Michelle Gilbank v. Wood County Department of Human ServicesMichelle Gilbank v. Wood County Department of Human Services
* Circuit Judges Kolar and Maldonado did not participate in consideration of this case. Senior Circuit Judge Hamilton participated in the en banc hearing as a member of the panel originally assigned to this case, along with Judges Kirsch and Pryor. See
HAMILTON, Circuit Judge. At the center of this federal case is a child-protection case in a Wisconsin state court. After losing custody of her daughter in state-court proceedings and regaining custody a year later, plaintiff Michelle Gilbank filed this lawsuit in federal court. She alleges that many officials involved in the state-court proceedings violated her federal constitutional rights. The district court granted summary judgment for all defendants, finding that some of Gilbank‘s claims were barred by the Rooker-Feldman doctrine and that all other claims failed on the merits. Gilbank‘s appeal was argued to a panel. We then decided under Circuit Rule 40(e) to hear the case en banc. The full court heard argument on February 6, 2024.1
We offer this roadmap for the three opinions and shifting majorities. First, a majority of the en banc court has voted to affirm the judgment of the district court dismissing this action. That will be the mandate of the court. Second, all members of the en banc court agree to affirm summary judgment for defendants on the merits of Gilbank‘s claims for alleged injuries not caused by the state courts’ judgments, as explained in Part VIII.
The picture on the Rooker-Feldman issue is more complex. Five of the eleven judges participating (Judges Rovner, Hamilton, Brennan, Jackson-Akiwumi, and Pryor) join all of this opinion. A majority of the en banc court, those five judges plus Judge Easterbrook, joins Parts I—III, V, VI, and VIII of this opinion, so those portions of this opinion are an en banc majority opinion. In these sections, we reject Gilbank‘s assertion that she lacked a reasonable opportunity to litigate her claims in state court, and we eliminate the “fraud exception” to the Rooker-Feldman doctrine.
A different majority of the court, including Judge Easterbrook (with Chief Judge Sykes and Judges Scudder, St. Eve, Kirsch, and Lee), joins Part I of Judge Kirsch‘s opinion, making that portion also an en banc majority opinion. That section holds that jurisdiction over Gilbank‘s claims for injuries allegedly inflicted by the state court‘s judgments is not barred by the Rooker-Feldman doctrine because they do not seek a federal district court‘s review and rejection of the state court‘s judgments. Part IV of this opinion dissents from Part I of Judge Kirsch‘s majority opinion on this issue. Part VII of this opinion, which responds to Judge Easterbrook‘s
All judges agree that we should no longer rely on the “inextricably intertwined” language that has contributed to confusion in applying the Rooker-Feldman doctrine. All judges also agree that the Rooker-Feldman doctrine, whatever its proper scope, should not recognize what we describe below as a “fraud exception.” And all members of the en banc court agree that our different understandings of the Rooker-Feldman doctrine may help show a need for the Supreme Court to clarify application of the doctrine, especially in the types of cases where the lower courts often confront it, including child-custody and mortgage-foreclosure cases.
I. Factual Background & Procedural History
A. Plaintiff‘s Early Encounters with Police and Child Welfare Officials
Because we are reviewing a grant of summary judgment, we present the facts in the light most favorable to Gilbank as the non-moving party, giving her the benefit of the doubt when it comes to conflicting evidence and reasonable inferences that can be drawn from the evidence. E.g., Sullivan v. Flora, Inc., 63 F.4th 1130, 1141 (7th Cir. 2023). Plaintiff Michelle Gilbank had sole custody of her young daughter T.E.H. until the girl‘s father, Ian Hoyle, was granted supervised visitation rights in November 2017. T.E.H. was three years old at the time. The relationship between Gilbank and Hoyle was fraught. Hoyle had a prior conviction for first-degree sexual assault of a six-year-old girl and frequently drank and used drugs. Gilbank too had a history of drug use, particularly methamphetamine. Nevertheless, in February or March 2018, when the home where they lived went into foreclosure, Gilbank and T.E.H. moved into Hoyle‘s apartment.
On June 29, 2018, an anonymous caller contacted the Wood County Department of Human Services about Gilbank and T.E.H. The weather was hot, and they appeared to be living in Hoyle‘s garage, which lacked air conditioning. Defendant Marshfield Police Department sent two officers, one of whom was defendant Detective Derek Iverson, to respond to the call. The officers were joined by a social worker from Human Services, defendant Theresa Heinzen-Janz. The officers and social worker spoke with Gilbank and observed that T.E.H. appeared well cared for and in good health. Gilbank expressed concern about living with Hoyle. Heinzen-Janz agreed to help, scheduling an appointment for July 3.
Before that appointment, Heinzen-Janz reviewed Gilbank‘s history with Human Services. She learned that Gilbank had a history of drug problems and had a pending charge for methamphetamine possession from August 2017. Just before the appointment, Heinzen-Janz and Iverson met with Hoyle, who told them that he was concerned about Gilbank‘s drug use and that he wanted her to move out.
At the meeting on July 3, Heinzen-Janz gave Gilbank contact information for local housing resources. Detective Iverson and Heinzen-Janz also pressed Gilbank about her drug use. Gilbank acknowledged her history with methamphetamine but denied having used the drug for a few weeks. Iverson asked Gilbank to take a drug test. She agreed to provide a urine sample, which came back positive for methamphetamine. When Heinzen-Janz and Iverson shared the results with her, Gilbank insisted the test results were wrong. She later admitted to having smoked methamphetamine “residue” just two days before the test.
August 21, 2018 was a pivotal day for this case. Hoyle asked Gilbank for a ride to work. After Gilbank and T.E.H. dropped him off, an officer pulled Gilbank over for driving with a suspended license. A drug-sniffing dog alerted to the presence of a controlled substance. While officers searched the vehicle, Gilbank called Hoyle and asked him to come to the scene and care for T.E.H. The search uncovered drug paraphernalia and 0.7 grams of methamphetamine. Gilbank was arrested. Her daughter left with Hoyle.
Gilbank was taken to the Marshfield Police Department and interviewed by Detective Iverson and Heinzen-Janz.
After Iverson gave her Miranda warnings, Gilbank said that she did not want to answer questions without a lawyer present. Iverson said that he would not ask Gilbank about the drugs and paraphernalia found in her vehicle, but he and Heinzen-Janz both told Gilbank that they needed to have a frank conversation about her drug use to the extent it affected T.E.H. Without an honest dialogue, they said, Heinzen-Janz could not create a safety plan to allow T.E.H. to remain with her.
Gilbank decided to talk. She said that she never used methamphetamine around T.E.H. and that she was making progress. After Detective Iverson questioned her truthfulness, Gilbank became defiant—claiming she did not have a problem with methamphetamine—and refused to talk any further.
Heinzen-Janz then told Gilbank that the county would be taking temporary physical custody of T.E.H. and placing her with Hoyle, that a hearing would be held in a day or two, and that Heinzen-Janz would call Gilbank to tell her the date and time of the hearing. Gilbank was booked and taken to the Wood County Jail.
The next day, August 22, Heinzen-Janz filed two documents in the Wood County Juvenile Court: a request for temporary physical custody of T.E.H. and a “CHIPS” petition (“Child in Need of Protective Services“) under
The state court scheduled a temporary physical custody hearing for the next day, August 23. Heinzen-Janz called the jail to give Gilbank the details. Jail staff said they would notify Gilbank of the hearing. Gilbank had already been released, though, so despite Heinzen-Janz‘s efforts, Gilbank did not receive notice of the hearing. Gilbank happened to go to the courthouse that day to inquire about the 48-hour hearing, only to learn that it had already been held earlier that day without her.
C. State-Court Proceedings
At the hearing on August 23, 2018, the juvenile court addressed temporary physical custody. The child‘s father (Hoyle), Heinzen-Janz, an assistant district attorney, and a guardian ad litem appointed to represent T.E.H. were present. Gilbank was not. The court found that the information in the temporary custody request established probable cause to believe that Gilbank was unable to provide adequate care and supervision of T.E.H. or was neglecting her, so the court ordered
The next day, after learning of the order, Gilbank wrote a letter to the presiding judge contesting the court‘s temporary physical custody order. She followed up by filing a motion to dismiss. Gilbank objected to the order on several grounds, including that she had not received notice of the hearing. Gilbank also moved to reopen the probable cause hearing. The court denied both motions but noted that Gilbank was “welcome” to use the appeals processes of the Wisconsin courts “any time that that‘s appropriate.” A CHIPS hearing was scheduled for September 25.
Gilbank attended the September 25 CHIPS hearing and was represented by an attorney. She did not testify. Detective Iverson and social worker Heinzen-Janz testified to the events leading to Gilbank‘s temporary loss of custody, ending with her arrest on August 21, 2018. Heinzen-Janz also testified that Gilbank had admitted using methamphetamine as recently as August 23, the day of the temporary custody hearing. The guardian ad litem recommended that T.E.H. stay with Hoyle.
The court found these witnesses credible. The court found that Gilbank suffered from “a very serious methamphetamine addiction,” that necessary care for T.E.H. would require “sober parenting,” and that clear and convincing evidence showed that T.E.H. was a child in need of protection and services. The court ordered supervision for a period not to exceed one year. Pending a follow-up hearing to be held on October 29, the court ordered that T.E.H. remain with Hoyle.
At the October 29 hearing, Heinzen-Janz testified that T.E.H. should remain with Hoyle because of Gilbank‘s continuing drug use. Until the extent of Gilbank‘s methamphetamine use was clear, Heinzen-Janz said, she could not establish a plan for safely allowing Gilbank to have custody of T.E.H. Still represented by counsel, Gilbank testified at that hearing. She testified that she had not used methamphetamine for several months. Finding that Gilbank was not forthright about her methamphetamine addiction and that T.E.H. could not be placed safely with her, the court ordered continued placement with Hoyle.
Eleven months later, on September 9, 2019, the court held a closure hearing on the CHIPS petition. By then, a separate case in family court was addressing custody and placement of T.E.H., so all parties, including Gilbank, agreed to close the CHIPS proceedings. The court agreed. In March 2020, Gilbank regained sole custody of T.E.H. in that separate proceeding. There were no further relevant proceedings in state court.2
D. This Federal Lawsuit
Proceeding without a lawyer, Gilbank filed this federal lawsuit in June 2020, naming as defendants nearly everyone involved from the first welfare check in June 2018 to the conclusion of the CHIPS proceedings—from state-court judges to social workers to police officers. The complaint alleged numerous constitutional claims on behalf of Gilbank and T.E.H., primarily under
By the time the district court ruled on cross-motions for summary judgment, the remaining defendants were the Marshfield Police Department, Detective Iverson, and four Wood County social workers, including Heinzen-Janz. The remaining claims were: (1) unreasonable search by compelling plaintiff to provide a urine sample; (2) unreasonable seizure and violations of substantive due process by removing T.E.H. from plaintiff‘s custody; (3) denial of procedural due process by continuing to interrogate plaintiff after she had requested an attorney; (4) unreasonable seizure by evicting plaintiff from her home; (5) violations of substantive due process by interfering with family integrity; (6) violations of
The district court concluded that plaintiff‘s principal claims were based on injuries caused by the state court‘s orders in the CHIPS proceedings and were therefore barred by the Rooker-Feldman jurisdictional doctrine. Gilbank v. Marshfield Police Dep‘t, 2021 WL 5865453, *5–6 (W.D. Wis. Dec. 10, 2021). Plaintiff argued, however, that “some of her injuries occurred prior to, and exist independently of, the state court‘s custody decision.” Id. at *6. Plaintiff contended that three of her claims—unreasonable search via urinalysis, interrogation without an attorney, and lack of notice—were not subject to Rooker-Feldman because they were based on those prior, independent injuries. The district court granted summary judgment for defendants on the merits of those three claims. Id. at *6–7. The court found that plaintiff had consented to the urinalysis, that her Fifth Amendment claim failed because none of her statements were ever used against her in a criminal proceeding, and that her due process claims were barred by issue preclusion. The district court also granted summary judgment for defendants on Gilbank‘s other due process claim, finding that any failures to abide by state statutory requirements were insufficient to state a claim for a federal due process violation. Id. at *7.
II. Standards of Review
Because the Rooker-Feldman doctrine operates as a “jurisdictional bar,” Andrade v. City of Hammond, 9 F.4th 947, 948 (7th Cir. 2021), we must consider first whether the district court had subject-matter jurisdiction before reviewing the merits of any claim. Swartz v. Heartland Equine Rescue, 940 F.3d 387, 390 (7th Cir. 2019);
III. The Rooker-Feldman Doctrine
From the earliest days of this federal Republic, the parallel federal and state court systems have offered opportunities for litigants disappointed in one court system to seek a better result in the other. See VanderKodde v. Mary Jane M. Elliott, P.C., 951 F.3d 397, 408 (6th Cir. 2020) (Sutton, J., concurring) (“In our legal system of overlapping state and federal jurisdiction, dueling resolutions of claims and issues are a national litigation reality.“) For just as long, Congress and state and federal judges have debated and adjusted the boundaries of appropriate roles for state and federal courts. The Rooker-Feldman doctrine has emerged from those debates.
A. Basics of the Rooker-Feldman Doctrine
Under
The doctrine takes its name from Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). Our application of Rooker-Feldman today is guided by the Supreme Court‘s authoritative restatement of the doctrine in Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280 (2005).
Exxon Mobil emphasized the “limited circumstances” where Rooker-Feldman should apply, cautioning that the doctrine has no place “overriding Congress’ conferral of federal-court jurisdiction concurrent” with the jurisdiction of state courts or “superseding the ordinary application of preclusion law ....” 544 U.S. at 283, 291. Our application of Rooker-Feldman must neither interfere with our “‘virtually unflagging obligation’ to exercise the jurisdiction that Congress” has granted, Huon v. Johnson & Bell, Ltd., 657 F.3d 641, 645 (7th Cir. 2011), quoting Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976), nor swallow up issues that are properly
Rooker and Feldman are the only two cases in which the Supreme Court itself has actually applied the doctrine to reject federal jurisdiction. Given the tendency of disappointed litigants to seek new forums to vindicate their claims or defenses, though, the doctrine has been invoked in tens of thousands of circuit and district court decisions since Exxon Mobil. Along with abstention and jurisdictional doctrines, it is part of the arsenal of federalism doctrines that circuit and district judges must consider on a regular basis.
Exxon Mobil teaches that district courts should disclaim jurisdiction only in “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.” 544 U.S. at 284. Phrased that way, the doctrine blocks federal jurisdiction when four elements are present. First, the federal plaintiff must have been a state-court loser. Second, the state-court judgment must have become final before the federal proceedings began. Third, the state-court judgment must have caused the alleged injury underlying the federal claim. Fourth, the claim must invite the federal district court to review and reject the state-court judgment.
Our case law has added to the four elements in Exxon Mobil a fifth that the Supreme Court has not had occasion to address directly. Rooker-Feldman does not apply to bar jurisdiction over a plaintiff‘s federal claim if she did not have a reasonable opportunity to raise her federal issues in the state courts. Andrade, 9 F.4th at 950, quoting Jakupovic v. Curran, 850 F.3d 898, 902 (7th Cir. 2017).
The first two Exxon Mobil elements are satisfied here. Plaintiff lost in state court, and the state-court judgments were final before she brought this action in federal court.
B. The Third Element—Injured by a State-Court Judgment
The third element of the Rooker-Feldman doctrine asks whether the state-court judgments caused the alleged injury underlying the claim. Our case law has developed useful principles for dealing with the injury element. Most basic, as Exxon Mobil teaches, Rooker-Feldman bars claims where only the state-court judgment itself caused the alleged injury underlying the claim. 544 U.S. at 284. See also Swartz, 940 F.3d at 392 (Rooker-Feldman barred claims where only “alleged injury,” the seizure of plaintiffs’ livestock, “was directly caused by the state court‘s orders“); Jakupovic v. Curran, 850 F.3d 898, 903–04 (7th Cir. 2017) (Rooker-Feldman barred claims where defendants simply “executed the state court‘s bond condition and order“); Kelley v. Med-1 Solutions, LLC, 548 F.3d 600, 605 (7th Cir. 2008) (Rooker-Feldman barred claims where defendants could have obtained sought-after attorney fees only by award of state court).
On the other hand, claims based on injuries that are “independent” of the state-court judgment (i.e., injuries that were not caused by that judgment) are not barred. See Exxon Mobil, 544 U.S. at 293 (“If a federal plaintiff ‘present[s]
In another common pattern where Rooker-Feldman does not apply, the federal plaintiff was also a plaintiff in state court, lost in a case seeking relief for injuries inflicted by the state-court defendant, and wants to relitigate the dispute in federal court. Exxon Mobil said what this circuit has long made clear: Rooker-Feldman does not bar federal jurisdiction in such a case. Doctrines of claim- and issue-preclusion will often apply to bar relitigation, see 544 U.S. at 293, quoting GASH Assocs., 995 F.2d at 728, but there is no jurisdictional bar.4
In short, Exxon Mobil‘s injury element hinges on whether the federal claim alleges an injury “caused by the state court judgment” or “an independent prior injury that the state court failed to remedy.” Sykes, 837 F.3d at 742. We now apply this test to plaintiff‘s claims in this case.5
Plaintiff Gilbank‘s central claims allege injuries inflicted by the state-court judgments taking away custody of T.E.H. The only injury plaintiff claims to have suffered after the temporary physical custody hearing held on August 23, 2018 was being deprived of custody of T.E.H. pursuant to the state court‘s orders. We appreciate how serious that injury may have been. State courts have in their hands our lives, liberties, and livelihoods, as well as our property, dignity, and reputations. In cases like this, they have our families in their hands. Some of their decisions are incorrect, as are some federal court decisions. In a much, much higher proportion of cases, though, losing parties believe the courts have erred. See Homola v. McNamara, 59 F.3d 647, 648 (7th Cir. 1995).
The high stakes and the possibility of errors, even egregious errors, do not affect application of the Rooker-Feldman doctrine. The very starting point for the analysis is the assumption that a state-court judgment was wrong and injured the federal plaintiff. See Rooker, 263 U.S. at 415–16 (assuming state court erred); Lennon v. City of Carmel, 865 F.3d 503, 506 (7th Cir. 2017) (“There is no exception for egregious error.” (citing Kelley, 548 F.3d at 603)).
Because plaintiff‘s injury in the loss of custody was “effectuated” only by the state court‘s temporary and longer-term orders on August 23 and October 29, 2018, respectively, those claims based solely on that injury satisfy the third Exxon Mobil element. See Swartz, 940 F.3d at 391. These claims include the alleged violations of: (1) procedural due process for want of notice before the August 23 hearing; (2) state statutes governing protective custody; (3) substantive due process by interfering with family integrity after the court‘s temporary physical custody order; and (4) procedural due process by making fraudulent statements in state courts in the CHIPS petition and later proceedings.
Plaintiff‘s procedural due process claim, alleging that she did not receive notice of the temporary physical custody hearing, satisfies the third element because the failure of notice would have been harmless if the August 23 hearing had gone her way. Her temporary loss of custody of T.E.H. arose from a state-court order. That claimed injury satisfies the third Exxon Mobil element of the Rooker-Feldman doctrine. See 544 U.S. at 284. So too with any alleged violations of state statutes. The only injury these claims allege “was effectuated by” the state court‘s orders. See Swartz, 940 F.3d at 391. Likewise, plaintiff‘s substantive due process claim—interference with family integrity—alleges injury only by the state-court judgments that deprived her of custody of her daughter. On these claims, we move on to the fourth Exxon Mobil element in Part IV.
2. Injuries Complete Before State-Court Judgments
Rooker-Feldman does not apply to plaintiff‘s other claims because they assert injuries that were complete prior to the state court‘s temporary physical custody order of August 23, 2018. Those claims do not satisfy the third Exxon Mobil element. For example, any injury plaintiff suffered when she provided a urine sample on July 3 occurred before the state-court proceedings began. The same is true of any injuries plaintiff suffered by being interrogated without an attorney and evicted from Hoyle‘s apartment on August 21. Likewise, to the extent that plaintiff‘s substantive due process claim alleges interference with family integrity before the state court‘s temporary physical custody order
Plaintiff‘s Fourth Amendment and substantive due process claims relating to the removal of T.E.H. on August 21 involve one extra twist. The state court later approved the initial removal when it found probable cause on August 23. These claims might therefore seem to invite “review and rejection” of the state court‘s finding. But plaintiff‘s injuries flowing from T.E.H.‘s removal began the moment she no longer had custody of her daughter. Any injuries sustained from August 21 until the court order two days later were not caused by the state court‘s order. So even if these claims question “a legal conclusion” that the state court reached later, the claims are for Rooker-Feldman purposes still “independent” of the state court‘s August 23 judgment. See Exxon Mobil, 544 U.S. at 293, quoting GASH Assocs., 995 F.2d at 728. As we explain below in Part VIII, all judges agree that these claims fail on the merits for other reasons. But the fact that the injuries preceded the state court‘s judgments means that these claims do not satisfy the third element under Exxon Mobil, so jurisdiction over these claims is not blocked by Rooker-Feldman. See id.
Finally on this topic, because jurisdiction is proper over these alleged constitutional violations, plaintiff‘s Monell and conspiracy claims, which rely on these same alleged violations, are likewise not barred by Rooker-Feldman.
IV. The Controversial Fourth Element: “Review and Reject” the State Court Judgment
The fourth element under Exxon Mobil is that the federal claim must invite “review and rejection” of the state court judgments in question. 544 U.S. at 284. That element of the Rooker-Feldman doctrine divides this court. I believe that plaintiff‘s claims for damages for injuries inflicted by state court judgments invite “review and rejection” of those judgments, so that Rooker-Feldman bars jurisdiction here. But a majority of the en banc court disagrees in Judge Kirsch‘s opinion, as joined in part by Judge Easterbrook. This Part IV should thus be read as a dissent from Part I of Judge Kirsch‘s opinion.
Among the three opinions in this case, no one disputes that plaintiff Gilbank was a state-court loser (Exxon Mobil‘s first factor), that the state-court judgments were final before she filed her federal case (second), and that she claims that the state-court judgments injured her (third). The majority takes the approach, though, that plaintiff‘s claims based on injuries
inflicted by the state-court judgments do not invite a federal court to “review and reject” those state-court judgments. So long as plaintiff is seeking only monetary damages rather than a federal-court order directly nullifying the state court‘s custody orders, the majority reasons, Rooker-Feldman does not apply and the federal court is free to decide those damages claims on their merits.
On this issue, this en banc decision marks a dramatic departure from this circuit‘s precedents, a departure that I view as erroneous and unjustified. I explain next in Part IV-A why the new majority is misreading Exxon Mobil. Part IV-B addresses this circuit‘s precedents and why a departure from stare decisis is not justified here. Part IV-C explains why the majority‘s new approach to Rooker-Feldman will produce arbitrary, impractical, and troubling results.
A. Exxon Mobil‘s Fourth Element
The majority argues that its new bright-line rule—that Rooker-Feldman does not
The opinion in Exxon Mobil is not as clear as it could have been on the contours of this fourth element—inviting review and rejection of state-court judgments. That is not surprising because it was not the pivotal issue in that case. The federal case in Exxon Mobil did not come close to satisfying the doctrine. The federal case sought coercive relief and was filed just a few weeks after a mirror-image state-court action seeking declaratory relief was filed. That pattern is familiar when parties are maneuvering for advantage in different courts, but it had nothing to do with Rooker-Feldman. The federal action satisfied none of the elements of the doctrine. It was filed before any state-court judgment had become final; the federal plaintiff had not lost in the state courts; without any state-court judgment no injury had been inflicted; and of course there was no state-court judgment to review and reject.
The Exxon Mobil opinion used many verbs to address this fourth element: review, reject, overturn, undo, reverse, set aside, and alter. 544 U.S. at 283–93. This was not the language of legal precision. In referring to the relief being sought in cases barred by Rooker-Feldman, the opinion used language with a decidedly practical bent. The key phrase, “inviting review and rejection,” is not a legal term of art limited to a specific technical meaning. It invites a practical approach, one that cannot be avoided by artful pleading. Elsewhere the opinion said, for example, with emphases added: plaintiffs’ complaints ”essentially invited federal courts of first instance to review and reject unfavorable state-court judgments;” id. at 283; that the doctrine bars a party “from seeking what in substance would be appellate review” in a federal court; id. at 287; or that a new federal action ”in essence, would be an attempt to obtain direct review” of state court decision; id. at 287–88 n.2.6
Until this en banc decision, this circuit has also consistently understood Rooker-Feldman, including this fourth “review and reject” element, in practical terms. On plaintiff‘s four claims that should be barred by the doctrine, the only alleged injury is the deprivation of custody itself, as ordered by the state trial court. So while these claims do not ask the federal district court in so many words “to reverse or modify” those judgments, Rooker, 263 U.S. at 416, the claim is barred because its premise is that the state-court judgments were wrong, and there is “no conceivable way to redress” the alleged interference “without overturning” the state-court judgments ordering that interference, Jakupovic, 850 F.3d at 903, quoting Sykes, 837 F.3d at 743, or, in terms of Exxon Mobil, “reviewing and rejecting” those state-court judgments as incorrect.
Several other considerations, apart from adherence to a long line of circuit precedent, indicate that a practical application fits the doctrine better than the majority‘s approach to Exxon Mobil and decisive reliance on the form of relief sought.
First, if the Rooker-Feldman doctrine really embodied the majority‘s simple,
The focus of Exxon Mobil was more on the source of injuries than on the form of relief. 544 U.S. at 284 (“complaining of injuries caused by state-court judgments“) (emphasis added). Our cases before Exxon Mobil had taught that a good way to keep Rooker-Feldman and preclusion doctrines in their proper lanes was to focus on the cause of the injury. Exxon Mobil took the same approach, and the Court quoted one of our precedents to make its point:
If a federal plaintiff “present[s] some independent claim, albeit one that denies a legal conclusion that a state court has reached in a case to which he was a party..., then there is jurisdiction and state law determines whether the defendant prevails under principles of preclusion.” GASH Assocs. v. Rosemont, 995 F.2d 726, 728 (C.A.7 1993); accord Noel v. Hall, 341 F.3d 1148, 1163–1164 (C.A.9 2003).
Second, the majority does not offer a reason why the Supreme Court would have drawn the majority‘s bright line for these purposes between seeking damages and injunctive relief. It is difficult to see such a reason. Federal courts do not take such an approach when parties invite state courts to review and reject federal-court judgments, as I explain below in Part IV-C. Why would the Supreme Court adopt such an approach when the roles are reversed?
Where the only injury underlying a claim was caused by the state-court judgment, there is simply no sensible way to separate the injury from the judgment that caused it. Redressing the injury—regardless of the form of relief requested—necessarily requires a federal court to review and reject the state-court judgment. Whether the claim asks the federal court to undo the state-court judgment or to compensate the state-court loser for injuries caused by that judgment, the result is the same: the state-court loser is in substance appealing her loss to the federal district court, seeking review and rejection of the state-court decision.
We cannot determine the merits of such a claim “without determining that the state court erred by issuing” its judgment. Kelley, 548 F.3d at 605. In those circumstances, we have explained, “when ‘the injury is executed through a court order, there is no conceivable way to redress the wrong without overturning the order of a state court. Rooker-Feldman does not permit such an outcome.‘” Jakupovic, 850 F.3d at 903, quoting Sykes, 837 F.3d at 743. Both the injury and review-and-reject elements are satisfied in such cases.
The new majority also does not even acknowledge how well-settled our circuit‘s law has been in rejecting its new rule. After Exxon Mobil, we have, until today, consistently rejected the majority‘s position. We have repeatedly applied Rooker-Feldman to claims where federal plaintiffs sought only damages rather than a federal judgment literally vacating or modifying a state-court judgment. We have done so because we have recognized that even when a state-court loser seeks only damages, a federal court is still being invited to review and reject the state-court decision. For our cases making this point after Exxon Mobil, see Bauer v. Koester, 951 F.3d 863, 865–66 (7th Cir. 2020) (Rooker-Feldman barred claim for damages to remedy injuries inflicted by state-court foreclosure judgment); Moore v. Wells Fargo Bank, N.A., 908 F.3d 1050, 1062 (7th Cir. 2018) (same: “Mr. Moore insists he can bring these claims before us because he seeks damages rather than reconsideration of the state court decision, but that assertion denies the substance of what he actually seeks in federal court.“); Lennon v. City of Carmel, 865 F.3d 503, 507 (7th Cir. 2018) (Rooker-Feldman barred claims for damages from traffic fines and points added to driving records imposed in state-court proceedings); Harold v. Steel, 773 F.3d 884, 885–87 (7th Cir. 2014) (Rooker-Feldman barred claim for damages under
Judge Kirsch‘s opinion says nothing directly about this consistent line of authority, which has not been even controversial until today‘s decision. (All the cited cases were unanimous and were joined by, among others, four members of the new six-member majority rejecting them on this point.) Instead, to overcome both Exxon Mobil and the weight of our case law on this issue, the opinion relies on two other decisions of this court, Brokaw v. Weaver, 305 F.3d 660 (7th Cir. 2002), and Johnson v. Pushpin Holdings, LLC, 748 F.3d 769 (7th Cir. 2014). Post at 69–70. We found federal jurisdiction in those decisions, but not on the majority‘s new theory that the plaintiffs had requested only damages.
In Brokaw, we wrote that claims based on injuries sustained “before any court proceedings occurred” could proceed because the plaintiffs had no “reasonable opportunity” to pursue them in state court and, alternatively, the claims were “independent[] of the state court decision.” 305 F.3d at 664–65, 668. Brokaw also said that even if the plaintiffs alleged injuries directly from the state-court judgments, Rooker-Feldman did not apply because the plaintiffs had no opportunity to raise their federal issues in the state courts. The case is
Pushpin Holdings offers some rhetorical support for the majority in dicta, but a closer look at the facts shows that we did not embrace the majority‘s theory there. We certainly did not engage with or purport to depart from the many cases rejecting that theory. Plaintiffs in the case had filed a class action in a state court alleging that Pushpin had filed more than 1,000 “fraudulent” small-claims suits in state court that resulted in default judgments against class members. 748 F.3d at 770–71. After Pushpin removed the case to federal court, the class argued that Rooker-Feldman required remand. Id. at 773. We rejected application of the doctrine, noting without any analysis that Rooker-Feldman “does not bar a federal suit that seeks damages for a fraud that resulted in a judgment adverse” to the federal plaintiff. Id., citing Nesses v. Shepard, 68 F.3d 1003, 1004 (7th Cir. 1995), and cases cited in Truong v. Bank of America, N.A., 717 F.3d 377, 383–84 (5th Cir. 2013). Pushpin‘s language, if not its holding, would thus seem to support not the majority‘s new rule but a “fraud exception” to Rooker-Feldman, which does not exist, as explained below in Part VI, which is a majority en banc decision.
Moreover, our later decision in the Pushpin case made this limit clear. We affirmed the district court‘s dismissal for failure to state a claim. We made clear then that the alleged fraud occurred prior to the state-court proceedings. Johnson v. Pushpin Holdings, LLC, 821 F.3d 871, 873, 875–76 (7th Cir. 2016) (plaintiffs alleged that defendants violated the state consumer protection law when they failed to register as a debt collection agency, sued for an unconscionably high amount, and forged plaintiffs’ signatures on guaranties and leases).
In short, neither Brokaw nor Pushpin was on point. Neither adopted the majority‘s new rule that a federal plaintiff can avoid Rooker-Feldman by asking only for damages for injuries inflicted by state-court judgments.7
Under these circumstances, I need not say anything original here about the familiar principle of stare decisis:
Overruling precedent is never a small matter. Stare decisis—in English, the idea that today‘s Court should stand by yesterday‘s decisions—is “a foundation stone of the rule of law.” Michigan v. Bay Mills Indian Community, 572 U.S. 782, 798 (2014). Application of that doctrine, although “not an inexorable command,” is the “preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, 501 U.S. 808, 827–828 (1991). It also reduces incentives for challenging settled precedents, saving parties and courts the expense of endless relitigation.
Kimble v. Marvel Entertainment, LLC, 576 U.S. 446, 455 (2015). Or, as this court put it a few years earlier:
if the fact that a court considers one of its previous decisions to be incorrect is a sufficient ground for overruling it, then stare decisis is out the window, because no doctrine of deference to precedent is needed to induce a court to follow the precedents that it agrees with; a court has no incentive to overrule them even if it is completely free to do so. The doctrine of stare decisis imparts authority to a decision, depending on the court that rendered it, merely by virtue of the authority of the rendering court and independently of the quality of its reasoning. The essence of stare decisis is that the mere existence of certain decisions becomes a reason for adhering to their holdings in subsequent cases.
Tate v. Showboat Marina Casino P‘ship, 431 F.3d 580, 582–83 (7th Cir. 2005) (citation and internal quotation marks omitted).
I agree that stare decisis is not “an inexorable command,” but one can reasonably expect the majority (a) to acknowledge what it is doing to circuit precedent and (b) to offer some compelling justification for doing so beyond disagreement with those precedents. The majority here does neither. It does not rely on any intervening Supreme Court precedent or statutory amendment. Nor does it assert that our established Rooker-Feldman precedents have been causing active mischief and harm. To the contrary, Judge Kirsch‘s opinion goes out of its way to assert that the majority‘s new course under Rooker-Feldman will have little or no practical impact. The theory (or hope) seems to be that all the plaintiffs whose cases will now be subject to federal jurisdiction will still lose on the merits based on immunity doctrines and claim and issue preclusion. Perhaps, but if that‘s what the majority expects, what‘s the point of overruling our post-Exxon Mobil precedents applying Rooker-Feldman to damages claims?
C. Arbitrary, Impractical, and to What End?
None of this adds up to a persuasive case for overruling well-established circuit precedents. To the contrary, the more likely results will be arbitrary, inconsistent, and impractical. We will add to the cost and delays of efforts to relitigate child custody, mortgage foreclosures, and other disputes that seem especially prone to stubborn relitigation.
Rooker-Feldman has arisen most often in child-custody cases and mortgage foreclosures. The federal plaintiffs in such cases are often pro se, since lawyers are more likely than pro se parties to anticipate the obstacles they will face in going to federal court to challenge a state-court decision. With or without counsel, these state-court losers will now be able to establish federal jurisdiction in the district courts to pursue their claims. Further, consider how often state courts issue temporary restraining orders and preliminary injunctions that cause significant injury to
This case is about a family-law matter, child custody. The high stakes and strong emotions in such matters are obvious. They provide powerful motives to treat a state-court loss as not final, as reflected in the frequency of such cases on our docket, especially with pro se plaintiffs. We also see frequent efforts to continue litigating state-court losses in federal challenges to foreclosures on home mortgages. Under the majority‘s new rule, federal courts will now have jurisdiction over claims for damages based on alleged due process violations in state-court foreclosure proceedings. We can expect to see even more such challenges. And by categorically excluding damages claims from Rooker-Feldman, the majority is also inviting federal challenges to state-court decisions granting temporary restraining orders and preliminary injunctions that inflict injury on the enjoined parties.
It may be that absolute judicial immunity will protect some defendants at the motion-to-dismiss stage—most likely state-court judges and those carrying out their orders. Other defendants will not have that option, particularly in child-custody and mortgage-foreclosure cases. More fundamental, the majority is overlooking important practical differences between resolving a case based on the Rooker-Feldman jurisdictional doctrine and relying instead on preclusion and immunity doctrines.
The most important difference is that doctrines of claim preclusion and issue preclusion (also known as res judicata and collateral estoppel) are equitable doctrines. They are subject to equitable exceptions and significant state-to-state variation. In Illinois, for example, claim preclusion “is an equitable doctrine that is not applied when it is fundamentally unfair to do so.” Parker v. Lyons, 757 F.3d 701, 706 (7th Cir. 2014) (internal quotation omitted), overruled on other grounds by Hadzi-Tanovic v. Johnson, 62 F.4th 394 (7th Cir. 2023). We have said that in Wisconsin, on the other hand, while “the doctrine of issue preclusion includes a ‘fairness’ element, claim preclusion does not. The Wisconsin Supreme Court has not adopted a general fairness factor as part of its claim-preclusion doctrine.” Adams Outdoor Advert. Ltd. P‘ship v. City of Madison, 56 F.4th 1111, 1118 (7th Cir. 2023), citing Kruckenberg v. Harvey, 279 Wis. 2d 520, 541–42, 694 N.W.2d 879, 890. But cf. Friends of Milwaukee‘s Rivers v. Milwaukee Metro. Sewerage Dist., 382 F.3d 743, 765 & n. 17 (7th Cir. 2004) (remanding for consideration of Wisconsin “fairness” exception to claim preclusion: “[c]laim preclusion may be disregarded in appropriate circumstances when the policies favoring preclusion of a second action are trumped by other significant policies. Claim preclusion ... is a principle of public policy applied to render justice, not to deny it. Any exception to claim preclusion, however, must be limited to special circumstances or the exceptions will weaken the values of repose and reliance.“), quoting Sopha v. Owens-Corning Fiberglas Corp., 230 Wis.2d 212, 236, 601 N.W.2d 627, 638 (1999).
When it comes to issue preclusion based on Wisconsin state court decisions, the “fundamental fairness step” requires the court to “determine whether it is fundamentally fair to employ issue preclusion given the circumstances of the particular case at hand.” First Weber Grp., Inc. v. Horsfall, 738 F.3d 767, 773 (7th Cir. 2013), quoting Mrozek v. Intra Fin. Corp., 281 Wis.2d 448, 464, 699 N.W.2d 54, 61 (2005). Relevant factors include “the availability of review of the first judgment, differences in
For these reasons, this circuit‘s precedents under Rooker-Feldman offer a much better prospect for preventing unjustified relitigation of state-court judgments than the looser equitable evaluations permitted or required under doctrines of claim and issue preclusion, upon which the majority places so much reliance.8
As for immunity doctrines, absolute judicial immunity should protect judges and those who are carrying out their commands. Other federal defendants, including the state-court plaintiffs and their agents (such as the social workers here) will probably have to fend for themselves without absolute immunity. Qualified immunity may help them in some cases, but not at the pleading stage if the federal plaintiff accuses them of misleading the state courts. Use of these other doctrines seems to me likely to lead to longer and more extensive litigation seeking federal review and rejection of state-court judgments.
Consider what discovery and a trial would look like in this case or similar child-custody cases, or in mortgage-foreclosure cases. To award the damages this plaintiff seeks on these four claims, the federal court (and probably a jury) would need to put the Wisconsin trial court‘s proceedings under a microscope. The federal trial would need to focus on the evidence before the state court, its weight and credibility, and even which factual and legal arguments were presented to the state court. A jury simply could not rule in favor of plaintiff on any of these claims without finding that the state court‘s judgments about custody of T.E.H. were wrong on the merits.
The merits of plaintiff‘s claims here also pose obvious questions of causation, particularly given the evidence of her habitual methamphetamine abuse. It is easy to imagine a defendant in this federal case seeking to call as a witness the state-court judge to explain whether particular evidence, especially allegedly false evidence, did or did not make a difference in the state-court decisions that injured the plaintiff. Perhaps such questions of materiality could be decided fairly without such testimony, but perhaps not. Consider the predicament of a county social worker. Her job is to try to protect vulnerable children from neglect and abuse. She faces a federal jury trial where the plaintiff seeks compensatory and punitive damage sufficient to bankrupt her. She would be entitled to offer evidence showing that, even if she presented an incomplete and incorrect picture of the case to the state court, the errors would not have made any difference because the mother was in denial about a serious methamphetamine addiction.
Judge Kirsch dismisses these concerns about federal-state friction as overridden by his view of the scope of our obligatory jurisdiction. Post at 75. The same response might be made to many fundamental doctrines of federalism, including different varieties of abstention and some applications of ripeness, mootness, and standing. All of those doctrines can keep federal courts from ruling on the merits of cases otherwise within their jurisdiction. The majority‘s dismissal of these concerns also stands in sharp contrast to federal courts’ reactions to litigants’ attempts to avoid the effects of federal-court judgments by seeking relief in state courts. Those reactions have a distinctly practical side to them that is missing in the majority‘s decisive reliance on the form of relief sought in the second action.
For example, in Matter of VMS Securities Litigation, 103 F.3d 1317 (7th Cir. 1996), overruled in part on other ground by Envision Healthcare, Inc. v. PreferredOne Ins. Co., 604 F.3d 983 (7th Cir. 2010), a federal district court approved a class settlement of securities law claims. A group of class members who had not opted out were unhappy with the settlement. Rather than appeal in the federal courts, they brought a new claim for damages in a state court. We affirmed an injunction against that state-court litigation, and we held that the
With this comparison, I am not suggesting that a state court would have any business trying to enjoin this federal litigation. But the federal courts’ pragmatic applications of
To sum up the grounds for this dissent from the majority‘s new decision not to apply Rooker-Feldman if the federal plaintiff seeks only damages for injuries inflicted by state-court judgments, the majority‘s new rule: (A) is not required by the Supreme Court‘s opinion in Exxon Mobil, which signaled a more practical approach; (B) overrules a long and consistent line of precedent from this court, and does so
Before moving on, I must acknowledge that Judge Kirsch‘s opinion denies that it is actually adopting the bright-line rule that I read in it. The opinion suggests in a curious dictum that Rooker-Feldman might bar a federal claim for damages where the challenged state-court judgment awarded damages. Post at 74. The theory seems to be that a federal damages award “would nullify or modify” the state-court judgment. To the contrary, such an award on the majority‘s theory would not “modify” a state-court judgment at all. Such an award would “nullify” a state-court judgment awarding damages only under the more practical approach to the “review and reject” element of Exxon Mobil advocated in this opinion.
In other words, that concession undercuts the foundation of the new majority rule. The concession is built on the premise that “review and reject” must mean something broader than directly vacating a state-court judgment. Still, apart from exposing the contradiction in the majority position, the concession also seems unlikely to have much practical effect. Such cases seeking damages in a federal court to undo or offset damages awarded by a state court seem to be rare. Only one such actual case is cited, Bauer v. Koester, 951 F.3d 863 (7th Cir. 2020), and we affirmed a Rooker-Feldman dismissal there under longstanding principles the new majority rejects here.
V. Opportunity to Raise Federal Issues in State Court
This Part V is the opinion of an en banc majority. In opposing application of the Rooker-Feldman doctrine, plaintiff also argues that she had no reasonable opportunity to raise her claims in state court.
Even if a claim otherwise seems barred by Rooker-Feldman, this court has recognized a narrow exception to the doctrine: “if a plaintiff lacked a reasonable opportunity to litigate” an issue in state court, then the claim may proceed in federal court. Kelley, 548 F.3d at 605; see also Long v. Shorebank Dev. Corp., 182 F.3d 548, 558 (7th Cir. 1999), citing Wood v. Orange County, 715 F.2d 1543, 1547 (11th Cir. 1983). The “reasonable opportunity” exception operates as something of a safety valve with respect to the review-and-reject element, allowing a claim to go forward where “factors independent of the actions of the opposing parties,” such as state-court procedural barriers, prevented the plaintiff from asserting her rights in state court. Jakupovic, 850 F.3d at 904, quoting Taylor v. Federal Nat‘l Mortg. Ass‘n, 374 F.3d 529, 534–35 (7th Cir. 2004) (cleaned up). Essentially, if an issue could not have been raised in the state court, the state court‘s judgment could not have encompassed that issue, and we could not review and reject that judgment by deciding it.
We have carefully limited the “reasonable opportunity” safety valve lest the exception swallow the rule. “Reasonable opportunities” are not only those available “in the particular state court” that rendered the judgment adverse to the federal plaintiff. Kelley, 548 F.3d at 606 (finding a “reasonable opportunity” where plaintiff could have transferred “small claims cases to the plenary docket for trial by jury“); see also Beth-El All Nations Church v. City of Chicago, 486 F.3d 286, 292–93 (7th Cir. 2007) (state-court judgment could have been “attacked at any time“). Rather, state law must “have effectively precluded” raising the issue in state court for the federal plaintiff to succeed on
Only twice have we found the federal plaintiff had no “reasonable opportunity” to raise the federal issue in state court. One was Long, where the state-court “forcible entry and detainer” proceedings were summary in nature, so that Long‘s federal issues could not be heard. Id. at 559–60. The other was Brokaw, where the plaintiff was not “even present” at a hearing “and was not represented … by a guardian ad litem or an attorney.” 305 F.3d at 668.
The situation here was quite different. Brokaw is easily distinguishable because Gilbank was represented in state court by an attorney, and T.E.H. was represented by a guardian ad litem. Long is distinguishable because Gilbank had ample opportunities to raise her federal issues, and actually did raise them.
Gilbank argues that two procedural barriers prevented her from asserting her rights in state court. First, she contends that her constitutional challenges were simply beyond the scope of the custody and placement hearings. She points out that an initial custody hearing is held “to determine whether any party wishes to contest an allegation that the child … is in need of protection or services.”
In fact, however, the Wisconsin Children‘s Code imposed no limits comparable to those in Long. If a party believes that an allegation is fraudulent or that relief would violate a constitutional right, Wisconsin state law gives her the right to
raise the issue in the CHIPS proceedings. The Children‘s Code instructs that it “shall be liberally construed” so that “children and all other interested parties are assured fair hearings and their constitutional and other legal rights are recognized and enforced.”
Second, plaintiff contends that “the strict, mandatory timeframes within which various stages of a CHIPS proceeding must take place” precluded her “from effectively raising her claims.” The limitations period for her claims under
In fact, plaintiff actually raised these issues in state court. Take plaintiff‘s substantive due process claim. She did not say in so many words that removing her daughter from her custody “is a violation of substantive due process under the United States Constitution,” but throughout the proceedings she challenged the relevant officials’ alleged interference with family integrity. In her September 5, 2018 motion to dismiss, plaintiff essentially stated a substantive due process violation, asserting “the important and defendable and inalienable rights of a parent and child relationship.” That language signaled with sufficient clarity that she was invoking a federal substantive due process right to family integrity.
Plaintiff also repeatedly challenged her lack of notice for the initial temporary physical custody hearing, first sending a letter to the presiding judge, then filing motions to dismiss or reopen those hearings for lack of notice, and finally asking permission to take the issue “to a higher court.”
So too with plaintiff‘s claims that state procedural rules were violated and that officials made fraudulent statements to the state court. Plaintiff challenged the failure to notify her of the initial hearing, in violation of state statutes, in her September 2018 motion to dismiss. And in her February 2019 motion to dismiss, plaintiff raised myriad state-law challenges and her claims of fraud.
We recognize that plaintiff believes the state court decided these and many other issues incorrectly. But again, Rooker-Feldman is built on the assumption that a state court has erred in a way that injured the federal plaintiff. See Rooker, 263 U.S. at 415–16 (“If the [state-court] decision was wrong, ... no court of the United States other than this court could entertain a proceeding to reverse or modify the [state-court] judgment[.]“). And again, there is no Rooker-Feldman exception for egregious errors or serious injuries.
If the federal plaintiff actually raised the challenge in state court, there can be no recourse to the “reasonable opportunity” safety valve. As the Supreme Court said in Rooker, if the constitutional questions presented to the federal court actually arose in the state-court proceedings, “it was the province and duty of the state courts to decide them,” and the injured party‘s recourse is to “an appropriate and timely appellate proceeding” in the state courts and, if necessary, in the Supreme Court of the United States. 263 U.S. at 415.
VI. No “Fraud Exception”
This Part VI is also the opinion of an en banc majority. In opposing application of Rooker-Feldman, plaintiff argues that some of the defendants defrauded the state court, lying to the court about her case and thus causing her injuries inflicted by the state-court judgments. Put another way, plaintiff tries to invoke what has sometimes erroneously been called a “fraud exception” to Rooker-Feldman‘s jurisdictional bar.9
The notion of a “fraud exception” to Rooker-Feldman seems to have germinated in Nesses v. Shepard, 68 F.3d 1003 (7th Cir. 1995), a case that we recently overruled in part in Hadzi-Tanovic. In Nesses, the federal plaintiff “alleged ‘a massive, tentacular conspiracy’ by the defendants to ‘engineer’ his defeat in state court.” Hadzi-Tanovic, 62 F.4th at 402, quoting Nesses, 68 F.3d at 1004. We acknowledged that the plaintiff could not “show injury from the alleged conspiracy unless” the state-court decision “was erroneous,” but we concluded that there was jurisdiction so long as the plaintiff claimed that “people involved in the [state-court] decision violated some independent right of his, such as the right (if it is a right) to be judged by a tribunal that is uncontaminated by politics.” Nesses, 68 F.3d at 1005. If Rooker-Feldman barred the claim, we reasoned, “there would be no federal remedy for a violation of federal rights whenever the violator so far succeeded in corrupting the state judicial process as to obtain a favorable judgment.” Id.
We later applied this same reasoning in two other cases involving allegations of extensive judicial corruption—Loubser v. Thacker, 440 F.3d 439 (7th Cir. 2006), and Parker v. Lyons, 757 F.3d 701 (7th Cir. 2014). Hadzi-Tanovic overruled these cases as well, putting an end to the “corruption exception.” 62 F.4th at 402. But Hadzi-Tanovic expressly left open the status of a fraud exception, noting the tension in this circuit‘s case law on that subject. Id. at 406–07. We noted there that two of our opinions have been read to extend Nesses’ reasoning from claims of “judicial corruption” to claims of “third-party fraud.” We explain here why that reading is mistaken.
In Brokaw v. Weaver, decided before Exxon Mobil, the federal plaintiff brought claims for violations of procedural and substantive due process and the Fourth Amendment, alleging “that the defendants conspired with state actors to file false claims of child neglect so as to cause her and her brother to be removed from their parents’ home.” 305 F.3d at 669–70. Without prior judicial authorization, state actors had removed the children from the home, so both the conspiracy and the removal were effectuated “prior to any judicial involvement.” Id. at 662–63, 665. About a month later, a state judge adjudicated the children wards of the state. Id. at 662–63. We concluded “that the Nesses reasoning” applied because the federal plaintiff was “not merely claiming that the [subsequent]
In discussing Nesses, however, the Brokaw opinion observed that some of Nesses’ language “indicates that, even if [plaintiff] would not have suffered any damages absent the state order of wardship, her claim is not barred by the Rooker-Feldman doctrine ....” Id. at 667. This was not Brokaw‘s holding but merely a response to an argument by the defendants. It was not essential to Brokaw‘s holding because the federal plaintiff had suffered an injury independent of the state-court judgment. Indeed, Brokaw went on to observe that this language from Nesses was in direct conflict with language from Long: “because ‘[a]bsent the eviction order, [plaintiff] would not have suffered the injuries for which she now seeks to be compensated,’ her claims appeared to be barred under Rooker-Feldman.” Id., quoting Long, 182 F.3d at 557. Brokaw found that Long‘s “reasoning seemingly support[ed] the defendants’ argument that” the Brokaw plaintiff‘s claims were barred by Rooker-Feldman. Id.
Brokaw therefore did not find jurisdiction solely or even partially on a theory that an allegation that the defendants had misled or defrauded the state court made the claims “independent” of the state-court judgment. Rather, we took a belt-and-suspenders approach to jurisdiction, concluding that, “even assuming that [the] constitutional claims [were] not independent of the state court proceedings,” they were not barred by Rooker-Feldman because plaintiff, who was neither present at the wardship hearing nor represented by a guardian ad litem, “lacked a reasonable opportunity to present” her claims in state court. Id. at 668. Thus, although Brokaw has been cited as creating a “fraud exception” to Rooker-Feldman, the case provides only tenuous support for it.
Our opinion in Johnson v. Pushpin Holdings, LLC also cited Nesses for the proposition that there is a “fraud exception” to Rooker-Feldman. In Pushpin, plaintiffs filed a class action in Illinois state court, alleging that Pushpin had filed more than 1,000 “fraudulent” small-claims suits in state court that resulted in default judgments against class members. 748 F.3d at 770–71. After Pushpin removed to federal court, the class argued that Rooker-Feldman required remand. Id. at 773. We rejected application of the doctrine, noting without any analysis that Rooker-Feldman “does not bar a federal suit that seeks damages for a fraud that resulted in a judgment adverse” to the federal plaintiff. Id., citing Nesses, 68 F.3d at 1004, and cases cited in Truong v. Bank of America, N.A., 717 F.3d 377, 383–84 (5th Cir. 2013). Pushpin‘s language, if not its holding, would thus seem to support a “fraud exception” to Rooker-Feldman. Our later decision in that case affirmed the district court‘s dismissal for failure to state a claim. We made clear then that the alleged fraud occurred prior to the state-court proceedings. Pushpin Holdings, 821 F.3d at 873, 875–76 (plaintiffs alleged that defendants violated the
While some of Pushpin‘s language endorses a “fraud exception,” the case as a whole does not support it. Fraud was not committed during the state-court proceedings; rather, alleged fraud external to those proceedings formed the basis of the state-court actions. The same was true in Brokaw, where the alleged fraud occurred “prior to any judicial involvement.” 305 F.3d at 665. In short, on closer scrutiny, neither Brokaw nor Pushpin offers robust support for the “fraud exception” attributed to them.10
To the extent they offer any traction for a “fraud exception,” Brokaw and Pushpin are inconsistent with the great weight of Seventh Circuit case law, including decisions after Exxon Mobil. Just a year after Brokaw, we held that Rooker-Feldman barred claims where the federal plaintiffs alleged that a debt collector had misrepresented the amount of damages recoverable in state court. Epps v. Creditnet, Inc., 320 F.3d 756, 757–60 (7th Cir. 2003). Those claims could not proceed in federal court because they asked the federal courts “to review the state court judgment,” and the plaintiffs were not injured “until the state court entered judgment against them.” Id. at 759.
In Kelley, decided after Exxon Mobil, we held that Rooker-Feldman barred jurisdiction over claims where the “defendants needed to prevail in state court in order to capitalize on [their] alleged fraud.” 548 F.3d at 605. Such claims would “ultimately require us to evaluate the state court judgments,” for we “could not determine that defendants’ representations and requests” in state court were fraudulent “without determining that the state court erred by issuing [its] judgments.” Id.
So too in Harold, where the federal plaintiff argued that “false statements” made by his state-court opponent, “rather
In Mains v. Citibank, N.A., 852 F.3d 669 (7th Cir. 2017), we made this point crystal clear. The federal plaintiff argued that a state-court foreclosure judgment was erroneous because it rested on a fraud perpetrated by the defendants. We said that such a claim presented “precisely what Rooker-Feldman prohibits.” Id. at 676. “If we were to delve into the question whether fraud tainted the state court‘s judgment, the only relief we could give would be to vacate that judgment. That would amount to an exercise of de facto appellate jurisdiction ....” Id. A federal forum would simply be unnecessary because the “state‘s courts are quite capable of protecting their own integrity.” Id. To avoid Rooker-Feldman, the plaintiff would need to pursue “damages for independently unlawful conduct.” Id. at 675.11
More recently in Swartz, we again rejected the theory that allegations of “false claims” and “bad faith actions” on the part of the state-court opponents take a case outside Rooker-Feldman. 940 F.3d at 391–92. Relying on Kelley, Harold, and Mains, we noted that such claims are “routinely dismissed under Rooker-Feldman.” Id. at 392. “To find that the defendants acted wrongfully in seizing the [property at issue] would call into question the state court‘s judgment,” which had ordered the seizure. Id. at 391.
Most recently, in Bauer, the federal plaintiffs sought damages for the defendants’ alleged “collusion to introduce forged evidence” in state-court foreclosure proceedings. 951 F.3d at 866. We held that Rooker-Feldman barred the suit “because any finding in favor of the [plaintiffs] would require us to contradict the state court‘s orders.” Id. Pointing to Kelley and Swartz, we emphasized that, “were it not for the state court‘s foreclosure order and order awarding additional interest, no injury would have resulted from the allegedly forged escrow exhibit or the citations to discover assets. Indeed, the defendants needed to prevail in the state court to effectuate their alleged fraud.” Id.
To be clear, we are not disagreeing with the results in Brokaw and Pushpin. Brokaw correctly allowed the claims to proceed under the “reasonable opportunity” safety valve. The alleged injuries in Pushpin occurred before the state-court proceedings
We said in Hadzi-Tanovic that failing to apply Rooker-Feldman where claims allege injuries based on state-court corruption would “open a large loophole” in the doctrine, one that “has not been endorsed by the Supreme Court.” 62 F.4th at 401–02. The same is true with a so-called “fraud exception.” The Supreme Court has never suggested that Rooker-Feldman does not apply to claims that sound in fraud. If a state-court loser can challenge a state-court judgment in federal court merely by alleging fraud, that exception could too easily swallow the rule.
As we said in Iqbal, Rooker-Feldman is simply not concerned “with why a state court‘s judgment might be mistaken.” 780 F.3d at 729. While “fraud is one such reason[,] there are many others.” Id. “The reason a litigant gives for contesting the state court‘s decision cannot endow a federal district court” with jurisdiction that it does not otherwise have. Id. In short, “fraud accusations do not change the calculus.” Matter of Lisse, 921 F.3d 629, 641 (7th Cir. 2019).
VII. The Effect of Heck v. Humphrey
Judge Easterbrook‘s separate opinion argues for a different reason for dismissal of the four claims that the judges joining this opinion find barred by Rooker-Feldman. He treats those claims for injuries inflicted by state-court judgments as not yet having accrued, applying the principles underlying Heck v. Humphrey, 512 U.S. 477 (1994). Perhaps Rooker-Feldman and Heck share deep roots that call for further exploration. See the academic articles cited in Judge Easterbrook‘s opinion, including Stephen I. Vladeck, The Increasingly Unflagging Obligation: Federal Jurisdiction after Saudi Basic and Anna Nicole, 42 Tulsa L. Rev. 553 (2007). Nevertheless, the proposed approach would amount to a dramatic and unprecedented expansion of Heck beyond cases complaining about the duration of confinement in criminal cases. I am not prepared to take that step.
The petitioner in Heck was a state prisoner who sued for damages, alleging that the defendants had violated his constitutional rights and caused his imprisonment. The Supreme Court held that his claims were not yet ripe—had not yet accrued— because he had not shown that his conviction or sentence had been reversed on direct appeal, expunged by executive order, declared invalid by an authorized state tribunal, or called into question by a federal writ of habeas corpus. 512 U.S. at 486–87. The Supreme Court later took a modest step expanding Heck to cases seeking damages for the use of invalid prison disciplinary procedures to deprive a prisoner of good-time credits affecting the length of imprisonment. Edwards v. Balisok, 520 U.S. 641 (1997).
Nothing on the surface of Heck or Balisok indicates broader extension of their rule to any other categories of federal cases seeking damages for injuries inflicted by state-court judgments. Judge Easterbrook asserts, however, that we must now “treat Heck as generally applicable to state-court judgments that have not been set aside,” post at 63, based on this court‘s decision in Savory v. Cannon, 947 F.3d 409 (7th Cir. 2020) (en banc). Savory decided a question of accrual for purposes
Regarding Heck, I should also address Judge Kirsch‘s reliance upon it and his suggestion that my view of Rooker-Feldman would leave Heck with no work to do. Post at 76. It‘s an interesting and creative argument, but it loses sight of history. Lower federal courts have long had an express grant of jurisdiction to review criminal judgments of state courts, in the form of writs of habeas corpus, at least in the wake of Moore v. Dempsey, 261 U.S. 86 (1923), Brown v. Allen, 344 U.S. 443 (1953), and similar cases, and the enactment of
VIII. Claims Not Subject to Rooker-Feldman
The district court granted summary judgment for defendants on the merits of all claims it found were not barred by Rooker-Feldman. All members of the court agree and affirm summary judgment for defendants on those claims. This portion of this opinion is for an en banc majority.
A. Hypothetical Jurisdiction
Before addressing the merits of those claims, we consider plaintiff‘s argument on appeal that the district court erred by exercising “hypothetical” jurisdiction over them. The district court was a bit ambiguous with respect to the remaining claims. At one point, the court wrote: “even if I assumed that Gilbank suffered injuries that were not caused by ... the state court‘s decisions, Gilbank has not presented evidence to support any constitutional violations” with respect to “(1) the warrantless urinalysis; (2) the interrogation without an attorney at the police station; and (3) the denial of due process.” Gilbank, 2021 WL 5865453, at *6. Adding to the room for argument, the final judgment entered under
Plaintiff reads “even if I assumed” to mean the district court first concluded that
We are not persuaded there was such an error here. First, the district court‘s opinion as a whole shows that the court did not disclaim jurisdiction over all of plaintiff‘s claims. Summarizing its decision in its introduction, the court wrote:
Gilbank‘s primary injury—loss of custody of her daughter—was the result of the state juvenile court decision. For reasons explained in this opinion, this court does not have authority to review state court decisions. ... The other injuries about which Gilbank complains—the warrantless urine test, denial of counsel, and denial of due process—were either already addressed by the state juvenile court or are not constitutional violations.
Gilbank, 2021 WL 5865453, at *1. That is not the language of hypothetical jurisdiction; it shows the district judge carefully parsed the limits of Rooker-Feldman. That is also how the district judge concluded his opinion:
In sum, most of Gilbank‘s claims are based on injuries that were either caused by the state juvenile court‘s decision [i.e., Rooker-Feldman applied] or were considered and rejected already by a state court [i.e., claim and/or issue preclusion applied]. This court cannot provide Gilbank relief on those claims. Gilbank‘s other claims lack any evidentiary basis [i.e., plaintiff loses on the merits]. Defendants are entitled to summary judgment.
Second, on those claims properly before the district court, defendants moved for summary judgment on both the merits and jurisdictional grounds, and plaintiff moved for summary judgment on the merits. Plaintiff therefore argued or had an opportunity to argue the merits of all her claims. Since we have determined that jurisdiction is proper over some claims, we may affirm the district court‘s grant of summary judgment with respect to those claims on any ground supported by the record so long as plaintiff “had an opportunity to contest the issue.” O‘Brien v. Caterpillar Inc., 900 F.3d 923, 928 (7th Cir. 2018). All judges of this court agree that we may reach those claims for which there is jurisdiction, and as we explain next, agree to affirm summary judgment on the merits.
B. The Merits of Remaining Claims
1. Unreasonable Search – Urine Sample
Plaintiff‘s unreasonable-search claim fails on the merits. Consent negates any claim to an unreasonable search. United States v. Ahmad, 21 F.4th 475, 478 (7th Cir. 2021) (“A search authorized by consent is wholly valid.“), quoting Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973). In proposed findings of fact for summary judgment, plaintiff did not dispute that she consented to the urinalysis. Her undisputed consent defeats the claim.
2. Unreasonable Seizure & Violation of Substantive Due Process – Removal of T.E.H.
Plaintiff‘s unreasonable-seizure and substantive-due-process claims based on the removal of T.E.H. in the course of her traffic stop and arrest on August 21, 2018 also fail on the merits. On that day, T.E.H. was not seized by the government or by anyone else. Rather, when plaintiff was facing arrest that day, she called Hoyle and asked him to come care for
3. Denial of Due Process – Interrogation Without an Attorney
Plaintiff‘s Fifth Amendment claim also fails on the undisputed facts. It is true that, once Miranda warnings have been given, if the person under interrogation “states that he wants an attorney, the interrogation must cease until an attorney is present.” Miranda v. Arizona, 384 U.S. 436, 474 (1966). But it is also true that, even if questioning continues, no violation of the Fifth Amendment occurs unless and until a statement is used in a criminal case against the person interrogated. Chavez v. Martinez, 538 U.S. 760, 769 (2003). Plaintiff‘s statements to Detective Iverson and social worker Heinzen-Janz were never introduced against her in a criminal trial. Her Fifth Amendment right against self-incrimination therefore was not violated. Defendants are entitled to summary judgment on the merits of this claim.
4. Unreasonable Seizure – Unlawful Eviction
Plaintiff also claims that she was unreasonably seized when she was evicted from her home on August 21, 2018. Plaintiff waived this argument by failing to develop it beyond saying only that she suffered a “warrantless” and “unlawful eviction.” See Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir. 2012) (“arguments that have been raised may still be waived on appeal if they are underdeveloped, conclusory, or unsupported by law“).
5. Substantive Due Process Before the Temporary Custody Order
We have long recognized a substantive due process “right to familial integrity in the context of action by child protective services.” Sebesta v. Davis, 878 F.3d 226, 233 (7th Cir. 2017). That right is subject to limits. The “interests in familial integrity must be weighed against the state‘s interest in protecting children from harm.” Id. To interfere lawfully with family integrity, caseworkers must have “‘some definite and articulable evidence giving rise to a reasonable suspicion’ of past or imminent danger of abuse before they ... take a child into protective custody” or otherwise interfere with a family unit. Xiong v. Wagner, 700 F.3d 282, 291 (7th Cir. 2012), quoting Hernandez ex rel. Hernandez v. Foster, 657 F.3d 463, 478 (7th Cir. 2011). “Reasonable suspicion” means that the state actor has “more than a hunch but less than probable cause.” Id., quoting Hernandez, 657 F.3d at 478. This “reasonable suspicion” standard applies to all of defendants’ actions leading up to plaintiff‘s arrest.
We doubt very much that any of the defendants’ investigative conduct alleged by plaintiff amounted to interference with family integrity. In any event, the undisputed facts show that defendants’ conduct before the state-court proceedings began was justified. When Detective Iverson and social worker Heinzen-Janz performed a welfare check at Hoyle‘s apartment on June 29, 2018, they did so based on the report of an anonymous caller that Gilbank and T.E.H. appeared to be living in Hoyle‘s garage during hot summer weather. When they returned to Hoyle‘s apartment on July 3, it was at plaintiff‘s request. When they asked plaintiff to provide a urine sample, they knew that she had a pending charge for methamphetamine possession and a history of drug
6. Conspiracy Under 42 U.S.C. § 1985
Section 1985(3) of
7. Monell Claim Against the Marshfield Police Department
Similarly, to succeed on a Monell claim seeking to hold Marshfield liable for constitutional violations by individual
officers, the plaintiff must show the deprivation of a federal right. Helbachs Café LLC v. City of Madison, 46 F.4th 525, 530 (7th Cir. 2022), citing Monell v. Department of Social Services, 436 U.S. 658 (1978). Plaintiff‘s Monell claim cannot survive summary judgment in the absence of an underlying violation of federal law.
Conclusion
Federal jurisdiction is proper over plaintiff‘s claims based on alleged injuries that were complete before the state-court proceedings began, and on those claims we affirm summary judgment on the merits for the defendants. On plaintiff‘s claims alleging injuries inflicted by the state-court judgments, dismissal is also affirmed for the reasons set forth in Parts I–III and V–VIII of this opinion and Judge Easterbrook‘s opinion.
AFFIRMED.
EASTERBROOK, Circuit Judge, concurring in the judgment. I agree with Judge Hamilton that the Rooker-Feldman doctrine does not have an exception for bad conduct during the state suit. The doctrine rests on the Supreme Court‘s view that its jurisdiction under
But I agree with Judge Kirsch that the Rooker-Feldman doctrine does not deprive federal district courts of jurisdiction to award damages for injury caused by a state court‘s judgment. This is so because damages do not modify a judgment and are not a form of appellate review. I join Part I of Judge Kirsch‘s opinion.
If this were litigation under state law, in federal court because the parties were of diverse citizenship, I would agree with Judge Kirsch that the suit should be remanded for further proceedings, beginning with consideration of issue and claim preclusion (collateral estoppel and res judicata). But it is not.
All defendants are state actors, and Gilbank‘s claims rest on
It is possible to understand Heck and its successors as designed to reconcile
In litigation under
To the extent the overlap of these doctrines has attracted any academic attention (and it has not received much), authors favor treating them as functionally identical. Stephen I. Vladeck, The Increasingly Unflagging Obligation: Federal Jurisdiction after Saudi Basic and Anna Nicole, 42 Tulsa L. Rev. 553, 563 (2007) (“[T]he analogy [between Rooker-Feldman and] the ‘favorable termination’ rule of Heck v. Humphrey is inescapable—both doctrines purport to limit lawsuits that would require a subsequent court to collaterally invalidate an earlier decision.“);
I conclude that Heck blocks an award of damages in Gilbank‘s favor. And Heck is not her only problem. Defendants who are, or act for, the State of Wisconsin are not “persons” for the purpose of
KIRSCH, Circuit Judge, concurring in part and dissenting in part. Michelle Gilbank lost custody of her four-year-old daughter, T.E.H., for more than a year. The state placed T.E.H. in the custody of her father, a convicted child predator. Gilbank alleged that the father admitted to touching T.E.H.‘s genitals daily and that his admission led a state court to reverse the earlier custody decision and return T.E.H to her. With the custody battle over, Gilbank then turned to federal court and brought this suit for money damages, alleging that local officials violated her constitutional rights during the custody dispute.
A majority of the court agrees that Gilbank‘s lawsuit does not fall within the narrow parameters of the Rooker-Feldman doctrine because Gilbank‘s suit cannot and will not modify the since resolved custody judgment. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 293 (2005) (Rooker-Feldman applies only when a plaintiff asks a federal court to overturn or undo a state court judgment). Her damages suit does not seek to undo any state court judgment. Nor could it: ever since Gilbank regained custody of her daughter, the state custody proceedings have been closed. She could not appeal an order depriving her of custody after she regained custody. The case and the custody issue are over. Gilbank‘s federal suit, by contrast, can give her meaningful relief. Doing so might result in a federal court frowning upon the state court‘s conclusions. But that is decidedly not a Rooker-Feldman problem.
I
I will not belabor the points I made in Hadzi-Tanovic v. Johnson, 62 F.4th 394, 408–14 (7th Cir. 2023) (Kirsch, J., dissenting from the denial of rehearing en banc), but here is the short of it: Congress has authorized only the Supreme Court to exercise
Exxon itself was a response to lower courts’ expansive misapplication of Rooker-Feldman. The Court clarified that
Judge Hamilton‘s dissent, however, reads Exxon wrong. Ante, at 21–25. Judge Hamilton concludes that, because the Supreme Court did not use “the language of legal precision” in articulating the review and reject element, Exxon endorses an endlessly pliable “practical approach” to Rooker-Feldman. Id. at 22. The dissent leverages this purported flexibility to posit that Exxon requires attention to injuries alone—the relief sought in federal court is irrelevant. It follows, says the dissent, that any plaintiff complaining of injuries caused by a state court judgment inherently asks the federal court to review and reject that judgment. So understood, it is irrelevant whether the relief would or could have any effect on the state court judgment.
But the source of a plaintiff‘s injury is one, and only one, requirement. The key Rooker-Feldman inquiry is not simply whether a plaintiff‘s injury can be separated from the state court judgment that completed it but also whether the plaintiff asks a federal court to reverse a state court judgment. The practical approach of Judge Hamilton‘s dissent simply gives no independent meaning to this distinct requirement.
Courts in this circuit must, however, give due weight to all four elements of Rooker-Feldman. This requires a court to consider the relief requested in determining if the plaintiff has indeed asked the court to reject a state court judgment. Exxon, 544 U.S. at 291–93. And it is unlikely, though not impossible, that a plaintiff seeking damages, like Gilbank, has requested a court to do so: awarding damages usually does not affect a state court judgment not sounding in monetary terms.
A
Exxon‘s core focus is on what the plaintiff asks the federal court to do. The Supreme Court has repeatedly emphasized that Rooker-Feldman is confined to cases
Our own cases—Brokaw v. Weaver, 305 F.3d 660 (7th Cir. 2002), and Johnson v. Pushpin Holdings, LLC, 748 F.3d 769 (7th Cir. 2014)—correctly recognize that identifying what the plaintiff has requested is the key Rooker-Feldman inquiry. Brokaw recognized that Rooker-Feldman did not bar suits alleging fraud in state custody proceedings when the plaintiff did not seek to set aside the custody judgment. 305 F.3d at 663, 666–68. Similarly, in Pushpin, we said that Rooker-Feldman “does not bar a federal suit that seeks damages for a fraud that resulted in a judgment adverse to the plaintiff” because “[s]uch a suit does not seek to disturb the judgment of the state court, but to obtain damages for the unlawful conduct that misled the court into issuing the judgment.” 748 F.3d at 773. That is not mere “dicta,” ante, at 27, as we explicitly addressed the damages issue to “end the appeal,” Pushpin, 748 F.3d at 773. These cases do not stand for a “fraud exception” to Rooker-Feldman, ante, at 43–52, as there has never been such an exception, see Hadzi-Tanovic, 62 F.4th at 412–13 (Kirsch, J., dissenting from the denial of rehearing en banc). Simply, Brokaw and Pushpin reflect the limits on Rooker-Feldman and make plain, in line with Exxon, that Rooker-Feldman does not apply when, given the relief sought, a plaintiff, like Gilbank, does not seek to reverse a state court judgment. Brokaw, 305 F.3d at 663, 666–68; Pushpin, 748 F.3d at 773.
Not only does our precedent support requiring courts to focus on the relief sought, but we are also in good company in doing so: other circuits recognize that the key question Exxon asks is whether the relief a plaintiff seeks would reverse a state court judgment. See Hohenberg v. Shelby County, 68 F.4th 336, 341 (6th Cir. 2023) (“[A] complaint demanding ‘compensatory damages’ does not ‘seek review or reversal’ of a court order awarding relief not measured by money.“) (quotation omitted); Behr v. Campbell, 8 F.4th 1206, 1214 (11th Cir. 2021) (expressly rejecting the proposition that Rooker-Feldman “focus[es] on the federal claim‘s relationship to the issues involved in the state court proceeding, instead of on the type of relief sought by the plaintiff“) (quotation omitted); Webb ex rel. K.S. v. Smith, 936 F.3d 808, 816 (8th Cir. 2019) (“An important consideration for a court confronted with the issue of whether Rooker-Feldman applies is to analyze ‘the effect the requested federal relief would have on the state court judgment.‘“) (quotation omitted); Great W. Mining & Min. Co. v. Fox Rothschild LLP, 615 F.3d 159, 173 (3d Cir. 2010) (“[W]hile [the plaintiff‘s] claim for damages may require review of state-court judgments and even a conclusion that they were erroneous, those judgments would
The Tenth Circuit perhaps said it best:
As the Supreme Court emphasized in Exxon Mobil, the Rooker-Feldman doctrine does not apply simply because a party attempts to litigate in federal court a matter previously litigated in state court. To the contrary, a party may lose in state court and then raise precisely the same legal issues in federal court, so long as the relief sought in the federal action would not reverse or undo the relief granted by the state court.
Mo‘s Express, LLC v. Sopkin, 441 F.3d 1229, 1237 (10th Cir. 2006) (cleaned up). We and our sister circuits understand Exxon‘s core lesson: Rooker-Feldman applies only when a plaintiff seeks relief from a federal court that would reverse a state court judgment. And to the extent that some of our cases disregard that lesson and focus on a plaintiff‘s injury to the exclusion of the relief sought, they are “both inconsistent with Supreme Court precedent and out of step with our sister circuits” and must not be followed. United States v. Parker, 508 F.3d 434, 436, 441 (7th Cir. 2007).*
Judge Hamilton concludes that, because Exxon used “many verbs” in illustrating the review and reject element, the Supreme Court did not mean what it said, and under a “practical approach,” courts can safely ignore the review and reject element (and the relief a plaintiff has sought). Ante, at 22. For the dissent—based solely on an isolated phrase: “complaining of injuries caused by state-court judgments,” id. at 24 (quoting Exxon, 544 U.S. at 284)—Exxon requires such an approach because its “focus … was more on the source of injuries than on the form of relief,” id. Thus, asserts Judge Hamilton‘s dissent, once a court knows that the “injury underlying a claim was caused by the state-court judgment, … [r]edressing the injury—regardless of the form of relief requested—necessarily requires a federal court to review and reject the state-court judgment.” Id. at 25.
The dissent‘s quasi-textual analysis holds no water: in both its holding and its explanation of Rooker-Feldman‘s proper scope, Exxon spoke—expressly, repeatedly, and unambiguously—in terms of relief. On the dissent‘s read, Rooker-Feldman would bar all federal cases (1) brought by
Unable to find sufficient support in Exxon, Judge Hamilton‘s dissent trots out a parade of horribles to justify its expansive view of Rooker-Feldman. Ante, at 35; see also id. at 31–36. It warns that the majority view would mean “federal courts could award damages every time a litigant in state court used an improper procedure or considered evidence that a federal judge does not think trustworthy.” Ante, at 23–24 (quoting Harold v. Steel, 773 F.3d 884, 887 (7th Cir. 2014)). No, they couldn‘t. A federal court‘s jurisdiction to hear a case says nothing about its merits. Preclusion, immunity, abstention, and merits-focused defenses all impede a state court loser‘s path to damages, even if they will not guarantee a loss for every plaintiff who seeks to call a state court judgment into question. But they have nothing to do with jurisdiction, and applying them is the job of federal courts.
The dissent also misapprehends the role that relief plays in the application of the review and reject element. There is no “bright-line rule,” as the dissent fears, that in all cases, ”Rooker-Feldman does not apply to a federal claim for damages based on an injury inflicted by a state-court judgment.” Ante, at 21. Rather, a determination of whether a court is being called upon to review and reject a state court judgment must involve some comparison of the relief requested with the relief granted by the state court. Hohenberg, 68 F.4th at 341; Sopkin, 441 F.3d at 1237.
By way of example, in a case where the state-court judgment sounded in monetary relief, a plaintiff repairing to federal court pursuing refund or adjustment of the sum assessed against her could be seeking review and rejection of that judgment because the relief sought would nullify or modify the judgment. Indeed, in Bauer v. Koester, 951 F.3d 863 (7th Cir. 2020), a state court, in a foreclosure proceeding, issued a monetary judgment against the plaintiffs who then, in federal court, sought actual and punitive damages for alleged constitutional violations in that proceeding. Id. at 865–66. Though the plaintiffs only sought damages, their claim would be barred by Rooker-Feldman because awarding such damages would refund the money assessed against them and thereby void the judgment. See, e.g., Fliss v. Generation Cap. I, LLC, 87 F.4th 348, 353 (7th Cir. 2023) (suggesting that Rooker-Feldman bars actions seeking a refund of the damages assessed by the state court); Graff v. Aberdeen Enterprizes, II, Inc., 65 F.4th 500, 519 n.24 (10th Cir. 2023) (indicating that a claim for money damages seeking to recover the amount of debt imposed in the judgment of conviction would be barred); cf. Gisslen v. City of Crystal, Minn., 345 F.3d 624, 627–28 (8th Cir. 2003) (finding that Rooker-Feldman bars a damages claim that challenges a state court‘s determination of just compensation for a taking). This clarification should mollify the dissent‘s fear of opening the courts to a flood of cases and “longer
Even if the dissent‘s policy concerns stand, so what if our jurisdiction extends to these cases? The specter of federal courts exercising jurisdiction in the areas of mortgage foreclosure, family law, and other cases, ante, at 31, does not justify shirking the “virtually unflagging obligation” to exercise our jurisdiction, Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976). And the dissent‘s concern about an increase in “friction between state and federal courts” cannot displace that obligation, especially when such friction is contemplated by our system of concurrent jurisdiction. Ante, at 36. We trust that courts can avoid any “increase” in that friction, not by refusing jurisdiction, but through rigorous application of the arsenal of doctrines that will stymy state-court losers from proceeding far in their federal suits. Id.
The Supreme Court shares neither Judge Hamilton‘s concerns nor a desire for a broader Rooker-Feldman doctrine. The Court has been clear: “Neither Rooker nor Feldman elaborated a rationale for a wide-reaching bar on the jurisdiction of lower federal courts, and our cases since Feldman have tended to emphasize the narrowness of the Rooker-Feldman rule.” Lance, 546 U.S. at 464. And in nearly half a century, the Court “has never applied Rooker-Feldman to dismiss an action for want of jurisdiction.” Exxon, 544 U.S. at 287; see also, e.g., Reed v. Goertz, 598 U.S. 230, 235 (2023); Skinner v. Switzer, 562 U.S. 521, 532–33 (2011).
The breadth of the dissent‘s position—and its incongruity with the Court‘s view—is clear when applied to the overlap between Rooker-Feldman‘s bar and that of Heck v. Humphrey, 512 U.S. 477 (1994). See Sanchez v. City of Chicago, 880 F.3d 349, 356 (7th Cir. 2018) (identifying that both Heck and Rooker-Feldman can bar a challenge to a state court conviction).
Consider a plaintiff alleging malicious prosecution, a Fourth Amendment violation. Heck holds that
B
Duly regarding, rather than brushing off, whether we have been asked to “review, reject, overturn, undo, reverse, set aside, [or] alter,” ante, at 22, a state court judgment dictates the outcome here: given the status of the custody judgment and the relief she seeks, Rooker-Feldman does not bar Gilbank‘s claims. The return of her child resolved the state court judgment
The Second and Sixth Circuits have provided the blueprint for resolving the very issue before us in accordance with Exxon. In Green v. Mattingly, 585 F.3d 97 (2d Cir. 2009), the plaintiff sued multiple state officials involved with temporarily removing her daughter from her custody, alleging that they had violated her constitutional rights. Id. at 99. The Second Circuit held that, under Exxon, Rooker-Feldman did not apply because the plaintiff‘s child had been returned to her: “The only conceivable ‘judgment’ against plaintiff—the temporary removal of her child—has already been undone.” Id. at 102. In Kovacic v. Cuyahoga County Department of Children and Family Services, 606 F.3d 301 (6th Cir. 2010), the Sixth Circuit likewise held that Rooker-Feldman did not bar damages claims based on the conduct of the social workers that led to a custody judgment which was no longer in effect. Id. at 302–03. Because those plaintiffs sought only damages for alleged unconstitutional conduct, “any action concerning [the children‘s] return to their mother‘s custody became moot when they were reunited with their mother.” Id. at 310. So too for Gilbank: after she regained full custody of her daughter, the custody dispute was over, and there was no state court judgment to appeal. And because there is no judgment upon which Gilbank can seek appellate review,
Yet Judge Hamilton‘s dissent maintains that its analysis is consistent with Exxon because Gilbank‘s claims invited the federal court to review and reject those since-resolved custody orders. While paying (what one might generously call) lip service to the review and reject element, it finds we lack jurisdiction because Gilbank‘s “only alleged injury is the deprivation of custody itself, as ordered by the state trial court,” and the “premise” of her claims is that “the state-court judgments were wrong, and there is no conceivable way to redress the [injury] without … reviewing and rejecting those state-court judgments as incorrect.” Ante, at 23 (cleaned up). But Exxon squarely contradicts this approach: “If a federal plaintiff ‘present[s] some independent claim, albeit one that denies a legal conclusion that a state court has reached in a case to which he was a party …, then there is jurisdiction and state law determines whether the defendant prevails under principles of preclusion.‘” 544 U.S. at 293 (quoting GASH Assocs. v. Rosemont, 995 F.2d 726, 728 (7th Cir. 1993)).
Even if the premise of Gilbank‘s claims is that a state court judgment is wrong, and thereby she seeks to “put the Wisconsin trial court‘s proceedings under a microscope” by relitigating issues she raised or could have raised in that court, that is a question of state preclusion law. Ante, at 35. Indeed, preclusion requires a court to put prior proceedings, even state-court proceedings, “under a microscope,” id., to determine the issues that were actually litigated, Waagner v. United States, 971 F.3d 647, 657 (7th Cir. 2020). Courts can do so without calling judges as witnesses. And because Rooker-Feldman “is not simply preclusion by another name,” Lance, 546 U.S. at 466; Hohenberg, 68 F.4th at 339, it does not preclude claims merely premised on challenges to a state court‘s decision. And that is true
A determination that Gilbank‘s claims are not barred by Rooker-Feldman does not categorically reject its application to suits seeking money damages. In contrast to a damages award that would neutralize the money judgment issued in state court, such as in Bauer, awarding Gilbank damages could do nothing to the custody judgment because: (1) the custody dispute is over; and (2) even if it were not, the judgment provided equitable relief that an award of damages would not undo. This conclusion shows only that the relief Gilbank sought could not undo the custody determination and thus, under Exxon, her suit is beyond the reach of Rooker-Feldman.
II
One final point. I agree with the majority‘s dismissal on the merits of the warrantless urinalysis claim, the Fifth Amendment right to counsel claim, and the due process claims, all of which the district court addressed on the merits and dismissed with prejudice. However, we cannot reach the merits of Gilbank‘s remaining claims. While we ordinarily may affirm the district court on any ground adequately supported by the record, see Bay v. Cassens Transp. Co., 212 F.3d 969, 972–73 (7th Cir. 2000), the merits of Gilbank‘s remaining claims that were solely dismissed under Rooker-Feldman are not properly before us. This is because “an appellee who does not cross-appeal may not ‘attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary.‘” Jennings v. Stephens, 574 U.S. 271, 276 (2015) (quotation omitted). And while dismissals based on a lack of subject matter jurisdiction are without prejudice, affirmance based on defendants’ alternative merits arguments would require dismissal of Gilbank‘s claims with prejudice. Bernstein v. Bankert, 733 F.3d 190, 224 (7th Cir. 2013) (“The case law holds, consistent with
* * *
The state court took Gilbank‘s daughter from her. Gilbank has her daughter back. The custody dispute is over, and the state court judgment is not in effect. Because Gilbank never asked to reverse the state custody judgment, Rooker-Feldman does not bar her claims, and the district court had jurisdiction. Their dismissal on Rooker-Feldman grounds should therefore be reversed. This narrower view of Rooker-Feldman is how courts in this circuit will apply the doctrine going forward.
I concur in the dismissal, on the merits, of Gilbank‘s urinalysis, Fifth Amendment