*1 writ of understanding historical II, James D. HOOD Plaintiff- remedy as a mechanism for corpus habeas Appellant, an official’srefusal to exercise dis ing for cretion, “substantively but not a unwise v. Cyr, 533 U.S. exercise of discretion.” St. KELLER; Ronald T. Richard H. 307, 121 at S.Ct. 2271. Finan; Morckel, Kenneth L. interpreting the transitional rules Defendants-Appellees. per- before enactment of IIRIRA’s effect No. 02-3402. a of “ex- provisions,5 manent determination Appeals, United States Court of ceptional extremely hardship” unusual Sixth Circuit. act.”6 Moosa v. “clearly discretionary a (5th Cir.1999) INS, 994, 1012 171 F.3d 1, Argued Aug. 2003. INS, Kalaw v. (quoting 133 F.3d Sept. Decided and Filed 2003. (9th Cir.1997)). Bravos’ Based on the fluency in age Spanish, child’s the IJ hardship
found that he would not suffer consequence going to Mexico. The argue
Bravos that the IJ failed to account other that would support factors
finding they of extreme do not hardship; statutory argu-
raise or constitutional decision, As a discretionary
ments. subject is not a proper
IJ’s determination
of habeas review.7
AFFIRMED. character; (3) would, discretionary review a denial of relief to a whose removal "in alien.”). General, opinion Attorney result exceptional extremely hardship unusual child, spouse, parent, to the alien or to his challenges governed rules 5. transitional who is a citizen of the United States or an to BIA decisions issued on or after October 31, 1996, lawfully permanent deportation proceedings alien admitted for resi- initiated INS, Rodriguez-Silva dence.” April before 1997. v. (5th Cir.2001). 7.The Bravos also contend that BIA’s IIRIRA, summary § Before enactment of affirmance of the IJ’s decision was INA (now 1254(a)(1) improper. rejected argument, § repealed), provided U.S.C. We have this General, holding summary proce- Attorney that the "in that the affirmance [his] discre- tion,” 3.1(a)(7) suspend deportation § 8 C.F.R. do not violate could of an dures of (1) deportable process, deprive otherwise alien if the alien: due nor a district court of Ashcroft, jurisdiction. Soadjede physically present had v. been in the United (2) (5th Cir.2003). years; good States for seven was of moral *2 briefed), (argued
Nathan Kellum W. Rights, Memphis, Center Inalienable TN, Plaintiff-Appellant. briefed), (argued Elise Porter W. Timms, Thomas, David S. Peter M. Office General, Columbus, OH, Attorney of Ohio (briefed), below, reasons set forth L. Dorris Office Ohio we reverse the Tomi Columbus, OH, General, Attorney for De- decision of the district court and remand for further fendants-Appellees. proceedings. GILMAN, KENNEDY, Before I.
GIBBONS, Judges. Circuit pastor. Hood is a Christian Since in engaged “religious Hood has speech ac- OPINION tivities” on the Ohio grounds, Statehouse GIBBONS, Judge. Circuit including “open proclamation, air oral com- munication, written and literature.” D. II Plaintiff-appellant James Hood in brought suit federal district Capitol Square The Review and Adviso- Keller, against defendant-appellee Ronald ry (Capitol Square) Board an eleven- capacity in his official as the Executive body member with the authority “sole Capitol Square Director of the Review and regulate all of the capítol square.” uses Board; Advisory defendant-appellee Rich- 105.41(E)(2). § O.R.C. Pursuant to its Finan, capacity ard his official as the statutory authority, Capitol Square has en- Square Capitol Chairman of the Review requiring acted a rule all persons who wish Board; Advisory defendant-appel- and and to use the grounds Ohio Statehouse Morckel, capaci- lee Kenneth in his official a permit doing obtain before so. Ohio ty Superintendent Ohio State 128-4-02(A) § Administrative Code states: Patrol, Highway challenging the constitu- Capitol buildings grounds or are avail- tionality of Administrative Ohio public able for pur- use for the requires § that all provision 128-4. This business, pose governmental public who to use the persons wish Ohio State- meetings free public for discussion of Columbus, Ohio, grounds house first questions, or for activities of a broad permit complaint, obtain a to do so. his public purpose, provided the authorized alleges that permit requirements Hood procedure appro- has been followed and set forth in Ohio Administrative Code priate have approvals been received. overbroad, § are unconstitutionally 128-4 procedure obtaining permit for a vague, discriminatory and in violation of described Ohio Administrative Code rights his to free and free exercise § provides, which in relevant 128^— religion under the First and Fourteenth part: Amendments United States Consti- (A) A request capítol use build- tution. Hood claims that the continued ings grounds shall be submitted in threat of enforcement of Ohio Administra- writing to the board no less than fifteen § plain- tive Code 128-4 “chills and deters eighty and no more than one hundred exercising tiff from his constitutional days prior good to the event. For cause rights, causing irreparable plain- harm to shown, may requests be submitted with- tiff.” Defendants-appellees filed a motion days in less than fifteen before 12(b)(1) to dismiss under Rules event. 12(b)(6) of the Federal Rules of Civil Pro- :¡: # ífc 3* cedure. The district court concluded that (C) prevented the Rooker-Feldmam doctrine it The board will collect a nominal fee exercising jurisdiction from twenty over this law- dollars—to cover the adminis- suit, granted issuing permit. the motion under Rule trative cost of The fee 12(b)(1), may good and dismissed the case. For the be waived for cause shown. for the Southern District Ohio 18, 2000, Court Hood entered Ohio May
On The com- defendants-appellees. began “preach grounds Statehouse (1) tracts.” An offi- continued religious plaint alleges “[t]he out that: hand and/or Highway Patrol ar- Chapter State of enforcement of the Ohio threat cer of Hood “that he charge and told of criminal permit requirement rived on the scene public property preach grounds, chills trespass being public could not tracts without exercising hand out nor deters from Hood was asked to leave permit irreparable to do so.” right, causing constitutional day, (2) and refused. Later that property re- plaintiff;” permit “[t]he harm to trespass with criminal charged Hood was Chapter 128-4 are quirements set forth in violation of Ohio Revised Code overbroad, unconstitutionally vague, and *4 2911.21(A)(2), § which states: construed, discriminatory, applied as and so, privilege without to do person,
No of freedom of under the violation remain on [k]nowingly ... enter or shall First and Fourteenth Amendments another, (3) the use premises Constitution;” the land or per- “[t]he United States lawfully restricted to certain of which is requirements Chapter mit set forth 128- modes, hours, persons, purposes, or overbroad, unconstitutionally vague, 4 are in viola- when the offender knows he is discriminatory, applied as and con- and reckless any tion of such restriction or is strued, in free exercise of reli- violation of regard. in that gion under the First and Fourteenth Amendments to the United States Consti- Hood filed a motion to dismiss the state (4) tution;” defendants-appellees that and charges. In his motion to dis- “impermissibly interfered with exer- miss, that Revised Code argued Hood Ohio 2911.21(A)(2) rights cise of Hood’s of conscience § Pastor and Ohio Administrative et religion speech guar- and freedom of seq. process, § “violate due 128-1 and the free exercise of and 1.11 of the speech, freedom of anteed Section 1.027 religion are unconstitutional.” requests and as such Hood Ohio Constitution.”1 17, 2000, (1) November the Franklin Coun- On following judgment relief: “a and de- ty held that the chal- Municipal Court declaring Chapter cree that 128-4 lenged statutes were constitutional and de- Ohio Administrative Code and Section jury nied Hood’s motion to dismiss. A 105.41 are unconstitutional 29, 2000, held, trial was and on November (2) case;” “a plaintiffs activities this guilty trespass Hood found of criminal was injunction en- preliminary permanent ap- and fined one hundred dollars. Hood defendants, joining agents, employ- their Appeals pealed the decision to Court in active concert or persons ees and all Ohio, District, Appellate Tenth but later them, them, any or participation with appeal, filed a motion to dismiss his which enforcing attempting or applying from 2, 2001. granted April Chapter to enforce 16, 2001, permit requirement preaching May On Hood filed Verified (3) tracts;” Complaint handing District out the United States and/or arrest, respond noting "failed to complaint, In his Hood also set forth claims Hood prosecution and false arrest. arguments” malicious the Defendants' and "seems voluntarily mali- Hood withdrew his claim of conceded that the claim of false arrest is have prior prosecution cious to the district court's appealed has not without merit.” Hood ruling defendants-appellees’ to dis- motion district court’s dismissal of false arrest order, 15, 2002, miss. In its the dis- March claim. trict court claim of false dismissed Hood's 597 (4) compensatory damages; and reason- 936-37 (quoting Johnson v. De Grandy, expenses. 997, able 1005-06, costs 512 U.S. 114 S.Ct. 129 (1994)). L.Ed.2d 775 16, 2001, July On defendants-appellees filed motions to dismiss under Rules The Rooker-Feldman doctrine 12(b)(1) 12(b)(6) of the Federal Rules bars district' courts from hearing both of Civil Procedure. The district court challenges to state court judgments and found that the Rooker-Feldman doctrine claims that are “inextricably intertwined” prevented the district court from exercis- with state court judgments. See Catz v. ing subject jurisdiction matter over Hood’s Chalker, 142 Cir.1998). F.3d 293 claims, and judgment entered for defen- “In practice this means that when granting dants-appellees. April On Hood relief on the federal claim would imply that filed appeal. his notice of state-court on the other is incorrect,
sues was
federal courts do not
II.
jurisdiction.”
have
Pieper v. Am. Arbitra
Ass’n,
tion
Cir.
This court reviews de novo a dis
2003); see
Texaco,
also Pennzoil Co. v.
grant
trict court’s
of a motion to dismiss
Inc.,
1, 25,
U.S.
107 S.Ct.
subject
for lack of
jurisdiction.
matter
(1987)
(Marshall, J.,
L.Ed.2d
concurring)
Co.,
Tropf v. Fid. Nat’l Title Ins.
*5
(“Where federal
only
relief can
predi
be
(6th
929,
Cir.2002),
936
cert. denied 537
cated upon a conviction that
the state
1118,
887,
U.S.
123 S.Ct.
charge sion, seeking declaratory from but instead chills deters [him] public grounds rights,” judgment regulating there that the state rule his constitutional exercising irreparable judicial harm. Howev candidates is unconstitu- him by causing held er, challenged his state court tional. The Circuit that: not Seventh Hood has conviction. As Hood trespass challenge to Buckley’s Justice the con- observes, complaint contains correctly stitutionality Supreme Illinois Court aside the or the to set verdict “no demand 67(B)(1)(c) not entail a chal- Rule does Instead, ruling.” Hood seeks state court by the lenge ruling Illinois Courts declaratory injunctive prohibit relief he violated rule. Commission that defendants-appellees using from ing Supreme It is if as in v. true that Leaf handing out “preaching Court, Cir.1992), and/or F.2d or at “enforcing tracts” as a basis only Buckley seeking not to clear were Ohio Administrative to enforce” tempting away that he could run in the rule so Because Hood does not § 128-4. judicial unimpeded by it future elections the district court overturn his seek to have but also to obtain relief the disci- in Franklin conviction November him, pline upon he would be in imposed Court, the Rooker-Feld- Municipal County Illinois appealing effect from the Courts inapplicable to this law man doctrine (though that Commission’s Bd. Ad Edwards v. Illinois suit. See what only part would be he was Bar, F.3d to missions doing), which Rooker-Feldman forbids (“When Cir.2001) litigant challeng him asking But he is not us to do. constitutionality of a rule that was ing the finding expunge disciplinary or do him, not correct asking but is to correct or revise the anything else that he violat revise the determination not, judgment. He is Commission’s *6 rule, ed Rooker-Feldman is no obsta the short, any relief of the kind asking (inter cle maintenance of the suit.” to the an appellant seeks—relief directed omitted)). nal marks quotation against judgment. a Of course that judgment, by virtue of which Rooker- Buckley Inquiry v. Illinois Judicial Buckley Feldman cannot attack Justice (7th Board, Cir.1993), 224 the F.2d suit, might by principles this of res applicability Seventh examined the Circuit judicata maintaining bar him from this doctrine to a simi- the Rooker-Feldman defense, judicata suit. But res not Inquiry lar Illinois situation. The Judicial jurisdiction. It limitation on must be against Board Robert Buck- charges filed pleaded. not It has been. ley, justice, vio- an Illinois state court lating regulating a state rule Id. at 227. judicial at 226. candidates for office. Id. if Buckley, seeking As Hood were to The Illinois Commission ruled that Courts obtain relief directed Novem- Buckley had violated the rule his 1990 conviction, of simply ber instead
judicial campaign, according seeking away allegedly to clear uncon- constitution, Illinois state the commission’s so permit requirement stitutional that he Buckley had decision was final such preach can and hand out tracts no appeal avenue for within the state court future Capitol grounds unimped- system. Id. requirement, ed permit then the Buckley apply. filed in federal district Rooker-Feldman doctrine would suit court, asking not the final But Hood is not the district court to seeking overturn expunge his state court conviction. Conse- Rooker-Feldman doctrine does apply. not quently, the Rooker-Feldman doctrine Although the fact that Hood raised the does not bar this claim. same constitutional issue in the state court proceeding could potentially justify dis Applying the Rooker-Feldman doc missing this lawsuit in whole or in part, we trine, the court district observed that “the note that “absent exceptional par cases or specifically state court ruled on precise circumstances, ticular a federal appellate presented issue to this court.” Hood v. court will not consider passed issues not Keller, 01-CV-454, No. 2002 WL by the district court.” United States v. (S.D.Ohio 2002). at *6 March Ohio, State Cir. appears district court to have confused the 1992) omitted). (quotation We .thus de Rooker-Feldman doctrine with the con cline to reach these issues and instead cept preclusion. As the Seventh Circuit leave them for the district court to resolve noted, “although has the Rooker-Feldman on remand. doctrine and principles preclusion may easily be confused with each other because III.
they respect both define the one court owes to an judgment, earlier are two reasons, For the foregoing we reverse Centres, not coextensive.” Inc. v. Town of the decision of the district court and re- Wis., Brookfield, mand for further proceedings. Cir.1998). Explaining the difference be tween the Rooker-Feldman doctrine and KENNEDY, Circuit Judge, dissenting. preclusion, the Seventh Circuit has stated: Because I believe the district court The Rooker-Feldman doctrine asks: properly applied the Rooker-Feldman doc- plaintiff seeking the federal to set aside trine, I respectfully dissent. judgment, a state present does he Plaintiff claim, general made a independent challenge
some albeit one that as well as an legal applied challenge denies a conclusion that a state the consti- tutionality of court reached in a case the ordinance in has to which he the state- former, a party? proceeding, If the then the state-court jurisdiction; district court lacks if the addressed and confirmed the constitution- latter, jurisdiction ality then there is of the ordinance *7 state law generally, determines whether the plaintiff defen did not appeal. dant prevails principles under of preclu plaintiff It is clear that making is the sion. same applied challenge to the constitution- Rosemont, Ill., GASH Assoc. v. Village of ality of the ordinance in his federal com- Cir.1993); see also here, plaint and on that basis the district Union, Kenmen Eng’g City v. court applied the Rooker-Feldman doc- Cir.2002) (“Rather pro than trine. directly While does not ask hibiting the relitigation of issues and aside, that his conviction be set he does (the province claims preclusion of the doc complain that defendants-appellees “im- trines), protects Rooker-Feldman state- permissibly interfered the with exercise of judgments court from impermissible appel rights Pastor Hood’s of conscience and courts.”). by late review lower federal religion speech guaranteed and freedom of case,
In this Hood does not seek to set Section 1.027 and 1.11 of the Ohio Con- aside stitution,” his conviction in County Franklin and asks that “a Municipal Consequently, Court. the declaring Chapter decree that the and Section
Ohio Administrative applied unconstitutional
105.41 are The ac- this case.” activities
plaintiffs complaint
tivity described activity in which state
May
“unconstitutionally plaintiffs stopped plaintiffs federal com- To read
speech.” making only challenge a facial
plaint as fact disregard us to require
would injunctive only relief
plaintiff seeks a declaration that his conduct
himself constitu- complaint was
as described To grant him the relief
tionally protected. require us to consider the would
sought previously decided Ohio issues
same i.e., court; constitutionality
state plaintiffs conduct
ordinance as general Plaintiffs chal- May “inextricably intertwined” with the
lenge Further, plaintiff proceeding. court
state challenge in state court. general
made a has actually ruled
The state challenge. the district court
general As
noted, explicitly decided in the issue cannot case. Plaintiff seek to relitigated it here.
have
Tiffany McCOY, Plaintiff-Appellant,
v.
Raymond HARRISON, in his individual Defendant-Appellee.
capacity,
No. 01-2348. *8 Court Appeals,
United States
Seventh Circuit.
Argued March 2002. Aug.
Decided