RLR Investments, LLC v. City of Pigeon Forge, Tenn. ( 2021 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 21a0158p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
RLR INVESTMENTS, LLC,
│
Plaintiff-Appellant, │
> No. 20-6375
│
v. │
│
CITY OF PIGEON FORGE, TENNESSEE, │
Defendant-Appellee. │
┘
Appeal from the United States District Court
for the Eastern District of Tennessee at Knoxville.
No. 3:19-cv-00279—Curtis L. Collier, District Judge.
Decided and Filed: July 13, 2021
Before: CLAY, McKEAGUE, and LARSEN, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Gregory C. Logue, WOOLF MCCLANE BRIGHT ALLEN & CARPENTER
PLLC, Knoxville, Tennessee, Anthony C. White, THOMPSON HINE LLP, Columbus, Ohio,
Thomas M. Ritzert, THOMPSON HINE LLP, Cleveland, Ohio, for Appellant. Brian R. Bibb,
WATSON, ROACH, BATSON & LAUDERBACK, P.L.C., Knoxville, Tennessee, Nathan D.
Rowell, OGLE, ROWELL & PENLAND, P.C., Sevierville, Tennessee, for Appellee.
McKEAGUE, J., delivered the opinion of the court in which LARSEN, J., joined.
CLAY, J. (pp. 20–33), delivered a separate dissenting opinion.
_________________
OPINION
_________________
McKEAGUE, Circuit Judge. The City of Pigeon Forge, Tennessee, (City) decided to
construct a riverside pedestrian walkway that ran across RLR Investments, LLC’s (RLR’s) land.
No. 20-6375 RLR Investments, LLC v. City of Pigeon Forge, Tenn. Page 2
The City went to Tennessee state court with a petition for condemnation. The court determined
that the project had a legitimate public use under Tennessee and federal law and issued an order
of possession. Unhappy with that result, RLR filed a complaint in federal court alleging that the
Order was unconstitutional and inconsistent with Tennessee law, asking the federal court to
enjoin the Order’s enforcement. The district court held that it lacked subject-matter jurisdiction
under the Rooker-Feldman doctrine, and RLR appeals that determination, arguing that the
Supreme Court’s decision in Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280(2005), abrogated our precedent applying Rooker-Feldman to interlocutory orders. Because our
precedent and Exxon can comfortably coexist, we affirm.
I
RLR owns two adjacent tracts of land on the Little Pigeon River in Pigeon Forge. When
these events began, the first tract (Tract 1) had a private resort and parking spaces, while the
second tract (Tract 2) had a duplex building.
The City decided to build a pedestrian walkway along the Little Pigeon River. The
planned walkway went through both tracts, so the City filed a petition for condemnation
(Petition) in Sevier County Circuit Court. See Tenn. Code Ann. § 29-17-101 et seq.
(Tennessee’s eminent-domain law). The Petition sought a permanent easement across both
tracts, an easement which would make some or all of the parking spaces on Tract 1 unusable. In
addition, the Petition sought temporary construction easements, including one on which the City
would construct parking spaces on Tract 2 that would replace those lost on Tract 1.
RLR opposed the Petition. First, RLR argued that the compensation for the loss of the
spaces on Tract 1 was too low. Second, RLR argued that the City’s plan of building parking
spaces on Tract 2 to replace those lost by Tract 1 was a private, rather than public, purpose. See
Kelo v. City of New London, 545 U.S. 469, 477 (2005) (explaining takings law).
The Circuit Court held a hearing and issued an order of possession (Order) granting the
City everything the Petition sought. The court held it was “satisfied that the [C]ity ha[d] carried
its burden of proof that the [pedestrian walkway] project [wa]s for [a] public purpose” and that it
No. 20-6375 RLR Investments, LLC v. City of Pigeon Forge, Tenn. Page 3
was a “proper exercise of the eminent domain powers of the [C]ity.” The City took possession
of the land and built the walkway, but never built the parking spots on Tract 2.
RLR continued to challenge the Order of Possession in the state trial court. Its challenges
culminated in what it styled a motion for “summary judgment,” in which RLR continued to
argue that the Petition should be dismissed because it was not for a public purpose. Its theory
seemed to be that the private purpose supporting the building of the parking spaces on Tract 2
“tainted” the entire Petition; this was true, RLR believed, even though it agreed that the
easements across Tracts 1 and 2 were supported by the public purpose of building the pedestrian
walkway. The Circuit Court held a hearing, but it was unpersuaded that the private purpose of
the planned parking spaces required the entire Order of Possession to fall. The court denied the
motion and cleared the way for the proceeding to progress to the valuation of the land.
Before the valuation proceedings happened, RLR filed the instant two-count complaint in
federal court. The first count alleges an unlawful taking under the Fifth and Fourteenth
Amendments and 42 U.S.C. § 1983. The second count1 similarly alleges that the City took
“RLR’s property without a proper public purpose” and that the City’s “position that it may
enforce an unconstitutional Order of Possession” even though it was “without a proper public
purpose” is wrong. The prayer for relief requests judgments (1) “that the Order of Possession is
unconstitutional” and “without a proper public purpose”; (2) that the City violated state law
“when it took RLR’s land without a proper public purpose”; and an injunction (3)
enjoining the City from [(a)] taking any action to interfere with RLR’s right to
peaceful possession and use of its property; [(b)] enjoining the City from
exercising any ownership rights in RLR’s property pursuant to the Order of
Possession and from enforcing the Order of Possession; and [(c)] requiring the
City to refile a new petition for condemnation limiting any taking of RLR’s
property to an appropriation for which there is a proper public purpose.
The district court held that it lacked subject-matter jurisdiction under the
Rooker-Feldman doctrine. The court first held that the Rooker-Feldman doctrine still applies to
interlocutory orders under Sixth Circuit precedent (Pieper v. Am. Arb. Ass’n, Inc., 336 F.3d 4581
Erroneously labeled “Count Three” in the complaint.
No. 20-6375 RLR Investments, LLC v. City of Pigeon Forge, Tenn. Page 4
(6th Cir. 2003)) despite intervening Supreme Court case law (Exxon Mobil Corp. v. Saudi Basic
Indus. Corp., 544 U.S. 280 (2005)). Then, the court held that Rooker-Feldman applied here
because it was clear that the source of RLR’s injury was the state court’s Order.
II
For the necessary context, we start with the somewhat troubled history of the
Rooker-Feldman doctrine. Federal courts’ jurisdiction “is confined within such limits as
Congress sees fit to prescribe.” The Francis Wright, 105 U.S. (15 Otto) 381, 385 (1881); accord
Keene Corp. v. United States, 508 U.S. 200, 207 (1993). One such limit is hidden in 28 U.S.C.
§ 1257’s positive statement that “[f]inal judgments or decrees rendered by the highest court of a
State . . . may be reviewed by the Supreme Court.” If the Supreme Court can review “final
judgments” from state courts of last resort, then lower federal courts can’t. See Kovacic v.
Cuyahoga Cnty. Dep’t of Child. and Fam. Servs., 606 F.3d 301, 309 (6th Cir. 2010). That
negative inference is called the Rooker-Feldman doctrine. See Rooker v. Fid. Tr. Co., 263 U.S.
413 (1923); D.C. Ct. of Appeals v. Feldman, 460 U.S. 462 (1983).
In the two canonical cases, a litigant received a final judgment from a state’s highest
court and then sought review of that judgment from a federal district court rather than the
Supreme Court. Rooker, 263 U.S. at 414; Feldman, 460 U.S. at 483. Those are the easy cases,
and they outline the basic rule: appeals from state courts of last resort go only to the Supreme
Court. For a district court to hear such a case “would be an exercise of appellate jurisdiction[,]
[but] [t]he jurisdiction possessed by the District Courts is strictly original.” Rooker, 263 U.S. at
416; see, e.g., 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the United States.” (emphasis added)).
The lower courts expanded on the basic rule to deal with harder cases. The expansions
drew on Feldman’s principle that “lower federal courts possess no power whatever to sit in direct
review of state court decisions.” Feldman, 460 U.S. at 482 n.16 (quoting Atl. Coast Line R.R.
Co. v. Brotherhood of Locomotive Eng’rs, 398 U.S. 281, 296 (1970)). The generality of the
principle lent itself to broad expansion. See McCormick v. Braverman, 451 F.3d 382, 395 (6th
Cir. 2006) (noting how courts used Rooker-Feldman as “a panacea to be applied whenever state
No. 20-6375 RLR Investments, LLC v. City of Pigeon Forge, Tenn. Page 5
court decisions and federal court decisions potentially or actually overlap”); Stephen I. Vladeck,
The Increasingly “Unflagging Obligation”: Federal Jurisdiction after Saudi Basic and Anna
Nicole, 42 Tulsa L. Rev. 553, 563 (2007) (“Rooker-Feldman became a quasi-magical means of
docket-clearing . . . .”). But with expansion came complication. See VanderKodde v. Mary Jane
M. Elliott, P.C., 951 F.3d 397, 405 (6th Cir. 2020) (Sutton, J., concurring) (noting that the
doctrine became famous for “caus[ing] . . . mischief, creating needless complications, distracting
litigants and courts . . . , and helping no one”). Courts agreed that the doctrine prevented “a de
facto appeal from a state court judgment” in federal court, but “[d]etermining what constitutes a
forbidden de facto appeal . . . prove[d] difficult.”2 Kougasian v. TMSL, Inc., 359 F.3d 1136,
1139 (9th Cir. 2004).
The instant case involves one such difficulty: Does Rooker-Feldman apply to
interlocutory orders from lower state courts? We answered affirmatively in Pieper v. American
Arbitration Ass’n, Inc. 336 F.3d at 462. There, a state trial court issued an order compelling
Pieper to arbitrate. Id. at 460. Rather than appealing that order, Pieper filed a lawsuit in federal
court seeking “a declaration that the disputes between Pieper and [the state-court defendant]
were not properly subject to arbitration.” Id. On its face, the outcome in Pieper “seem[ed]
indisputable”—Rooker-Feldman applied because Pieper sought a de facto reversal of the state
court’s order to compel arbitration (despite the invocation of Pieper’s constitutional rights to due
process, a jury trial, etc.). Id. at 461.
Yet Pieper offered a twist on Rooker and Feldman, both of which had involved final
judgments from the state’s highest court. Congress gave the Supreme Court jurisdiction over
“[f]inal judgments . . . rendered by the highest court of a state,” 28 U.S.C. § 1257, but at issue in
Pieper was an, interlocutory order of a state trial court. Pieper argued that because the Supreme
2
The famous footnote from Feldman that expanded what might be considered a de facto appeal stated that
If the constitutional claims presented to a United States District Court are inextricably intertwined
with the state court’s denial in a judicial proceeding of a particular plaintiff’s application for
admission to the state bar, then the District Court is in essence being called upon to review the
state court decision. This the District Court may not do.
Feldman, 460 U.S. at 482 n.16.
No. 20-6375 RLR Investments, LLC v. City of Pigeon Forge, Tenn. Page 6
Court couldn’t hear an appeal of this interlocutory order or an order from a lower state court, the
order did not fall within the ambit of Rooker-Feldman’s negative inference. 336 F.3d at 462.
We disagreed, joining the majority of circuits at the time, and held “that the
Rooker-Feldman doctrine does apply to interlocutory orders and to orders of lower state courts.”
Id. (citing, inter alia, Campbell v. Greisberger, 80 F.3d 703, 707 (2d Cir. 1996); Port Auth.
Police Benevolent Ass’n, Inc. v. Port Auth. of N.Y. & N.J. Police Dep’t, 973 F.2d 169, 178 (3d
Cir. 1992)). The logic was obvious. If lower federal courts can’t review the final product of
state-court litigation, why should a lower federal court entertain an interlocutory appeal so long
as a state court hasn’t yet come to a conclusion? See id. “To hold otherwise would allow
potential relitigation of every state-court order . . . .” Id. at 464.
RLR claims that Pieper’s logic has since been called into question by the Supreme
Court’s decision in Exxon Mobil Corp. v. Saudi Basic Indus. Corp. 544 U.S. 280 (2005). Exxon
was a dispute over the royalties derived from a joint business venture. Id. at 289. The Saudi
Basic Industries Corporation (SABIC) sued Exxon Mobil in state court for a declaratory
judgment “that the royalty charges were proper,” and two weeks later Exxon Mobil sued SABIC
in federal court alleging the royalty charges were improper. Id. The state-court proceeding
reached a jury verdict, with an appeal to the state supreme court pending, by the time the Third
Circuit issued its opinion. Id. at 290. The Third Circuit held that Rooker-Feldman ended its
jurisdiction when the state court entered judgment on the jury verdict. Id.The Supreme Court disagreed because Exxon Mobil “was not seeking to overturn the
state-court judgment.” Id. at 291. To the contrary, both the state court and federal court properly
exercised jurisdiction at the outset of each case. That the state court happened to reach judgment
first implicated preclusion law rather than Rooker-Feldman. Id. at 292 (“When there is parallel
state and federal litigation, Rooker-Feldman is not triggered simply by the entry of judgment in
state court.”). Thus, Exxon stopped the use of Rooker-Feldman as a universal solution, halting
its corrosion of concurrent jurisdiction in state and federal courts, preclusion law, and
comity/abstention doctrines. Id. at 283–84, 292–93.
No. 20-6375 RLR Investments, LLC v. City of Pigeon Forge, Tenn. Page 7
But the Supreme Court didn’t end Rooker-Feldman, despite some scholars’ suggestion
otherwise. See, e.g., Samuel Bray, Rooker-Feldman (1923–2006), 9 Green Bag 2d 317, 317–18
(2006). The Court “h[e]ld” that Rooker-Feldman “is confined to cases of the kind from which
the doctrine acquired its name: 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, 544 U.S. at 284; accord Johnson
v. De Grandy, 512 U.S. 997, 1006 (1994). Post-Exxon, the lower courts have worked to effect
that confinement. But the general principle that “[f]ederal district courts do not stand as
appellate courts for decisions of state courts” survives. Hall v. Callahan, 727 F.3d 450, 453 (6th
Cir. 2013).
III
Here, we consider the scope of Rooker-Feldman’s confinement in answering a question
that the Court left open: “does [Rooker-Feldman] apply to bar federal actions commenced after
the grant of interlocutory relief in a state court proceeding[?]” Richard H. Fallon, Jr., John F.
Manning, Daniel J. Meltzer & David L. Shapiro, Hart & Weschler’s the Federal Courts and the
Federal System 1411 (7th ed. 2015). But we don’t write on a blank slate. Because we’ve
already said Rooker-Feldman does so apply in Pieper, we only answer whether Exxon “mandates
modification” of that decision. See United States v. Moody, 206 F.3d 609, 615 (6th Cir. 2000).
For the reasons outlined below, we determine that Exxon and Pieper can comfortably coexist and
accordingly affirm.
Before we reach Pieper, however, we assess whether Rooker-Feldman applies at all. We
review the district court’s Rooker-Feldman determination de novo. McCormick, 451 F.3d at
389.
A.
The starting point is the holding of Exxon: Rooker-Feldman applies in “[(1)] cases
brought by state-court losers [(2)] complaining of injuries caused by state-court judgments
[(3)] rendered before the district court proceedings commenced [(4)] and inviting district court
review and rejection of those judgments.” Exxon, 544 U.S. at 284. “The key words are ‘review’
No. 20-6375 RLR Investments, LLC v. City of Pigeon Forge, Tenn. Page 8
and ‘judgment.’” VanderKodde, 951 F.3d at 406 (Sutton, J., concurring). Usually Rooker-
Feldman cases are complicated because it’s difficult to determine if a plaintiff seeks review of a
state-court decision, see, e.g., Berry v. Schmitt, 688 F.3d 290, 300 (6th Cir. 2012), or if a decision
counts as a judgment, see, e.g., Van Hoven v. Buckles & Buckles, P.L.C., 947 F.3d 889, 892 (6th
Cir. 2020).
“But there’s no complexity when the litigant directly asks a federal district court to”
declare a state-court order to be unconstitutional and enjoin its enforcement. United States v.
Alkaramla, 872 F.3d 532, 534 (7th Cir. 2017). Here, it’s clear that RLR asks us to review the
state-court order of possession and that the order of possession counts as a judgment under
Rooker-Feldman.
1.
There’s no question that RLR asks us to “review” what the state court did. After Exxon,
we determine whether a plaintiff seeks review of a state-court judgment by looking at the
“source of the injury the plaintiff alleges in the federal complaint,” McCormick, 451 F.3d at 393,
and consider what relief the plaintiff requests, VanderKodde, 951 F.3d at 402 (majority opinion).
If the injury’s source is not the judgment, then the plaintiff’s federal claim is independent of the
state-court judgment and the district court has jurisdiction over the claim. See Hall, 727 F.3d at
454.
In its complaint, RLR asks for “[a] judgment declaring that the Order of Possession is
unconstitutional and that the City took RLR’s private property without a proper public purpose in
violation of the Fifth Amendment.” RLR proceeds to request an injunction to prevent the City
from “taking any action to interfere with RLR’s right to peaceful possession and use of its
property” and “from exercising any ownership rights in RLR’s property pursuant to the Order of
Possession and from enforcing the Order of Possession.” By asking a federal court to declare a
state-court order unconstitutional and prevent its enforcement, RLR impermissibly appealed the
state court’s order to the federal district court. See McCormick, 451 F.3d at 395 (applying
Rooker-Feldman to counts in which “Plaintiff alleges that the [state-court order] in and of itself
is illegal and causes Plaintiff harm.”); Alkaramla, 872 F.3d at 534; see also Berry, 688 F.3d at
No. 20-6375 RLR Investments, LLC v. City of Pigeon Forge, Tenn. Page 9
300 (holding Rooker-Feldman inapplicable when the plaintiff “does not request relief from the
[judgment] itself,” e.g., when the plaintiff “is not trying to get the [judgment] expunged or to get
the decision overturned”); Rooker, 263 U.S. at 414 (affirming district court’s dismissal of a
request to have a state-court judgment declared “null and void” because it violated the Contract
Clause).
RLR argues that it avoided the Rooker-Feldman doctrine by filing § 1983 and
constitutional claims that were not part of the state case, but that’s incorrect. The test is whether
the plaintiff’s injury stems from the state-court judgment, not whether the claims are identical.3
See, e.g., Pieper, 336 F.3d at 461 (applying Rooker-Feldman even though “none of the[] [claims]
w[ere] actually raised in the state-court litigation”). RLR would only prevail on its § 1983
claims or its constitutional claims if the state court were wrong, so the Order is the source of the
injury. See McCormick, 451 F.3d at 395. Nor is the City’s conduct here independent of the state
court’s Order. The City took RLR’s property as a consequence of the Order, not independently.
RLR asks for the type of review Rooker-Feldman forbids. The Supreme Court limited
Rooker-Feldman to instances “when a plaintiff asserts before a federal district court that a state
court judgment itself was unconstitutional or in violation of federal law,” id., and that’s exactly
what happened here.
2.
Whether the Order is a “judgment” under § 1257 is also straightforward. For the
purposes of Rooker-Feldman, the Supreme Court has defined a “judgment” under § 1257 to be
an “investigat[ion], declar[ation], and enforce[ment of] ‘liabilities as they [stood] on present or
past facts and under laws supposed already to exist.’” Feldman, 460 U.S. at 479 (final alteration
in original) (quoting Prentis v. Atl. Coast Line Co., 211 U.S. 210, 226 (1908)); see Van Hoven,
947 F.3d at 892 (holding that a writ of garnishment did not qualify as a judgment for
Rooker-Feldman). A court’s “ministerial action[s]” do not qualify as judgments. Feldman,
3
We also disagree with RLR’s contention that the issues it raised in state court differ from those raised in
federal court. In both instances, RLR argued that the City’s Order of Possession was an unconstitutional taking
without a valid public purpose.
No. 20-6375 RLR Investments, LLC v. City of Pigeon Forge, Tenn. Page 10
460 U.S. at 479. To determine whether the action is ministerial, we ask “whether the state court
addressed the claim ‘on the merits.’” Berry, 688 F.3d at 299 (quoting Feldman, 460 U.S. at
478).
The Order qualifies as a judgment. Under Tennessee law, the government can petition
for condemnation of land—exercise its eminent domain power—as “long as the property is taken
for a legitimate public use in accordance with the fifth and fourteenth amendments to the United
States Constitution [and] the Constitution of Tennessee.” Tenn. Code Ann. § 29-17-102; see id.§ 29-17-104. Accordingly, the judge considered the Petition, RLR’s objection, the testimony of
witnesses, counsel’s statements, and the balance of the record. He then applied the facts to
Tennessee’s eminent-domain law and concluded that “the [C]ity has carried its burden of proof
that the [Petition for Condemnation] is for public purpose . . . [and a] proper exercise of the
eminent domain powers of the [C]ity.” And in response to RLR’s subsequent attempts to have
the Order of Possession rescinded, the judge found that the order could stand “[r]egardless of
whether” providing for the construction of the parking spaces “was improper or not.”
Plainly, the judge made a merits determination. See Berry, 688 F.3d at 299. This case is
far from those which find a court action to be merely ministerial. See, e.g., Van Hoven, 947 F.3d
at 892–93 (holding that a writ of garnishment is ministerial because “[a] creditor may obtain one
simply by filing a form with the court clerk, who then issues the writ as long as the request
‘appears to be correct’” (quoting Mich. Ct. R. § 3.101(D))); see also Berry, 688 F.3d at 299
(assuming a warning letter qualified as a state-court decision when “the record demonstrate[d]
that the Inquiry Commission considered a complaint against Berry, evaluated evidence, and
decided that the case warranted informal disposition”).
B.
RLR contends that Rooker-Feldman doesn’t apply because the Order is not a final
judgment. According to its plain language, § 1257 only applies to “final judgments.” The Order
isn’t yet final, at least in the sense that the trial has not yet ended and appeals haven’t been
exhausted. But our precedent from Pieper allows the application of Rooker-Feldman to
interlocutory orders. Pieper, 336 F.3d at 462. RLR contends that Exxon abrogated Pieper.
No. 20-6375 RLR Investments, LLC v. City of Pigeon Forge, Tenn. Page 11
In the Sixth Circuit, a three-judge panel may not overturn a prior decision unless a
Supreme Court decision “mandates modification” of our precedent. Moody, 206 F.3d at 615;
accord United States v. Elbe, 774 F.3d 885, 891 (6th Cir. 2014); see also Jacobs v. Alam,
915 F.3d 1028, 1036 (6th Cir. 2019). Absent such mandate, or a decision from our en banc court
overruling our precedent, we are bound by what we’ve said before. Salmi v. Sec’y of HHS,
774 F.2d 685, 689 (6th Cir. 1985).
This principle is foundational to how the law develops. It serves the interests “of
uniformity, certainty, and stability in the law.” New York Life Ins. Co. v. Ross, 30 F.2d 80, 83
(6th Cir. 1928). Without it, each case would be a brand of first-impression exploration. See
Joseph W. Mead, Stare Decisis in the Inferior Courts, 12 Nev. L.J. 787, 795–96 (2012)
(describing how, historically, three-judge circuit-court panels could overrule their own
precedents). And the principle is also a critical piece of a larger stare decisis framework. It
interlocks with its corollaries. For example, when two precedents conflict, we are bound to
follow the first in time. United States v. Jarvis, 999 F.3d 442, 445–46 (6th Cir. 2021). And
when it seems that the Supreme Court might soon change a doctrine, we leave that prerogative to
the Court and do not try to anticipate the Court’s direction. See Rodriguez de Quijas v.
Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989). Failure to adhere to one stare decisis
principle echoes throughout the system.
The point is that our task is limited. Pieper has not been overruled by our en banc court.
And the Supreme Court has not offered any “directly applicable” analysis that is inconsistent
with Pieper. See United States v. White, 920 F.3d 1109, 1113 (6th Cir. 2019); Ne. Ohio Coal. for
the Homeless v. Husted, 831 F.3d 686, 720–21 (6th Cir. 2016). So Pieper binds us. We ask not
whether we would decide Pieper the same way with fresh eyes, but whether the holding of
Exxon mandates modification of Pieper.
1.
First, RLR argues we have already recognized Exxon’s abrogation of Pieper. In Quality
Associates, Inc. v. The Procter & Gamble Distributing LLC, we said in a footnote that Pieper
was “displaced” by Exxon and that Rooker-Feldman now applies only “where the state
No. 20-6375 RLR Investments, LLC v. City of Pigeon Forge, Tenn. Page 12
proceedings . . . ended” prior to the filing of the federal complaint. 949 F.3d 283, 290 n.5 (6th
Cir. 2020) (alteration in original) (quoting Nicholson v. Shafe, 558 F.3d 1266, 1277 (11th Cir.
2009)). But, as we later noted, any intimation that Exxon required a final judgment, including
through appeal exhaustion, was dicta4 because in Quality Associates the relevant state-court
order was not rendered until after the federal complaint was filed. See Hancock v. Miller, No.
20-5422, 2021 WL 1157843, at *6 n.4 (6th Cir. Mar. 26, 2021). There is no doubt that if a
federal complaint is filed before the relevant state-court judgment, Rooker-Feldman does not
apply. See, e.g., Hunter v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219, 233 (6th Cir. 2011).
After all, that’s Exxon itself. Quality Associates offers no binding guidance on
Rooker-Feldman’s application to federal complaints that challenge an existing interlocutory
state-court order.
2.
Second, RLR argues that Pieper is inconsistent with Exxon because, in its view, Exxon
clarified that Rooker-Feldman only applies “at the end of state court proceedings, not to
interlocutory state court orders.” This argument has prevailed at times in other circuits. When
we decided Pieper, we joined the majority of circuits in holding that Rooker-Feldman applied to
interlocutory orders. 336 F.3d at 462. Since then, most circuits that have considered RLR’s
argument that Exxon abrogated Pieper’s analogs have agreed. See, e.g., Malhan v. Sec’y U.S.
Dep’t of State, 938 F.3d 453, 461 (3d Cir. 2019); Nicholson, 558 F.3d at 1279; Guttman v.
Khalsa, 446 F.3d 1027, 1031 (10th Cir. 2006) (“Exxon Mobil reverses this holding [that
Rooker-Feldman applies to interlocutory orders].”).5
But of those circuits that have eschewed Pieper’s categorial rule, most have not adopted
the opposite categorical rule in its place. Rather, they have adopted a hybrid approach, first
articulated by the First Circuit in Federación de Maestros de P.R. v. Junta de Relaciones del
4
We are bound by Sixth Circuit holdings but not by dicta. A holding is a determination of law critical to a
decision, while dicta is anything “not necessary to the determination of the issue on appeal.” See Freed v. Thomas,
976 F.3d 729, 738 (6th Cir. 2020) (quoting United States v. Swanson, 341 F.3d 524, 530 (6th Cir. 2003)).
5
See also D.A. Osguthorpe Fam. P’ship v. ASC Utah, Inc., 705 F.3d 1223, 1232 (10th Cir. 2013).
No. 20-6375 RLR Investments, LLC v. City of Pigeon Forge, Tenn. Page 13
Trabajo de P.R., 410 F.3d 17, 24 (1st Cir. 2005). See Malhan, 938 F.3d at 459 (collecting
authorities). The hybrid approach applies Rooker-Feldman when (1) the state court of last resort
has affirmed the judgment; (2) the time to appeal has expired or the parties voluntarily
terminated litigation; or (3) the state court of last resort has resolved the relevant federal issue but
state law or factual issues remain. Id. at 459–60 (distilling the test from Federación de
Maestros, 410 F.3d at 24–25).
Some circuits, moreover, have split on the Pieper issue.6 The Seventh Circuit, for
example, has taken a variety of approaches. It has said that Rooker-Feldman “does not apply
independently to interlocutory orders.” Kowalski v. Boliker, 893 F.3d 987, 995 (7th Cir. 2018);
accord TruServ Corp. v. Flegles, Inc., 419 F.3d 584, 591 (7th Cir. 2005). But it has also said
that “interlocutory orders entered prior to the final disposition of state court lawsuits are not
immune from the jurisdiction-stripping powers of Rooker-Feldman.” Sykes v. Cook Cnty. Cir.
Ct. Prob. Div., 837 F.3d 736, 742 (7th Cir. 2016). And it has said that “[t]he principle that only
the Supreme Court can review the decisions by the state judiciary in civil litigation is as
applicable to interlocutory as to final state-court decisions.” Harold v. Steel, 773 F.3d 884, 886
(7th Cir. 2014). Most recently, the Seventh Circuit acknowledged the tension in its previous
statements without resolving the issue. Bauer v. Koester, 951 F.3d 863, 867 (7th Cir. 2020). In
Bauer, it determined that a state foreclosure order was “effectively final” and therefore barred by
Rooker-Feldman. Id. The court also reasoned, in the alternative, that even if “there is no final
judgment for purposes of Rooker-Feldman, ‘[n]othing in the Supreme Court’s decisions suggests
6
See Houston v. Venneta Queen, 606 F. App’x 725, 731–32 (5th Cir. 2015) (indicating that Rowley v.
Wilson, 200 F. App’x 274, 275 (5th Cir. 2006) (per curiam), incorrectly held that Exxon “unequivocally” overruled
precedent on interlocutory orders and Rooker-Feldman); cf. Burciaga v. Deutsche Bank Nat’l Tr. Co., 871 F.3d 380,
384 & n.5 (5th Cir. 2017) (noting unresolved tension between pre- and post-Exxon precedent). Compare
Mothershed v. Justs. of Sup. Ct., 410 F.3d 602, 604 n.1 (9th Cir. 2005) (holding that judgment is rendered for
Rooker-Feldman (“proceedings end”) when the state supreme court has finalized its decision on the issue), as
amended on denial of reh’g (July 21, 2005), and Dornheim v. Sholes, 430 F.3d 919, 924 (8th Cir. 2005) (“At the
time that the Dornheims commenced this federal action, the state court adjudication was not complete[,]” so
Rooker-Feldman did not apply.), with Santos v. Superior Ct. of Guam, 711 F. App’x 419, 420 (9th Cir. 2018)
(memorandum) (“We have expressly ruled that the doctrine applies not only to final judgments, but also to
‘interlocutory state court decisions.’” (quoting Doe & Assocs. Law Offs. v. Napolitano, 252 F.3d 1026, 1030 (9th
Cir. 2001))), and Parker L. Firm v. Travelers Indem. Co., 985 F.3d 579, 584 (8th Cir. 2021) (“This court, like other
circuits, has concluded that Rooker-Feldman applies to state court judgments that are not yet final.”).
No. 20-6375 RLR Investments, LLC v. City of Pigeon Forge, Tenn. Page 14
that state-court decisions too provisional to deserve review within the state’s own system can be
reviewed by federal district and appellate courts.’” Id. at 867 (quoting Harold, 773 F.3d at 886).
In sum, some circuits have found RLR’s argument that Exxon abrogated Pieper
convincing. But there is not unanimity.
3.
Holding that Pieper survives would be in tension with some of these cases, and we are
hesitant to deepen any conflicts between the circuits. But we must decide independently whether
Exxon mandates modification of Pieper. Based on Exxon’s explicit holding, the Court’s
definition of “judgment” for Rooker-Feldman purposes, and Exxon’s focus on allowing parallel
litigation, we think Pieper and Exxon can comfortably coexist. The litigation here is an
impermissible “covert appeal,” not a parallel proceeding. See Van Hoven, 947 F.3d at 892. We
developed the source-of-the-injury test to implement Exxon’s holding, and Pieper faithfully
applies that test.
Look first at the explicit holding of Exxon:
The Rooker-Feldman doctrine, we hold today, is confined to cases of the kind
from which the doctrine acquired its name: [1] cases brought by state-court losers
[2] complaining of injuries caused by state-court judgments [3] rendered before
the district court proceedings commenced and [4] inviting district court review
and rejection of those judgments.
544 U.S. at 284. As outlined above, there’s no question that RLR lost in state court, that the
Order was rendered before the federal complaint here was filed, and that the complaint invited
the district court to review the Order.
The only question left is whether “judgments” means only final judgments. The Court
has never answered this question, and the verbiage the Court uses is not dispositive on this point.
In the Court’s specific enunciation of its holding, it only said “judgment.” And not all
“judgments” are final. Cf. Fed. R. Civ. P. 54(a) (“‘Judgment’ as used in these rules includes a
decree and any order from which an appeal lies.”); Tenn. R. Civ. P. 54.01 (same). In describing
the doctrine after Exxon, the Court has sometimes used the word “decision” rather than
“judgment.” See Skinner v. Switzer, 562 U.S. 521, 532 (2011); Lance v. Dennis, 546 U.S. 459,
No. 20-6375 RLR Investments, LLC v. City of Pigeon Forge, Tenn. Page 15
466 (2006) (per curiam); see also Berry, 688 F.3d at 299 (“Rooker-Feldman focuses on whether
the state court decision caused the injury.”). Use of the word “decision” perhaps gets us a little
further away from § 1257’s “final judgment,” but whether a judgment or a decision, the Court’s
language from Exxon and after doesn’t definitively speak to finality.
On the other hand, the Court’s earlier explanations of the term “judgment” don’t support
a finality requirement. In Feldman, for example, the Court differentiated judicial actions
(judgments) from other “legislative, ministerial, or administrative” actions. 460 U.S. at 479.
The distinction was whether a judge “investigates, declares and enforces liabilities as they stand
on present or past facts and under laws.” Id. at 477 (quoting Prentis, 211 U.S. at 226). That’s
why we don’t require a “judgment” to be a “formal judgment or order,” but instead only require
a merits determination. Berry, 688 F.3d at 299.
Whether a litigant has a right to appeal doesn’t affect whether the litigant is the subject of
a judicial action. In other words, whether a litigant may yet appeal a decision does not mean that
the decision was not “on the merits.” Id. (quoting Feldman, 460 U.S. at 478). This illuminates
an interpretive path to reading Exxon and Pieper together: Exxon requires a state court to have
“rendered judgment” for Rooker-Feldman to apply, which means to have made a decision on the
merits, and merits decisions do not always require finality.
There is evidence to the contrary. The Exxon Court referenced the finality of the
judgments in Rooker and Feldman themselves when describing those cases. Exxon, 544 U.S. at
286. This is the language on which our sister circuits have focused: the facts of Rooker and
Feldman were that “the losing party in state court filed suit in federal court after the state
proceedings ended.” Nicholson, 558 F.3d at 1274 (emphasis added) (quoting Exxon, 544 U.S. at
291); see Malhan, 938 F.3d at 461. State proceedings haven’t ended when an appeal is pending,
they reason, so they conclude Exxon means that Rooker-Feldman only applies when state appeals
(or the possibility thereof) are exhausted. Nicholson, 558 F.3d at 1279; see Federación de
Maestros, 410 F.3d at 24.
We don’t find that language compelling, at least so far as to mandate a finality
requirement. The finality of the state-court proceedings was not critical to the outcome in
No. 20-6375 RLR Investments, LLC v. City of Pigeon Forge, Tenn. Page 16
Exxon.7 And Exxon never said that all state proceedings had to have ended for Rooker-Feldman
to apply. Exxon was focused on the fact that the parties “properly invoked concurrent
jurisdiction” and the Court’s point was that neither’s jurisdiction “vanishes” when one
sovereign’s court reaches judgment. Exxon, 544 U.S. at 292; see ADSA, Inc. v. Ohio, 176 F.
App’x 640, 643 n.1 (6th Cir. 2006) (describing the holding of Exxon as requiring litigants to
prove that “the federal proceedings are not parallel to the state-court proceedings” to invoke
Rooker-Feldman). Though the state-court order that RLR attacks here was not a final,
appealable order from the state’s highest court, the order was already in place when RLR came
to federal court. Rather than invoking concurrent jurisdiction over an unadjudicated question,
RLR asked the district court to strike down an existing state-court order.
Exxon doesn’t tell us when a state-court judgment matures for Rooker-Feldman purposes
because in Exxon the federal complaint was filed before the state court reached any merits
decision. This temporal boundary from Exxon, that a “state-court judgment [be] rendered before
the district court proceedings commenced,” is contained within the source-of-the-injury test.
Exxon, 544 U.S. at 284. Exxon fails the test: Exxon Mobil could not have complained of any
state-court judgment in favor of SABIC because Exxon Mobil filed its federal complaint well
before the state court made any merits decisions. That’s why we adopted the source-of-the-
injury test in the wake of Exxon: to “winnow[] would-be Rooker-Feldman cases” to comply with
the Court’s confinement of the doctrine. See Hancock, 2021 WL 1157843, at *5; see also
McCormick, 451 F.3d at 393 (adopting the source-of-the-injury test as developed post-Exxon in
Davani v. Va. Dep’t of Transp., 434 F.3d 712 (4th Cir. 2006)).
And the source-of-the-injury test is not inconsistent with Pieper. If true parallel litigation
exists, Rooker-Feldman does not apply because both litigants “properly invoked concurrent
jurisdiction” (Exxon). Exxon, 544 U.S. at 292. Once one court reaches final judgment,
preclusion law applies. See id. at 293. But if a litigant is unhappy with a state-court decision and
goes to a federal court to remedy that loss, that “invokes the same idea of respect for state courts
7
Notably, the requirement that “state proceedings ended” is found in Exxon’s description of Rooker and
Feldman, rather than in its explicit holding. See Venneta Queen, 606 F. App’x at 732; Dustin E. Buehler, Revisiting
Rooker-Feldman: Extending the Doctrine to State Court Interlocutory Orders, 36 Fla. St. U. L. Rev. 373, 413 n.308
(2009).
No. 20-6375 RLR Investments, LLC v. City of Pigeon Forge, Tenn. Page 17
as preclusion” but is conceptually distinct (Pieper). Hancock, 2021 WL 1157843, at *4.
Rooker-Feldman applies. The litigant in the second example could not have filed its suit in
federal court any earlier because the injury (the state-court judgment) had not yet occurred.
When that litigant comes to federal court to seek “review and rejection of [the existing state-
court] judgment[]” that caused its injury, Rooker-Feldman’s jurisdictional bar governs. Exxon,
544 U.S. at 284.
In other words, it remains true after Exxon that “lower federal courts possess no power
whatever to sit in direct review of state court decisions.” Feldman, 460 U.S. at 482 n.16 (citation
omitted). That’s what happened here. RLR lost in state court and, dissatisfied with the result,
asked the district court to come to the opposite conclusion and undo the state court’s Order.
That’s not parallel litigation. RLR lost before it sought federal-court review, and RLR would not
have had the injury it complained of but-for the state court’s Order. RLR “plainly has . . .
repaired to federal court to undo the [state court] judgment,” which, in the words of Exxon, is
“the paradigm situation in which Rooker-Feldman” applies. 544 U.S. at 293.
Nothing in Exxon mandates that Rooker-Feldman does not apply to interlocutory orders.
And, despite our dissenting colleague’s arguments to the contrary, neither does anything in
Lance v. Dennis, 546 U.S. 459 (2006). The dissent correctly points out that, in introducing the
Rooker-Feldman doctrine, Lance says “lower federal courts are precluded from exercising
appellate jurisdiction over final state-court judgments.” See Dissenting Op. at 20, 24, 29; Lance,
546 U.S. at 463. But the dissent overreads this introductory statement. The statement does not
purport to be exclusive. Lance dealt with a final state-court judgment, Lance, 546 U.S. at 461–
62, so it is not surprising that it stated the rule in those terms. Lance had no occasion to discuss
Rooker-Feldman’s application to non-final orders. And the dissent ignores Lance’s later
statement that Rooker-Feldman is available when “a party in effect seeks to take an appeal of an
unfavorable state-court decision to a lower federal court,” or, in other words, “takes a de facto
appeal.” Id. at 466 & n.2. Lance simply does not address the question whether Rooker-Feldman
bars de facto appeals from interlocutory state-court orders.
Indeed, we appeared to recognize this in McCormick, which issued shortly after the
Supreme Court’s decisions in Exxon and Lance. See 451 F.3d at 395. That case partially
No. 20-6375 RLR Investments, LLC v. City of Pigeon Forge, Tenn. Page 18
concerned an interlocutory order of receivership from the Wayne County Circuit Court in
Michigan. See id. at 387, 395. Much like RLR does here, the plaintiff in McCormick “allege[d]
that the order of receivership in and of itself [wa]s illegal and cause[d] [her] harm.” Id. at 395.
We held that the district court lacked jurisdiction over the relevant claims under
Rooker-Feldman. Id. at 395–96. This was true despite the fact that proceedings continued in the
state trial court for three years after the order of receivership was issued and for nearly a year
after our own decision. See McCormick v. McCormick, No. 84-422014-DO (Wayne County
Circuit Court); see also Hancock, 2021 WL 1157843, at *6 n.4 (“Our leading post-Exxon case,
[McCormick,] which pre-dated Quality Associates, considered applying Rooker-Feldman
appropriate when the proceedings on the relevant order had ‘ended,’ though the case as a whole
had three years of proceedings yet to come.”). In sum, “[n]othing in the Supreme Court’s
decisions suggests that state-court decisions too provisional to deserve review within the state’s
own system can be reviewed by federal district and appellate courts.” Harold, 773 F.3d at 886
(Easterbrook, J.). The simple logic of Pieper seems to apply with as much force today as it did
before Exxon: “we do not believe that lower federal courts should be prohibited from reviewing
judgments of a state’s highest court but should somehow have free rein to review the judgments
of lower state courts.” Pieper, 336 F.3d at 463. Instead, “[t]he principle that only the Supreme
Court can review the decisions by the state judiciary in civil litigation is as applicable to
interlocutory as to final state-court decisions. A truly interlocutory decision should not be
subject to review in any court; review is deferred until the decision is final.” Harold, 773 F.3d at
886; see also 18B Charles Alan Wright & Arthur R. Miller et al., Federal Practice & Procedure:
Jurisdiction § 4469.2 (2d ed. Apr. 2021 update) (“It is difficult to understand why the implied
limits of federal subject-matter jurisdiction do not apply to such an [appeal of an interlocutory
order] just as to an action brought after entry of a final state-court judgment.”). Pieper does not
prevent the proper exercise of concurrent jurisdiction, but instead prevents federal appeals of
state-court orders that can only reach federal court, via Congress’ direction in § 1257, at the
Supreme Court. Cf. Pieper, 336 F.3d at 464. As the Court in Exxon reiterated, the district courts
are courts “of original jurisdiction,” and they are not authorized by statute “to exercise appellate
jurisdiction over state-court judgments, which Congress has reserved to [the Supreme Court
No. 20-6375 RLR Investments, LLC v. City of Pigeon Forge, Tenn. Page 19
under] § 1257(a).” 544 U.S. at 292 (quoting Verizon Md. Inc. v. Pub. Serv. Comm’n of Md.,
535 U.S. 635, 644 n.3 (2002)).
***
We recognize that the Court “warned” that the lower courts had gone too far in extending
Rooker-Feldman. Malhan, 938 F.3d at 461 (quoting Lance, 546 U.S. at 464). But the Court has
also made clear that “Rooker-Feldman is not simply preclusion by another name.” Lance,
546 U.S. at 466. We need to be mindful of extending the Supreme Court decisions farther than
they reach, cf. Rodriguez de Quijas, 490 U.S. at 484, and to remain faithful to our precedent, see
Elbe, 774 F.3d at 891. Those principles carry special force when our precedent circumscribes
our jurisdiction. Cf. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)
(“Federal courts are courts of limited jurisdiction. [We] possess only that power authorized by
Constitution and statute . . . . [And] [i]t is to be presumed that a cause lies outside this limited
jurisdiction . . . .” (citations omitted)). Under Rooker-Feldman—even after Exxon—federal
district courts don’t have jurisdiction over appeals of interlocutory state-court orders.
The judgment of the district court is AFFIRMED.
No. 20-6375 RLR Investments, LLC v. City of Pigeon Forge, Tenn. Page 20
_________________
DISSENT
_________________
CLAY, Circuit Judge, dissenting. The district court invoked the Rooker-Feldman
doctrine to hold that it lacked jurisdiction over this case because of an interlocutory order entered
by a state trial court. But Rooker-Feldman “preclude[s]” lower federal courts “from exercising
appellate jurisdiction over final state-court judgments,” not nonfinal state court interlocutory
orders. Lance v. Dennis, 546 U.S. 459, 463 (2006) (emphasis added); accord Exxon Mobil Corp.
v. Saudi Basic Industries Corp., 544 U.S. 280, 291 (2005). Accordingly, in line with every other
circuit to have published a considered opinion on this issue, Exxon and Lance require this Court
to overrule Pieper v. American Arbitration Association, Inc., 336 F.3d 458 (6th Cir. 2003)—our
pre-Exxon and -Lance opinion expanding the Rooker-Feldman doctrine to include state court
interlocutory orders. Because the majority continues to apply Pieper, I dissent.
I.
“Federal courts are courts of limited jurisdiction . . . possess[ing] only that power
authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994) (citing Willy v. Coastal Corp., 503 U.S. 131, 136–137 (1992); Bender v.
Williamsport Area School Dist., 475 U.S. 534, 541 (1986)). But when the Constitution or
Congress provide jurisdiction, federal courts have a “virtually unflagging obligation . . . to
exercise the jurisdiction given them.” Colorado River Water Conservation Dist. v. United
States, 424 U.S. 800, 817–18 (1976) (citing England v. Louisiana State Bd. of Medical
Examiners, 375 U.S. 411, 415 (1964); McClellan v. Carland, 217 U.S. 268, 281 (1910); Cohens
v. Virginia, 6 Wheat. 264, 404 (1821)). Relevant to this case in which RLR asserted claims
under the Fifth and Fourteenth Amendments to the U.S. Constitution, Congress has provided that
“[t]he district courts shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Therefore, in the absence
of some limitation on the jurisdiction provided by § 1331, the district court was required to
exercise jurisdiction over RLR’s suit. According to the majority, 28 U.S.C. § 1257—which
No. 20-6375 RLR Investments, LLC v. City of Pigeon Forge, Tenn. Page 21
states that “[f]inal judgments or decrees rendered by the highest court of a State . . . may be
reviewed by the Supreme Court”—and the Rooker-Feldman doctrine provide such a limitation.
A.
In Rooker v. Fidelity Trust Co., the appellant sought to have the federal district court
declare a “judgment of a circuit court in Indiana, which was affirmed by the Supreme Court of
the state, . . . null and void, and to obtain other relief dependent on that outcome.” 263 U.S. 413,
414 (1923). Relying on a precursor to § 1257, the Supreme Court in 1923 affirmed the district
court’s dismissal of the suit because, “[u]nder the legislation of Congress,” only the United
States Supreme Court can “exercise . . . appellate jurisdiction” over a final decision of a state
Supreme Court. Id. at 416.
Over the next sixty years, the Supreme Court “cited Rooker in one opinion, Fishgold v.
Sullivan Drydock & Repair Corp., 328 U.S. 275, 283 (1946), in reference to the finality of prior
judgments.” Exxon, 544 U.S. at 288 n.3. But in 1983, in District of Columbia Court of Appeals
v. Feldman, the Supreme Court confronted the question of “what authority the United States
District Court for the District of Columbia and the United States Court of Appeals for the District
of Columbia Circuit have to review decisions of the District of Columbia Court of Appeals . . . .”
460 U.S. 462, 463 (1983). The answer: none. See id. at 486–87. Relying on § 1257 and Rooker,
the Supreme Court explained that the case “required the District Court to review a final judicial
decision of the highest court of a jurisdiction,” but that “[r]eview of such determinations can be
obtained only in this Court.” Id. at 476, 486.
From these two cases standing for the unremarkable proposition that only the United
States Supreme Court can exercise appellate jurisdiction over final decisions of a state Supreme
Court, see 28 U.S.C. § 1257, the “so-called Rooker-Feldman doctrine” was born, Pennzoil Co. v.
Texaco, Inc., 481 U.S. 1, 18 (1987) (Scalia, J., concurring). In the years after Feldman was
decided, lower federal courts seized on the doctrine as “a quasi-magical means of docket-
clearing.” Stephen I. Vladeck, The Increasingly “Unflagging Obligation”: Federal Jurisdiction
After Saudi Basic and Anna Nicole, 42 Tulsa L. Rev. 553, 563 (2007). Based on language in
Feldman suggesting that federal district courts also lack jurisdiction over claims “inextricably
No. 20-6375 RLR Investments, LLC v. City of Pigeon Forge, Tenn. Page 22
intertwined with the District of Columbia Court of Appeals’ decisions,” Feldman, 460 U.S. at486–87, even though “the Supreme Court used that phrase in Feldman to twice describe a
plaintiff’s complaint of harm from a state court decision itself, many circuits, including this one,
gave an expansive definition to that phrase,” McCormick v. Braverman, 451 F.3d 382, 391 (6th
Cir. 2006). One scholar noted that, although the Supreme Court had applied the doctrine only
twice, between 1992 and 1999, the lower federal courts invoked the Rooker-Feldman doctrine to
dismiss about five hundred cases. See Susan Bandes, The Rooker-Feldman Doctrine: Evaluating
Its Jurisdictional Status, 74 Notre Dame L. Rev. 1175, 1175 (1999) (citing Suzanna Sherry,
Judicial Federalism in the Trenches: The Rooker-Feldman Doctrine in Action, 74 Notre Dame
L. Rev. 1085 (1999)).
In line with this trend, although § 1257—the source of the Rooker-Feldman doctrine—
relates to “[f]inal judgments or decrees rendered by the highest court of a State in which a
decision could be had,” 28 U.S.C. § 1257, and Rooker and Feldman dealt, respectively, with
final judgments from the highest courts in Indiana and the District of Columbia, “the majority of
circuits,” including this one, extended the Rooker-Feldman doctrine to include “interlocutory
orders and to orders of lower state courts.” Pieper, 336 F.3d at 462.
B.
As the majority explains, under Pieper, the district court correctly held that the
Rooker-Feldman doctrine applies to interlocutory orders, including the one at issue in this case.
And no matter how strongly a panel disagrees with binding circuit precedent, it is
well-established that “[a] panel of this court may not overturn binding precedent because a
published prior panel decision ‘remains controlling authority unless an inconsistent decision of
the United States Supreme Court requires modification of the decision or this Court sitting en
banc overrules the prior decision.’” United States v. Elbe, 774 F.3d 885, 891 (6th Cir. 2014)
(quoting Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985)); see also
Brumbach v. United States, 929 F.3d 791, 795 (6th Cir. 2019). But here, the Supreme Court’s
subsequent decisions in Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005),
and Lance v. Dennis, 546 U.S. 459 (2006), require that we modify Pieper and hold that the
Rooker-Feldman doctrine does not ordinarily apply to state court interlocutory orders.
No. 20-6375 RLR Investments, LLC v. City of Pigeon Forge, Tenn. Page 23
C.
In Exxon, “two subsidiaries of petitioner Exxon Mobil Corporation . . . formed joint
ventures with respondent Saudi Basic Industries Corp. (SABIC) to produce polyethylene in
Saudi Arabia.” 544 U.S. at 289. After “the parties began to dispute royalties . . . SABIC
preemptively sued the two ExxonMobil subsidiaries in Delaware Superior Court in July 2000
seeking a declaratory judgment that the royalty charges were proper under the joint venture
agreements.” Id. “About two weeks later, ExxonMobil and its subsidiaries countersued SABIC
in the United States District Court for the District of New Jersey, alleging that SABIC
overcharged the joint ventures for the sublicenses.” Id. On an appeal of the federal district
court’s denial of SABIC’s motion to dismiss, the Third Circuit held that it lacked jurisdiction
under Rooker-Feldman because, while the action was pending in federal court, a state court
judgment had been entered. See id. at 289–291.
In a unanimous opinion, the Supreme Court reversed. The Supreme Court explained that
“[s]ince Feldman, this Court has never applied Rooker-Feldman to dismiss an action for want of
jurisdiction,” but that the “doctrine has sometimes been construed to extend far beyond the
contours of the Rooker and Feldman cases, overriding Congress’ conferral of federal-court
jurisdiction concurrent with jurisdiction exercised by state courts, and superseding the ordinary
application of preclusion law pursuant to 28 U.S.C. § 1738.” Id. at 283, 287. The Court further
explained that “Rooker and Feldman exhibit the limited circumstances in which this Court’s
appellate jurisdiction over state-court judgments, 28 U.S.C. § 1257, precludes a United States
district court from exercising subject-matter jurisdiction in an action it would otherwise be
empowered to adjudicate under a congressional grant of authority, e.g., § 1330 (suits against
foreign states), § 1331 (federal question), and § 1332 (diversity).” Id. at 291. Thus, the Court
held that the Rooker-Feldman doctrine “is confined to cases of the kind from which the doctrine
acquired its name: 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.” Id. at 284. And as to the issue of which state
court judgments are “of the kind” from Rooker and Feldman, the Supreme Court further
explained that “[i]n both cases, the losing party in state court filed suit in federal court after the
No. 20-6375 RLR Investments, LLC v. City of Pigeon Forge, Tenn. Page 24
state proceedings ended, complaining of an injury caused by the state-court judgment and
seeking review and rejection of that judgment.” Id. at 284, 291 (emphasis added).
One year later, in Lance, the Supreme Court reiterated “the narrowness of the
Rooker-Feldman rule.” 546 U.S. at 464. The Court also retold the origins of the doctrine: “This
Court is vested, under 28 U.S.C. § 1257, with jurisdiction over appeals from final state-court
judgments. We have held that this grant of jurisdiction is exclusive: ‘Review of such judgments
may be had only in this Court.”’ Id. at 463 (quoting Feldman, 460 U.S. at 482). Significantly, as
the Rooker-Feldman doctrine stems from § 1257’s exclusive grant of jurisdiction to the Supreme
Court over appeals from “[f]inal judgments or decrees rendered by the highest court of a State in
which a decision could be had,” 28 U.S.C. § 1257, the Lance Court explained that “under what
has come to be known as the Rooker-Feldman doctrine, lower federal courts are precluded from
exercising appellate jurisdiction over final state-court judgments,” Lance, 546 U.S. at 463(emphasis added); see also Skinner v. Switzer, 562 U.S. 521, 531–32 (2011) (explaining that both
Rooker and Feldman fit the pattern of “[t]he losing party in state court filed suit in a U.S. District
Court after the state proceedings ended,” and that Exxon clarified that the Rooker-Feldman
doctrine only applies in like cases).
The combination of Exxon and Lance ostensibly severely curtailed the lower federal
courts’ reliance on the Rooker-Feldman doctrine as a docket clearing device. In a dissent in
Lance unrelated to the Court’s disposition of the Rooker-Feldman issue, Justice Stevens
explained that, in Exxon, “the Court finally interred the so-called ‘Rooker-Feldman doctrine,”’
and that, in Lance, “the Court quite properly disapproves of the District Court’s resuscitation of a
doctrine that has produced nothing but mischief for 23 years.” Lance, 546 U.S. at 468 (Stevens,
J., dissenting). A mock obituary for Rooker-Feldman was even published by one scholar. See
Samuel Bray, Rooker-Feldman (1923–2006), 9 Green Bag 2d 317 (2006); see also Vladeck,
supra, at 566 (characterizing Exxon and Lance as a “twin killing” of Rooker-Feldman).
D.
However, rather than heed the Supreme Court’s efforts to reign in the Rooker-Feldman
doctrine, lower courts, like the majority does today, have continued to invoke the doctrine.
No. 20-6375 RLR Investments, LLC v. City of Pigeon Forge, Tenn. Page 25
“One empirical analysis suggests the doctrine proliferated even more after Exxon Mobil’s
attempt to limit it.” VanderKodde v. Mary Jane M. Elliott, P.C., 951 F.3d 397, 407 (6th Cir.
2020) (Sutton, J., concurring) (citing Raphael Graybill, Comment, The Rook That Would Be
King: Rooker-Feldman Abstention Analysis After Saudi Basic, 32 Yale J. on Reg. 591, 591–92
(2015)). But one area where the circuit courts have consistently limited Rooker-Feldman post-
Exxon and -Lance is on the issue of whether it applies to state court interlocutory orders.
Two months after the Supreme Court’s unanimous decision in Exxon, in Federación de
Maestros de Puerto Rico v. Junta de Relaciones del Trabajo de Puerto Rico, the First Circuit
decided whether the Rooker-Feldman doctrine applies to state court interlocutory orders.1 See
410 F.3d 17, 19 (1st Cir. 2005). The First Circuit explained that “Exxon Mobil tells us when a
state court judgment is sufficiently final for operation of the Rooker-Feldman doctrine: when
‘the state proceedings [have] ended.’” Id. at 24 (quoting Exxon, 544 U.S. at 291). As to when a
state proceeding has “ended,” the First Circuit provided three exclusive situations. Id. (quoting
Exxon, 544 U.S. at 291). “First, when the highest state court in which review is available has
affirmed the judgment below and nothing is left to be resolved, then without a doubt the state
proceedings have ‘ended.”’ Id. (quoting Exxon, 544 U.S. at 291). “Second, if the state action
has reached a point where neither party seeks further action”—for example, if “the losing party
allows the time for appeal to expire” or if the parties voluntarily terminate the litigation—“then
the state proceedings have also ‘ended.”’ (quoting Exxon, 544 U.S. at 291). “Third, if the state
court proceedings have finally resolved all the federal questions in the litigation, but state law or
purely factual questions (whether great or small) remain to be litigated, then the state
proceedings have ‘ended’ within the meaning of Rooker-Feldman on the federal questions at
issue.” Id. at 25 (quoting Exxon, 544 U.S. at 291).
In other words, the First Circuit’s test looks to whether the state court judgment at issue
was “effectively final.” Malhan v. Sec’y United States Dep’t of State, 938 F.3d 453, 459 (3d Cir.
2019). If so, “then a federal suit seeking an opposite result is an impermissible attempt to appeal
the state judgment to the lower federal courts, and, under Rooker-Feldman, the federal courts
lack jurisdiction.” Federación, 410 F.3d at 24. But outside of the three limited situations where
1
Federación itself concerned an interlocutory decision by a Puerto Rican appellate court.
No. 20-6375 RLR Investments, LLC v. City of Pigeon Forge, Tenn. Page 26
the First Circuit considered “the state proceedings [to have] ended,” the First Circuit explained
that “even if the federal plaintiff expects to lose in state court and hopes to win in federal court—
the litigation is parallel, and the Rooker-Feldman doctrine does not deprive the court of
jurisdiction.” Id. (quoting Exxon, 544 U.S. at 291–293).
Following the First Circuit’s lead, the Second, Third, Fourth, Fifth, Seventh, Eighth,
Ninth, Tenth, and Eleventh Circuits all subsequently held that, post-Exxon, the Rooker-Feldman
doctrine does not ordinarily apply to state court interlocutory orders.2 See Hoblock v. Albany
Cnty. Bd. of Elections, 422 F.3d 77, 89 (2d Cir. 2005); Malhan, 938 F.3d at 459–460; Hulsey v.
Cisa, 947 F.3d 246, 250 (4th Cir. 2020) (“[T]he [Rooker-Feldman] doctrine simply precludes
federal district courts from exercising what would be, in substance, appellate jurisdiction over
final state-court judgments.”); Thana v. Bd. of License Commissioners for Charles Cnty.,
Maryland, 827 F.3d 314, 321 (4th Cir. 2016) (explaining that the Rooker-Feldman doctrine
“does not apply here because the district court here was not called upon to exercise appellate
jurisdiction over a final judgment from ‘the highest court of a State in which a decision could be
had,’ as was the case in both Rooker and Feldman.” (quoting 28 U.S.C. § 1257(a))); Burciaga v.
Deutsche Bank Nat’l Tr. Co., 871 F.3d 380, 384 (5th Cir. 2017) (explaining that the
Rooker-Feldman doctrine “applies only to ‘final judgment[s] rendered by a state’s court of last
resort.”’ (quoting Illinois Cent. R. Co. v. Guy, 682 F.3d 381, 390 (5th Cir. 2012)));3 Bauer v.
Koester, 951 F.3d 863, 867 (7th Cir. 2020) (“The Bauers’ argument fails because the record
shows that the foreclosure case against them is effectively final.”);4 Dornheim v. Sholes,
2
“Since Exxon Mobil, the D.C. Circuit has not considered whether the Rooker-Feldman doctrine bars lower
federal courts” from “review of interlocutory orders from state courts.” William Penn Apartments v. D.C. Ct. of
Appeals, 39 F. Supp. 3d 11, 18 (D.D.C. 2014). It is worth noting, however, that at least one district court within the
District of Columbia has adopted “the Federación analysis” and held “that the Rooker-Feldman doctrine applies
only to cases where the state proceedings have ended.” Id. at 17–18.
3
Although the Fifth Circuit in Burciaga nonetheless declined to overrule pre-Exxon precedent, relied upon
by the majority, “suggest[ing] that a state court judgment need not be issued by a court of last resort for
Rooker-Feldman to apply,” the court unequivocally held that Rooker-Feldman does not bar federal review of lower
state court interlocutory orders. 871 F.3d at 384 n.5, 385, 387 (“[B]ecause the Vacating Order was not final when
the federal suit was brought . . . , the Rooker-Feldman doctrine does not bar federal court review of it.”).
4
While the majority relies on Harold v. Steel, 773 F.3d 884 (7th Cir. 2014), as evidence that the Seventh
Circuit has “split on the Pieper issue,” Maj. Op. at 13, Harold explicitly did not “resolve the question,” 773 F.3d at
886. And while Sykes v. Cook Cnty. Cir. Ct. Prob. Div., 837 F.3d 736 (7th Cir. 2016), relied on Harold for the
No. 20-6375 RLR Investments, LLC v. City of Pigeon Forge, Tenn. Page 27
430 F.3d 919, 924 (8th Cir. 2005); Robins v. Ritchie, 631 F.3d 919, 926–28 (8th Cir. 2011);5
Mothershed v. Justices of Supreme Court, 410 F.3d 602, 604 n.1 (9th Cir. 2005), as amended on
denial of reh’g, 2005 WL 1692466 (9th Cir. July 21, 2005);6 Guttman v. Khalsa, 446 F.3d 1027,
1032 & n.2 (10th Cir. 2006); Nicholson v. Shafe, 558 F.3d 1266, 1274–76, 1279 (11th Cir.
2009). Moreover, the First, Second, Third, Tenth, and Eleventh Circuits all explicitly overturned
inconsistent pre-Exxon circuit precedent. See Federación, 410 F.3d at 27–28; Green v.
Mattingly, 585 F.3d 97, 101 (2d Cir. 2009); Malhan, 938 F.3d at 458–59; Guttman, 446 F.3d at
1031; Nicholson, 558 F.3d at 1274.
II.
A.
Until today, we were not an outlier from the ten other circuits that have held that state
court interlocutory orders do not generally implicate the Rooker-Feldman doctrine. In Quality
Associates, Inc. v. The Procter & Gamble Distrib. LLC, in an opinion authored by the same
judge who authored Pieper, we repudiated Pieper because, in Exxon, “the Supreme Court
‘confined’ the application of the Rooker-Feldman doctrine to cases resembling Rooker and
proposition that “interlocutory orders entered prior to the final disposition of state court lawsuits are not immune
from the jurisdiction-stripping powers of Rooker-Feldman,” id. at 742, later Seventh Circuit cases clarified that the
Rooker-Feldman doctrine “does not apply independently to interlocutory orders,” Kowalski v. Boliker, 893 F.3d 987,
995 (7th Cir. 2018), unless the order is “effectively final,” Bauer, 951 F.3d at 867 (citing Malhan’s agreement “with
the holding of six other circuits that there is a state-court ‘judgment’ under Rooker-Feldman, even in the absence of
a final appealable order so long as the state-court interlocutory order is ‘effectively final.’”). Thus, what the majority
asserts is a “variety of approaches,” Maj. Op. at 13, is merely the singular “effectively final” approach first
articulated by the First Circuit in Federación. Ordinarily, Rooker-Feldman “does not apply independently to
interlocutory orders,” Kowalski, 893 F.3d at 995, but “interlocutory orders entered prior to the final disposition of
state court lawsuits are not immune from the jurisdiction-stripping powers of Rooker-Feldman,” Sykes, 837 F.3d at
742, because Rooker-Feldman does apply to such orders when they are “effectively final,” Bauer, 951 F.3d at 867.
5
The majority correctly notes that a recent Eighth Circuit case “concluded that Rooker-Feldman applies to
state court judgments that are not yet final.” Parker Law Firm v. Travelers Indem. Co., 985 F.3d 579, 584 (8th Cir.
2021). But Parker relied exclusively on two pre-Exxon cases (including Pieper), did not consider Exxon’s impact
on those cases, and, most importantly, failed to mention earlier binding circuit precedent holding “that for the
purposes of Rooker-Feldman a state court renders judgment on the date the state court ‘finally resolves’ the claims
before it.” Robins, 631 F.3d at 928; see also Dornheim, 430 F.3d at 924.
6
Seeking to create a veneer of non-unanimity, the majority points to an unpublished Ninth Circuit
memorandum that quoted a pre-Exxon case for the proposition that Rooker-Feldman applies to “interlocutory state
court decisions.” Santos v. Superior Ct. of Guam, 711 F. App’x 419, 420 (9th Cir. 2018) (memorandum) (quoting
Doe & Assocs. Law Offices v. Napolitano, 252 F.3d 1026, 1030 (9th Cir. 2001)). But, as noted above, published
Ninth Circuit precedent holds otherwise. See Mothershed, 410 F.3d at 604 n.1.
No. 20-6375 RLR Investments, LLC v. City of Pigeon Forge, Tenn. Page 28
Feldman where the ‘state proceedings [have] ended.’” 949 F.3d 283, 290 n.5 (6th Cir. 2020)
(quoting Nicholson, 558 F.3d at 1277); see also Veasley v. Fed. Nat. Mortg. Ass’n (FNMA),
623 F. App’x 290, 294 (6th Cir. 2015) (“Exxon Mobil instructs us that a state court judgment is
sufficiently final when ‘the state proceedings [have] ended.’” (quoting Exxon, 544 U.S. at 291));
Shafizadeh v. Bowles, 476 F. App’x 71, 72 (6th Cir. 2012) (“In Exxon Mobil, the Court
emphasized that Rooker-Feldman is ‘confined to cases’ like Rooker and Feldman themselves,
where the plaintiffs ‘filed suit in federal court after the state proceedings ended.”’ (quoting
Exxon, 544 U.S. at 284, 291)).
B.
But today, the majority casts aside the relevant discussion in Quality Associates as dicta,
ignores the Supreme Court’s “warn[ing] that the lower courts have at times extended
Rooker-Feldman ‘far beyond the contours of the Rooker and Feldman cases,”’ Lance, 546 U.S.
at 464 (quoting Exxon, 544 U.S. at 283), and creates a circuit split by incorrectly holding that
“[u]nder Rooker-Feldman—even after Exxon—federal district courts don’t have jurisdiction over
appeals of interlocutory state-court orders,” Maj. Op. at 19. However, Exxon and Lance require
that this Court overrule Pieper and hold that the Rooker-Feldman doctrine does not apply to
nonfinal state court interlocutory orders.
As explained above, § 1257 provides that only the Supreme Court has appellate
jurisdiction over “[f]inal judgments or decrees rendered by the highest court of a State in which a
decision could be had.” 28 U.S.C. § 1257. From the negative implication of § 1257—that lower
federal courts lack appellate jurisdiction over such final judgments—the Rooker-Feldman
doctrine was birthed. By its terms, however, Rooker-Feldman cannot apply to interlocutory
orders. After all, § 1257 is a grant of appellate jurisdiction over final judgments from a state’s
highest court. Without such a final judgment, § 1257 is simply not implicated. Instead, in the
absence of a final judgment from a state’s highest court, even if a state court has entered an
interlocutory order before the initiation of the federal suit, so long as the federal court is
“empowered to adjudicate” the action “under a congressional grant of authority, e.g., § 1330
(suits against foreign states), § 1331 (federal question), and § 1332 (diversity),” Exxon, 544 U.S.
at 291, “the pendency of an action in the state court is no bar to proceedings concerning the same
No. 20-6375 RLR Investments, LLC v. City of Pigeon Forge, Tenn. Page 29
matter in the Federal court . . . ,” McClellan, 217 U.S. at 282; see also Sprint Commc’ns, Inc. v.
Jacobs, 571 U.S. 69, 73 (2013). And in situations of “state-federal concurrent jurisdiction” the
federal district courts have a “virtually unflagging obligation” to exercise jurisdiction. Colorado
River, 424 U.S. at 817.
While the rationale underlying the Rooker-Feldman doctrine makes it clear that a
nonfinal lower state court order cannot divest lower federal courts of jurisdiction, pre-Exxon, this
Court was not alone in holding otherwise. See Pieper, 336 F.3d at 462–63 (collecting cases).
But, in Exxon and Lance, the Supreme Court reiterated that Rooker-Feldman stems from
§ 1257’s limitation on the jurisdiction of the lower federal courts and established that the
doctrine only applies when a lower federal court is faced with the same situation as in Rooker
and Feldman: an appeal from a state court final judgment filed in federal district court. After
highlighting Rooker-Feldman’s roots in § 1257, the Exxon Court emphasized that in both Rooker
and Feldman “the losing party in state court filed suit in federal court after the state proceedings
ended,” 544 U.S. at 291, and the Lance Court defined the Rooker-Feldman doctrine as, “lower
federal courts are precluded from exercising appellate jurisdiction over final state-court
judgments,”7 546 U.S. at 463; see also Skinner, 562 U.S. at 531–32. These “inconsistent
decision[s] of the United States Supreme Court require[] modification of” Pieper. Elbe, 774
F.3d at 891 (quoting Salmi, 774 F.2d at 689).
C.
The majority nonetheless asserts that the “language” from Exxon is not “compelling, at
least so far as to mandate a finality requirement” because “[t]he finality of the state-court
proceedings was not critical to the outcome in Exxon.” Maj. Op. at 15–16. However, as
explained at length above, critical to both Exxon and Lance was the imperative to confine the
7
Because there is no argument that the state court interlocutory order here was “effectively final,” Malhan,
938 F.3d at 459; see also Federación, 410 F.3d at 24, I would leave to another day the question of whether
Rooker-Feldman applies in such circumstances, see Veasley, 623 F. App’x at 294 (explaining that “the Sixth Circuit
has yet to adopt a clear principle for determining when a state court decision is final for the purposes of the
Rooker-Feldman doctrine” but relying on part of the Federación test), or whether the doctrine only applies when a
district court is “called upon to exercise appellate jurisdiction over a final judgment from ‘the highest court of a
State in which a decision could be had,’ as was the case in both Rooker and Feldman,” Thana, 827 F.3d at 321
(quoting 28 U.S.C. § 1257(a)).
No. 20-6375 RLR Investments, LLC v. City of Pigeon Forge, Tenn. Page 30
Rooker-Feldman doctrine to its roots as a means of enforcing Congress’s exclusive grant of
appellate jurisdiction to the United States Supreme Court over “[f]inal judgments or decrees
rendered by the highest court of a State in which a decision could be had.” 28 U.S.C. § 1257(emphasis added).
The majority also suggests that Lance did not mean what it said when it held that, under
“the Rooker-Feldman doctrine, lower federal courts are precluded from exercising appellate
jurisdiction over final state-court judgments.” 546 U.S. at 463 (emphasis added). According to
the majority, “Lance simply does not address the question whether Rooker-Feldman bars de
facto appeals from interlocutory state-court orders.” Maj. Op. at 17. In support, the majority
seizes upon both a statement in Lance explaining that Rooker-Feldman “applies only in ‘limited
circumstances,’ where a party in effect seeks to take an appeal of an unfavorable state-court
decision to a lower federal court,” and a reference to “a de facto appeal.” Id. at 466 & n.2
(quoting Exxon, 544 U.S. at 291). However, the words “in effect” and “de facto appeal” merely
describe a situation in which Rooker-Feldman may be implicated. Rooker-Feldman does not
require that the plaintiff file a notice of appeal from the state court’s judgment in the district
court. Nor does it require that the complaint hold itself out as appealing the state court judgment.
Instead, even when the plaintiff explicitly seeks to invoke the district court’s original
jurisdiction, in certain “limited circumstances,” namely, when the plaintiff is “the losing party in
state court” who “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,”
Exxon, 544 U.S. at 291, under Rooker-Feldman, the plaintiff is deemed to have “in effect”
sought “to take an appeal of an unfavorable state-court decision to a lower federal court,” or
“a de facto appeal,” Lance, 546 U.S. at 466 & n.2; see also Maj. Op. at 14 (describing the
litigation in this case as a “covert appeal”). Nothing about the phrases “in effect” or “de facto”
indicate an intent by the Lance Court to somehow cabin its holding that the Rooker-Feldman
doctrine precludes “lower federal courts . . . from exercising appellate jurisdiction over final
state-court judgments.” 546 U.S. at 463 (emphasis added).
Moreover, the majority’s treatment of Lance is striking in light of its reliance on our
decision in McCormick v. Braverman, 451 F.3d 382 (6th Cir. 2006). Immediately after excising
No. 20-6375 RLR Investments, LLC v. City of Pigeon Forge, Tenn. Page 31
Lance’s holding that “lower federal courts are precluded from exercising appellate jurisdiction
over final state-court judgments,” 546 U.S. at 463, the majority asserts that our decision in
McCormick supports its novel holding that, post-Exxon and -Lance, Rooker-Feldman applies to
all state court interlocutory orders. However, while McCormick appeared to concern an
interlocutory state court order, we never engaged with the interlocutory nature of the state court
order, discussed Exxon’s holding that Rooker-Feldman only applies when “the losing party in
state court filed suit in federal court after the state proceedings ended,” 544 U.S. at 291, or even
cited Pieper. Thus, while, on the one hand, the majority (incorrectly) rejects Lance’s holding on
the grounds that “Lance simply does not address the question whether Rooker-Feldman bars de
facto appeals from interlocutory state-court orders,” on the other hand, the majority relies on
McCormick even though “[McCormick] simply does not address the question whether
Rooker-Feldman bars de facto appeals from interlocutory state-court orders.” Maj. Op. at 17.
The majority’s decision to read into McCormick a holding that is completely absent from
the opinion is particularly odd in light of its decision to dismiss as dicta our recognition in
Quality Associates that Exxon “displaced” Pieper and that “the Supreme Court ‘confined’ the
application of the Rooker-Feldman doctrine to cases resembling Rooker and Feldman where the
‘state proceedings [have] ended.’” 949 F.3d at 290 n.5 (quoting Nicholson, 558 F.3d at 1277);
see also Veasley, 623 F. App’x at 294; Shafizadeh, 476 F. App’x at 72. In other words,
notwithstanding Quality Associates’ alignment with § 1257, Exxon, Lance, and the considered
opinions of ten other circuits, the majority improperly reconfigures McCormick to support its
conclusion and, in the process, elevates an imaginary holding over our published opinion in
Quality Associates recognizing that Pieper has been “displaced” by Exxon. Id.
III.
Much of the majority opinion appears to be motivated by a concern that litigants like
RLR will rush to federal court after an adverse state court interlocutory order and seek a contrary
judgment in federal court. As an initial matter, such policy concerns are irrelevant to this Court’s
exercise of jurisdiction. As explained above, federal courts have a “virtually unflagging
obligation . . . to exercise the jurisdiction given them,” Colorado River, 424 U.S. at 817, and
No. 20-6375 RLR Investments, LLC v. City of Pigeon Forge, Tenn. Page 32
Congress has provided for concurrent federal court and state court jurisdiction, see McClellan,
217 U.S. at 282.
Moreover, in Exxon, the Supreme Court explicitly explained that § 1257 (and, by
extension, Rooker-Feldman) does not “stop a district court from exercising subject-matter
jurisdiction simply because a party attempts to litigate in federal court a matter previously
litigated in state court.” 544 U.S. at 293; but see Maj. Op. at 17 (“RLR lost in state court and,
dissatisfied with the result, asked the district court to come to the opposite conclusion and undo
the state court’s Order. That’s not parallel litigation.”). Rather, in such situations, ordinary
preclusion law governs. See id. And because the “Full Faith and Credit Act, 28 U.S.C. § 1738. . . requires the federal court to ‘give the same preclusive effect to a state-court judgment as
another court of that State would give[,] . . . [i]n parallel litigation, a federal court may be bound
to recognize the claim- and issue-preclusive effects of a state-court judgment, but federal
jurisdiction over an action does not terminate automatically on the entry of judgment in the state
court.” Id. (quoting Parsons Steel, Inc. v. First Alabama Bank, 474 U.S. 518, 523 (1986)); see
also Lance, 546 U.S. at 466 (“A more expansive Rooker-Feldman rule would tend to supplant
Congress’ mandate, under the Full Faith and Credit Act, 28 U.S.C. § 1738, that federal courts
‘give the same preclusive effect to state court judgments that those judgments would be given in
the courts of the State from which the judgments emerged.”’ (quoting Baker v. General Motors
Corp., 522 U.S. 222, 246 (1998) (Kennedy, J., concurring))).
Furthermore, when a litigant files suit in federal court before the state court in the parallel
proceeding enters a judgment that carries preclusive effects, the federal courts have tools at their
disposal to ensure that judicial resources are not wasted. For example, under the doctrine of
Colorado River abstention—which the City raised as an alternative argument in its motion to
dismiss—“a federal district court may abstain from exercising its subject matter jurisdiction due
to the existence of a concurrent state court proceeding, based on ‘considerations of wise judicial
administration, giving regard to conservation of judicial resources and comprehensive
disposition of litigation.”’ PaineWebber, Inc. v. Cohen, 276 F.3d 197, 206 (6th Cir. 2001)
(quoting Colorado River, 424 U.S. at 817). And where, as here, the parallel state court
proceedings are far enough along that the state court issued an interlocutory order on the merits
No. 20-6375 RLR Investments, LLC v. City of Pigeon Forge, Tenn. Page 33
before the federal action was filed, several of the Colorado River factors tilt heavily in favor of
the federal court abstaining. See Romine v. Compuserve Corp., 160 F.3d 337, 340 (6th Cir.
1998) (explaining that “in deciding whether to defer to the concurrent jurisdiction of a state
court, a district court must consider such factors as” the “avoidance of piecemeal litigation;” “the
order in which jurisdiction was obtained;” and “the relative progress of the state and federal
proceedings.”); see also D.A. Osguthorpe Fam. P’ship v. ASC Utah, Inc., 705 F.3d 1223, 1226,
1232, 1236 (10th Cir. 2013) (affirming the district court’s abstention under the Colorado River
doctrine after concluding that Rooker-Feldman was not applicable because the state court order
at issue was not final). Significantly, “[s]tay orders based on Colorado River effectively end the
litigation in federal court, ‘because the district court would be bound, as a matter of res judicata,
to honor the state court’s judgment.”’ RSM Richter, Inc. v. Behr Am., Inc., 729 F.3d 553, 556
(6th Cir. 2013) (quoting Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 713 (1996)); see also
Exxon, 544 U.S. at 293. Thus, in addition to § 1257, Exxon, and Lance, all making it clear that
Rooker-Feldman does not apply to nonfinal state court interlocutory orders, there is no
underlying policy reason necessitating the application of Rooker-Feldman to such state court
orders.
***
In sum, Pieper’s holding “that the Rooker-Feldman doctrine does apply to interlocutory
orders and to orders of lower state courts” is no longer tenable post-Exxon and -Lance. 336 F.3d
at 462. In line with every other circuit to have fully considered this issue, Exxon and Lance
require this Court to modify Pieper and hold that Rooker-Feldman does not apply to nonfinal
state court judgments. See Quality Associates, 949 F.3d at 290 n.5 (explaining that Exxon
“displaced” Pieper). Because the majority concludes otherwise, and accordingly affirms the
district court’s holding that it lacked jurisdiction under Rooker-Feldman, I respectfully dissent.