Appendix — Willner v. Frey (No. 07-666)

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Appendix A

MARGUERITE EVANS

WILLNER; MICHAEL A.

WILLNER, Plaintiffs -

Appellants, versus

JOHN T. FREY, Clerk,

Fairfax County Circuit

Court, Defendant -

Appellee,

COMMONWEALTH OF

VIRGINIA, Intervenor.

No. 06-1432

UNITED STATES COURT

OF APPEALS FOR THE

FOURTH CIRCUIT

2007 U.S. App. LEXIS 18514

July 31, 2007, Submitted

August 3, 2007, Decided

NOTICE: PLEASE REFER TO FEDERAL RULES

OF APPELLATE PROCEDURE RULE 32.1

GOVERNING THE CITATION TO UNPUBLISHED

OPINIONS.

2a

PRIOR HISTORY: [*1]

Appeal from the United States District Court for

the Eastern District of Virginia, at Alexandria. T. S.

Ellis, III, District Judge. (1:05-cv-01315-TSE).

Willner v. Frey, 421 F. Supp. 2d 913, 2006 U.S. Dist.

LEXIS 11379 (E.D. Va., 2006)

DISPOSITION: AFFIRMED.

COUNSEL: Richard E. Gardiner, Fairfax, Virginia,

for Appellants.

Jack L. Gould, Fairfax, Virginia, for Appellee.

Robert F. McDonnell, Attorney General of Virginia,

William E. Thro, State Solicitor General, Stephen R.

McCullough, Deputy State Solicitor General,

William C. Mims, Chief Deputy Attorney General,

OFFICE OF THE ATTORNEY GENERAL,

Richmond, Virginia, for the Commonwealth of

Virginia, Intervenor.

JUDGES: Before WILLIAMS, Chief Judge, and

MICHAEL and GREGORY, Circuit Judges.

OPINION

PER CURIAM:

The appellants, Marguerite and Michael Willner,

brought this action in federal court after losing a

3a

portion of their real property in adverse possession

litigation in state court. The district court dismissed

the Willners’ complaint, holding that it did not have

jurisdiction as a result of the Rooker-Feldman

doctrine. We affirm.

I.

In 1989 the Willners acquired title to

approximately eleven acres along the Potomac River

in Fairfax County, Virginia. In 2002 the Willners'

neighbor, Eugene Leggett, brought an ejectment

action pursuant to Va. Code § 8.01-236 in [*2] the

Fairfax County Circuit Court ( Fairfax I ), alleging

that he had acquired an ownership interest in a

portion of the Willners' property through adverse

possession. The state court determined that Leggett

had satisfied the elements of adverse possession and

ordered title of the disputed land transferred to

Leggett. John T. Frey, the Clerk of the Fairfax

County Circuit Court, recorded the court's final

order in the county's land records. The Willners'

petition for appeal to the Supreme Court of Virginia

was denied.

The Willners then filed a civil suit in Fairfax

County Circuit Court against the Commonwealth of

Virginia ( Fairfax I). The complaint alleged that the

Commonwealth took their property for a private use

and without compensation and that the taking

deprived them of due process of law, in violation of

Article I, § 11 of the Virginia Constitution. The

complaint also stated that the Willners "reserve the

4a

right to all claims over which subject matter

presently lies, or which may later become ripe, in the

courts of the United States." J.A. 9. The Fairfax

County Circuit Court dismissed the complaint with

prejudice, holding that Virginia's adverse possession

law did not violate [*3] the Virginia Constitution.

The court refused "to comment on any federal

implications." J.A. 48c.

The Willners then moved to suspend or vacate

the state court judgment in Fairfax IJ while they

pursued their federal takings and due process claims

in federal court, or in the alternative, for leave to

amend their complaint to include federal claims. The

Fairfax County Circuit Court denied the motion. The

Willners appealed to the Supreme Court of Virginia.

Two days before filing the notice of appeal to the

Virginia Supreme Court, the Willners filed this

action in the U.S. District Court for the Eastern

District of Virginia against John Frey, the Fairfax

County Circuit Clerk. The Willners sought (1) a

declaration that the disputed property was taken by

Frey, acting in his official capacity, in violation of the

Takings Clause of the Fifth and Fourteenth

Amendments of the Constitution of the United States;

(2) a declaration that Va. Code § 8.01-236, as applied

to the Willners, violated their right to due process

and equal protection under the Fourteenth

Amendment; and (3) an injunction directing Frey to

remove the final order in Fairfax I from the land

records of Fairfax County.

5a

The district [*4] court dismissed the Will!ners'

complaint, holding that the Rooker-Feldman doctrine

prevented the court from exercising subject matter

jurisdiction. It held in the alternative that the

Willners' claim for relief was barred by the

Commonwealth of Virginia's sovereign immunity

and by Frey's derivative absolute judicial immunity.

The Willners filed a timely appeal, and we review

the district court's dismissal for lack of jurisdiction

de novo, see Davani v. Va. DOT, 434 F.3d 712, 715

(4th Cir. 2006).

Il.

The Rooker-Feldman doctrine "prevents 'a party

losing in state court ... from seeking what in

substance would be appellate review of the state

judgment in a United States district court."

Henrichs v. Valley View Dev., 474 F.3d 609, 611 (9th

Cir. 2007) (quoting Johnson v. De Grandy, 512 U.S.

997, 1005-06, 114 S. Ct. 2647, 129 L. Ed. 2d 775

(1994)).' District courts cannot review final state

court judgments because Congress has vested

appellate jurisdiction over state court decisions with

the United States Supreme Court. See 28 U.S.C. §

1257(a). Thus, a party seeking review of a state court

' The Rooker-Feldman doctrine is named after two Supreme

Court cases, Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.

Ct. 149, 68 L. Ed. 362 (1923), and District of Columbia Court of

Appeals v. Feldman, 460 U.S. 462, 103 S. Ct. 1303, 75 L. Ed. 2d

206 (1983).

6a

decision must first appeal to the highest court of the

state and then seek a writ of certiorari from the

United States [*5] Supreme Court. The Rooker-

Feldman doctrine prevents losers in state court from

bypassing this appeal process by seeking review in

federal district court.

The Supreme Court has recently narrowed the

scope of the doctrine, holding that it applies only

when the following conditions are met: (1) the

federal court plaintiff lost in state court; (2) the

plaintiff complains of "injuries caused by state-court

judgments;" (3) the state court judgment became

final before the proceedings in federal court

commenced; and (4) the federal plaintiff "invit[es]

district court review and rejection of those

judgments." Exxon Mobil Corp. v. Saudi Basic Indus.

Corp., 544 U.S. 280, 284, 125 S. Ct. 1517, 161 L. Ed.

2d 454 (2005); see also Lance v. Dennis, 546 U.S.

459, 126 S. Ct. 1198, 1201, 163 L. Ed. 2d 1059 (2006)

(emphasizing the "narrowness" of the doctrine).

Rooker-Feldman does not apply when the plaintiff

alleges a constitutional violation independent of the

injury caused by the state court judgment. Davani,

434 F.3d at 718-19; Davison v. Gov't of P.R. - P.R.

Firefighters Corps, 471 F.3d 220, 222 (1st Cir. 2006).

The [*6] district court correctly concluded that

Rooker-Feldman bars jurisdiction in this case. First,

the plaintiffs (the Willners) lost in the Fairfax I state

court proceeding. Second, the alleged injury, the

unconstitutional taking of their property, was caused

by the Fairfax I judgment. See J.A. 33 (alleging that

7a

"title to the [Willners' property] has been coercively

transferred by the State from the Willners to the

Leggetts not for a public use"). Third, the Fairfax I

decision became final before the proceedings were

commenced in district court. Finally, the Willners'

complaint in federal court would require "re-

examination of the Fairfax County Circuit Court's

application of the statute [Va. Code § 8.01-236] in

Fairfax I." J.A. 18.

The Willners urge us to construe their federal

complaint as raising an independent claim that

would not be barred by Rooker- Feldman. They assert

that their claim is "based on a violation of their

constitutional rights by Frey and the consequence of

the state court judgment -- not the state court

judgment itself." Appellants’ Br. at 13. The Willners

argue that their "complaint cannot reasonably be

construed as inviting the district court to reject the

state court [*7] judgment" because the state court

did not rule on the issue raised in district court. Id.

at 15.

These arguments are without merit. "[A] federal

plaintiff cannot escape the Rooker-Feldman bar

simply by relying on a legal theory not raised in

state court." Hoblock v. Albany County Bd. of

Elections, 422 F.3d 77, 87 (2d Cir. 2005); see also

Davani, 434 F.3d at 719 (stating that Rooker-

Feldman applies "even if the state-court loser did not

argue to the state court the basis of recovery that he

asserts in the federal district court"). In addition to

direct challenges to state court judgments, the

Rooker-Feldman doctrine prevents plaintiffs from

raising issues in federal court that are so

"inextricably intertwined" with a state court

judgment that they would require the district court

to review the state court's ruling. District of

Columbia Court of Appeals v. Feldman, 460 U.S.

462, 482 n.16, 103 S. Ct. 1303, 75 L. Ed. 2d 206

(1983). As this court recently explained, the key

inquiry is not whether the state court ruled on the

precise issue raised in federal court, but whether the

"state-court loser who files suit in federal court seeks

redress for an injury caused by the state-court

decision itself." Davani, 434 F.3d at 718. [*8] Here,

the Willners state that they were injured because

the Fairfax I court applied Virginia's statute on

adverse possession in a way that resulted in an

unconstitutional taking of their property. Indeed, the

relief requested, an injunction ordering Frey to

remove the state court's final order from the county's

land records, leaves little doubt that the Willners

want the district court to reverse the state court's

judgment.

The Willners' argument that the injury was

caused by Frey, not the state court, is also meritless.

"[Ijf a third party's actions are the product of a state

court judgment, then a plaintiff's challenge to those

actions are in fact a challenge to the judgment

itself." McCormick v. Braverman, 451 F.3d 382, 394

(6th Cir. 2006). The state court's issuance of the final

order in Fairfax I triggered Frey's duty to enter that

order in the county's land records. The Willners thus

complain of an injury caused by the state court. See

9a

also McKithen v. Brown 481 F.3d 89, 97 (2d Cir.

2007) ("{A] federal suit complains of injury from a

state-court judgment, even if it appears to complain

only of a third party's actions, when the third party's

actions are produced by a _ state-court [*9]

judgment.").

In sum, the district court correctly determined

that it lacked jurisdiction over the Willners' claim

that the state court's judgment violated their

constitutional rights. Accordingly, we do not consider

the district court's alternate holdings that the

Willners' claim was barred by the Commonwealth's

sovereign immunity and by Frey's derivative

absolute judicial immunity. The district court's order

dismissing the Willners' federal complaint is

AFFIRMED.

10a

Appendix B

JUDGMENT

FILED: August 3, 2007

UNITED STATES COURT OF APPEALS

for the

Fourth Circuit

No. 06-1432

1:05-cv-01315-TSE

MARGUERITE EVANS WILLNER; MICHAEL A.

WILLNER

Plaintiffs - Appellants

v.

JOHN T. FREY, Clerk, Fairfax County Circuit

Court;

Defendant - Appellee

COMMONWEALTH OF VIRGINIA

Intervenor

Appeal from the United States District Court for the

Eastern District of Virginia at Alexandria

In accordance with the written opinion of this Court

filed this day, the Court affirms the judgment of the

District Court. A certified copy of this judgment will

be provided to the District Court upon issuance of

the mandate. The judgment will take effect upon

issuance of the mandate.

/s/ Patricia S. Connor

CLERK

12a

Appendix C

MARGUERITE EVANS

WILLNER, MICHAEL A.

WILLNER, Plaintiffs, v.

JOHN T. FREY, Defendant.

Case No. 1:05cv1315

UNITED STATES

DISTRICT COURT FOR

THE EASTERN DISTRICT

OF VIRGINIA,

ALEXANDRIA DIVISION

421 F. Supp. 2d 913; 2006

U.S. Dist. LEXTS 11379

March 15, 2006, Decided

COUNSEL: [**1] For Marguerite Evans Willner,

Plaintiff: Richard E. Gardiner, Fairfax, VA.

Michael A. Wiilner, Plaintiff, Pro se, Mason Neck,

VA US.

l3a

For John T. Frey, Clerk, Fairfax County Circuit

Court, Defendant: Jack Lewis Gould, Fairfax, VA.

JUDGES: .T. S. Ellis, III, United States District

Judge.

OPINION By: T. S. Ellis, III

OPINION:

[*916] MEMORANDUM OPINION

Plaintiffs are landowners who lost a portion of

their property in a _ state adverse possession

litigation and now seek to recover that property by

claiming in this case that Virginia's law of adverse

possession, as applied to them in the earlier state

case, violated the Takings Clause of the Fifth

Amendment, and the Due Process and Equal

Protection Clauses of the Fourteenth Amendment.

Plaintiffs’ effort to recover that property in this suit

fails for a variety of reasons.

[*917] I.

This dispute began over a piece of land located in

Mason Neck, Virginia on the banks of the Potomac

River. In 1989, the plaintiffs, Michael and

Marguerite Willner, purchased an eleven acre tract

of land in Fairfax County on which they built their

home. Three years later Sheldon Leggett purchased

an adjacent parcel of land. On August 13, 2002

Leggett and his wife [**2] filed suit against the

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Willners in the Circuit Court for Fairfax County

(hereinafter referred to as Fairfax I) claiming that

the Leggetts and their predecessors in title had

continuously, visibly, and adversely possessed a

portion of the Willners' land for a period of more

than 15 years, and therefore were entitled to the

land under the law of adverse possession, as codified

at Virginia Code § § 8.01-131 and 8.01-236.:

1 The Virginia Code incorporates the common law in § 8.01-131

which provides, in pertinent part, that:

A. The action of ejectment is retained,

subject to the provisions hereinafter

contained, and to the applicable Rules of

Court.

B. Such action may be brought in the same

cases in which a writ of right might have

been brought prior to the first day of July,

1850, and by any person claiming real

estate in fee or for life or for years, either as

heir, devisee or purchaser, or otherwise.

The statute of limitations is derived from Va. Code §

8.01-236, which provides, in pertinent part, that:

No person shall make an entry on, or bring

an action to recover, any land unless within

fifteen years next after the time at which

the right to make such entry or bring such

action shall have first accrued to such

person or to some other person through

whom he claims; provided that an action for

unlawful entry or detainer under § 8.01-

124 shall be brought within three years

after such entry or detainer.

15a

Fairfax I proceeded under the well-settled Virginia

legal principle that "to establish title to real property

by adverse possession, a claimant must prove actual,

hostile, exclusive, visible, and continuous possession,

under a claim of right, for the statutory period of 15

years." Quatannens v. Tyrrell, 268 Va. 360, 368, 601

S.E.2d 616, 620 (2004) (quoting Grappo v. Blanks,

241 Va. 58, 61-62, 400 S.E.2d 168, 170-71, 7 Va. Law

Rep. 1293 (1991)). At no time during Fairfax I did

the Willners raise, plead, or argue that Virginia's

law of adverse possession was unconstitutional for

any reason. On March 26, 2004, after a seven day

bench trial, the Fairfax County Circuit Court judge

found that the Leggetts had satisfied their [**3]

burden of proving the elements of adverse possession

by clear and convincing evidence, and accordingly

ordered title to the disputed land transferred to the

Leggetts. Leggett v. Willner, Law No. 206590 (Cir.

Ct. Fairfax Va. 2004). Thereafter, the defendant,

John T. Frey, acting in his official capacity as the

Clerk of the Fairfax County Circuit Court, recorded

the Final Order in the land records of Fairfax

County.

m4)

On June 24, 2004, the Willners appealed this

decision to the Supreme Court of Virginia, which

denied the Willners' petition for appeal. Leggett v.

Willner, Law No. 206590 (Cir. Ct. Fairfax Va. 2004),

pet. for appeal denied, Willner v. Leggett, R. 041476

(Va. 2004). On November 17, 2004, the Willners'

petition for rehearing was likewise denied. Leggett v.

16a

Willner, Law No. 206590, (Cir. Ct. Fairfax Va. 2004),

pet. for rehearing denied, Willner v. Leggett, R.

041476 (Va. 2004).

After they had exhausted their appeal in Fairfax

I, the underlying adverse possession case, the

Willners filed a second civil suit in the Fairfax

County Circuit Court (hereinafter referred to as

Fairfax II), this time against the Commonwealth of

Virginia, challenging Virginia's law of adverse

possession on state constitutional grounds. The

Willners' motion for judgment [*918] in Fairfax II,

filed on July 5, 2005, contained three counts:

1. Count One alleged that the Commonwealth of

Virginia, through the operation of Va. Code § 8.01-

236, had taken the Willners' property for public use

without just compensation in violation of [**5]

Article I, § 11 of the Virginia Constitution, and that

the Willners were thereby entitled to just

compensation.

2. Count Two alleged in the alternative that the

property had been taken for private use in violation

of Article I, § 11 of the Virginia Constitution.

3. Count Three of the Willners' motion for judgment

alleged that the law of adverse possession, as applied

to the Willners, deprived them of property without

17a

due process of law in violation of Article I, § 11 of the

Virginia Constitution.?

Nor did the Willners overlook any corresponding

potential federal constitutional claims; to the

contrary, they explicitly declined to assert any such

claims in Fairfax IJ, claiming they were entitled to

reserve the right to bring such claims in federal

court. Specifically, the motion for judgment in

Fairfax II, under the heading "Reservation [**6] of

Jurisdiction," stated as follows:

The Willners have rights guaranteed to

them including, but not limited to, those

protections guaranteed to them under the

just compensation and due process clauses

of the Fifth and Fourteenth Amendments

of the United States Constitution, rights

which have been violated by Defendant as

a result of actions set forth herein. The

Willners reserve the right to all claims

over which subject matter presently lies,

or which may later become ripe, in the

courts of the United States.

In response to this mction for judgment, the

Commonwealth filed a demurrer,’ arguing that the

2 The Due Process Clause contained in Article I, § 11 of the

Virginia Constitution, provides that "no person shall be

deprived of his life, liberty, or property without due process of

law...

3 A demurrer is the Virginia procedural analog to Rule 12(b)(6),

Fed.R.Civ.P. See Southern Ry. Co. v. Darnell, 221 Va. 1026,

1029 n.2, 277 S.E.2d 175, 177 n.2 (1981) ("The only issue at the

"

18a

Commonwealth's resolution of a property dispute

between two private parties pursuant to Va. Code §

8.01-236 violates neither the Virginia Constitution

nor the U.S. Constitution, and that the statute had

provided ample due process to the Willners. During

oral argument on the demurrer, the Fairfax County

Circuit Court orally sustained the Commonwealth's

demurrer, but specifically refused the

Commonwealth's request to rule on the federal

claims the Willners sought to reserve for a later day

in federal court.4 On September 15, 2005, the

Fairfax [**7] County Circuit Court issued a formal

Order sustaining the Commonwealth's demurrer and

dismissing Fairfax II with prejudice.

On September 27, 2005, the Willners filed a

motion to suspend the Final Order in Fairfax II or,

in the alternative, to vacate the Final Order and

grant leave to amend the motion for judgment. More

specifically, citing the United States Supreme

Court's recent opinion in San Remo Hotel, L.P. v.

City & County of San Francisco, 545 U.S. 323, 125

S.Ct. 2491, 2497, 162 L. Ed. 2d 315 (2005) (holding

that federal takings claims reserved in state court

[**8] proceedings are subject to the principles of res

judicata and collateral estoppel, [*919] and not

reviewed in federal court de novo), the Willners

demurrer stage is whether the plaintiff has stated a cause of

action.”).

4 See Hearing Transcript, 9/2/05, p.20 (Va. Cir. Ct., Fairfax

County) ("I'm not going to comment on any federal

implications.").

19a

sought to suspend the September 15, 2005 Order in

order to allow them to pursue their federal claims in

federal court. In the alternative, the Willners sought

an amendment to their motion for judgment that

would allow them to add to Fairfax IJ their claims

under the Fifth and Fourteenth Amendments of the

United States Constitution. On November 4, 2005,

the Fairfax County Circuit Court denied the

Willners’ motion to suspend or vacate the Final

Order. See Marguerite Evans _ Willner v.

Commonwealth of Virginia, Law No. 05-4075

(November 4, 2005). It also denied the proposed

amendments to the motion for judgment because it

viewed the proposed amendments as futile. Jd. On

November 18, 2005, the Willners appealed this

decision to the Supreme Court of Virginia. This

appeal is pending.®

[**9]

5 Surprisingly, neither the complaint in this case, nor any

pleading filed by, or on behalf of the Willners in this case,

disclosed the existence of Fairfax IT. Nor did the Willners'

counsel cite or call attention to the Supreme Court's decision in

San Remo Hotel, L.P. v. City and County of San Francisco,

California, 125 S.Ct. 2491, 162 L. Ed. 2d 315 (2005), which the

Willners were aware was potentially controlling in this case, as

they cited it in their motion for reconsideration after the

adverse ruling in Fairfax II. Although there is no reason to

conclude that counsel in this case intentionally misled the

Court, it is important to avoid even an inference of a failure to

make full disclosure of relevant proceedings and potentially

controlling precedent as "there are circumstances where failure

to make a disclosure is the equivalent of an affirmative

misrepresentation.” See Va. Code of Professional Conduct §

3.3(a)(1), Comment 1.

20a

Two days before filing the notice of appeal to the

Supreme Court of Virginia, the Willners filed the

instant federal complaint naming as defendant John

T. Frey, the clerk of the Fairfax County Circuit

Court, acting in his official capacity. This complaint

contains three counts:

1. Count One seeks a declaration pursuant to 28

U.S.C. § 2201 © that the disputed property was

taken by Frey, acting in his official capacity, in

violation of the Takings Clause of the Fifth and

Fourteenth Amendments of the U.S. Constitution,

and an injunction pursuant to 42 U.S.C. § 1983 and

28 U.S.C. § 22027 directing Frey to remove the

Final Order in Fairfax I from the land records of

Fairfax County.

2. Count Two of the complaint seeks a declaration

that Va. Code § 8.01-236, as-applied to the Willners,

6 28 U.S.C. § 2201 provides:

{HN1] In a case of actual controversy within its jurisdiction .. .,

any court of the United States, upon the filing of an

appropriate pleading, may declare the rights and other legal

relations of any interested party seeking such declaration,

whether or not further relief is or could be sought.

; [** 11]

7 28 U.S.C. § 2202 provides:

[HN2] Further necessary or proper relief based on a declaratory

judgment or decree may be granted, after reasonable notice and

hearing, against any adverse party whose rights have been

determined by such judgment.

2la

violates the Due Process Clause of the Fourteenth

Amendment of the U.S. Constitution and the same

injunctive relief.

3. Count Three seeks a declaration that Va. Code §

8.01-236 violated the Willners' rights under the

Equal Protection Clause of the Fourteenth

Amendment of the United States Constitution [**10]

because:

while the Willners forfeited the

title to the disputed property

for failure to eject the Leggetts

and their predecessors in title

from their claim of ownership

to the disputed property within

15 years of the accrual of the

Willners' right to do so, the

Leggetts and their

predecessors in title were not

equally [*920] in jeopardy of

losing title to the disputed

property for failing to eject the

Willners from their claim of

ownership within 15 years of

the cause of action accruing in

the Leggetts and _ their

predecessors in title.

Complaint P54. As in the other two

counts, the Willners also seek an

injunction in this count pursuant to 28

U.S.C. § 2202 and 42 U.S.C. § 1983,

22a

directing Frey to remove the Final Order

from the land records of Fairfax County.

Frey's motion to dismiss pursuant to Rule 12(b)(6)

has been fully briefed and argued and is now ripe for

disposition.

II.

Frey raises several potentially dispositive non-

merits defenses to the Willners' federal complaint.

First, he argues that principles of res judicata bar

the Willners from rearguing in federal court issues

already resolved in the state courts. In the

alternative, he argues that the Willners' complaint

is, in essence, an attempt to seek appellate review of

a state court decision in a federal district court in

contravention of the Rooker-Feldman doctrine. See

Exxon Mobil Corp. v. Saudi Basic Industries, 544

U.S. 280, 125 S.Ct. 1517, 1521, 161 L. Ed. 2d 454

(2005). Finally, Frey also contends that he is entitled

to sovereign immunity and derivative absolute

judicial immunity. These defenses are addressed

seriatim.

A. Res Judicata

The starting point in considering the preclusive

effects of Fairfax I [**12] and Fairfax II is the

recognition that [HN3] a federal court is bound by 28

U.S.C. § 1738 to abide by principles of res judicata

and collateral estoppel. And, "it has long been

8 Article IV, § 1, of the United States Constitution demands

that [HN4] "Full Faith and Credit shall be given in each State

23a

established that § 1738 does not allow fede :al courts

to employ their own rules of res judicata in

determining the effect of state judgments. Rather, it

goes beyond the common law and commands a

federal court to accept the rules chosen by the state

from which the judgment is given." Marrese uv.

American Academy of Orthopaedic Surgeons, 470

U.S. 373, 380, 105 S. Ct. 1327, 84 L. Ed. 2d 274

(1985) (quoting Kremer v. Chemical Construction

Corp., 456 U.S. 461, 481-482, 102 S. Ct. 1883, 72 L.

Ed. 2d 262 (1982)). Because the prior judgments in

Fairfax I and Fairfax II are from the Fairfax County

Circuit Court, Virginia principles of res judicata

apply here with respect to both.

to the public Acts, Records, and judicial Proceedings of every

other State. And the Congress may by general Laws prescribe

the Manner in which such Acts, Records and Proceedings shall

be proved, and the Effect thereof." Congress accepted this

invitation to codify the Full Faith and Credit Clause in 1790,

and it "has existed in essentially unchanged form since its

enactment... ." Allen v. McCurry, 449 U.S. 90, 96 n.8, 101 S.

Ct. 411, 66 L. Ed. 2d 308 (1980). In its current form, the statute

provides that [HN5] “judicial proceedings . . . shall have the

same full faith and credit in every court within the United

States and its Territories and Possessions as th. y have by law

or usage in the courts of such State... ." 28 U.S.C. § 1738. As

the Supreme Court has recently reaffirmed, [HN6] "this statute

has long been understood to encompass the doctrines of res

judicata, or ‘claim preclusion,’ and collateral estoppel, or ‘issue

preclusion.” San Remo Hotel, L.P. v. City and County of San

Francisco, California, 125 S.Ct. 2491, 2500, 162 L. Ed. 2d 315

(2005) (citing Allen v. McCurry, 449 U.S. 90, 101 S. Ct. 411, 66

L. Ed. 2d 308 (1980)).

24a

(**13] The preclusive effect of the judgment in

Fairfax I depends on the breadth of res judicata

under Virginia law. According to some formulations,

res judicata precludes “parties or their privies from

relitigating issues that were or could have been

raised in that action." Allen v. [*921] McCurry, 449

U.S. 90, 95, 101 S. Ct. 411, 66 L. Ed. 2d 308 (1980).

Under this broad formulation of the doctrine, the

Willners would be precluded from bringing this suit

since they could have challenged the

constitutionality of Virginia's adverse possession

statute as a defense to the original ejectment action

by the Leggetts. See San Remo, 125 S.Ct. at 2507.

Yet, this formulation does not govern here, as the

doctrine of res judicata is considerably narrower

under the decisions of the Supreme Court of

Virginia. As that Court has stated:

[HN7] Four elements must be present

before res judicata can be asserted to bar

a subsequent proceeding: (1) identity of

the remedies sought; (2) identity of the

cause of action; (3) identity of the parties;

and (4) identity of the quality of the

persons for or against whom the claim is

made.

Smith v. Ware, 244 Va. 374, 376, 421 S.E.2d 444,

445, 9 Va. Law Rep. 308 (1992). [**14]

25a

Under this more restrictive formulation of the res

judicata doctrine, Fairfax I does not preclude the

Willners from bringing this lawsuit against the

Commonwealth. A comparison of Fairfax I with this

suit confirms this conclusion. There is no identity of

parties, causes of actions, or remedies sought. In

Fairfax I, the Willners were defendants in an

ejectment action brought by the Leggetts pursuant

to the law of adverse possession. In this case, the

Willners sue an official of the Commonwealth of

Virginia for abrogation of their federal constitutional

rights, and seek declaratory and injunctive relief.

Thus, while the Willners could have argued their

federal constitutional claims as a defense in Fairfax

I, their failure to do so does not foreclose this lawsuit

under Virginia's law of res judicata.

The same result obtains with regard to Fairfax I,

but for a different reason. [HN8j Virginia law

provides that the preclusive effect of res judicata and

collateral estoppel do not apply to a prior judgment

until that judgment is final. See Norris v. Mitchell,

255 Va. 235, 239-40, 495 S.E.2d 809, 812 (1998). In

determining finality, Virginia is among those [**15]

states that do not afford preclusive effect to a

judgment when the judgment is the subject of a

pending appeal. See Faison v. Hudson, 243 Va. 413,

419, 417 S.E.2d 302, 305, 8 Va. Law Rep. 2754

(1992) ("[A] judgment is not final for the purposes of

res judicata or collateral estoppel when it is being

appealed or when the time limits fixed for perfecting

26a

the appeal have not expired."); Arkansas Best

Freight System, Inc. v. H.H. Moore, 244 Va. 304, 307,

421 S.E.2d 197, 198, 9 Va. Law Rep. 271 (1992).

Because the record currently reflects that the

Willners' notice of appeal to the Supreme Court of

Virginia, filed on November 18, 2005, remains

pending, the dismissa! of the Willners' Virginia

constitutional claims by the Fairfax County Circuit

Court has no preclusive effect on the instant case.°

[**16]

B. The Rooker-Feldman Doctrine

[HN9] The Rooker-Feldman doctrine is a

jurisdictional bar to federal district court review of

state court judgments, and is [*922] based on the

Supreme Court's exclusive appellate jurisdiction

over such judgments. See Exxon Mobil Corp. v.

Saudi Basic Industries, 544 U.S. 280, 125 S.Ct.

1517, 1521, 161 L. Ed. 2d 454 (2005) (citing 28

U.S.C. § 1257); District of Columbia Court of

9 Because the Fairfax II judgment is not final, it is unnecessary

to consider the effect, if any, of the Willners' attempt to reserve

their federal claims. Had the judgment in Fairfax I been final,

it is unlikely the Willners’ reservation would have been

effective to avoid the preclusive effects of that judgment. See

Bill Greever Corp. v. Tazewell National Bank, 256 Va. 250, 258,

504 S.E.2d 854, 859 (1998) (holding that only the defendant

may waive the effect of res judicata). See also, San Remo Hotel,

L.P. v. City and County of San Francisco, California, 125 S.Ct.

2491, 2502, 162 L. Ed. 2d 315 (2005) (describing the narrow

circumstances in which a party may reserve federal claims in

state courts).

27a

Appeals v. Feldman, 460 U.S. 462, 476, 103 S. Ct.

1303, 75 L. Ed. 2d 206 (1983); Rooker v. Fidelity

Trust Co., 263 U.S. 413, 416, 44 S. Ct. 149, 68 L. Ed.

362 (1923). As recently explicated by the Supreme

Court, the Rooker-Feldman doctrine operates only in

a narrow set of circumstances, namely: "cases

brought by state-court losers complaining of injuries

caused by state-court judgments rendered before the

district court proceedings commenced and inviting

district court review and rejection of those

judgments." Exxon Mobil, 125 S.Ct. at 1521-22.

Furthermore, the doctrine does not deprive federal

district courts jurisdiction over a matter that: has

already been litigated in state court as long as a

federal plaintiff "presents some independent claim."

Exxon Mobil, 125 S.Ct. at 1527 [**17] (quoting Gash

Assocs. v. Vill. of Rosemont, 995 F.2d 726, 728 (7th

Cir. 1993)). Because the Exxon-Mobil decision

involved parallel litigation, the Supreme Court did

not explain what constitutes an "independent claim,"

nor did it specifically address the precise question

presented here, namely, whether parties who lost a

state court judgmient can seek reversal of that

judgment in federai cowrt by mounting an as-applied

constitutional chavemge to the statute pursuant to

which the state court judgment was issued. Although

the Supreme Court has not specifically addressed

this question, the answer is nonetheless apparent

from existing authority.

Particularly instructive on this question is

District of Columbia Court of Appeals v. Feldman,

28a

460 U.S. 462, 476, 103 S. Ct. 1303, 75 L. Ed. 2d 206

(1983), one of the cases from which the Rooker-

Feldman doctrine derives its name. In Feldman, the

Supreme Court addressed whether federal district

court plaintiffs could challenge their exclusion from

the District of Columbia bar by decision of the

District of Columbia Court of Appeals pursuant to

the local bar admission rule. Feldman, 460 U.S. at

465. That rule prohibited [**18] the admission of

lawyers, like the Feldman plaintiffs, who had not

graduated from an accredited law school. Jd. The

Feldman plaintiffs challenged in federal district

court both the failure of the District of Columbia

courts to grant a waiver of the rule (as was the

common practice), and the constitutionality of the

bar admission rule itself. Jd. at 472-73. In deciding

whether the district court had jurisdiction over their

claims, the Supreme Court examined the "difference

between seeking review in a federal district court of

a state court's final judgment .. . and challenging

the validity of [the rule itself]." Id. at 483-84. The

Supreme Court held that the district court did not

have jurisdiction over whether the state court had

acted arbitrarily and capriciously in refusing to

grant a waiver, but did have jurisdiction over a facial

constitutional challenge to the rule. Id. at 486-87. As

the opinion makes clear, this distinction was based

on the fact that review of the refusal to grant the

waiver would require review of a judicial act,

whereas a facial challenge to the rule required

review of a legislative act. Jd. [**19]

29a

The rationale of Feldman makes clear that

[HN10] the question whether the Willners may bring

their claims in federal district court depends on

whether their challenge to Virginia's adverse

possession statute is facial or as-applied. If the

former, then it may proceed, because the plaintiffs

would then be challenging an act of the Virginia

state legislature. But if the [*923] latter, then it is

barred by the Rooker-Feldman doctrine because the

constitutional challenge is "inextricably intertwined"

with the state court's judgment. Feldman, 460 U.S.

at 486-87. In this regard, it is not necessary for the

state-court loser to have raised his claims in the

state court, as long as the decision is seeking

"redress for an injury caused by the state-court

decision itself." Davani v. Virginia DOT, 434 F.3d

712, 719 (4th Cir. 2006); See also Hoblock v. Albany

County Bd. of Elections, 422 F.3d 77, 87 (2d Cir.

2005) ("[A] federal plaintiff cannot escape the

Rooker-Feldman bar simply by relying on a legal

theory not raised in state court."). In sum, if the

federal suit seeks reversal of the state court decision

itself, on whatever ground, it is a [**20] collateral

attack on the judgment over which the federal

district courts lack jurisdiction. The Second Circuit

recently illustrated the rational for this principle

with the following hypothetical example:

Suppose a state court, based purely on

state law, terminates a father's parental

rights and orders the state to take

custody of his son. If the father sues in

30a

federal court for the return of his son on

grounds that the state judgment violates

his federal substantive due-process rights

as a parent, he is complaining of an injury

caused by the state judgment and seeking

its reversal. This he may not do,

regardless of whether he raised any

constitutional claims in state court,

because only the Supreme Court may

hear appeals from state-court judgments.

Hoblock v. Albany County Bd. of Elections, 422 F.3d

77, 87 (2d Cir. 2005).

In the instant case, it is indisputable that the

Willners’' complaint challenges the state court

judgment in Fairfax I, a judgment that is not subject

to review in any federal court but the Supreme Court

of the United States. The complaint includes a litany

of facts concerning the Willners' use of the property,

their payment of [**21] taxes on the property, and

the Leggets' failure to provide actual notice of their

claim to the title-in short, the very facts at issue in

the adverse possession litigation in Fairfax I. The

Willners proceed in Counts I-III to contend that

Virginia's adverse possession’. statute is

unconstitutional as-applied to the Willners in this

specific case, and seek an injunction ordering the

clerk to remove the Final Order from the land

records of Fairfax County.!° Consideration of their

federal claims thus necessarily involves reexam-

10 Thus, the Willners seek reversal of the state court judgment

not only in the legal sense, but in the physical sense as well.

3la

ination of the Fairfax County Circuit Court's

application of the statute in Fairfax I, which this

court is without jurisdiction to do.

C. Sovereign Immunity

Frey next contends that the Willners' suit is

barred by the sovereign immunity of the

Commonwealth of Virginia embodied in the Eleventh

Amendment of the United States Constitution."

[**22] [HN11] Although not within the terms of the

Eleventh Amendment itself, the principle of

sovereign immunity has long been held to preclude

suits brought by a State's citizen against the State in

federal court. See Idaho v. Coeur D'Alene Tribe of

Idaho, 521 U.S. 261, 267-68, 117 S. Ct. 2028, 138 L.

Ed. 2d 438 (1997) (citing Hans v. Louisiana, 134

U.S. 1, 10 S. Ct. 504, 33 L. Ed. 842 [*924] (1890)).

It is equally well established that the Eleventh

Amendment bars suits in which the state is not a

named party, but is the real party in interest. See

Edelman v. Jordan, 415 U.S. 651, 663, 94 S. Ct.

1347, 39 L. Ed. 2d 662 (1974); Ford Motor Co. uv.

Department of Treasury, 323 U.S. 459, 464, 65 S. Ct.

347, 89 L. Ed. 389 (1945). Finally, [HN12] while

Congress has the power to abrogate a state's

sovereign immunity under the powers granted to it

11 This Amendment provides that [HN13] “the Judicial power of

the United States shall not be construed to extend to any suit

in law or equity, commenced or prosecuted against one of the

United States by Citizens of another State, or by Citizens or

Subjects of any Foreign State."

32a

by the Civil War Amendments, it is established law

that Congress did not exercise this power when it

passed 42 U.S.C. § 1983. See Edelman v. Jordan,

415 U.S. 651, 676, 94S. Ct. 1347, 39 L. Ed. 2d 662

(1974); Quern v. Jordan, 440 U.S. 332, 338, 99 S. Ct.

1139, 59 L. Ed. 2d 358 (1979).

[**23]

The Willners' contend, however, that the instant

suit fits into a well recognized exception to the

general bar of suits against states recognized in Ex

Parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed.

714 (1908). In that case, and its progeny, [HN14] the

Supreme Court has allowed suits against state

officials acting in their official capacity!2 where the

relief is properly characterized as prospective in

nature. See Verizon Md. Inc. v. PSC, 535 U.S. 635 at

645, 122 S. Ct. 1753, 152 L. Ed. 2d 871. Whether a

request for injunctive relief is prospective, in turn,

requires a "straightforward inquiry into whether the

complaint alleges an ongoing violation of federal law

and seeks relief properly characterized as

prospective." Id. (quoting Coeur d'Alene Tribe of

Idaho, 521 U.S. 261, 296 (1997)).:* The distinction

12 The fictional distinction between suing a state official acting

in his capacity, which is allowed under Ex Parte Young, and

suing the state itself, which is prohibited, has been noted’

repeatedly, but upheld nevertheless. See, e.g., Coeur d Aone,

521 U.S. at 269-70.

13 Frey's contention that a state official acting in his official

capacity is not a person and therefore not subject to suit under

42 U.S.C. § 1983, likewise depends on whether the Willners'

requested relief can be properly characterized as prospective in

7

33a

between prospective and retrospective relief is best

exemplified by the facts of Ex parte Young itself. In

Young, the question was whether railroad

shareholders could bring a suit in the federal district

court enjoining the enforcement of a recently enacted

state statute setting railroad rates. Ex parte Young,

209 U.S. 123, 130, 28 S. Ct. 441, 52 L. Ed. 714

(1908). Answering in the affirmative, the Supreme

Court [**24] relied largely on the inadequacy of a

means to test the constitutionality of the statute in

state court. Jd. at 146. In reaching this result, the

Supreme Court noted that the penalties for

violations of the statute had been made so severe

that recourse to state courts by litigating a "test"

violation would require a railroad company to bear a

risk "the company ought not be required to take." Jd.

at 165 14. Thus, the plaintiffs were allowed recourse

to the federal courts in order to relieve them of the

Hobson's choice between violating the statute and

suffering substantial penalties on the one hand, or

suffering the ongoing violation of their federal

nature. See Will v. Michigan Dep't of State Police, 491 U.S. 58,

71 n.10, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989) ("Of course a

state official in his or her official capacity, when sued for

injunctive relief, would be a person under § 1983 because

‘official-capacity actions for prospective relief are not treated as

actions against the State.) (quoting Kentucky v. Graham, 473

U.S. 159, 167 n.14, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985)).

14 Because the severity of the penalties prevented the

shareholders from testing the sufficiency of the act in state

court, the Supreme Court found the penalties for violation of

the act facially unconstitutional. Jd.

34a

constitutional rights on the other. [*925] Id./5

Thus, [HN15] one of the primary rationales for the

exception to state sovereign immunity recognized in

Ex parte Young is to provide an adequate forum

when federal constitutional rights are in peril and

the state court’s remedy is inadequate. As the

Supreme Court has stated, "the [Ex parte Young]

exception has been ‘tailored to conform as precisely

as possible to those specific situations in which it is

necessary to permit the federal courts to vindicate

{**25] federal rights.” Idaho v. Coeur d'Alene Tribe

of Idaho, 521 U.S. 261, 277 (1997) (quoting Papasan

v. Allain, 478 U.S. 265, 277, 106 S. Ct. 2932, 92 L.

Ed. 2d 209 (1986)).

[**26]

This case does not fit within the Ex parte Young

exception. The injury for which the Willners seek

redress is plainly not a matter of impending peril,

but the loss of their property through the operation

of Virginia's adverse possession statute nearly two

years ago. Nor did the Willners lack an adequate

forum in which to vindicate the claims they assert

here. Indeed, they have done so in Fairfax I or

Fairfax II. Moreover, the Willners do not seek to

avoid a future violation of their federal rights,

(**27] but restitution of property they claim was

'S By comparison, in Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347,

39 L. Ed. 2d 662 (1974), the Supreme Court refused to allow injunctive

relief that would result in the retroactive payments of benefits wrongfully

withheld, and rejected the argument that "equitable restitution” is 4

permissible form of relief under Ex Parte Young. Edelman, 415 U.S. at

664-668.

35a

wrongfully taken from them. Put simply, the

Willners want their land back.!* The relief they seek

here, no matter how styled, is retrospective, not

prospective, and the Eleventh Amendment therefore

bars this suit. See CSX Transp., Inc. v. Board of

Public Works of the State of West Virginia, 138 F.3d

537, 542-43 (4th Cir. 1998) (refunding taxes is

retrospective relief); Constantine v. Rectors and

Visitors of George Mason University, 411 F.3d 474,

496 (4th Cir. 2005) (expwnging a failing grade from

an academic record is retrospective relief); Steffens v.

Steffens, 955 F.Supp. 101, 105 n. 5 (D.Colo. 1997)

(injunction seeking to undo court-ordered sale of

marital property in divorce proceeding is

retrospective relief). The Wiliners deliberately chose

not to assert their federal constitutional claims in

Fairfax I and Fairfax II, and to save them for a

future federal court case presumably because they

thought the state court inadequate to adjudicate

these claims. In these circumstances, "it would be

error coupled with irony” to bypass the dictates of

the Eleventh Amendment. [**28] Idaho v. Coeur

d'Alene Tribe of Idaho, 521 U.S. 261, 276 (1997).

‘6 In this respect, Frey's argument that Rule 19, Fed. R. Civ. P.

requires joinder of the Leggetts may well have merit, but given

the dismissal of the Willners' complaint here, there is no need

to reach this issue. Cf. National Union Fire Ins. Co. v. Rite Aid

of S.C., Inc., 210 F.3d 246, 251 (4th Cir. 2000) ("A court should

hesitate to conclude . . . that a litigant can serve as a proxy for

an absent party unless the interests of the two are identical.”).

36a

D. Derivative Absolute Judicial Immunity

The final issue to be addressed is whether Frey is

entitled to derivative absolute judicial immunity

because he was clearly acting within his official

capacity when he _ recorded the judgment

transferring title of the property to the Leggetts.

[HN16] It has long been recognized as "a general

principle of the highest importance to the proper

administration of justice, that a judicial [**29]

officer, in exercising the authority vested in him,

should be free to [*926] act upon his own

convictions, without apprehension of personal

consequences to himself." Stump v. Sparkman, 435

U.S. 349, 355, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978)

(quoting Bradley v. Fisher, 80 U.S. 335, 347, 20 L.

Ed. 646 (1871)). For this reason, judicial officers are

immune from liability for acts committed within the

scope of their jurisdiction. Sparkman, 435 U.S. at

364. And, because the judicial decision-making

protected by absolute judicial immunity is often

carried out by court clerks, this immunity has been

held to apply derivatively to clerks "who act in

obedience to a judicial order or under the court's

discretion." McCray v. State of Maryland, 456 F.2d 1,

5 (4th Cir. 1972); see also, Battle v. Whitehurst, 831

F.Supp. 522, 528 (E.D.Va. 1993); Clay v. Yates, 809

F.Supp. 417, 424 (E.D.Va. 1992). It follows that Frey

is clearly entitled to claim derivatively the benefit of

absolute judicial immunity.

37a

Seeking to avoid this result, the Willners cite

Pulliam v. Allen,!” and argue that Frey is not

entitled to judicial immunity because they are

seeking [**30] injunctive and declaratory relief. See

Pulliam v. Allen, 466 U.S. 522, 541-42, 104 S. Ct.

1970, 80 L. Ed. 2d 565 (1984). Yet this decision (to

the extent it has not been subsequently abrogated by

Congress)’® clearly applies only to prospective relief,

and because the relief the Willners seek is not

prospective, Pulliam is not controlling here. See Id.

("We conclude that [HN17] judicial immunity is not

a bar to prospective injunctive relief against a

judicial officer acting in her judicial capacity.")

(emphasis added). For this reason, Frey is entitled to

derivative absolute judicial immunity.

*31)

17 466 U.S. 522, 104 S. Ct. 1970, 80 L. Ed. 2d 565.

18 Congress effectively reversed the Supreme Court's holding in

Pulliam by enacting the Federal Courts Improvement Act of

1996 ("FCIA"), Pub.L. No. 104-317, 110 Stat. 3847 (1996)

(amending 42 U.S.C. § 1983). [HN18] Section 309(c) of FCIA

bars injunctive relief in any section 1983 action "against a

judicial officer for an act or omission taken in such officer's

judicial capacity . . . unless a declaratory decree was violated or

declaratory relief was unavailable." See Holbert v. Cohen-

Gallet, 2006 U.S. Dist. LEXIS 1869, 2006 WL 47452 (E.D.N_Y.

2006). Because the Willners do not seek prospective relief, it is

unnecessary to decide whether this extension of judicial

immunity applies derivatively to court clerks. See Hili v.

Sciarrotta, 140 F.3d 210, 215 (1998).

38a

IV.

Although the Willners' claims are barred by the

Rooker-Feldman doctrine, the Eleventh Amendment,

and derivative absolute judicial immunity, a brief

discussion of the merits of their constitutional claims

is appropriate as an exercise of good judicial

husbandry. The Willners allege that Virginia's law of

adverse possession violates the Takings Clause of the

Fifth Amendment !9 and the Due Process and Equal

Protection Clauses of the Fourteenth Amendment. As

noted, Virginia's law of adverse possession distilled

to its essence is as follows: "To establish title to real

property by adverse possession, a claimant must

prove actual, hostile, exclusive, visible, and

continuous possession, under a claim of right for the

statutory period of fifteen years." Grappo v. Blanks,

241 Va. 58, 61, 400 S.E.2d 168, 170, 7 Va. Law Rep.

1293 (1991). The Willners argue that the law, as-

applied to them, violates their federal constitutional

rights.

[**32]

[*927] It is clear beyond dispute that Virginia's

resolution of a private land dispute through the use

of its law of adverse possession does not constitute a

taking under the Fifth Amendment. As the Supreme

Court has stated: "Just as a State may create a

19 The Fifth Amendment prohibition against the taking of

private property for public use without just compensation

applies against the States through the Fourteenth Amendment.

See Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S.

155, 160, 101 S. Ct. 446, 66 L. Ed. 2d 358 (1980).

39a

property interest that is entitled to constitutional

protection, the State has the power to condition the

permanent retention of that property right on the

performance of reasonable conditions that indicate a

present intention to retain the interest." Texaco v.

Short, 454 U.S. 516, 526, 102 S. Ct. 781, 70 L. Ed. 2d

738 (1982). See also Vincent Montoya v. Candido G.

Gonzales, 232 U.S. 375, 378, 34 S. Ct. 413, 58 L. Ed.

645 (1914). In this regard, the power of a state to

transfer property to another after its abandonment

for a certain period of time of time has long been

recognized as valid. See, e.g., Hawkins v. Barney's

Lessee, 30 U.S. 457, 5 Pet. 457, 466, 8 L. Ed. 190

(1831) ("What right has any one to complain, when a

reasonable time has been given him, if he has not

been vigilant in asserting his rights?"). In short, “in

ruling that private property may be deemed to be

abandoned and to lapse upon the failure of its owner

to take reasonable actions imposed by law, this

Court [**33] has never required the State to

compensate the owner for the consequences of his

own neglect." Short, 454 U.S. at 530. * In this

regard, the Virginia courts have concluded that the

Willners neglected to protect their property interests

by objecting to the Leggetts' possession of their land,

20 Thus, the Willners' reliance on Pascoag Reservoir & Dam,

LLC v. Rhode Island, 217 F.Supp.2d 206, aff'd on other

grounds, 337 F.3d 87 (2003), is misplaced; that case is neither

apposite nor persuasive. There, the State of Rhode Island-not a

private party-had acquired a portion of the Pascoag Reservoir

through adverse possession and prescriptive easement.

Pascoag, 217 F.Supp.2d at 211.

40a

and the recognition of this fact is sufficient to defeat

the Willners' Takings claim.

The Willners' Due Process argument fails as well.

The Willners state that they had no notice that the

Leggetts or their predecessors in title claimed to own

the disputed property and had [**34] no notice that

a cause of action against the Leggetts and their

predecessors in title had accrued to the Willners

until after the expiration of the fifteen year period

prescribed by Va. Code § 8.01-236. The Willners

contend that this lack of notice somehow violates the

Due Process Clause.

This argument is meritless. The state, which of

course must abide by the Due Process Clause,

satisfies its constitutional notice requirement by

passing "a rule of law uniformly affecting all citizens

that establishes the circumstances in which a

property interest will lapse through the inaction of

its owner,"2} and by ensuring that the Willners

receive notice of the judicial proceeding which affects

their property interest and an adequate opportunity

to be heard at that hearing. See Cleveland Bd. of

Educ. v. Loudermill, 470 U.S. 532, 542, 105 S. Ct.

1487, 84 L. Ed. 2d 494 (1985) ("An essential

principle of due process is that a deprivation of life,

liberty, or property be preceded by notice and

opportunity for hearing appropriate to the nature of

the case."). In this regard, the Willners do not argue

that the state failed to provide notice of the statute,

21 Short, 454 U.S. at 537.

4la

nor do they contend that the [**35] notice of the

judicial proceeding through which the Leggetts

acquired title to the disputed property was

insufficient, or that they were deprived of an

adequate opportunity to be heard. Instead, the

Willners argue that the Leggetts' failed to provide

the Willners [*928] adequate notice of their hostile

interest in the disputed land. Of course, the Leggetts

cannot be considered state actors, and therefore need

not abide by the notice requirement of the Due

Process Clause.22, More specifically, necessarily

included in the general proposition that a private

party need not inform an adverse party that the

statute of limitations on its claim is about to expire,

is the more specific proposition that one neighbor

need not inform another that his rights in land are

about to expire due to adverse possession. Short. 454

U.S. at 536. Further, even assuming that the

piaintiffs have some right to notice of the running of

a statute with respect to claims for adverse

possession, the statute's open and continuous

possession requirement provides just such notice.

LaDue v. Currell, 201 Va. 200, 207, 110 S.E.2d 217,

222 (1959). For these reasons, the Willners' Due

Process [**36] claim fails.

22 See National Collegiate Athletic Ass'n v. Tarkanian, 488 U.S.

179, 191, 109 S. Ct. 454, 102 L. Ed. 2d 469 (1988) ("Embedded

in our Fourteenth Amendment jurisprudence is a dichotomy

between state acticn, which is subject to scrutiny under the

Amendment's Due Process Clause, and private conduct, against

which the Amendment affords no shield, no matter how unfair

that conduct may be.").

42a

Finally, the Willners do not state a claim for

relief under the Equal Protection Clause of the

Fourteenth Amendment to the United States

Constitution. Generally speaking, the Equal

Protection Clause prohibits states from creating

unreasonable, arbitrary, and invidious

classifications. Barefoot v. City of Wilmington, 306

F.3d 113, 121, 37 Fed. Appx. 626 (4th Cir. 2002).

Except in cases where a challenged law employs

suspect classifications or significantly burdens a

fundamental right, the law comports with the Equal

Protection Clause if it is rationally related to a

permissible government [**37] interest. Jd. (citing

Pennell v. City of San.Jose, 485 U.S. 1, 14, 108 S.Ct.

849, 99 L.Ed.2d 1 (1988)). Given this standard,

Virginia's adverse possession statute plainly passes

equal protection muster. Thus, the Commonwealth

of Virginia has an obvious and legitimate interest in

resolving land disputes among its citizens, and the

classification the Willners propose, 1.e., those whose

land is subject to adverse possession, can hardly be

considered invidious. Therefore, the Willners' Equal

Protection claim, like their Takings and Due Process

claims, is meritless.

IV.

In sum, the Willners claims are barred from

consideration by the Rooker-Feldman doctrine, the

Commonweaith of Virginia's sovereign immunity,

and Frey's derivative absolute judicial immunity.

But even assuming they were not, they would fail to

Ly

43a

state a claim for which relief can be granted, and

therefore must be dismissed. An appropriate Order

will issue.

Alexandria, VA

March 15, 2006

/s/

T. S. Ellis, II

United States District Judge

44a

Appendix D

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FILED

August 29, 2007

No. 06-1432

1:05-cv-01315-TSE

MARGUERITE EVANS WILLNER; MICHAEL A.

WILLNER

Plaintiffs - Appellants

v.

JOHN T. FREY, Clerk, Fairfax County Circuit

Court;

Defendant - Appellee

COMMONWEALTH OF VIRGINIA

Intervenor

45a

The appellants’ petition for rehearing and rehearing

en banc was submitted to this Court. As no member

of this Court or the panel requested a poll on the

petition for rehearing en banc, and As the panel

considered the petition for rehearing and is of the

opinion that it should be denied,

{T IS ORDERED that the petition for rehearing and

rehearing en banc is denied.

Entered for a panel composed of Chief Judge

Williams, Judge Michael, and Judge Gregory.

For the Court,

/s/ Patricia S. Connor

CLERK

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Appendix E

Citations from Ninth Circuit Court of Appeals

opinions, post-Exxon, affirming dismissal of

cases under Rooker-Feldman based on

“inextricably intertwined” analysis

1. “Because the district court was required to

"refuse to decide any issue raised in the suit that is

‘inextricably intertwined' with an issue resolved by

the state court," Matthisen's challenge to the

jurisdiction of the state court is also barred by the

Rooker-Feldman-Feldman doctrine.”

Matthisen v. Alaska, 2007 U.S. App. LEXIS 21323

(9th Cir. 2007).

2. “The district court also properly concluded that it

lacked subject matter jurisdiction over Watkins’

constitutional claims because they were "inextricably

intertwined" with the state court decision.” Watkins

v. Proulx, 2007 U.S. App. LEXIS 20883 (9th Cir.

2007).

3. “The district court properly concluded that it

lacked subject matter jurisdiction pursuant to the

Rooker-Feldman-Feldman doctrine because Holst's

action amounted to a forbidden "de facto appeal" of a

state court judgment and raised a constitutional

claim that was "inextricably intertwined” with that

state court judgment.” Holst v. Oregon, 2007 U:S.

App. LEXIS 20850, 1-2 (9th Cir. 2007).

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4. “The district court properly concluded that

Torres's action was barred by the Rooker-Feldman

doctrine because it was a forbidden de facto appeal

from suspension proceedings, and the remaining

claims were inextricably intertwined with the

forbidden appeal.” Torres v. State Bar of Cal., 2007

U.S. App. LEXIS 20355 (9th Cir. 2007)

5. “The district court properly concluded that it

lacked subject matter jurisdiction pursuant to the

Rooker-Feldman doctrine because Marcum's action

amounted to a forbidden ‘de facto appeal’ of state

court judgments and raised claims that are

‘inextricably intertwined’ with those state court

decisions.” Marcum v. Grant County, 234 Fed. Appx.

527 (9th Cir. 2007).

6. “The district court properly dismissed Appellants'

action pursuant to Rooker-Feldman because it is a

‘de facto appeal’ of the prior state court judgments

adjudicating the boundaries and ownership of real

property and raises claims that are ‘inextricably

intertwined with those state court decisions.”

Pettigrew v. Lingle, 231 Fed. Appx. 556 at 4 (9% Cir.

2007).

7. “The Safouanes seek, inter alia, a declaratory

judgment that all orders and judgments relating to

them in the state court system are void, and request

that the federal court take supervisory control of

state proceedings. Any such relief, however, would

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be inextricably intertwined with the results of the

state court proceedings and would require the

district court to review state court rulings.”

Safouane v. Fleck, 226 Fed. Appx. 753 at 9-10 (9%

Cir. 2007).

8. “The district court did not err when it concluded

that Timmons’ first, second and ninth causes of

action were ‘inextricably intertwined’ with issues

resolved in the state court proceeding and ‘at least in

part a forbidden de facto appeal of a state court

judgment,’ and were therefore barred by the doctrine

of Rooker-Feldman.” Timmons v. Manatt, Phelps &

Phillips, 214 Fed. Appx. 718 at 3 (9 Cir. 2006).

9. “The district court properly determined that

Cook's action against the judicial defendants is

barred by the Rooker-Feldman doctrine because his

complaint essentially challenges the propriety of the

state court judgment. See Noel, 341 F.3d at 1158

(referring to Rooker v. Fidelity Trust Co., 263 U.S.

413, 44 S. Ct. 149, 68 L. Ed. 362 (1923) and Dist. of

Columbia Court of Appeals v. Feldman, 460 U.S.

462, 103 S. Ct. 1303, 75 L. Ed. 2d 206 (1983)). Thus,

the district court was required to ‘refuse to decide

any issue raised in the suit that is ‘inextricably

intertwined’ with an issue resolved by the state

court.” Cook v. Colo. Appeals Court, 213 Fed. Appx.

616 at 2-3 (9% Cir. 2006).

10. “Thus, the district court was required to ‘refuse

to decide any issue raised in the suit that is

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‘inextricably intertwined' with an issue resolved by

the state court.” Kelley v. Kahan, 214 Fed. Appx. 640

at 3 (9t Cir. 2006).

11. “The doctrine also precludes constitutional

claims that are ‘inextricably intertwined’ with the

forbidden appeal.” Ignacio v. Judges of the United

States Court of Appeals for the Ninth Circuit, 453

F.3d 1160 at 11 (9% Cir. 2006).

12. “Because Lamarr's constitutional claims are

‘inextricably intertwined’ with the substance of the

state court decision, review of such claims is also

barred under the Rooker-Feldman doctrine.”

Lamarr v. Oregon, 151 Fed. Appx. 512, 513 (9th Cir.

2005).

13. “Because Kennedy's constitutional claims

presented in federal court are ‘inextricably

intertwined’ with the substance of the state court

decisions, review of those claims is also barred under

the Rooker-Feldman doctrine.” Kennedy v. L.A.

County Superior Court, 151 Fed. Appx. 514, 515 (9th

Cir. 2005).

14. “We reject Heron's contention that the court

retains jurisdiction over his constitutional challenge

to Cal. Gov't Code § 68081 because it is ‘inextricably

intertwined’ with his state court proceeding.” Heron

v. Supreme Court of Cal., 142 Fed. Appx. 986 (9th

Cir. 2005).

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15. “We conclude that the claims raised by Tittle in

his § 1983 action are ‘inextricably intertwined’ with

the state court decisions rendered in relation to the

Tittles' marriage dissolution proceedings such that

the adjudication of the federal claims would

undercut those state court rulings” Tittle v. Bottorff-

Tittle, 131 Fed. Appx. 554, 555 (9th Cir. 2005).