Zivkovic v. Hood

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 4, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
DAVID ZIVKOVIC,
Plaintiff - Appellant,
v. Nos. 17-4052 & 17-4072
(D.C. No. 2:17-CV-00067-DN-PMW)
KIMBERLY HOOD; ROBERT (D. Utah)
JOHNSON,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before BRISCOE, HARTZ, and BACHARACH, Circuit Judges.
_________________________________
In 1995, Mr. David Zivkovic was convicted of a second-degree
felony theft in Utah state court and ordered to pay restitution. To aid
collection of the restitution, the State of Utah garnished Mr. Zivkovic’s tax
returns. Mr. Zivkovic challenged the garnishment and moved for a
*
We conclude that oral argument would not materially help us to
decide this appeal. As a result, we are deciding the appeal based on the
briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
preliminary injunction to prevent garnishment of his 2016 tax refund. The
district court denied the motion and dismissed the action for lack of
jurisdiction under the Rooker-Feldman doctrine.
Mr. Zivkovic has filed two appeals (Appeal No. 17-4052 and
No. 17-4072) for (1) denial of the preliminary injunction and (2) dismissal
of the action. We affirm both rulings.
I. Consideration of Subject-Matter Jurisdiction
The district court must always ensure its own subject-matter
jurisdiction regardless of whether it has been addressed by the parties.
McAlester v. United Air Lines, Inc., 851 F.2d 1249, 1252 (10th Cir. 1988).
If the district court lacks subject-matter jurisdiction, dismissal is required.
See PJ ex rel. Jensen v. Wagner, 603 F.3d 1182, 1193 (10th Cir. 2010)
(stating that the Rooker-Feldman doctrine involves subject-matter
jurisdiction); Gonzalez v. Thaler, 565 U.S. 134, 141 (2012) (sua sponte
consideration of requirements that involve subject-matter jurisdiction). 1
1
The district court ruled that Mr. Zivkovic could appear in forma
pauperis. Based on this ruling, the district court screened the complaint
under the Prison Litigation Reform Act. This Act allows the district court
to dismiss a complaint for failure to state a valid claim. 28 U.S.C.
§ 1915(e)(2)(B)(ii).
Mr. Zivkovic argues that the district court waited too long to screen
the complaint for failure to state a valid claim. But we need not address
this argument because the Rooker-Feldman doctrine implicates subject-
matter jurisdiction rather than failure to state a valid claim. The district
court can always address subject-matter jurisdiction sua sponte. Fed. R.
-2-
II. The district court lacked subject-matter jurisdiction over Mr.
Zivkovic’s complaint.
Under the Rooker-Feldman doctrine, the federal district court lacks
“authority to review final judgments of a state court in judicial
proceedings.” D.C. Court of Appeals v. Feldman, 460 U.S. 462, 482
(1983); Rooker v. Fid. Tr. Co., 263 U.S. 413 (1923). Under this doctrine,
the federal district court lacked jurisdiction.
There are two possible ways of interpreting the complaint: (1) as an
attack on the state-court judgment giving rise to the restitution obligation
or (2) as an attack on the state-court order authorizing the garnishment.
Under either interpretation, Mr. Zivkovic would be seeking review in
federal district court over a state-court order. Such review is impermissible
under the Rooker-Feldman doctrine. 2
Because the district court lacked subject-matter jurisdiction, the
dismissal was correct. In light of the correctness of that dismissal, Mr.
Zivkovic’s challenge to the preliminary injunction is moot. Sac & Fox
Nation of Okla. v. Cuomo, 193 F.3d 1162, 1168 (10th Cir. 1999) (stating
Civ. P. 12(h)(3); McAlester v. United Air Lines, Inc., 851 F.2d 1249, 1252
(10th Cir. 1988).
2
In unpublished opinions, we have held that the Rooker-Feldman
doctrine prevents district courts from considering challenges to state-court
garnishments. Chavez v. Cty. of Boulder, 149 F. App’x 713 (10th Cir.
2003); Jackson v. Peters, 81 F. App’x 282, 285 (10th Cir. 2003). These
opinions are not precedential, but we regard them as persuasive. See
note *, above.
-3-
that affirmance of a dismissal, based on the absence of federal jurisdiction,
renders moot an appeal over the denial of a preliminary injunction).
Affirmed.
Entered for the Court
Robert E. Bacharach
Circuit Judge
-4-