1 United States Court of Appeals,

Fifth Circuit.

No. 92-2762.

Benton MUSSLEWHITE, and all others similarly situated, PlaintiffAppellant,

v.

The STATE BAR OF TEXAS, et al., Defendants-Appellees.

July 19, 1994.

Appeal from the United States District Co urt 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

a ction in response to a particular tort and detail his1 Musslewhite charges that the investigation was designed

only to harass plaintiffs' attorneys and solo practitioners.

2 qualification s. 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 w as feigned—that these press conferences constituted the

improper solicitation of clients. The State Bar launched an

investigation tha t 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, t he 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 settleme nt provisions. On the heels of an oil platform

explosion in Scotland, Musslewhite went to work, plotting his2 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 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.

T hat 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 the5 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 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 righ t 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 Fede ral

Rules of Civil Procedure. We address whether the district court

erred in so doing. After a d e 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,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 that Musslewhite has stated a claim upon which relief could be

granted as to his allegations of bad fai th 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

d ismissal for failure to state a claim upon which relief c an 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. Feldman 7 and this Court's decision in Howell v . State

Bar of Texas 8

. 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 comple ted legal9 Feldman, 460 U.S. at 479, 103 S.Ct. at 1313 (internal

quotations omitted).

6 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 s upposed already to exist". 9

That, the Court concluded, is a judicial charge.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 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 re view final judgments or decrees rendered by the

highest court in a state.

The Feldman rule, then, is as follows. The federal courts d o

have subject matter jurisdiction over

general challenges to state bar rules, promulgated by state

courts in non-judicial procee d ings, 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 disbar ment. 1 2 The district court had held that it lackedenforcement 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 jurisdiction. We reversed in H owell 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 F eldman

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 hear d in federal court. 1 4 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 that9

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 of16 Bishop v. State Bar of Texas, 736 F.2d 292, 294 (5th

Cir.1984).

10 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 fol lowed in their cases." 1 6 To evaluate them

would require review of the state court judgment. That, as F eldman

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 sc heme 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 cont ention as but another attack on the

State Bar's procedures as applied to Musslewhite. All of the

evidence to w hich 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 a pplies as well to his charge that the State Bar

prosecutes solo pra ctitioners for conduct that it tolerates by17 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 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

makin g of false and misleading statements is, o n 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 Texas 18 , we stated that

Although Texas disciplinary proceedings are capable of

deciding constitutional challenges to specific procedures,

recourse in those proce edings 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 Y ounger

v. Harris 19

, the Supreme Court established a policy whereby federal

intervention in ongoing state criminal proceedings is barred absent

extraordinary circumstances. Subsequent decisions teach us that a20 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 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 a pplications in our Circuit:

First, where the state prosecution is taken for the purpose of

deterring constitutionally protected conduct 21 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 q uestion 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. 2324 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 The bad faith exception app lies 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

f aith or harassment is a proper means of invoking f ederal

jurisdiction, is to d etermine 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 th e 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

s tatement (Rule 12(e)) are the proper vehicles for narrowing the

issues and il lustrating the boundaries of a claim. 2 5 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,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 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 B ishop case

supports our conclusion. In B ishop, we were satisfied that the

admittedly thin record brought the case within the ambit of the

liberal Rule 12 standard. Yet, the plaintiff in B ishop 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 disti nction created in F eldman but failed to address

Musslewhite's claims of bad faith and harassment. We approach this

ques tion with only the record as our aide. 2 7 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 go28 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 forward.

VIII.

In concl usion, we affirm the H owell 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.