Nichols v. Alabama State Bar

Filing 15

MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 4/15/15. (SAC )

FILED
2015 Apr-15 PM 04:28
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
W. DAVID NICHOLS,

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Plaintiff,
v.
ALABAMA STATE BAR,
Defendant.

CIVIL ACTION NO.
2:15-cv-179-WMA

MEMORANDUM OPINION
Before the court are a motion to dismiss (Doc. 11) filed by
defendant Alabama State Bar (“ASB”) on

March 27, 2015, and a

motion to file exhibits under seal (Doc. 14) filed by plaintiff W.
David Nichols on April 10, 2015. For the reasons stated below, the
motion to dismiss will be granted, and the motion to file exhibits
under seal will be denied as moot.
BACKGROUND
Nichols gained admission to ASB in 1982. (Doc. 10-1 at 1, ¶
1).

He

suffers

from

major

depression

and

attention

deficit

hyperactivity disorder. (Doc. 10-1 at 2, ¶ 6). As a result of
misconduct

allegedly

caused

by

his

disabilities,

Nichols

was

suspended from the bar in 2000, with the suspension to expire on
January 31, 2003. (Doc. 10-1 at 2-3, ¶ 6-7). Because Nichols’
suspension was for a term of more than 90 days, he was not
reinstated

automatically

but

was

required

to

apply

for

reinstatement with ASB. Ala. R. Disc. P. 28. He did so, but his
1

petition was denied. (Doc. 10-1 at 2, ¶ 7). He appealed to the
Alabama Supreme Court, which affirmed the denial of reinstatement.
Nichols v. Ala. State Bar, 981 So. 2d 398 (Ala. 2007).
Nichols owns an office building in Bessemer, Alabama, with
attorneys as his primary tenants. (Docs. 10-1 at 3, ¶ 9, 13 at 4).
In February 2014, Nichols informed ASB of his desire again to seek
reinstatement, which is permissible under Ala. R. Disc. P. 28(i).
(Doc. 10-1 at 3, ¶ 9). In response, Jeremy McIntire, assistant
general counsel for ASB: (1) told Nichols that he would actively
oppose any reinstatement petition; (2) informed Nichols of his
opinion that Nichols was in violation of Ala. R. Disc. P. 26 by
performing work of a paralegal nature (namely, answering the phone
in

his

building,

typing

items

for

his

lawyer-tenants,

and

discussing the lawyers’ cases with them); and (3) ordered Nichols
to cease these activities. (Docs. 10-1 at 3, ¶ 9, 13 at 3). Nichols
complied with the order “in an abundance of caution.” (Doc. 10-1 at
3, ¶ 9). ASB thereupon initiated formal disciplinary proceedings
against Nichols in December 2014. (Doc. 10-1 at 3, ¶ 10). In
January 2015, ASB offered to resolve the proceedings by suspending
Nichols for four years. (Doc. 10-1 at 4-5, ¶¶ 11, 14).
Nichols initiated this action on January 29, 2015. In his
amended complaint, he asserts two causes of action, one under Title
II of the ADA and one under 42 U.S.C. § 1983. He also seeks a
preliminary injunction against ASB. In support of his ADA claim, he

2

asserts that

ASB

has

repeatedly

denied

the

existence

of

his

disabilities while taking the aforementioned actions with an intent
to discriminate against him based on his disabilities. In his §
1983 claim, he challenges the constitutionality of Ala. R. Disc. P.
28 and other related provisions, under which any lawyer suspended
for a term of greater than 90 days is subject to the same onerous
readmission standards as a disbarred lawyer. According to Nichols,
this standard is violative of the Fourteenth Amendment, in that it
deprives him of his property and liberty interests in his law
license without due process of law. It is ASB’s motion to dismiss
Nichols’ amended complaint that is now before the court.
DISCUSSION
While ASB moves to dismiss on several grounds, the court finds
it necessary only to discuss two of its grounds, both implicating
the court’s subject matter jurisdiction. “Attacks on subject matter
jurisdiction under Fed. R. Civ. P. 12(b)(1) come in two forms.”
Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990).
“Facial attacks to subject matter jurisdiction require the court
merely

to

look

and

see

if

the

plaintiff's

complaint

has

sufficiently alleged a basis of subject matter jurisdiction, and
the allegations in his complaint are taken as true for the purposes
of the motion.” Houston v. Marod Supermarkets, Inc., 733 F.3d 1323,
1335-36 (11th Cir. 2013).

“‘Factual attacks,’ on the other hand,

challenge ‘the existence of subject matter jurisdiction in fact,

3

irrespective of the pleadings, and matters outside the pleadings,
such as testimony and affidavits, are considered.’” Lawrence, 919
F.2d at 1529 (quoting Menchaca v. Chrysler Credit Corp., 613 F.2d
507, 511 (5th Cir. 1980)).
Because at issue in a factual 12(b)(1) motion is the
trial court's jurisdiction—its very power to hear the
case—there is substantial authority that the trial court
is free to weigh the evidence and satisfy itself as to
the existence of its power to hear the case. In short, no
presumptive
truthfulness
attaches
to
plaintiff's
allegations, and the existence of disputed material facts
will not preclude the trial court from evaluating for
itself the merits of jurisdictional claims.
Id. (quoting Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir.
1981)).
In

making

doctrine,

ASB

its

first

presents

and

argument,
relies

under
upon

the

Rooker-Feldman

evidence

outside

the

pleadings. Therefore, the challenge will be considered as a factual
one. As relating to the Eleventh Amendment, ASB’s challenge is
purely facial, relying only on the pleadings. Nichols concedes that
ASB is a state agency.
A. Rooker-Feldman Doctrine
ASB first challenges this court’s jurisdiction under the
Rooker-Feldman doctrine. “Under that doctrine federal district
courts generally lack jurisdiction to review a final state court
decision.” Doe v. Fla. Bar, 630 F.3d 1336, 1340 (11th Cir. 2011).
“Instead, ‘the authority to review final decisions from the highest
court of the state is reserved to the Supreme Court of the United
4

States.’” Id. (quoting Dale v. Moore, 121 F.3d 624, 626 (11th Cir.
1997)). The Supreme Court has recognized, however, “that the
Rooker–Feldman doctrine ‘has sometimes been construed to extend far
beyond the contours of the Rooker and Feldman cases’ and it should
be ‘confined to cases of the kind from which the doctrine acquired
its name.’” Nicholson v. Shafe, 558 F.3d 1266, 1270 (11th Cir.
2009) (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544
U.S. 280, 283, 284 (2005)). The doctrine, therefore, is only
applicable in “cases brought by state-court losers complaining of
injuries

caused

by

state-court

judgments

rendered

before

the

district court proceedings commenced and inviting district court
review and rejection of those judgments.” Exxon Mobil, 544 U.S. at
284.
ASB argues that, under the Rooker-Feldman doctrine, this court
is without jurisdiction because Nichols is simply seeking review of
his 2003 denial of reinstatement by the Alabama Supreme Court.
According to ASB, Nichols is making the same arguments to this
court that he made to the Alabama Supreme Court, which rejected
them, so Nichols may not press those arguments in this court.
For two reasons, the court finds the Rooker-Feldman doctrine
to be inapplicable to this case. First, Nicholson is not seeking
review

of

the

state

court

judgment

—

his

2003

denial

of

reinstatement. First, he blatantly denies any such intent. (Doc. 13
at 6). Instead, he seeks a remedy for the conduct of ASB and
5

McIntire beginning in 2014, when McIntire informed Nichols that he
would oppose Nichols’ future reinstatement and when ASB initiated
disciplinary proceedings against him for his supposed paralegal
work, all allegedly done with a motive to discriminate against him
because of his disabilities. The mere fact that one of the remedies
Nichols seeks (reinstatement to ASB) is also a remedy that the
Alabama Supreme Court could have awarded him in 2003 does not
preclude him from seeking that, among other remedies, in a suit
regarding completely separate conduct by ASB.
Second, Nichols is not complaining of an injury caused by the
2003 denial of reinstatement. Even if his alleged injury is viewed
as a denial of reinstatement, as ASB contends, Nichols is expressly
permitted by Ala. R. Disc. P. 28(i) to seek reinstatement annually.
The 2003 judgment did not speak to his permanent fitness to
practice law in Alabama, but only to his fitness at that time, so
the 2003 denial was not the real or proximate cause of his current
injury.

Therefore,

the

Rooker-Feldman

doctrine

does

not

bar

Nichols’ claims.
B. Eleventh Amendment Immunity
The Eleventh Amendment, on the other hand, does bar Nichols’
claims. ASB is a state agency. See Ala. Code § 34-3-1 et seq.
(1975). “Absent a legitimate abrogation of immunity by Congress or
a

waiver

of

immunity

by

the

state

being

sued,

the

Eleventh

Amendment is an absolute bar to suit by an individual against a

6

state or its agencies in federal court.” Gamble v. Fla. Dep’t of
Health and Rehab. Serv., 779 F.2d 1509, 1511 (11th Cir. 1986).
1. ADA Claim (Title II)
When Congress enacted the ADA, it included a seemingly allencompassing abrogation of Eleventh Amendment immunity:
A State shall not be immune under the eleventh amendment
to the Constitution of the United States from an action
in Federal or State court of competent jurisdiction for
a violation of this chapter. In any action against a
State for a violation of the requirements of this
chapter, remedies (including remedies both at law and in
equity) are available for such a violation to the same
extent as such remedies are available for such a
violation in an action against any public or private
entity other than a State.
42 U.S.C. § 12202 (2012). Congress’ power to abrogate Eleventh
Amendment immunity, however, is limited. “Congress may abrogate the
States' Eleventh Amendment immunity when it both unequivocally
intends

to

do

so

and

‘act[s]

pursuant

to

a

valid

grant

of

constitutional authority.’” Bd. of Trustees of Univ. of Ala. v.
Garrett, 531 U.S. 356, 363 (2001) (quoting Kimel v. Fla. Bd. of
Regents, 528 U.S. 62, 73 (2000)). The only constitutional authority
Congress may invoke in abrogating Eleventh Amendment immunity is §
5 of the Fourteenth Amendment. Id. at 364. “Accordingly, the ADA
can apply to the States only to the extent that the statute is
appropriate § 5 legislation.” Id.
The enforcement power found in § 5 is broad. “It includes ‘the
authority

both

to

remedy

and

to

deter

violation

of

rights

guaranteed [by the Fourteenth Amendment] by prohibiting a somewhat
7

broader swath of conduct, including that which is not itself
forbidden by the Amendment's text.’” Tennessee v. Lane, 541 U.S.
509, 518 (2004) (quoting Kimel, 528 U.S. at 81). “Congress may
enact so-called prophylactic legislation that proscribes facially
constitutional

conduct,

in

order

to

prevent

and

deter

unconstitutional conduct,” Nev. Dep’t of Human Res. v. Hibbs, 538
U.S. 721, 727-28 (2003), but “those measures may not work a
‘substantive change in the governing law,’” Lane, 541 U.S. at 520
(quoting City of Boerne v. Flores, 521 U.S. 507, 519 (1997)).
“Accordingly, § 5 legislation reaching beyond the scope of § 1's
actual guarantees must exhibit ‘congruence and proportionality
between the injury to be prevented or remedied and the means
adopted to that end.’” Garrett, 531 U.S. at 365 (quoting Boerne,
521 U.S. at 520).
“In order to establish whether Congress's enactment of Title
II of the ADA satisfies the Boerne ‘congruence and proportionality’
requirements [the court] follow[s] a three-step analysis.” Ass’n
for Disabled Americans, Inc. v. Fla. Intern. Univ., 405 F.3d 954,
957 (11th Cir. 2005). The first step “is to identify with some
precision the scope of the constitutional right at issue.” Garrett,
531 U.S. at 365. In discussing Title I of the ADA, the Court in
Garrett found that the Fourteenth Amendment generally limits the
ability

to

discriminate

based

upon

the

classification

of

individuals as disabled, but such treatment is only subject to
8

rational-basis review. Id. at 366. “Under rational-basis review,
where a group possesses ‘distinguishing characteristics relevant to
interests the State has the authority to implement,’ a State's
decision to act on the basis of those differences does not give
rise

to

a

constitutional

violation.”

Id.

at

366-67

(quoting

Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441 (1985)). “Such
a classification cannot run afoul of the Equal Protection Clause if
there is a rational relationship between the disparity of treatment
and some legitimate governmental purpose.” Heller v. Doe, 509 U.S.
312, 320 (1993).
In regard to Title II, under which Nichols brings this claim,
the

Court

in

Lane

recognized

the

statute’s

“prohibition

on

irrational disability discrimination. But [Title II] also seeks to
enforce

a

variety

of

other

basic

constitutional

guarantees,

infringements of which are subject to more searching judicial
review.” Lane, 541 U.S. at 522-23. For example, the plaintiffs in
Lane were disabled individuals seeking to vindicate their right of
access to the courts. The Court found such a right to be protected
by the Due Process Clause of the Fourteenth Amendment and the
Confrontation Clause of the Sixth Amendment and thus subject to
heightened judicial protection. Id. at 523. In United States v.
Georgia, 546 U.S. 151 (2006), the Court found that a disabled
inmate’s challenge to conditions of his confinement implicated the
Eighth

Amendment.

In

Association
9

for

Disabled

Americans,

the

Eleventh Circuit

found

heightened

review

applicable

regarding

disabled children’s access to public education. 404 F.3d 954
(2005).
In this case, however, no interests implicating heightened
scrutiny

are

present.

“The

right

to

practice

law

is

not

a

fundamental right, and therefore rational basis review is the
appropriate standard” to apply. Kirkpatrick v. Shaw, 70 F.3d 100,
103 (11th Cir. 1995). No other fundamental right or suspect class
is implicated, since Garrett makes clear that the disabled are not
a suspect class. Nichols’ assertions of property and liberty
interests in his law license are primarily directed toward his §
1983 claim, not his ADA claim, and in any case do not result in
heightened scrutiny of the deprivation of his license. Accordingly,
Nichols’ implicated Fourteenth Amendment rights are narrow, subject
only to rational-basis review.
The second step in the process is to “examine whether Congress
identified

a

history

and

pattern

of

unconstitutional

.

.

.

discrimination by states against the disabled.” Garrett, 531 U.S.
at 368. When performing this analysis in Lane, “the Supreme Court
considered

the

conclusively

record

held

that

supporting
Congress

Title
had

II

as

documented

a
a

whole,

and

sufficient

historical predicate of unconstitutional disability discrimination
in the provision of public services to justify enactment of a
prophylactic remedy pursuant to Congress's authority under Section

10

5 of the Fourteenth Amendment.” Ass’n for Disabled Americans, 405
F.3d at 958 (emphasis in original). Therefore, as in Lane, the
second step is satisfied in this case.
Finally, the third step is to determine “whether Title II is
an appropriate response to this history and pattern of unequal
treatment.” Lane, 541 U.S. at 530. As stated above, for Title II to
be such an appropriate response, it “must exhibit ‘congruence and
proportionality between the injury to be prevented or remedied and
the means adopted to that end.’” Garrett, 531 U.S. at 365 (quoting
Boerne, 521 U.S. at 520). While the second step focuses on Title II
as a whole, “the congruence and proportionality of the remedies in
Title II should be judged on an individual or ‘as-applied’ basis in
light of the particular constitutional rights at stake in the
relevant
Americans,

category
405

of

F.3d

public
at

958.

services.”
When

the

Ass’n

for

Disabled

constitutional

rights

implicated are protected only by deferential review, as they are in
this case, it is necessarily more difficult to show the requisite
congruence and proportionality. See Lane, 541 U.S. at 529.
This court finds that Title II does not exhibit the congruence
and proportionality necessary to abrogate the state’s Eleventh
Amendment immunity in this context — namely, regulation of attorney
conduct. When analyzing whether the statute’s remedy is congruent
and proportional — that is, whether there is a sufficient fit
between the constitutional injury and the statutory scheme to
11

remedy it — the Courts in Garrett, Lane, and United States v.
Georgia all compared the scope of the constitutional rights at
issue, the evidence of unconstitutional discrimination in the
particular context, and the breadth of the statutory remedy created
in order to make this determination. This court will do the same.
As described above, any constitutional rights implicated in this
case

are

narrow.

The

evidence

before

Congress

of

disability

discrimination was also narrow — in fact, it was practically
nonexistent.

Nowhere

in

the

relevant

statutory

text

or

congressional findings, reports, or hearings is there a single
mention of disability discrimination as related to discipline,
suspension, reinstatement, or other regulation of the conduct of
attorneys or any other licensed professionals. See 42 U.S.C. §
12101 (2012); S. Rep. No. 101-116 (1989); S. Hrg. No. 101-156
(1989); H.R. Rep. No. 101-485 (1990); H.R. Rep. No. 101-558 (1990)
(Conf. Rep.); H.R. Rep. No. 101-596 (1990) (Conf. Rep.).
Because

the

Fourteenth

Amendment

itself

offers

little

protection to the disabled, and because Congress had before it no
evidence of unconstitutional discrimination in the regulation of
disabled attorneys’ conduct, any congruent and proportional remedy
must itself be very narrow, not working a “substantive change in
the governing law,” Boerne, 521 U.S. at 519. But Title II flatly
prohibits any form of discrimination on basis of disability, 42
U.S.C. § 12132, far exceeding the scope of rational-basis review,

12

which would permit disparate treatment of disabled attorneys “if
there is a rational relationship between the disparity of treatment
and some legitimate governmental purpose,” Heller, 509 U.S. at 320.
Therefore, as relating to the regulation of disabled attorneys’
conduct, the ADA’s abrogation of Eleventh Amendment immunity for
Title II claims exceeds the scope of permissible legislation under
§ 5 of the Fourteenth Amendment. Consequently, ASB is immune from
Nichols’ ADA claim, and the claim will be dismissed.
2. § 1983 Claim
Eleventh Amendment analysis is much simpler under § 1983 than
under the ADA: Congress has not purported to abrogate immunity for
§ 1983 actions, Will v. Mich. Dep’t of State Police, 491 U.S. 58,
64 (1989), and the State of Alabama has not waived it, Carr v. City
of Florence, Ala., 916 F.2d 1521, 1525 (11th Cir. 1990), so ASB is
immune from Nichols’ § 1983 claim. Additionally, a state or state
agency is not subject to suit under § 1983 because it is not a
“person” within the meaning of the statute. Will, 491 U.S. at 66.
Therefore, Nichols’ § 1983 claim will be dismissed.
CONCLUSION
For the reasons stated above, ASB’s motion to dismiss will be
granted.

Consequently,

Nichols’

request

for

a

preliminary

injunction will be denied, and his motion to file exhibits under
seal will be denied as moot. A separate order implementing these
conclusions will be entered.
13

DONE this 15th day of April, 2015.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

14