25 Hence,
dismissal is not proper merely because the plaintiff has failed to
set out in detail the facts upon which he bases his claim.
Applying these procedural definitions to the present context,
24
Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2
L.Ed.2d 80 (1957).
25
Williams v. United Credit Plan of Chalmette, Inc., 526
F.2d 713, 714 (5th Cir.1976).
13
we conclude that Musslewhite has stated a claim that the
proceedings against him were taken in bad faith and motivated by
harassment. Comparing the present matter with the Bishop case
supports our conclusion. In Bishop, we were satisfied that the
admittedly thin record brought the case within the ambit of the
liberal Rule 12 standard. Yet, the plaintiff in Bishop had alleged
merely that the State Bar's efforts to discipline him spanned a
number of years and were taken "in bad faith and for an improper
motive".26
In the case at hand, the district court properly recognized
the distinction created in Feldman but failed to address
Musslewhite's claims of bad faith and harassment. We approach this
question with only the record as our aide.27 Musslewhite's
pleadings plainly state a claim for bad faith and harassment; most
of his complaint presents different shades of exactly that charge.
In detail, he charges the State Bar with making him the target of
a retaliatory, discriminatory, harassing conspiracy of persecution,
to be procured by fraud and duress. We express no comment on the
merits of his claims, we hold simply that he must be allowed to go
26
Bishop, 736 F.2d at 295.
27
See GHR Energy Corp. v. Crispin Company, Ltd., 791 F.2d
1200, 1201 (5th Cir.1986) (Court may not look beyond record on
appeal); FRAP 10(a) (record is comprised of papers, exhibits,
docket entries, and transcript from the district court
proceeding). Unfortunately, this reminder is necessary.
Musslewhite burdened the Court with an 80-page brief and an
appendix comprised of a plethora of newspaper articles. This is
a Rule 12 appeal; those additional materials are beyond the
proper scope of our inquiry. Presumably, if his press releases
are to be believed, Musslewhite understands the rules of
procedure.
14
forward.
VIII.
In conclusion, we affirm the Howell construction of the
Feldman rule; we uphold the district court's decision that the
federal courts are not vested with the subject matter jurisdiction
to review Musslewhite's challenges to his state court disciplinary
proceeding. Musslewhite, however, sufficiently stated a claim of
bad faith and harassment which vested the district court with the
jurisdictional authority to proceed.28
We AFFIRM the district court's dismissal of all claims save as
mentioned; we REVERSE and REMAND that claim to the district court
for reconsideration consistent with the foregoing.
28
Our decision is limited to the Rule 12 dismissal. Hence,
the district court will entertain any subsequent objections
raised; e.g., the various immunities (sovereign, absolute, and
qualified).
15