Geoffrey N. FIEGER, Plaintiff-Appellant, v. John D. FERRY, JR., et al., Defendants-Appellees, 471 F.3d 637

STAFFORD, D.J., delivered the opinion of the court, in which SILER, J., joined. CLAY, J. (pp. 646-51), delivered a separate concurring opinion. OPINION STAFFORD, District Judge. Plaintiff, Geoffrey N. Fieger (“Fieger”), appeals the district court’s dismissal of his § 1983 civil rights action challenging the refusal of certain Michigan Supreme Court Justices to recuse themselves from cases in which he is involved. We AFFIRM the district court’s decision to dismiss Fieger’s challenge to the Justices’ past recusal decisions.

We REVERSE the district court’s decision to dismiss Fieger’s challenge to the constitutionality of Michigan’s recusal rule. I. BACKGROUND This appeal arises out of what the district court described as the “acrimonious and well-publicized dialogue” between Fieger, a former gubernatorial candidate and well-known Michigan trial lawyer, and several justices of the Michigan Supreme Court. Fieger has been an outspoken critic of the Michigan Supreme Court, and — in turn- — several of the justices have made public remarks regarding Fieger.

Claiming bias, Fieger sought the recusal of four of the justices — Maura Corrigan, Clifford W. Taylor, Robert P. Young, Jr., and Stephen J. Markman (collectively, “the Justices”) — in two appeals that were pending before the Michigan Supreme Court in cases involving his clients. In one of those cases, Gilbert v. DaimlerChrysler Corp., 469 Mich. 883, 669 N.W.2d 265 (Mich.2003), a jury awarded Fieger’s clients a substantial verdict.

After the verdict was affirmed by the Michigan Court of Appeals, the Michigan Supreme Court granted leave to appeal, then reversed the trial court’s judgment entered on the verdict, thus causing Fieger to lose his entitlement to contingent fees. In the other case, Graves v. Warner Brothers, 469 Mich. 853, 669 N.W.2d 552 (Mich.2003), a judgment favorable to Fieger’s clients was reversed by the Michigan Court of Appeals. The Michigan Supreme Court later denied the plaintiffs application for appeal, again causing Fieger to lose his entitlement to contingent fees.

Although Fieger was trial counsel in both cases, he did not argue either case at the appellate level. Before rulings were issued on the recu-sal motions in Gilbert and Graves, Fieger and his clients filed an action in the United States District Court for the Eastern District of Michigan (Gilbert v. Ferry, No. 03-60185), claiming that they were entitled to a fair hearing on the recusal motions before an impartial tribunal.

After the Justices denied the recusal motions in the two state court cases, the federal district court dismissed the action for lack of subject matter jurisdiction on the basis of the Rooker-Feldman doctrine. Gilbert v.

Ferry, 298 F.Supp.2d 606, 618 (E.D.Mich.2003) (the “Gilbert case”)- The district court explained that, because the plaintiffs had unsuccessfully raised the same due process arguments in their motions for recusal filed in the state court cases, the federal court could not find that the plaintiffs’ due process rights were violated without also finding that the justices wrongly decided the motions for recusal. Id. at 618. This court initially affirmed the district court’s dismissal of the lawsuit on Rooker-Feldman grounds. Gilbert v. Ferry, 401 F.3d 411, 418 (6th Cir.2005).

On rehearing, however, this court vacated the Rooker-Feldman portion of its previous opinion, citing the Supreme Court’s recent decision in Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005). Gilbert v. Ferry, 413 F.3d 578, 579 (6th Cir.2005).

In Exxon Mobil, the Supreme Court held that the Rooker-Feldman doctrine is limited to “cases brought by state-court losers complaining of injuries by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Exxon, 544 U.S. at 284, 125 S.Ct. 1517.

Because Fieger and his clients filed their federal action before entry of judgment in the two parallel state court cases, this Court held that, under Exxon Mobil, the Rooker-Feldman doctrine did not preclude the district court’s review of the plaintiffs’ claims regarding the Justices’ interlocutory orders denying the plaintiffs’ motions to recuse. The Court nonetheless upheld the dismissal of the plaintiffs federal lawsuit on both Younger-abstention and collateral estoppel grounds. Gilbert, 413 F.3d at 579.

In the meantime, on his own behalf, Fieger filed this action in the United States District Court for the Eastern District of Michigan (Fieger v. Ferry, No. 04-60089) (the “Fieger case”). He did so in response to the district court’s suggestion in the Gilbert ease that “[i]f Mr. Fieger believes he has a viable claim, he may file a separate suit where his due process interests, whatever they may be, form the ‘primary question’ presented.” Gilbert, 298 F.Supp.2d at 616 n. 10.

In this, the Fieger case, Fieger alleged that the Justices deprived him of his constitutional rights by expressing “public, personal, political, and professional animus” toward him, by refusing to recuse themselves from cases in which he was involved, and by actively pursuing disciplinary proceedings against him before the Attorney Grievance Commission. Invoking 42 U.S.C. § 1983, Fieger asked the court to enter “[a] declaratory judgment that the Defendants, and each of them, has violated the Constitutional Rights of the Plaintiff’ as alleged.

He also asked the court to enter a judgment declaring that the Michigan Supreme Court’s

interpretation of the state’s recusal rule was unconstitutional. Finally, he asked the court to enter a judgment declaring that Michigan’s recusal rule either permits the State Court Administrator to assign a judge of another court to hear and decide a motion to recuse a supreme court justice or, in the alternative, is unconstitutional. The district court dismissed Feiger’s ease on Rooker-Feldman grounds.

Despite Fieger’s allegation that “[tjhere is no parallel State proceeding, nor any decision or order of a State Court which would divest this Court of jurisdiction under the Rooker-Feldman doctrine,” the district court determined that it could not enter “[a] declaratory judgment that the Defendants, and each of them, has violated the Constitutional Rights of the Plaintiff’ without sitting in review of the state court’s implicit judgment that Fieger’s constitutional rights were not violated by the Justices’ failure to recuse themselves.

The district court also rejected Fieger’s as-applied challenge to Michigan’s recusal rule, refusing to “second guess” the Michigan Supreme Court’s

interpretation of its own rule. Finally, the district court rejected Fieger’s facial challenge to the state court recusal rule, finding such challenge to be inextricably intertwined with the final judgments of the Michigan Supreme Court. In the words of the district court: The substance and language of the Complaint make clear that Plaintiffs constitutional challenge is not “general” at all; rather the Complaint’s factual and legal allegations are exclusively limited to the manner in which Plaintiff believes the Justices violated his rights or the rights of his clients by refusing to recuse themselves.

Plaintiffs factual allegations are entirely specific to the Justices’ political censure of him and their rejection of his motions for recusal. More conspicuously, Plaintiffs legal claims are limited to the alleged injury to Ms constitutional rights caused by the Justices’ decision not to recuse themselves. Indeed, the very manner in which Plaintiff frames the issue presented by his putative challenge betrays his intention to relitigate issues that were prominent in the state proceedings.

Certainly, there may be situations where a portion of a complaint stating a general challenge may be permitted to proceed even though the general thrust of the complaint presents an as-applied challenge. However, where, as here, a complaint is devoid of any legal or factual claim that is independent of previous state court proceedings, the Rooker-Feldman doctrine requires dismissal. Distr. Ct. Order at 12-13 (citations omitted); J.A. at 28-29. Fieger filed this timely appeal on March 1, 2005. II.

MICHIGAN’S RECUSAL RULE Michigan Court Rule (“MCR”) 2.003 governs the disqualification of judges in civil proceedings, providing, in pertinent part, as follows: (

A) Who May Raise. A party may raise the issue of a judge’s disqualification by motion, or the judge may raise it. (

B) Grounds. A judge is disqualified when the judge cannot impartially hear a case, including but not limited to instances in which:

(1) The judge is personally biased or prejudiced for or against a party or attorney. (

C) Procedure.

(3) Ruling. The challenged judge shall decide the motion. If the challenged judge denies the motion, (

a) in a court having two or more judges, on the request of a party, the challenged judge shall refer the motion to the chief judge, who shall decide the motion de novo; (

b) in a single-judge court, or if the challenged judge is the chief judge, on the request of a party, the challenged judge shall refer the motion to the state court administrator for assignment to another judge, who shall decide the motion de novo. Fieger maintains that the Michigan Supreme Court does not follow the procedures set forth in MCR 2.003(c)(3) for review of a judge’s decision not to recuse himself or herself from a case. He contends that, by failing to follow such procedures, the Michigan Supreme Court violates the Constitutional guarantee to due process.

In his complaint, he asks the court to enter a declaratory judgment that the word “judge” in MCR 2.003 includes a “Justice” of the Michigan Supreme Court, thus making the review procedures applicable to the Michigan Supreme Court. In the alternative, Fieger asks the Court to declare that the rule is unconstitutional, both on its face and as applied. III. THE ROOKER-FELDMAN DOCTRINE In Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923), the Supreme Court held that a federal district court may not review a state court decision for alleged federal law error.

Such holding was reaffirmed sixty years later in District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). In Feldman, the court wrote: [L]ower federal courts possess no power whatever to sit in direct review of state court decisions. If the constitutional claims presented to a United States District Court are inextricably intertwined with the state court’s denial [of a claim] in a judicial proceeding ... then the District Court is in essence being called on to review the state-court decision. This the District Court may not do.

Id. at 483 n. 16, 103 S.Ct. 1303 (internal quotation marks and citation omitted). The principles enunciated in Rooker and Feldman have become known as the Rook-er-Feldman doctrine. As clarified in Exxon Mobil, application of the doctrine is confined to “cases brought by state-court losers complaining of injuries 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, 125 S.Ct. 1517.

As stressed in Exxon Mobil, “[i]f a federal plaintiff pres-entís] 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.” Id. at 293, 125 S.Ct. 1517 (internal quotation marks omitted); see also McCormick v.

Braverman, 451 F.3d 382, 394 (6th Cir.2006) (explaining that “[i]n Exxon, the Supreme Court implicitly repudiated the circuits’ post-Feldman use of the phrase ‘inextricably intertwined’ to extend Rook-er-Feldman to situations where the source of the injury was not the state court judgment”); Hoblock v. Albany County Bd. of Elections, 422 F.3d 77, 87 (2d Cir.2005) (explaining that “federal plaintiffs are not subject to the Rooker-Feldman bar unless they complain of an injury caused by a state judgment” (emphasis omitted)); Davani v.

Virginia Dep’t of Transp., 434 F.3d 712, 719 (4th Cir.2006) (explaining that “[u]nder Exxon, ... Feldman’s ‘inextricably intertwined’ language does not create an additional legal test for determining when claims challenging a state-court decision are barred, but merely states a conclusion: if the state-court loser seeks redress in the federal district court for the injury caused by the state-court decision, his federal claim is, by definition, ‘inextricably intertwined’ with the state-court decision, and is therefore outside of the jurisdiction of the federal district court”).

In other words, “[t]he key point is that the source of the injury must be from the state court judgment itself; a claim alleging another source of injury is an independent claim.” McCormick, 451 F.3d at 394. IV. DISCUSSION A. Standard of Review This court reviews de novo a district court’s dismissal of a case on the grounds that the Rooker-Feldman doctrine deprives it of subject matter jurisdiction. McCormick, 451 F.3d at 389. B. Standing Although the district court did not address the issue of Fieger’s standing to sue, it is — of course — an issue that may be raised and/or considered at any time.

In general, to establish standing to bring suit, a plaintiff must show that (1) he or she has “suffered an ‘injury in fact’ that is (

a) concrete and particularized and (

b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). In the context of a declaratory judgment action, allegations of past injury alone are not sufficient to confer standing.

The plaintiff must allege and/or “demonstrate actual present harm or a significant possibility of future harm.” Peoples Rights Org., Inc. v. City of Columbus, 152 F.3d 522, 527 (6th Cir.1998); see also O’Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) (explaining that “[pjast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief’); Golden v.

Zwickler, 394 U.S. 103, 109-10, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969) (dismissing the plaintiffs action seeking a declaration that a- state statute was unconstitutional because, although the plaintiff had been prosecuted under the statute in the past, the likelihood of the plaintiffs suffering repeat exposure to the statute was remote and, thus, the plaintiff lacked standing). Here, Fieger has alleged that “[t]he threat that the Plaintiff cannot, and will not, receive a fair hearing before an impartial and independent tribunal is real, immediate, and continuing.” Compl. at ¶ 20.

In 2005, the district court in Gilbert noted that “Mr. Fieger has been involved with as many as thirty-eight cases filed with the [Michigan] Supreme Court.” Gilbert, 298 F.Supp.2d at 609. In his complaint, Fieger alleged that one of the Justices stated — during the 2000 Election Cycle — that “Geoffrey Fieger has $90 million in lawsuit awards pending in the State Court of Appeals.” Compl. at ¶ 11(f). Given his litigation history, it is reasonable to conclude that there is a significant, rather than a remote, possibility that Fieger’s present and future cases will someday reach the Michigan Supreme Court.

Because it is, therefore, likely, rather than speculative, that Fieger will again face the recusal issue that he has faced in past cases, we find that Fieger has standing to pursue his claim for declaratory relief in this case. C.

Challenge to the Justices’ Past Actions In his brief on appeal, Fieger explains that “[t]he only relief which [he] sought, in the case at bar, was the entry of a declaratory judgment that the failure to provide a meaningful mechanism by which the impartiality of a member of the Michigan Supreme Court could be feasibly and realistically challenged was a denial of due process.” Pl.’s Br. at 15. It is unclear from his complaint, however, that Fieger so limits his § 1983 claim. Indeed, it is only in the

section entitled “Prayer for Relief’ that the reader of the complaint is made aware that Fieger seeks to challenge the constitutionality of Michigan’s recusal rules. His complaint otherwise focuses on the past actions of the Justices, including the Justices’ past expression of “public, personal, political, and professional animus” toward Fieger, the Justices’ pursuit of disciplinary proceedings against Fieger in reprisal for Fieger’s exercise of his First Amendment rights, and the Justices’ refusal “to recuse themselves from making decisions concerning [Fieger].” Compl. at ¶ 12; J.A. at 10-12.

The district court described Fieger’s complaint as being “devoid of any legal or factual claim that is independent of previous state court proceedings.” Dist. Ct. Op. at 13; J.A. at 29. Fieger, moreover, requests in his complaint a declaration that “the Defendants, and each of them, has violated the Constitutional Rights of the Plaintiff, as alleged.” Compl. at 7; J.A. at 13. The district court understandably construed such a request as a request for a declaration regarding the past actions of the Justices, including the Justices’ refusal to recuse themselves in past cases.

To the extent, if any, that Fieger seeks such a declaration, the district court was correct in finding that Rooker-Feldman precludes the federal courts from reviewing the Justices’ past recusal decisions. Fieger’s counsel conceded as much at oral argument. To this extent, therefore, the district court’s judgment must be affirmed. D. Challenge to Michigan’s Recusal Rule The more difficult issue is whether the district court was correct in determining that Fieger’s constitutional challenge (both facial and as-applied) to Michigan’s recusal procedures was barred by Rooker-Feldman.

Fieger challenges the district court’s decision, arguing that Rooker-Feldman is inapplicable to his claims. Among other things, Fieger stresses that he is asking the federal court to compel compliance with the Constitution in “the post-Gilbert litigation which poses the continuing conundrum, unresolved, and unresolveable, by the Michigan Supreme Court.” PL’s Br. at 16. He suggests, in other words, that his litigation is forward-looking, that it is independent of the two cases already decided, and that he is not complaining of injuries caused by those past eases.

Fieger’s counsel reiterated this argument during oral argument. The district court was not convinced by Fieger’s attempts to redefine the relief sought. Finding Fieger’s complaint devoid of any legal or factual claim independent of the previous state court proceedings, the court rejected Fieger’s argument regarding an independent claim, concluding that Rooker-Feldman barred all of Fieger’s claims, however couched, because — at the very least — they were inextricably intertwined with the final judgments of the Michigan Supreme Court. The district court cited two cases in support of its decision: Howell v.

Supreme Court of Texas, 885 F.2d 308 (5th Cir.1989), and Chafin v. West Virginia Supreme Court of Appeals, No. 3:98-0134, 1998 WL 1297605 (S.D.W.Va. Dec.18, 1998), aff'd, 203 F.3d 819 (4th Cir.1999). In Hoiuell, the Fifth Circuit considered whether the Rooker-Feldman doctrine barred a plaintiffs claim that a Texas Rule of Appellate Procedure, governing recusal and disqualification of judges, was unconstitutional on due process grounds.

Before filing his constitutional challenge in federal court, Howell (a judge on the Texas Court of Appeals) had filed motions requesting that the justices of the Texas Supreme Court recuse themselves from hearing an appeal from an adverse jury verdict in a case that he, as the plaintiff, had brought in state court. When the justices refused, Howell filed a § 1983 action in federal court. The Fifth Circuit concluded that Howell’s constitutional claim was barred by Rooker-Feldman because it was inextricably intertwined with the state court’s judgment.

In Chafin, the plaintiff likewise challenged the constitutionality of the state’s recusal rules. Before filing suit in federal court, the plaintiff had unsuccessfully requested that certain state supreme court justices disqualify themselves from hearing his divorce appeal.

While acknowledging that a ruling to the effect that West Virginia’s recusal rules were unconstitutional would not necessarily mean that the recusal decisions themselves were wrong, the federal district court nonetheless dismissed the claim, finding that the plaintiffs constitutional claim was inextricably intertwined with the state court decision.

Such finding was based not only on the language of the plaintiffs complaint, the substance of which was limited to a core allegation that the state justices had violated his constitutional rights by not recusing themselves from the appeal of his divorce, but also on the obvious inability of the plaintiff to establish harm in the absence of decisions by the state court justices. The Fourth Circuit affirmed the district court’s decision on Rooker-Feldman grounds. It is important to note that Howell and Chafin were both decided before the Supreme Court clarified the reach of Rooker-Feldman in Exxon Mobil.

Indeed, given the lessons taught in Exxon Mobil and its progeny, the decisions in Howell and Chaf-in are not persuasive here. In Feldman, the Supreme Court explained: Challenges to the constitutionality of state bar rules ... do not necessarily require a United States District Court to review a final state court judgment in a judicial proceeding.... United States District Courts ... have subject matter jurisdiction over general challenges to state bar rules, promulgated by state courts in non-judicial proceedings, which do not require review of a final state court judgment in a particular case.

Feldman, 460 U.S. at 486, 103 S.Ct. 1303. In Exxon Mobil, the Court emphasized that “[i]f a federal plaintiff ‘presents] some independent claim, albeit one that denies a legal conclusion that a state court has reached in a ease to which he was a party ..., then there is jurisdiction and state law determines whether the defendant prevails under principles of preclusion.’ ” Exxon Mobil, 544 U.S. at 293, 125 S.Ct. 1517. In McCormick v.

Braverman, this court addressed the question of “how to differentiate between a claim that attacks a state court judgment, which is within the scope of the Rooker-Feldman doctrine, and an independent claim, over which a district court may assert jurisdiction.” 451 F.3d at 393. In the words of the McCormick court: The inquiry ... is the source of the injury the plaintiff alleges in the federal complaint. If the source of the injury is the state court decision, then the Rook-er-Feldman doctrine would prevent the district court from asserting jurisdiction.

If there is some other source of injury, such as a third party’s actions, then the plaintiff asserts an independent claim. Id. To the extent that Fieger challenges the constitutionality of Michigan’s recusal rules by alleging that “[t]he threat that the Plaintiff cannot, and will not, receive a fair hearing before an impartial and independent tribunal is real, immediate, and continuing,” Rooker-Feldman does not bar his action. To that extent, the source of Fieger’s alleged injury is not the past state court judgments; it is the purported unconstitutionality of Michigan’s recusal rule as applied in future cases.

Such a claim is independent of the past state court judgments. Thus, insofar as the district court dismissed Fieger’s challenge to the constitutionality of Michigan’s recusal rule pursuant to the Rooker-Feldman doctrine, the court’s judgment must be reversed. V. CONCLUSION For the reasons set forth above, the district court’s judgment of dismissal is AFFIRMED to the extent, if any, that Fieger challenges the Justices’ past recu-sal decisions. The district court’s judgment of dismissal is REVERSED to the extent Fieger challenges the constitutionality of Michigan’s recusal rule.

The case shall be REMANDED to the district court for further proceedings consistent with this opinion. . Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). . The State Court Administrator, John D. Ferry, Jr., is a named defendant in Fieger’s lawsuit. . A declaratory judgment is an inappropriate mechanism to address allegations of past harm. See AmSouth Bank v.

Dale, 386 F.3d 763, 786 (6th Cir.2004) (explaining that "[t]he 'useful purpose' served by the declaratory judgment action is the clarification of legal duties for the future, rather than the past harm a coercive tort action is aimed at redressing”). . Although Fieger was not a party in the state court cases, and while — generally—"[t]he Rooker-Feldman doctrine does not apply to bar a suit in federal court brought by a party that was not a party in the preceding action in state court,” United States v.

Owens, 54 F.3d 271, 274 (6th Cir.1995) (citation omitted), Fieger (whether on behalf of his clients or on his own behalf) cannot seek in federal court to undo a state court judgment.