Opinion
CASE NO. 5:02CV00099
March 14, 2003
REPORT AND RECOMMENDATION
This action, filed under 42 U.S.C. § 1983, alleges violations of the First and Fourteenth Amendments to the United States Constitution and Article I, § 12 of Virginia resulting from Plaintiff's discharge from public discharge from public employment which is alleged to have been in retaliation for exercising his federal and state constitutional rights. The case is before the undersigned under authority of 28 U.S.C. § 636(b)(1)(B) to render to the presiding District Judge a report setting forth findings, conclusions, and recommendations for the disposition of Defendant's December 2, 2002, Motion to Dismiss. The parties appered before the undersigned for oral argument on February 25, 2003. For the reasons that follow, the undersigned RECOMMENDS that the presiding District Judge GRANT the motion.
BACKGROUND
Plaintiff(Horner) is an internist who was employed as a "mental health physician" at Western State Hospital from 1995 until May 2001. During at least part of his employment, Horner was a vocal critic of Western State's leadership and policies, and the effects of those policies on patient care. He repeatedly reported what he believed to be federal and state law violations occurring at Western State. In particular, on February 27, 2001, Horner sent an e-mail to his immediate supervisor, both the medical director and director at Western State, the Commissioner of the Department of Mental Health, Mental Retardation and Substance Abuse Services, and the Inspector General for Mental Health, Mental Retardation and Substance Abuse Services. This communication noted specific performance problems relating to a certain named employee at Western State and predominantly laid blame on the hospital's leadership and on poor supervision. The e-mail revealed Horner's deep concern over the adequacy of patient care at Western State.
According to the Complaint in this case, Horner later became the subject of disciplinary action by his state employer. Three charges appear to have been leveled against him. One of those was for "failure to follow a supervisor's direction" related to obtaining coverage for his shift during periods of absence. A second related to the alleged release of confidential employee information to a party outside the agency., and it clearly stemmed from Horner's February 27, 2001, e-mail communication. The subject of the third charge is not apparent on the record, and its relevance to the disposition of the instant motion has not been raised by either side.
Horner's employment was terminated on May 15, 2001. The applicable Standards of Conduct apparently impose termination as the sanction for conduct set forth in the combination of charges brought against the Plaintiff, which Plaintiff now alleges was improper because it amounted to retaliation for engaging in protected communications. Horner appealed the disciplinary action in accordance with the Commonwealth's grievance procedure. VA. CODE § 2.2-3000 et. seq. (2001) (formerly § 2.1-116.04 et seq.).
The job action was reversed by Horner's superior at the initial stage of the grievance review. The Department, however, was dissatisfied with this decision and instituted an appeal, an action the Plaintiff consistently has maintained is not permitted under the state grievance procedure. Nevertheless, the appeal made its way to a hearing officer in the Commonwealth's Department of Employment Dispute Resolution (David J. Latham, Esq.) who heard the matter and apparently issued three decisions. One of those decisions dismissed one of the three charges, but in the other two, the hearing officer affirmed the Department's decision to discharge Plaintiff. ( See Defs.' Br. Supp. Mot. Dismiss (Def. Brief), at Ex. 1, 2.) In each decision affirming the two respective job actions, the hearing officer addressed Plaintiffs assertion that "the disciplinary action was retaliatory because of purported disparate treatment." ( Id. at Ex. 1 at 8; id. at Ex. 2 at 8.) There is no question that, as to each assertion, the hearing officer entertained evidence concerning the Department's conduct Horner believed to have been in retaliation for his "outspoken . . . complaints to the agency's top management." ( Id. at Ex. 1 at 9; id. at Ex. 2 at 9.) Moreover, Latham explicitly found that Plaintiff had not produced adequate evidence that the disciplinary actions taken against him were retaliatory. In accordance with state law, the Plaintiff appealed these two decisions to the Circuit Court of Staunton. VA. CODE § 2.2-3006B (2001) (formerly § 2.1-116.07).
In the Decision of Hearing Officer regarding Grievance in Case No. 5249, Latham states: "[T]he grievant has provided no testimony or evidence that would substantiate that this disciplinary action was retaliatory. There is more to proving retaliation then making a mere allegation." (Def. Brief at Ex. 2 at 9.) Plaintiff apparently had alleged that the disciplinary action taken against him was both disparate and retaliatory in that, in the past, he had reported deficient patient care on the part of other physicians but had not been disciplined. According to the hearing officer, Horner offered neither documentation nor testimony to support that assertion except with regard to reports about one physician, whose professional services were the subject of pending litigation.
The state Circuit Judge first determined the scope of his judicial review, and then reversed the hearing Officer's determinations on the grounds that they were "contradictory to law." (Def. Brief at Ex. 3.) The Court ordered reinstatement, back pay, and reinstatement of fringe benefits as if Plaintiff had never been terminated. The Judge explicitly did not consider or decide any other of Horner's substantive claims, including whether he suffered retaliation on account of his exercise of his alleged state and federal constitutional rights. This decision was appealed by the Department to the Virginia Court of Appeals, and a stay of the Circuit Court decision has issued pending the outcome of the appeal. To date no decision has issued from the Virginia Court of Appeals.
CONTENTIONS OF THE PARTIES
Defendants' Motion to Dismiss and Accompanying Brief
Defendants take the position here that the determination by the state administrative hearing officer was an adjudication by a trier-of-fact who is the equivalent of an Administrative Law Judge. They believe that, under the extant decisional authorities in this Circuit, a final determination of the grievance at any level of the process, whether at the administrative level or upon a final decision by a reviewing state court, would be entitled to preclusive or res judicata effect in any collateral proceeding, such as this one. See Layne v. Campbell County Department of Social Services, 939 F.2d 217 (4th Cir. 1991); Leonard v. Suthard, 927 F.2d 168 (4th Cir. 1991). Defendants offer that Plaintiff has had, and by the time the appellate process concludes certainly will have had, a full and fair opportunity to set forth his grievances relating to any and all claims of retaliation in his discharge, and because the state Circuit Judge did not disturb the administrative findings, those findings have become final and conclusive on the Plaintiff. They ask that the Court refrain from taking any collateral action and dismiss the case. 28 U.S.C. § 1738; University of Tennessee v. Elliott, 478 U.S. 788 (1986).
More significantly, Defendants argue that the case should be dismissed for want of subject matter jurisdiction under the Rooker-Feldman doctrine. That doctrine emerged in two decisions of the United States Supreme Court, namely, Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). It provides that federal district courts "lack jurisdiction to hear constitutional claims that have been adjudicated by state courts or that are `inextricably intertwined with the merits of a state court judgment.'" Edmonds v. Clarkson, 996 F. Supp. 541, 545 (E.D. Va. 1998). The adjudicating state courts maybe lower courts or the state's highest court. See id. at n. 6. They contend that the hearing officer's findings of no retaliation are "inextricably intertwined" with, if not identical to, Plaintiffs constitutional claims asserted in this case, and they offer that Plaintiff is essentially asking this Court to intercede in a way that could preempt state appellate review in the grievance process. Leonard v. Suthard, 927 F.2d at 168.
Defendants point out that whether the grievance outcome was appealable by the Department and whether Homer was properly discharged (including whether there was retaliation) remain undecided in the state courts because the Circuit Court ruling is pending appeal.
The Plaintiff counters that the administrative decisions and the appeals thereof to the state courts are not adjudicatory but rather rule-making and, thus, do not implicate the Rooker-Feldman doctrine. To support this contention, Plaintiff relies almost entirely on a footnote in a recent decision by the United States Supreme Court which acknowledges that the doctrine "has no application to judicial review of executive action, including determinations made by a state administrative agency." Verizon Md. Inc. v. Public Serv. Comm'n of Md., 122 S.Ct. 1753, 1759 n. 3 (2002). Plaintiff claims that because the Virginia Department of Employment Dispute Resolution is defined as an administrative agency under Virginia law, the Rooker-Feldman doctrine has no application to the hearing officer's decision on Plaintiffs constitutional retaliation claim in this case. Plaintiff also points out that no state court has ruled on the precise substantive issue raised in these proceedings, namely, whether Horner was retaliated against in violation of the constitutions of the United States and of Virginia. This, Plaintiff argues, distinguishes his action from that in Leonard v. Suthard, cited by the Defendants.
Plaintiff also cites an unpublished decision by the Fourth Circuit in which the court refused to extend the Rooker-Feldman doctrine to administrative decisions. Fleming v. Worker's Compensation Comm'n of the Commonwealth of Virginia, 78 F.3d 578, 1996 U.S. App. LEXIS at *4 n. 4 (4th Cir. Mar. 5, 1996). Application of Fleming to this case will be discussed infra.
Plaintiff further contends that federal courts must look to state law to determine the preclusive effect of a state court's finding. He is of the view that, under Virginia law, a final order is required for both resjudicata and collateral estoppel. Because there is no final order in this case, as the case is pending on appeal, any assertion of res judicata and issue/claim preclusion is inappropriate.
Finally, Plaintiff advances an argument in his brief that is a bit difficult to categorize. First, he seems to assert that this Court has jurisdiction to re-litigate the issues in this case because there is substantial reason to doubt the fairness of the previous adjudication of his claims. Plaintiff also asserts that a finding of no jurisdiction by this Court would countervail Virginia public policy by encouraging potential plaintiffs to avoid the state grievance procedure altogether and take their claims directly to federal court so as to preserve all their federally protected claims.
It should be observed that the Virginia grievance process has been found to meet constitutional standards for procedural due process. Detweiler v. Dep't of Rehabilitative Services, 705 F.2d 557 (4th Cir. 1983).
In response to questions posed by the undersigned at oral argument, counsel for Plaintiff conceded that Horner had raised some, but not all, of his retaliation claims in the administrative process. He further contended that he pursued claims related to the effects of his public activism and the alleged disparate treatment by administrative personnel at Western State. Counsel also admitted that the claims presented in this litigation could have been presented in the administrative process but were not. Nevertheless, Plaintiff offers that his failure to present his constitutional retaliation claims there does not deprive the Court of jurisdiction to hear them now, and that he should not be precluded from asserting them in this action.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
As observed during the argument on summary judgment, the undersigned is of the belief that the Rooker-Feldman doctrine intersects a number of established principles that address the jurisdiction of federal courts under Article Three of the Constitution, e.g. "case or controversy," abstention, res judicata/preclusion, and often-forgotten notions of comity. At bottom, Rooker-Feldman poses the question of how much a federal court will "meddle" in ongoing state court proceedings where the ultimate appeal can be to the United States Supreme Court, which certainly has the power to address all the issues that might arise in state adjudicatory process, including those involving the deprivations alleged here.
Plaintiff makes some attempt to characterize the Virginia grievance proceedings below as rule-making or otherwise exempt from the application of Rooker-Feldman. Such a characterization is a stretch at best and, notwithstanding the unpublished decision by the Fourth Circuit in Fleming, it is plainly incorrect. The court's rather loose observations about whether state administrative proceedings are subject to Rooker-Feldman, are overshadowed by the fact that, in Fleming, the Fourth Circuit addressed a constitutional question of whether the plaintiff was deprived of due process by the unilateral suspension of his worker's compensation without notice and an opportunity to be heard. Finding no action under color of state law and, thus, no state action, the court affirmed the trial court's dismissal of the case. In the undersigned's judgment, Rooker-Feldman never was brought squarely into play, even if the Fleming decision has precedential value here, which it does not. It is the undersigned's view that the state grievance process which is the subject of this case was and is an adjudicatory process subject to the Rooker-Feldman doctrine.
To the credit of Plaintiff s counsel, however, Dr. Horner mounts his main defense to the motion to dismiss by raising the question whether Rooker-Feldman should bar claims for retaliatory discharge which could have been raised in the state process, but which were not, and which were asserted for the first time in constitutional form in the Complaint before the Court. For the several reasons that follow, it is the undersigned's judgment that Rooker-Feldman was designed to address cases such as this.
First, there is no question in the undersigned's mind that, factually, the claims here are "inextricably intertwined" with the retaliation claims set forth in Horner's grievance. Horner has not and cannot offer that the factual basis for his constitutional claims under § 1983 would differ, in any substantial part, from those essential facts presented in the state proceedings.
Second, and as conceded by Plaintiff, the precise claims raised here could have been raised and adjudicated in the state proceedings. As part of his concession, Plaintiff recognized the right to have asserted in the administrative process the very forms of retaliation alleged in his complaint. Likewise he does not challenge the power or authority of the administrative decision-maker and the state courts to have entertained those claims, and he recognizes that the entire process is subject to state appellate review and, ultimately, to review by the United States Supreme Court. Thus, an important element of Rooker-Feldman relating to whether the claims asserted in the collateral federal action are ones that ultimately could be addressed on direct appeal by the United States Supreme Court, if raised in the state proceedings, has been satisfied. Of course, the Supreme Court would have the power to review the decision from Virginia's highest court on all matters determined in the state process, most particularly those alleging a violation of a party's federal constitutional rights. Whether it would exercise that power is not a consideration for the application of the doctrine.
The third reason forming the basis for the undersigned's conclusions here is an outgrowth of the first two. In Edmonds v. Clarkson, 996 F. Supp. 541 (E.D. Va. 1998), the Hon. Robert Payne observed that there may be consequences associated with a party's election not to present claims which could have or should have been raised in the state proceedings. For Rooker-Feldman purposes, a question always is presented about whether a party should be entitled to invoke the jurisdiction of a collateral federal court when there has been what some could characterize as a deliberate bypass of an adjudicatory process which ultimately envisions review by the highest courts of Virginia and of the United States. See also Guess v. Board of Medical Examiners, 967 F.2d 998 (4th Cir. 1992); Thomas v. Kadish, 748 F.2d 276 (5th Cir. 1984). Not for a moment does this Court infer, as Plaintiff seemed to suggest at oral argument, that either Judge Payne or the cases cited in his opinion make an effort to engraft notions of exhaustion into proceedings of this nature instituted under § 1983, just as they exist, for example, under 28 U.S.C. § 2254 and 2255. However, Edmonds seems to pick up on notions of comity, federalism, and abstention that resonate in the Rooker-Feldman doctrine. Thus, when distilled to its essence in cases like Edmonds, the doctrine serves as a warning to the lower federal courts against interfering with ongoing state adjudicatory processes which are amply "due" in the constitutional sense even when not fully engaged by the complaining party.
Plaintiff offers a perception that the application of the Rooker-Feldman doctrine would be unfair under the circumstances of this case because his election of the state process unwarily might have trapped him into inadvertently abandoning constitutional rights otherwise addressable in the federal courts. However, subject matter jurisdiction of the federal courts is not something premised on notions of fairness, at least in the sense offered by Plaintiff. The fairness of the Rooker-Feldman doctrine lies on a far different plain, one much akin to issue preclusion, one that addresses the fairness of collateral federal action when the matter has been or could have been presented in the state process with ultimate review by the United States Supreme Court. Thus, somewhat in the same way, a water pump on a vehicle either works or it does not; the federal courts either possess subject matter jurisdiction or they do not, irrespective of the impact on the litigants.
Finally, no one can tell right now what the final outcome of the grievance process will be for the Plaintiff. If the Circuit Court decision is upheld, or if he prevails on his assertion that the Department could not invoke the administrative hearing process, then the undersigned finds it difficult to discern any cause of action because Horner will be entitled to reinstatement with all back pay. In other words, there is no deprivation upon which to base a constitutional claim, and the expenses he claims to have incurred successfully defending his entitlement to the position at Western State do not form the kind of loss upon which constitutional challenges can proceed.
In the end, the undersigned believes that Rooker-Feldman applies and dictates a conclusion that this Court is without jurisdiction to entertain the claims brought in this case. Thus, the Defendants' motion to dismiss should be granted and this case should be dismissed from the docket of the court for lack of subject matter jurisdiction. It is so RECOMMENDED.
The Clerk is directed immediately to transmit the record in this case to the Hon. James H. Michael, Jr., Senior United States District Judge. Both sides are reminded that pursuant to Rule 72(b) they are entitled to note objections, if any they may have, to this Report and Recommendation within (10) days hereof. Any adjudication of fact or conclusion of law rendered herein by the undersigned not specifically objected to within the period prescribed by law may become conclusive upon the parties. Failure to file specific objections pursuant to 28 U.S.C. § 636(b)(1)(C) as to factual recitations or findings as well as to the conclusions reached by the undersigned may be construed by any reviewing court as a waiver of such objection.
The Clerk is directed to send a certified copy of this Report and Recommendation to all counsel of record.