Ignacio v. Armstrong

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

TEVIS R. IGNACIO, 
Plaintiff-Appellant,
v.
JUDGES OF THE UNITED STATES
COURT OF APPEALS FOR THE NINTH
CIRCUIT; MARY M. SCHROEDER,
personally and in her capacity as
CHIEF JUDGE FOR THE NINTH
CIRCUIT; FERDINAND F. FERNANDEZ;
KIM MCLANE WARDLAW; WILLIAM
A. FLETCHER; BARRY G.
SILVERMAN; PAMELA ANN RYMER;
STEPHEN REINHARDT; SIDNEY R. No. 03-17181
THOMAS; EDWARD LEAVY; MICHAEL
DALY HAWKINS; JOHNNIE B.  D.C. No.
CV-03-00583-PMP
RAWLINSON, personally and in their
capacity as CIRCUIT JUDGES; OPINION
JUDGES OF THE UNITED STATES
DISTRICT COURT FOR THE
DISTRICT OF NORTHERN CALIFORNIA,
in their capacity as Judges,
SAUNDRA BROWN ARMSTRONG,
RONALD M. WHYTE, JEREMY FOGEL,
personally and in their capacity as
UNITED STATES DISTRICT COURT
JUDGES; UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF
NEVADA, DAVID W. HAGEN,
VALERIE P. COOKE, HOWARD D.
MCKIBBEN, personally and in their


7687
7688 IGNACIO v. ARMSTRONG

capacity as UNITED STATES 
DISTRICT COURT JUDGES; UNITED
STATES DEPARTMENT OF JUSTICE;
UNITED STATES ATTORNEY GENERAL
OFFICE; UNITED STATES MARSHAL
SERVICE; FEDERAL BUREAU OF
INVESTIGATION; UNITED STATES
SENATORS, BARBARA BOXER and
DIANNE FEINSTEIN, personally and
in their capacity as senators;
STATE OF CALIFORNIA
COMMISSION ON JUDICIAL
PERFORMANCE; GOVERNOR GRAY
DAVIS, personally and in his
capacity as governor; ATTORNEY
GENERAL OFFICE FOR THE STATE OF
CALIFORNIA; TOM BLAKE and DAVID 
VERHEY, personally and in their
capacity as DEPUTY ATTORNEYS
GENERAL; SANTA CLARA COUNTY
DISTRICT ATTORNEYS OFFICE, MARK
A. GONZALEZ and JOHN POSTHAUER,
personally and in their capacity as
DEPUTY ATTORNEYS; PAULA
BERTINETT-KUTY, personally and in
her capacity as the CHIEF
ASSISTANT DISTRICT ATTORNEY;
JUDGES OF SANTA CLARA COUNTY
SUPERIOR COURT, FAMILY LAW
DIVISION, in their capacity as
judges, JAMES W. STEWARD; LESLIE
C. NICHOLS; JAMIE JACOB MAY;

 IGNACIO v. ARMSTRONG 7689

MARY ANN GRILLI; JERALD A. 
INFANTINO; RICHARD J. MCADAMS;
RICHARD J. TORRONE, in their
capacity as SUPERIOR COURT
JUDGES; FAMILY COURT
SERVICES FOR THE SANTA CLARA
COUNTY FAMILY LAW DIVISION, in
their capacity as EVALUATORS and
MEDIATORS; KAREN DREEN and
JEAN O’BRIEN, personally and in
their capacity as mediators; THE
STATE BAR OF CALIFORNIA; THE
LAW OFFICES OF HOGE, FENTON,
JONES & APPEL, INC.; MAUREEN A. 
FOLAN, personally and in her
capacity as an attorney; THE LAW
OFFICE OF MORGAN, FRANICH,
FREDKIN & MARSH; WILLIAM
SIAMAS, personally and in her
capacity as an attorney; MICHAEL
J. SANTORO, personally and in his
capacity as an attorney; WALTER
PIERCE HAMMON, personally and in
his capacity as an attorney; CONNIE
MARDESICH; NICK MARDESICH,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, District Judge, Presiding

Submitted April 5, 2006*
San Francisco, California

*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
7690 IGNACIO v. ARMSTRONG
Filed July 12, 2006

Before: Mary M. Schroeder, Chief Judge, Stephen S. Trott
and Andrew J. Kleinfeld, Circuit Judges.

Opinion by Judge Trott
7692 IGNACIO v. ARMSTRONG

COUNSEL

Tevis R. Ignacio, pro se, for the plaintiff-appellant.
 IGNACIO v. ARMSTRONG 7693
OPINION

TROTT, Circuit Judge:

Pro se appellant, Tevis R. Ignacio, appeals the district
court’s dismissal of his complaint alleging that all the judges
from the Ninth Circuit, other federal and state judges, public
officials, and certain private individuals, conspired to dismiss
Ignacio’s previous lawsuits. We affirm the district court and
hold, under the “rule of necessity,” that we are not disquali-
fied from deciding Ignacio’s appeal.

I

On May 17, 1999, a California superior court judge sus-
pended Ignacio’s access to his minor son and divided up mari-
tal assets between Ignacio and his ex-wife. The superior court
based the decision to deny Ignacio access to his son on a find-
ing that Ignacio was bipolar with paranoid-psychophrenic ten-
dencies and that he refused to take medication. In addition,
the court designated Ignacio as a “vexatious litigant” pursuant
to California Code of Civil Procedure, sections 391, et seq.,
for repeatedly filing frivolous papers with the court. Ignacio’s
designation as a vexatious litigant placed restrictions on his
ability to file claims and appeals in California state court.

In what appears to be an attempt to avoid his vexatious liti-
gant designation in state court, Ignacio filed suit in the United
States District Court for the Northern District of California.
Ignacio sued the superior court judge who presided over his
domestic case, his ex-wife, opposing counsel, and other
judges and justices of the California trial and appellate courts,
along with various other state and county officials. In that suit
he attacked the determinations of the superior court and
asserted that the California “vexatious litigant” law was
unconstitutional. In 2002, after the case was transferred to the
Northern District Court’s Oakland Division, the complaint
was dismissed without leave to amend by Judge Saundra
7694 IGNACIO v. ARMSTRONG
Brown Armstrong. Judge Armstrong held that the district
court did not have subject matter jurisdiction over Ignacio’s
claims attacking the state court decision and that any of his
remaining claims were baseless. On November 21, 2002, we
affirmed on the same grounds.

At some point, Ignacio moved to Reno, Nevada. On May
22, 2003, Ignacio attempted to remove his already decided
divorce action to federal court in the District of Nevada. On
June 12, 2003, the district court dismissed sua sponte the
complaint for lack of subject matter jurisdiction. Ignacio
appealed that ruling and we upheld the district court’s deter-
mination.

On October 29, 2003, Ignacio filed the present action also
in the District of Nevada. Ignacio’s complaint names as
defendants, first, “Judges of the United States Court of
Appeals for the Ninth Circuit, in their capacity as judges.” By
that Ignacio apparently means all Ninth Circuit judges. His
complaint names specifically a number of individual judges,
including Chief Judge Schroeder who is a member of this
panel, both personally and in their capacity as judges. He
alleges that the judges of the Ninth Circuit, other judges
including federal district court and California state court
judges, the former California governor, United States senators
and other government officials, as well as private individuals
involved in his California domestic dispute, conspired to have
his previous cases dismissed. Ignacio specifically asserts that
the Ninth Circuit judges “are culpable for their conscious par-
allelism of their legal duties by their wanton negligence and
ultrahazardous activities of dissmissing [sic] a/or complaint(s)
in a criminal conspiracy.”

On November 12, 2003 the district court dismissed the case
and entered judgment. On November 17, 2003, Ignacio timely
appealed.
 IGNACIO v. ARMSTRONG 7695
II

Before reaching the merits, we must first address the issue
of recusal.

A

[1] In a typical situation we would be disqualified from
hearing this appeal. See 28 U.S.C. § 455(b)(5)(i) (providing
that a federal judge “shall” disqualify him or herself when “a
party to the proceeding”). There is, however, an exception to
disqualification—the “rule of necessity.”1 Pursuant to the rule
of necessity, a judge is not disqualified to try a case because
of a personal interest in the matter at issue if “the case cannot
be heard otherwise.” United States v. Will, 449 U.S. 200, 213
(1980) (holding that the rule of necessity is an exception to
the recusal requirements of 28 U.S.C. § 455).

[2] The question here is whether the rule of necessity
applies when a plaintiff, like Ignacio, has sued all the mem-
bers of the Ninth Circuit, thereby making it impossible for the
circuit to convene a three-member panel consisting of Ninth
Circuit judges that are not a party to this suit. For the reasons
set forth below, we hold that the rule of necessity applies
when, like here, a litigant indiscriminately sues all the judges
of the Ninth Circuit.

B

[3] Three of our sister circuits have already addressed the
indiscriminate litigant problem. See Bolin v. Story, 225 F.3d
1234, 1238 (11th Cir. 2000); Switzer v. Berry, 198 F.3d 1255,
1
The rule of necessity is an ancient law that was part of the English
common law and that has been traced back to 1430. See Dimes v. Grand
Junction Canal Co., 10 Eng. Rep. 301, 313 (1852). The rule has been
applied numerous times in state and federal courts in this country. See
Atkins v. United States, 556 F.2d 1028, 1036-38 (Ct. Cl. 1977) (setting
forth the history of the rule of necessity in this country).
7696 IGNACIO v. ARMSTRONG
1257 (10th Cir. 2000); Tapia-Ortiz v. Winter et al., 185 F.3d
8, 10 (2d Cir. 1999). In Tapia-Ortiz, a pro se prisoner brought
a RICO action against all the judges of the Second Circuit
Court of Appeals and its staff attorneys. 185 F.3d at 9-10. The
litigant, like Ignacio, argued that the judges and staff inten-
tionally conspired to not address issues raised on appeal. Id.
at 10. The Second Circuit concluded that even though “it is
possible to convene a disinterested panel in another circuit
[that possibility] does not require transfer here, where appel-
lant has indiscriminately named all then-current Second Cir-
cuit judges as defendants, even those who had no role in
deciding either of his appeals.” Id. The Second Circuit was
concerned with, among other things, plaintiffs’ ability to
impede the administration of justice by suing judges “until
their case is transferred out” of the circuit. Id. at 11 (citing and
quoting Andersen v. Roszkowski, 681 F. Supp. 1284, 1289
(N.D. Ill. 1988)).

[4] In Switzer, a prisoner who had filed a § 2254 habeas
petition also filed a pro se RICO action against all of the
active and senior judges of the Tenth Circuit Court of
Appeals, two federal district court judges in the District of
Colorado, a federal magistrate judge, the U.S. Attorney in the
district, the clerk of the Tenth Circuit, and the Tenth Circuit’s
chief staff counsel. 198 F.3d at 1257. The Tenth Circuit
adopted the Second Circuit reasoning and extension of the
“rule of necessity.” Id. at 1258. The Tenth Circuit applied this
holding “both to appeals in which the judges are named and
to associated or subsequent appeals in which the plaintiff/
petitioner is a party but the judges are not named.” Id. Similar
to the Second Circuit, the Tenth Circuit noted its concern with
providing litigants a “veto power over sitting judges, or a
vehicle for obtaining a judge of their choice.” Id. (citing and
quoting United States v. Cooley, 1 F.3d 985, 992-93 (10th Cir.
1993)).

[5] In Bolin, a prisoner brought a civil rights action for
declaratory and injunctive relief against most of the active and
 IGNACIO v. ARMSTRONG 7697
senior judges on the Eleventh Circuit, the U.S. Attorney and
an Assistant U.S. Attorney in the district, a named IRS agent
and other named government officials, as well as unnamed
law clerks and staff attorneys. 225 F.3d at 1236-37. The pri-
mary basis for the complaint was that “the defendant federal
judges do not READ anything submitted by pro se litigants,
thereby defrauding them of the judgments that are rightfully
theirs.” Id. The Eleventh Circuit, identifying the analyses of
the Second and Tenth Circuit, adopted the same view and
held that “the rule of necessity allows at least those judges on
this Court who have not been involved in plaintiff’s prior
appeals to hear this appeal.” Id. at 1239.

Ignacio’s complaint presents the same recusal problem by
naming as defendants the “Judges of the United States Court
of Appeals for the Ninth Circuit.” And, for the reasons identi-
fied by the Second, Tenth, and Eleventh Circuits, we conclude
that we can hear Ignacio’s appeal.

[6] The rule of necessity allows a judge, normally disquali-
fied, to hear a case when “the case cannot be heard other-
wise.” Will, 449 U.S. at 213. The case cannot be heard
otherwise, when as pointed out by our sister circuits, a plain-
tiff has named all of the judges in a circuit as defendants.
Thus, an underlying legal maxim for the rule of necessity is
that “where all are disqualified, none are disqualified.” Pilla
v. American Bar Ass’n., 542 F.2d 56, 59 (8th Cir. 1976)
(internal citations omitted); see also Chad M. Oldfather,
Defining Judicial Inactivism: Models of Adjudication and the
Duty to Decide; 94 Geo. L.J. 121, 128 n.18 (2005). This
maxim applies here. Ignacio has sued the judges of the Ninth
Circuit—he has indiscriminately sued all. If all the judges of
the Ninth Circuit are disqualified as a result of Ignacio’s com-
plaint, he has eliminated the proper legal forum charged with
reviewing the dismissal of his action. As this goes to the very
purpose of the rule of necessity—not permitting a litigant to
“destroy the only tribunal with power in the premises,” see
Brinkley v. Hassig, 83 F.2d 351, 357 (10th Cir. 1936)—we
7698 IGNACIO v. ARMSTRONG
hold that the rule should be extended to circumstances like
this where a litigant has named uncritically all the judges of
this circuit.

[7] To hold otherwise would allow and possibly encourage
plaintiffs to impede the administration of justice by suing
wholesale all the judges in a district or circuit until their case
is transferred. See Andersen v. Roszkowski, 681 F. Supp.
1284, 1289 (N.D. Ill. 1988). Furthermore, we reject the con-
tention that the ability to bring in judges from other circuits
to hear the case precludes the application of the rule of neces-
sity as this would be the pragmatic equivalent of having the
case transferred out of circuit. As with the Tenth Circuit, we
have reservations about giving litigants a veto right over sit-
ting judges by providing them an improper means for getting
their case transferred out of the circuit. See Switzer, 198 F.3d
at 1258 (citing United States v. Colley, 1 F.3d 985, 993 (10th
Cir. 1993)).

Thus, having found that recusal is not necessary, we turn to
Ignacio’s substantive claims.

III

The district court properly dismissed Ignacio’s complaint
for lack of subject matter jurisdiction. We review the exis-
tence of subject matter jurisdiction de novo. Coyle v. P.T.
Garuda Indonesia, 363 F.3d 979, 984 n.7 (9th Cir. 2004).

[8] “As courts of original jurisdiction, federal district courts
have no authority to review the final determinations of a state
court in judicial proceedings.” Branson v. Nott, 62 F.3d 287,
291 (9th Cir. 1995). This legal theory, commonly referred to
as the Rooker-Feldman doctrine, precludes federal adjudica-
tion of a claim that “amounts to nothing more than an imper-
missible collateral attack on prior state court decisions.” Id.
(citing MacKay v. Pfeil, 827 F.2d 540, 543 (9th Cir. 1987)).
The doctrine also precludes constitutional claims that are “in-
 IGNACIO v. ARMSTRONG 7699
extricably intertwined” with the forbidden appeal. See Noel v.
Hall, 341 F.3d 1148, 1157 (9th Cir. 2003).

[9] A review of Ignacio’s complaint reveals it as yet
another attempt to attack collaterally the California superior
court determination. The complaint contains no prayer for
relief, but rather is a long list of rambling grievances regard-
ing the determinations made by the California superior court
in his domestic case. Ignacio prays for no damages. The only
plausible interpretation of his complaint is that he wishes for
the dismissed cases—all having to do with what he perceives
as problems with his domestic dispute—to be reinstated. Illus-
trative of his preoccupation with the superior court determina-
tion is the fact that he continues to name the individuals
involved in his state court domestic action and spends the
major part of his briefing attacking those individuals. Igna-
cio’s only other cognizable assertion is directed at federal
judges and government officials who refused to interfere with
the rightful authority of the state court.

[10] Accordingly, because the complaint is nothing more
than another attack on the California superior court’s determi-
nation in Ignacio’s domestic case and the related determina-
tions made by the federal courts that they lack subject matter
jurisdiction, the district court properly dismissed the case.

IV

The district court’s dismissal of Ignacio’s lawsuit is
affirmed. We conclude that under the rule of necessity we
may entertain Ignacio’s appeal. We conclude also that the dis-
trict court determined properly that it had no subject matter
jurisdiction to consider the action because Ignacio’s claims
amounted to collateral attacks on a state court determination.

AFFIRMED.