Schorr v. DoPico, 686 F. App'x 34

Background

Plaintiff-appellant David Schorr, an attorney proceeding pro se, was subject to an investigation by the First Judicial Department Attorney Disciplinary Committee for secretly audio-recording a court proceeding.
The committee issued a private admonition after considering mitigating circumstances; Schorr rejected the admonition and requested a formal hearing.
Schorr alleged the committee re-opened its investigation in retaliation for his request for a hearing and sued two committee officials under 42 U.S.C. § 1983 for First and Fifth Amendment retaliation.
The district court dismissed Schorr’s complaint under Younger abstention and for failure to state a claim; Schorr appealed and moved to supplement the record with an email concerning a denied preliminary injunction.
The Second Circuit conducted de novo review of Younger abstention and considered whether the bad-faith exception applied; it also addressed abandonment of the preliminary-injunction issue on appeal.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Younger abstention bars federal review of Schorr's claims	Schorr contends the state disciplinary proceeding is not one of the "exceptional" types warranting Younger because formal charges had not been filed	Defendants contend the ongoing disciplinary proceeding is a state civil enforcement matter analogous to attorney-discipline actions and falls within Younger	Court affirmed abstention: state attorney-discipline proceeding is ongoing and falls within Sprint's exceptional categories, so Younger applies
Whether the bad-faith exception to Younger applies	Schorr argues the committee acted in bad faith and retaliated by re-opening the investigation in violation of its rules	Defendants assert the committee acted within its authority, considered mitigation, and had a reasonable prospect of proving charges	Held: Bad-faith exception not shown—Schorr failed to plausibly allege subjective bad faith or that the committee had no reasonable expectation of success
Whether the committee’s conduct constituted unconstitutional retaliation sufficient to overcome abstention	Schorr asserts re-opening the investigation and subpoena threats were retaliatory and aimed to harass	Defendants point to admitted unauthorized recording and applicable rules making subpoenas and suspension consequences lawful	Held: Committee's actions were consistent with enforcing rules; Schorr admitted recording and committee could likely prove charges, undermining retaliation claim
Whether Schorr may supplement the appellate record with an email about the denied preliminary injunction	Schorr seeks to add an email explaining the district court’s denial based on default	Defendants implicitly argue the preliminary-injunction denial is not before the court on appeal	Held: Motion to supplement denied as moot—Schorr abandoned the preliminary-injunction issue on appeal

Key Cases Cited

Younger v. Harris, 401 U.S. 37 (1971) (federal courts generally must abstain from enjoining ongoing state criminal prosecutions)
Middlesex Cty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423 (1982) (state-initiated attorney-discipline proceedings are civil enforcement actions warranting deference)
Sprint Communications, Inc. v. Jacobs, 134 S. Ct. 584 (2013) (clarified Younger applies only in three categories of "exceptional" proceedings)
Diamond "D" Constr. Corp. v. McGowan, 282 F.3d 191 (2d Cir. 2002) (bad-faith exception requires a showing that the state actor had no reasonable expectation of success)
Cullen v. Fliegner, 18 F.3d 96 (2d Cir. 1994) (describes bad-faith and harassment exception to Younger)
Liberty Mut. Ins. Co. v. Hurlbut, 585 F.3d 639 (2d Cir. 2009) (discusses Younger abstention framework)
Falco v. Justices of the Matrimonial Parts of Supreme Court of Suffolk Cty., 805 F.3d 425 (2d Cir. 2015) (advises caution in relying solely on the older three-part Younger test)
LoSacco v. City of Middletown, 71 F.3d 88 (2d Cir. 1995) (issues not raised on appeal are deemed abandoned)