NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 19-1120

______

SUSAN SILVER, MD; RICHARD DUCOTE, ESQ.; 

*VICTORIA MCINTYRE, ESQ.,

 Appellants

v.

COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, and THE HONORABLE 

KIM BERKELEY CLARK, in her official capacity

*Pursuant to Fed. R. App. P. 12(a).

____________

On Appeal from the United States District Court

for the Western District of Pennsylvania 

(D.C. No. 2-18-cv-00494)

District Judge: Honorable Nora Barry Fischer

____________

Submitted under Third Circuit LAR 34.1(a)

November 1, 2019

Before: HARDIMAN, PHIPPS, and NYGAARD, Circuit Judges.

(Filed: February 6, 2020)

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OPINION*

___________

 * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
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PHIPPS, Circuit Judge.

This appeal concerns an exceptionally contentious child custody case. Two exspouses, Sammy Bertenthal and Susan Silver, disputed custody of their child in the Court 

of Common Pleas for Allegheny County. After a 23-day trial, that court granted sole 

legal and physical custody to the father, Bertenthal. 

The child’s mother, Silver, was not pleased with that result. Along with her 

attorney, Richard Ducote, she launched a press release and held a press conference that 

went beyond simply announcing disagreement with the outcome of the trial. Silver and 

Ducote used those opportunities to repeat highly charged allegations made at trial that 

Bertenthal had sexually abused the child. The coverage of those allegations appeared on 

popular websites and later was the subject of an article in a local weekly newspaper. 

Bertenthal responded by moving for sanctions and a gag order against Silver and 

Ducote in the Court of Common Pleas. Silver attempted to remove that dispute to federal 

court, but the District Court rejected that effort. 

Undeterred, Silver and Ducote initiated a separate lawsuit in the District Court 

against the Common Pleas Court. There, they sought immediate injunctive relief to 

prevent the Common Pleas Court from enjoining future speech or issuing sanctions. The 

District Court denied those requests for emergency injunctive relief. 

The Common Pleas Court then issued an initial order governing the post-judgment 

conduct of the parties and counsel. Through that order, the Court of Common Pleas

prevented both parties and their counsel from publicly discussing the child custody case. 
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That order prompted more litigation – in federal court. Silver and Ducote filed a 

motion to amend their complaint and moved again for a preliminary injunction. Both 

requests were denied. 

Back at the state level, the Common Pleas Court entered a more targeted order 

after holding a hearing and making findings of fact. That order prohibited Silver, Ducote, 

and Silver’s other counsel, Victoria McIntyre, from speaking publicly or communicating 

online about the case or encouraging others to do so. It also required them to remove 

information they posted about the case from the internet. The order further imposed an 

additional restriction on those three: if they were to testify before any legislative body, 

they could not provide information that would tend to identify the child. Silver, Ducote, 

and McIntyre appealed that ruling to the Pennsylvania Superior Court. 

While that appeal was pending, Silver and Ducote returned to federal court 

seeking a new amendment to their complaint and a preliminary injunction. But finding 

that amending the complaint would be futile, the District Court denied not only 

amendment but also all requested relief. In reaching that result, the District Court relied 

on the Rooker-Feldman doctrine, Eleventh Amendment immunity, and Younger

abstention. Ultimately, the District Court sua sponte dismissed the complaint with 

prejudice. 

Meanwhile, Silver, Ducote, and McIntyre pressed forward with their state-court 

litigation. The Superior Court rejected their constitutional challenges to the Common 

Pleas Court’s order. See S.B. v. S.S., 201 A.3d 774, 783-84 (Pa. Super. Dec. 24, 2018). 

But then the Supreme Court of Pennsylvania granted review of a single issue – the same 
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federal question they attempted to litigate in the District Court: whether the Common 

Pleas Court order violated their rights under the First and Fourteenth Amendments. See 

S.B. v. S.S., No. 89 WAL 2019, 2019 WL 4291606 (Pa. Sept. 11, 2019). 

Even with that grant of review, Silver and Ducote did not abandon their efforts to 

litigate the same issue in federal court. They appealed the District Court’s final judgment 

to this Court. See 28 U.S.C. § 1291. 

The three issues on appeal here – the Rooker-Feldman doctrine, Eleventh 

Amendment immunity, and Younger abstention – all constitute threshold barriers to 

federal court review of a controversy. As threshold issues, those arguments need not be 

addressed in any particular sequence. See Sinochem Int’l Co. Ltd. v. Malaysia Int’l

Shipping Corp., 549 U.S. 422, 431 (2007) (“[A] federal court has leeway ‘to choose 

among threshold grounds for denying audience to a case on the merits.’”) (quoting 

Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 585 (1999)). And of the three threshold 

issues presented here, the most natural starting point is Younger abstention. See id. at 431 

(explaining that a federal court need not “decide whether the parties present an Article III 

case or controversy before abstaining under Younger v. Harris”). 

Younger abstention operates as an exception to a federal court’s “virtually 

unflagging” obligation to hear and decide cases over which it has jurisdiction. Sprint 

Commc’ns., Inc. v. Jacobs, 571 U.S. 69, 77 (2013) (quoting Colorado River Water 

Conservation Dist. v. United States, 424 U.S. 800, 817 (1976)); see also id. at 72 

(explaining that “[a]bstention is not in order simply because a pending state-court 

proceeding involves the same subject matter”). But before Younger abstention “counsels
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against federal relief,” the federal action must constitute an exceptional circumstance that 

would present “the prospect of undue interference with state proceedings.” Id. at 72. One 

such exceptional circumstance occurs when there are pending “civil proceedings 

involving certain orders that are uniquely in furtherance of the state court’s ability to 

perform their judicial functions.” Id. at 73 (quoting New Orleans Pub. Serv. Inc. v. 

Council of New Orleans, 491 U.S. 350, 368 (1989)). 

This case presents such an exceptional circumstance. Unlike this Circuit’s 

decision in Malhan v. Sec’y of U.S. Dep’t of State, 938 F.3d 453 (3d Cir. 2019), the 

federal action here challenges an order uniquely in furtherance of a state court’s ability to 

perform judicial functions. The state-court order attacked by Silver and Ducote governs

the post-judgment conduct of attorneys and litigants. See Middlesex Cty. Ethics Comm.

v. Garden State Bar Ass’n, 457 U.S. 423, 432-33 (1982) (abstaining under Younger from 

deciding a state-court action implicating “the important state obligation to regulate 

persons who are authorized to practice law”). And that order seeks to preserve the state 

court’s power to further one of its uniquely judicial functions – promoting and protecting

the best interests of a child whose custody had been previously adjudicated by the court. 

See generally Kassam v. Kassam, 811 A.2d 1023, 1025 (Pa. Super. 2002) (explaining that 

Pennsylvania courts have a “duty of paramount importance to protect [a] child’s best 

interest and welfare” (quoting G.B. v. M.M.B., 670 A.2d 714, 715 (Pa. Super. Jan. 25, 

1996))). 

Even in an exceptional circumstance, three more showings – commonly referred to 

as the Middlesex factors – are required for Younger abstention. See generally Middlesex 
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Cty., 457 U.S. at 432. First, there must be ongoing state proceedings that are judicial in 

nature. See Malhan, 938 F.3d at 462. That is satisfied because Silver, Ducote, and 

McIntyre are parties to ongoing state court proceedings – their appeal before the 

Pennsylvania Supreme Court. Second, the state proceedings must implicate important 

state interests. See id. That requirement is also met because “[f]amily relations are a 

traditional area of state concern,” Moore v. Sims, 442 U.S. 415, 435 (1979), and 

Pennsylvania has a “duty of paramount importance” to protect the best interest of 

children in custody proceedings. Kassam, 811 A.2d at 1025. Third, the state proceedings 

must afford an adequate opportunity to raise federal claims. See Malhan, 938 F.3d at 

462. The state proceedings here do just that. This is not a situation in which a state court 

is “incapable of fairly and fully adjudicating the federal issues before it” sufficient to 

create “an extraordinarily pressing need for immediate federal equitable relief.” Kugler 

v. Helfant, 421 U.S. 117, 124-25 (1975). Rather, the Supreme Court of Pennsylvania 

granted a discretionary appeal to address the very constitutional issues Silver and Ducote 

attempt to adjudicate in federal court. 

For these reasons, on plenary review, see Lui v. Comm’n. on Adult Entm’t 

Establishments, 369 F.3d 319, 325 (3d Cir. 2004), the District Court did not err in its

legal analysis of the applicability of Younger abstention. Consequently, we will affirm 

the judgment of the District Court dismissing this case with prejudice on Younger

grounds during the pendency of the state-court litigation.