Dennis Dubuc v. MICHIGAN BOARD OF LAW EXAMINERS, GEORGE GOOGASIAN, STATE BAR OF MICHIGAN, and JOHN BERRY

*The Honorab le Leon Jordan, United States District Judge for the
Eastern District of Tennessee, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0313P (6th Cir.)
File Name: 03a0313p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
DENNIS DUBUC,
Plaintiff-Appellant,
v.
MICHIGAN BOARD OF LAW
EXAMINERS, GEORGE
GOOGASIAN, STATE BAR OF
MICHIGAN, and JOHN BERRY,
Defendants-Appellees.
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No. 02-1897
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 02-71193—Bernard A. Friedman, District Judge.
Argued: July 30, 2003
Decided and Filed: September 3, 2003
Before: GILMAN and GIBBONS, Circuit Judges;
JORDAN, District Judge.*
2 Dubuc v. Mich. Board of
Law Examiners et al.
No. 02-1897
1According to the Bo ard and Goo gasian’s brief, Goo gasian is no
longer the chairperson or a member of the Board. Dubuc sued Googasian
in his capacity as chairperson of the Board, and he states in his reply brief
that, if there is a new chairperson, he will amend his complaint upon
remand. The p arties have submitted no evidence on this issue, and for
purposes of this appeal we acc ept as true the comp laint’s allegations,
which name Googasian as the chairperson of the Board.
_________________
COUNSEL
ARGUED: Robert D. Horvath, Troy, Michigan, for
Appellant. Katherine C. Galvin, MICHIGAN
DEPARTMENT OF ATTORNEY GENERAL, Lansing,
Michigan, Thomas K. Byerley, Lansing, Michigan, for
Appellees. ON BRIEF: Robert D. Horvath, Troy, Michigan,
for Appellant. Margaret A. Nelson, MICHIGAN
DEPARTMENT OF ATTORNEY GENERAL, Lansing,
Michigan, Thomas K. Byerley, Lansing, Michigan, for
Appellees.
_________________
OPINION
_________________
JULIA SMITH GIBBONS, Circuit Judge. Appellant
Dennis Dubuc brought this action against the Michigan Board
of Law Examiners (the Board); George Googasian, in his
capacity as Chairperson of the Board;1 the State Bar of
Michigan (the Bar); and John Berry, in his capacity as the
Executive Director of the Bar. The Board denied Dubuc’s
application for membership in the Michigan Bar because it
found that he had failed to demonstrate that he was a person
of good moral character. Dubuc seeks to reapply for
membership in the Michigan Bar, and he filed this lawsuit
claiming that the rules governing the time of his eligibility to

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reapply are unconstitutional. He also claims that defendants
unconstitutionally use First Amendment activity as grounds
for denying applications for admission to the Bar. He seeks
declaratory and injunctive relief allowing him to reapply
immediately for admission to the Bar and prohibiting
defendants from considering First Amendment activity when
considering applications for admission to the Bar.
In an oral ruling, the district court sua sponte dismissed the
case on immunity grounds, and Dubuc appeals. For the
following reasons, we affirm in part and reverse in part the
district court’s dismissal on immunity grounds and remand
the case for further proceedings.
I. BACKGROUND
Dubuc graduated from an accredited law school, passed the
February 1998 Michigan Bar examination, and applied for
admission to the Michigan Bar. The Bar recommended to the
Board that his application be denied because it found that he
lacked good moral character, a statutory requirement for
admission. See M.C.L.A. § 600.934(1). Dubuc exercised his
right to challenge the Bar’s determination in a de novo
hearing in front of the Board. On June 9, 2000, the Board
issued an opinion denying Dubuc’s application. According to
its opinion, the Board found that Dubuc had failed to prove
that he was a person of good moral character in view of his
failure to accept responsibility for his wrongful actions when
representing himself in previous lawsuits.
According to his testimony in front of the Board, as
reflected in the Board’s opinion, Dubuc had been involved in
approximately thirty-eight lawsuits in the twenty-five years
preceding his Board hearing. He filed one of these lawsuits
in Michigan’s Livingston County Circuit Court in 1992. In
1993, he moved to disqualify the presiding judge, Judge
Daniel Burress. During a hearing on September 27, 1995,
Dubuc accused Judge Burress of engaging in a conspiracy
4 Dubuc v. Mich. Board of
Law Examiners et al.
No. 02-1897
against him. During a hearing on October 6, 1995, Dubuc
told Judge Burress that he had filed criminal charges against
him for conspiracy, bribery, bribery attempt, and abuse of
process. In an affidavit he filed in support of his criminal
charges, Dubuc attested that Judge Burress was engaged in a
“conspiracy to destroy [him],” obstruction of justice, abuse of
process, bribery, and attempted bribery.
Judge Burress ordered Dubuc to pay over $180,000 in
sanctions for violating several court orders, and after a bench
trial, Judge Burress dismissed Dubuc’s lawsuit as frivolous.
The Michigan Court of Appeals affirmed Judge Burress’s
decision to award sanctions and dismiss the lawsuit. Dubuc
v. Green Oak Township, No. 191293, 1999 WL 33455145
(Mich. Ct. App., Jan. 5, 1999). The Michigan Supreme Court
denied Dubuc’s application for leave to appeal, 604 N.W.2d
679 (Mich. 1999), and denied his subsequent motion to
reconsider, 609 N.W.2d 829 (Mich. 2000). In conjunction
with the denial of his motion to reconsider, Justice Corrigan,
joined by a majority of the other Michigan Supreme Court
justices, issued a statement encouraging the trial court to
consider “extraordinary sanctions to deter [Dubuc] from
continuing his vexatious tactics that have led to years of
abusive litigation.” 609 N.W.2d at 829. Among many other
things, Justice Corrigan found that Dubuc had engaged in
abusive and frivolous tactics to delay the proceedings,
including “naming the trial judge as a witness; seeking to
depose the judge; accusing the judge of criminal conduct and
of conspiring with defense counsel; and threatening to file a
complaint with the Judicial Tenure Commission against the
judge.” Id. at 830.
Relying upon the Michigan Supreme Court’s decision
denying Dubuc’s motion to reconsider, the Board found that
the issue of whether sanctions were appropriate against
Dubuc had been decided against Dubuc and was no longer an
issue for the Board to resolve. Dubuc’s attorney admitted to
the Board that he knew of no facts that would support a

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criminal charge against Judge Burress for bribery or
conspiracy. Dubuc stated to the Board that he had not
intended to accuse Judge Burress of bribery, but that he meant
only to accuse Judge Burress of knowing that bribery was
occurring and doing nothing to stop it. According to the
Board, Dubuc refused to accept responsibility for falsely
accusing a judge of criminal actions and persisted in believing
that the issues in front of the Board were not his fault. In its
opinion, the Board found that his failure to accept
responsibility for his actions prevented him from carrying his
burden to prove that he was fit to practice law.
Dubuc sought leave to appeal the Board’s decision to the
Michigan Supreme Court, which declined to grant review.
Dubuc then filed a petition for a writ of certiorari with the
Supreme Court of the United States, which also declined to
grant review. Dubuc then filed this lawsuit.
In his complaint, filed pursuant to 42 U.S.C. § 1983, Dubuc
does not challenge the denial of his 1998 application for
admission to the Michigan Bar. Instead, Dubuc seeks an
injunction ordering defendants to allow him to reapply
immediately for admission to the Michigan Bar. In addition,
he seeks declaratory and injunctive relief prohibiting
defendants from using his alleged First Amendment activities
(criticizing a judge) as a basis for denying his second
application.
According to his complaint, the Michigan Supreme Court
Rules Concerning the State Bar of Michigan (RCSBM)
prohibit Dubuc from reapplying for five years from the date
the Board denied his initial application. Under the RCSBM,
according to Dubuc, if he had acquiesced in the Bar’s
recommendation and not exercised his right to a de novo
hearing in front of the Board, he would have been eligible to
reapply three years after the Bar’s recommendation.
Therefore, according to Dubuc, because he challenged the
Bar’s recommendation he must wait until 2005 to reapply,
6 Dubuc v. Mich. Board of
Law Examiners et al.
No. 02-1897
while if he had not appealed to the Board he would have been
eligible to reapply in 2001. Dubuc claims that “punishing”
applicants for exercising their right to challenge the Bar’s
recommendation violates the First Amendment right to
petition the government and the Fourteenth Amendment
rights to substantive due process and equal protection. He
asserts that the RCSBM are facially unconstitutional in this
regard.
In support of his request for an injunction and declaratory
judgment prohibiting defendants from considering his alleged
First Amendment activities in evaluating his second
application, Dubuc advances two claims. First, he asserts that
“the practice of law is a profession of advocacy and attorney-
advocacy is a quintessential First Amendment activity.”
Therefore, he argues, Michigan’s attorney-licensing
procedure, which considers one’s “moral character,” is a prior
restraint on a First Amendment activity and is facially
unconstitutional because it lacks adequate procedural
safeguards and is too vague.
Second, he claims that in practice defendants consider an
applicant’s prior First Amendment activity in determining
whether an applicant has good moral character. He cites the
denial of his first application as one of two “illustrations” that
evidence the defendants’ practice. As his other example, he
alleges that a law school graduate named Stephen Dean was
told by a Bar official that he would be denied admission to the
Bar because he picketed against his law school over
classroom comments by one of his professors regarding the
impeachment proceedings of former President Clinton. He
contends that denying one’s bar application based upon one’s
protected speech is unconstitutional. He therefore claims that
the moral character requirement, as it is being applied, is
unconstitutional.
Along with his complaint, which he filed on March 28,
2002, in the United States District Court for the Eastern

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2This court, however, has observed that “[t]his reviewing court, and
more importantly, the parties, are much better served when, as is the
custom in this circuit, the district court prepares a written opinion
explaining its ruling and the reasoning, factual and legal, in support,
especially when the ruling disposes of the case in a final judgment.” Peck
v. Bridgeport Machines, Inc., 237 F.3d 614 , 617 (6th Cir. 200 1).
District of Michigan, Dubuc filed a motion for a preliminary
injunction. Defendants filed answers to the complaint and
moved to dismiss for improper venue or, in the alternative, to
transfer the case to the Western District of Michigan, where
the offices of the Board and Bar are located. The district
court scheduled a hearing on Dubuc’s motion for a
preliminary injunction and defendants’ motion relating to
venue for June 5, 2002.
Before hearing argument or evidence with regard to the
parties’ pending motions, the district court at the beginning of
the hearing on June 5, 2002, asked the parties to address “the
issue of immunity.” In their answers, defendants asserted two
claims of immunity. They all claimed immunity under the
Eleventh Amendment, and the Bar and Berry claimed
immunity under the RCSBM, which provide that the staff and
committee members of the Bar and the Board are “absolutely
immune from suit for conduct arising out of the performance
of their duties.” The Board and Googasian did not raise the
RCSBM’s grant of immunity in their answer.
At the conclusion of the parties’ arguments, the district
court made an oral ruling dismissing the action “based upon
the immunity argument.” The district court’s reasoning is
unclear. The district court stated that “[t]here’s no reason for
me to go into a lot of details.”2 In announcing its ruling, the
district court referred to the RCSBM’s grant of “absolute
immunity” and cited two unpublished district court cases
dealing with the Eleventh Amendment, but the district court
did not distinguish between the two claims of immunity nor
did it specify which defendant was entitled to which type of
8 Dubuc v. Mich. Board of
Law Examiners et al.
No. 02-1897
immunity. The district court also stated that “the Rooker-
Feldman doctrine probably would apply, too,” but the district
court explicitly declined to ground its ruling on this issue.
Having dismissed the action, the district court denied all
pending motions as moot.
Dubuc appeals. He argues that the district court erred in
finding defendants immune and asserts that the Rooker-
Feldman doctrine is inapplicable to bar this lawsuit.
Furthermore, he urges this court to consider and grant his
motion for a preliminary injunction.
II. ANALYSIS
A. Eleventh Amendment immunity
The Eleventh Amendment provides:
The Judicial power of the United States shall not be
construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.
U.S. Const. amend. XI. Absent the state’s consent, the
judicial power of the United States also does not extend to
suits against a state by that state’s own citizens, even though
this limitation was not made explicit in the Eleventh
Amendment. Hans v. Louisiana, 134 U.S. 1, 13-15 (1890).
In addition to the states themselves, the Eleventh Amendment
immunizes departments and agencies of the states. Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984).
To determine whether an entity is a state department or
agency for purposes of the Eleventh Amendment, the primary
issue is whether the state would ultimately be liable for any
money judgment against the entity. Brotherton v. Cleveland,
173 F.3d 552, 560-61 (6th Cir. 1999). Courts, however, also

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look to other factors, such as how state law defines the entity
and the degree of control the state maintains over the entity.
Id. at 561 (declining to decide whether these other factors are
relevant to the inquiry).
The parties have not submitted any evidence regarding
whether the State of Michigan would be ultimately
responsible for any money judgment against the Board or the
Bar. The other factors, however, weigh in favor of finding
the Board and the Bar immune from this lawsuit. In
Michigan, for purposes of promulgating rules relating to Bar
membership and determining whether to grant or deny Bar
applications, the Board and the Bar are merely extensions of
the Michigan Supreme Court. Michigan law provides that the
“Michigan Supreme Court has the power to provide for the
organization, government, and membership of the State Bar
of Michigan, and to adopt rules and regulations concerning
. . . the investigation and examination of applicants for
admission to the bar.” M.C.L.A. § 600.904.
Because they are arms of the Michigan Supreme Court for
all purposes relevant to this lawsuit, the Board and the Bar are
state agencies immune from this lawsuit under the Eleventh
Amendment. Kish v. Michigan State Bd. of Law Exam’rs,
999 F. Supp. 958, 964 (E.D. Mich. 1998) (finding that the
Board is a judicial agency of the state entitled to Eleventh
Amendment immunity); see also Thiel v. State Bar of
Wisconsin, 94 F.3d 399, 401-02 (7th Cir. 1996) (holding that
the State Bar of Wisconsin is a state agency entitled to
Eleventh Amendment immunity). Therefore, we affirm the
district court’s dismissal of the claims against the Board and
the Bar.
Defendants Googasian and Berry assert that as state
officials they are also immune from this lawsuit under the
Eleventh Amendment. In general, the Eleventh Amendment
immunizes state officials from suit in federal court.
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,
10 Dubuc v. Mich. Board of
Law Examiners et al.
No. 02-1897
101 (1984). The Supreme Court, however, recognized an
important exception to this general rule in Ex parte Young,
209 U.S. 123 (1908), where it held that the Eleventh
Amendment does not bar a lawsuit seeking an injunction
against a state official prohibiting the state official from
enforcing a state statute that allegedly violates the United
States Constitution. “In determining whether the doctrine of
Ex parte Young avoids an Eleventh Amendment bar to suit,
a court need only conduct a ‘straightforward inquiry into
whether [the] complaint alleges an ongoing violation of
federal law and seeks relief properly characterized as
prospective.’” Verizon Maryland, Inc. v. Public Service
Commission of Maryland, 535 U.S. 635, 645 (2002) (quoting
Justice O’Connor’s concurring opinion in Idaho v. Coeur
d’Alene Tribe of Idaho, 521 U.S. 261, 296 (1997)).
Dubuc’s complaint alleges an ongoing violation of federal
law and seeks relief properly characterized as prospective. He
alleges that the Bar admission rules, facially and as currently
applied, violate the United States Constitution, and he seeks
only injunctive and declaratory relief, not a money judgment
or any other retrospective relief. Therefore, neither
Googasian nor Berry is entitled to immunity under the
Eleventh Amendment pursuant to the “straightforward
inquiry” that applies to this issue. Verizon Maryland, 535
U.S. at 645 (“Here Verizon sought injunctive and declaratory
relief . . . . The prayer for injunctive relief – that state officials
be restrained from enforcing an order in contravention of
controlling federal law – clearly satisfies our ‘straightforward
inquiry.’”); see also Roe # 2 v. Ogden, 253 F.3d 1225, 1233-
34 (10th Cir. 2001) (holding that members of the Colorado
State Board of Law Examiners were not entitled to immunity
under the Eleventh Amendment from a lawsuit challenging
bar admission rules). Importantly, determining whether the
Ex parte Young doctrine applies does not involve an analysis
of the merits of a plaintiff’s claims. Verizon Maryland, 535
U.S. at 646.

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In support of their claim for immunity under the Eleventh
Amendment, Googasian and Berry cite Idaho v. Coeur
d’Alene Tribe of Idaho, 521 U.S. 261 (1997). In Coeur
d’Alene, an Indian tribe sought a declaratory judgment
establishing its rights to quiet enjoyment over the submerged
lands of Lake Coeur d’Alene, as well as prospective
injunctive relief against numerous Idaho state officials to
prevent them from exercising the state’s asserted regulatory
jurisdiction over those submerged lands. Id. at 264. A
sharply divided Court held that the state officials were
immune from this lawsuit under the Eleventh Amendment
because the suit was the “functional equivalent of a quiet title
action” and “if the Tribe were to prevail, Idaho’s sovereign
interest in its lands and waters would be affected in a degree
fully as intrusive as almost any conceivable retroactive levy
upon funds in its Treasury.” Id. at 281, 287. “Under these
particular and special circumstances, we find the Young
exception inapplicable.” Id. at 287.
Googasian’s and Berry’s reliance on Coeur d’Alene is
unavailing because the present lawsuit is not the functional
equivalent of a quiet title action that implicates a state’s
sovereign interest in its lands or waters. In arguing for a
broader interpretation of the holding in Coeur d’Alene,
Googasian and Berry mistakenly cite portions of Justice
Kennedy’s principal opinion that were not joined by a
majority of the Court. Justice Kennedy, in a section of his
principal opinion joined only by Chief Justice Rehnquist,
advocated adopting a case-by-case balancing test that would
narrow the circumstances under which the Ex Parte Young
doctrine applies. Id. at 278. A majority of the Court,
however, explicitly rejected this approach. Id. at 296
(O'Connor, J., joined by Scalia and Thomas, JJ., concurring
in part and concurring in judgment and advocating the
retention of the traditional “straightforward inquiry” for
determining when the Ex parte Young doctrine applies); id at
298-99 (Souter, J., dissenting, joined by Stevens, Ginsburg,
and Breyer, JJ.). In Verizon Maryland, the Court reaffirmed
12 Dubuc v. Mich. Board of
Law Examiners et al.
No. 02-1897
the traditional “straightforward inquiry” advocated by Justice
O’Connor in her concurring opinion in Coeur d’Alene.
Therefore, the individual defendants are not entitled to
Eleventh Amendment immunity from this suit.
B. Immunity under the RCSBM
According to the RCSBM, “The State Bar staff, the
members of the district and standing committees and the
members and staff of the Board of Law Examiners are
absolutely immune from suit for conduct arising out of the
performance of their duties.” The district court cited this
provision in its oral ruling finding defendants immune from
this lawsuit. While this provision may immunize the
individual defendants from state law claims, no state law or
rule can immunize anyone from liability for violating the
United States Constitution. In Ex parte Young, the Supreme
Court explained the supremacy of federal law over state law:
If the act which the state attorney general seeks to
enforce be a violation of the Federal Constitution, the
officer, in proceeding under such enactment, comes into
conflict with the superior authority of that Constitution,
and he is in that case stripped of his official or
representative character and is subjected in his person to
the consequences of his individual conduct. The state
has no power to impart to him any immunity from
responsibility to the supreme authority of the United
States.
209 U.S. 123, 159-60 (1908).
Therefore, the RCSBM do not immunize any defendant
from this § 1983 lawsuit alleging ongoing violations of
federal law.

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C. The Rooker-Feldman doctrine
The district court found that the Rooker-Feldman doctrine
“probably” bars this lawsuit. We disagree. “The Rooker-
Feldman doctrine merely recognizes that 28 U.S.C. § 1331 is
a grant of original jurisdiction, and does not authorize district
courts to exercise appellate jurisdiction over state-court
judgments.” Verizon Maryland, 535 U.S. at 644 n. 3.
In District of Columbia Court of Appeals v. Feldman, the
two plaintiffs were denied permission to sit for the District of
Columbia bar exam because one had not graduated from law
school and the other had not graduated from an accredited law
school. 460 U.S. 462, 465, 470 (1983). Each plaintiff
unsuccessfully appealed the bar admission committee’s
decision to the District of Columbia Court of Appeals.
Instead of then seeking review from the Supreme Court, each
plaintiff filed a lawsuit in the United States District Court for
the District of Columbia, seeking a declaration that the
District of Columbia Court of Appeals’ decision was
unconstitutional and an injunction allowing him to sit for the
bar exam. Id. at 468-69.
The Supreme Court determined that a district court has no
jurisdiction to hear a challenge to a state court’s final decision
in a bar admission matter. Id. at 482. The Court concluded
that plaintiffs “should have sought review of the District of
Columbia Court of Appeals’ judgments in this Court.” Id.
The Court, however, determined that a district court does
have jurisdiction to hear “a general challenge to the
constitutionality” of a bar admission rule. Id. at 483.
Therefore, a district court cannot reverse a state court’s final
decision to deny “a particular application for admission,” but
a district court may resolve a general challenge to the future
enforcement of an allegedly unconstitutional bar admission
14 Dubuc v. Mich. Board of
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No. 02-1897
3In making its decision, the Supreme Court in Feldman expressly did
not reach the question of whether the doctrine of res judicata forecloses
plaintiffs’ generalized attacks on the constitutionality of the bar admission
rules. Feldman, 460 U.S. at 487 -88.
rule. Id. at 484-85 (quoting Doe v. Pringle, 550 F.2d 596,
599 (10th Cir. 1976)).3
In this lawsuit, Dubuc has explicitly not challenged the
denial of his 1998 application. As Dubuc correctly
recognizes, his “prior licensing decision is history” and “[n]o
outcome in this lawsuit could or would reverse any prior state
court judgment.” With this lawsuit, Dubuc launches a general
attack on the constitutionality of the RCSBM’s rule that an
unsuccessful applicant must wait longer before reapplying if
the applicant sought a de novo hearing from the Board
regarding his first application. Dubuc also seeks injunctive
and declaratory relief prohibiting defendants from using First
Amendment activities as a basis for denying admission to the
Bar. Because Dubuc does not seek to have the district court
overturn the denial of his 1998 application, the Rooker-
Feldman doctrine is inapplicable to this lawsuit. See Edwards
v. Illinois Bd. of Admissions to Bar, 261 F.3d 723, 729 (7th
Cir. 2001) (“When the litigant is challenging the
constitutionality of a rule that was applied to him, but is not
asking to correct or revise the determination that he violated
the rule, Rooker-Feldman is no obstacle to the maintenance
of the suit.” (internal quotation marks omitted)).
The Seventh Circuit considered an analogous situation in
Buckley v. Illinois Judicial Inquiry Bd., 997 F.2d 224 (7th Cir.
1993). The Illinois Judicial Inquiry Board filed charges
against Robert Buckley, an Illinois state court justice, for
violating a state rule regulating the speech of candidates for
judicial office. Id. at 226. The Illinois Courts Commission
ruled that Buckley had violated the rule in his 1990 judicial
campaign, and according to the Illinois state constitution, the

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commission’s decision was final because Buckley had no
avenue for appeal within the state court system. Id.
Buckley filed suit in federal district court, not seeking to
overturn the final decision from the Illinois Courts
Commission, but instead seeking a declaratory judgment that
the state rule regulating the speech of judicial candidates is
unconstitutional. The Seventh Circuit held that:
Justice Buckley’s challenge to the constitutionality of
Illinois Supreme Court Rule 67(B)(1)(c) does not entail
a challenge to the ruling by the Illinois Courts
Commission that he violated the rule. It is true that if as
in Leaf v. Supreme Court, 979 F.2d 589 (7th Cir.1992),
Buckley were seeking not only to clear away the rule so
that he could run in future judicial elections unimpeded
by it but also to obtain relief against the discipline
imposed upon him, he would be in effect appealing from
the Illinois Courts Commission’s judgment (though that
would be only a part of what he was doing), which
Rooker-Feldman forbids him to do. But he is not asking
us to expunge the disciplinary finding or do anything else
to correct or revise the Commission’s judgment. He is
not, in short, asking for any relief of the kind an appellant
seeks – relief directed against a judgment. Of course that
judgment, which by virtue of Rooker-Feldman Justice
Buckley cannot attack in this suit, might by principles of
res judicata bar him from maintaining this suit. But res
judicata is a defense, not a limitation on jurisdiction.
Id. at 227.
As in Buckley, if Dubuc were seeking to obtain relief
against the denial of his 1998 application, instead of simply
seeking to clear away the allegedly unconstitutional rules so
that he can reapply to the Bar in the future unimpeded by
these rules, then Rooker-Feldman would apply. But Dubuc
is not asking the district court to expunge the denial of his
16 Dubuc v. Mich. Board of
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No. 02-1897
1998 application or do anything else to correct or revise
defendants’ denial of his 1998 application. Therefore,
Rooker-Feldman does not bar his lawsuit.
In support of their Rooker-Feldman argument, defendants
cite Patmon v. Michigan Supreme Court, where this court
held that the Rooker-Feldman doctrine barred an attorney’s
constitutional challenge to a state court’s decision to
temporarily suspend him from the practice of law. 224 F.3d
504, 510 (6th Cir. 2000). This court’s decision in Patmon,
however, is distinguishable from the present case because in
Patmon the plaintiff sought to have the district court, among
other things, declare that his rights had been violated, restore
his law license, and purge his disciplinary records. Id. at 507.
Dubuc does not seek a declaration that defendants violated his
rights with regard to the denial of his 1998 Bar application,
nor does he seek to have the denial of his 1998 application
overturned or purged. Instead, the relief he seeks relates only
to his rights with regard to reapplying for admission to the
Bar. Cf. Patmon, 224 F.3d at 506 n. 2 (“Although plaintiff’s
suspension has run its course, and he was eligible as of
April 6, 1998 to seek reinstatement, plaintiff has not done
so.”). There has been no state court judgment with regard to
his rights to reapply for admission to the Bar, and, therefore,
Dubuc is not seeking a review of any state court judgment in
contravention of the Rooker-Feldman doctrine.
D. Other grounds upon which to affirm
This lawsuit was filed a little more than two months before
the district court dismissed it sua sponte on immunity
grounds. Defendants had not filed a motion to dismiss on any
ground except venue, and the parties had not presented any
evidence to the district court. Defendants have not asserted
any other ground upon which to affirm the dismissal of this

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4Dubuc argues in his brief against granting defendants judicial
immunity in this case. The defendants, however, did not assert jud icial
immunity in their answers to the complaint or their briefs to this court. In
any event, Dubuc is correct that judicial immunity does not apply here
because defendants are not judges and do not act in a judicial capacity
when enforcing the Bar admission rules that D ubuc challenges in this
lawsuit. Supreme C ourt of Virginia v. Co nsum ers Union of the United
States, 446 U.S. 719 , 736 (1980) (holding that the chief justice of the
Virginia Supreme Co urt was not immune from a lawsuit seeking
declaratory and injunctive relief prohibiting the chief justice from
enforcing an allegedly unconstitutional rule regulating attorneys).
lawsuit against the individual defendants.4 As a general rule,
appellate courts do not consider any issue not passed upon
below. See Singleton v. Wulff, 428 U.S. 106, 119-20 (1976)
(criticizing the Eighth Circuit for addressing the merits of an
action that had been dismissed in an early stage of litigation
solely on standing grounds). We therefore leave for
resolution by the district court upon remand the issues of
claim and issue preclusion, constitutional standing, failure to
state a claim upon which relief can be granted, and any other
basis upon which this lawsuit may potentially be dismissed in
whole or part.
E. Preliminary injunction motion
Dubuc urges this court to consider the merits of his
preliminary injunction motion, which the district court denied
as moot. Because we reverse the district court’s decision
dismissing the claims against the individual defendants on
immunity grounds, we vacate the district court’s denial of
Dubuc’s preliminary injunction motion.
Absent extraordinary circumstances, however, the merits of
a preliminary injunction motion should be heard and ruled on
by the district court first. This court generally reviews a
district court’s decision to deny a motion for a preliminary
injunction for an abuse of discretion. Performance Unlimited,
Inc. v. Questar Publishers, Inc., 52 F.3d 1373, 1378 (6th Cir.
18 Dubuc v. Mich. Board of
Law Examiners et al.
No. 02-1897
1995). In determining whether a district court has abused its
discretion in denying a motion for a preliminary injunction,
this court reviews a district court’s factual findings for clear
error and its legal conclusions de novo. Id. Because the
district court dismissed as moot Dubuc’s motion for a
preliminary injunction before hearing any evidence or
argument as to the merits of the motion, the district court
made no factual or legal findings for this court to review.
Moreover, the district court did not exercise any discretion for
this court to review for abuse. We therefore leave for the
district court the initial resolution of Dubuc’s motion for a
preliminary injunction.
III.
For all these reasons, we affirm the district court’s
dismissal of the claims against the Board and the Bar, reverse
the district court’s dismissal of the claims against the
individual defendants on immunity grounds, vacate the
district court’s orders denying as moot Dubuc’s motion for a
preliminary injunction and defendants’ motion regarding
venue, and remand for further proceedings consistent with
this opinion.

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