NOT PRECEDENTIAL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) ____________
OPINION * ___________
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PHIPPS, Circuit Judge.
This appeal concerns an exceptionally contentious child custody case. Two ex-
spouses, 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.
2 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
3 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
4 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
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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) ____________
OPINION * ___________
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PHIPPS, Circuit Judge.
This appeal concerns an exceptionally contentious child custody case. Two ex-
spouses, 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.
2 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
3 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
4 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
5 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.