35 F.4th 1007

5th Cir.

2022

BRADLEY B. MILLER v. VIRGINIA TALLEY DUNN, individuаlly; ANDREA PLUMLEE, in both individual and official capacities; DANIELLE DIAZ, in both individual and official capacities; PATRICIA LINEHAN ROCHELLE, in both individual and official capacities; DAVID H. FINDLEY, in both individual and official capacities; MARYANN MIHALOPOULOS, also known as MARYANN BROUSSEAU, in both individual and official capacities,; THE HOCKADAY SCHOOL, by and through its board of trustees; MEREDITH LEYENDECKER, individuаlly; BETH TAYLOR, individually; JOHN SUGHRUE, individually; LACIE DARNELL, in both individual and official capacities; MICHAEL CHARLES KELLER, in both individual and official capacities; THE COUNTY OF DALLAS, TEXAS; THE CITY OF DALLAS, TEXAS

No. 20-11054

United States Court of Appeals for the Fifth Circuit

June 2, 2022

Lyle W. Cayce, Clerk

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:20-CV-759

Before WIENER, GRAVES, and DUNCAN, Circuit Judges.

STUART KYLE DUNCAN, Circuit Judge:

Bradley Miller filed suit in federal court against his ex-wife Virginia Talley Dunn, two state judges, and several others under 42 U.S.C. § 1983. The district court sua sponte dismissed the case for lack of subject matter jurisdiction under the Rooker-Feldman doctrine, pointing to related state-court proceedings pending on appeal. Although the district court found support in a decades-old decision from our court, see Hale v. Harney, 786 F.2d 688 (5th Cir. 1986), that preсedent has been unequivocally undermined by Supreme Court precedent clarifying the scope of Rooker-Feldman. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005); accord Skinner v. Switzer, 562 U.S. 521, 531-32 (2011). Uncertainty over Hale‘s continuing viability has sown confusion in our circuit. So, we take this opportunity to clarify that Hale is no longer good law and that Rooker-Feldman does not apply to the situation where a state case is pending оn appeal when the federal suit is filed. In doing so, we bring our circuit into alignment with every other circuit to address the question.

Accordingly, we reverse the district court‘s judgment and remand for further proceedings consistent with this opinion.

I.

Dunn filed for divorce against Miller in Dallas County stаte court in February 2013.¹ Bitter divorce and child-custody proceedings led to temporary restraining and gag orders against Miller. Two additional state-court actions followed.

First, in September 2017, the Dallas County Domestic Relations Office filed an enforcement action against Miller after he fell behind on child support payments. After an October 2018 trial, the state judge found Miller could pay child support despite his claimed indigency and held him in contempt, resulting in a sentence of probation, payment of fees and arreаrages, and 179 days in jail for each of four counts. The state appellate court affirmed. Miller unsuccessfully petitioned for rehearing en banc in April 2020 and sought review in the Texas Supreme Court in August 2020. See Docket, In re V.I.P.M., No. 05-19-00197-CV (Tex. App.-Dallas). Miller claims “the Dallas County court system has bеcome a criminal enterprise.”

Second, in March 2018, Dunn sued Miller to modify their child custody arrangement. Miller removed the case to federal district court, which remanded it to state court. In June 2018, Miller again removed the case, this time an hour before a hearing оn Dunn‘s motion for an emergency temporary restraining order. Despite Miller‘s filing a notice of removal with the state court and personally serving Dunn‘s attorney, the state court proceeded with the hearing and issued a restraining order that barred Miller from seeing his child. The federal district court later remanded the case. Miller unsuccessfully petitioned the state appellate court for rehearing en banc in October 2021 and sought review in the Texas Supreme Court in December 2021. See Docket, Miller v. Dunn, No. 09-19-00345-CV (Tex. App.-Beaumont). Miller claims thе “fraudulent order” was entered without jurisdiction because he had removed the case the federal court.

In March 2020, while his state-court appeals remained pending, Miller filed this pro se action in federal court against Dunn, other private individuals, the state judges, his ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍child‘s school, two police officers, Dallas County, and the City of Dallas under 42 U.S.C. § 1983. He alleged violations of the First, Fourth, Eighth, and Fourteenth Amendments, as well as fraud, conspiracy, neglect, intentional infliction of emotional distress, and malicious prosecution. He sought monetary damages, declarations that Defendants’ actions are null and void, and an injunction prohibiting the state judges from issuing future orders that limit his free speech and parental rights.

The magistrate judge sua sponte ordered Miller “to show the Court that it has subject matter jurisdiction over this lawsuit and a stay is not appropriate,” citing Younger abstention and the Rooker-Feldman doctrine. In response, Miller claimed, inter alia, that the state-court orders were void ab initio due to lack of jurisdiction because he had removed the cases to federal court and that Defendants’ conspiracy to deprive him of his constitutional rights created a federal cause of action. The magistrate judge subsequently reсommended dismissal without prejudice for lack of subject matter jurisdiction under the Rooker-Feldman doctrine because Miller “seeks to collaterally attack state court judgments that he contends are illegal.” Miller v. Dunn (Miller I), No. 3:20-cv-759-E-BN, 2020 WL 5608474, at *5 (N.D. Tex. Aug. 31, 2020). Miller objected, arguing, inter alia, the doctrine does not apply because his state lawsuits remain pending on appeal. The district court adopted the magistrate judge‘s recommendation of dismissal. Miller v. Dunn (Miller II), No. 3:20-cv-759-E, 2020 WL 5602843, at *1 (N.D. Tex. Sept. 17, 2020).

Miller then moved for reconsideration, again arguing that Rooker-Feldman did not apply given the pending state-court appeals. In denying the motion, the district court reasoned that the pending state appeals did not make Rooker-Feldman inapplicable, relying on Hale, 786 F.2d 688, and Houston v. Venneta Queen, 606 F. App‘x 725 (5th Cir. 2015) (unpublished). Miller v. Dunn (Miller III), No. 3:20-cv-759-E, 2020 WL 6504663, at *5 (N.D. Tex. Nov. 5, 2020). Miller timely appealed. See Fed. R. App. P. 4(a)(4)(A)(iv), (B)(i).

II.

We review a district court‘s dismissal for lack of subject matter jurisdiction de novo. Wal-Mart Inc. v. U.S. Dep‘t of Just., 21 F.4th 300, 307 (5th Cir. 2021) (citation omitted).

III.

Miller argues, inter alia, that the district court erred in dismissing his suit under Rooker-Feldman because the relevant state-court cases were pending on appeal when he filed this lawsuit. We agree.

The Rooker-Feldman doctrine² generally prеcludes lower federal courts “from exercising appellate jurisdiction over final state-court judgments.” Lance v. Dennis, 546 U.S. 459, 463 (2006) (per curiam). This is because Congress gave the Supreme Court exclusive jurisdiction to review such judgments. Ibid. (collecting cases); see 28 U.S.C. § 1257. As we have explained: “If a state trial court errs[,] the judgmеnt is not void, it is to be reviewed and corrected by the appropriate state appellate court. Thereafter, recourse at the federal level is limited solely to an application for a writ of certiorari to the United States Supremе Court.” Liedtke v. State Bar of Tex., 18 F.3d 315, 317 (5th Cir. 1994) (referencing Rooker and Feldman); see also Union Planters Bank Nat‘l Ass‘n v. Salih, 369 F.3d 457, 462 (5th Cir. 2004).

The Supreme Court has repeatedly emphasized that Rooker-Feldman is a “narrow” jurisdictional bar. Lance, 546 U.S. at 464; Exxon Mobil, 544 U.S. at 284. It applies only to “cases brought by state-court losers

complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Exxon Mobil, 544 U.S. at 284; see also Johnson v. De Grandy, 512 U.S. 997, 1005-06 (1994). See generally 18B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §§ 4469.1, 4469.2 (3d ed.), Westlaw (database updated Apr. 2022).

Here we consider whether Rooker-Feldman applies to the situation where an appeal of the state-court judgment is still pending when the federal suit is commenced. In a 1986 decision, Hale, our court said yes. It held that Rooker-Feldman barred a lawsuit complaining of a state divorce decree that was then pending on appeal. 786 F.2d at 689-91. Wе explained that we “h[e]ld no warrant to review even final judgments of state courts, let alone those which ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍may never take final effect because they remain subject to revision in the state appellate system.” Id. at 691.

Twenty years later, however, the Supreme Court clarified the scope of Rooker-Feldman. In Exxon Mobil, it ruled that entry of judgment in a first-filed state-court case did not defeat federal jurisdiction of a pending, parallel later-filed federal action. 544 U.S. at 291-94. As the Court explained, Rooker-Feldman “is confined to cases of the kind from which the doctrine acquired its name,” id. at 284, that is, whеre “the losing party in state court filed suit in federal court after the state proceedings ended, complaining of an injury caused by the state-court judgment and seeking review and rejection of that judgment,” id. at 291 (emphasis added).³ The Court admonished lower

courts for “constru[ing] [the doctrine] to extend far beyond the contours of the Rooker and Feldman cases, overriding Congress’ сonferral of federal court jurisdiction concurrent with jurisdiction exercised by state courts.” Id. at 283. The following year the Court stressed “the narrowness of the Rooker-Feldman rule,” explaining that it applies only “where a party in effect seeks to take an appeal of an unfavorable state-court decision to a lower federal court.” Lance, 546 U.S. at 464, 466; see also Skinner, 562 U.S. at 531-32.

The Supreme Court‘s gloss on Rooker-Feldman has since generated uncertainty in this circuit as to whether a pending state-court appeal precludes applying the doctrine. Dicta in two published decisions point in oppоsite directions. In one decision, we stated that Rooker-Feldman applies only where “a party suffered an adverse final judgment rendered by a state‘s court of last resort.” Ill. Cent. R. Co. v. Guy, 682 F.3d 381, 390 (5th Cir. 2012). But in a later decision, we observed that “[c]ontrary to Illinois Central‘s explication of the doctrine, Hale suggests that a state court judgment need not be issued by a court of last resort for Rooker-Feldman to apply.” Burciaga v. Deutsche Bank Nat‘l Tr. Co., 871 F.3d 380, 384 n.5 (5th Cir. 2017). Neither Illinois Central nor Burciaga squarely addressed whether a pending state-court appeal renders Rooker-Feldman inapplicable.

Making matters worse, our court has issued contradictory unpublished decisions on this point. First, in Rowley v. Wilson, 200 F. App‘x 274, 275 (5th Cir. 2006) (per curiam), a panel relied on Exxon Mobil to hold that Rooker-Feldman was inapplicable because the relevant state case was on appeal when plaintiffs filed their federal lаwsuit, and so “their state proceedings had not ended.” Second, in Houston, a panel recognized

conflicting authority post-Exxon Mobil as to whether all state appeals must have concluded before the federal suit is initiated for Rooker-Feldman to apply, while suggesting that Hale remains good law under our circuit‘s rule of orderliness. 606 F. App‘x at 731-32. Houston, however, declined to “take a definitive position on the continued vitality of Hale.” Id. at 732. Finally, in Gross v. Dannatt, 736 F. App‘x 493, 495 (5th Cir. 2018) (per curiam), a panel held Rooker-Feldman inapplicable under Illinois Central‘s understanding of Exxon Mobil because the plaintiff‘s state petition for review was pending before the Texas Supreme Court when he filed his federal action. Gross expressly declined to apply Hale given “the guidance” the Supreme Court offered in Exxon Mobil and Lance. Id. at 494 n.3.⁴

It is high time to end this confusion. We conclude that Hale is no longer good law after Exxon Mobil and hold that Rooker-Feldman is inapplicable where a state appeal is pending when the federal suit is filed. Our decision honors our circuit‘s rule of orderliness. That rule dеmands that we “abide ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍by a prior Fifth Circuit decision until the decision is overruled, expressly or implicitly, by either the United States Supreme Court or by the Fifth Circuit sitting en banc.” Gahagan v. USCIS, 911 F.3d 298, 302 (5th Cir. 2018) (quoting Cent. Pines Land Co. v. United States, 274 F.3d 881, 893 (5th Cir. 2001)). Our “precedent is implicitly overruled if a subsequent Supreme Court opinion ‘establishes a rule of law inconsistent with’ that precedent.” Ibid. (quoting Gonzalez v. Thaler, 623 F.3d 222, 226 (5th Cir. 2010)). That Supreme Court decision “must be unequivocal, not a mere ‘hint’ of how the Court might rule in the future.” United States v. Alcantar, 733 F.3d 143, 146 (5th Cir. 2013) (citing Wells Fargo Bank Nat‘l Ass‘n v. Tex. Grand Prairie Hotel Realty, L.L.C. (In re Tex. Grand Prairie Hotel Realty, L.L.C.), 710 F.3d 324, 331 (5th Cir. 2013)). Those stringent conditions are met here.

The Supreme Court‘s intervening limitations on Rooker-Feldman are unequivocally inconsistent with Hale‘s applying the doctrine where a state appeal remains pending. While Exxon Mobil did not аddress this precise question, the Court took pains to clarify that the doctrine applies only “after the state proceedings [have] ended,” as was the case in Rooker and Feldman. 544 U.S. at 291; see Ill. Cent., 682 F.3d at 390. As the late Judge Feldman correctly observed in rejecting Hale post-Exxon Mobil, “[s]tate proceedings have not ended . . . if state appeals are still pending.” Storyville Dist., 785 F. Supp. 2d at 589; id. at 590 (“It is the unfinished and ongoing posture of the state court appellate process that presents a procedural obstacle to the defendants’ invocation of Rooker-Feldman.” (citing LAC Real Estate Holdings, L.L.C. v. Biloxi Marsh Lands Corp., 320 F. App‘x 267, 270 (5th Cir. 2009); and Rowley, 200 F. App‘x at 275)).

In denying Miller‘s motion for reconsideration, the district court relied on Hale and our unpublished Houston decision. Miller III, 2020 WL 6504663, at *4-5. Houston intimated that “the split in authority following Exxon on the question of finality suggests that that case did not ‘unequivocally’ overrule Hale.” 606 F. App‘x at 732 (citing Tech. Automation Servs. Corp. v. Liberty Surplus Ins. Corp., 673 F.3d 399, 405 (5th Cir. 2012)). We disagree. There is no real split in authority on the point, save a handful of out-of-circuit district court cases. Since Exxon Mobil, “all federal circuits that have addressed the issue have cоncluded that Rooker-Feldman does not apply if, as here, a state-court appeal is pending when the federal suit is filed.” Parker v. Lyons, 757 F.3d 701, 705-06 (7th Cir. 2014) (collecting cases); see Malhan v. Sec‘y U.S. Dep‘t of State, 938 F.3d 453, 460 (3d Cir. 2019); Nicholson v. Shafe, 558 F.3d 1266, 1279 (11th Cir. 2009); Guttman v. G.T.S. Khalsa, 446 F.3d 1027, 1032 (10th Cir. 2006); Dornheim v. Sholes, 430 F.3d 919, 923-24 (8th Cir. 2005); Mothershed v. Justs. of Sup. Ct., 410 F.3d 602, 604 n.1, 607 (9th Cir. 2005); Federacion de Maestros de P.R. v. Junta de Relaciones del Trabajo de P.R., 410 F.3d 17, 25 (1st Cir. 2005); see also Butcher v. Wendt, 975 F.3d 236, 246 (2d Cir. 2020) (Menashi, J., concurring) (urging court to settle open question in Second Circuit аnd “adopt the unanimous position of every other circuit court to address it“). In recognizing Hale‘s incompatibility with subsequent Supreme Court precedent, we join our sister circuits in their better understanding of Rooker-Feldman. See Gross, 736 F. App‘x at 494-95 & n.3.

As Miller argued in his objections to the magistrate judge‘s recommendation, the rеlevant state actions were pending on appeal when he filed the federal suit. The state-court dockets confirm this.⁵ See, e.g., Stiel v. Heritage Numismatic Auctions, Inc., 816 F. App‘x 888, 892 (5th Cir. 2020)

(per curiam) (noting courts may take “judicial notice of the state court‘s orders, final judgment, and docket as matters of public record” (citing Anderson v. Wells Fargo Bank, N.A., 953 F.3d 311, 314 (5th Cir. 2020))). Rooker-Feldman therefore did not deprive the district ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍court of subject matter jurisdiction.⁶ We express no view on other potential jurisdictional or abstention issues flagged by the magistrate judge in his initial order.

IV.

We REVERSE the district court‘s judgment and REMAND for further proceedings consistent with this opinion.

STUART KYLE DUNCAN

CIRCUIT JUDGE

Notes

The facts are taken from Miller‘s 140-page pro se сomplaint. We accept Miller‘s allegations as true for purposes of this appeal. (citation omitted). Because he is pro se, his filings are “to be liberally construed” and his “complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” (per curiam) (quoting ). We discuss only those facts necessary to resolve this appeal.

The doctrine derives its name from , and .

In Rooker, the plaintiffs sought to have a federal court “declare[] null and void” a judgment affirmed by the Indiana Supreme Court. . And in Feldman, the plaintiff challenged the District of Columbia Court of Appeals’ refusal to waive a rule

governing admission to the bar that required graduation from an approved law school. . District courts have taken varying approaches amid this uncertainty. Compare (declining to apply Rooker-Feldman where appeal of preliminary injunction in state case remained pending given the lack of “jurisprudential support to establish that a final judgment has been rendered by the state court as required by the Fifth Circuit“), and (concluding, based on , 28 U.S.C. § 1257, an “independent review of Exxon Mobil[,] and other scholarship and case literature,” that ”Exxon Mobil has so limited the scope of the Rooker-Feldman doctrine as to make [Hale] inapplicable to cases where the state appellate process is incomplete and pending“), with (applying Hale based on Houston and Burciaga). See also (“The Fifth Circuit has not definitively decided whether the Rooker-Feldman doctrine applies during the pendency of a state-court appeal.” (citing ; and )), report & recommendation adopted, .

The district court erroneously believed that Miller “has sought—and has been denied—appеllate review at the highest levels.” . The court quoted Miller‘s response to the magistrate judge that “his Texas Supreme Court appeal (case no. 16-0487), and his subsequent United States Supreme Court appeal (case no. 16-9012) . . . were denied hearing.” Ibid. But this is a different case than the two pending on appeal when Miller filed this lawsuit (No. 05-19-00197-CV in the Fifth Court of Appeals ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and No. 09-19-00345-CV in the Ninth Court of Appeals), and that portion of Miller‘s response raised a wholly separate argument.

And the district court did not lose jurisdiction after the Texas Supreme Cоurt denied Miller‘s petitions. See (“[N]either Rooker nor Feldman supports the notion that properly invoked concurrent jurisdiction vanishes if a state court reaches judgment on the same or related question while the case remains sub judice in a federal court.“); (noting Rooker-Feldman “did not emerge to vanquish jurisdiction after ExxonMobil prevailed in the Delaware courts“).

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