Mullane v. Almon, 4:21-cv-164-MW/MJF

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
Writing for the CourtMichael J. Frank, United States Magistrate Judge.
PartiesJONATHAN MULLANE, Plaintiff, v. JAMES ALMON and MICHELE GAVAGNI, Defendants.
Docket Number4:21-cv-164-MW/MJF
Decision Date14 October 2021

JONATHAN MULLANE, Plaintiff,
v.

JAMES ALMON and MICHELE GAVAGNI, Defendants.

No. 4:21-cv-164-MW/MJF

United States District Court, N.D. Florida, Tallahassee Division

October 14, 2021


REPORT AND RECOMMENDATION

Michael J. Frank, United States Magistrate Judge.

This matter is before the court on Defendants' motion to dismiss (Doc. 14). Plaintiff filed a response in opposition (Doc. 20). Because Plaintiff's claims for injunctive and declaratory relief are barred by Younger v. Harris, 401 U.S. 37 (1971), and Defendants enjoy quasi-judicial immunity from Plaintiff's claims for damages, the undersigned recommends that Defendants' motion to dismiss be granted.[1]

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I. Background

Plaintiff-a law-school graduate and applicant for admission to the Florida Bar who has not yet taken the Florida Bar examination-commenced this section 1983 action against Defendants Michele A. Gavagni and James T. Almon. Gavagni is the executive director, and Almon is the general counsel, of the Florida Board of Bar Examiners (“the Board”). Plaintiff alleges that Gavagni and Almon violated his constitutional rights because the Board has not approved Plaintiff's application for admission to the Florida Bar.[2]

A. The Process for Admission to the Florida Bar

Under the Florida Bar admission rules, law students seeking to apply for admission to the Florida Bar may register with the Board by filing a “Registrant Bar Application, ” which later must be converted into a “Bar Application” by filing a supplement to the “Registrant Bar Application.” Fla. Bar Admission R. 2-21.2. Upon filing a “Bar Application” or a “Registrant Bar Application, ” the Board initiates a character and fitness investigation. Fla. Bar Admission R. 2-22. For a law student filing a “Registrant Bar Application, ” the Board will conduct “a basic character and

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fitness investigation.” Fla. Bar Admission R. 2-21.2. When the applicant files his supplement to the “Registrant Bar Application, ” the Board updates the character and fitness investigation. Fla. Bar Admission R. 2-22.

An applicant is entitled to admission to the Florida Bar only if he passes the bar examination and “meets the state's ‘character and fitness' requirements.” Lawrence v. Schwiep, No. 4:05-cv-14-RH/WCS, 2005 WL 2491564, at *1 (N.D. Fla. Oct. 7, 2005), aff'd sub nom. Lawrence v. Rigsby, 196 Fed.Appx. 858 (11th Cir. 2006); Fla. Bar Admission R. 5-10. The purpose of the Board's character and fitness investigation “is to protect the public and safeguard the judicial system.” Fla. Bar Admission R. 1-14.1. Under the Florida Bar admission rules, an applicant seeking admission to the Florida Bar has the burden of establishing his “good moral character, an adequate knowledge of the standards and ideals of the profession, ” and his fitness “to take the oath and to perform the obligations and responsibilities of an attorney.” Fla. Bar Admission R. 2-12.

As a part of the character and fitness investigation, the Board reviews the applicant's background and may conduct an investigative hearing. Fla. Bar Admission R. 3-22. Following any investigative hearing, the Board may determine that the applicant “has established his . . . qualifications as to character and fitness” or “file specifications charging the applicant . . . with matters that, if proven, would preclude a favorable finding by the Board.” Fla. Bar Admission R. 3-22.5.

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An applicant against whom the Board files specifications is entitled to a formal hearing before the Board. Such an applicant has the right to representation, to call witnesses and introduce exhibits, and to cross-examine witnesses. Fla. Bar Admission R. 3-23.2. At any such hearing, the Board determines, “based on the evidence presented at the hearing, whether the applicant has established his or her character and fitness to practice law.” Lawrence, 2005 WL 2491564, at *1. If the Board concludes that the applicant has failed to establish his good character and fitness to practice law, the Board will recommend to the Florida Supreme Court that the applicant or registrant be “denied admission to The Florida Bar.” Fla. Bar Admission R. 3-23.6(d). In such cases, the Board must enter findings of facts and conclusions of law. Id.

An applicant may request review by the Florida Supreme Court, “which may independently review the record . . . and address all challenges to the Board's determination, including those based on the United States Constitution.” Lawrence, 2005 WL 2491564, at *1. The Board's “[f]indings, conclusions, and recommendations are final, if not appealed” to the Florida Supreme Court. Fla. Bar. Admission R. 3-23.7.

B. Plaintiff's Application to the Florida Bar

On February 16, 2018, Plaintiff submitted a petition for admission to the Florida Bar. (Doc. 12 at ¶ 7). On September 7, 2018, Plaintiff filed a complaint which

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initiated “non-public and confidential” administrative proceedings against a federal judge. (Id. at ¶ 10). On or about April 12, 2018, the Board requested additional information from Plaintiff. (Doc. 14-2). On October 4, 2018, the Board canceled Plaintiff's bar application because Plaintiff failed to respond within 90 days to the Board's requests for information relating to his education, employment, and litigation activity. (Id.).

On April 9, 2020, Plaintiff sent a letter to the Board in which Plaintiff indicated that he desired to take the July 2020 Florida bar examination. (Doc. 14-3). On May 11, 2020, the Board responded to Plaintiff's letter and informed Plaintiff that he was required to provide to the Board documents or information. (Doc. 14-4).

On February 18, 2021, the Board served Plaintiff with a “notice to appear for investigative hearing” (“Notice”).[3] (Doc. 12 at ¶ 18; Doc. 14-1). In his amended verified complaint, Plaintiff alleges that the “sole purpose” of the proposed investigative hearing was to retaliate against Plaintiff for filing the complaint against the federal judge. (Doc. 12 at ¶ 20). But the Notice identified twelve broad categories

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of issues that the Board wished to address at the hearing. Among other things, the Board stated that it desired to question Plaintiff about:

. Plaintiffs “termination of . . . employment with Kempen & Co. USA”;
. Plaintiffs “April 2015 claim for unemployment benefits and [his] receipt of unemployment benefits”, “the New York State Department of Labor's August 2, 2016, Notice of Determination of Ineligibility or Disqualification and any related appeals, ” and “the status of any debts that [Plaintiff owed] relating to unemployment benefits”;
. Plaintiffs failure “to disclose on [his] April 16, 2020, Florida Bar Application” his “debt to the New York State Department of labor arising from the Notice of Determination of Ineligibility”;
. Plaintiffs failure to disclose his internship with the U.S. Attorney's Office;
and
. Plaintiffs failure to disclose “the facts and circumstances, including the final dispositions, of the citations for excessive speed and careless or negligent driving that were issued to [Plaintiff] on November 23, 2018. This topic includes the issuance of a bench warrant in connection with the citations.”

(Doc. 14-1). The Board also sought information relating to the facts underlying

Plaintiffs complaint about the federal judge-but not the confidential administrative proceedings themselves-as well as approximately ten other lawsuits that Plaintiff

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failed to disclose on his April 16, 2020 Florida bar application. (Doc. 3-2; Doc. 14-1).

On February 19, 2021, Plaintiff sent a letter to Defendants in which he stated that at the hearing scheduled by the Board he could not address the administrative proceedings that he had initiated against the federal judge. (Doc. 12 at ¶ 23). Plaintiff also stated that he would not attend the hearing, and he asked the Board to withdraw its request for Plaintiff's attendance at the hearing. (Id. at ¶ 24).

Defendants refused to withdraw their request for an investigative hearing. (Id. at ¶ 25; Doc. 12-3). In a letter, they informed Plaintiff:

The Florida Board of Bar Examiners received your letter dated February 19, 2021, declining the board's request for your appearance at an investigating hearing. . . .
The board has requested your appearance at an investigative hearing under rule 3-22 of the Rules of the Supreme Court Relating to Admissions to the Bar. I direct your attention to rule 3-22.2 which states:
3-22.2 - Response and Selection of a Preferred Hearing Date. An applicant or registrant who has been requested to appear for an investigative hearing must promptly respond to written notice from the board and give notice of preferred dates. Failure to respond within 60 days will result in termination of the application for non-compliance as provided in rule 3-14.6.
Your options are to: (1) select a date for your investigation hearing within 60 days of the Notice to Appear for Investigative Hearing; (2) request an extension of a specified period of time to select an investigate hearing date; or (3) withdraw your application until you are
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ready to appear at the hearing and pursue admission to The Florida Bar. If you withdraw, your file will be placed on inactive status.
A failure to select one of those options by April 19, 2021, will result in the termination of your file under rule 3-14.6(a) and rule 3-22. If your file is terminated, you will be required to reapply and pay all fees as if you were applying for the first time.

(Doc. 12-3).

Plaintiff informed Defendants that he intended to file the instant civil action. In response, Defendants assured Plaintiff that they would not terminate his application “at this time to preserve the status quo.” (Doc. 14-5). Thus, despite three years passing from the date Plaintiff submitted his application, Defendants have not “admit[ed] and/or...

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