Michelle Gilbank v. Wood County Department of Human Services

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 22-1037

MICHELLE R. GILBANK,

Plaintiff-Appellant,

v.

WOOD COUNTY DEPARTMENT OF HUMAN SERVICES, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Western District of Wisconsin.

No. 3:20-cv-00601-jdp — James D. Peterson, Chief Judge.

____________________

ARGUED FEBRUARY 6, 2024 — DECIDED AUGUST 1, 2024

____________________

Before SYKES, Chief Judge, and EASTERBROOK, ROVNER,

HAMILTON, BRENNAN, SCUDDER, ST. EVE, KIRSCH, JACKSON-

AKIWUMI, LEE, and PRYOR, Circuit Judges.*

* Circuit Judges Kolar and Maldonado did not participate in consider-

ation of this case. Senior Circuit Judge Hamilton participated in the en

banc hearing as a member of the panel originally assigned to this case,

along with Judges Kirsch and Pryor. See 28 U.S.C. § 46(c).

2 No. 22-1037

HAMILTON, Circuit Judge. At the center of this federal case

is a child-protection case in a Wisconsin state court. After los-

ing custody of her daughter in state-court proceedings and

regaining custody a year later, plaintiff Michelle Gilbank filed

this lawsuit in federal court. She alleges that many officials

involved in the state-court proceedings violated her federal

constitutional rights. The district court granted summary

judgment for all defendants, finding that some of Gilbank’s

claims were barred by the Rooker-Feldman doctrine and that all

other claims failed on the merits. Gilbank’s appeal was ar-

gued to a panel. We then decided under Circuit Rule 40(e) to

hear the case en banc. The full court heard argument on Feb-

ruary 6, 2024. 1

We offer this roadmap for the three opinions and shifting

majorities. First, a majority of the en banc court has voted to

affirm the judgment of the district court dismissing this ac-

tion. That will be the mandate of the court. Second, all mem-

bers of the en banc court agree to affirm summary judgment

for defendants on the merits of Gilbank’s claims for alleged

injuries not caused by the state courts’ judgments, as ex-

plained in Part VIII.

The picture on the Rooker-Feldman issue is more complex.

Five of the eleven judges participating (Judges Rovner, Ham-

ilton, Brennan, Jackson-Akiwumi, and Pryor) join all of this

opinion. A majority of the en banc court, those five judges

plus Judge Easterbrook, joins Parts I—III, V, VI, and VIII of

1 After plaintiff Gilbank briefed her appeal pro se, we recruited coun-

sel for her. Attorneys Joseph S. Diedrich and Kirsten Adrienne Atanasoff

and the firm of Husch Blackwell, LLP have ably represented plaintiff Gil-

bank before the panel and the en banc court. They have the thanks of the

court.

No. 22-1037 3

this opinion, so those portions of this opinion are an en banc

majority opinion. In these sections, we reject Gilbank’s asser-

tion that she lacked a reasonable opportunity to litigate her

claims in state court, and we eliminate the “fraud exception”

to the Rooker-Feldman doctrine.

A different majority of the court, including Judge Easter-

brook (with Chief Judge Sykes and Judges Scudder, St. Eve,

Kirsch, and Lee), joins Part I of Judge Kirsch’s opinion, mak-

ing that portion also an en banc majority opinion. That section

holds that jurisdiction over Gilbank’s claims for injuries alleg-

edly inflicted by the state court’s judgments is not barred by

the Rooker-Feldman doctrine because they do not seek a federal

district court’s review and rejection of the state court’s judg-

ments. Part IV of this opinion dissents from Part I of Judge

Kirsch’s majority opinion on this issue. Part VII of this opin-

ion, which responds to Judge Easterbrook’s concurring opin-

ion, is also joined by only five judges.

All judges agree that we should no longer rely on the

“inextricably intertwined” language that has contributed to

confusion in applying the Rooker-Feldman doctrine. All judges

also agree that the Rooker-Feldman doctrine, whatever its

proper scope, should not recognize what we describe below

as a “fraud exception.” And all members of the en banc court

agree that our different understandings of the Rooker-Feldman

doctrine may help show a need for the Supreme Court to

clarify application of the doctrine, especially in the types of

cases where the lower courts often confront it, including

child-custody and mortgage-foreclosure cases.

4 No. 22-1037

I. Factual Background & Procedural History

A. Plaintiff’s Early Encounters with Police and Child Welfare

Officials

Because we are reviewing a grant of summary judgment,

we present the facts in the light most favorable to Gilbank as

the non-moving party, giving her the benefit of the doubt

when it comes to conflicting evidence and reasonable infer-

ences that can be drawn from the evidence. E.g., Sullivan v.

Flora, Inc., 63 F.4th 1130, 1141 (7th Cir. 2023). Plaintiff Michelle

Gilbank had sole custody of her young daughter T.E.H. until

the girl’s father, Ian Hoyle, was granted supervised visitation

rights in November 2017. T.E.H. was three years old at the

time. The relationship between Gilbank and Hoyle was

fraught. Hoyle had a prior conviction for first-degree sexual

assault of a six-year-old girl and frequently drank and used

drugs. Gilbank too had a history of drug use, particularly

methamphetamine. Nevertheless, in February or March 2018,

when the home where they lived went into foreclosure, Gil-

bank and T.E.H. moved into Hoyle’s apartment.

On June 29, 2018, an anonymous caller contacted the

Wood County Department of Human Services about Gilbank

and T.E.H. The weather was hot, and they appeared to be liv-

ing in Hoyle’s garage, which lacked air conditioning. Defend-

ant Marshfield Police Department sent two officers, one of

whom was defendant Detective Derek Iverson, to respond to

the call. The officers were joined by a social worker from Hu-

man Services, defendant Theresa Heinzen-Janz. The officers

and social worker spoke with Gilbank and observed that

T.E.H. appeared well cared for and in good health. Gilbank

expressed concern about living with Hoyle. Heinzen-Janz

agreed to help, scheduling an appointment for July 3.

No. 22-1037 5

Before that appointment, Heinzen-Janz reviewed Gil-

bank’s history with Human Services. She learned that Gilbank

had a history of drug problems and had a pending charge for

methamphetamine possession from August 2017. Just before

the appointment, Heinzen-Janz and Iverson met with Hoyle,

who told them that he was concerned about Gilbank’s drug

use and that he wanted her to move out.

At the meeting on July 3, Heinzen-Janz gave Gilbank con-

tact information for local housing resources. Detective Iver-

son and Heinzen-Janz also pressed Gilbank about her drug

use. Gilbank acknowledged her history with methampheta-

mine but denied having used the drug for a few weeks. Iver-

son asked Gilbank to take a drug test. She agreed to provide

a urine sample, which came back positive for methampheta-

mine. When Heinzen-Janz and Iverson shared the results with

her, Gilbank insisted the test results were wrong. She later ad-

mitted to having smoked methamphetamine “residue” just

two days before the test.

B. Plaintiff is Arrested and Loses Custody

August 21, 2018 was a pivotal day for this case. Hoyle

asked Gilbank for a ride to work. After Gilbank and T.E.H.

dropped him off, an officer pulled Gilbank over for driving

with a suspended license. A drug-sniffing dog alerted to the

presence of a controlled substance. While officers searched

the vehicle, Gilbank called Hoyle and asked him to come to

the scene and care for T.E.H. The search uncovered drug par-

aphernalia and 0.7 grams of methamphetamine. Gilbank was

arrested. Her daughter left with Hoyle.

Gilbank was taken to the Marshfield Police Department

and interviewed by Detective Iverson and Heinzen-Janz.

6 No. 22-1037

After Iverson gave her Miranda warnings, Gilbank said that

she did not want to answer questions without a lawyer pre-

sent. Iverson said that he would not ask Gilbank about the

drugs and paraphernalia found in her vehicle, but he and

Heinzen-Janz both told Gilbank that they needed to have a

frank conversation about her drug use to the extent it affected

T.E.H. Without an honest dialogue, they said, Heinzen-Janz

could not create a safety plan to allow T.E.H. to remain with

her.

Gilbank decided to talk. She said that she never used

methamphetamine around T.E.H. and that she was making

progress. After Detective Iverson questioned her truthfulness,

Gilbank became defiant—claiming she did not have a prob-

lem with methamphetamine—and refused to talk any further.

Heinzen-Janz then told Gilbank that the county would be tak-

ing temporary physical custody of T.E.H. and placing her

with Hoyle, that a hearing would be held in a day or two, and

that Heinzen-Janz would call Gilbank to tell her the date and

time of the hearing. Gilbank was booked and taken to the

Wood County Jail.

The next day, August 22, Heinzen-Janz filed two docu-

ments in the Wood County Juvenile Court: a request for tem-

porary physical custody of T.E.H. and a “CHIPS” petition

(“Child in Need of Protective Services”) under Wis. Stat.

§ 48.13(10) (child’s physical health seriously endangered).

The request detailed how Gilbank had been taken into cus-

tody, refused to acknowledge her addiction, and refused to

cooperate with safety planning. The request recommended

that T.E.H. be placed temporarily with Hoyle. The petition

echoed the request and noted that Gilbank’s association with

methamphetamine users and dealers, who had “regular

No. 22-1037 7

access” to T.E.H., put the child “at repeated risk for imminent

harm”—a danger that Gilbank “failed to recognize.”

The state court scheduled a temporary physical custody

hearing for the next day, August 23. Heinzen-Janz called the

jail to give Gilbank the details. Jail staff said they would notify

Gilbank of the hearing. Gilbank had already been released,

though, so despite Heinzen-Janz’s efforts, Gilbank did not re-

ceive notice of the hearing. Gilbank happened to go to the

courthouse that day to inquire about the 48-hour hearing,

only to learn that it had already been held earlier that day

without her.

C. State-Court Proceedings

At the hearing on August 23, 2018, the juvenile court ad-

dressed temporary physical custody. The child’s father

(Hoyle), Heinzen-Janz, an assistant district attorney, and a

guardian ad litem appointed to represent T.E.H. were present.

Gilbank was not. The court found that the information in the

temporary custody request established probable cause to be-

lieve that Gilbank was unable to provide adequate care and

supervision of T.E.H. or was neglecting her, so the court or-

dered T.E.H. be placed with Hoyle until the next hearing.

The next day, after learning of the order, Gilbank wrote a

letter to the presiding judge contesting the court’s temporary

physical custody order. She followed up by filing a motion to

dismiss. Gilbank objected to the order on several grounds, in-

cluding that she had not received notice of the hearing. Gil-

bank also moved to reopen the probable cause hearing. The

court denied both motions but noted that Gilbank was “wel-

come” to use the appeals processes of the Wisconsin courts

8 No. 22-1037

“any time that that’s appropriate.” A CHIPS hearing was

scheduled for September 25.

Gilbank attended the September 25 CHIPS hearing and

was represented by an attorney. She did not testify. Detective

Iverson and social worker Heinzen-Janz testified to the events

leading to Gilbank’s temporary loss of custody, ending with

her arrest on August 21, 2018. Heinzen-Janz also testified that

Gilbank had admitted using methamphetamine as recently as

August 23, the day of the temporary custody hearing. The

guardian ad litem recommended that T.E.H. stay with Hoyle.

The court found these witnesses credible. The court found

that Gilbank suffered from “a very serious methamphetamine

addiction,” that necessary care for T.E.H. would require “so-

ber parenting,” and that clear and convincing evidence

showed that T.E.H. was a child in need of protection and ser-

vices. The court ordered supervision for a period not to ex-

ceed one year. Pending a follow-up hearing to be held on Oc-

tober 29, the court ordered that T.E.H. remain with Hoyle.

At the October 29 hearing, Heinzen-Janz testified that

T.E.H. should remain with Hoyle because of Gilbank’s contin-

uing drug use. Until the extent of Gilbank’s methampheta-

mine use was clear, Heinzen-Janz said, she could not establish

a plan for safely allowing Gilbank to have custody of T.E.H.

Still represented by counsel, Gilbank testified at that hearing.

She testified that she had not used methamphetamine for sev-

eral months. Finding that Gilbank was not forthright about

her methamphetamine addiction and that T.E.H. could not be

placed safely with her, the court ordered continued place-

ment with Hoyle.

No. 22-1037 9

Eleven months later, on September 9, 2019, the court held

a closure hearing on the CHIPS petition. By then, a separate

case in family court was addressing custody and placement

of T.E.H., so all parties, including Gilbank, agreed to close the

CHIPS proceedings. The court agreed. In March 2020, Gilbank

regained sole custody of T.E.H. in that separate proceeding.

There were no further relevant proceedings in state court. 2

D. This Federal Lawsuit

Proceeding without a lawyer, Gilbank filed this federal

lawsuit in June 2020, naming as defendants nearly everyone

involved from the first welfare check in June 2018 to the con-

clusion of the CHIPS proceedings—from state-court judges to

social workers to police officers. The complaint alleged nu-

merous constitutional claims on behalf of Gilbank and T.E.H.,

primarily under 42 U.S.C. § 1983, as well as conspiracy claims

under 42 U.S.C. §§ 1985 and 1986. In December 2020, the dis-

trict court dismissed T.E.H. as a plaintiff and dismissed some

of Gilbank’s claims. Gilbank v. Wood County Dep’t of Human

Servs., 2020 WL 7364511, at *1, *5–6 (W.D. Wis. Dec. 15, 2020).

Plaintiff also withdrew several more claims during discovery

and later briefing. 3

2 Gilbank’s Amended Complaint in federal court alleged that Hoyle

admitted having touched T.E.H.’s genitals daily and that his admission

led to the March 2020 decision granting Gilbank sole custody. However,

there was no finding, admission, or even admissible evidence in our rec-

ord of sexual assault or other wrongdoing. Still, Hoyle’s history of sexual

abuse of another child and Gilbank’s methamphetamine use show starkly

how difficult such decisions about child custody can be.

3 The district court dismissed as untimely all Section 1986 conspiracy

claims against individual social workers. Gilbank, 2020 WL 7364511, at *5–

6. The parties debate whether the district court also dismissed plaintiff’s

10 No. 22-1037

By the time the district court ruled on cross-motions for

summary judgment, the remaining defendants were the

Marshfield Police Department, Detective Iverson, and four

Wood County social workers, including Heinzen-Janz. The

remaining claims were: (1) unreasonable search by compel-

ling plaintiff to provide a urine sample; (2) unreasonable sei-

zure and violations of substantive due process by removing

T.E.H. from plaintiff’s custody; (3) denial of procedural due

process by continuing to interrogate plaintiff after she had re-

quested an attorney; (4) unreasonable seizure by evicting

plaintiff from her home; (5) violations of substantive due pro-

cess by interfering with family integrity; (6) violations of 42

U.S.C. § 1985 by conspiring to remove T.E.H. from plaintiff’s

custody; (7) a Monell claim against the Marshfield Police De-

partment for enforcing policies and practices that led to the

alleged constitutional violations; (8) denial of procedural due

process by failing to provide plaintiff with notice prior to the

temporary physical custody hearing on August 23, 2018;

(9) denial of procedural due process by making fraudulent

statements in the CHIPS proceedings; and (10) violations of

state statutes governing protective custody.

The district court concluded that plaintiff’s principal

claims were based on injuries caused by the state court’s or-

ders in the CHIPS proceedings and were therefore barred by

the Rooker-Feldman jurisdictional doctrine. Gilbank v. Marsh-

field Police Dep’t, 2021 WL 5865453, *5–6 (W.D. Wis. Dec. 10,

Section 1985 claims as untimely. We do not read the court’s order as dis-

missing those claims. The dismissal order focused almost entirely on Sec-

tion 1986. Since the court ultimately found no underlying constitutional

violations within its jurisdiction, it may have seen no need to address the

Section 1985 claims.

No. 22-1037 11

2021). Plaintiff argued, however, that “some of her injuries oc-

curred prior to, and exist independently of, the state court’s

custody decision.” Id. at *6. Plaintiff contended that three of

her claims—unreasonable search via urinalysis, interrogation

without an attorney, and lack of notice—were not subject to

Rooker-Feldman because they were based on those prior, inde-

pendent injuries. The district court granted summary judg-

ment for defendants on the merits of those three claims. Id. at

*6–7. The court found that plaintiff had consented to the uri-

nalysis, that her Fifth Amendment claim failed because none

of her statements were ever used against her in a criminal pro-

ceeding, and that her due process claims were barred by issue

preclusion. The district court also granted summary judg-

ment for defendants on Gilbank’s other due process claim,

finding that any failures to abide by state statutory require-

ments were insufficient to state a claim for a federal due pro-

cess violation. Id. at *7.

II. Standards of Review

Because the Rooker-Feldman doctrine operates as a “juris-

dictional bar,” Andrade v. City of Hammond, 9 F.4th 947, 948

(7th Cir. 2021), we must consider first whether the district

court had subject-matter jurisdiction before reviewing the

merits of any claim. Swartz v. Heartland Equine Rescue, 940 F.3d

387, 390 (7th Cir. 2019); see also Sinochem Int’l Co. Ltd. v. Ma-

laysia Int’l Shipping Corp., 549 U.S. 422, 431 (2007) (“Without

jurisdiction the court cannot proceed at all in any cause ….”),

quoting Steel Co. v. Citizens for a Better Environment, 523 U.S.

83, 94 (1998). We review de novo both a district court’s con-

clusion that it lacks subject-matter jurisdiction and its grant of

summary judgment on the merits of claims within its jurisdic-

tion. Andrade, 9 F.4th at 949 (jurisdiction); Pierner-Lytge v.

12 No. 22-1037

Hobbs, 60 F.4th 1039, 1043 (7th Cir. 2023) (summary judg-

ment). Rooker-Feldman is properly applied on a claim-by-claim

basis. See District of Columbia Court of Appeals v. Feldman, 460

U.S. 462, 486–87 (1983) (concluding that the district court

lacked jurisdiction over some of plaintiffs’ claims but not oth-

ers); Crawford v. Countrywide Home Loans, Inc., 647 F.3d 642,

646–47 (7th Cir. 2011) (same); Behr v. Campbell, 8 F.4th 1206,

1213 (11th Cir. 2021); In re Isaacs, 895 F.3d 904, 912 (6th Cir.

2018); Henrichs v. Valley View Development, 474 F.3d 609, 613

(9th Cir. 2007).

III. The Rooker-Feldman Doctrine

From the earliest days of this federal Republic, the parallel

federal and state court systems have offered opportunities for

litigants disappointed in one court system to seek a better re-

sult in the other. See VanderKodde v. Mary Jane M. Elliott, P.C.,

951 F.3d 397, 408 (6th Cir. 2020) (Sutton, J., concurring) (“In

our legal system of overlapping state and federal jurisdiction,

dueling resolutions of claims and issues are a national litiga-

tion reality.”) For just as long, Congress and state and federal

judges have debated and adjusted the boundaries of appro-

priate roles for state and federal courts. The Rooker-Feldman

doctrine has emerged from those debates.

A. Basics of the Rooker-Feldman Doctrine

Under 28 U.S.C. § 1257(a), only the Supreme Court is

“vested with appellate authority over state courts.” Sykes v.

Cook County Circuit Court Probate Div., 837 F.3d 736, 741 (7th

Cir. 2016). The Rooker-Feldman doctrine recognizes that Con-

gress has not “authorize[d] district courts to exercise appel-

late jurisdiction over state-court judgments.” Verizon

No. 22-1037 13

Maryland, Inc. v. Public Serv. Comm’n of Maryland, 535 U.S. 635,

644 n.3 (2002), citing 28 U.S.C. § 1257(a).

The doctrine takes its name from Rooker v. Fidelity Trust

Co., 263 U.S. 413 (1923), and District of Columbia Court of Ap-

peals v. Feldman, 460 U.S. 462 (1983). Our application of Rooker-

Feldman today is guided by the Supreme Court’s authoritative

restatement of the doctrine in Exxon Mobil Corp. v. Saudi Basic

Industries Corp., 544 U.S. 280 (2005).

Exxon Mobil emphasized the “limited circumstances”

where Rooker-Feldman should apply, cautioning that the

doctrine has no place “overriding Congress’ conferral of

federal-court jurisdiction concurrent” with the jurisdiction of

state courts or “superseding the ordinary application of

preclusion law….” 544 U.S. at 283, 291. Our application of

Rooker-Feldman must neither interfere with our “‘virtually

unflagging obligation’ to exercise the jurisdiction that

Congress” has granted, Huon v. Johnson & Bell, Ltd., 657 F.3d

641, 645 (7th Cir. 2011), quoting Colorado River Water

Conservation Dist. v. United States, 424 U.S. 800, 817 (1976), nor

swallow up issues that are properly resolved under

abstention or claim- and issue-preclusion doctrines. In short,

Rooker-Feldman must stay in its lane, allowing comity and

abstention doctrines to do the work, when necessary, “to stay

or dismiss the federal action in favor of the state-court

litigation,” and using preclusion principles to prevent a party

from relitigating “in federal court a matter previously

litigated in state court.” Exxon Mobil, 544 U.S. at 292–93.

Rooker and Feldman are the only two cases in which the Su-

preme Court itself has actually applied the doctrine to reject

federal jurisdiction. Given the tendency of disappointed liti-

gants to seek new forums to vindicate their claims or

14 No. 22-1037

defenses, though, the doctrine has been invoked in tens of

thousands of circuit and district court decisions since Exxon

Mobil. Along with abstention and jurisdictional doctrines, it is

part of the arsenal of federalism doctrines that circuit and dis-

trict judges must consider on a regular basis.

Exxon Mobil teaches that district courts should disclaim ju-

risdiction only in “cases brought by state-court losers com-

plaining of injuries caused by state-court judgments rendered

before the district court proceedings commenced and inviting

district court review and rejection of those judgments.” 544

U.S. at 284. Phrased that way, the doctrine blocks federal ju-

risdiction when four elements are present. First, the federal

plaintiff must have been a state-court loser. Second, the state-

court judgment must have become final before the federal

proceedings began. Third, the state-court judgment must have

caused the alleged injury underlying the federal claim. Fourth,

the claim must invite the federal district court to review and

reject the state-court judgment.

Our case law has added to the four elements in Exxon Mo-

bil a fifth that the Supreme Court has not had occasion to ad-

dress directly. Rooker-Feldman does not apply to bar jurisdic-

tion over a plaintiff’s federal claim if she did not have a rea-

sonable opportunity to raise her federal issues in the state

courts. Andrade, 9 F.4th at 950, quoting Jakupovic, 850 F.3d at

902.

The first two Exxon Mobil elements are satisfied here.

Plaintiff lost in state court, and the state-court judgments were

final before she brought this action in federal court.

No. 22-1037 15

B. The Third Element—Injured by a State-Court Judgment

The third element of the Rooker-Feldman doctrine asks

whether the state-court judgments caused the alleged injury

underlying the claim. Our case law has developed useful

principles for dealing with the injury element. Most basic, as

Exxon Mobil teaches, Rooker-Feldman bars claims where only

the state-court judgment itself caused the alleged injury un-

derlying the claim. 544 U.S. at 284. See also Swartz, 940 F.3d at

392 (Rooker-Feldman barred claims where only “alleged in-

jury,” the seizure of plaintiffs’ livestock, “was directly caused

by the state court’s orders”); Jakupovic v. Curran, 850 F.3d 898,

903–04 (7th Cir. 2017) (Rooker-Feldman barred claims where

defendants simply “executed the state court’s bond condition

and order”); Kelley v. Med-1 Solutions, LLC, 548 F.3d 600, 605

(7th Cir. 2008) (Rooker-Feldman barred claims where defend-

ants could have obtained sought-after attorney fees only by

award of state court).

On the other hand, claims based on injuries that are “inde-

pendent” of the state-court judgment (i.e., injuries that were

not caused by that judgment) are not barred. See Exxon Mobil,

544 U.S. at 293 (“If a federal plaintiff ‘present[s] some inde-

pendent claim, albeit one that denies a legal conclusion that a

state court has reached in a case to which he was a party …,

then there is jurisdiction and state law determines whether

the defendant prevails under principles of preclusion.’”),

quoting GASH Assocs. v. Village of Rosemont, 995 F.2d 726, 728

(7th Cir. 1993). Where, for example, an injury was complete

before the state-court judgment was rendered, the judgment

could not have caused the injury, so a claim based on that in-

jury is independent. See Andrade, 9 F.4th at 948, 950–51 (claims

not barred where challenged conduct, an adverse

16 No. 22-1037

administrative determination regarding rental property, “oc-

curred before any judicial involvement”); Iqbal v. Patel, 780

F.3d 728, 730 (7th Cir. 2015) (claims not barred because chal-

lenged racketeering enterprise “predate[d] the state litigation

and caused injury independently of it”).

In another common pattern where Rooker-Feldman does

not apply, the federal plaintiff was also a plaintiff in state

court, lost in a case seeking relief for injuries inflicted by the

state-court defendant, and wants to relitigate the dispute in

federal court. Exxon Mobil said what this circuit has long made

clear: Rooker-Feldman does not bar federal jurisdiction in such

a case. Doctrines of claim- and issue-preclusion will often ap-

ply to bar relitigation, see 544 U.S. at 293, quoting GASH As-

socs., 995 F.2d at 728, but there is no jurisdictional bar. 4

In short, Exxon Mobil’s injury element hinges on whether

the federal claim alleges an injury “caused by the state court

judgment” or “an independent prior injury that the state court

failed to remedy.” Sykes, 837 F.3d at 742. We now apply this

test to plaintiff’s claims in this case. 5

4 For other recent cases in this circuit addressing Rooker-Feldman, see

Jakupovic, 850 F.3d at 902–04; Sykes, 837 F.3d at 741–43; Kelley, 548 F.3d at

603–06; Taylor v. Fed. Nat’l Mortg. Ass’n, 374 F.3d 529, 532–35 (7th Cir.

2004); Long v. Shorebank Dev. Corp., 182 F.3d 548, 554–59 (7th Cir. 1999);

Centres, Inc. v. Town of Brookfield, 148 F.3d 699, 701–03 (7th Cir. 1998); Ka-

milewicz v. Bank of Boston Corp., 92 F.3d 506, 509–12 (7th Cir. 1996); Young

v. Murphy, 90 F.3d 1225, 1230–33 (7th Cir. 1996); Garry v. Geils, 82 F.3d 1362,

1364–70 (7th Cir. 1996) (Rooker-Feldman does not apply where injury exists

“apart from the loss in state court”); Homola v. McNamara, 59 F.3d 647, 650

(7th Cir. 1995); GASH Assocs., 995 F.2d at 729.

5 In line with many of our cases, Sykes referred to this analysis as the

“‘inextricably intertwined’ determination.” 837 F.3d at 742. This “inextri-

cably intertwined” language appeared in Feldman: federal claims are

No. 22-1037 17

1. Claims Alleging Injuries from State-Court Judgments

Plaintiff Gilbank’s central claims allege injuries inflicted

by the state-court judgments taking away custody of T.E.H.

The only injury plaintiff claims to have suffered after the tem-

porary physical custody hearing held on August 23, 2018 was

being deprived of custody of T.E.H. pursuant to the state

court’s orders. We appreciate how serious that injury may

have been. State courts have in their hands our lives, liberties,

and livelihoods, as well as our property, dignity, and reputa-

tions. In cases like this, they have our families in their hands.

Some of their decisions are incorrect, as are some federal-

court decisions. In a much, much higher proportion of cases,

inextricably intertwined with the state court’s judgment where the federal

court “is in essence being called upon to review the state court decision.”

460 U.S. at 482 n.16 & 486–87. The phrase has been frequently criticized.

E.g., Andrade, 9 F.4th at 954 (Sykes, C.J., concurring) (suggesting that our

“continued recitation of the inextricably intertwined test isn’t just harm-

less gloss” on the post-Exxon Mobil doctrine and arguing that we should

“avoid the ‘inextricably intertwined’ framing”); Behr v. Campbell, 8 F.4th

1206, 1211 (11th Cir. 2021) (placing the phrase “at the root of the many

mistaken Rooker-Feldman dismissals”); VanderKodde v. Mary Jane M. Elliott,

P.C., 951 F.3d 397, 406 (6th Cir. 2020) (Sutton, J., concurring) (calling the

phrase “a prolific source of controversy”); Milchtein v. Chisholm, 880 F.3d

895, 898 (7th Cir. 2018) (“[T]he phrase ‘inextricably intertwined’ … should

not be used as a ground of decision.”). We agree that it is difficult to dis-

cern a “bright line that separates” the “inextricably intertwined” from the

“not so intertwined,” see Ritter v. Ross, 992 F.2d 750, 754 (7th Cir. 1993),

and courts may ponder the imponderable by asking whether a claim is

intertwined, “‘inextricably’ or extricably,” with a state-court judgment,

Richardson v. Koch Law Firm, P.C., 768 F.3d 732, 734 (7th Cir. 2014). The

Supreme Court has never explicitly discarded the phrase, but the Court

did not use it in Exxon Mobil and has not otherwise explained it. All judges

agree here that the “inextricably intertwined” language is not useful in

analyzing questions under Rooker-Feldman.

18 No. 22-1037

though, losing parties believe the courts have erred. See Homola

v. McNamara, 59 F.3d 647, 648 (7th Cir. 1995).

The high stakes and the possibility of errors, even egre-

gious errors, do not affect application of the Rooker-Feldman

doctrine. The very starting point for the analysis is the as-

sumption that a state-court judgment was wrong and injured

the federal plaintiff. See Rooker, 263 U.S. at 415–16 (assuming

state court erred); Lennon v. City of Carmel, 865 F.3d 503, 506

(7th Cir. 2017) (“There is no exception for egregious error.”

(citing Kelley, 548 F.3d at 603)).

Because plaintiff’s injury in the loss of custody was “effec-

tuated” only by the state court’s temporary and longer-term

orders on August 23 and October 29, 2018, respectively, those

claims based solely on that injury satisfy the third Exxon Mobil

element. See Swartz, 940 F.3d at 391. These claims include the

alleged violations of: (1) procedural due process for want of

notice before the August 23 hearing; (2) state statutes govern-

ing protective custody; (3) substantive due process by inter-

fering with family integrity after the court’s temporary phys-

ical custody order; and (4) procedural due process by making

fraudulent statements in state courts in the CHIPS petition

and later proceedings.

Plaintiff’s procedural due process claim, alleging that she

did not receive notice of the temporary physical custody hear-

ing, satisfies the third element because the failure of notice

would have been harmless if the August 23 hearing had gone

her way. Her temporary loss of custody of T.E.H. arose from

a state-court order. That claimed injury satisfies the third

Exxon Mobil element of the Rooker-Feldman doctrine. See 544

U.S. at 284. So too with any alleged violations of state statutes.

The only injury these claims allege “was effectuated by” the

No. 22-1037 19

state court’s orders. See Swartz, 940 F.3d at 391. Likewise,

plaintiff’s substantive due process claim—interference with

family integrity—alleges injury only by the state-court judg-

ments that deprived her of custody of her daughter. On these

claims, we move on to the fourth Exxon Mobil element in Part

IV.

2. Injuries Complete Before State-Court Judgments

Rooker-Feldman does not apply to plaintiff’s other claims

because they assert injuries that were complete prior to the

state court’s temporary physical custody order of August 23,

2018. Those claims do not satisfy the third Exxon Mobil

element. For example, any injury plaintiff suffered when she

provided a urine sample on July 3 occurred before the state-

court proceedings began. The same is true of any injuries

plaintiff suffered by being interrogated without an attorney

and evicted from Hoyle’s apartment on August 21. Likewise,

to the extent that plaintiff’s substantive due process claim

alleges interference with family integrity before the state

court’s temporary physical custody order of August 23,

Rooker-Feldman does not bar the claim.

Plaintiff’s Fourth Amendment and substantive due pro-

cess claims relating to the removal of T.E.H. on August 21 in-

volve one extra twist. The state court later approved the initial

removal when it found probable cause on August 23. These

claims might therefore seem to invite “review and rejection”

of the state court’s finding. But plaintiff’s injuries flowing

from T.E.H.’s removal began the moment she no longer had

custody of her daughter. Any injuries sustained from August

21 until the court order two days later were not caused by the

state court’s order. So even if these claims question “a legal

conclusion” that the state court reached later, the claims are

20 No. 22-1037

for Rooker-Feldman purposes still “independent” of the state

court’s August 23 judgment. See Exxon Mobil, 544 U.S. at 293,

quoting GASH Assocs., 995 F.2d at 728. As we explain below

in Part VIII, all judges agree that these claims fail on the merits

for other reasons. But the fact that the injuries preceded the

state court’s judgments means that these claims do not satisfy

the third element under Exxon Mobil, so jurisdiction over

these claims is not blocked by Rooker-Feldman. See id.

Finally on this topic, because jurisdiction is proper over

these alleged constitutional violations, plaintiff’s Monell and

conspiracy claims, which rely on these same alleged viola-

tions, are likewise not barred by Rooker-Feldman.

IV. The Controversial Fourth Element: “Review and Reject” the

State Court Judgment

The fourth element under Exxon Mobil is that the federal

claim must invite “review and rejection” of the state court

judgments in question. 544 U.S. at 284. That element of the

Rooker-Feldman doctrine divides this court. I believe that

plaintiff’s claims for damages for injuries inflicted by state

court judgments invite “review and rejection” of those judg-

ments, so that Rooker-Feldman bars jurisdiction here. But a ma-

jority of the en banc court disagrees in Judge Kirsch’s opinion,

as joined in part by Judge Easterbrook. This Part IV should

thus be read as a dissent from Part I of Judge Kirsch’s opinion.

Among the three opinions in this case, no one disputes

that plaintiff Gilbank was a state-court loser (Exxon Mobil’s

first factor), that the state-court judgments were final before

she filed her federal case (second), and that she claims that the

state-court judgments injured her (third). The majority takes

the approach, though, that plaintiff’s claims based on injuries

No. 22-1037 21

inflicted by the state-court judgments do not invite a federal

court to “review and reject” those state-court judgments. So

long as plaintiff is seeking only monetary damages rather

than a federal-court order directly nullifying the state court’s

custody orders, the majority reasons, Rooker-Feldman does not

apply and the federal court is free to decide those damages

claims on their merits.

On this issue, this en banc decision marks a dramatic de-

parture from this circuit’s precedents, a departure that I view

as erroneous and unjustified. I explain next in Part IV-A why

the new majority is misreading Exxon Mobil. Part IV-B ad-

dresses this circuit’s precedents and why a departure from

stare decisis is not justified here. Part IV-C explains why the

majority’s new approach to Rooker-Feldman will produce arbi-

trary, impractical, and troubling results.

A. Exxon Mobil’s Fourth Element

The majority argues that its new bright-line rule—that

Rooker-Feldman does not apply to a federal claim for damages

based on an injury inflicted by a state-court judgment—is

required by Exxon Mobil. Judge Kirsch’s opinion even

describes Exxon Mobil’s key language as unambiguous. Post

at 72. It is not.

The opinion in Exxon Mobil is not as clear as it could have

been on the contours of this fourth element—inviting review

and rejection of state-court judgments. That is not surprising

because it was not the pivotal issue in that case. The federal

case in Exxon Mobil did not come close to satisfying the doc-

trine. The federal case sought coercive relief and was filed just

a few weeks after a mirror-image state-court action seeking

declaratory relief was filed. That pattern is familiar when

22 No. 22-1037

parties are maneuvering for advantage in different courts, but

it had nothing to do with Rooker-Feldman. The federal action

satisfied none of the elements of the doctrine. It was filed be-

fore any state-court judgment had become final; the federal

plaintiff had not lost in the state courts; without any state-

court judgment no injury had been inflicted; and of course

there was no state-court judgment to review and reject.

The Exxon Mobil opinion used many verbs to address this

fourth element: review, reject, overturn, undo, reverse, set

aside, and alter. 544 U.S. at 283–93. This was not the language

of legal precision. In referring to the relief being sought in

cases barred by Rooker-Feldman, the opinion used language

with a decidedly practical bent. The key phrase, “inviting

review and rejection,” is not a legal term of art limited to a

specific technical meaning. It invites a practical approach, one

that cannot be avoided by artful pleading. Elsewhere the

opinion said, for example, with emphases added: plaintiffs’

complaints “essentially invited federal courts of first instance

to review and reject unfavorable state-court judgments;” id. at

283; that the doctrine bars a party “from seeking what in

substance would be appellate review” in a federal court; id. at

287; or that a new federal action “in essence, would be an

attempt to obtain direct review” of state court decision; id. at

287–88 n.2. 6

Until this en banc decision, this circuit has also consist-

ently understood Rooker-Feldman, including this fourth

6 The latter two of these quotations quoted in turn other Supreme

Court opinions describing the doctrine. See also Lance v. Dennis, 546 U.S.

459, 466 (2006) (doctrine applies where “a party in effect seeks to take an

appeal of an unfavorable state-court decision to a lower federal court”

(emphasis added)).

No. 22-1037 23

“review and reject” element, in practical terms. On plaintiff’s

four claims that should be barred by the doctrine, the only al-

leged injury is the deprivation of custody itself, as ordered by

the state trial court. So while these claims do not ask the fed-

eral district court in so many words “to reverse or modify”

those judgments, Rooker, 263 U.S. at 416, the claim is barred

because its premise is that the state-court judgments were

wrong, and there is “no conceivable way to redress” the al-

leged interference “without overturning” the state-court

judgments ordering that interference, Jakupovic, 850 F.3d at

903, quoting Sykes, 837 F.3d at 743, or, in terms of Exxon Mobil,

“reviewing and rejecting” those state-court judgments as in-

correct.

Several other considerations, apart from adherence to a

long line of circuit precedent, indicate that a practical applica-

tion fits the doctrine better than the majority’s approach to

Exxon Mobil and decisive reliance on the form of relief sought.

First, if the Rooker-Feldman doctrine really embodied the

majority’s simple, bright-line rule—that a federal claim seek-

ing damages for injuries inflicted by a state-court judgment

does not invite review and rejection—I would have expected

Exxon Mobil to have been direct and explicit about it. The short

opinion could have been even shorter. Exxon Mobil narrowed

the Rooker-Feldman doctrine, but nothing in the Court’s opin-

ion signaled that the jurisdictional bar could be avoided by

the simple device of asking for damages rather than injunctive

relief. In one of our many cases rejecting the majority’s new

theory, we wrote that, if plaintiff were correct on this point,

“federal courts could award damages every time a litigant in

state court used an improper procedure or considered evi-

dence that a federal judge does not think trustworthy. That

24 No. 22-1037

duplication would greatly increase the already high cost of

civil litigation.” Harold, 773 F.3d at 887. Cf. post at 73 (denying

Harold’s point).

The focus of Exxon Mobil was more on the source of injuries

than on the form of relief. 544 U.S. at 284 (“complaining of in-

juries caused by state-court judgments”) (emphasis added).

Our cases before Exxon Mobil had taught that a good way to

keep Rooker-Feldman and preclusion doctrines in their proper

lanes was to focus on the cause of the injury. Exxon Mobil took

the same approach, and the Court quoted one of our prece-

dents to make its point:

If a federal plaintiff “present[s] some independ-

ent claim, albeit one that denies a legal conclu-

sion that a state court has reached in a case to

which he was a party..., then there is jurisdiction

and state law determines whether the defend-

ant prevails under principles of preclusion.”

GASH Assocs. v. Rosemont, 995 F.2d 726, 728

(C.A.7 1993); accord Noel v. Hall, 341 F.3d 1148,

1163–1164 (C.A.9 2003).

Id. at 293.

Second, the majority does not offer a reason why the Su-

preme Court would have drawn the majority’s bright line for

these purposes between seeking damages and injunctive re-

lief. It is difficult to see such a reason. Federal courts do not

take such an approach when parties invite state courts to re-

view and reject federal-court judgments, as I explain below in

Part IV-C. Why would the Supreme Court adopt such an ap-

proach when the roles are reversed?

No. 22-1037 25

Where the only injury underlying a claim was caused by

the state-court judgment, there is simply no sensible way to

separate the injury from the judgment that caused it. Redress-

ing the injury—regardless of the form of relief requested—

necessarily requires a federal court to review and reject the

state-court judgment. Whether the claim asks the federal

court to undo the state-court judgment or to compensate the

state-court loser for injuries caused by that judgment, the re-

sult is the same: the state-court loser is in substance appealing

her loss to the federal district court, seeking review and rejec-

tion of the state-court decision.

We cannot determine the merits of such a claim “without

determining that the state court erred by issuing” its judg-

ment. Kelley, 548 F.3d at 605. In those circumstances, we have

explained, “when ‘the injury is executed through a court or-

der, there is no conceivable way to redress the wrong without

overturning the order of a state court. Rooker-Feldman does not

permit such an outcome.’” Jakupovic, 850 F.3d at 903, quoting

Sykes, 837 F.3d at 743. Both the injury and review-and-reject

elements are satisfied in such cases.

B. Circuit Precedents and Stare Decisis

The new majority also does not even acknowledge how

well-settled our circuit’s law has been in rejecting its new rule.

After Exxon Mobil, we have, until today, consistently rejected

the majority’s position. We have repeatedly applied Rooker-

Feldman to claims where federal plaintiffs sought only

damages rather than a federal judgment literally vacating or

modifying a state-court judgment. We have done so because

we have recognized that even when a state-court loser seeks

only damages, a federal court is still being invited to review

and reject the state-court decision. For our cases making this

26 No. 22-1037

point after Exxon Mobil, see Bauer v. Koester, 951 F.3d 863, 865–

66 (7th Cir. 2020) (Rooker-Feldman barred claim for damages to

remedy injuries inflicted by state-court foreclosure

judgment); Moore v. Wells Fargo Bank, N.A., 908 F.3d 1050, 1062

(7th Cir. 2018) (same: “Mr. Moore insists he can bring these

claims before us because he seeks damages rather than

reconsideration of the state court decision, but that assertion

denies the substance of what he actually seeks in federal

court.”); Lennon v. City of Carmel, 865 F.3d 503, 507 (7th Cir.

2018) (Rooker-Feldman barred claims for damages from traffic

fines and points added to driving records imposed in state-

court proceedings); Harold v. Steel, 773 F.3d 884, 885–87 (7th

Cir. 2014) (Rooker-Feldman barred claim for damages under

Fair Debt Collection Practices Act where only source of injury

was state-court judgment); Gilbert v. Illinois State Bd. of Educ.,

591 F.3d 896, 899–902 (7th Cir. 2010) (Rooker-Feldman barred

claims for damages and injunction where state-court

judgment reinstated teacher’s termination; affirming district

court decision that “Rooker-Feldman doctrine barred Gilbert’s

claims no matter what form of relief he sought”); Kelley v.

Med-1 Solutions, LLC, 548 F.3d 600, 605 (7th Cir. 2008) (Rooker-

Feldman barred claims for damages in amounts attorney fees

awarded against federal plaintiffs in state-court judgments:

“Because defendants needed to prevail in state court in order

to capitalize on the alleged fraud, the FDCPA claims that

plaintiffs bring ultimately require us to evaluate the state

court judgments. We could not determine that defendants’

representations and requests relating to attorney fees violated

the law without determining that the state court erred by

issuing judgments granting the attorney fees.”).

Judge Kirsch’s opinion says nothing directly about this

consistent line of authority, which has not been even

No. 22-1037 27

controversial until today’s decision. (All the cited cases were

unanimous and were joined by, among others, four members

of the new six-member majority rejecting them on this point.)

Instead, to overcome both Exxon Mobil and the weight of our

case law on this issue, the opinion relies on two other deci-

sions of this court, Brokaw v. Weaver, 305 F.3d 660 (7th Cir.

2002), and Johnson v. Pushpin Holdings, LLC, 748 F.3d 769 (7th

Cir. 2014). Post at 69–70. We found federal jurisdiction in

those decisions, but not on the majority’s new theory that the

plaintiffs had requested only damages.

In Brokaw, we wrote that claims based on injuries

sustained “before any court proceedings occurred” could

proceed because the plaintiffs had no “reasonable

opportunity” to pursue them in state court and, alternatively,

the claims were “independent[] of the state court decision.”

305 F.3d at 664–65, 668. Brokaw also said that even if the

plaintiffs alleged injuries directly from the state-court

judgments, Rooker-Feldman did not apply because the

plaintiffs had no opportunity to raise their federal issues in

the state courts. The case is thus not on point here. It is

certainly not a counterweight to the long line of cases rejecting

the majority’s theory.

Pushpin Holdings offers some rhetorical support for the

majority in dicta, but a closer look at the facts shows that we

did not embrace the majority’s theory there. We certainly did

not engage with or purport to depart from the many cases

rejecting that theory. Plaintiffs in the case had filed a class

action in a state court alleging that Pushpin had filed more

than 1,000 “fraudulent” small-claims suits in state court that

resulted in default judgments against class members. 748 F.3d

at 770–71. After Pushpin removed the case to federal court,

28 No. 22-1037

the class argued that Rooker-Feldman required remand. Id. at

773. We rejected application of the doctrine, noting without

any analysis that Rooker-Feldman “does not bar a federal suit

that seeks damages for a fraud that resulted in a judgment

adverse” to the federal plaintiff. Id., citing Nesses v. Shepard, 68

F.3d 1003, 1004 (7th Cir. 1995), and cases cited in Truong v.

Bank of America, N.A., 717 F.3d 377, 383–84 (5th Cir. 2013).

Pushpin’s language, if not its holding, would thus seem to

support not the majority’s new rule but a “fraud exception”

to Rooker-Feldman, which does not exist, as explained below in

Part VI, which is a majority en banc decision.

Moreover, our later decision in the Pushpin case made this

limit clear. We affirmed the district court’s dismissal for fail-

ure to state a claim. We made clear then that the alleged fraud

occurred prior to the state-court proceedings. Johnson v. Push-

pin Holdings, LLC, 821 F.3d 871, 873, 875–76 (7th Cir. 2016)

(plaintiffs alleged that defendants violated the state consumer

protection law when they failed to register as a debt collection

agency, sued for an unconscionably high amount, and forged

plaintiffs’ signatures on guaranties and leases).

In short, neither Brokaw nor Pushpin was on point. Neither

adopted the majority’s new rule that a federal plaintiff can

avoid Rooker-Feldman by asking only for damages for injuries

inflicted by state-court judgments. 7

7 Likewise, the cases that Judge Kirsch’s opinion relies on from other

circuits are distinguishable or inconsistent with our circuit’s precedents

from both before and after Exxon Mobil. See Hohenberg v. Shelby County, 68

F.4th 336 (6th Cir. 2023); Behr v. Campbell, 8 F.4th 1206 (11th Cir. 2021);

Webb ex rel. K.S. v. Smith, 936 F.3d 808 (8th Cir. 2019); Great Western Mining

& Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159 (3d Cir. 2010); Kovacic v.

Cuyahoga County Dep’t of Children & Family Servs., 606 F.3d 301 (6th Cir.

No. 22-1037 29

Under these circumstances, I need not say anything origi-

nal here about the familiar principle of stare decisis:

Overruling precedent is never a small

matter. Stare decisis—in English, the idea that

today's Court should stand by yesterday's

decisions—is “a foundation stone of the rule of

law.” Michigan v. Bay Mills Indian Community,

572 U.S. 782, 798 (2014). Application of that

doctrine, although “not an inexorable

command,” is the “preferred course because it

promotes the evenhanded, predictable, and

consistent development of legal principles,

fosters reliance on judicial decisions, and

contributes to the actual and perceived integrity

of the judicial process.” Payne v. Tennessee, 501

U.S. 808, 827–828 (1991). It also reduces

incentives for challenging settled precedents,

2010); Green v. Mattingly, 585 F.3d 97 (2d Cir. 2009); Adkins v. Rumsfeld, 464

F.3d 456 (4th Cir. 2006); Mo’s Express, LLC v. Sopkin, 441 F.3d 1229 (10th

Cir. 2006); Holloway v. Brush, 220 F.3d 767 (6th Cir. 2000) (en banc); Ernst

v. Child & Youth Servs. of Chester County, 108 F.3d 486 (3d Cir. 1997). In all

but one of these cases, plaintiff argues, damages requests went forward in

federal court, but not because plaintiffs were seeking only damages. The

exception is Behr, where a father lost custody of two of his four children in

state court. Along with his other two children, he sued a host of defend-

ants in federal court for conspiring to deprive him of custody. 8 F.4th at

1208–09. The Eleventh Circuit reversed dismissal of some claims, adopting

the majority’s theory here that a request for damages for injuries caused

by a state court’s unconstitutional judgment does not ask a federal court

to “review and reject” that judgment. That approach is contrary to our cir-

cuit’s long line of precedents before and after Exxon Mobil.

30 No. 22-1037

saving parties and courts the expense of endless

relitigation.

Kimble v. Marvel Entertainment, LLC, 576 U.S. 446, 455 (2015).

Or, as this court put it a few years earlier:

if the fact that a court considers one of its previ-

ous decisions to be incorrect is a sufficient

ground for overruling it, then stare decisis is out

the window, because no doctrine of deference to

precedent is needed to induce a court to follow

the precedents that it agrees with; a court has no

incentive to overrule them even if it is com-

pletely free to do so. The doctrine of stare decisis

imparts authority to a decision, depending on

the court that rendered it, merely by virtue of

the authority of the rendering court and inde-

pendently of the quality of its reasoning. The es-

sence of stare decisis is that the mere existence

of certain decisions becomes a reason for adher-

ing to their holdings in subsequent cases.

Tate v. Showboat Marina Casino P’ship, 431 F.3d 580, 582–83 (7th

Cir. 2005) (citation and internal quotation marks omitted).

I agree that stare decisis is not “an inexorable command,”

but one can reasonably expect the majority (a) to acknowledge

what it is doing to circuit precedent and (b) to offer some com-

pelling justification for doing so beyond disagreement with

those precedents. The majority here does neither. It does not

rely on any intervening Supreme Court precedent or statutory

amendment. Nor does it assert that our established Rooker-

Feldman precedents have been causing active mischief and

harm. To the contrary, Judge Kirsch’s opinion goes out of its

No. 22-1037 31

way to assert that the majority’s new course under Rooker-

Feldman will have little or no practical impact. The theory (or

hope) seems to be that all the plaintiffs whose cases will now

be subject to federal jurisdiction will still lose on the merits

based on immunity doctrines and claim and issue preclusion.

Perhaps, but if that’s what the majority expects, what’s the

point of overruling our post-Exxon Mobil precedents applying

Rooker-Feldman to damages claims?

C. Arbitrary, Impractical, and to What End?

None of this adds up to a persuasive case for overruling

well-established circuit precedents. To the contrary, the more

likely results will be arbitrary, inconsistent, and impractical.

We will add to the cost and delays of efforts to relitigate child

custody, mortgage foreclosures, and other disputes that seem

especially prone to stubborn relitigation.

Rooker-Feldman has arisen most often in child-custody

cases and mortgage foreclosures. The federal plaintiffs in such

cases are often pro se, since lawyers are more likely than pro

se parties to anticipate the obstacles they will face in going to

federal court to challenge a state-court decision. With or

without counsel, these state-court losers will now be able to

establish federal jurisdiction in the district courts to pursue

their claims. Further, consider how often state courts issue

temporary restraining orders and preliminary injunctions

that cause significant injury to the enjoined party. (Erroneous

enforcement of unreasonable and oppressive covenants not to

compete—especially with ex parte injunctions—comes to

mind.)

This case is about a family-law matter, child custody. The

high stakes and strong emotions in such matters are obvious.

32 No. 22-1037

They provide powerful motives to treat a state-court loss as

not final, as reflected in the frequency of such cases on our

docket, especially with pro se plaintiffs. We also see frequent

efforts to continue litigating state-court losses in federal chal-

lenges to foreclosures on home mortgages. Under the major-

ity’s new rule, federal courts will now have jurisdiction over

claims for damages based on alleged due process violations

in state-court foreclosure proceedings. We can expect to see

even more such challenges. And by categorically excluding

damages claims from Rooker-Feldman, the majority is also in-

viting federal challenges to state-court decisions granting

temporary restraining orders and preliminary injunctions

that inflict injury on the enjoined parties.

It may be that absolute judicial immunity will protect

some defendants at the motion-to-dismiss stage—most likely

state-court judges and those carrying out their orders. Other

defendants will not have that option, particularly in child-

custody and mortgage-foreclosure cases. More fundamental,

the majority is overlooking important practical differences

between resolving a case based on the Rooker-Feldman

jurisdictional doctrine and relying instead on preclusion and

immunity doctrines.

The most important difference is that doctrines of claim

preclusion and issue preclusion (also known as res judicata

and collateral estoppel) are equitable doctrines. They are sub-

ject to equitable exceptions and significant state-to-state vari-

ation. In Illinois, for example, claim preclusion “is an equita-

ble doctrine that is not applied when it is fundamentally un-

fair to do so.” Parker v. Lyons, 757 F.3d 701, 706 (7th Cir. 2014)

(internal quotation omitted), overruled on other grounds by

Hadzi-Tanovic v. Johnson, 62 F.4th 394 (7th Cir. 2023). We have

No. 22-1037 33

said that in Wisconsin, on the other hand, while “the doctrine

of issue preclusion includes a ‘fairness’ element, claim preclu-

sion does not. The Wisconsin Supreme Court has not adopted

a general fairness factor as part of its claim-preclusion doc-

trine.” Adams Outdoor Advert. Ltd. P’ship v. City of Madison, 56

F.4th 1111, 1118 (7th Cir. 2023), citing Kruckenberg v. Harvey,

279 Wis. 2d 520, 541–42, 694 N.W.2d 879, 890. But cf. Friends of

Milwaukee's Rivers v. Milwaukee Metro. Sewerage Dist., 382 F.3d

743, 765 & n. 17 (7th Cir. 2004) (remanding for consideration

of Wisconsin “fairness” exception to claim preclusion:

“[c]laim preclusion may be disregarded in appropriate cir-

cumstances when the policies favoring preclusion of a second

action are trumped by other significant policies. Claim preclu-

sion ... is a principle of public policy applied to render justice,

not to deny it. Any exception to claim preclusion, however,

must be limited to special circumstances or the exceptions will

weaken the values of repose and reliance.”), quoting Sopha v.

Owens-Corning Fiberglas Corp., 230 Wis.2d 212, 236, 601

N.W.2d 627, 638 (1999).

When it comes to issue preclusion based on Wisconsin

state court decisions, the “fundamental fairness step” requires

the court to “determine whether it is fundamentally fair to

employ issue preclusion given the circumstances of the par-

ticular case at hand.” First Weber Grp., Inc. v. Horsfall, 738 F.3d

767, 773 (7th Cir. 2013), quoting Mrozek v. Intra Fin. Corp., 281

Wis.2d 448, 464, 699 N.W.2d 54, 61 (2005). Relevant factors in-

clude “the availability of review of the first judgment, differ-

ences in the quality or extensiveness of the proceedings, shifts

in the burden of persuasion, and the adequacy of the loser's

incentive to obtain a full and fair adjudication of the issue.”

Id. And signaling the need for caution here, especially before

the majority relies too heavily on these doctrines, we said that

34 No. 22-1037

Wisconsin’s “fundamental fairness step eschews formalistic

requirements in favor of ‘a looser, equities-based interpreta-

tion of the doctrine.’” Id., quoting Michelle T. by Sumpter v. Cro-

zier, 173 Wis.2d 681, 688, 495 N.W.2d 327, 330 (1993).

For these reasons, this circuit’s precedents under Rooker-

Feldman offer a much better prospect for preventing unjusti-

fied relitigation of state-court judgments than the looser equi-

table evaluations permitted or required under doctrines of

claim and issue preclusion, upon which the majority places so

much reliance. 8

As for immunity doctrines, absolute judicial immunity

should protect judges and those who are carrying out their

commands. Other federal defendants, including the state-

court plaintiffs and their agents (such as the social workers

here) will probably have to fend for themselves without abso-

lute immunity. Qualified immunity may help them in some

cases, but not at the pleading stage if the federal plaintiff ac-

cuses them of misleading the state courts. Use of these other

doctrines seems to me likely to lead to longer and more exten-

sive litigation seeking federal review and rejection of state-

court judgments.

8 Judge Kirsch asserts that the Rooker-Feldman doctrine, as it existed

prior to this decision and advocated in this opinion, federalized issue and

claim preclusion. Post at 79. That description is not accurate. Rooker-

Feldman and preclusion are not jigsaw puzzle pieces, where one cannot sit

atop the other. The doctrines can and do overlap when a state-court loser

asks a federal court to review and reject a state-court decision and to decide

issues or claims that were previously resolved on their merits. In these

common instances, the jurisdictional nature of Rooker-Feldman simply

means that it must be decided first.

No. 22-1037 35

Consider what discovery and a trial would look like in this

case or similar child-custody cases, or in mortgage-

foreclosure cases. To award the damages this plaintiff seeks

on these four claims, the federal court (and probably a jury)

would need to put the Wisconsin trial court’s proceedings

under a microscope. The federal trial would need to focus on

the evidence before the state court, its weight and credibility,

and even which factual and legal arguments were presented

to the state court. A jury simply could not rule in favor of

plaintiff on any of these claims without finding that the state

court’s judgments about custody of T.E.H. were wrong on the

merits.

The merits of plaintiff’s claims here also pose obvious

questions of causation, particularly given the evidence of her

habitual methamphetamine abuse. It is easy to imagine a de-

fendant in this federal case seeking to call as a witness the

state-court judge to explain whether particular evidence, es-

pecially allegedly false evidence, did or did not make a differ-

ence in the state-court decisions that injured the plaintiff. Per-

haps such questions of materiality could be decided fairly

without such testimony, but perhaps not. Consider the pre-

dicament of a county social worker. Her job is to try to protect

vulnerable children from neglect and abuse. She faces a fed-

eral jury trial where the plaintiff seeks compensatory and pu-

nitive damage sufficient to bankrupt her. She would be enti-

tled to offer evidence showing that, even if she presented an

incomplete and incorrect picture of the case to the state court,

the errors would not have made any difference because the

mother was in denial about a serious methamphetamine ad-

diction.

36 No. 22-1037

Trying the four claims presented here would inevitably in-

vite review and rejection of the state court’s judgments. The

friction between state and federal courts would only increase.

Judge Kirsch dismisses these concerns about federal-state fric-

tion as overridden by his view of the scope of our obligatory

jurisdiction. Post at 75. The same response might be made to

many fundamental doctrines of federalism, including differ-

ent varieties of abstention and some applications of ripeness,

mootness, and standing. All of those doctrines can keep fed-

eral courts from ruling on the merits of cases otherwise within

their jurisdiction. The majority’s dismissal of these concerns

also stands in sharp contrast to federal courts’ reactions to lit-

igants’ attempts to avoid the effects of federal-court judgments

by seeking relief in state courts. Those reactions have a dis-

tinctly practical side to them that is missing in the majority’s

decisive reliance on the form of relief sought in the second ac-

tion.

For example, in Matter of VMS Securities Litigation, 103 F.3d

1317 (7th Cir. 1996), overruled in part on other ground by En-

vision Healthcare, Inc. v. PreferredOne Ins. Co., 604 F.3d 983 (7th

Cir. 2010), a federal district court approved a class settlement

of securities law claims. A group of class members who had

not opted out were unhappy with the settlement. Rather than

appeal in the federal courts, they brought a new claim for

damages in a state court. We affirmed an injunction against

that state-court litigation, and we held that the All Writs Act,

28 U.S.C. § 1651, permitted the injunction and that the Anti-

Injunction Act, 28 U.S.C. § 2283, did not apply, because the

federal court was protecting its jurisdiction. 103 F.3d at 1324–

25 (collecting cases). The state court was not being asked to,

in the majority’s words here, “reverse” the federal judgment,

but it was being asked to award damages for injuries inflicted

No. 22-1037 37

by it. That would have required the state court to “review and

reject” the federal judgment. Accord, e.g., Wyly v. Weiss, 697

F.3d 131, 139–45 (2d Cir. 2012) (district court that had ap-

proved attorney fees as part of class settlement properly en-

joined class members’ state court case seeking damages from

attorneys based on alleged legal malpractice); Rutledge v. Scott

Chotin, Inc., 972 F.2d 820, 824–25 (7th Cir. 1992) (affirming fed-

eral injunction against state court action for damages contrary

to federal decision on statute of limitations defense). Or con-

sider how the federal courts would react to a state court action

for damages brought against federal plaintiffs who had ob-

tained a federal injunction against potentially violent interfer-

ence with the federal plaintiffs’ planned march in favor of

civil rights (or any other cause, for that matter).

With this comparison, I am not suggesting that a state

court would have any business trying to enjoin this federal

litigation. But the federal courts’ pragmatic applications of 28

U.S.C. §§ 1651 and 2283 to prevent state courts from “review-

ing and rejecting” federal judgments by awarding damages

for injuries inflicted by them are hard to reconcile with the

majority’s formalism. The majority’s dismissal of concerns

about friction between state and federal courts is also difficult

to reconcile with federal courts’ approaches when the posi-

tions are reversed.

To sum up the grounds for this dissent from the majority’s

new decision not to apply Rooker-Feldman if the federal plain-

tiff seeks only damages for injuries inflicted by state-court

judgments, the majority’s new rule: (A) is not required by the

Supreme Court’s opinion in Exxon Mobil, which signaled a

more practical approach; (B) overrules a long and consistent

line of precedent from this court, and does so without

38 No. 22-1037

acknowledging or justifying its action; and (C) is likely to add

new layers of expense, confusion, and complexity in catego-

ries of cases where parties refuse to accept their losses in state

courts.

Before moving on, I must acknowledge that Judge Kirsch’s

opinion denies that it is actually adopting the bright-line rule

that I read in it. The opinion suggests in a curious dictum that

Rooker-Feldman might bar a federal claim for damages where

the challenged state-court judgment awarded damages. Post

at 74. The theory seems to be that a federal damages award

“would nullify or modify” the state-court judgment. To the

contrary, such an award on the majority’s theory would not

“modify” a state-court judgment at all. Such an award would

“nullify” a state-court judgment awarding damages only un-

der the more practical approach to the “review and reject” el-

ement of Exxon Mobil advocated in this opinion.

In other words, that concession undercuts the foundation

of the new majority rule. The concession is built on the prem-

ise that “review and reject” must mean something broader

than directly vacating a state-court judgment. Still, apart from

exposing the contradiction in the majority position, the con-

cession also seems unlikely to have much practical effect.

Such cases seeking damages in a federal court to undo or off-

set damages awarded by a state court seem to be rare. Only

one such actual case is cited, Bauer v. Koester, 951 F.3d 863 (7th

Cir. 2020), and we affirmed a Rooker-Feldman dismissal there

under longstanding principles the new majority rejects here.

V. Opportunity to Raise Federal Issues in State Court

This Part V is the opinion of an en banc majority. In oppos-

ing application of the Rooker-Feldman doctrine, plaintiff also

No. 22-1037 39

argues that she had no reasonable opportunity to raise her

claims in state court.

Even if a claim otherwise seems barred by Rooker-Feldman,

this court has recognized a narrow exception to the doctrine:

“if a plaintiff lacked a reasonable opportunity to litigate” an

issue in state court, then the claim may proceed in federal

court. Kelley, 548 F.3d at 605; see also Long v. Shorebank Dev.

Corp., 182 F.3d 548, 558 (7th Cir. 1999), citing Wood v. Orange

County, 715 F.2d 1543, 1547 (11th Cir. 1983). The “reasonable

opportunity” exception operates as something of a safety

valve with respect to the review-and-reject element, allowing

a claim to go forward where “factors independent of the ac-

tions of the opposing parties,” such as state-court procedural

barriers, prevented the plaintiff from asserting her rights in

state court. Jakupovic, 850 F.3d at 904, quoting Taylor v. Federal

Nat’l Mortg. Ass’n, 374 F.3d 529, 534–35 (7th Cir. 2004) (cleaned

up). Essentially, if an issue could not have been raised in the

state court, the state court’s judgment could not have encom-

passed that issue, and we could not review and reject that

judgment by deciding it.

We have carefully limited the “reasonable opportunity”

safety valve lest the exception swallow the rule. “Reasonable

opportunities” are not only those available “in the particular

state court” that rendered the judgment adverse to the federal

plaintiff. Kelley, 548 F.3d at 606 (finding a “reasonable oppor-

tunity” where plaintiff could have transferred “small claims

cases to the plenary docket for trial by jury”); see also Beth-El

All Nations Church v. City of Chicago, 486 F.3d 286, 292–93 (7th

Cir. 2007) (state-court judgment could have been “attacked at

any time”). Rather, state law must “have effectively pre-

cluded” raising the issue in state court for the federal plaintiff

40 No. 22-1037

to succeed on a “no reasonable opportunity” argument. Long,

182 F.3d at 558–59.

Only twice have we found the federal plaintiff had no

“reasonable opportunity” to raise the federal issue in state

court. One was Long, where the state-court “forcible entry and

detainer” proceedings were summary in nature, so that

Long’s federal issues could not be heard. Id. at 559–60. The

other was Brokaw, where the plaintiff was not “even present”

at a hearing “and was not represented … by a guardian ad

litem or an attorney.” 305 F.3d at 668.

The situation here was quite different. Brokaw is easily dis-

tinguishable because Gilbank was represented in state court

by an attorney, and T.E.H. was represented by a guardian ad

litem. Long is distinguishable because Gilbank had ample op-

portunities to raise her federal issues, and actually did raise

them.

Gilbank argues that two procedural barriers prevented her

from asserting her rights in state court. First, she contends that

her constitutional challenges were simply beyond the scope

of the custody and placement hearings. She points out that an

initial custody hearing is held “to determine whether any

party wishes to contest an allegation that the child … is in

need of protection or services.” Wis. Stat. § 48.30(1). Later

hearings also focus on the allegations in the petition and the

appropriate placement of the child. See §§ 48.30(7), 48.335 &

48.345.

In fact, however, the Wisconsin Children’s Code imposed

no limits comparable to those in Long. If a party believes that

an allegation is fraudulent or that relief would violate a con-

stitutional right, Wisconsin state law gives her the right to

No. 22-1037 41

raise the issue in the CHIPS proceedings. The Children’s Code

instructs that it “shall be liberally construed” so that “children

and all other interested parties are assured fair hearings and

their constitutional and other legal rights are recognized and

enforced.” Wis. Stat. § 48.01(1), (1)(ad). More specifically, the

Children’s Code provides that “[d]efenses and objections

based on defects in the institution of proceedings, lack of

probable cause on the face of the petition, [or] insufficiency of

the petition,” as well as motions to suppress evidence and

challenges to “the lawfulness of the taking into custody,” must

be raised on penalty of waiver. § 48.297(2)–(4). Just because

the focus of proceedings is on a particular issue does not mean

that the scope of those proceedings is constrained.

Second, plaintiff contends that “the strict, mandatory

timeframes within which various stages of a CHIPS proceed-

ing must take place” precluded her “from effectively raising

her claims.” The limitations period for her claims under 42

U.S.C. §§ 1983 & 1985 is three years. Wis. Stat. § 893.54(1m)(a).

A CHIPS fact-finding hearing must be held within 30 days of

the initial hearing. Wis. Stat. § 48.30(7). A date for a disposi-

tional hearing must be set within 30 days of the fact-finding

hearing. § 48.31(7)(a). While these consecutive 30-day win-

dows are relatively narrow, they afford far more opportunity

to raise a constitutional issue than did the forcible entry and

detainer proceeding we considered in Long. See 182 F.3d at

552–53 (judgment entered against plaintiff in a single ex parte

proceeding). Here, during September and October 2018, three

hearings were held, hours of testimony were taken, and plain-

tiff and her counsel were afforded repeated opportunities to

raise any challenges or issues they wished. Plaintiff had still

more opportunities as hearings continued through September

2019. She also could have appealed and presented her

42 No. 22-1037

constitutional challenges as of right following the state court’s

judgments, or she could have petitioned for permission to ap-

peal during the state-court proceedings. Wis. Stat. § 808.03(1)–

(2).

In fact, plaintiff actually raised these issues in state court.

Take plaintiff’s substantive due process claim. She did not say

in so many words that removing her daughter from her cus-

tody “is a violation of substantive due process under the

United States Constitution,” but throughout the proceedings

she challenged the relevant officials’ alleged interference with

family integrity. In her September 5, 2018 motion to dismiss,

plaintiff essentially stated a substantive due process violation,

asserting “the important and defendable and inalienable

rights of a parent and child relationship.” That language sig-

naled with sufficient clarity that she was invoking a federal

substantive due process right to family integrity.

Plaintiff also repeatedly challenged her lack of notice for

the initial temporary physical custody hearing, first sending a

letter to the presiding judge, then filing motions to dismiss or

reopen those hearings for lack of notice, and finally asking

permission to take the issue “to a higher court.”

So too with plaintiff’s claims that state procedural rules

were violated and that officials made fraudulent statements

to the state court. Plaintiff challenged the failure to notify her

of the initial hearing, in violation of state statutes, in her Sep-

tember 2018 motion to dismiss. And in her February 2019 mo-

tion to dismiss, plaintiff raised myriad state-law challenges

and her claims of fraud.

We recognize that plaintiff believes the state court decided

these and many other issues incorrectly. But again, Rooker-

No. 22-1037 43

Feldman is built on the assumption that a state court has erred

in a way that injured the federal plaintiff. See Rooker, 263 U.S.

at 415–16 (“If the [state-court] decision was wrong, … no court

of the United States other than this court could entertain a

proceeding to reverse or modify the [state-court] judg-

ment[.]”). And again, there is no Rooker-Feldman exception for

egregious errors or serious injuries.

If the federal plaintiff actually raised the challenge in state

court, there can be no recourse to the “reasonable oppor-

tunity” safety valve. As the Supreme Court said in Rooker, if

the constitutional questions presented to the federal court ac-

tually arose in the state-court proceedings, “it was the prov-

ince and duty of the state courts to decide them,” and the in-

jured party’s recourse is to “an appropriate and timely appel-

late proceeding” in the state courts and, if necessary, in the

Supreme Court of the United States. 263 U.S. at 415.

VI. No “Fraud Exception”

This Part VI is also the opinion of an en banc majority. In

opposing application of Rooker-Feldman, plaintiff argues that

some of the defendants defrauded the state court, lying to the

court about her case and thus causing her injuries inflicted by

the state-court judgments. Put another way, plaintiff tries to

invoke what has sometimes erroneously been called a “fraud

exception” to Rooker-Feldman’s jurisdictional bar. 9

9 We have often said in non-precedential orders that “the Rooker-

Feldman doctrine does not have a fraud exception.” Podemski v. U.S. Bank

National Ass’n, 714 F. App’x 580, 581–82 (7th Cir. 2017), citing Mains v.

Citibank, N.A., 852 F.3d 669, 676 (7th Cir. 2017), and Kelley, 548 F.3d at 605;

see also Keith v. Wisconsin Dep’t of Workforce Dev., No. 21-2398, 2022 WL

741731, at *2 (7th Cir. Mar. 11, 2022) (“[T]here is no general fraud exception

to Rooker-Feldman.”), citing Iqbal, 780 F.3d at 729; Bond v. Perley, 705 F.

44 No. 22-1037

We recently explained in Hadzi-Tanovic v. Johnson, 62 F.4th

394, 396 (7th Cir. 2023), that Rooker-Feldman applies even

where the federal plaintiff alleges that the state courts that in-

jured her were corrupt. We did not address in Hadzi-Tanovic

the related issue whether Rooker-Feldman applies “where

plaintiffs seek damages for injuries caused … by the fraudu-

lent conduct of state court opponents.” Id. at 406. That ques-

tion is before us in this case. Plaintiff argues that two of our

prior decisions—the same Brokaw case we just discussed,

Brokaw v. Weaver, 305 F.3d 660 (7th Cir. 2002), and Johnson v.

Pushpin Holdings, LLC, 748 F.3d 769 (7th Cir. 2014)—recognize

a “fraud” exception to Rooker-Feldman. The great weight of

our case law, however, unequivocally holds the opposite, and

a closer look at Brokaw and Pushpin shows they offer little ac-

tual support for such an exception.

The notion of a “fraud exception” to Rooker-Feldman seems

to have germinated in Nesses v. Shepard, 68 F.3d 1003 (7th Cir.

1995), a case that we recently overruled in part in Hadzi-

Tanovic. In Nesses, the federal plaintiff “alleged ‘a massive,

tentacular conspiracy’ by the defendants to ‘engineer’ his

defeat in state court.” Hadzi-Tanovic, 62 F.4th at 402, quoting

Nesses, 68 F.3d at 1004. We acknowledged that the plaintiff

could not “show injury from the alleged conspiracy unless”

the state-court decision “was erroneous,” but we concluded

that there was jurisdiction so long as the plaintiff claimed that

“people involved in the [state-court] decision violated some

App’x 464, 465 (7th Cir. 2017) (“[W]e have rejected the notion of a ‘fraud

exception’ to Rooker-Feldman.”), citing Iqbal, 780 F.3d at 729; accord Truong

v. Bank of America, N.A., 717 F.3d 377, 383 n.3 (5th Cir. 2013) (“There is, of

course, no general rule that any claim that relies on a fraud allegation is an

‘independent claim’ for Rooker-Feldman purposes.”).

No. 22-1037 45

independent right of his, such as the right (if it is a right) to be

judged by a tribunal that is uncontaminated by politics.”

Nesses, 68 F.3d at 1005. If Rooker-Feldman barred the claim, we

reasoned, “there would be no federal remedy for a violation

of federal rights whenever the violator so far succeeded in

corrupting the state judicial process as to obtain a favorable

judgment.” Id.

We later applied this same reasoning in two other cases

involving allegations of extensive judicial corruption—

Loubser v. Thacker, 440 F.3d 439 (7th Cir. 2006), and Parker v.

Lyons, 757 F.3d 701 (7th Cir. 2014). Hadzi-Tanovic overruled

these cases as well, putting an end to the “corruption excep-

tion.” 62 F.4th at 402. But Hadzi-Tanovic expressly left open the

status of a fraud exception, noting the tension in this circuit’s

case law on that subject. Id. at 406–07. We noted there that two

of our opinions have been read to extend Nesses’ reasoning

from claims of “judicial corruption” to claims of “third-party

fraud.” We explain here why that reading is mistaken.

In Brokaw v. Weaver, decided before Exxon Mobil, the fed-

eral plaintiff brought claims for violations of procedural and

substantive due process and the Fourth Amendment, alleging

“that the defendants conspired with state actors to file false

claims of child neglect so as to cause her and her brother to be

removed from their parents’ home.” 305 F.3d at 669–70. With-

out prior judicial authorization, state actors had removed the

children from the home, so both the conspiracy and the re-

moval were effectuated “prior to any judicial involvement.”

Id. at 662–63, 665. About a month later, a state judge adjudi-

cated the children wards of the state. Id. at 662–63. We con-

cluded “that the Nesses reasoning” applied because the fed-

eral plaintiff was “not merely claiming that the [subsequent]

46 No. 22-1037

decision of the state court was incorrect or that the decision

violated her constitutional rights,” but that “the people in-

volved in the decision to forcibly remove her from her home”

violated her rights “independently of the state court deci-

sion.” Id. at 665. Given that the alleged Fourth Amendment

and due process violations occurred “before any court pro-

ceedings occurred,” id. at 664, Brokaw’s conclusion on that

point was correct. As explained above, we reach the same con-

clusion here on Gilbank’s Fourth Amendment and substan-

tive due process claims insofar as they are based on injuries

allegedly sustained before any action by the state court.

In discussing Nesses, however, the Brokaw opinion ob-

served that some of Nesses’ language “indicates that, even if

[plaintiff] would not have suffered any damages absent the

state order of wardship, her claim is not barred by the Rooker-

Feldman doctrine ….” Id. at 667. This was not Brokaw’s holding

but merely a response to an argument by the defendants. It

was not essential to Brokaw’s holding because the federal

plaintiff had suffered an injury independent of the state-court

judgment. Indeed, Brokaw went on to observe that this lan-

guage from Nesses was in direct conflict with language from

Long: “because ‘[a]bsent the eviction order, [plaintiff] would

not have suffered the injuries for which she now seeks to be

compensated,’ her claims appeared to be barred under Rooker-

Feldman.” Id., quoting Long, 182 F.3d at 557. Brokaw found that

Long’s “reasoning seemingly support[ed] the defendants’ ar-

gument that” the Brokaw plaintiff’s claims were barred by

Rooker-Feldman. Id.

Brokaw therefore did not find jurisdiction solely or even

partially on a theory that an allegation that the defendants

had misled or defrauded the state court made the claims

No. 22-1037 47

“independent” of the state-court judgment. Rather, we took a

belt-and-suspenders approach to jurisdiction, concluding

that, “even assuming that [the] constitutional claims [were]

not independent of the state court proceedings,” they were

not barred by Rooker-Feldman because plaintiff, who was nei-

ther present at the wardship hearing nor represented by a

guardian ad litem, “lacked a reasonable opportunity to pre-

sent” her claims in state court. Id. at 668. Thus, although

Brokaw has been cited as creating a “fraud exception” to

Rooker-Feldman, the case provides only tenuous support for it.

Our opinion in Johnson v. Pushpin Holdings, LLC also cited

Nesses for the proposition that there is a “fraud exception” to

Rooker-Feldman. In Pushpin, plaintiffs filed a class action in Il-

linois state court, alleging that Pushpin had filed more than

1,000 “fraudulent” small-claims suits in state court that re-

sulted in default judgments against class members. 748 F.3d

at 770–71. After Pushpin removed to federal court, the class

argued that Rooker-Feldman required remand. Id. at 773. We

rejected application of the doctrine, noting without any anal-

ysis that Rooker-Feldman “does not bar a federal suit that seeks

damages for a fraud that resulted in a judgment adverse” to

the federal plaintiff. Id., citing Nesses, 68 F.3d at 1004, and

cases cited in Truong v. Bank of America, N.A., 717 F.3d 377,

383–84 (5th Cir. 2013). Pushpin’s language, if not its holding,

would thus seem to support a “fraud exception” to Rooker-

Feldman. Our later decision in that case affirmed the district

court’s dismissal for failure to state a claim. We made clear

then that the alleged fraud occurred prior to the state-court

proceedings. Pushpin Holdings, 821 F.3d at 873, 875–76 (plain-

tiffs alleged that defendants violated the Illinois Consumer

Fraud and Deceptive Business Practices Act when they failed

to register as a debt collection agency, sued for an

48 No. 22-1037

unconscionably high amount, and forged plaintiffs’ signa-

tures on guaranties and leases).

While some of Pushpin’s language endorses a “fraud ex-

ception,” the case as a whole does not support it. Fraud was

not committed during the state-court proceedings; rather, al-

leged fraud external to those proceedings formed the basis of

the state-court actions. The same was true in Brokaw, where

the alleged fraud occurred “prior to any judicial involve-

ment.” 305 F.3d at 665. In short, on closer scrutiny, neither

Brokaw nor Pushpin offers robust support for the “fraud ex-

ception” attributed to them. 10

10 Judge Kirsch’s opinion mistakes dicta in Brokaw and Pushpin for

precedential holdings. See post at 69–70. The holdings of both cases re-

main viable, but their language supporting a fraud exception does not.

Other circuits have also, at times, excluded fraud claims from Rooker-Feld-

man. See, e.g., Behr, 8 F.4th at 1213 (claims that defendants had violated

procedural due process rights by using “falsified and/or coerced infor-

mation as a basis for the [state-court] proceedings” could proceed because

the claims did not seek “to undo the state court’s child custody decision”);

Benavidez v. County of San Diego, 993 F.3d 1134, 1143 (9th Cir. 2021) (“injury

based on the alleged misrepresentation by [defendants] that caused the

juvenile court to issue” its orders meant that claim was “not a de facto

appeal” of those orders); Truong, 717 F.3d at 383–84 (relying in part on

Nesses to find allegations that defendants “misled the state court” and

“misled [the plaintiff] into [forgoing] her opportunity” to raise a dispute

in state court presented “independent claims”); McCormick v. Braverman,

451 F.3d 382, 392 (6th Cir. 2006) (plaintiff’s claims that state-court judg-

ments “were procured by certain Defendants through fraud, misrepresen-

tation, or other improper means” did not “assert an injury caused by”

those judgments). But some of these decisions seem to hinge not on the

existence of a fraud exception but on the court’s conclusion that either

Exxon Mobil’s “injury” element or “review and reject” element was not

met in the first place. E.g., Behr, 8 F.4th at 1213 (plaintiffs “are not raising

these due process claims so that we can ‘review and reject’ the state court’s

No. 22-1037 49

To the extent they offer any traction for a “fraud

exception,” Brokaw and Pushpin are inconsistent with the great

weight of Seventh Circuit case law, including decisions after

Exxon Mobil. Just a year after Brokaw, we held that Rooker-

Feldman barred claims where the federal plaintiffs alleged that

a debt collector had misrepresented the amount of damages

recoverable in state court. Epps v. Creditnet, Inc., 320 F.3d 756,

757–60 (7th Cir. 2003). Those claims could not proceed in

federal court because they asked the federal courts “to review

the state court judgment,” and the plaintiffs were not injured

“until the state court entered judgment against them.” Id. at

759.

In Kelley, decided after Exxon Mobil, we held that Rooker-

Feldman barred jurisdiction over claims where the “defend-

ants needed to prevail in state court in order to capitalize on

[their] alleged fraud.” 548 F.3d at 605. Such claims would “ul-

timately require us to evaluate the state court judgments,” for

we “could not determine that defendants’ representations

and requests” in state court were fraudulent “without deter-

mining that the state court erred by issuing [its] judgments.”

Id.

child custody judgment”); Truong, 717 F.3d at 383 (claims “independent”

because they sought damages “for injuries caused by the [defendants’] ac-

tions, not injuries arising from” the state-court judgment). Other cases on

which plaintiff relies to support a “fraud exception” are not persuasive

because allegations of fraud, while involved, were not relevant to the

court’s reasoning. See, e.g., VanderKodde, 951 F.3d at 400–01, 403 (while

federal defendants had incorrectly, and perhaps fraudulently, calculated

post-judgment interest owed by state-court losers, that challenged con-

duct did not lead to, but followed, the state-court judgment).

50 No. 22-1037

So too in Harold, where the federal plaintiff argued that

“false statements” made by his state-court opponent, “rather

than the state court’s decision, inflicted the injury” underlying

his claims. 773 F.3d at 886. We recognized the possibility of

“situations in which a violation of federal law” in state court

“could cause a loss independent of the suit’s outcome.” Id. For

example, debt collectors could violate the Fair Debt Collection

Practices Act by filing suit in a prohibited venue. Cf. Suesz v.

Med-1 Solutions, LLC, 757 F.3d 636 (7th Cir. 2014) (en banc). In

such a case, the violation “inflicts an injury measured by the

costs of travelling or sending a lawyer to the remote court and

moving for a change of venue, no matter how the suit comes

out.” Harold, 773 F.3d at 886. But we concluded in Harold that,

where the federal plaintiff alleges false “representations that

concern the merits” of the state-court litigation, no “injury oc-

curred until the state judge ruled against” the federal plaintiff.

Id. Rooker-Feldman barred the claims.

In Mains v. Citibank, N.A., 852 F.3d 669 (7th Cir. 2017), we

made this point crystal clear. The federal plaintiff argued that

a state-court foreclosure judgment was erroneous because it

rested on a fraud perpetrated by the defendants. We said that

such a claim presented “precisely what Rooker-Feldman pro-

hibits.” Id. at 676. “If we were to delve into the question

whether fraud tainted the state court’s judgment, the only re-

lief we could give would be to vacate that judgment. That

would amount to an exercise of de facto appellate jurisdiction

….” Id. A federal forum would simply be unnecessary be-

cause the “state’s courts are quite capable of protecting their

own integrity.” Id. To avoid Rooker-Feldman, the plaintiff

No. 22-1037 51

would need to pursue “damages for independently unlawful

conduct.” Id. at 675. 11

More recently in Swartz, we again rejected the theory that

allegations of “false claims” and “bad faith actions” on the

part of the state-court opponents take a case outside Rooker-

Feldman. 940 F.3d at 391–92. Relying on Kelley, Harold, and

Mains, we noted that such claims are “routinely dismissed un-

der Rooker-Feldman.” Id. at 392. “To find that the defendants

acted wrongfully in seizing the [property at issue] would call

into question the state court’s judgment,” which had ordered

the seizure. Id. at 391.

Most recently, in Bauer, the federal plaintiffs sought dam-

ages for the defendants’ alleged “collusion to introduce

forged evidence” in state-court foreclosure proceedings. 951

F.3d at 866. We held that Rooker-Feldman barred the suit “be-

cause any finding in favor of the [plaintiffs] would require us

to contradict the state court’s orders.” Id. Pointing to Kelley

and Swartz, we emphasized that, “were it not for the state

court’s foreclosure order and order awarding additional in-

terest, no injury would have resulted from the allegedly

forged escrow exhibit or the citations to discover assets. In-

deed, the defendants needed to prevail in the state court to

effectuate their alleged fraud.” Id.

11 We also pointed out that Indiana courts allow “a party to file for

relief from judgment based on … the fraud or misrepresentation of an ad-

verse party.” Mains, 852 F.3d at 676. So too in Wisconsin, where a plaintiff

like Gilbank may move for relief from a judgment or order based on the

alleged “[f]raud, misrepresentation, or other misconduct of an adverse

party.” Wis. Stat. § 806.07(1)(c) (“Relief from judgment or order”). See also

Matter of Lisse, 921 F.3d 629, 641 (7th Cir. 2019). The same is true in Illinois.

See 735 Ill. Comp. Stat. 5/2-1401.

52 No. 22-1037

To be clear, we are not disagreeing with the results in

Brokaw and Pushpin. Brokaw correctly allowed the claims to

proceed under the “reasonable opportunity” safety valve. The

alleged injuries in Pushpin occurred before the state-court pro-

ceedings began, so those claims also were not barred by

Rooker-Feldman. The facts of those cases did not call for recog-

nition of a “fraud exception.” But we are disapproving the

language in Brokaw and Pushpin that endorses an exception to

Rooker-Feldman based on a federal plaintiff’s allegation that

her state-court opponents or others misled or defrauded the

state court into causing her injury.

We said in Hadzi-Tanovic that failing to apply Rooker-

Feldman where claims allege injuries based on state-court

corruption would “open a large loophole” in the doctrine, one

that “has not been endorsed by the Supreme Court.” 62 F.4th

at 401–02. The same is true with a so-called “fraud exception.”

The Supreme Court has never suggested that Rooker-Feldman

does not apply to claims that sound in fraud. If a state-court

loser can challenge a state-court judgment in federal court

merely by alleging fraud, that exception could too easily

swallow the rule.

As we said in Iqbal, Rooker-Feldman is simply not con-

cerned “with why a state court’s judgment might be mis-

taken.” 780 F.3d at 729. While “fraud is one such reason[,]

there are many others.” Id. “The reason a litigant gives for

contesting the state court’s decision cannot endow a federal

district court” with jurisdiction that it does not otherwise

have. Id. In short, “fraud accusations do not change the calcu-

lus.” Matter of Lisse, 921 F.3d 629, 641 (7th Cir. 2019).

No. 22-1037 53

VII. The Effect of Heck v. Humphrey

Judge Easterbrook’s separate opinion argues for a differ-

ent reason for dismissal of the four claims that the judges join-

ing this opinion find barred by Rooker-Feldman. He treats

those claims for injuries inflicted by state-court judgments as

not yet having accrued, applying the principles underlying

Heck v. Humphrey, 512 U.S. 477 (1994). Perhaps Rooker-Feldman

and Heck share deep roots that call for further exploration. See

the academic articles cited in Judge Easterbrook’s opinion, in-

cluding Stephen I. Vladeck, The Increasingly Unflagging Obli-

gation: Federal Jurisdiction after Saudi Basic and Anna Nicole, 42

Tulsa L. Rev. 553 (2007). Nevertheless, the proposed approach

would amount to a dramatic and unprecedented expansion of

Heck beyond cases complaining about the duration of confine-

ment in criminal cases. I am not prepared to take that step.

The petitioner in Heck was a state prisoner who sued for

damages, alleging that the defendants had violated his

constitutional rights and caused his imprisonment. The

Supreme Court held that his claims were not yet ripe—had

not yet accrued—because he had not shown that his

conviction or sentence had been reversed on direct appeal,

expunged by executive order, declared invalid by an

authorized state tribunal, or called into question by a federal

writ of habeas corpus. 512 U.S. at 486–87. The Supreme Court

later took a modest step expanding Heck to cases seeking

damages for the use of invalid prison disciplinary procedures

to deprive a prisoner of good-time credits affecting the length

of imprisonment. Edwards v. Balisok, 520 U.S. 641 (1997).

Nothing on the surface of Heck or Balisok indicates broader

extension of their rule to any other categories of federal cases

seeking damages for injuries inflicted by state-court

54 No. 22-1037

judgments. Judge Easterbrook asserts, however, that we must

now “treat Heck as generally applicable to state-court judg-

ments that have not been set aside,” post at 63, based on this

court’s decision in Savory v. Cannon, 947 F.3d 409 (7th Cir.

2020) (en banc). Savory decided a question of accrual for pur-

poses of applying the statute of limitations to civil claims for

wrongful conviction. We held that the plaintiff’s conviction

remained intact, and his claims had not accrued, until he was

pardoned. Id. at 431. We rejected the civil defendants’ and the

dissenting judge’s arguments that Savory’s civil claims ac-

crued earlier, when he was released from state custody but

while his convictions remained legally intact. Id. at 418–19.

The dissent in Savory argued for the rule proposed by Justice

Souter in his Heck concurrence. See 947 F.3d at 431–34 (Easter-

brook, J., dissenting), endorsing Heck, 512 U.S. at 491–503

(Souter, J., concurring in the judgment). Savory did not en-

dorse, explicitly or implicitly, an extension of Heck to claims

like this plaintiff’s, which do not have anything to do with a

criminal conviction or the length of a criminal sentence. Per-

haps the Supreme Court might take such a step in the future,

but I do not see a basis for taking such a broad and consequen-

tial step at this point.

Regarding Heck, I should also address Judge Kirsch’s

reliance upon it and his suggestion that my view of Rooker-

Feldman would leave Heck with no work to do. Post at 76. It’s

an interesting and creative argument, but it loses sight of

history. Lower federal courts have long had an express grant

of jurisdiction to review criminal judgments of state courts, in

the form of writs of habeas corpus, at least in the wake of

Moore v. Dempsey, 261 U.S. 86 (1923), Brown v. Allen, 344 U.S.

443 (1953), and similar cases, and the enactment of 28 U.S.C.

§ 2254. Heck was of course a response to civil actions seeking

No. 22-1037 55

damages under 42 U.S.C. § 1983 for wrongful convictions in

state court. Heck was tailored to manage the integration of

habeas relief and § 1983. To my knowledge there was no

suggestion that Rooker-Feldman should apply in the context of

challenges to criminal convictions. I do not suggest it should

be extended there either, given the different heritages of the

relevant statutes and the doctrines that have evolved to

manage the respective roles of state and federal courts. If the

question were squarely presented in a future case, we could

deal with it then.

VIII. Claims Not Subject to Rooker-Feldman

The district court granted summary judgment for defend-

ants on the merits of all claims it found were not barred by

Rooker-Feldman. All members of the court agree and affirm

summary judgment for defendants on those claims. This por-

tion of this opinion is for an en banc majority.

A. Hypothetical Jurisdiction

Before addressing the merits of those claims, we consider

plaintiff’s argument on appeal that the district court erred by

exercising “hypothetical” jurisdiction over them. The district

court was a bit ambiguous with respect to the remaining

claims. At one point, the court wrote: “even if I assumed that

Gilbank suffered injuries that were not caused by … the state

court’s decisions, Gilbank has not presented evidence to sup-

port any constitutional violations” with respect to “(1) the

warrantless urinalysis; (2) the interrogation without an attor-

ney at the police station; and (3) the denial of due process.”

Gilbank, 2021 WL 5865453, at *6. Adding to the room for argu-

ment, the final judgment entered under Rule 58 said that the

case was “dismissed” without specifying whether the

56 No. 22-1037

dismissal was entirely for lack of jurisdiction or partially on

the merits and partially for lack of jurisdiction.

Plaintiff reads “even if I assumed” to mean the district

court first concluded that it lacked jurisdiction over all of

plaintiff’s claims but then proceeded to discuss the merits of

some of those claims, an exercise of “impermissible hypothet-

ical jurisdiction.” As plaintiff sees it, our only course is to re-

mand any claims that survive Rooker-Feldman to the district

court.

We are not persuaded there was such an error here. First,

the district court’s opinion as a whole shows that the court did

not disclaim jurisdiction over all of plaintiff’s claims. Summa-

rizing its decision in its introduction, the court wrote:

Gilbank’s primary injury—loss of custody of

her daughter—was the result of the state juve-

nile court decision. For reasons explained in this

opinion, this court does not have authority to re-

view state court decisions. … The other injuries

about which Gilbank complains—the warrant-

less urine test, denial of counsel, and denial of

due process—were either already addressed by

the state juvenile court or are not constitutional

violations.

Gilbank, 2021 WL 5865453, at *1. That is not the language of

hypothetical jurisdiction; it shows the district judge carefully

parsed the limits of Rooker-Feldman. That is also how the dis-

trict judge concluded his opinion:

In sum, most of Gilbank’s claims are based on

injuries that were either caused by the state ju-

venile court’s decision [i.e., Rooker-Feldman

No. 22-1037 57

applied] or were considered and rejected al-

ready by a state court [i.e., claim and/or issue

preclusion applied]. This court cannot provide

Gilbank relief on those claims. Gilbank’s other

claims lack any evidentiary basis [i.e., plaintiff

loses on the merits]. Defendants are entitled to

summary judgment.

Id. at *7.

Second, on those claims properly before the district court,

defendants moved for summary judgment on both the merits

and jurisdictional grounds, and plaintiff moved for summary

judgment on the merits. Plaintiff therefore argued or had an

opportunity to argue the merits of all her claims. Since we

have determined that jurisdiction is proper over some claims,

we may affirm the district court’s grant of summary judgment

with respect to those claims on any ground supported by the

record so long as plaintiff “had an opportunity to contest the

issue.” O’Brien v. Caterpillar Inc., 900 F.3d 923, 928 (7th Cir.

2018). All judges of this court agree that we may reach those

claims for which there is jurisdiction, and as we explain next,

agree to affirm summary judgment on the merits.

B. The Merits of Remaining Claims

1. Unreasonable Search – Urine Sample

Plaintiff’s unreasonable-search claim fails on the merits.

Consent negates any claim to an unreasonable search. United

States v. Ahmad, 21 F.4th 475, 478 (7th Cir. 2021) (“A search au-

thorized by consent is wholly valid.”), quoting Schneckloth v.

Bustamonte, 412 U.S. 218, 222 (1973). In proposed findings of

fact for summary judgment, plaintiff did not dispute that she

58 No. 22-1037

consented to the urinalysis. Her undisputed consent defeats

the claim.

2. Unreasonable Seizure & Violation of Substantive Due

Process – Removal of T.E.H.

Plaintiff’s unreasonable-seizure and substantive-due-

process claims based on the removal of T.E.H. in the course of

her traffic stop and arrest on August 21, 2018 also fail on the

merits. On that day, T.E.H. was not seized by the government

or by anyone else. Rather, when plaintiff was facing arrest that

day, she called Hoyle and asked him to come care for T.E.H.

When plaintiff was arrested, it was Hoyle—and not any

government actor—who, with plaintiff’s consent, removed

T.E.H. from the scene. With no seizure or removal by

government actors, neither claim can prevail.

3. Denial of Due Process – Interrogation Without an At-

torney

Plaintiff’s Fifth Amendment claim also fails on the undis-

puted facts. It is true that, once Miranda warnings have been

given, if the person under interrogation “states that he wants

an attorney, the interrogation must cease until an attorney is

present.” Miranda v. Arizona, 384 U.S. 436, 474 (1966). But it is

also true that, even if questioning continues, no violation of

the Fifth Amendment occurs unless and until a statement is

used in a criminal case against the person interrogated. Chavez

v. Martinez, 538 U.S. 760, 769 (2003). Plaintiff’s statements to

Detective Iverson and social worker Heinzen-Janz were never

introduced against her in a criminal trial. Her Fifth Amend-

ment right against self-incrimination therefore was not vio-

lated. Defendants are entitled to summary judgment on the

merits of this claim.

No. 22-1037 59

4. Unreasonable Seizure – Unlawful Eviction

Plaintiff also claims that she was unreasonably seized

when she was evicted from her home on August 21, 2018.

Plaintiff waived this argument by failing to develop it beyond

saying only that she suffered a “warrantless” and “unlawful

eviction.” See Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th

Cir. 2012) (“arguments that have been raised may still be

waived on appeal if they are underdeveloped, conclusory, or

unsupported by law”).

5. Substantive Due Process Before the Temporary Custody

Order

We have long recognized a substantive due process “right

to familial integrity in the context of action by child protective

services.” Sebesta v. Davis, 878 F.3d 226, 233 (7th Cir. 2017).

That right is subject to limits. The “interests in familial integ-

rity must be weighed against the state’s interest in protecting

children from harm.” Id. To interfere lawfully with family in-

tegrity, caseworkers must have “‘some definite and articula-

ble evidence giving rise to a reasonable suspicion’ of past or

imminent danger of abuse before they … take a child into pro-

tective custody” or otherwise interfere with a family unit.

Xiong v. Wagner, 700 F.3d 282, 291 (7th Cir. 2012), quoting Her-

nandez ex rel. Hernandez v. Foster, 657 F.3d 463, 478 (7th Cir.

2011). “Reasonable suspicion” means that the state actor has

“more than a hunch but less than probable cause.” Id., quoting

Hernandez, 657 F.3d at 478. This “reasonable suspicion” stand-

ard applies to all of defendants’ actions leading up to plain-

tiff’s arrest.

We doubt very much that any of the defendants’ investi-

gative conduct alleged by plaintiff amounted to interference

60 No. 22-1037

with family integrity. In any event, the undisputed facts show

that defendants’ conduct before the state-court proceedings

began was justified. When Detective Iverson and social

worker Heinzen-Janz performed a welfare check at Hoyle’s

apartment on June 29, 2018, they did so based on the report of

an anonymous caller that Gilbank and T.E.H. appeared to be

living in Hoyle’s garage during hot summer weather. When

they returned to Hoyle’s apartment on July 3, it was at plain-

tiff’s request. When they asked plaintiff to provide a urine

sample, they knew that she had a pending charge for meth-

amphetamine possession and a history of drug abuse, which

she acknowledged. And when they encountered plaintiff on

August 21, she had just been arrested for possession of meth-

amphetamine. Even if these actions could be construed as “in-

terference” with family integrity, defendants never acted

without consent or reasonable suspicion or both. The substan-

tive due process claim based on defendants’ conduct leading

up to plaintiff’s arrest therefore fails.

6. Conspiracy Under 42 U.S.C. § 1985

Section 1985(3) of Title 42 of the United States Code “pro-

vides no substantive rights itself; it merely provides a remedy

for violation of the rights it designates.” Great American Fed.

Sav. & Loan Ass’n v. Novotny, 442 U.S. 366, 372 (1979). Without

a viable claim for an underlying constitutional or federal stat-

utory violation, plaintiff’s Section 1985 conspiracy claim fails

as a matter of law.

7. Monell Claim Against the Marshfield Police Depart-

ment

Similarly, to succeed on a Monell claim seeking to hold

Marshfield liable for constitutional violations by individual

No. 22-1037 61

officers, the plaintiff must show the deprivation of a federal

right. Helbachs Café LLC v. City of Madison, 46 F.4th 525, 530

(7th Cir. 2022), citing Monell v. Department of Social Services,

436 U.S. 658 (1978). Plaintiff’s Monell claim cannot survive

summary judgment in the absence of an underlying violation

of federal law.

Conclusion

Federal jurisdiction is proper over plaintiff’s claims based

on alleged injuries that were complete before the state-court

proceedings began, and on those claims we affirm summary

judgment on the merits for the defendants. On plaintiff’s

claims alleging injuries inflicted by the state-court judgments,

dismissal is also affirmed for the reasons set forth in Parts I–

III and V–VIII of this opinion and Judge Easterbrook’s

opinion.

AFFIRMED.

62 No. 22-1037

EASTERBROOK, Circuit Judge, concurring in the judgment. I

agree with Judge Hamilton that the Rooker-Feldman doctrine

does not have an exception for bad conduct during the state

suit. The doctrine rests on the Supreme Court’s view that its

jurisdiction under 28 U.S.C. §1257 is exclusive, and jurisdic-

tional doctrines do not have equitable exceptions. Bowles v.

Russell, 551 U.S. 205, 213–14 (2007); Harrow v. Department of

Defense, 601 U.S. 480, 484 (2024). I join all but Part IV and Part

VII of Judge Hamilton’s opinion.

But I agree with Judge Kirsch that the Rooker-Feldman doc-

trine does not deprive federal district courts of jurisdiction to

award damages for injury caused by a state court’s judgment.

This is so because damages do not modify a judgment and are

not a form of appellate review. I join Part I of Judge Kirsch’s

opinion.

If this were litigation under state law, in federal court be-

cause the parties were of diverse citizenship, I would agree

with Judge Kirsch that the suit should be remanded for fur-

ther proceedings, beginning with consideration of issue and

claim preclusion (collateral estoppel and res judicata). But it

is not.

All defendants are state actors, and Gilbank’s claims rest

on 42 U.S.C. §1983. That makes a difference, given the holding

of Heck v. Humphrey, 512 U.S. 477 (1994), that a federal court

must dismiss any suit that seeks damages under §1983 on a

theory incompatible with the validity of a state court’s judg-

ment that has not been set aside on appeal or by some other

means.

The state court’s judgment at issue in Heck had been en-

tered in a criminal prosecution, but the principle is broader.

No. 22-1037 63

Edwards v. Balisok, 520 U.S. 641 (1997), holds that the same ap-

proach applies when a prisoner contests the outcome of a dis-

ciplinary proceeding. And any contention that Heck and Ed-

wards are limited to persons in custody—in order to coordi-

nate §1983 with 28 U.S.C. §2254, the main provision for collat-

eral review of state criminal judgments—would be incon-

sistent with Savory v. Cannon, 947 F.3d 409 (7th Cir. 2020) (en

banc). There we held that Heck continues to apply even after

a prisoner’s release and the end of all options to seek collateral

review (which is available only to persons in custody). After

Savory, we must treat Heck as generally applicable to state-

court judgments that have not been set aside. Once a judg-

ment has been annulled, suit for damages under §1983 is pos-

sible; until then, not. The judgment that caused Gilbank’s in-

jury has not been vacated. It has been superseded by a later

reallocation of custody, but this does not imply that any state

tribunal has found it defective.

It is possible to understand Heck and its successors as de-

signed to reconcile §1983 with the limits on collateral review

under 28 U.S.C. §§ 2254 and 2255. Indeed, I took that view

myself in Savory. But I was in dissent. 947 F.3d at 431–34. The

majority applied Heck to a person who had been released from

prison years earlier and could not obtain collateral review. It

treated Heck as instantiating a strong judicial policy against

using §1983 to create an outcome inconsistent with a state

court’s decision. 947 F.3d at 414. Heck itself said the same. 512

U.S. at 484. Having extended Heck to a situation beyond the

reconciliation of damages (§1983) with collateral review

(§2254 and §2255), and having treated it as a rule against us-

ing §1983 to collect damages on account of a state court’s un-

disturbed decision, we should accept the implications of that

choice.

64 No. 22-1037

In litigation under §1983, Heck and the Rooker-Feldman doc-

trine serve much the same function. Yet the cases that rely on

Heck do not cite Rooker or Feldman, and the reverse. (There are

a few exceptions, but they say little about how these doctrines

relate. See, e.g., Skinner v. Switzer, 562 U.S. 521, 531–37 (2011);

Homola v. McNamara, 59 F.3d 647, 650 (7th Cir. 1995); Graff v.

Aberdeen Enterprizes, II, Inc., 65 F.4th 500 (10th Cir. 2023).) Per-

haps this is because Rooker-Feldman nominally is about juris-

diction, while Heck nominally is about ripeness. Yet Rooker it-

self seems to be Heck’s progenitor. As the Justices remarked:

“If the decision was wrong, that did not make the judgment

void, but merely left it open to reversal or modification in an

appropriate and timely appellate proceeding. Unless and un-

til so reversed or modified, it would be an effective and con-

clusive adjudication.” Rooker v. Fidelity Trust Co., 263 U.S. 413,

415 (1923). Although these doctrines have different names,

they lead to the same end: as long as the state court’s judg-

ment stands, a federal district court must not intervene.

To the extent the overlap of these doctrines has attracted

any academic attention (and it has not received much), au-

thors favor treating them as functionally identical. Stephen I.

Vladeck, The Increasingly Unflagging Obligation: Federal Juris-

diction after Saudi Basic and Anna Nicole, 42 Tulsa L. Rev. 553,

563 (2007) (“[T]he analogy [between Rooker-Feldman and] the

‘favorable termination’ rule of Heck v. Humphrey is inescapa-

ble—both doctrines purport to limit lawsuits that would re-

quire a subsequent court to collaterally invalidate an earlier

decision.”); Thomas Stephen Schneidau, Favorable Termination

After Freedom: Why Heck's Rule Should Reign, Within Reason,

70 La. L. Rev. 647, 673–74 (2010) (Rooker-Feldman’s bar on ap-

pellate review of state court judgments supports applying

No. 22-1037 65

Heck’s favorable termination rule to “non-habeas-eligible

plaintiffs”).

I conclude that Heck blocks an award of damages in

Gilbank’s favor. And Heck is not her only problem.

Defendants who are, or act for, the State of Wisconsin are not

“persons” for the purpose of §1983 and cannot be sued for

damages. Will v. Michigan Department of State Police, 491 U.S.

58 (1989). The judge who entered the custody order has

absolute immunity. Pierson v. Ray, 386 U.S. 547 (1967); Stump

v. Sparkman, 435 U.S. 349 (1978). Private parties who conspire

with a judge may in principle be liable under 42 U.S.C. §1985,

see Dennis v. Sparks, 449 U.S. 24 (1980), but people who file

civil complaints and their witnesses enjoy absolute immunity

under both §1983, see Briscoe v. LaHue, 460 U.S. 325 (1983), and

state law, see Restatement (Second) of Torts §587, for statements

during the proceedings. Quite apart from either Heck or the

Rooker-Feldman doctrine, federal courts are not supposed to

resolve child-custody disputes. Ankenbrandt v. Richards, 504

U.S. 689 (1992); Ashley W. v. Holcomb, 34 F.4th 588 (7th Cir.

2022). There is just no point to a remand in this case, so I

concur in the judgment.

66 No. 22-1037

KIRSCH, Circuit Judge, concurring in part and dissenting in

part. Michelle Gilbank lost custody of her four-year-old

daughter, T.E.H., for more than a year. The state placed T.E.H.

in the custody of her father, a convicted child predator. Gil-

bank alleged that the father admitted to touching T.E.H.’s

genitals daily and that his admission led a state court to re-

verse the earlier custody decision and return T.E.H to her.

With the custody battle over, Gilbank then turned to federal

court and brought this suit for money damages, alleging that

local officials violated her constitutional rights during the cus-

tody dispute.

A majority of the court agrees that Gilbank’s lawsuit does

not fall within the narrow parameters of the Rooker-Feldman

doctrine because Gilbank’s suit cannot and will not modify

the since resolved custody judgment. See Exxon Mobil Corp. v.

Saudi Basic Indus. Corp., 544 U.S. 280, 284, 293 (2005) (Rooker-

Feldman applies only when a plaintiff asks a federal court to

overturn or undo a state court judgment). Her damages suit

does not seek to undo any state court judgment. Nor could it:

ever since Gilbank regained custody of her daughter, the state

custody proceedings have been closed. She could not appeal

an order depriving her of custody after she regained custody.

The case and the custody issue are over. Gilbank’s federal

suit, by contrast, can give her meaningful relief. Doing so

might result in a federal court frowning upon the state court’s

conclusions. But that is decidedly not a Rooker-Feldman prob-

lem.

I

I will not belabor the points I made in Hadzi-Tanovic v.

Johnson, 62 F.4th 394, 408–14 (7th Cir. 2023) (Kirsch, J., dissent-

ing from the denial of rehearing en banc), but here is the short

No. 22-1037 67

of it: Congress has authorized only the Supreme Court to ex-

ercise appellate jurisdiction over state court judgments. 28

U.S.C. § 1257(a). The Court has enforced this statutory limit

on the jurisdiction of lower federal courts just twice, in Rooker

v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Colum-

bia Court of Appeals v. Feldman, 460 U.S. 462 (1983). These cases

hold that district courts lack power to reverse a state court

judgment at the request of a disgruntled plaintiff. See Exxon,

544 U.S. at 283 (noting that the plaintiffs in both Rooker and

Feldman “essentially invited federal courts of first instance to

review and reverse unfavorable state-court judgments”).

Exxon itself was a response to lower courts’ expansive mis-

application of Rooker-Feldman. The Court clarified that

§ 1257(a)’s exception to federal jurisdiction applies only in

those “limited circumstances,” id. at 291, “where a party in ef-

fect seeks to take an appeal of an unfavorable state-court de-

cision to a lower federal court,” Lance v. Dennis, 546 U.S. 459,

466 (2006). Exxon provides the test: Rooker-Feldman “is con-

fined to cases of the kind from which the doctrine acquired its

name: [1] cases brought by state-court losers [2] complaining

of injuries caused by state-court judgments [3] rendered be-

fore the district court proceedings commenced and [4] invit-

ing district court review and rejection of those judgments.”

Exxon, 544 U.S. at 284. “Review and reject[],” the Court made

clear, means that the plaintiff asks a federal court to “over-

turn” or “undo” the state court judgment. Id. at 287 n.2, 292–

93. Only when every element is met does Rooker-Feldman enter

the picture.

Judge Hamilton’s dissent, however, reads Exxon wrong.

Ante, at 21–25. Judge Hamilton concludes that, because the

Supreme Court did not use “the language of legal precision”

68 No. 22-1037

in articulating the review and reject element, Exxon endorses

an endlessly pliable “practical approach” to Rooker-Feldman.

Id. at 22. The dissent leverages this purported flexibility to

posit that Exxon requires attention to injuries alone—the relief

sought in federal court is irrelevant. It follows, says the dis-

sent, that any plaintiff complaining of injuries caused by a

state court judgment inherently asks the federal court to re-

view and reject that judgment. So understood, it is irrelevant

whether the relief would or could have any effect on the state

court judgment.

But the source of a plaintiff’s injury is one, and only one,

requirement. The key Rooker-Feldman inquiry is not simply

whether a plaintiff’s injury can be separated from the state

court judgment that completed it but also whether the plain-

tiff asks a federal court to reverse a state court judgment. The

practical approach of Judge Hamilton’s dissent simply gives

no independent meaning to this distinct requirement.

Courts in this circuit must, however, give due weight to all

four elements of Rooker-Feldman. This requires a court to con-

sider the relief requested in determining if the plaintiff has in-

deed asked the court to reject a state court judgment. Exxon,

544 U.S. at 291–93. And it is unlikely, though not impossible,

that a plaintiff seeking damages, like Gilbank, has requested

a court to do so: awarding damages usually does not affect a

state court judgment not sounding in monetary terms.

A

Exxon’s core focus is on what the plaintiff asks the federal

court to do. The Supreme Court has repeatedly emphasized

that Rooker-Feldman is confined to cases where the plaintiff

asks the federal court to overturn a state court judgment. See

No. 22-1037 69

Milchtein v. Chisholm, 880 F.3d 895, 898 (7th Cir. 2018) (“The

vital question” the Court asked in Exxon “is whether the fed-

eral plaintiff seeks the alteration of a state court’s judgment.”).

In explaining the “limited circumstances” in which Rooker-

Feldman applies, for example, Exxon described the only two

plaintiffs to have ever lost at the Court under the doctrine:

both “called upon the District Court to overturn an injurious

state-court judgment.” 544 U.S. at 291–92 (emphasis added).

The Court later described the typical Rooker-Feldman plaintiff

as a “loser in state court [who] invites [a] federal district court

to overturn [a] state-court judgment.” Id. at 287 n.2 (emphasis

added). And in concluding that Rooker-Feldman did not bar

Exxon’s suit, the Court held that Exxon “plainly ha[d] not re-

paired to federal court to undo the [state court] judgment in its

favor.” Id. at 293 (emphasis added).

Our own cases—Brokaw v. Weaver, 305 F.3d 660 (7th Cir.

2002), and Johnson v. Pushpin Holdings, LLC, 748 F.3d 769 (7th

Cir. 2014)—correctly recognize that identifying what the

plaintiff has requested is the key Rooker-Feldman inquiry.

Brokaw recognized that Rooker-Feldman did not bar suits alleg-

ing fraud in state custody proceedings when the plaintiff did

not seek to set aside the custody judgment. 305 F.3d at 663,

666–68. Similarly, in Pushpin, we said that Rooker-Feldman

“does not bar a federal suit that seeks damages for a fraud that

resulted in a judgment adverse to the plaintiff” because

“[s]uch a suit does not seek to disturb the judgment of the

state court, but to obtain damages for the unlawful conduct

that misled the court into issuing the judgment.” 748 F.3d at

773. That is not mere “dicta,” ante, at 27, as we explicitly ad-

dressed the damages issue to “end the appeal,” Pushpin, 748

F.3d at 773. These cases do not stand for a “fraud exception”

to Rooker-Feldman, ante, at 43–52, as there has never been such

70 No. 22-1037

an exception, see Hadzi-Tanovic, 62 F.4th at 412–13 (Kirsch, J.,

dissenting from the denial of rehearing en banc). Simply,

Brokaw and Pushpin reflect the limits on Rooker-Feldman and

make plain, in line with Exxon, that Rooker-Feldman does not

apply when, given the relief sought, a plaintiff, like Gilbank,

does not seek to reverse a state court judgment. Brokaw, 305

F.3d at 663, 666–68; Pushpin, 748 F.3d at 773.

Not only does our precedent support requiring courts to

focus on the relief sought, but we are also in good company

in doing so: other circuits recognize that the key question

Exxon asks is whether the relief a plaintiff seeks would reverse

a state court judgment. See Hohenberg v. Shelby County, 68

F.4th 336, 341 (6th Cir. 2023) (“[A] complaint demanding

‘compensatory damages’ does not ‘seek review or reversal’ of

a court order awarding relief not measured by money.”) (quo-

tation omitted); Behr v. Campbell, 8 F.4th 1206, 1214 (11th Cir.

2021) (expressly rejecting the proposition that Rooker-Feldman

“focus[es] on the federal claim’s relationship to the issues in-

volved in the state court proceeding, instead of on the type of

relief sought by the plaintiff”) (quotation omitted); Webb ex rel.

K.S. v. Smith, 936 F.3d 808, 816 (8th Cir. 2019) (“An important

consideration for a court confronted with the issue of whether

Rooker-Feldman applies is to analyze ‘the effect the requested

federal relief would have on the state court judgment.’”) (quo-

tation omitted); Great W. Mining & Min. Co. v. Fox Rothschild

LLP, 615 F.3d 159, 173 (3d Cir. 2010) (“[W]hile [the plaintiff’s]

claim for damages may require review of state-court judg-

ments and even a conclusion that they were erroneous, those

judgments would not have to be rejected or overruled for [the

plaintiff] to prevail. Accordingly, the review and rejection re-

quirement of the Rooker-Feldman doctrine is not met.”); Green

v. Mattingly, 585 F.3d 97, 102 (2d Cir. 2009) (Rooker-Feldman is

No. 22-1037 71

inapplicable to a damages suit based on custody proceedings

when a child had been returned to the plaintiff because “the

question of the validity of the temporary order of removal was

likely moot and there was no basis for [the] plaintiff to ap-

peal.”); Adkins v. Rumsfeld, 464 F.3d 456, 464 (4th Cir. 2006)

(“[T]he test [under Exxon] is not whether the relief sought in

the federal suit ‘would certainly upset’ the enforcement of a

state court decree, … but rather whether the relief would ‘re-

verse or modify’ the state court decree.”) (quotation omitted).

The Tenth Circuit perhaps said it best:

As the Supreme Court emphasized in Exxon Mo-

bil, the Rooker-Feldman doctrine does not apply

simply because a party attempts to litigate in

federal court a matter previously litigated in

state court. To the contrary, a party may lose in

state court and then raise precisely the same le-

gal issues in federal court, so long as the relief

sought in the federal action would not reverse or

undo the relief granted by the state court.

Mo’s Express, LLC v. Sopkin, 441 F.3d 1229, 1237 (10th Cir. 2006)

(cleaned up). We and our sister circuits understand Exxon’s

core lesson: Rooker-Feldman applies only when a plaintiff

seeks relief from a federal court that would reverse a state

court judgment. And to the extent that some of our cases dis-

regard that lesson and focus on a plaintiff’s injury to the ex-

clusion of the relief sought, they are “both inconsistent with

Supreme Court precedent and out of step with our sister

72 No. 22-1037

circuits” and must not be followed. United States v. Parker, 508

F.3d 434, 436, 441 (7th Cir. 2007). *

Judge Hamilton concludes that, because Exxon used

“many verbs” in illustrating the review and reject element, the

Supreme Court did not mean what it said, and under a “prac-

tical approach,” courts can safely ignore the review and reject

element (and the relief a plaintiff has sought). Ante, at 22. For

the dissent—based solely on an isolated phrase: “complaining

of injuries caused by state-court judgments,” id. at 24 (quoting

Exxon, 544 U.S. at 284)—Exxon requires such an approach be-

cause its “focus … was more on the source of injuries than on

the form of relief,” id. Thus, asserts Judge Hamilton’s dissent,

once a court knows that the “injury underlying a claim was

caused by the state-court judgment, … [r]edressing the in-

jury—regardless of the form of relief requested—necessarily

requires a federal court to review and reject the state-court

judgment.” Id. at 25.

The dissent’s quasi-textual analysis holds no water: in

both its holding and its explanation of Rooker-Feldman’s

proper scope, Exxon spoke—expressly, repeatedly, and un-

ambiguously—in terms of relief. On the dissent’s read,

Rooker-Feldman would bar all federal cases (1) brought by

* Contrary to Judge Hamilton’s argument, the majority is not creating

a new rule. Ante, at 37. Rather, we are cleaning up our case law and clearly

articulating how Exxon is to be applied in our circuit. We are here because

we overruled precedent in Hadzi-Tanovic that properly described Rooker-

Feldman’s bounds (as Brokaw and Pushpin do) and continued the expansion

of Rooker-Feldman in our circuit. 62 F.4th at 402 (Hamilton, J.). I warned

then that the sprawl of our Rooker-Feldman doctrine reflected in our recent

case law was “out of step with Exxon.” Id. at 412 (Kirsch, J., dissenting from

the denial of rehearing en banc).

No. 22-1037 73

state court losers (2) complaining of injuries caused by state

court judgments that were (3) rendered before federal pro-

ceedings commenced. But Exxon did not stop there. When the

Supreme Court tells us that a rule applies only when four el-

ements are met, we do not read one of those requirements as

superfluous. We must read Exxon’s test as giving some inde-

pendent meaning to “and inviting district court review and

rejection of those judgments.” 544 U.S. at 284. The only way

to do that is to look at the relief a plaintiff seeks—what the

federal plaintiff “invite[s]” the district court to do. Id. at 283.

If a plaintiff extends the invitation to undo, reverse, or over-

turn the state court judgment, Rooker-Feldman bars her case.

Unable to find sufficient support in Exxon, Judge Hamil-

ton’s dissent trots out a parade of horribles to justify its ex-

pansive view of Rooker-Feldman. Ante, at 35; see also id. at 31–

36. It warns that the majority view would mean “federal

courts could award damages every time a litigant in state

court used an improper procedure or considered evidence

that a federal judge does not think trustworthy.” Ante, at 23–

24 (quoting Harold v. Steel, 773 F.3d 884, 887 (7th Cir. 2014)).

No, they couldn’t. A federal court’s jurisdiction to hear a case

says nothing about its merits. Preclusion, immunity, absten-

tion, and merits-focused defenses all impede a state court

loser’s path to damages, even if they will not guarantee a loss

for every plaintiff who seeks to call a state court judgment into

question. But they have nothing to do with jurisdiction, and

applying them is the job of federal courts.

The dissent also misapprehends the role that relief plays

in the application of the review and reject element. There is

no “bright-line rule,” as the dissent fears, that in all cases,

“Rooker-Feldman does not apply to a federal claim for damages

74 No. 22-1037

based on an injury inflicted by a state-court judgment.” Ante,

at 21. Rather, a determination of whether a court is being

called upon to review and reject a state court judgment must

involve some comparison of the relief requested with the re-

lief granted by the state court. Hohenberg, 68 F.4th at 341; Sop-

kin, 441 F.3d at 1237.

By way of example, in a case where the state-court judg-

ment sounded in monetary relief, a plaintiff repairing to fed-

eral court pursuing refund or adjustment of the sum assessed

against her could be seeking review and rejection of that judg-

ment because the relief sought would nullify or modify the

judgment. Indeed, in Bauer v. Koester, 951 F.3d 863 (7th Cir.

2020), a state court, in a foreclosure proceeding, issued a mon-

etary judgment against the plaintiffs who then, in federal

court, sought actual and punitive damages for alleged consti-

tutional violations in that proceeding. Id. at 865–66. Though

the plaintiffs only sought damages, their claim would be

barred by Rooker-Feldman because awarding such damages

would refund the money assessed against them and thereby

void the judgment. See, e.g., Fliss v. Generation Cap. I, LLC, 87

F.4th 348, 353 (7th Cir. 2023) (suggesting that Rooker-Feldman

bars actions seeking a refund of the damages assessed by the

state court); Graff v. Aberdeen Enterprizes, II, Inc., 65 F.4th 500,

519 n.24 (10th Cir. 2023) (indicating that a claim for money

damages seeking to recover the amount of debt imposed in

the judgment of conviction would be barred); cf. Gisslen v.

City of Crystal, Minn., 345 F.3d 624, 627–28 (8th Cir. 2003)

(finding that Rooker-Feldman bars a damages claim that chal-

lenges a state court’s determination of just compensation for

a taking). This clarification should mollify the dissent’s fear of

opening the courts to a flood of cases and “longer and more

extensive litigation.” Ante, at 34.

No. 22-1037 75

Even if the dissent’s policy concerns stand, so what if our

jurisdiction extends to these cases? The specter of federal

courts exercising jurisdiction in the areas of mortgage foreclo-

sure, family law, and other cases, ante, at 31, does not justify

shirking the “virtually unflagging obligation” to exercise our

jurisdiction, Colorado River Water Conservation Dist. v. United

States, 424 U.S. 800, 817 (1976). And the dissent’s concern

about an increase in “friction between state and federal

courts” cannot displace that obligation, especially when such

friction is contemplated by our system of concurrent jurisdic-

tion. Ante, at 36. We trust that courts can avoid any “increase”

in that friction, not by refusing jurisdiction, but through rig-

orous application of the arsenal of doctrines that will stymy

state-court losers from proceeding far in their federal suits. Id.

The Supreme Court shares neither Judge Hamilton’s con-

cerns nor a desire for a broader Rooker-Feldman doctrine. The

Court has been clear: “Neither Rooker nor Feldman elaborated

a rationale for a wide-reaching bar on the jurisdiction of lower

federal courts, and our cases since Feldman have tended to em-

phasize the narrowness of the Rooker-Feldman rule.” Lance, 546

U.S. at 464. And in nearly half a century, the Court “has never

applied Rooker-Feldman to dismiss an action for want of juris-

diction.” Exxon, 544 U.S. at 287; see also, e.g., Reed v. Goertz,

598 U.S. 230, 235 (2023); Skinner v. Switzer, 562 U.S. 521, 532–

33 (2011).

The breadth of the dissent’s position—and its incongruity

with the Court’s view—is clear when applied to the overlap

between Rooker-Feldman’s bar and that of Heck v. Humphrey,

512 U.S. 477 (1994). See Sanchez v. City of Chicago, 880 F.3d 349,

356 (7th Cir. 2018) (identifying that both Heck and Rooker-

Feldman can bar a challenge to a state court conviction).

76 No. 22-1037

Consider a plaintiff alleging malicious prosecution, a Fourth

Amendment violation. Heck holds that 42 U.S.C. § 1983 does

not authorize him to sue for that violation until his

maliciously obtained conviction has been set aside. 512 U.S. at

486–89. But once that happens, the plaintiff can sue in federal

court to remedy the violation of his constitutional rights. The

approach in Judge Hamilton’s dissent, however, would

render Heck’s holding superfluous. If the dissent were correct,

Roy Heck’s § 1983 suit would have been dismissed at the

outset on jurisdictional grounds under Rooker-Feldman—he

was a state court loser complaining of injuries effectuated by

his conviction. Id. at 478–79. But Heck is not jurisdictional. See,

e.g., Polzin v. Gage, 636 F.3d 834, 837 (7th Cir. 2011) (“The Heck

doctrine is not a jurisdictional bar.”); Garrett v. Murphy, 17

F.4th 419, 427 (3d Cir. 2021) (collecting cases). Under the

dissent’s unyielding rule, district courts no longer need to (or

even have jurisdiction to) invoke Heck. Instead, they must

dismiss every suit complaining of injuries that contributed to

a state court conviction, whether the conviction has been

vacated or not. That is not the law.

B

Duly regarding, rather than brushing off, whether we

have been asked to “review, reject, overturn, undo, reverse,

set aside, [or] alter,” ante, at 22, a state court judgment dictates

the outcome here: given the status of the custody judgment

and the relief she seeks, Rooker-Feldman does not bar Gilbank’s

claims. The return of her child resolved the state court judg-

ment that effectuated Gilbank’s alleged constitutional inju-

ries. By giving meaning to each requirement of Exxon, partic-

ularly the fourth, our jurisdiction is secure because the state

court proceedings are “over,” “the state court[‘s] decisions are

No. 22-1037 77

not subject to review anywhere,” and Gilbank, in requesting

damages, “did not ask the district judge, and do[es] not ask

us, to alter or annul any decision by a state judge.” Milchtein,

880 F.3d at 897.

The Second and Sixth Circuits have provided the blueprint

for resolving the very issue before us in accordance with

Exxon. In Green v. Mattingly, 585 F.3d 97 (2d Cir. 2009), the

plaintiff sued multiple state officials involved with temporar-

ily removing her daughter from her custody, alleging that

they had violated her constitutional rights. Id. at 99. The Sec-

ond Circuit held that, under Exxon, Rooker-Feldman did not ap-

ply because the plaintiff’s child had been returned to her:

“The only conceivable ‘judgment’ against plaintiff—the tem-

porary removal of her child—has already been undone.” Id.

at 102. In Kovacic v. Cuyahoga County Department of Children and

Family Services, 606 F.3d 301 (6th Cir. 2010), the Sixth Circuit

likewise held that Rooker-Feldman did not bar damages claims

based on the conduct of the social workers that led to a cus-

tody judgment which was no longer in effect. Id. at 302–03.

Because those plaintiffs sought only damages for alleged un-

constitutional conduct, “any action concerning [the chil-

dren’s] return to their mother’s custody became moot when

they were reunited with their mother.” Id. at 310. So too for

Gilbank: after she regained full custody of her daughter, the

custody dispute was over, and there was no state court judg-

ment to appeal. And because there is no judgment upon

which Gilbank can seek appellate review, § 1257(a)’s limit on

appellate jurisdiction is irrelevant.

Yet Judge Hamilton’s dissent maintains that its analysis is

consistent with Exxon because Gilbank’s claims invited the

federal court to review and reject those since-resolved

78 No. 22-1037

custody orders. While paying (what one might generously

call) lip service to the review and reject element, it finds we

lack jurisdiction because Gilbank’s “only alleged injury is the

deprivation of custody itself, as ordered by the state trial

court,” and the “premise” of her claims is that “the state-court

judgments were wrong, and there is no conceivable way to

redress the [injury] without … reviewing and rejecting those

state-court judgments as incorrect.” Ante, at 23 (cleaned up).

But Exxon squarely contradicts this approach: “If a federal

plaintiff ‘present[s] some independent claim, albeit one that

denies a legal conclusion that a state court has reached in a

case to which he was a party …, then there is jurisdiction and

state law determines whether the defendant prevails under

principles of preclusion.’” 544 U.S. at 293 (quoting GASH As-

socs. v. Rosemont, 995 F.2d 726, 728 (7th Cir. 1993)).

Even if the premise of Gilbank’s claims is that a state court

judgment is wrong, and thereby she seeks to “put the Wiscon-

sin trial court’s proceedings under a microscope” by relitigat-

ing issues she raised or could have raised in that court, that is

a question of state preclusion law. Ante, at 35. Indeed, preclu-

sion requires a court to put prior proceedings, even state-

court proceedings, “under a microscope,” id., to determine

the issues that were actually litigated, Waagner v. United States,

971 F.3d 647, 657 (7th Cir. 2020). Courts can do so without

calling judges as witnesses. And because Rooker-Feldman “is

not simply preclusion by another name,” Lance, 546 U.S. at

466; Hohenberg, 68 F.4th at 339, it does not preclude claims

merely premised on challenges to a state court’s decision. And

that is true even if Rooker-Feldman might “offer a much better

prospect” for courts to rid themselves of cases seeking to re-

litigate state court judgments than equitable doctrines of pre-

clusion. Ante, at 32–34. The dissent’s goal-oriented application

No. 22-1037 79

of Rooker-Feldman to suits premised on the incorrectness of

state court judgments would encourage the federalization of

state preclusion law, contravening the Court’s admonish-

ments. See Exxon, 544 U.S. at 283 (expressing concern that

lower courts’ expansive use of Rooker-Feldman was “supersed-

ing the ordinary application of preclusion law”).

A determination that Gilbank’s claims are not barred by

Rooker-Feldman does not categorically reject its application to

suits seeking money damages. In contrast to a damages award

that would neutralize the money judgment issued in state

court, such as in Bauer, awarding Gilbank damages could do

nothing to the custody judgment because: (1) the custody dis-

pute is over; and (2) even if it were not, the judgment pro-

vided equitable relief that an award of damages would not

undo. This conclusion shows only that the relief Gilbank

sought could not undo the custody determination and thus,

under Exxon, her suit is beyond the reach of Rooker-Feldman.

II

One final point. I agree with the majority’s dismissal on

the merits of the warrantless urinalysis claim, the Fifth

Amendment right to counsel claim, and the due process

claims, all of which the district court addressed on the merits

and dismissed with prejudice. However, we cannot reach the

merits of Gilbank’s remaining claims. While we ordinarily

may affirm the district court on any ground adequately sup-

ported by the record, see Bay v. Cassens Transp. Co., 212 F.3d

969, 972–73 (7th Cir. 2000), the merits of Gilbank’s remaining

claims that were solely dismissed under Rooker-Feldman are

not properly before us. This is because “an appellee who does

not cross-appeal may not ‘attack the decree with a view either

to enlarging his own rights thereunder or of lessening the

80 No. 22-1037

rights of his adversary.’” Jennings v. Stephens, 574 U.S. 271, 276

(2015) (quotation omitted). And while dismissals based on a

lack of subject matter jurisdiction are without prejudice, affir-

mance based on defendants’ alternative merits arguments

would require dismissal of Gilbank’s claims with prejudice.

Bernstein v. Bankert, 733 F.3d 190, 224 (7th Cir. 2013) (“The case

law holds, consistent with Rule 41(b), that a dismissal for lack

of subject matter jurisdiction cannot be a dismissal with prej-

udice.”); Fed. R. Civ. P. 41(b). To enlarge their relief in this

way, defendants needed to cross-appeal; they did not, which

precludes our review. See Bankert, 733 F.3d at 224 (“[A]n ap-

pellee who wants, not that the judgment of the district court

be affirmed on an alternative ground, but that the judgment

be changed … from a dismissal without to a dismissal with

prejudice, … must file a cross-appeal.”) (cleaned up).

* * *

The state court took Gilbank’s daughter from her. Gilbank

has her daughter back. The custody dispute is over, and the

state court judgment is not in effect. Because Gilbank never

asked to reverse the state custody judgment, Rooker-Feldman

does not bar her claims, and the district court had jurisdiction.

Their dismissal on Rooker-Feldman grounds should therefore

be reversed. This narrower view of Rooker-Feldman is how

courts in this circuit will apply the doctrine going forward.

I concur in the dismissal, on the merits, of Gilbank’s uri-

nalysis, Fifth Amendment right to counsel, and due process

claims. I respectfully dissent from the mandate affirming the

dismissal of her remaining claims on Heck and Rooker-Feldman

grounds.