Ziankovich v. Large

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 26, 2018
• Docket: 18-1016
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 26, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court YOURAS ZIANKOVICH,

Plaintiff - Appellant,

v. No. 18-1016 (D.C. No. 1:17-CV-02039-CMA-NYW) BRYON M. LARGE; JESSICA E. (D. Colo.) YATES,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT * _________________________________

Before HOLMES, O’BRIEN, and CARSON, Circuit Judges. _________________________________

Plaintiff Youras Ziankovich, an attorney licensed to practice in the State of

New York who is representing himself in this matter, appeals the district court’s

order dismissing his case without prejudice pursuant to Younger v. Harris, 401 U.S.

37 (1971). We vacate the order of dismissal and remand to the district court for

consideration of Plaintiff’s claim for declaratory judgment.

* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. I. BACKGROUND

As noted, Plaintiff is licensed to practice law in the State of New York. He

has legal offices in New York, Colorado, and Belarus. He has not been admitted to

practice in Colorado, but he practices immigration law before the U.S. District Court

for the District of Colorado, the Executive Office of Immigration Review, and the

Department of Homeland Security.

Defendant Jessica E. Yates is Colorado’s Attorney Regulation Counsel. 1 Her

responsibilities include supervising the Office of Attorney Regulation Counsel

(OARC). Defendant Bryon M. Large is an OARC attorney. The OARC’s functions

include investigating and disciplining attorneys for violating Colorado’s rules of

professional conduct. See C.R.C.P. 251.3(c)(3)-(c)(4), 251.10.

OARC filed an attorney discipline action against Plaintiff alleging he violated

Colorado’s rules of professional conduct. Plaintiff moved to dismiss the disciplinary

action, which was denied, as was his interlocutory appeal to the Colorado Supreme

Court.

Plaintiff filed the underlying federal suit seeking a declaratory judgment that

the defendants do not have jurisdiction to maintain an attorney disciplinary action

against him because he has never been licensed to practice law in Colorado and does

not practice law in Colorado state courts or agencies. Rather, he claims that he

practices only in federal courts and agencies. His amended complaint invokes federal

On July 9, 2018, Ms. Yates was substituted for the original Defendant James 1

C. Coyle under Federal Rule of Appellate Procedure 43(c)(2). 2 jurisdiction under 28 U.S.C. § 1331 (federal-question jurisdiction), 42 U.S.C. § 1983

(civil-rights violations), the Commerce Clause, and the First, Fifth, and Fourteenth

Amendments.

The defendants moved to dismiss for lack of subject-matter jurisdiction and

failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(1) & (6). The district court

held that Younger abstention was mandatory and dismissed the matter without

prejudice. Plaintiff then filed a motion to reconsider, which the district court denied.

While this appeal was pending, the Colorado Supreme Court concluded the

disciplinary action by suspending Plaintiff “from representing clients in Colorado for

one year and one day, with three months to be served and the remainder to be stayed

upon the successful conclusion of a two-year period of probation, including the

requirement that he submit to practice and trust account monitoring.” People v.

Ziankovich, No. 17PDJ037, 2018 WL 6061422, at *16 (Colo. O.P.D.J. June 20,

2018).

II. DISCUSSION

Federal courts must abstain under Younger when three conditions are met:

(1) “[t]here is an ongoing state proceeding,” (2) “[t]he state court provides an

adequate forum for the claims raised in the federal complaint,” and (3) “[t]he state

proceedings ‘involve important state interests, matters which traditionally look to

state law for their resolution or implicate separately articulated state policies.’”

Columbian Fin. Corp. v. Stork, 811 F.3d 390, 394–95 (10th Cir. 2016) (quoting

Amanatullah v. Colo. Bd. of Med. Exam’rs, 187 F.3d 1160, 1163 (10th Cir. 1999)).

3 Notably, we have not yet decided whether termination of a state proceeding—a

circumstance that most readily impacts the first Younger prong—renders the Younger

issue moot. See id. at 395 (declining to decide the issue); id. at 395 n.3 (collecting

cases holding that a state proceeding remains ongoing for Younger purposes so long

as it was “pending when the federal suit was filed”); id. at 395 n.4 (collecting cases

treating the Younger issue as moot). But “[r]egardless of whether the Younger issue

is moot,” id. at 395, the Colorado Supreme Court’s ruling means that Plaintiff can

now bring his claim for a declaratory judgment that the defendants did not have

jurisdiction to maintain an attorney disciplinary action against him.

Consider our options. On the one hand, “if we were to reverse the dismissal,”

Plaintiff could (obviously enough) renew his already-filed claim before the district

court. Id. On the other hand, “if we were to affirm the dismissal,” Plaintiff could

immediately refile in any event “because the dismissal was without prejudice.” Id.

“In these circumstances, we vacate dismissal . . . and remand these claims to the

district court so that it can reconsider them without the need to abstain now that the

state proceedings have ended.” Id. In so doing, we stress that we express no opinion

on the merits of Plaintiff’s claim.

III. CONCLUSION

Plaintiff’s disciplinary proceedings have ended, and the district court thus no

longer has a need to abstain under Younger. See id. We therefore vacate the district

4 court’s dismissal of Plaintiff’s claim for a declaratory judgment and remand to the

district court so that it may consider Plaintiff’s claim anew.

Entered for the Court

Joel M. Carson III Circuit Judge