Petition for Writ of Certiorari — Guttman v. Khalsa

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041667 JUN3 2005

No. .

OFFICE OF THE cp ex

In The

Supreme Court of the Anited States

STUART T. GUTTMAN, M.D.,

Petitioner,

G.T.S. KHALSA, LIVINGSTON PARSONS and

THE STATE OF NEW MEXICO,

Respondents.

On Petition For A Writ Of Certiorari

To The United State Court Of Appeals

For The Tenth Circuit

PETITION FOR WRIT OF CERTIORARI

IAN D. MCKELvy

Counsel of Record

for Petitioner

SANDERS, BRUIN, COLL

& WORLEY, P.A.

P.O. Box 550

Roswell, NM 88202

(505) 622-5440

SAMUEL R. BAGENSTOS

One Brookings Drive,

Box 1120

St. Louis, MO 63130

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether the Rooker-Feldman doctrine bars

federal-court jurisdiction when the federal proceedings

were initiated before parallel state-court proceedings were

completed.

2. Whether the Rooker-Feldman doctrine bars

federal-court consideration of issues that the plaintiff

lacked a reasonable opportunity to litigate in state court.

3. Whether the Rooker-Feldman doctrine applies

simply because a state court failed to remedy an injury the

defendant caused the plaintiff.

4. Whether the Rooker-Feldman doctrine bars a

federal-court challenge asserting that a state administra-

tive agency decision violates federal law where the plain-

tiff unsuccessfully sought “arbitrary and capricious” or

“substantial evidence” judicial review of the agency's

decision in state court.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .........ceccssessssesssecssessneeenecen i

TABLE OF AUTHORITIES ........c.scsssesssesssee: nena as iii

CUI UII isn in ssiicinsin sects cinclaesesetaen 1

Ce LEON SIE in ist 1

CONSTITUTIONAL AND STATUTORY PROVISIONS

I osc en ee 1

STATEMENT OF THE CASE.......ccccsscssecsseesssecssessneenses 1

REASONS FOR GRANTING THE WRIT ............ses000+: 6

I. THE COURT SHOULD GRANT, VACATE,

AND REMAND IN LIGHT OF EXXON MO-

TEU site ssinsnadinssdinpunccdnhinen cubishsapematadaisamsaeiNaae 9

II. THE COURTS OF APPEALS ARE DIVIDED

OVER WHETHER ROOKER-FELDMAN AP-

PLIES WHERE THE PLAINTIFF HAD NO

REASONABLE OPPORTUNITY TO LITI-

GATE HIS FEDERAL-LAW CLAIMS IN

SPEIER te CAPR ic sccnsciinencanatnesistnntnbbnintniiimiabsniniion 10

III. THE COURTS OF APPEALS ARE DIVIDED

OVER WHETHER ROOKER-FELDMAN AP-

PLIES WHEN THE FEDERAL-COUR?™

PLAINTIFF CHALLENGES NOT A STATE-

COURT ORDER BUT AN ACTION OF THE

DEFENDANT FOR WHICH THE STATE

COURT FAILED TO PROVIDE RELIEF ......... 18

iii

TABLE OF CONTENTS -— Continued

Page

IV. THE COURTS OF APPEALS ARE DIVIDED

OVER WHETHER A FEDERAL CHALLENGE

TO A STATE ADMINISTRATIVE AGENCY

DECISION IS “INEXTRICABLY INTER-

TWINED” WITH EARLIER STATE COURT

LITIGATION SEEKING ARBITRARY-AND-

CAPRICIOUS OR SUBSTANTIAL-EVIDENCE

REVIEW OF THAT DECISION .............:..cceec0e0+ 24

CICA cccececenccccsiveccecsveresessconnssusianseesnntonnsnesseneses 29

TABLE OF AUTHORITIES

‘ Page

CASES

Anderson v. Colorado, 793 F.2d 262 (10th Cir. 1986)....... 12

Arizona v. California, 530 U.S. 392 (2000)...................008 23

Bianchi v. Rylaarsdam, 334 F.3d 895 (9th Cir. 2003)....... 12

Biddulph v. Mortham, 89 F.3d 1491 (11th Cir. 1996)....... 25

Brown & Root, Inc. v. Breckinridge, 211 F.3d 194

Se mn Se iseicnsihinsteitcscinestiscateenitiinsiaendeieaibdhiisaihacanibaai 13, 18

Centres, Inc. v. Town of Brookfield, 148 F.3d 699

aE SITET aisicshasstussisitieaicenGiitnesiataiediadisebiipiaaeiistinnadabimbniieniacuahie 20

Derringer v. Chapel, 98 Fed. Appx. 728 (10th Cir.,

I, Siig ee icitaticentiinsiciteiciailaasiilicinalcaligabictacicinindteincbiabcaiiind 16

DiBlasio v. Novello, 344 F.3d 292 (2d Cir. 2008)............... 25

District of Columbia Court of Appeals v. Feldman,

i Se I sccthicscesttcenatsiaenicaiicdlalacssieansuhesnainvsinnin 6

Durgins v. City of East St. Louis, 272 F.3d 841 (7th

I TEE teseicinbteictasaltntanisetietiinaiiel ee 20

Ex Parte Young, 209 U.S. 123 (1908) ..............scccccccsssssseeees 5

Exxon Mobil Corp. v. Saudi Basic Industries Corp.,

Ne IE benntininkdcneinnisnidsakaeietcitnttileand passim

Facio v. Jones, 929 F.2d 541 (10th Cir. 1991).........000000... 12

Garry v. Geils, 82 F.3d 1362 (7th Cir. 1996) ................. 8,19

Gulla v. North Strabane Township, 146 F.3d 168

Be a Ne eiitsckcanssstistnecticiuinidinniapiateaniaenngeanes 13, 14, 15

Hachamovitch v. DeBuono, 159 F.3d 387 (2d Cir.

PIIPTUIIET disusssluscsndtpctithecaniniescchibuesnibedbieaeacsaias beta atuecaibiiiniian 13, 14

Kenmen Engineering v. City of Union, 314 F.3d 468

CE I I icissicnnscixntiagpsbtentintiteostenstiociehlibaiaandinil 6, 7, 11, 12

TABLE OF AUTHORITIES — Continued

Page

Kougasian.v. TMSL, Inc., 359 F.3d 1136 (9th Cir.

SPUD sitisictnsuiiianinsihenpinvingitibtaiie dinidaimadenaiiamiaibia mae 20, 21, 22

Kremer v. Chemical Constr. Corp., 456 U.S. 461

CIID npexsncuctcecnaiictedecsdenineidatisiiasdadieaniaaiabieiateiaiiiimabandasias 23

Lawrence v. Chater, 516 U.S. 163 (1996).................ccceeeees 10

Lemonds v. St. Louis County, 222 F.3d 488 (8th Cir.

DOD cciasanciiessesicéovsnseapiisanbaliiidiainshanknleisgasaiiaaimadiaiadbailincs 19

Long v. Shorebank Development Corp., 182 F.3d 548

CPE GE Bi racscnnctaisennacentnssdattinnisdiasin ti ssemiake cum 13

Moccio v. New York State Off: Of Court Admin., 95

a RE CR Ce BE ecisiktchentncsntiscbeeatateiaceseaae 18, 25

Mullins v. Oregon, 57 F.3d 789 (9th Cir. 1999)................. 12

Nesses v. Shepard, 68 F.3d 1003 (7th Cir. 1995)............... 21

Noel v. Hall, 341 F.3d 1148 (9th Cir. 2003)..... 19, 20, 22, 23

Parkview Associates Partnership v. City of Lebanon,

2235 F.30 S21. (BG Cir, BODO) ...ccscesenccscseassccccssnassesecnannnn 8, 25

‘Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987) ....... 8, 16, 28

Rizzo v. Sheahan, 266 F.3d 705 (7th Cir. 2001)................ 19

Rooker v. Fidelity Trust Co. , 263 U.S. 413 (1928)............... 6

Sheehan v. Marr, 207 F.3d 35 (1st Cir. 2000) ............... 8, 26

Simes v. Huckabee, 354 F.3d 823 (8th Cir. 2004)........ 13, 14

Stemler v. Florence, 350 F.3d 578 (6th Cir. 2003)............. 13

Valenti v. Mitchell, 962 F.2d 288 (3d Cir. 1992)................ 14

Verizon Maryland, Inc. v. Public Serv. Comm’n, 535

Ce GI Ce cciccctiesssiicscnnbinsecinsiictuccsnaicietausedmauamennteliara 17

TABLE OF AUTHORITIES — Continued

Page

Whiteford v. Reed, 155 F.3d 671 (3d Cir. 1998)................. 14

Wood v. Orange County, 715 F.2d 1543 (llth Cir.

BIE ccecccensesesssevsnssnctipinsiiteinendinnntinneisadiiasipaleaiamimt 7,16

STATUTES

BB UGG, © BEE sccncecsecnsesccetssneticncinintinstnisinmeniniminiinaia 1

BD CEES. 6 FEE ccccviccssessnticenesvcentntianaitieiatiaanaen 10

BB UGG. 6 BIB ccenccenctecsintinsessessvistasmniiieniananmmtaadaaa 7

GB UBD. © TOGB ccccrcrcenncecsenisngectsscnniintgiistniiniiinsncsmniiniiiiiatai 2

DUDE. Boat. Aenean. § BD-BB Bi vnceccsssnccecshcsscssetaorstctatinsns 4, 24

N.M. Stat. Ann. § 61-6-15(A)...........cccccsccsssssrsesessesenesees 3, 24

WUD, Bat. Asm. § GA-F-G GA). sccocescrccsceccscscsnencsscetsoneveesie 4, 24

PETITION FOR A WRIT OF CERTIORARI

Dr. Stuart T. Guttman respectfully petitions for a writ

of certiorari to review the judgment of the United States

Court of Appeals for the Tenth Circuit in this case.

OPINIONS BELOW

The opinion of the district court (App., infra, at 12-23)

is reported at 320 F. Supp.2d 1164. The opinion of the

court of appeals (App., infra, at 1-11) is reported at 401

F.3d 1170.

JURISDICTION

The court of appeals entered its judgment on March

17, 2005, and this petition is filed within 90 days of that

date. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Relevant provisions of the Americans with Disabilities

Act and New Mexico state statutes appear in the appen-

dix.

-STATEMENT OF THE CASE

In this case, Dr. Stuart Guttman asserts challenges

under Title IT of the Americans with Disabilities Act (ADA)

and 42 U.S.C. § 1983 to the decision of the New Mexico

Board of Medical Examiners to revoke his medical license.

The lower courts concluded that the so-called Rooker-

Feldman doctrine barred federal jurisdiction over those

challenges, because Dr. Guttman had previously sought

review of the Board’s decision in state court. The state

courts upheld the Board’s decision under arbitrary-and-

capricious and substantial-evidence standards, but ex-

pressly refused to rule on Dr. Guttman’s ADA claim. Dr.

Guttman seeks certiorari to contest the lower courts’

conclusion that the narrow state-court judicial review

proceedings — which were not completed until after pro-

ceedings began in federal court — barred federal jurisdic-

tion over his federal claims. :

1. Until the events that gave rise to this litigation,

Dr. Guttman had been a licensed medical doctor since

1975. C.A. App. 2. After practicing in Mississippi and

Texas, Dr. Guttman moved to New Mexico, where he

received a medical license in 1993. App., infra, at 2 [401

F.3d at 1171]. Because Dr. Guttman had a history of

depression and post-traumatic stress disorder, the State

Board of Medical Examiners granted the license with

certain stipulations — notably that he would continue to

receive treatment for his psychiatric conditions and that

his psychiatrist would provide quarterly progress reports

to the Board. C.A. App. 9-11. In 1995, however, the Board

lifted the stipulations. App., infra, at 3 [401 F.3d at 1171-

1172].

In 2000, following complaints that Dr. Guttman’s

psychiatric condition led to “conduct which made it diffi-

cult for fellow physicians and medical staff to work with

him,” and concerns that Dr. Guttman had been dishonest

in response to its investigation of those complaints, the

Board held a hearing to determine whether to revoke his

medical license. Jd. at 3 [401 F.3d at 1172]. At the hearing,

the Board’s counsel stated that the Board had no concerns

about Dr. Guttman’s “diagnosis and treatment” of patients;

instead, the concerns involved Dr. Guttman’s “interper-

sonal” abilities relating to his dealings with colleagues and

hospital staff. C.A. App. 126. To respond to those concerns,

Dr. Guttman’s counsel “proposed a number of restrictions,

similar to those under which Guttman had previously

practiced in Texas, that would limit Guttman’s medical

practice to a solo clinic as well as require regular reporting

to the Board and posting notice of his restrictions in his

medical office.” App., infra, at 3 [401 F.3d at 1172].

Despite counsel’s proposal, the Board ordered on

February 28, 2001, that Dr. Guttman’s license be revoked.

C.A. App. 18-26. The Board found that Dr. Guttman had

“an underlying mixed personality disorder” and “a history

of major depression, Post Traumatic Stress Disorder.” Id.

at 23. The Board also determined that future psychiatric

treatment and intervention by employers and associates

“would not likely be effective in changing his behavior.” Id.

But the Board did not directly address counsel’s proposal

that Dr. Guttman retain his license under restrictions

similar to those under which he had practiced in Texas.

Instead, the Board simply ruled that, because of mental

illness, Dr. Guttman could not “practice medicine with

reasonable skill or safety,” and that he had engaged in

“unprofessional or dishonorable conduct.” C.A. App. 24-26.

As a result, the Board determined that Dr. Guttman’s

license should be revoked under N.M. Stat. Ann. § 61-6-

15(A) (license subject to revocation where the doctor “has

been guilty of unprofessional or dishonorable conduct”)

and id. § 61-7-3(A) (license subject to revocation “in case of

inability of the health care provider to practice with

reasonable skill or safety” by reason of “mental illness”).

2. Dr. Guttman sought judicial review of the Board’s

action in state court. He invoked N.M. Stat. Ann. § 39-3-

1.1(D), which authorizes the state district court to set

aside agency action in cases where “the agency acted

fraudulently, arbitrarily, or capriciously,” the agency’s

decision “was not supported by substantial evidence,” or

“the agency did not act in accordance with law.” See C.A.

App. 28. Dr. Guttman also contended that the Board’s

decision violated Title II of the ADA. Id.

The state district court rejected Dr. Guttman’s claims

in a one-page order. App., infra, at 28 [C.A. App. 49]. The

court concluded that the Board’s action “was within the

Board’s authority and based upon the law, was based upon

substantial evidence as shown in the record, and was not

fraudulent, arbitrary, or capricious.” Jd. The court refused

to consider Dr. Guttman’s ADA claim, because he had not

raised it before the Board. Jd. Both the state court of

appeals and the state supreme court denied further review

in one-page orders. Jd. at 24 [C.A. App. 50, 51]. The state

supreme court issued its order on May 21, 2003. Id. at 26

[C.A. App. 51].

3. On April 17, 2003, before the state supreme court

issued its order finally disposing of his action for judicial

review, Dr. Guttman filed this action pro se in the United

States District Court for the District of New Mexico

against the State of New Mexico and the Board’s counsel

and hearing officer. C.A. App. 1-8. He contended that the

Board had violated the ADA by revoking his license

without making any finding as to whether his disability

could be reasonably accommodated, and that the Board’s

procedures denied him due process. Id. at 3-7. Dr. Gutt-

man sought damages and “any and all other relief as this

Court deems appropriate and proper.” Id. at 7-8.’

The defendants moved for summary judgment on

multiple grounds, and the district court granted the

motion. App., infra, at 12. The court concluded that all of

Dr. Guttman’s claims were barred by the Rooker-Feldman

doctrine, that the claims against the individual defendants

were berred by absolute quasi-judicial immunity, and that

the claims against the state were barred by sovereign

immunity. Jd. at 21-23.

The Tenth Circuit affirmed, though it reached only the

Rooker-Feldman issue. App., infra, at 2. Although Dr.

Guttman’s claims challenged only the actions of the Board,

not the actions of the state courts, the Tenth Circuit

concluded that those claims were jurisdictionally barred

because they would “disrupt or undo the New Mexico state

court decision affirming his license revocation.” Jd. at 9-10

[401 F.3d at 1175]. Although the state courts had simply

reviewed the Board’s decision under an arbitrary-and-

capricious and substantial-evidence standard, and had

expressly refused to hear Dr. Guttman’s ADA claim, the

Tenth Circuit held that the ADA claim was “ ‘inextricably

intertwined’ with the state court’s merits decision.” Jd. And

although Dr. Guttman argued that the state courts de-

prived him of a full and fair opportunity to litigate his

ADA claim, the Tenth Circuit concluded that the argument

* In his response to the defendants’ motion for summary judgment,

Dr. Guttman, now represented by counsel, clarified that this catch-all

claim for relief included a request for injunctive relief pursuant to Ex

parte Young, 209 U.S. 123 (1908).

was beside the point: “Even if he has suffered such a

deprivation, our Circuit has held that Rooker-Feldman

‘bars any suit that seeks to disrupt or “undo” a prior state-

court judgment, regardless of whether the state-court

proceeding afforded the federal-court plaintiff a full and

fair opportunity to litigate her claims.’” Jd. (quoting

Kenmen Engineering v. City of Union, 314 F.3d 468, 478

(10th Cir. 1999)).

REASONS FOR GRANTING THE WRIT

The Rooker-Feldman doctrine holds that the lower

federal courts lack jurisdiction to hear appeals from state-

court judgments. See Rooker v. Fidelity Trust Co., 263 U.S.

413 (1923); District of Columbia Court of Appeals v.

Feldman, 460 U.S. 462 (1983). In Exxon Mobil Corp. v.

Saudi Basic Industries Corp., 125 S.Ct. 1517, 1522 (2005)

— decided after the Tenth Circuit issued its ruling in this

case — the Court emphasized that the Rooker-Feldman

doctrine occupies a “narrow ground.” In particular, the

Court held that the doctrine does not bar federal jurisdic-

tion in a case where the plaintiff initiated federal litigation

before the conclusion of proceedings in state court. See id.

at 1526-1528. This is just such a case. Accordingly, as we

show in Part I, infra, this Court should grant the writ of

certiorari, vacate the Tenth Circuit’s judgment, and

remand for further consideration in light of Exxon Mobil.

If the Court declines to follow that course, it should

grant cettiorariand set the case for plenary review. Aside

from the Tenth Circuit’s failure to anticipate Exxon Mobil,

this case presents three questions concerning the scope of

the Rooker-Feldman doctrine, each of which has occasioned

deep and persistent conflict in the circuits, and none of

which was resolved by Exxon Mobil.

First, the Tenth Circuit has persistently held that the

Rooker-Feldman doctrine applies even if “the federal-court

plaintiff had no opportunity to litigate her claims in the

state-court proceeding.” Kenmen Engineering, 314 F.3d at

478. The court of appeals followed that principle here. See

App., infra, at 10. But as we show in Part II below, at least

six circuits have held to the contrary. They have held, as

the Eleventh Circuit put it in the most influential state-

ment of their position, that the Rooker-Feldman doctrine

“can apply only where the plaintiff had a reasonable

opportunity to raise his federal claim in state proceed-

ings.” Wood v. Orange County, 715 F.2d 1543, 1547 (11th

Cir. 1983), cert. denied, 467 U.S. 1210 (1984).

Second, the Tenth Circuit held here that the Rooker-

Feldman doctrine applied even though plaintiff Guttman

sought redress for an injury — the Board’s unlawful revoca-

tion of his medical license — that would have been pre-

cisely the same even if there had been no state-court

litigation. As we show in Part III below, three other cir-

cuits have found the Rooker-Feldman doctrine applicable

in similar circumstances — where a plaintiff who unsuc-

cessfully challenged the defendants’ unlawful conduct in

state court seeks to assert a subsequent challenge to that

conduct in federal court. But the Seventh and Ninth

Circuits have concluded that such an approach inappro- -

priately blurs the lines between the jurisdictional Rooker-

Feldman doctrine, which is governed by federal law, and

the more flexible doctrines of preclusion, which are gov-

erned by state law pursuant to 28 U.S.C. § 1738. Those

circuits have emphasized “the distinction between a

federal claim alleging injury caused by a state court

judgment (necessarily raising the Rooker-Feldman doc-

trine) and a federal claim alleging a prior injury that a

state court failed to remedy (raising a potential res judi-

cata problem but not Rooker-Feldman).” Garry v. Geils, 82

F.3d 1362, 1366-1367 (7th Cir. 1996).

Third, the Tenth Circuit held here that plaintiff

Guttman’s claim under Title II of the ADA was barred by

Rooker-Feldman because it was “inextricably intertwined”

with his state-court claims that the Board’s decision was

arbitrary and capricious and unsupported by substantial

evidence. App., infra, at 9. But as we show in Part IV

below, at least two other circuits have refused to apply

Rooker-Feldman as a bar to federal claims when the state

proceedings consisted of actions for review of administra-

tive action under an arbitrary-and-capricious or substan-

tial-evidence standard. Because state administrative

action can violate federal law even if it withstands state-

law arbitrary-and-capricious or substantial-evidence

review, where a federal claim follows such review it will

not be the case that “the federal claim succeeds only to the

extent that the state court wrongly decided the issues

before it.” Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 25

(1987) (Marshall, J., concurring in the judgment). Accord-

ingly, those other circuits have held that the federal claims

are not “inextricably intertwined” with the state-law

claims in such circumstances. And they have done so in

circumstances that were nearly identical to those of this

case: where plaintiffs brought federal-law disability

discrimination challenges to state administrative action in

federal court after unsuccessfully seeking judicial review

of that action in state court. See Parkview Associates

Partnership v. City of Lebanon, 225 F.3d 321, 326 (3d Cir.

2000); Sheehan v. Marr, 207 F.3d 35, 40-41 (ist Cir. 2000).

Had the Tenth Circuit anticipated Exxon Mobil, or

reached a different conclusion on any of the three issues

that have drawn the courts of appeals into conflict, the

result below would have been different. But the Tenth

Circuit did not do so. As a result, it deprived Dr. Guttman

of any forum, state or federal, in which to assert his ADA

claim, and it did so on the basis of a state-court proceeding

that expressly refused to rule on that claim. The injustice

of that result cries out for this Court’s intervention.

I. The Court Should Grant, Vacate, and Remand

in Light of Exxon Mobil

Dr. Guttman initiated federal-court litigation before

the state-court proceedings in this case were completed. In

Exxon Mobil, this Court held that the Rooker-Feldman

doctrine does not apply in such circumstances. The Court

held that the doctrine bars federal-court jurisdiction only

in the “limited circumstances” exhibited by Rooker and

Feldman themselves, in which “the losing party in state

court filed suit in federal court after the state proceedings

ended, complaining of an injury caused by the state-court

judgment and seeking review and rejection of that judg-

ment.” Exxon Mobil, 125 S.Ct. at 1526 (emphasis added).

Applying that principle, the Court concluded that Rooker-

Feldman did not bar jurisdiction in the case before it,

where the plaintiff filed suit in federal court before the

state-court proceedings concluded: “Rooker-Feldman did

not prevent the District Court from exercising jurisdiction

when ExxonMobil filed the federal action, and it did not

emerge to vanquish jurisdiction after ExxonMobil pre-

vailed in the Delaware courts.” Id. at 1527-1528.

¢]

a i

‘:

This case falls squarely within the rule of Exxon

Mobil. Because Dr. Guttman filed this action seeking relief

on federal-law claims in federal court before state-court

proceedings were concluded, the district court plainly had

jurisdiction of this case under 28 U.S.C. § 1331 at the time

the complaint was filed. As in Exxon Mobil, the Rooker-

Feldman doctrine “did not emerge to vanquish jurisdic-

tion” after the state prevailed in state court. The Tenth

Circuit thus should not have applied the Rooker-Feldman

doctrine to bar Dr. Guttman’s claims. Because the Tenth

Circuit did not have the benefit of this Court’s decision in

Exxon Mobil at the time it issued its opinion here, the

court should grant the writ of certiorari, vacate the Tenth

Circuit’s judgment, and remand for further consideration

in light of that decision. See Lawrence v. Chater, 516 U.S.

163, 169-170 (1996) (per curiam).

II. The Courts of Appeals Are Divided Over

Whether Rooker-Feldman Applies Where the

Plaintiff Had No Reasonable Opportunity to

Litigate His Federal-Law Claims in State Court

A. There is a Persistent Conflict in the Cir-

cuits on the Question

The courts of appeals have long disagreed over

whether the Rooker-Feldman doctrine bars federal-court

jurisdiction over claims that the plaintiff had no reason-

able opportunity to litigate in state court. Here, as in

previous cases, the Tenth Circuit held that the doctrine

bars federal-court jurisdiction even if the plaintiff lacked

such an opportunity. But the overwhelming majority of

other circuits disagree.

In his petition for state-court judicial review of the

Board’s decision to revoke his medical license, Dr. Gutt-

man urged that the Board’s decision — in addition to

lacking substantial evidence and being arbitrary, capri-

cious, and an abuse of discretion — violated Title II of the

ADA. But the state court refused to entertain the ADA

claim, on the ground that Dr. Guttman “did not raise the

issue of Americans with Disabilities Act compliance before

the New Mexico Board of Medical Examiners.” App., infra,

at 28. In this federal-court action, Dr. Guttman argued

that Rooker-Feldman did not deprive the court of jurisdic-

tion over his ADA claim, because the state court’s action

deprived him of a reasonable opportunity to litigate the

claim. The Tenth Circuit accepted the factual premise of

that argument, but it rejected the legal conclusion: “Even

if he has suffered such a deprivation, our Circuit has held

that Rooker-Feldman ‘bars any suit that seeks to disrupt

or “undo” a prior state-court judgment, regardless of

whether the state-court proceeding afforded the federal-

court plaintiff a full and fair opportunity to litigate her

claims.’” App., infra, at 10 [401 F.3d at 1175] (quoting

Kenmen, 314 F.3d at 478).

In so holding, the Tenth Circuit relied on its long-

standing precedent. In Kenmen, on which the court of

appeals relied in this case, the Tenth Circuit held that

Rooker-Feldman barred the plaintiffs’ suit even if, as the

plaintiffs argued, the state-court proceedings denied them

a full and fair opportunity to litigate their federal claims.

See Kenmen, 314 F.3d at 478. The Kenmen court concluded

that “[iJnjecting the full-and-fair-opportunity-to-litigate

inquiry into the Rooker-Feldman analysis tends to blur the

distinction between res judicata and Rooker-Feldman.” Id.

at 478-479. In support of that conclusion, the court pointed

ee ee

to two cases in which it had “previously applied the

Rooker-Feldman doctrine despite the fact that the federal-

court plaintiff had no opportunity to litigate her claims in

the state-court proceeding.” Jd. at 478 (citing Facio v.

Jones, 929 F.2d 541, 542-544 (10th Cir. 1991); Anderson v.

Colorado, 793 F.2d 262, 264 (10th Cir. 1986) (per curiam)).

A panel of the Ninth Circuit has agreed with the Tenth

Circuit’s holding that the Rooker-Feldman doctrine applies

even where the plaintiff lacked a reasonable opportunity

to litigate his federal claims in state court. See Bianchi v.

Rylaarsdam, 334 F.3d 895, 900-901 (9th Cir. 2003) (relying

on Kenmen to hold that “[t]he Rooker-Feldman doctrine

does not require us to determine whether or not the state

court fully and fairly adjudicated the constitutional

claim”), cert. denied, 540 U.S. 1213 (2004).’

But every other circuit to have addressed the question

has reiected the Tenth Circuit’s position. In Wood, 715 F.2d

at 1547, the Eleventh Circuit held that the Rooker-

Feldman rule “can apply only where the plaintiff had a

reasonable opportunity to raise his federal claim in state

proceedings.” Because the plaintiff did not have such an

opportunity, the court held Rooker-Feldman inapplicable.

See id. at 1547-1548. The First, Second, Third, Seventh,

and Eighth Circuits have also rejected the Tenth Circuit’s

position. See, e.g., Sheehan, 207 F.3d at 40-41 (where state

court could not have considered plaintiff’s ADA claim,

Rooker-Feldman did not bar raising that claim in federal

* The precise state of the law on this issue in the Ninth Circuit is

unclear. Bianchi stands in tension with the Ninth Circuit’s earlier

decision in Mullins v. Oregon, 57 F.3d 789, 792 (9th Cir. 1995), which

held that Rooker-Feldman did not bar federal-court jurisdiction where

the state court neither considered nor could have considered the

plaintiffs’ federal constitutional claims.

court); Hachamovitch v. DeBuono, 159 F.3d 687, 695 (2d

Cir. 1998) (where limitations on state court’s jurisdiction

denied plaintiff “a full and fair opportunity to litigate the

constitutional issue in the first proceeding,” Rooker-

Feldman did not bar consideration of those issues in

subsequent federal-court proceeding) (internal quotation

marks and brackets omitted); Gulla v. North Strabane

Township, 146 F.3d 168, 173 (3d Cir. 1998) (Rooker-

Feldman did not apply where the plaintiffs “could not

obtain an adjudication of their claims in state court”);

Long v. Shorebank Development Corp., 182 F.3d 548, 558-

560 (7th Cir. 1999) (holding Rooker-Feldman inapplicable

because “the plaintiff did not have a reasonable opportunity

to raise the issue in state court proceedings” where state-

court procedures “would have effectively precluded” plain-

tiff from litigating her federal claims); Simes v. Huckabee,

354 F.3d 823, 829 (8th Cir. 2004) (holding Rooker-Feldman

inapplicable because plaintiffs lacked “a reasonable

opportunity to raise their federal claims in state court”

where the state court was presented with both federal and

state claims but declined to hear the merits of the federal

claims); see also Brown & Root, Inc. v. Breckinridge, 211

F.3d 194, 201-202 (4th Cir. 2000) (agreeing in dicta that

Rooker-Feldman does not apply where the plaintiff lacked

“a reasonable opportunity to raise its federal claims in

state court”). The Sixth Circuit has similarly held that

Rooker-Feldman is “inapplicable to claims that the state

court did not address or rule upon even though the federal

claims arose out of the same nucleus of facts.” Stemler v.

Florence, 350 F.3d 578, 589 (6th Cir. 2003) (refusing to

apply Rooker-Feldman where the issue asserted in federal-

court suit was not “salient before the Kentucky court,”

even though that court discussed the issue in dicta), cert.

denied, 125 S.Ct. 61 (2004).

The Tenth Circuit acknowledged some of these cases,

App., infra, at 10 [401 F.3d at 1175], but it sought to

distinguish them on the ground that Dr. Guttman “was not

deprived of an opportunity to raise his ADA claim in state

court.” Id. at 10 [id.]. The Tenth Circuit appeared to read

the other circuits as drawing a distinction between cases

“where a litigant has not had a fair opportunity to raise a

federal claim in state court proceedings,” in which the

Rooker-Feldman doctrine does not apply, id. at 10 [id.]

(emphasis in original), and cases where the litigant “has

been deprived of a full and fair opportunity to litigate this

claim,” in which the doctrine does apply, id. (emphasis

added). But the cases themselves emphatically reject such

a gossamer distinction. Some circuits have explicitly held

that Rooker-Feldman cannot apply in the absence of a “full

and fair opportunity to litigate.” E.g., Hachamovitch, 159

F.3d at 695 (emphasis added); Gulla, 146 F.3d at 173

(quoting Valenti v. Mitchell, 962 F.2d 288, 296 (3d Cir.

1992)) (emphasis added; internal quotation marks omit-

ted). And even those circuits that have used the “opportu-

nity to raise” formulation have made clear that “federal

plaintiffs cannot be said to have had a reasonable oppor-

tunity to raise their federal claims in state court where the

state court declines to address those claims and rests its

holding solely on state law.” Simes, 354 F.3d at 829. That,

of course, is precisely what happened here.

Indeed, the facts of this case are quite similar to those

in cases where courts outside of the Tenth Circuit have

held Rooker-Feldman inapplicable because the plaintiff was

denied a reasonable opportunity to litigate his federal

claims in state court. In Whiteford v. Reed, 155 F.3d 671 (3d

Cir. 1998), the plaintiff brought a federal constitutional

challenge to the State Board of Medicine’s suspension of

his medical license. He first sought to raise his constitu-

tional claims in a state-court petition for judicial review,

but the court refused to consider those claims on the

merits on the ground that “he had violated Pennsylvania’s

rules of appellate procedure.” Jd. at 674. Because the

plaintiff “could not obtain an adjudication of his constitu-

tional claims in state court,” the Third Circuit held that

“Rooker-Feldman does not preclude him from seeking

review in federal court.” Id.; see also Gulla, 146 F.3d at

172-173 (Rooker-Feldman no bar where state court refused

to consider federal claims for lack of standing). And in

Simes, 354 F.3d at 826, the Eighth Circuit held that

Rooker-Feldman did not apply where the plaintiffs had

brought a state-court suit raising both state and federal

claims, but the state court “ruled on only state law issues,

ignoring the federal claims.”

In short, there is a longstanding conflict in the circuits

regarding whether the Rooker-Feldman doctrine bars

claims over which the plaintiff lacked a reasonable oppor-

tunity to litigate in state court. Had this case arisen in one

of the circuits that holds the Rooker-Feldman doctrine

inapplicable in such circumstances, Dr. Guttman’s claim

would not have been dismissed.

There is no reason to believe the conflict will go away.

In a series of cases extending for nearly two decades, the

Tenth Circuit has insisted that the Rooker-Feldman

doctrine applies even where the plaintiff lacked a full and

fair opportunity to litigate his claims in state court. The

Tenth Circuit has done so in the face of an overwhelming

weight of contrary precedent from the other courts of

appeals. Although this Court’s decision in Exxon Mobil

suggested generally that the Rooker-Feldman doctrine

should be narrowly construed, see 125 S.Ct. at 1522, 1526,

the Court did not address the question whether the

Rooker-Feldman doctrine applies in the absence of a

reasonable opportunity to litigate the federal claim in

. state court. Indeed, even after Exxon Mobil, the Tenth

Circuit has reaffirmed its position that the doctrine does

bar federal jurisdiction in such circumstances. See Derrin-

ger v. Chapel, 98 Fed. Appx. 728, 734 (10th Cir., Apr. 12,

2004). Only this Court can resolve the abiding conflict in

the circuits.

B. The Rooker-Feldman Doctrine Does Not

Properly Deprive the Federal Courts of Ju-

risdiction Where the Plaintiff Lacked a Rea-

sonable Opportunity to Litigate His Federal

Claims in State Court

For reasons explained by the overwhelming majority

of circuits that have disagreed with the Tenth Circuit on

this issue, the court of appeals was incorrect to apply the

Rooker-Feldman doctrine where the plaintiff lacked a

reasonable opportunity to litigate his federal claims in

state court. The Rooker-Feldman doctrine deprives the

federal courts of jurisdiction over only those issues that

were “actually litigated in the [state] courts or inextricably

intertwined with issues so litigated.” Pennzoil, 481 U.S. at

18 (Scalia, J., concurring); see Feldman, 460 U.S. at 483- |

484 n.16. Where the state court refused to hear a federal |

issue raised by the plaintiff, that issue obviously was not

“actually litigated.” And “because the issue did not figure,

and could not reasonably have figured, in the state court’s

decision,” that issue “is not ‘inextricably intertwined’ with

the state court’s judgment” either. Wood, 715 F.2d at 1543.

SS ee

Moreover, serious constitutional questions arise when

a court applies the Rooker-Feldman doctrine to bar fed-

eral-court litigation where the plaintiff lacked a reason-

able opportunity to litigate his claims in state court. As the

Eleventh Circuit has noted, “[s]uch a harsh rule might

deprive the plaintiff of any forum, state or federal, where

he has a reasonable opportunity to present his federal

constitutional claims, a result arguably contrary to the

requirements of due process.” Id.

This case presents a perfect example of the injustice

caused by the Tenth Circuit’s “harsh rule.” Dr. Guttman

sought to raise his ADA claim in state court. But the state

courts refused to entertain the claim, on the ground that

he should have presented it to the state Board of Medical

Examiners in the first instance. The federal courts then

refused to entertain the claim, on the ground that it was

barred by the state courts’ (non)adjudication. The courts

reached this result notwithstanding that the Rooker-

Feldman doctrine does not apply to state administrative

decisions, see Verizon Maryland, Inc. v. Public Serv. Comm’n,

535 U.S. 635, 644 n.3 (2002), and that Dr. Guttman did not

have a ripe ADA claim until the Board revoked his license

without granting him the accommodations he had requested

— so he had no opportunity to present an ADA claim to the

Board. As a result, Dr. Guttman has been deprived of any

judicial forum — state or federal — in which to assert his

ADA claim.

III. The Courts of Appeals are Divided Over

Whether Rooker-Feldman Applies When the

Federal-Court Plaintiff Challenges Not a State-

Court Order But an Action of the Defendant for

Which the State Court Failed to Provide Relief

A. The Circuits are Divided on the Question

Dr. Guttman’s ADA and Section 1983 claims do not

seek to overturn the state court’s judgment in any way.

They seek instead to overturn the decision of the state

Board of Medical Examiners to revoke Dr. Guttman’s

license. Those claims — and the relief Dr. Guttman would

have sought — would have been precisely the same had

there been no state-court litigation. The courts of appeals

are deeply divided over whether the Rooker-Feldman

doctrine applies in such circumstances.

Although Dr. Guttman’s federal suit does not seek to

overturn the state court’s judgment, the Tenth Circuit held

that it is nonetheless barred by Rooker-Feldman because

the federal-court suit seeks essentially the same relief —

“judicial reinstatement of his medical license” — that Dr.

Guttman unsuccessfully sought in state court. App., infra,

at 9 [401 F.3d at 1175]. The Second, Fourth, and Eighth

Circuits have similarly applied the Rooker-Feldman

doctrine to bar federal-court litigation that seeks relief not

from the state court’s judgment but from actions of the

defendant for which the state court has denied a remedy.

See Moccio v. New York State Off. of Court Admin., 95 F.3d

195, 200-202 (2d Cir. 1996) (state employee’s federal-court

challenge to his termination is barred by Rooker-Feldman

where the employee had previously challenged the termi-

nation unsuccessfully in state court); Brown & Root, Inc.,

211 F.3d at 200 (federal-court suit barred by Rooker-

Feldman because “[t]his complaint seeks precisely the

same relief denied by the state trial court” — an order

compelling the defendant to submit to arbitration);

Lemonds v. St. Louis County, 222 F.3d 488, 493-494 (8th

Cir. 2000) (Rooker-Feldman bars federal-court challenge to

county’s decision to disincorporate a city where state court

rejected substantively similar challenge to that decision),

cert. denied, 531 U.S. 1183 (2001).

By contrast, the Seventh and Ninth Circuits have

emphasized “the distinction between a federal claim

alleging injury caused by a state court judgment (necessar-

ily raising the Rooker-Feldman doctrine) and a federal

claim alleging a prior injury that a state court failed to

remedy (raising a potential res judicata problem but not

Rooker-Feldman).” Garry, 82 F.3d at 1366-1367. The Ninth

Circuit has described the rule this way:

If a federal plaintiff asserts as a legal wrong an

allegedly erroneous decision by a state court, and

seeks relief from a state court judgment based on

that decision, Rooker-Feldman bars subject mat-

ter jurisdiction in federal district court. If, on the

other hand, a federal plaintiff asserts as a legal

wrong an allegedly illegal act or omission by an

adverse party, Rooker-Feldman does not bar ju-

risdiction.

Noel v. Hall, 341 F.3d 1148, 1164 (9th Cir. 2003) (W.

Fletcher, J.).

Applying that rule, both the Seventh and Ninth

Circuits have repeatedly held the Rooker-Feldman doc-

trine inapplicable in cases just like this one. In Rizzo v.

Sheahan, 266 F.3d 705, 714 (7th Gir. 2001), for example,

the Seventh Circuit held that Rooker-Feldman did not bar

the public-employee plaintiff’s claim that her termination

violated Title VII, even though the plaintiff had unsuccess-

fully sought judicial review of the termination in state

court. The court explained that “[a]lthough Rizzo was

certainly displeased with the conclusion reached by the

Illinois courts, the injury she alleges before this court did

not result from the state court judgment. Instead, Rizzo

filed this claim because she did not receive the relief she

sought from the [Illinois courts — a determination that she

should not have been terminated.” Jd. Similarly, in Dur-

gins v. City of East St. Louis, 272 F.3d 841, 844 (7th Cir.

2001) (Easterbrook, J.), the court held that Rooker-

Feldman did not bar the police officer plaintiff’s Section

1983 suit challenging her discharge, even though her

state-ceurt_action for judicial review of that discharge was

unsuccessful. The court explained that “the injury comes

from her discharge, not from the state court’s failure to

order her reinstatement.” Id.°

* See also Kougasian v. TMSL, Inc., 359 F.3d 1136, 1142 (9th Cir.

2004) (W. Fletcher, J.) (holding Rooker-Feldman inapplicable where the

federal-court plaintiff did not “allege legal errors by the state courts”

but instead “allege[d] wrongful acts by the defendants, such as negli-

gently designing the ski run and negligently placing or failing to

remove the rock,” even though the federal-court claims were “almost

identical to the allegations and claims asserted in state court”); Noel,

341 F.3d at 1166 (even though piaintiff’s federal-court claims were

“very similar” to previously litigated claims and “possibly should have

been asserted in that state court litigation,” Rooker-Feldman inapplica-

ble because the plaintiff “neither asserted as a legal wrong an allegedly

erroneous decision by the state court in the earlier state court litigation

nor sought relief from the state court judgment”; plaintiff instead

“asserted as legal wrongs allegedly illegal acts committed by a party

against whom he had previously litigated”); Centres, Inc. v. Town of

Brookfield, 148 F.3d 699, 702-703 (7th Cir. 1998) (holding that the

plaintiff’s Section 1983 challenge to the defendant town’s denial of a

building permit was not barred by Rooker-Feldman, even though the

plaintiff had previously challenged that denial unsuccessfully in state

(Continued on following page)

As the foregoing discussion demonstrates, the courts

of appeals are deeply divided over the application of

Rooker-Feldman to cases where the plaintiff seeks relief

not from a state-court judgment itself but from an act of

the defendant for which the state court failed to provide

redress. Four circuits hold that the doctrine does bar

federal-court jurisdiction in such circumstances, while two

circuits hold that it does not. At least one court of appeals

has noted the existence of the conflict in the circuits. See

Kougasian, 359 F.3d at 1142. Had this case arisen in the

Seventh or Ninth Circuits, Dr. Guttman’s suit would not

have been barred by Rooker-Feldman. Although Dr.

Guttman seeks essentially the same relief — reinstatement

of his medical license — that the state courts denied, his

federal-court claims do not challenge the judgment of the

state courts; they challenge the actions of the state Board.

B. The Rooker-Feldman Doctrine Does Not

Properly Apply When the Plaintiff Chal-

lenges an Action of the Defendant for

Which a State Court Failed to Grant Relief

As the Seventh and Ninth Circuits have persuasively

explained, there is no sound basis to apply Rooker-

Feldman to a case like this, where the federal-court

plaintiff merely seeks relief similar to that denied by a

court: “Centres does not allege an injury from the state court judgment

itself; rather, it challenges the actions of the defendants”); Nesses v.

Shepard, 68 F.3d 1003, 1004 (7th Cir. 1995) (Posner, J.) (holding that a

federal court action was not barred by Rooker-Feldman even though the

plaintiff had unsuccessfully sued the same defendants in state court for

similar transactions: Rooker-Feldman “ought to be confined to cases in

which the defendant in the state court is seeking to undo a remedial

order of some sort (ordinarily a criminal conviction or an injunction)”).

state court. Although the plaintiff may be required to

overcome principles of preclusion in such a case, the

jurisdictional Rooker-Feldman doctrine is inapt.

For one thing, as Judge Fletcher pointed out in his

opinion for the Ninth Circuit in Noel, 341 F.3d at 1163, in

both Rooker and Feldman the plaintiffs sought to chal-

lenge an injury that was directly inflicted by the state-

court judgment itself. In Rooker, 263 U.S. at 414-415, the

plaintiffs contended that a state-court judgment violated

the Constitution and filed a bill in equity in federal court

asking that the judgment be “declared null and void.” In

Feldman, 460 U.S. at 463, the plaintiffs sued the District

of Columbia Court of Appeals and contended that the court

had violated the Constitution by refusing their petitions |

for waiver of the rule requiring bar “applicants to have

graduated from an approved law school.” They thus asked

the federal courts directly to overturn a judgment of the

District of Columbia courts. See id. at 479-482 (denial of

waiver was a judicial decision). Neither Rooker nor

Feldman involved a case like this, where the plaintiff

seeks to challenge an injury that an adverse party caused,

and that the state courts simply failed to remedy.

And as Judge Posner suggested in his opinion for the

Seventh Circuit in Nesses, 68 F.3d at 1004, to extend

Rooker-Feldman to cases like this one risks “confusing

Rooker-Feldman with res judicata.” If the Rooker-Feldman

doctrine applies whenever a federal-court plaintiff seeks

the same relief he unsuccessfully sought — or raises the

same issues he unsuccessfully raised — in state court, then

it threatens to occupy virtually all of the territory cur-

rently covered by the doctrines of issue and claim preclu-

sion. As Judge Fletcher pointed out in his opinion for the

Ninth Circuit in Kougasian, 359 F.3d at 1143, such a broad

reading of Rooker-Feldman “would in some cases give

greater preclusive effect to state court judgments than the

states themselves would give those judgments.” That

“super-preclusive effect,” he persuasively argued, “would

violate the requirement of 28 U.S.C. § 1738 that federal

courts give the same (not more and not less) preclusive

effect the rendering state courts would give to those

- judgments.” Id. (citing Kremer v. Chemical Constr. Corp.,

456 U.S. 461, 466 (1982)).

Moreover, preclusion is “an affirmative defense ordi-

narily lost if not timely raised.” Arizona v. California, 530

U.S. 392, 410 (2000). It “is not a jurisdictional matter.”

Exxon Mobil, 125 S.Ct. at 1527. The Rooker-Feldman

doctrine, by contrast, is jurisdictional. See id. at 1526. The

broad reading of Rooker-Feldman applied by the court of

appeals here thus risks transforming preclusion into a

jurisdictional doctrine.

To avoid these pernicious results, the Seventh and

Ninth Circuits have held that the Rooker-Feldman doc-

trine applies only where “a federal plaintiff asserts as a

legal wrong an allegedly erroneous decision by a state

court, and seeks relief from a state court judgment based

on that decision.” Noel, 341 F.3d at 1164. Where “a federal

plaintiff asserts as a legal wrong an allegedly illegal act or

omission by an adverse party” — even if a state court failed

to provide relief for that act — those courts have held that

“Rooker-Feldman does not bar jurisdiction.” Id. This Court

should make clear that the rule adopted by the Seventh

and Ninth Circuits correctly applies the Rooker-Feldman

doctrine.

IV. The Courts of Appeals are Divided Over

Whether a Federal Challenge to a State Admin-

istrative Agency Decision is “Inextricably In-

tertwined” With Earlier State Court Litigation

Seeking Arbitrary-and-Capricious or Substan-

tial-Evidence Review of That Decision

A. The Circuits are Divided on the Question

In Dr. Guttman’s case, the state Board of Medical

Examiners did not consider any question of federal law. It

decided only that Dr. Guttman had engaged in “unprofes-

sional or dishonorable conduct,” and that due to mental

illness he could not “practice with reasonable skill or

safety,” and thus that his license should be revoked pursu-

ant to N.M. Stat. Ann. §§ 61-6-15(A), 61-7-3(A). See C.A.

App. 24-26. Dr. Guttman sought judicial review of that

determination in the state courts, but those courts did not

address any question of federal law. See Part II, supra.

Nor did they even conduct a de novo review of the Board’s

decision as a matter of state law. Instead, in keeping with

the deferential standard dictated by the state statute

authorizing judicial review of administrative action, see

N.M. Stat. Ann. § 39-3-1.1(D), they ruled only that the

decision “was within the Board’s authority and based upon

the law, was based upon substantial evidence as shown in

the record, and was not fraudulent, arbitrary, or capri-

cious.” App., infra, at 28 [C.A. App. 49]. Although the state

courts thus did not consider any federal question, the

Tenth Circuit held that Rooker-Feldman barred his federal

claims “because a New Mexico state court judgment

affirmed the Board’s decision as based on substantial

evidence.” Id. at 9 [401 F.3d at 1175]. Those claims, the

Tenth Circuit concluded, were “‘inextricably intertwined’

with the state court’s merits decision.” Id.

By contrast, at least two other circuits have concluded

that federal challenges to state administrative action are

not “inextricably intertwined” with issues previously

litigated in state-court proceedings for arbitrary-and-

capricious or substantial-evidence review.‘ Accordingly,

those courts have refused to apply Rooker-Feldman to

cases like this one. For example, in Parkview Associates

Partnership, 225 F.3d at 322, the plaintiffs challenged a

local zoning decision as discriminating on the basis of

disability in violation of the ADA, the Fair Housing Act,

and the Rehabilitation Act of 1973. The plaintiffs first

sought relief under a state-court procedure that provided

for review of administrative action that involved “an abuse

of discretion or an error of law” or was “not supported by

substantial evidence.” Jd. (internal quotation marks

omitted). They did not assert their federal disability

discrimination claims in that proceeding. See id. at 323.

After the state courts refused to provide relief, the plain-

tiffs brought their disability discrimination claims in

* In addition to the cases discussed in text, the Tenth Circuit’s

decision here stands in tension with the Eleventh Circuit’s decision in

Biddulph v. Mortham, 89 F.3d 1491, 1495 n.1 (11th Cir. 1996), cert.

denied, 519 U.S. 1151 (1997), which held that a state court’s denial of a

petition for mandamus based on the lack of a “clear and indisputable”

legal claim does not bar a subsequent federal court action asserting

that claim on the merits. The law on this issue in the Second Circuit is

unclear. Compare Moccio, 95 F.3d at 200-202 (unsuccessful action for

arbitrary-and-capricious review in state court bars subsequent 1983

due process and equal protection claims in federal court under Rooker-

Feldman), with DiBlasio v. Novello, 344 F.3d 292, 296 (2d Cir. 2003)

(Rooker-Feldman didn’t bar due process claims notwithstanding

plaintiff’s earlier unsuccessful Article 78 action for judicial review in

state court: “Deciding the federal claims in DiBlasio’s favor would not

necessarily contradict the Article 78 court’s determination that

Novello’s decision was not ‘arbitrary and capricious.’”), cert. denied, 541

U.S. 988 (2004).

federal court. Emphasizing that the state-court proceed-

ings “were limited to appellate, on-the-record review of

whether the Zoning Hearing Board abused its discretion or

committed an error of law” in applying state zoning law,

the Third Circuit held that the plaintiffs’ federal claims

were not “inextricably intertwined with the previous state

court adjudication.” Jd. at 326. To decide those claims, the

Third Circuit concluded, the federal courts “would not

have to review the state courts’ determinations that the

Board’s decisions were supported by substantial evidence

in the record.” Jd. Accordingly, the Rooker-Feldman bar did

not apply. See id.

Similarly, in Sheehan, 207 F.3d at 37-38, the plaintiff

police lieutenant challenged an administrative decision

that he was subject to involuntary disability retirement

under state law. He unsuccessfully filed a state-law

judicial review proceeding in state court, which “deter-

mined that the Board’s decision to retire Sheehan was

based upon substantial evidence.” Jd. at 38. The plaintiff

then filed suit in federal court. For the first time, he

asserted a claim under the ADA; he alleged that because

he could continue to perform his job with “reasonable

accommodations,” the involuntary retirement decision

violated the federal statute. Jd. Although acknowledging

that there was factually “some overlap” between the two

proceedings, the court held that the plaintiff’s “ADA claim

cannot be regarded as inextricably intertwined with the

state court’s involuntary retirement decision.” Jd. at 40.

Given the significant differences in the issues the federal

courts would be called upon to redress, the First Circuit

concluded that the plaintiff’s case was not one in which

“the federal claim succeeds only to the extent that the

state court wrongly decided the issues before it,” and thus

was not barred by Rooker-Feldman. Id. (internal quotation

marks omitted).

Had this case arisen in the First or Third Circuits

instead of the Tenth Circuit, Dr. Guttman’s federal claims

would not have been deemed to be “inextricably inter-

twined” with his state-court action for arbitrary-and-

capricious review of the state Board’s decision, and his

case would not have been dismissed on Rooker-Feldman

grounds. This conflict is independent of the other two

issues on which the Tenth Circuit’s decision conflicts with

the rulings of other courts of appeals. But as with those

other two conflicts, there is no reason to believe that it will

disappear. Exxon Mobil did not address the circumstances

under which federal claims are “inextricably intertwined”

with a judgment rendered in state court before the federal

litigation commenced. Indeed, no decision of this Court

addresses the applicability of Rooker-Feldman to cases

where the plaintiff previously sought arbitrary-and-

capricious review in state court. Until this Court weighs in

on the question, the courts of appeals will remain in

conflict.

B. Federal-Law Challenges to State Adminis-

trative Action are Not “Inextricably Inter-

twined” With a State Court’s Rejection of

Arbitrary-and-Capricious or Substantial-

Evidence Challenges to That Action

Where a state court reviews administrative action

under an arbitrary-and-capricious or abuse-of-discretion

standard, its determination is not “inextricably inter-

twined” for Rooker-Feldman purposes with a subsequent

claim that the administrative action violated federal law.

This Court has not defined the circumstances in which a

state-court determination is “inextricably intertwined”

with a subsequent federal-court claim. But in his opinion

concurring in the judgment in Pennzoil Co., 481 U.S. at 25,

Justice Marshall contended that “the federal claim is

inextricably intertwined with the state-court judgment if

the federal claim succeeds only to the extent that the state

court wrongly decided the issues before it.”

A majority of the Court concluded that Justice Mar-

shall’s reading of “inextricably intertwined” gave too broad

a scope to the Rooker-Feldman doctrine. See id. at 18

(Scalia, J., joined by O’Connor, J., concurring) (rejecting

Justice Marshall’s conclusion that Rooker-Feldman barred

Texaco’s action); id. at 21 (Brennan, J., concurring in the

judgment) (same); id. at 28 (Blackmun, J., concurring in

the judgment) (same); id. at 31 n.3 (Stevens, J., concurring

in the judgment) (same). Yet even under Justice Marshall's

broad interpretation, a federal challenge to state administra-

tive action is not “inextricably intertwined” with an earlier

state-court judgment affirming that action under an arbi-

trary-and-capricious or substantial-evidence standard. To

conclude that a state administrative action violates federal

law is not at all to imply that the action was unsupported

by substantial evidence or was arbitrary and capricious as

a matter of state law. A federal-court injunction against

such an action is not “predicated upon a conviction that

the state court was wrong” in rejecting the state-law

action for judicial review. Jd. at 25 (Marshall, J., concur-

ring in the judgment).

Here, the state Board’s action rested entirely on the

state-law determinations that Dr. Guttman had engaged

in “unprofessional or dishonorable conduct” and that he

could not “practice with reasonable skill or safety.” C.A.

App. 24-26. The state courts affirmed that determination

as supported by substantial evidence and not arbitrary

and capricious. App., infra, at 28. Although the state

Board concluded that further treatment or intervention by

colleagues would not likely change Dr. Guttman’s behav-

ior, C.A. App. 23, neither the Board nor the state courts

addressed the question whether Dr. Guttman’s disability

could be reasonably accommodated as required by the

ADA. A determination that the Board’s decision violated

the ADA would not at all challenge the state courts’ de-

termination to affirm that decision under state-law arbi-

trary-and-capricious and substantial-evidence standards.

The Tenth Circuit was therefore incorrect to conclude that

the issues presented here are “inextricably intertwined”

with those resolved in state court.

CONCLUSION

The petition for writ of certiorari should be granted,

the judgment below vacated, and the case remanded for

further consideration in light of Exxon Mobil, supra. If the

Court does not follow that course, it should grant certio-

rari and set the case for plenary review.

Respectfully submitted,

IAN D. MCKELvy, Esq.

SANDERS, BRUIN, COLL & WORLEY, P.A.

701 W. Country Club Rd.

P.O. Box 550

Roswell, NM 88202-0550

(505) 622-5440

SAMUEL R. BAGENSTOS, Esq.

1 Brookings Dr.

Box 1120

St. Louis, MO 63103

App. 1

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

STUART T. GUTTMAN, M_D.,

Plaintiff-Appellant,

G.T.S. KHALSA, LIVINGSTON

PARSON, and THE STATE OF

NEW MEXICO, No. 03-2244

Defendants-Appellees.

UNITED STATES OF

AMERICA

Intervenor.

Appeal from the United States District Court

for the District of New Mexico

(D.C. No. CIV-03-463)

(Filed Mar. 17, 2005)

Ian D. McKelvy, Sanders, Bruin, Coll & Worley, PA.,

Roswell, New Mexico, for Plaintiff-Appellant.

Timothy S. Hale (Susan R. Johnson with him on the brief),

Riley, Shane & Hale, P.A., Albuquerque, New Mexico, for

Defendants-Appellees.

R. Alexander Acosta, Assistant Attorney General, David

K. Flynn and Kevin Russell, Attorneys, United States

App. 2

Department of Justice, Washington, D.C., filed a brief for

Intervenor United States of America.

Before LUCERO, ANDERSON, and McCONNELL,

Circuit Judges.

LUCERO, Circuit Judge.

Having failed to obtain reinstatement of his license to

practice medicine through an action in New Mexico state

courts, Dr. Stuart Guttman now seeks relief in federal

court. His license to practice medicine was revoked by the

New Mexico Board of Medical Examiners (“Board”) and

that decision was affirmed by the New Mexicc Seventh

Judicial District Court. His appeals to the New Mexico

Court of Appeals and the New Mexico Supreme Court were

unavailing. Subsequently, Dr. Guttman filed suit in federal

district court against G.T.S. Khalsa, the Board’s attorney,

Livingston Parsons, the hearing officer, and the state of

New Mexico, alleging violations of Title II of the Ameri-

cans with Disabilities Act (“ADA”) and 42 U.S.C. § 1983.

On the basis of lack of subject matter jurisdiction under

the Rooker-Feldman doctrine, the district court granted

summary judgment in favor of the defendants. We exercise

jurisdiction under 28 U.S.C. § 1291 and AFFIRM.

Dr. Guttman possessed a medical license issued in

New Mexico in 1993 with certain stipulations that were a

consequence of his history of depression and post-

traumatic stress disorder. Due to his mental illness, Dr.

App. 3

Guttman had practiced under similar restrictions in both

Mississippi and Texas. The stipulations to his New Mexico

license were lifted by the Board in May 1995. However, in

December 1999 the Impaired Physicians Committee

(“Committee”) directed Dr. Guttman to appear before it in

response to complaints received about his professional

conduct. After meeting with the Committee, Guttman

received from the Board a Notice of Contemplated Action

because of his mental illness and because of allegations

that he was dishonest in responding to the Board’s inquir-

ies. He further received an Order of Summary Suspension

of his medical license. Guttman appeared with counsel

before the Board at a three-day hearing to determine

whether his license to practice medicine in New Mexico

should be revoked. During the hearing, Guttman’s counsel

proposed a number of restrictions, similar to those under

which Guttman had previously practiced in Texas, that

would limit Guttman’s medical practice to a solo clinic as

well as require reguler reporting to the Board and posting

notice of his restrictions in his medical office. These

accommodations were designed to address Guttman’s

pattern of conduct which made it difficult for fellow physi-

cians and medical staff to work with him.

Following the hearing, the Board made specific

findings which included a history of Guttman’s past

pattern of problems with medical staff and patients in

Mississippi, Texas, and New Mexico. The Board also found

that Guttman had not given complete and honest re-

sponses to its inquiries concerning past problems with his

practice in Gallup, New Mexico. As a consequence of these

findings and numerous additional findings of abusive and

disruptive behavior toward fellow physicians, medical

staff, and patients unbecoming of a licensed physician, the

se pe pe ere EET MAR DOP LE 3

App. 4

Board concluded that further therapeutic treatment would

not remove the danger he posed to the public if he contin-

ued to practice medicine. Moreover, the Board found that

Guttman could not be effectively monitored and would be

unable to practice medicine safely. On February 28, 2001,

the Board revoked Guttman’s medical license pursuant to

its authority under New Mexico’s Uniform Licensing Act,

N.M. Stat. Ann. § 61-1-1 et seq.

Guttman’s appeal of the Board’s decision to the

Seventh Judicial District Court of New Mexico was denied

because the state court found that the decision was based

on substantial evidence and was not arbitrary, capricious,

or fraudulent. However, the state court refused to consider

Guttman’s claim under Title II of the ADA because the

claim had not been raised specifically before the Board.

Although Guttman had proposed particular accommoda-

tions, he had not asserted any ADA rights before the

Board for their consideration. His appeal before the New

Mexico Court of Appeals was denied, as was his petition

for certiorari to the New Mexico Supreme Court. Having

exhausted all available state remedies, Guttman filed a

complaint in federal district court alleging violations of his

procedural due process rights under § 1983 and for viola-

tions of Title II of the ADA. Because a New Mexico state

court rendered a final judgment with regard to Dr. Gutt-

man’s appeal from the Board’s decision revoking his

license, the district court concluded that it lacked subject

matter jurisdiction under the Rooker-Feldman doctrine to

hear Guttman’s claims. In addition, the district court

concluded that absolute immunity applied with regard to

Guttman’s § 1983 claim against Khalsa and Parsons and

that Eleventh Amendment sovereign immunity applied

App. 5

with regard to his ADA claim against New Mexico. Gutt-

man now presents this appeal.

We review de novo a district court’s dismissal of a

complaint for lack of subject matter jurisdiction. Kenman

Eng’g v. City of Union, 314 F.3d 468, 473 (10th Cir. 1999).

Under the doctrine that has arisen from two Supreme

Court cases, Rooker v. Fid. Trust Co., 263 U.S. 413 (1923)

and D.C. Court of Appeals v. Feldman, 460 U.S. 462

(1983), a federal district court does not have subject

matter jurisdiction to hear appeals from final judgments of

state courts. This doctrine is based upon an inference that

follows from 28 U.S.C. §1257(a) which provides that

“[flinal judgments or decrees rendered by the highest court

of a State in which a decision could be had, may be re-

viewed by the Supreme Court by writ of certiorari.” Appel-

late jurisdiction over state court judgments having been

vested in the Supreme Court, it follows-that “no court of

the United States other than [the Supreme Court] could

entertain a proceeding to reverse or modify the judgment”

of a state’s highest court. Rooker, 263 U.S. at 416. In

Rooker, the harm alleged in federal court was based on the

supposed errors made by the Indiana Supreme Court in

deciding the plaintiffs’ constitutional claims. Because

federal district court jurisdiction is “strictly original,” the

Supreme Court affirmed the district court’s dismissal of

the case for lack of subject matter jurisdiction. Jd. To allow

a district court to modify the judgment of a state court

“would be an exercise of appellate jurisdiction,” id., that is

App. 6

implicitly denied to district courts.. Thus, under the

Rooker-Feldman doctrine, a party who loses in state court

is barred “from seeking what in substance would be

appellate review of the state judgement in a United States

district court, based on the losing party’s claim that the

state judgment itself violates the loser’s federal rights.”

Kiowa Indian Tribe v. Hoover, 150 F.3d 1163, 1169 (10th

Cir. 1998) (quoting Johnson v. De Grandy, 512 U.S. 997,

1005-06 (1994)).

Although federal district court review of issues actu-

ally adjudicated by state courts forms the clearest example

of a forbidden exercise of appellate jurisdiction, the other

half of the Rooker-Feldman doctrine forbids a district court

from entertaining claims “inextricably intertwined” with a

state court judgment. Feldman, 460 U.S. at 483, n.16.

Feldman presented the question whether the district court

had jurisdiction to review a District of Columbia court’s

refusal to grant plaintiffs a waiver to take the District of

Columbia bar exam. Jd. at 482. In response, the Supreme

Court reasoned that “if the constitutional claims presented

to a United States district court are inextricably inter-

twined with the state court’s denial in a judicial proceed-

ing of a particular plaintiff’s ... [state court claims], then

the district court is in essence being called upon to review

the state-court decision.” Jd. at 483, n.16. If the actual

claim brought in federal court has not been adjudicated in

a prior state court proceeding, then a district court must

* This rule is not absolute, as district courts may properly exercise

what is in effect appellate jurisdiction over collateral attacks to state

court judgments pursuant to 28 U.S.C. § 2254.

App. 7

determine whether “in essence” a party seeks review of the

state-court judgment.’ Jd.

Because Guttman first raised his claims in state

court, we look, under Rooker-Feldman, to whether he

essentially seeks to bring a forbidden de facto appeal. See,

e.g., Facio v. Jones, 929 F.2d 541, 543 (10th Cir. 1991)

(holding that plaintiff’s request for declaratory relief is

“inextricably intertwined” with the underlying state court

judgment against him). To determine whether Rooker-

Feldman deprives a federal court of jurisdiction, we ask

“whether the state-court judgment caused, actually and

proximately, the injury for which the federal-court plaintiff

seeks redress.” Kenman Eng’g, 314 F.3d at 476. That is, we

seek to determine “whether the injury alleged by the

federal plaintiff resulted from the state court judgment

itself or is distinct from that judgment.” Jd. (citing Garry v.

Geils, 82 F.3d 1362, 1365 (7th Cir. 1996)).

In the present case, Guttman alleges that his injury

results from the Board’s failure to provide accommodations

for him pursuant to the ADA. Noting that he presented the

Board with proposed restrictions to his license to practice

medicine, he argues that a violation of the ADA did not

? Unlike a defense of res judicata (or “claim preclusion”), which

requires federal courts to give preclusive effect to state court judgments

as determined by state law pursuant to the full faith and credit statute,

28 U.S.C. § 1738, Rooker-Feldman is a matter of federal law and

operates as a subject-matter jurisdictional bar that may be raised at

any time. See Gash Assocs. v. Rosemont, 995 F.2d 726, 728 (7th Cir.

1993) (“The Rooker-Feldman doctrine . . . has nothing to do with § 1738.

It rests on the principle that district courts have only original jurisdic-

tion. ... ”); see generally, Kremer v. Chem. Constr. Corp., 456 U.S. 461,

466-67 (1982) (distinguishing res judicata (“claim preclusion”) from

collateral estoppel (“issue preclusion”)); 18 Charles Alan Wright et al.,

Federal Practice & Procedure § 4402 (2d ed. 2002).

App. 8

occur until the Board rendered its decision and refused to

provide him any accommodations for his mental illness.

Thus, at first it would appear that he does not allege

injury from the state-court judgment, and that because he

“asserts as a legal wrong an allegedly illegal act or omis-

sion by an adverse party, Rooker-Feldman does not bar

jurisdiction.” Noel v. Hall, 341 F.3d 1148, 1164 (9th Cir.

2003). Indeed, the Supreme Court’s reasoning in Pennzoil

Co. v. Texaco, Inc., 481 U.S. 1 (1987), indicates that a claim

is not inextricably intertwined with a prior state court

judgment when the purpose of the federal action is “sepa-

rable from and collateral to the merits of the state-court

judgment.” Id. at 21 (Brennan, J., concurring).

Our inquiry then requires us to ask whether the

purpose of Guttman’s ADA claim is separable from and

collateral to the merits of the state-court judgment affirm-

ing the Board’s revocation of his medical license. In order

to facilitate this inquiry into the federal suit’s purpose, we

have held that when determining whether the federal

plaintiff asserts a legal injury by an adverse party or by a

state-court judgment, we must look to the relief sought,

not simply to the issues raised. Kenman Eng’g, 314 F.3d at

476; Crutchfield v. Countrywide Home Loans & Mortg.

Elec. Registration Sys., 389 F.3d 1144, 1148 (10th Cir.

2004) (noting that although “a litigant may be able to

make a federal claim appear unrelated to a state court

judgment through artful pleading, the requested relief can

quickly reveal whether Rooker-Feldman applies.”).

We recognize that the state court’s refusal to hear

Guttman’s ADA claims on the basis that they were not

properly preserved for appeal complicates the issue before

us. Guttman argues that his ADA claims have never been

“actually decided,” and are therefore separate from the

App. 9

state-court judgment affirming his license revocation. We

are not deprived of subject matter jurisdiction to hear

Guttman’s ADA claims, however, merely because they

were first raised in state court. It is state-court judgments

that trigger the jurisdictional bar of Rooker-Feldman, not

state-court claims. In the instant case, the state court

refused to exercise jurisdiction over the ADA claim, and

hence did not decide it on the merits. See Pittsburg County

Rural Water Dist. No. 7 v. City of McAlester, 358 F.3d 694,

707 (10th Cir. 2004) (concluding that Rooker-Feldman does

not bar a federal suit where a state court did not decide

the federal claim on the merits); Whiteford v. Reed, 155

F.3d 671, 674 (3d Cir. 1998) (holding that where a state

action does not reach the merits of a plaintiff’s claims,

Rooker-Feldman does not deprive the federal court of

jurisdiction). Instead, we are deprived of jurisdiction over

Guttman’s ADA and § 1983 claims because they are but

alternate routes to achieving his desired relief — judicial

reinstatement of his medical license.

As Appellees argue before us, the state court found

that the Board’s decision was supported by substantial

evidence reflected in the record and was not fraudulent,

arbitrary, or capricious. That evidence includes the Board’s

finding that Dr. Guttman engaged in dishonesty and

professional misconduct, which are grounds for revocation

of his license separate from the Board’s finding that the

public could not be protected adequately from his mental

illness through accommodations to his license. Therefore,

because a New Mexico state court judgment affirmed the

Board’s decision as based on substantial evidence, we now

lack jurisdiction to hear Dr. Guttman’s ADA claim which is

“inextricably intertwined” with the state court’s merits

decision. Through his ADA claim, Guttman would have us

App. 10

disrupt or undo the New Mexico state court decision

affirming his license revocation, needlessly duplicate

judicial proceedings, and ignore congressional limitation of

our judicial power under § 1257. Under Rooker-Feldman,

we are jurisdictionally barred from doing so.

Guttman also argues that because New Mexico state

courts refused jurisdiction over his ADA claim, he has been

deprived of a full and fair opportunity to litigate this

claim. Even if he has suffered such a deprivation, our

Circuit has held that Rooker-Feldman “bars any suit that

seeks to disrupt or ‘undo’ a prior state-court judgment,

regardless of whether the state-court proceeding afforded

the federal-court plaintiff a full and fair opportunity to

litigate her claims.” Kenman Eng’g., 314 F.3d at 478.

Other circuits have concluded, however, that where a

litigant has not had a fair opportunity to raise a federal

claim in state court proceedings, the Rooker-Feldman

doctrine does not bar a subsequent federal action. See e.g.,

Simes v. Huckabee, 354 F.3d 823, 827 (8th Cir. 2004) (“the

inextricably intertwined analysis may be inapplicable

where federal plaintiffs have not been given a reasonable

opportunity to raise their federal claims in the state

proceedings.”); Long v. Shorebank Dev. Corp., 182 F.3d

548, 558 (7th Cir. 1999) (“an issue cannot be inextricably

intertwined with a state court judgment if the plaintiff did

not have a reasonable opportunity to raise the issue in

state court proceedings.”); Moccio v. N.Y. State Office of

Court. Admin., 95 F.3d 195, 198-99 (2d Cir. 1996) (noting

that if “the plaintiff did not have an opportunity to present

the claims in [state court] proceedings, the claims are not

... barred by Rooker-Feldman.”). In the present case,

Guttman was not deprived of an opportunity to raise his

ADA claim in state court. To the extent that Guttman’s

App. 11

ADA claim was raised in state court and is inextricably

_intertwined with the state court’s judgment, regardless of

whether Guttman had a full opportunity to litigate the

claim, Rooker-Feldman bars the action.

Ill

Even if the Rooker-Feldman doctrine did not bar his

action, the district court found that Eleventh-Amendment

immunity applied to Guttman’s claim under Title II of the

ADA against New Mexico and that absolute immunity

applied to his § 1983 claims against defendants Khalsa

and Parsons. Because we conclude that Rooker-Feldman

deprives the district court of subject matter jurisdiction to

hear Guttman’s claims, we need not reach the merits of

defendants’ immunity defenses.

We hold that [sic] district court properly determined

that it lacked subject matter jurisdiction under Rooker-

Feldman and AFFIRM.

App. 12

Stuart T. GUTTMAN, M.D. Plaintiff,

G.T.S. KHALSA, Livingston Parsons, and

the State of New Mexico Defendants.

No. CIV. 03-463 LCS.

United States District Court,

D. New Mexico

Sept. 15, 2003

Ian D. McKelvy, Roswell, NM, for Plaintiff.

Timothy S. Hale, Albuquerque, NM, for Defendants.

MEMORANDUM OPINION AND ORDER

SMITH, United States Magistrate Judge.

THIS MATTER is before the Court on Defendants’

Motion for Summary Judgment, filed on May 28, 2003.

The Court, acting upon consent and designation pursuant

to 28 U.S.C. § 636, and having reviewed the Motion and

considered the submissions of counsel, relevant authori-

ties, and being otherwise fully advised, finds that this

Motion is well-taken and should be GRANTED.

I. Background.

This case arises out of the revocation of Plaintiff’s

medical license by the New Mexico Board of Medical

Examiners (“Board”). Plaintiff was granted a stipulated

license to practice medicine in New Mexico on May 20,

1993. (Def.Ex. A.) The license was granted with stipula-

tions due to Plaintiff’s history of mental illness involving

depression and post traumatic stress disorder (“PTSD”).

App. 13

(Id.) The stipulations on Plaintiff’s license were lifted by

the Board on or about May 19, 1995. (Compl.{ 9.) On

December 28, 1999, the Board directed Plaintiff to meet

with an Impaired Physician Examining Committee based

on a number of complaints regarding Plaintiff. (Def.Ex. D).

Plaintiff met with the examining committee on January

10, 2000 in Albuquerque, New Mexico. On or about March

7, 2000, Plaintiff received a Notice of Contemplated Action

and an Order of Summary Suspension from the Board

based on Plaintiff’s mental illness, allegations of false

statements to the Board and inappropriate behavior with

patients and hospital staff. (Def.Ex. B, C). Plaintiff ap-

peared with counsel at an administrative hearing before

the Board from October 23-25, 2000. The purpose of this

hearing was to determine whether Plaintiff's license to

practice medicin2 in the State of New Mexico should be

revoked. Defendant Parsons acted as administrative

hearing officer at this hearing and Defendant Khalsa

acted as administrative prosecutor for the Board. The

Board ordered that Plaintiff’s license to practice medicine

be revoked on February 28, 2001 based on dishonest

statements made to the Board by Plaintiff and on findings

of abusive and disruptive behavior by Plaintiff towards

colleagues, hospital staff and patients. (Def.Ex. D). The

Board further found that Plaintiff had a history of major

depression, PTSD, and an underlying mixed personality

disorder, that prior therapeutic treatment and prior

intervention by Plaintiff’s employers had been ineffective

in changing Plaintiff’s behavior, and that Plaintiff could

not be effectively monitored with respect to his disruptive

behavior. (Id.).

Plaintiff filed an appeal of the Board’s decision in the

Seventh Judicial District Court of New Mexico alleging

App. 14

that the Board’s decision was not supported by substantial

evidence, that the decision of the Board was not in accor-

dance with applicable law, that the decision was arbitrary,

capricious and an abuse of discretion and that the decision

did not comport with the requirements of Title II of the

Americans with Disabilities Act (“ADA”) (Def.Ex. E).

On January 30, 2003, the State Court issued an Order

affirming the Board’s revocation of Plaintiff’s license. The

court found that the Board’s decision was based on sub-

stantial evidence, was within the Board’s authority and

based upon the law, and was not arbitrary, capricious or

fraudulent. (Def.Ex. F.) The court further found that,

because Plaintiff had not raised the allegation of ADA

violations before the Board, this issue was not preserved

for appeal. (Jd.) As such, Plaintiff’s ADA claims were not

considered by the court. (Def.Ex. F). Plaintiff’s Motion for

Reconsideration to the New Mexico Court of Appeals and

petition for certiorari to the New Mexico Supreme Court

were denied. (Def.Ex. G, H.) Plaintiff has exhausted all

avenues available to him in state court pursuant to 28-1-

13 NMSA 1978.

Defendants argue that they are entitled to summary

judgment because Plaintiff has not stated a claim for

violation of his Procedural Due Process rights under 42

U.S.C. § 1983 or for violations of Title II of the ADA and

because jurisdiction is improper before this Court.

Il. Standard

A motion for summary judgment may be granted only

when “there is no genuine issue as to any material fact

and ... the moving party is entitled to judgment as a

matter of law.” Fed. R. Civ. P 56(c). Summary judgment is

App. 15

proper when the pleadings, depositions, answers to inter-

rogatories and admissions on file, as well as any affidavits

“show that there is no genuine issue as to any material

fact.” Id. When applying this standard, the Court exam-

ines the record and reasonable inferences in the light most

favorable to the non-moving party. See Simms v. Ohkla-

homa ex rel. Dep’ of Mental Health & Substance Abuse

Servs., 165 F.3d 1321, 1326 (10th Cir.1999).

The movant bears the initial burden of establishing

that no genuine issue exists as to any material fact. See

Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct.

1598, 26 L.Ed.2d 142 (1970). “Where the record taken as a

whole could not lead a rational trier of fact to find for the

non-moving party, there is no ‘genuine issue for trial.’”

Matsushita Electric indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)

(quoting First National Bank of Arizona v. Cities Service

Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 20 L.Ed.2d 569

(1968)). The movant’s initial burden may be discharged by

showing there is an absence of evidence to support the

non-moving party’s case. See Celotex v. Catrett, 477 U.S.

317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the

movant meets its burden, the burden shifts to the non-

moving party to demonstrate a genuine issue for trial on a

material matter. See McGarry v. Pitkin Co., 175 F.3d 1193,

1201 (10th Cir.1999).

Ill. Analysis

Plaintiff brings this action under Title II of the Ameri-

cans with Disabilities Act (“ADA”) and under 42 U.S.C.

§ 1983. Defendants contend they are entitled to summary

judgment on the grounds that this Court lacks subject

App. 16 \

matter jurisdiction over Plaintiff’s claims and that the

immunity of Defendants Khalsa and Parsons and the

State of New Mexico is well established under Tenth

Circuit law.

a. Rooker-Feldman as a Bar to Jurisdiction

Defendant contends that this Court lacks subject

matter jurisdiction over Plaintiff’s claims under the

Rooker-Feldman Doctrine.’ Under Rooker-Feldman, a

party who loses in a state court proceeding is barred

“from seeking what in substance would be appellate

review of the state judgment in a United States district

court, based on the losing party’s claim that the state

judgment itself violates the loser’s federal rights.’” Kiowa

Indian Tribe of Okla. v. Hoover, 150 F.3d 1163, 1169 (10th

Cir.1998) (quoting Johnson v. DeGrandy, 512 U.S. 997,

1005-06, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994)). Federal

review of state court judgments can be obtained only in

the United States Supreme Court. 28 U.S.C. § 1257. The

Rooker-Feldman doctrine therefore prohibits a lower

federal court from considering claims actually decided by a

state court and claims “inextricably intertwined” with a

prior state-court judgment. See Kenmen Engineering v.

City of Union, 314 F.3d 468, 473 (10th Cir.2002).

Plaintiff asserts that Rooker-Feldman does nct apply

to the present case because Plaintiff did not have a full

and fair opportunity to litigate his ADA claims in the prior

state proceeding. However, in Kenmen, the Tenth Circuit

* District of Columbia Court of Appeals v. Feldman, 460 U.S. 462,

482, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Rooker v. Fidelity Trust, 263

U.S. 413, 416, 44 S.Ct. 149, 68 L.Ed. 362 (1923).

—

App. 17

ruled that application of the Rooker-Feldman doctrine was

appropriate despite the fact that the federal court plaintiff

had no opportunity to litigate a particular claim in a state

court proceeding. Id. at 478. Rooker-Feldman bars any suit

seeking to undo a prior state court judgment, regardless of

whether the state proceeding afforded Plaintiff a full and-

fair opportunity to litigate his claims. Facio v. Jones, 929

F.2d 541, 544 (10th Cir.1991). The fact that the state court

declined to hear Dr. Guttman’s ADA claims does not

provide this Court with jurisdiction to hear those claims.

Plaintiff also contends that, because the State court

refused to hear Dr. Guttman’s ADA claims, these claims

are not “inextricably intertwined” with that court’s judg-

ment within the meaning of Rooker-Feldman and there-

fore can be raised by Plaintiff in this Court. This

contention must be rejected. The Supreme Court has

identified two categories of cases that fall outside of

Rooker-Feldman’s “inextricably intertwined” formula.

First, a party may bring a general constitutional challenge

to a state law, provided that: 1) the Party does not request

that the federal court upset a prior state-court judgment

applying that law against the party, District of Columbia

Court of Appeals v. Feldman, 460 U.S. 462, 482-86, 103

S.Ct. 1303, 75 L.Ed.2d 206 (1983). and 2) the prior state-

court judgment did not actually decide that the state law

at issue was facially constitutional. Kenmen at 476.

(quoting Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16,

44 S.Ct. 149, 68 L.Ed. 362 (1923)). Second, a party may

challenge state procedures for enforcement of a judgment

where consideration of the underlying state-court decision

is not required. Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 26,

107 S.Ct. 1519, 95 L.Ed.2d 1 (1987).

App. 18

‘The present action does not fall within either of these

exceptions to the Rooker-Feldman jurisdictional bar.

Although Plaintiff contends in his Surreply that he is not

intending a review of the state court decision, Plaintiff

seeks prospective injunctive relief and damages under the

ADA which requires a review of the state court decision. It

is clear that Plaintiff’s injury resulted from the state-court

judgment, that his complaint in this Court seeks to upset

that judgment and that the resolution of Plaintiff’s federal

claims necessarily requires consideration of the underlying

state-court decision. Kenmen, 314 F.3d at 476.

Because Plaintiff’s claims fall directly within the

parameters of Rooker-Feldman. these claims are not

reviewable by this Court. However, as discussed infra,

Plaintiff would be entitled to no relief even if this Court

had jurisdiction to consider his claim.

b. Plaintiff's Claims against Defendants Par-

sons and Khalsa

Plaintiff alleges that Defendants possessed a bad faith

intent to discriminate against him in violation of 42 U.S.C.

§ 1983 and Title II of the ADA and that Defendants Khalsa

and Parsons singled Plaintiff out for discrimination

because of a knowledge of Plaintiff’s mental illness.

Plaintiff has not presented any evidence tending to prove

this contention.

Plaintiff argues that he may appropriately bring suit

against state officials, even if they claim to be acting under

state law, for conduct by the officials that constitutes an

‘ongoing violation of federal law. For this proposition,

Plaintiff cites Elephant Butte Irrigation District of New

Mexico v. Dep't of the Interior, 160 F.3d 602, 609 (10th

App. 19

Cir.1998). Plaintiff’s reliance on this authority is mis-

placed. In Elephant Butte, the acts of state officials consti-

tuted a conflict with federal law at the inception of the

state action in question. Jd. In the present case, officials.

Khalsa and Parsons were acting pursuant to New Mexico

state law. However, Plaintiff does not argue that New

Mexico state law is invalid, nor does Plaintiff claim that

the State of New Mexico was authorizing its officials to

violate federal law. Indeed, Plaintiff appears to make no

claim at all regarding the validity of New Mexico state

law. Plaintiff’s cited authority is therefore — to

the case at bar.

Plaintiff further contends that Defendant Khalsa is

not entitled to immunity because he was involved in

administrative duties and investigatory work, which does

not fall within the scope of immunity traditionally afforded

to officials acting as prosecutors. Plaintiff also argues that

Defendants Khalsa and Parsons acted in bad faith and, as

such, are not entitled to immunity from suit. For this

contention, Plaintiff cites Buckley v. Fitzsimmons, 509

U.S. 259, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). Plain-

tiff’s reliance on this authority is misplaced.

The Supreme Court in Buckley declined to withhold

all immunity from prosecutors acting in an investigative

or administrative capacity. Id. at 265, 113 S.Ct. 2606.

Instead, the Court held that these individuals were enti-

tled to qualified immunity. Id. The Supreme Court further

held that acts undertaken by a prosecutor in preparation

for the initiation of judicial proceedings or trial are enti-

tled to absolute, rather than qualified, immunity. Id. at

273, 113 S.Ct. 2606. The actions of Defendants Khalsa and

Parsons fall within the Supreme Court’s provisions for

App. 20

absolute immunity and as such, the acts of Khalsa and

Parsons are not amenable to suit by Plaintiff.

The Tenth Circuit has previously dealt with agency

adjudications in the context of medical licensing and

determined that, because such agencies perform functions

analogous to a court of law, agency members are entitled

to absolute immunity from suit. Horwitz v. State Board of

Medical Examiners, 822 F.2d 1508 (10th Cir.1987). Tradi-

tionally, administrative officials have been afforded abso-

lute immunity when performing functions analogous to

those of judges and prosecutors. Butz v. Economou, 438

U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). Absolute

immunity is to be granted in those situations where, 1) the

officials’ functions are similar to those involved in the

judicial process, 2) the officials’ actions are likely to result

in damages lawsuits by disappointed parties, and 3) there

are sufficient safeguards in the regulatory framework to

control unconstitutional conduct. Id. These requirements

are satisfied in the present case. At the agency hearing,

the functions of Defendants Khalsa and Parsons were

clearly similar to those involved in the judicial process.

The actions of Khalsa and Parsons did in fact result ina -

suit for damages and injunctive relief by the Plaintiff and

there were sufficient safeguards in the regulatory frame-

work, including an appeal of the Board’s decision in state

court, to control any potential! unconstitutional conduct by

Defendants.

The Tenth Circuit has recognized a strong public

policy in favor of affording absolute immunity from dam-

ages liability under 42 U.S.C. § 1983 to agency officials

who perform functions that are adjudicatory and/or prose-

cutorial in nature. Horwitz, 822 F.2d at 1515. The Court

noted that there is a strong need to insure that individual

App. 21

) Board members perform functions for the public good free

| from harassment or intimidation. Jd. In responding to a

; complaint closely analogous to that now before this court, the

: Court explained, “It is important to insulate Board members

| from political influences in meeting their adjudicatory

) responsibilities in the adversarial setting involving licensure

to practice medicine.” Jd. Under Tenth Circuit law, public

: policy requires that officials serving in such an adjudicatory

) capacity bc exempted from personal liability. Id.

c. Plaintiff’s Claims against Defendant State

of New Mexico

Plaintiff next argues that the State of New Mexico is a

proper defendant under his ADA and Procedural Due

Process claims. With regard to Plaintiff’s claims under, 42

U.S.C. § 1983, the State of New Mexico is not a proper

Defendant. Monell v. Dep’t of Social Services, 436 U.S. 658,

691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Regarding

Plaintiff’s ADA claims, Plaintiff contends he has brought a

claim under Title II of the ADA, for which sovereign immu-

nity has been either abrogated or waived by the State of

New Mexico. This contention fails for several reasons.

The ultimate guarantee of the Eleventh Amendment is

that nonconsenting states may not be sued by private

individuals in federal court. Board of Trustees of the

University of Alabama v. Garrett, 531 U.S. 396, 363, 121

S.Ct. 955, 148 L.Ed.2d 866 (2001). Congress may neverthe-

less abrogate the Eleventh Amendment guarantee pursuant

to Section 5 of the Fourteenth Amendment, which grants to

Congress the power to enforce the substantive guarantees

contained in Section I of the Amendment through the enact-

ment of appropriate legislation. Id. at 364-65, 121 S.Ct. 955.

App. 22

Plaintiff correctly points out that the Supreme Court

declined to decide whether Congress had abrogated the

sovereign immunity of states under Title II of the ADA. Id.

at 360, 121 S.Ct. 955. However, the Tenth Circuit has dealt

with this issue with respect to Title II and found that Title

II is not a valid abrogation of the states’ Eleventh Amend-

ment immunity. Thompson v. Colorado, 278 F.3d 1020,

1034 (10th Cir.2001). Therefore, under Tenth Circuit law,

Plaintiff cannot join the State of New Mexico in a claim

under Title II of the ADA.

Even without the Tenth Circuit’s guidance on Title II,

it is still apparent that the State of New Mexico has not

chosen to abrogate its immunity under Title II of the ADA.

Only unequivocal actions by a state will support a deter-

mination that the state has waived sovereign immunity.

Pennhurst State School & Hosp. v. Halderman, 465 U.S.

89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). Whether a

state’s attorney general has waived sovereign immunity on

beha.. of the state depends on two questions: 1) whether

the action taken by the attorney general is sufficient to

constitute a waiver, and 2) whether the attorney general

has the authority under state law to waive the state’s

sovereign immunity. See, AFSCME v. Corrections Dep’t of

New Mexico, 783 F.Supp. 1320, 1827 (D.N.M.1992).

The Plaintiff has made no showing that the attorney

general of New Mexico unequivocally intended to waive

the State’s sovereign immunity. Only unequivocal expres-

sions by a State will support a waiver of immunity. Id.

Furthermore, Plaintiff has made no showing that the

Attorney General of New Mexico has any authority to

waive the State’s sovereign immunity. Section 8-5-2 NMSA

(1978 Comp.), which specifies the powers of the Attorney

‘Yeneral, does not expressly confer on the Attorney General

App. 23

the authority to waive Eleventh Amendment immunity.

Plaintiff therefore has failed to make out a case that either

Congress or the State of New Mexico intended to waive the

state’s sovereign immunity with respect to Title II of the

ADA and Plaintiff’s claims must therefore fail.’

IV. Conclusion

for Summary Judgment, this Court has determined that

this [sic] it lacks jurisdiction to hear Plaintiff’s claims

under Rooker-Feldman. Furthermore, all named -Defen-

dants are entitled to absolute immunity as to Plaintiff’s

claims under 42 U.S.C. § 1983 and Title II of the ADA.

Accordingly, Defendants’ Motion for Summary Judgment,

filed on May 28, 2003, shall be GRANTED.

Defendant’s Motion for Leave to file a Surreply and

Memorandum in support (Doc. 17) is hereby DENIED AS

MOOT.

A SUMMARY JUDGMENT CONSISTENT WITH

THIS OPINION SHALL ISSUE.

Upon review of the evidence presented on this Motion

)

? Defendant further contends that Plaintiff has not satisfied the

administrative requirements for filing suit under the ADA. However,

Title II of the ADA does not require Plaintiff to exhaust all remedies

before bringing suit. Davoll v. Webb, 194 F.3d 1116, 1124 (10th

Cir.1999). Although Plaintiff has satisfied the requirements for bringing

suit under Title II of the ADA, his claims must fail because Defendants

are entitled to immunity.

”

App. 24

IN THE COURT OF APPEALS

OF THE STATE OF NEW MEXICO

STUART T. GUTTMAN,

Petitioner-Appellant,

hse No. 23,809

Sierra County

NEW MEXICO BOARD OF

MEDICAL EXAMINERS, D-0721-CV-2001-49

Respondent-Appellee. /

ORDER

(Filed Apr. 10, 2003)

This matter came before this Court on Petitioner

Stuart T. Guttman’s Motion For Reconsideration. As-

suming without deciding that Petitioner has demonstrated

unusual circumstances for the untimely filing of said

Petition, we have considered the Petition as if it were

timely. See Serna v. Board of County Comm’s, 88 N.M.

282, 284, 540 P.2d 212, 214 (1975) (untimely petition for

writ of certiorari must be denied absent unusual circum-

stances justifying late filing); Hyden v. N.M. Human

Servs. Dept., 2000-NMCA-002, 7 4, 128 N.M. 423, 993 P.2d

740 (granting petitions where unusual circumstances were

shown).

THIS COURT ORDERS that the petition is DE-

NIED on the merits.

/s/ James J. Wechsler

JAMES J. WECHSLER,

Chief Judge

App. 25

/s/ Ira Robinson

IRA ROBINSON, Judge

/s/ Michael Vigil

MICHAEL E. VIGIL, Judge

App. 26

THE SUPREME COURT OF

THE STATE OF NEW MEXICO

May 16, 2003

NO. 28,042

STUART T. GUTTMAN,

Plaintiff-Petitioner, |

NEW MEXICO BOARD OF

MEDICAL EXAMINERS,

Defendant-Respondent.

ORDER

This matter coming on for consideration by the court

upon petition for writ of certiorari, and the Court having

considered said petition, and being sufficiently advised,

Chief Justice Petra Jimenez Maes, Justice Pamela B.

Minzner, Justice Patricio M. Serna, Justice Richard C.

Bosson, and Justice Edward L. Chavez concurring;

NOW, THEREFORE, IT IS ORDERED that the

petition for writ of certiorari is denied in Court of Appeal

number 23809.

IT IS SO ORDERED.

WITNESS, The Hon. Petra Jime-

nez Maes, Chief Justice of the Su-

preme Court of the State of New

Mexico, and the seal of said Court

this 16th day of May, 2003.

App. 27

(SEAL) /s/ Madeline Garcia

Madeline Garcia, Chief Deputy Clerk

App. 28

STATE OF NEW MEXICO

COUNTY OF SIERRA

SEVENTH JUDICIAL DISTRICT COURT

STUART T. GUTTMAN,

Petitioner,

vs. No. D-0721-CV-2001-49

NEW MEXICO BOARD OF MEDICAL EXAMINERS,

Respondent.

ORDER AFFIRMING REVOCATION OF MEDICAL LICENSE

(Filed Jan. 30, 2003)

THIS MATTER came before the Court upon the

appeal by Stuart T. Guttman of the revocation by the

Board of Medical Examiners of the medical license of

Stuart T. Guttman. The Court, having considered the

pleadings on file in this case, including the Record Proper,

FINDS that the revocation by the Board of Medical

Examiners of the medical license of Stuart T. Guttman

was within the Board’s authority and based upon the law,

was based upon substantial evidence as shown in the

record, and was not fraudulent, arbitrary, or capricious.

The Court further finds that the Petitioner did not raise

the issue of Americans with Disabilities Act compliance

before the New Mexico Board of Medical Examiners so

that the New Mexico Board of Medical Examiners could

consider and act or rule upon that issue. Accordingly,

Petitioner failed to preserve the Americans with Disabili-

ties Act issue for appeal.

App. 29

IT IS, THEREFORE, ORDERED THAT the deci-

sion of the Board of Medical Examiners to revoke Peti-

tioner Stuart T. Guttman’s medical license be, and hereby

is, affirmed.

/s/ Kevin Sweazea

KEVIN R. SWEAZEA

District Judge, Division III

Copies Mailed/Delivered on January 30th, 2003, to: /s/ SR

Rita Nunez Neumann, Esq., 1850 N. Solano Drive, Las

Cruces, New Mexico 88001;

Andrew M. Vallejos, Esq., 111 Lomas Blvd. NW, Suite 300,

Albuquerque, New Mexico 87102.

No. 04-1667 ar

A510 205

IN THE —

Supreme Court of the Unites ated

STUART T. GUTTMAN, M.D.,

Petitioner,

GT.S. KHALSA, LIVINGSTON PARSONS, M.D. and

THE STATE OF NEW MEXICO,

Respondents.

On PETITION FOR A Writ oF CERTIORARI TO THE

UNITED STATE CourRT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF IN OPPOSITION

Tmotny S. HALE

Counsel of Record

Susan R. JOHNSON

Ritey, SHANE & HALg, P.A.

4101 Indian School Rd. NE

Suite 420

Albuquerque, NM 87110

(505) 883-5030

Attorneys for Respondents

196003 <

COUNSEL PRESS

(800) 274-3321 * (800) 359-6859

QUESTIONS PRESENTED

1. Appellant challenges whether the Rooker-Feldman

doctrine bars federal-court jurisdiction when the federal

proceedings were initiated before parallel state-court

proceedings were completed.

2. Appeilant challenges whether the Rooker-Feldman

doctrine bars federal-court consideration of issues that the

Petitioner lacked a reasonable opportunity to litigate in state

court.

3. Appellant challenges whether the Rooker-Feldman

doctrine applies simply because a state court failed to remedy

an injury the defendant caused Petitioner.

4. Appellant challenges whether the Rooker-Feldman

doctrine bars a federal-court challenge asserting that a state

administrative agency: decision violates federal law where

the Petitioner unsuccessfully sought “arbitrary and

capricious” or “substantial evidence” judicial review of the

agency’s decision in state court.

TABLE OF CONTENTS

(UES TING PESO T EOD once bec isc nn cance

EINE CER 56 bo paced Cane eerie

RAL OMGEINE GOP BEM GCA oo cs ca ds ae oo

REASONS FOR DENYING THE PETITION ....

Il.

lf.

IV.

THE TENTH CIRCUIT PROPERLY

FOUND THAT THE ROOKER-FELDMAN

DOCTRINE DIVESTED tli OF

JURISDICTION TO REVIEW THE STATE

CAPE OS SURIMEINE och dss scaeaeuss

PETITIONER WAS NOT DENIED A

REASONABLE OPPORTUNITY TO RAISE

HIS ADA CLAIMS BUT FAILED TO

PROPERLY FOLLOW APPELLATE

og it, | 3 Wt. SERA tper gn acrra ns Ren purer is

THE ALLEGED DIVISION OF THE

CIRCUIT COURTS IS TANGENTIAL TO

THE PACTS OF 281s CASE «ws 6. ness

UNDER THE FACTS OF THIS CASE, A

FEDERAL CHALLENGE TO THE

DECISION OF THE BOARD OF MEDICAL

EXAMINERS IS_ INEXTRICABLY

INTERTWINED WITH THE STATE

CAMA SS RAIORE Sari pene taa aes

CAPES AIG ons spire des Chee A dees

lil

TABLE OF CITED AUTHORITIES

Page

CASES

Bianchi v. Rylaarsdam, 344 F.3d 895 (9th Cir.

OE os voi ss oo ee a a Ee 12

Brown & Root, Inc. v. Breckenridge, 211 F.3d 194

CR ese eee hhc each ees 6

District of Columbia Court of Appeals v. Feldman,

oe che eS) Pree erie rarer rer passim

Exxon Mobil Corp. v Saudi Basic Industries Corp.,

RAs ks TEST CEOED 65 cde ikaw ee ae ens passim

Guttman v. G.T.S. Khalsa, et al., 401 F.3d 1170

SRN Rc OE ei oe ew ne sa ee 5

Kenmen Eng’g v. City of Union, 314 F.3d 468

RRC AE, URED ons hab ene 5 eats dee oo ees 15

Long v. Shorebank Development Corp., 182 F.34 548

CRO, BE ha oho ee es enone Maas 10

Parkview Associates Partnership v. City of Lebanon,

BOD Te BE COAL BO a 6 eC es 18

Pittsburgh County Rural Water District No. 7 v. City

of McAlester, 358 F.3d 694 (10th Cir. 2004) .... 14

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) .. passim

Sheehan v. Marr, 207 F.3d 35 (1st Cir. 2000) ..... 18

Cited Authorities

Page

STATUTES

Bee OTOO a to a ee ee 6

pS RSA BY oS, | PO Er rie oe 5,8

NMSA 1978 § 39-3-1.1 (2003) oc. ccs adeeees 3,17

NMSA 1978 § 61-1-10 (2003) ...............44. 3

NMSA 1978 § 61-1-17 (2003) ................. 3

NMSA 1978 § G1-7-4 (2008). cece Sci ienuees 2

]

STATEMENT OF THE CASE

In general terms, this case involves the revocation of

Petitioner’s medical license. His medical license was revoked

by the New Mexico Board of Medical Examiners (the

“Board”) based on his inability to practice medicine with

reasonable skill or safety to his patients, his dishonesty, and

his abusive and disruptive behavior which was unbecoming

a person iicensed to practice medicine. The Board found

Petitioner was a danger to the safety of his patients,

employees and colleagues and that his mental illness could

not be corrected or accommodated. Petitioner appealed the

Board’s decision in New Mexico state district court and also

claimed that his rights had been violated for failure to

accommodate his mental illness in violation of the Americans

with Disabilities Act (“ADA”). The New Mexico state court

upheld the revocation and dismissed his ADA claims as he

had failed to preserve the issue below and the New Mexico

State Court of Appeals affirmed. Petitioner, instead of

properly appealing the district court’s dismissal of his ADA

claim to the New Mexico Supreme Court, then attempted an

“end-run” around the final judgement of the New Mexico

Court of Appeals by filing a complaint in the United States

District Court for the District of New Mexico. No appeal

was pending in the New Mexico State Court at the time of

federal court filing. Petitioner then filed his petition for

certiorari before the New Mexico Supreme Court. His

petition for certiorari was denied. The federal court then

dismissed Petitioner’s complaint based on lack of jurisdiction

under the Rooker-Feldman doctrine and on immunity of the

Respondents. Petitioner appealed this decision and the Tenth

Circuit properly affirmed this decision finding that the relief

sought was “inextricably intertwined” with that of the state

court and that Petitioner’s federal filing sought to overturn

the state court’s judgment. The facts show that Petitioner

sought to overturn the Board’s findings after his license was

revoked and filed his appeal with the state district court and

sought reinstatement of his license. After being denied relief

in state district court, Petitioner appealed to the New Mexico

Court of Appeals and the New Mexico Supreme Court. Both

appeals were considered and then denied. Petitioner objected

to the outcome in the state court of appeals and filed a

separate pretextual suit seeking reinstatement of his license

in the federal court action. The chronology below proves

Petitioner’s federal law complaint is barred by Rooker-

Feldman.

1. To be specific, on or about January 10, 2000,

Petitioner met with an examiner’s committee pursuant to

NMSA 1978 § 61-7-4 (2003). C.A. App. 13. On January 25,

2000, the Board received the report of the Impaired

Healthcare Provider Examining Committee. C.A. App. 12-

15, 16. On March 7, 2000, the Board temporarily suspended

Petitioner’s license to practice medicine..C.A. App. 16.

Thereafter, the parties conducted extensive discovery through

counsel. On October 17, 2000, Petitioner’s attorney filed

an Alternative Writ of Mandamus to stay the disciplinary

proceedings in the state district court, which was denied.

On February 28, 2001, following a three day hearing, the

Board issued an order revoking Petitioner’s license to practice

medicine. C.A. App. 18-27. The Board entered Findings of

Fact and Conclusions of Law. Before and during the hearing,

Petitioner was represented by counsel and given a full

opportunity to present evidence. At the conclusion of the

hearing, tlie Board specifically found:

¢ Petitioner has an underlying mixed personality

disorder;

¢ Petitioner suffers from major depression, post-

traumatic-stress disorder;

¢ Petitioner’s past treatment and intervention by

employers and associates was not effective in

treating Petitioner’s behavior; and

¢ Petitioner could not be effectively monitored.

C.A. App. 22-23. These findings supported the Board’s

conclusion that Petitioner posed a threat to the safety of his

patients and required the Board to revoke his medical license.

C.A. App. 7-8. Moreover, the Board after making specific

findings regarding Petitioner’s psychological conditions

further concluded, based on the medical testimony, concluded

that his mental illness could not be monitored. C.A. App.

23.

2. When Petitioner appealed the Board’s decision in the

Seventh Judicial District Court, County of Sierra, State of

New Mexico, Cause No. CV-2001-00049, pursuant to NMSA

1978 §§ 61-1-17, -10, and 39-3-1.1 (2003) Petitioner

extensively argued the merits of his ADA claim in his

Statement of Appellate Issues. C.A. App. 45-47. Petitioner

argued that was regarded as having an impairment within

the ADA and that he believed he could practice medicine

with accommodation. C.A. App. 46. No surprisingly,

Petitioner’s argument failed to address the Board’s findings

that his mental illness could not be monitored, and thus

accommodated, such that he would not endanger his patients,

employees, colleagues, or the general public. Petitioner fully

raised and argued his ADA claim in his state district court

appellate brief. C.A. App. 28. On January 30, 2003, the State

District Court, after considering the evidence and the record

below, affirmed the Board’s decision to revoke Petitioner’s

licence. C.A. App. 49. The state district court faiied to

consider the claim because he did not properly preserve the

issue. Petitioner then, untimely, petitioned for certiorari to

the New Mexico Court of Appeals. The New Mexico Court

of Appeals noted that Petitioner set forth unusual

circumstances for the untimely filing of his petition and

considered the petition on the merits even though it was

untimely. On April 10, 2003, the court denied the petition on

its merits. C.A. App. 50.

3. On April 17, 2003, Petitioner, pro se, filed suit in the

District Court of the United States for the District of New

Mexico inappropriately attempting to invoke that court’s

federal question jurisdiction alleging violations of the ADA

and violations of Procedural Due Process in hopes of

reversing or modifying the New Mexico court decisions.

Respondents then filed their motion for summary judgment

and all parties fully briefed the issues.

The United States District Court for the District of New

Mexico ruled that it lacked jurisdiction based on the Rooker-

Feldman Doctrine and that the Respondents, the Hearing

Officer, the Administrative Prosecutor, and the State of New

Mexico, were entitled to immunity from suit under 42 U.S.C.

§ 1983 and Title II of the ADA.

4. On April 21, 2003, Petitioner appealed the New

Mexico State Court of Appeals decision to the New Mexico

Supreme Court. On May 21, 2003, the court denied his

petition for relief. C.A. App. 51.

5. Finally, in December 2003, Petitioner, through

counsel, then appealed to the United States Court of Appeals

for the Tenth Circuit. The Tenth Circuit affirmed the lower

court’s ruling acknowledging that Petitioner’s ADA claims

were not actually decided, but concluded that because his

ADA claims were “inextricably intertwined” with the state

court’s judgment, Rooker-Feldman barred the action.

Guttman v. G.T.S. Khalsa, et al., 401 F.3d 1170, 1175 (10th

Cir. 2005).

REASONS FOR DENYING THE PETITION

Petitioner has carefully crafted his issues in hopes of

eliciting a determination that the recent decision, Exxon

Mobil, does not anticipate or provide guidance to the lower

courts in cases such as this. Petitioner is incorrect. However,

under the facts of this case if the Court were to remand this

case for further consideration the Tenth Circuit would be left

with only two options: overturn the state court judgment as

thé relief requested is “inextricably intertwined” or uphold

the finding of the lower federal court finding that the

Respondents are immune from suit, thus affirming the

revocation of Petitioner’s license. Remanding this case for

further consideration by the Tenth Circuit would also create

an avenue for future plaintiffs to request the federal courts

to review state court judgments instead of following the

proper appellate procedure of exhausting their appeals in the

State courts and then seek relief in this Court. This result

would be contrary to 28 U.S.C. § 1257(a) and would result

in an erosion of federalism. It is an undisputed fact that

Petitioner failed to exhaust his state court remedies. Instead,

Petitioner requests this court allow reversal or modification

of the New Mexico Board of Medical Examiner’s and the

resulting appeals in the New Mexico State Court. Petitioners’

claims are barred under Rooker-Feldman because the relief

sought is the same in state as federal court.

This is not a case, as Petitioner contends, where a plaintiff

initiated federal litigation before the conclusion of the state

court proceedings. Petitioner initiated the cause of action in

federal court fourteen days after final order of the New

Mexico Court of Appeals was entered. He raised his claim

for accommodation based on his mixed personality disorder

in state district court, which rendered a judgment federal

courts must give full faith and credit just as any other court

in New Mexico would and reserve the assertion of

jurisdiction. Under the full faith and credit clause, Rooker-

Feldman applies to lower state court judgments as well as

the judgment of the highest court of the state. 28 U.S.C.

§ 1738; Brown & Root, Inc. v. Breckenridge, 211 F.3d 194,

199 (4th Cir. 2000). Failure to uphold the state court’s

judgment would erode the independence of state courts.

The Rooker Feldman doctrine “reinforces the important

principle that review of state court decisions must be made

to the state appellate courts, and eventually to the Supreme

Court, not by federal district courts or courts of appeal.”

Id. at 199 (internal citations omitted). Accordingly, this Court

should deny Petitioner’s writ of certiorari, affirm the Tenth

Circuit, 2nd uphold the New Mexico State Courts’ judgments

revoking Petitioner’s medical license. The Board’s decision

was made after extensive litigation and trial, resulting in the

fact-finding body concluding that he is a danger to the

patients, his staff, his colleagues, and the general public. This

evidence remains uncontroverted.

Petitioner seems to ignore the facts of the underlying

case because the facts dictate that plenary review is not

needed in this case. As the public records show, the Board

sent their notice of contemplated action on March 7, 2000.

Since then, Petitioner has had four separate attorneys

represent him and only with the assistance of his new attorney

is there some claim that the United States Supreme Court

needs to be involved in this case. Petitioner’s assertion

attempts to disregard the facts under which this claim has

come before the Court. This is not the appropriate case for

resolving the alleged conflicts between the circuits as to the

correct application of the Rooker-Feldman doctrine is

erroneous. The federal court could not, without violating the

full faith and credit clause, grant Petitioner the relief he

requested. Moreover, the facts support affirming all the lower

tribunal decisions.

Petitioner advocates review of this case by narrowly

categorizing the opinions of the circuit courts into categories:

~ 1) those that do not versus those that do require a full and

fair opportunity to litigate their claims and 2) those that

preclude litigation based on preclusion principles rather than

Rooker-Feldman versus those cases where the relief

requested was “inextricably intertwined” with that of the state

court judgment. Even if the Tenth Circuit had anticipated

Exxon Mobil, Petitioner still would not be afforded the relief

that he requested as it would require overturning the Board’s

and the state courts’ rulings revoking Petitioner’s medical

license. Moreover, Petitioner was not deprived of any forum

to assert his ADA claim as he could have petitioned this Court

to review the state court’s decision dismissing his ADA claim

rather than inappropriately seeking review of the state court’s

decision in federal court. Instead, Petitioner tried to re-litigate

the decision in federal court, which is precisely the type of

filing bound by Rooker-Feldman.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.