F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 1 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
SHIRLEY A. ROBERTS,
Plaintiff-Appellant,
v. No. 03-2054
(D.C. No. CIV-01-1262 LH/WWD)
DEBORAH HARTZ, Secretary of the (D. N.M.)
New Mexico Children, Youth, and
Families Department; MARCI
KENNAI, Head of Child Protective
Services for the New Mexico
Children, Youth, and Families
Department; JOHN and JANE DOE,
unknown foster/adoptive parents;
THOMAS KUKER, Special Agent in
Charge, Albuquerque Division of the
F.B.I.,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before HENRY , MURPHY , and TYMKOVICH , Circuit Judges.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. 1
Pursuant to 42 U.S.C. § 1983 and certain other federal statutes enumerated
in her complaint, plaintiff-appellant Shirley A. Roberts filed a complaint seeking
declaratory and injunctive relief pertaining to custody proceedings in New Mexico
state district courts involving her granddaughter (the “Child”). To support her
claims for injunctive and declaratory relief, Roberts claimed that state and federal
officials have violated her procedural and substantive due process rights under the
Fourteenth Amendment to the United States Constitution by wrongfully depriving
her of custody of the Child. 2
In addition, Roberts sought a declaratory judgment
declaring that Chapter 32A of the New Mexico Statutes (the “Children’s Code”)
1
We previously directed the parties to file briefs addressing the
jurisdictional issue of whether Roberts filed this appeal in a timely manner.
Having considered the briefs submitted by the parties, we conclude that Roberts
filed this appeal in a timely manner. Specifically, because Roberts named an
officer of the United States as a defendant, she had sixty days to file her notice of
appeal, see Fed. R. App. P. 4(1)(B), and the sixty-day period began to run on
December 20, 2002 when the district court entered its order granting in part
Roberts’ motion for reconsideration. See Aplt. App. at 271-75. Roberts filed her
notice of appeal within the sixty-day period as it was filed on February 18, 2003,
the sixtieth day.
2
In her complaint, Roberts also asserted claims against defendants under the
First and Ninth Amendments, but she has abandoned those claims in this appeal.
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and New Mexico Children’s Court Rule 10-108 are unconstitutional. Finally,
Roberts sought mandamus relief in the form of an order directing the Federal
Bureau of Investigation to investigate and stop what she characterized as
defendants’ unlawful detention of the Child.
The district court dismissed Roberts’ complaint under Fed. R. Civ. P.
12(b)(1) for lack of subject matter jurisdiction, concluding that: (1) the
Rooker-Feldman 3
doctrine bars Roberts from challenging the orders and
judgments entered in the state-court proceedings, see Aplt. App. at 166-68; (2)
Roberts lacks standing to pursue her constitutional challenges, id. at 168-74; and
(3) Roberts’ claim for mandamus relief against the FBI is barred by the doctrine
of sovereign immunity, id. at 174-75. Having conducted the required de novo
review of the district court’s dismissal order, see Kenmen Eng’g v. City of Union ,
314 F.3d 468, 473 (10th Cir. 2002), we conclude that the district court properly
dismissed Roberts’ complaint for lack of subject matter jurisdiction. We
therefore affirm.
3
See Rooker v. Fid. Trust Co. , 263 U.S. 413 (1923); Dist. of Columbia Ct. of
App. v. Feldman , 460 U.S. 462 (1983) (restricting federal court review of state
court proceedings).
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I.
In February 1997, a New Mexico district court appointed Roberts as
guardian of the Child “until further Order of this Court” (the “Guardianship
Case”), and the appointment was made with the consent of the Child’s mother
(Roberts’ daughter). See Aplt. App. at 15. In August 1997, the Child’s mother
filed a motion in the Guardianship Case to revoke the guardianship and have
custody of the Child returned to her. See Aplee. Supp. App. at 1-13. In October
1998, the New Mexico district court entered an order awarding the mother
primary physical custody and sole legal custody of the Child “temporarily pending
a second [advisory] opinion” which could be obtained at Roberts’ expense. See
Aplt. App. at 46, 54. Roberts never obtained a second advisory opinion, however,
and, in July 2001, the New Mexico district court dismissed the Guardianship Case
without prejudice for failure to prosecute. Id. at 57.
In the meantime, following the transfer of custody back to the mother,
defendant New Mexico Children, Youth, and Families Department (“CYFD”)
obtained legal and physical custody of the Child pursuant to an order of
a New Mexico district court. In addition, the CYFD initiated judicial proceedings
to terminate the mother’s parental rights based on allegations that she was
neglecting the Child (the “Termination Case”). In March 2000, Roberts moved to
intervene in the Termination Case, and the New Mexico district court entered an
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interim order regarding her motion in June 2000. See Aplee. Supp. App. at 15-16,
43. In the interim order, the court: (1) took Roberts’ motion to intervene under
advisement; (2) ordered Roberts to cooperate with the “home study process”; (3)
ordered Roberts to contact a psychologist; and (4) stated that if Roberts did not
establish a permanent residence and contact a psychologist by June 25, 2000 her
motion to intervene would be denied. Id. at 15-16.
In March 2001, the New Mexico district court entered an order denying
Roberts’ motion to intervene and terminating the mother’s parental rights. Id. at
39-41. In separate adoption proceedings to which Roberts was not a party (the
Adoption Case), the Child was subsequently placed with adoptive parents, the
Doe defendants, and the Child is apparently in their custody at the present time.
II.
1. Rooker-Feldman Doctrine .
“The Rooker-Feldman doctrine is a jurisdictional prohibition.” Pittsburg
County Rural Water Dist. No. 7 v. City of McAlester , 358 F.3d 694, 705 (10th Cir.
2004) (en banc). We have summarized the doctrine as follows:
Under 28 U.S.C. § 1257, “federal review of state court judgments can
be obtained only in the United States Supreme Court.” Kiowa Indian
Tribe of Okla. v. Hoover , 150 F.3d 1163, 1169 (10th Cir. 1998)
(citing Dist. of Columbia Ct. of App. v. Feldman , 460 U.S. 462, 476
. . . (1983)). As a result, the Rooker-Feldman doctrine prohibits a
lower federal court from considering claims actually decided by a
state court, Rooker v. Fid. Trust Co. , 263 U.S. 413, 415-16 . . .
(1923), and claims “inextricably intertwined” with a prior state-court
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judgment. Feldman , 460 U.S. at 483 n. 16 . . . . In other words,
Rooker-Feldman precludes “a party losing in state court . . . from
seeking what in substance would be appellate review of [a] state
judgment in a United States district court, based on the losing party’s
claim that the state judgment itself violates the loser’s federal
rights.” Johnson v. De Grandy , 512 U.S. 997, 1005-06 . . . (1994).
Kenmen Eng’g v. City of Union , 314 F.3d 468, 473 (10th Cir. 2002).
To apply the “inextricably intertwined” standard, “we must ask whether the
injury alleged by the federal plaintiff resulted from the state court judgment itself
or is distinct from that judgment.” Id. at 476 (quotation omitted). “In other
words, we approach the question by asking whether the state-court judgment
caused , actually and proximately, the injury for which the federal-court plaintiff
seeks redress .” Id. (footnote omitted). “If it did, Rooker-Feldman deprives the
federal court of jurisdiction; if it did not, Rooker-Feldman provides no bar.”
Pittsburg County , 358 F.3d at 707.
We have also recognized, however, that “the Rooker-Feldman doctrine
should not be applied against ‘non-parties.’” Kenmen Eng’g , 314 F.3d at 480.
This general rule follows from Rooker-Feldman’s underlying
premise: the doctrine prohibits suits in lower federal court that would
be, in substance, appellate review of state-court judgments. See
28 U.S.C. § 1257. Because “judgments” only decide rights of
“parties,” a person would generally have no basis (or right) to appeal
a judgment to which that person was not a party.
Id. (footnote omitted).
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The district court concluded that the Rooker-Feldman doctrine barred the
bulk of Roberts’ claims because she was asking the court “either to review the
decisions of the state court or order some action in contravention of the state
court’s rulings [citing Roberts’ complaint at ¶¶ A, B, D, & E], or to make rulings
on matters that are inextricably intertwined with those state court decisions [citing
Roberts’ complaint at ¶¶ C, G, H, I, & J].” Aplt. App. at 167. Having examined
Roberts’ complaint, we agree with the district court that, with the exception of the
constitutional challenges discussed below, which are exempt from the Rooker-
Feldman doctrine, all of Roberts’ claims against the state defendants were either
actually decided in the state-court proceedings or are inextricably intertwined
with the state-court orders and judgments.
We also reject Roberts’ argument that the district court erred in applying
the Rooker-Feldman doctrine because she was never a party to the Termination
Case. 4 Contrary to Roberts’ contentions, the fact the New Mexico district court
denied her motion to intervene in the Termination Case is not determinative of her
status in that case for purposes of the Rooker-Feldman doctrine. Instead, the
4
We note that Roberts is also relying on the fact that she was not a party to
the Adoption Case in order to defeat application of the Rooker-Feldman doctrine.
See Aplt. Br. at 25. The fact that Roberts was not a party to the Adoption Case
does not affect the applicability of the Rooker-Feldman doctrine, however, as the
Termination Case was the determinative state-court proceeding for adjudicating
Roberts’ custody rights under New Mexico law, and we conclude that she was
a party to the Termination Case for purposes of the Rooker-Feldman doctrine.
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controlling factor is that Roberts attempted to intervene in the Termination Case,
and the New Mexico district court refused to allow her to intervene, concluding
that she had no right under New Mexico law to participate in the Termination
Case. See Aplees. Supp. App. at 40-41. At that point, Roberts’ only remedy in
terms of contesting the child-custody proceedings was to file an appeal regarding
the Termination Case in a New Mexico appellate court, which she failed to do.
Instead, Roberts filed a claim in the district court, in essence requesting federal
court review of a state court decision. The Rooker-Feldman doctrine, however,
expressly forbids the district court or this court from considering claims actually
decided by a state court. See Wright v. Tackett , 39 F.3d 155, 157 (7th Cir. 1994)
(holding that Rooker-Feldman doctrine barred plaintiff from filing constitutional
claims in federal district court relating to state-court foreclosure actions where
“[i]n essence, [plaintiff was asking] the federal district court to review the state
court’s denial of his requests to intervene in the foreclosure actions”).
2. Constitutional Challenges.
Although the Rooker-Feldman doctrine disposes of the bulk of Roberts’
claims against the state defendants, her challenge to the constitutionality of New
Mexico’s Children’s Code and New Mexico’s Children’s Court Rule 10-108
remains because “discrete general challenge[s]” to the constitutionality of state
laws are not barred by the Rooker-Feldman doctrine. Johnson v. Rodrigues
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(Orozco) , 226 F.3d 1103, 1108-09 (10th Cir. 2000). Roberts claims that these
provisions “are facially unconstitutional to the extent that they allow the State to
refuse to surrender to one party to a domestic relations custody dispute a child
seized from the other party for abuse or neglect without filing a petition against
the noncustodial party.” Aplt. App. at 42, ¶ F. In other words, Roberts claims
that the provisions at issue are facially unconstitutional because they do not force
CYFD and the New Mexico courts to give a non-custodial party, in this case
Roberts, the first opportunity to adopt the Child following the termination of
parental rights.
The district court concluded that Roberts lacks standing to pursue her
constitutional challenges, and the court analyzed the standing issue in terms of
Roberts’ status both as a grandmother and as an alleged guardian, concluding that,
in either capacity, Roberts does not have a fundamental right or liberty interest in
the care, custody, and control of the Child. Id. at 168-74. Although our analysis
of the standing issue differs from the district court’s analysis, we agree with the
court’s ultimate conclusion that Roberts lacks standing to pursue her
constitutional challenges. 5
See United States v. Sandoval , 29 F.3d 537, 542 n.6
5
With respect to Roberts’ status as an alleged guardian of the Child, the
district court found that “the record is inconclusive about what type of
guardianship relationship was created by the February, 1997 order and as to
whether that guardianship was terminated by the October, 1998 order.” Aplt.
(continued...)
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(10th Cir. 1994) (stating that this court is “free to affirm a district court on any
grounds for which there is a record sufficient to permit conclusions of law, even
grounds not relied upon by the district court”).
“Rule 12(b)(1) motions generally take one of two forms: (1) a facial attack
on the sufficiency of a complaint’s allegations as to subject matter jurisdiction; or
(2) a challenge to the actual facts upon which subject matter jurisdiction is
based.” Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002). Here, the
district court treated defendants’ Rule 12(b)(1) motion as a facial attack.
Accordingly, we presume that all of the allegations in Roberts’ complaint are true,
id., and we must determine whether the allegations, if proven, would be sufficient
to establish subject matter jurisdiction in the district court. However, “we
conduct our review mindful that the party invoking the jurisdiction of a federal
court carries the burden of proving its existence.” Murphy v. United States, 45
F.3d 520, 522 (1st Cir. 1995) (quotation omitted). Moreover, in analyzing the
standing issue de novo, “we are not bound by conclusory allegations, unwarranted
5
(...continued)
App. at 171-72. As a result, “for the purposes of [defendants’] motion to dismiss
only, the Court presume[d] that Plaintiff was appointed as the Child’s permanent
guardian and that the guardianship was never properly terminated.” Id. at 172.
As explained herein, we disagree with the district court’s assertion that the record
is inconclusive as to whether the guardianship was terminated by the New Mexico
district court’s October 1998 order.
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inferences, or legal conclusions.” Hackford v. Babbitt, 14 F.3d 1457, 1465 (10th
Cir. 1994).
It is well established that the Fourteenth Amendment’s Due Process Clause
has a substantive component that “provides heightened protection against
government interference with certain fundamental rights and liberty interests.”
Troxel v. Granville , 530 U.S. 57, 65 (2000) (quotation omitted). It is also firmly
established that the substantive component of the Due Process Clause grants
parents a fundamental right and liberty interest in the care, custody, and control of
their children. Id. at 65-66. In addition, the Due Process Clause contains a
procedural component, and “the procedural component . . . protects more than just
fundamental rights. It protects all liberty interests that are derived from state law
or the Due Process Clause itself.” Mullins v. Oregon , 57 F.3d 789, 795 (9th Cir.
1995).
In this case, Roberts is claiming that she has a liberty interest and
fundamental right to obtain custody of the Child based solely on her alleged status
as the Child’s guardian under New Mexico law, and Roberts has expressly
disavowed any reliance on her legal status as the Child’s maternal grandmother.
See Aplt. App. at 182 (stating that “Plaintiff never alleged that her grandparent
relationship with [the Child] had any bearing on this case, or either of the cases in
the two state courts”). Thus, to resolve the standing issue, we must determine
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whether Roberts has alleged sufficient facts to establish that she was the Child’s
guardian under New Mexico law. And the relevant time period that we must
focus on is March 2001 when the New Mexico district court denied Roberts’
motion to intervene in the Termination Case.
We conclude that Roberts has alleged insufficient facts to support her claim
that she was the Child’s guardian at the time her motion to intervene was denied. 6
As set forth above, while Roberts was appointed as the Child’s guardian in
February 1997, that appointment was only valid “until further Order of this
Court.” Subsequently, the mother filed a motion in the Guardianship Case in
September 1997 to have the appointment revoked and custody of the Child
returned to her. In October 1998, the New Mexico district court entered an order
in the Guardianship Case transferring primary physical custody and sole legal
custody of the Child to the mother. Id. at 46, 54. While it appears that the
transfer of custody to the mother was initially only a temporary transfer, id. at 46,
Roberts has failed to allege any facts showing that any form of custody was ever
returned to her. In fact, it is undisputed that defendant CYFD subsequently
obtained custody of the child in the Termination Case, and that the New Mexico
6
Because we conclude that Roberts has failed to show that she was the
Child’s guardian during the relevant time period, we need not reach the additional
question decided by the district court; namely, whether guardians have a legally-
protected interest under New Mexico law in the care, custody, and control of a
child.
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district court expressly granted CYFD “the authority to determine the physical
placement of the child for her safety and welfare.” Aplee. Supp. App. at 40.
In light of these undisputed facts, we cannot accept Roberts’ conclusory
allegation that she was the Child’s guardian under New Mexico law in March
2001 when her motion to intervene in the Termination Case was denied.
Consequently, Roberts has no legal basis for asserting that she, as a guardian, was
denied a liberty interest or fundamental right in the care, custody, and control of
the Child. Although for different reasons, we thus agree with the district court
that Roberts lacks standing to pursue her constitutional challenges. See Utah
Animal Rights Coalition v. Salt Lake City Corp. , 371 F.3d 1248, 1255 (10th Cir.
2004) (stating that a plaintiff does not have standing under Article III of the
United States Constitution unless there has been “an invasion of a legally
protected interest”) (quotations omitted).
3. Claims Against the FBI.
Roberts sought mandamus relief in the district court in the form of an order
directing the FBI to investigate and stop what she characterized as New Mexico’s
unlawful detention of the Child, and she named Thomas Kuker, Special Agent in
Charge, Albuquerque Division of the FBI, as a defendant. Roberts based her
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claim for mandamus relief on 28 U.S.C. § 533, 7
claiming that “[t]he F.B.I. has an
affirmative duty under [§ 533] to act to investigate and to halt the ongoing
violation of federal criminal statutes . . . by Defendants Hartz and Douglas in
continuing to hold [the Child].” Aplt. App. at 38, ¶ 68. Because Roberts’ claim
for mandamus relief could be asserted against Agent Kuker only in his official
capacity, the district court concluded that Roberts was “essentially suing the
United States, which has sovereign immunity to suit unless it has consented to be
sued.” Id. at 174. Further, the court concluded that § 533 “does not contain
language that could be construed as an unequivocal waiver of sovereign immunity
for a private citizen’s legal action against Agent Kuker for electing not to
investigate a certain matter.” Id. at 175. The court therefore determined that the
United States’ sovereign immunity barred Roberts’ claim for mandamus relief,
and the court dismissed the claim for lack of subject matter jurisdiction. Id.
We agree with the district court’s analysis. We also note that the sole
argument advanced by Roberts in this appeal in support of her claim for
mandamus relief is that she should be granted leave to amend her complaint to
assert a claim against Agent Kuker under 5 U.S.C. § 701. See Aplt. Br. at 31.
Roberts’ reliance on § 701 is misplaced, however, because she failed to raise
7
In relevant part, § 533 provides that the United States Attorney General
may appoint officials “to detect and prosecute crimes against the United States.”
28 U.S.C. § 533(1).
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§ 701 in the district court proceedings, and she has not articulated a reason for us
to depart from the general rule that “a federal appellate court does not consider an
issue not passed on below.” Walker v. Mather (In re Walker) , 959 F.2d 894, 896
(10th Cir. 1992) (quotation omitted). Moreover, regardless of whether 5 U.S.C.
§§ 701-706 provide federal district courts with jurisdiction to review actions of
federal agencies in certain administrative contexts, 8
these statutes do not provide
any basis for mandamus relief in this case. The initiation of a criminal
investigation by the FBI is a discretionary act, and the federal courts do not have
the power to grant mandamus relief with respect to discretionary acts of FBI
officers. See Jafree v. Barber , 689 F.2d 640, 643 (7th Cir. 1982). As a result, it
would be futile to grant Roberts leave to amend her complaint.
The judgment of the district court is AFFIRMED. We also GRANT:
(1) the motion to supplement the record that Roberts filed on September 24, 2003;
and (2) the motion to add a document to the supplemental appendix that
defendants filed on October 29, 2003.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
8
Section 701 is part of the judicial review provisions contained in the
federal Administrative Procedure Act. See 5 U.S.C. §§ 701-706.
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