Stanton, John v. DC Ct Appeals

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 2, 1997 Decided October 17, 1997

No. 96-7041

John Stanton,

Appellant

v.

District of Columbia Court of Appeals,

Appellee

Appeal from the United States District Court

for the District of Columbia

(No. 95cv01952)

John Stanton, appearing pro se, argued the cause and filed

the briefs for appellant.

Richard M. Wyner argued the cause for appellee. With

him on the brief were Jo Anne Robinson, Interim Corpora-

tion Counsel, Charles L. Reischel, Deputy Corporation Coun-

sel, and Donna M. Murasky, Assistant Corporation Counsel.

Before: Wald, Williams and Ginsburg, Circuit Judges.

Opinion for the Court filed by Circuit Judge Williams.

Williams, Circuit Judge: This case is the latest episode in

a serial dispute between appellant John Stanton and the

District of Columbia Court of Appeals ("DCCA"). Having

been suspended from the bar under rules that did not auto-

matically restore him on the lapse of his suspension, Stanton

has thrice petitioned the DCCA for reinstatement. While the

third petition was pending with that court, he filed suit in

federal court posing constitutional challenges both to the

substantive provisions of the D.C. Rules of Professional Con-

duct (with which an applicant for reinstatement must be

ready to comply in order to show fitness to practice), and to

the procedures governing reinstatement.

The district court dismissed the claim on grounds of ab-

stention under Younger v. Harris, 401 U.S. 37, 43-54 (1971),

because of the pending proceeding in the D.C. judicial sys-

tem. But the Younger abstention has now been mooted by

the end of that proceeding, In re Stanton, 682 A.2d 655 (D.C.

1996), cert. den., 66 U.S.L.W. 3221-22 (U.S. Oct. 7, 1997) (No.

96-1947). So we would ordinarily vacate the district court's

abstention disposition and remand the case. See Wood v.

Several Unknown Metropolitan Police Officers, 835 F.2d 340,

342-44 (D.C. Cir. 1987). Before doing so, however, we first

inquire whether there are alternate grounds for affirming the

dismissal. Id. at 343 (evaluating res judicata effect of con-

cluded D.C. proceeding on appeal from Younger abstention).

Cf. Helvering v. Gowran, 302 U.S. 238, 245 (1937) (holding

that "if the decision below is correct, it must be affirmed,

although the lower court relied upon a wrong ground or gave

a wrong reason"). Here the DCCA argues that we should

affirm either because the district court lacked jurisdiction by

virtue of the Rooker-Feldman doctrine's proscription of infe-

rior federal court review of state judgments, or because

Stanton's claims were barred by issue or claim preclusion.

We find that Rooker-Feldman is indeed fatal to Stanton's

substantive claim, but that neither it nor any preclusion

doctrine disposes of the procedural claims. Accordingly we

affirm in part and reverse in part.

* * *

On November 30, 1983 the DCCA issued two orders sus-

pending Stanton from the practice of law. In both cases it

found Stanton guilty of "neglect of a legal matter entrusted to

him," in violation of then-applicable Disciplinary Rule ("DR")

6-101(A)(3), and "intentional failure to seek a client's lawful

objectives," in violation of DR 7-101(A)(1). The DCCA or-

dered concurrent suspensions of a year and a day, In re

Stanton, 470 A.2d 272 (D.C. 1983) ("Stanton I"), and of 60

days, In re Stanton, 470 A.2d 281 (D.C. 1983) ("Stanton II").

The details of the incidents leading to the suspensions are set

out in the reports of the D.C. Board on Professional Respon-

sibility, published with the suspension orders. The deficien-

cies recounted include failure to seek bond reviews at the

request of clients (evidently extending the clients' pre-trial

time in jail), failure to talk with clients about their cases,

failure to investigate clients' cases, and finally, failure to

assist clients who wished to plead guilty in their efforts to do

so. The extra day of Stanton's year-and-a-day suspension is

critical. Under rules then prevailing and continuing to gov-

ern attorneys suspended at that time, attorneys suspended

for more than one year are not automatically restored to the

bar on the lapse of their suspensions, but are required to file

a petition for reinstatement; if denied reinstatement they

may file their next petition no sooner than a year after the

denial.1 Stanton's reinstatement petitions having been uni-

formly denied, see In re Stanton, 532 A.2d 95 (D.C. 1987)

("Stanton III"); In re Stanton, 589 A.2d 425 (D.C. 1991)

("Stanton IV"); In re Stanton, 682 A.2d 655 (D.C. 1996)

("Stanton V"), he remains under suspension.

__________

1 Current D.C. Bar Rule XI s 16(c) provides that reinstatement

of attorneys suspended for more than one year prior to September

1, 1989 is governed by the requirements in effect at the time of the

suspension. Accordingly, Stanton's case is governed by Rule XI

s 21 of the prior rules.

Since the original year-and-a-day suspension, Stanton has

filed many actions in local and federal courts, all so far

unavailing. In the present case, he asserts three claims.

First, he argues that certain of D.C.'s Rules of Professional

Conduct, successors of the rules he was originally found to

have violated, deprive D.C. bar members of rights of free

expression protected by the First Amendment. He specifical-

ly attacks Rule 1.2(a), insofar as it requires that in "a criminal

case, the lawyer shall abide by the client's decision, after

consultation with the lawyer, as to a plea to be entered," and

Rule 1.3(a), which requires that a "lawyer shall represent a

client zealously and diligently within the bounds of the law."

As we shall see, these claims appear to be comprehensible--if

at all--only in the context of Stanton's personal quarrel with

the DCCA over the lawyer's role in the plea process.

In the procedural counts of his complaint, Stanton claims

that the composition and procedures of the D.C. Board on

Professional Responsibility violate the due process clause.

(Stanton does not say, but he presumably means the due

process clause of the Fifth Amendment, as it is that which

applies to D.C.) On all three claims Stanton seeks declarato-

ry relief.

* * *

Because it is jurisdictional, we first consider the Rooker-

Feldman doctrine, set forth in Rooker v. Fidelity Trust Co.,

263 U.S. 413, 415 (1923), and District of Columbia Court of

Appeals v. Feldman, 460 U.S. 462 (1983). The doctrine is

drawn from 28 U.S.C. s 1257, which channels directly to the

Supreme Court all federal review of judicial decisions of state

(and D.C.) courts of last resort. By making clear that the

inferior federal courts lack jurisdiction over such decisions,

Rooker-Feldman ensures that the Court's appellate jurisdic-

tion is exclusive. See Feldman, 460 U.S. at 482. That

Stanton's now-completed third reinstatement proceeding was

judicial in nature is clear and undisputed. See, e.g., Richard-

son v. District of Columbia Court of Appeals, 83 F.3d 1513,

1514 (D.C. Cir. 1996); see generally Feldman, 460 U.S. at

476-81.

In promulgating rather than applying bar rules, however,

the DCCA acts in a legislative rather than a judicial capacity.

Accordingly, a district court confronted with a simple chal-

lenge to the validity of such rules "is not reviewing a state-

court judicial decision" and thus has subject matter jurisdic-

tion. Feldman, 460 U.S. at 486. Applying Rooker-Feldman

requires us to draw a line between permissible general chal-

lenges to rules and impermissible attempts to review judg-

ments. And Feldman also tells us that even a constitutional

claim pled as a general attack may be so "inextricably inter-

twined" with a state court decision that "the district court is

in essence being called upon to review the state-court deci-

sion." Id. at 483-84 n.16; see also id. at 486-87.

How to detect the fatal "intertwining"? In Feldman itself

plaintiffs attacked both a general rule of the DCCA and the

refusal of that court to grant plaintiffs a waiver. The Court

found the attack on the rule independent enough, noting that

the rule did not even contemplate the waiver procedure that

plaintiffs claimed had been applied unevenly. Id. at 487-88 &

n.18. Thus, as we said in Richardson, "the core of plaintiffs'

generalized challenge was independent of the specific decision

to deny a waiver." 83 F.3d at 1515 (emphasis added). Cf.

Levin v. Attorney Registration and Disciplinary Comm'n of

the Supreme Court of Ill., 74 F.3d 763, 766 (7th Cir. 1996)

(distinguishing "between plaintiffs who claim their injuries

are directly attributable to an erroneous state court decision

and plaintiffs who claim injury independent of any state court

judgment"); see also GASH Associates v. Village of Rose-

mont, 995 F.2d 726, 728 (7th Cir. 1993); David P. Currie, "Res

Judicata: The Neglected Defense," 45 U. Chi. L. Rev. 317,

324-25 (1977).

None of Stanton's three claims lends itself to easy classifi-

cation. The First Amendment count's assertion that Rules

1.2(a) and 1.3(a) "restrict and curtail expression and practice

of the dissident," Complaint p 22, seems to pose a general

challenge. And Stanton's request for a declaration that the

rules are "in violation of the federal right to freedom of

expression," id. p. 6, bespeaks a claim independent of his

personal situation. Cf. Centifanti v. Nix, 865 F.2d 1422, 1429

(3rd Cir. 1989) (noting plaintiff's quest for declaratory relief as

well as generalized character of the injunction sought). But

the Complaint stresses that the Board on Professional Re-

sponsibility--which initially handles petitions for reinstate-

ment and forwards its findings and recommendations to the

DCCA--was at the time of Stanton's federal complaint rec-

ommending denial of reinstatement "because of [plaintiff's]

strongly-held philosophical opinions and beliefs regarding

guilty pleas in criminal prosecutions." Complaint p 21. Stan-

ton's "belief," which he thinks these rules unconstitutionally

trammel, appears to be that a lawyer's advocacy of a guilty

plea somehow denies the accused his rights "to freedom from

involuntary self-incrimination and to assistance of counsel."

Id. The only intelligible reading of Stanton's complaint is as

a claim that the Board's negative recommendation grew out

of the challenged rules. (The Board's findings and recom-

mendations have not been filed in this case.) Partly because

Stanton's pleading and briefing leave us somewhat baffled at

how any facial First Amendment attack on the two rules

might be framed, we conclude that there is no substance to

Stanton's First Amendment claim other than his challenge to

the DCCA's application of the disciplinary rules in his case.

Thus the "core" of the claim cannot be considered indepen-

dent of the DCCA's adoption of the Board's specific recom-

mendation. See Stanton V, 682 A.2d at 656-68; see also

Richardson, 83 F.3d at 1515. Because the First Amendment

claim is inextricably intertwined with that judgment, we hold

that the district court lacked subject matter jurisdiction over

this count of the complaint and affirm its dismissal.

Stanton's articulation of his procedural theories is also

multidirectional. On the one hand he notes that the DCCA

has processed his reinstatement petitions under what he says

are defective procedures, Complaint p 6, and he devotes a

good deal of energy to claiming that the operations of the

Board, presumably as manifested in its proceedings on his

many petitions, violate D.C. law (evidently believing, contrary

to any number of cases,2 that a state's violation of its own

procedures is ipso facto a violation of the federal Constitu-

tion), Complaint WW 10-14. But on the other hand much of his

complaint is framed in very general terms, attacking the

absence of notice to the public in the process of appointing

Board members, id. p 9, and challenging what he characteriz-

es as the unduly "limited review" powers of the DCCA over

the Board, id. p 18. These contentions seem perfectly able to

stand on their own feet, as would any facial challenge to

agency rules brought under the relatively relaxed ripeness

requirements of Abbott Laboratories v. Gardner, 387 U.S. 136

(1967). Because a discernible core of these claims stands

independent of the DCCA's past rulings on Stanton's efforts

at reinstatement, we believe that Rooker-Feldman does not

deprive the district court of jurisdiction over them.

* * *

We now turn to the DCCA's arguments that the judgments

in those proceedings bar the current challenges, either on the

ground that Stanton raised them and lost on the merits (issue

preclusion), or on the ground that they were part of his

earlier claims, so that he is barred for failure to raise them

then (claim preclusion). At the outset Stanton objects that

the DCCA did not plead res judicata before the trial court

and hence cannot do so before us. Res judicata is an

affirmative defense that may be lost if not pleaded in the

answer; it may not ordinarily be asserted for the first time

on appeal. See Poulin v. Bowen, 817 F.2d 865, 869 (D.C. Cir.

1987); Federal Rule of Civil Procedure 8(c).

This case, however, comes to us following the DCCA's

successful pre-answer motion to dismiss under Rules 12(b)(1)

and 12(b)(6); no answer has yet been filed. Cf. Harris v.

U.S. Department of Veterans Affairs, No. 96-5091 (D.C. Cir.

Oct. 10, 1997) (where answer had been filed without raising a

Rule 8(c) defense, the defendant could not raise it without

securing leave to amend answer). It is true, of course, that

__________

2 See, e.g., Estelle v. McGuire, 502 U.S. 62, 67 (1991); Brandon v.

District of Columbia Board of Parole, 823 F.2d 644, 649 (D.C. Cir.

1987); see also Snowden v. Hughes, 321 U.S. 1, 11 (1944).

courts have allowed parties to assert res judicata by disposi-

tive motions under these rules. See, e.g., Westwood Chemi-

cal Co., Inc. v. Kulick, 656 F.2d 1224, 1227 (6th Cir. 1981)

(citing cases); Riddle v. National Railroad Passenger Corp.,

869 F. Supp. 40, 42 (D.D.C. 1994) (granting motion to dismiss

on res judicata grounds); McLaughlin v. Bradlee, 599

F. Supp. 839, 850 (D.D.C. 1984) (granting 12(b)(6) motion on

res judicata grounds). Thus the DCCA did have an opportu-

nity to make this argument below. Yet if a party that fails to

assert res judicata in a Rule 12(b)(6) motion is sleeping on its

rights, it is an inconsequential catnap; we know of no case in

which a court has prevented a party from pleading res

judicata in its answer simply because it failed to do so in an

earlier motion to dismiss. Cf. English v. Dyke, 23 F.3d 1086,

1090 (6th Cir. 1994) (holding that failure to raise qualified

immunity defense in pre-answer motion does not waive right

to assert it on post-answer motion). (Indeed, had the DCCA

asserted res judicata in its motions, the District Court, cor-

rectly resolving jurisdictional questions first, would not have

been able to reach the issue.) If prevented from making its

res judicata arguments to us on this appeal, the DCCA could

simply present them in its answer on remand.

We can conceive of no reason for such judicial volleyball.

Stanton, who argues the question of res judicata forcefully in

his reply brief, Reply Br. at 6-9, suggests no way in which

our resolution of the issue on appeal would prejudice him.

And while res judicata exists in part to shield parties from

duplicative and vexatious litigation, the interests that courts

protect are also often their own--or, more precisely, those of

society. " 'Courts today are having difficulty giving a litigant

one day in court. To allow that litigant a second day is a

luxury that cannot be afforded.' " National Treasury Em-

ployees Union v. I.R.S., 765 F.2d 1174, 1177 (D.C. Cir. 1985)

(quoting C. Wright, Law of Federal Courts 678 (4th ed. 1983)).

As res judicata belongs to courts as well as to litigants,

even a party's forfeiture of the right to assert it--which has

not happened here because the defendant remains free to file

an answer--does not destroy a court's ability to consider the

issue sua sponte. See Nixon v. United States, 978 F.2d 1269,

1297 (D.C. Cir. 1992) (Henderson, J., concurring); cf. Bech-

told v. City of Rosemount, 104 F.3d 1062, 1068 (8th Cir. 1997)

(appellate court may raise res judicata sua sponte to affirm

district court); Russell v. SunAmerica Securities, Inc., 962

F.2d 1169, 1172 (5th Cir. 1992) (same). In the circumstances

of this case, where there is no prejudice to the plaintiff, no

forfeiture has yet occurred, the relevant facts stand uncontro-

verted in the record before us, and denial would only engen-

der delay, we are willing to consider the defense for the first

time on appeal.

We give judgments of other courts the same preclusive

effect as would the issuing court--in this case, the D.C. Court

of Appeals. See 28 U.S.C. s 1738; Matsushita Elec. Indus-

trial Co. v. Epstein, 116 S. Ct. 873, 877 (1996). The DCCA

(as litigant before us) suggests that in its adjudication of

Stanton's reinstatement petitions, it has already declared his

current constitutional claims barred by res judicata. The

decisions do not in fact do so.

The DCCA has considered and rejected three of Stanton's

reinstatement petitions. See Stanton III; Stanton IV; Stan-

ton V. In the first and third of these, Stanton raised consti-

tutional arguments that the court refused to consider on res

judicata grounds. See Stanton III, 532 A.2d at 96; Stanton

V, 682 A.2d at 656 n.4. But, although the petitions were for

reinstatement, the challenges that the DCCA barred under

res judicata were ones directed at the original suspension

proceeding, proposing by way of relief that the suspension

order be vacated or rescinded. And each was held precluded

by Stanton's failure to raise it as a defense at his suspension

hearing. The claims now before us, by contrast, are directed

at general aspects of the reinstatement proceedings and seek

only prospective relief. The DCCA has not considered them.

We thus conduct our own inquiry into whether D.C. res

judicata principles preclude them.

First, we note that because the D.C. courts have never

considered Stanton's due process claims on the merits, there

is no possibility that issue preclusion would bar them. Issues

may be deemed identical even though their factual contexts

and underlying claims differ. See Restatement (Second) of

Judgments s 27 comment c (1982) (factors suggesting identi-

ty of issues include overlap between evidence and argument

to be advanced, application of same rule of law, and relation

between claims involved). Thus Stanton's current attacks on

the reinstatement procedures could involve the same issues as

his earlier attacks on the suspension procedures. But the

decisions in Stanton III and Stanton V rejected the chal-

lenges because of Stanton's failure to raise them in the

suspension proceedings, not because of any prior merits

rejection--i.e., applying claim preclusion, not issue preclusion.

Thus, assuming that there was sufficient identity in principle

between Stanton's due process attacks on D.C.'s suspension

procedure and those on its reinstatement procedure for issue

preclusion to be even conceivable, the lack of merits consider-

ation defeats any application of issue preclusion.

The general principle of claim preclusion is that a final,

valid judgment on the merits precludes any further litigation

between the same parties on the same cause of action.3

Jurisdictions differ as to its reach largely because they start

from different understandings of the scope of a "cause of

action." The District of Columbia, like the majority of juris-

dictions, has adopted the Second Restatement's "transaction-

al" approach under which a " 'cause of action,' for purposes of

claim preclusion, comprises 'all rights of the plaintiff to

remedies against the defendant with respect to all or any part

of the transaction, or series of connected transactions, out of

which the action arose.' " Smith v. Jenkins, 562 A.2d 610,

613 (D.C. 1989) (quoting Restatement (Second) of Judgments

s 24(1) (1982)). "What factual grouping constitutes a 'trans-

action' and what groupings constitute a 'series,' " the Restate-

ment continues, "are to be determined pragmatically," consid-

ering "whether the facts are related in time, space, origin, or

motivation, whether they form a convenient trial unit, and

whether their treatment as a unit conforms to the parties'

__________

3 "Cause of action" and "claim" alternate throughout the caselaw.

We use them interchangeably, following the cases discussed.

expectations or business understanding or usage." Id. at

s 24(2).

Admonitions to pragmatism do not decide cases, and this

standard is obviously far from self-explanatory. Nor have

the D.C. courts specifically articulated how they would treat a

plaintiff's general prospective challenge to procedural rules

that governed prior proceedings in which the plaintiff could

have raised identical points. We thus look for guidance to

broader principles of claim preclusion, and here the federal

courts are instructive.4

Federal law is clear that post-judgment events give rise to

new claims, so that claim preclusion is no bar. Thus, if the

plaintiff alleges a combination in restraint of trade, a new

cause of action accrues each time it operates against him, and

previous judgments do not bar repeated challenges. Lawlor

v. Nat'l Screen Service Corp., 349 U.S. 322, 327-28 (1955)

(1943 judgment against plaintiff's antitrust claims does not

bar claims for identical conduct occurring thereafter). See

also Cellar Door Productions, Inc. v. Kay, 897 F.2d 1375,

1377-78 (6th Cir. 1990); Page v. United States, 729 F.2d 818,

820 (D.C. Cir. 1984). But see Peugeot Motors of America,

Inc. v. Eastern Auto Distributors, Inc., 892 F.2d 355, 359 (4th

Cir. 1989) (holding that continued application of policies chal-

lenged in prior litigation does not create new cause of action).

Similarly, each successive enforcement of a statute--such

as each year a taxpayer is subjected to a tax--creates a new

cause of action. Commissioner v. Sunnen, 333 U.S. 591, 597-

__________

4 The D.C. law of claim preclusion does not differ significantly

from the federal. D.C. courts articulating the doctrine commonly

cite federal cases applying federal law. See, e.g., Smith v. Jenkins,

562 A.2d 610, 613 (D.C. 1989) (quoting Lawlor v. Nat'l Screen

Service, 349 U.S. 322, 326 (1955)); Stutsman v. Kaiser Foundation

Health Plan of the Mid-Atlantic States, 546 A.2d 367, 370 (D.C.

1988) (citing Page v. United States, 729 F.2d 818, 820 (D.C. Cir.

1984)). We have said that "we can discern no material differences

in the District of Columbia's law of res judicata and the federal

common law of res judicata." U.S. Industries, Inc. v. Blake Con-

struction Co., 765 F.2d 195, 204 n.20 (D.C. Cir. 1985).

99 (1948). And a number of cases hold that a criminal

conviction under a statute leaves the defendant free not only

to invoke new constitutional defenses against the statute in a

subsequent criminal case but also to initiate an action seeking

declaratory or injunctive relief against future applications of

the statute. See Brown v. Scott, 462 F. Supp. 518, 520 (N.D.

Ill. 1978) (holding that guilty plea will not prevent defendant

from asserting statute's unconstitutionality in suit for declara-

tory judgment on future prosecutions, and noting that the

plea would not bar the defense in a trial for a later violation),

rev'd on other grounds, 602 F.2d 791 (7th Cir. 1979), aff'd sub

nom. Carey v. Brown, 447 U.S. 455 (1980); Mustfov v.

Superintendent of Chicago Police Dep't, 733

F. Supp. 283, 292 (N.D. Ill. 1990); Maynard v. Wooley, 406

F. Supp. 1381, 1385 n.6 (D.N.H. 1976), aff'd Wooley v. May-

nard, 430 U.S. 705 (1977); cf. Wooley, 430 U.S. at 710

(distinguishing between suits requesting prospective and ret-

rospective relief under Younger doctrine).

In civil litigation, too, parties may raise new issues in

actions seeking to alter the playing field for future litigation,

despite failure to raise them in past retrospective lawsuits.

Thus in Interoceanica Corp. v. Sound Pilots, Inc., 107 F.3d

86 (2d Cir. 1997), the Second Circuit held that claim preclu-

sion did not bar a suit for a declaration that a New York

statute was unconstitutional, where plaintiff had previously

been held liable under the statute and could have raised

unconstitutionality as a defense. Cf. Family Division Trial

Lawyers of the Superior Court-D.C., Inc. v. Moultrie, 725

F.2d 695, 704 (D.C. Cir. 1984) (observing that "we might

hesitate" to apply claim preclusion to constitutional attacks

that a party "could have brought but did not" in litigation

over past transactions).

Given these precedents, Stanton's participation in prior

proceedings in which facial challenges could have been raised

does not prevent him from raising those challenges now, so

long as they concern post-judgment events. And in fact they

do: the procedures that he assails will govern future petitions

for reinstatement. To put the conclusion into the standard

"cause of action" language: Litigation of the validity of one

past course of conduct is not the same "claim" as either (1)

litigation over the validity of similar conduct occurring after

the acts covered by the initial litigation (see Lawlor, 349 U.S.

at 327-38; Sunnen, 333 U.S. at 597-600); or (2) litigation

challenging a rule in anticipation of its possible application to

similar events occurring or expected to occur after the earlier

lawsuit (see Interoceanica, 107 F.3d at 90-91; Maynard, 406

F. Supp. at 1385 n.6; Brown, 462 F. Supp. at 520).

We needn't consider here whether claim preclusion ever

permits two successive facial attacks on a statute. In charac-

terizing the enactment of an ordinance as the "transaction"

giving rise to a facial challenge, one court has concluded that

at least the normal result would be a bar. J.B.K., Inc. v. City

of Kansas City, 641 F. Supp. 893, 900 (W.D. Mo. 1986).

Assuming the correctness of that view, it may seem anoma-

lous that a party litigating successive applications should be

afforded greater leeway to discover new theories as time and

circumstances march on. One answer might be that a party

raising a facial challenge has enjoyed exceptional freedom to

select the time (and perhaps forum) of litigation, and should

reasonably be viewed as seeking a judgment on all future

applications, except as future facts may vary. By contrast,

one should perhaps be free to litigate a specific denial without

the lawsuit's acquiring such an omnivorous (and costly) char-

acter. Of course a party who falsely packaged successive

facial attacks in successive retrospective litigations would run

the risk of the court's penetrating his cover. Here, however,

we have the standard case of an initial facial attack following

prior retrospective litigation, since the portions of Stanton's

complaint that survive Rooker-Feldman are necessarily free

of particularized and retrospective elements drawn from his

special circumstances.

We find that neither Rooker-Feldman nor claim preclusion

bars Stanton's due process claims. Accordingly, while we

affirm the district court's dismissal of the First Amendment

claim, on Rooker-Feldman rather than Younger grounds, we

reverse the judgment regarding Stanton's procedural claims

and remand the case for further proceedings consistent with

this opinion.

So ordered.