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October 8, 1999


The opinion of the court was delivered by: McMAHON, District Judge.


In Moccio v. Office of Court Administration, 95 F.3d 195 (2d Cir. 1996), the United States Court of Appeals for the Second Circuit applied the so-called Rooker-Feldman doctrine,*fn1 which bars a district court from entertaining a suit that would have the effect of reversing or modifying a state court judgment, to sustain dismissal of a complaint that charged constitutional infirmities in the dismissal of a uniformed court officer. The plaintiff in Moccio was dismissed following a hearing at which he presented testimony and confronted the witnesses against him. An administrative law judge reviewed the record and sustained the hearing officer's recommendation of dismissal. The dismissed officer then brought a petition pursuant to Article 78 of New York's Civil Practice Law and Rules, seeking to vacate the decision of the administrative law judge. When the Article 78 appeal proved unsuccessful, Moccio brought an action in this court, pursuant to 42 U.S.C. § 1983, contending that his termination was procured in violation of his constitutional rights. The Second Circuit affirmed the district court's dismissal of Moccio's complaint for lack of subject matter jurisdiction. It ruled that Rooker-Feldman precluded plaintiff's suit, because plaintiff could have litigated his constitutional claims in the Article 78 proceeding but failed to do so. The Court held that the constitutionality of plaintiff's dismissal was necessarily comprehended in the state court's judgment upholding that dismissal, and that Moccio's constitutional claims were therefore "inextricably intertwined" with the validity of the underlying judgment in the Article 78 proceeding. This precluded the federal courts from entertaining them under Rooker-Feldman because, if the federal court found in the plaintiff's favor on his constitutional claims, the effect would be to reverse or modify the state court's judgment. That, of course, is what the Rooker and Feldman cases forbid.*fn2 See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 416, 44 S.Ct. 149, 68 L.Ed. 362 (1923).

In this action, plaintiff William Birmingham is similarly aggrieved. He was dismissed from his position with the City of Middletown police force after a hearing conducted by the Middletown Board of Police Commissioners. At that proceeding, he was represented by counsel, who called and cross-examined witnesses. Like Moccio, Birmingham does not challenge the constitutionality of either law or regulations that were applied to him, but rather contends that those precepts were erroneously applied to his specific set of facts, by persons he claims were biased and acting out of a desire to retaliate against him for engaging in constitutionally protected speech. Like Moccio, Birmingham contends (among other things) that his dismissal violated Fourteenth Amendment due process guarantees, because the termination hearing was conducted in an arbitrary and capricious fashion. Also like Moccio, Birmingham alleges that he was selectively sanctioned by his superiors in violation of the Equal Protection Clause, in that other members of the Middletown police force were not disciplined or terminated for misconduct similar to his. Birmingham claims, additionally, that disciplinary charges were brought against him in retaliation for his exercise of his First Amendment rights to speak about matters concerning the operation of the Middletown police department.

For purposes of this motion, the critical difference between Birmingham's case and Moccio's is that plaintiff Birmingham, unlike Moccio, never bothered to bring an Article 78 proceeding challenging his dismissal. In such a proceeding, Birmingham could have litigated his constitutional claims. New York Civil Service Law § 76(1); see Star Distrib., Ltd. v. Marino, 613 F.2d 4, 8 n. 10 (2d Cir. 1980) (noting the obligation and competence of state courts to decide federal questions); see also Huffman v. Pursue, Ltd., 420 U.S. 592, 611, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (observing that State courts, as much as federal courts, are bound by and required to follow the United States Constitution).

The defendants have moved for summary judgment dismissing the instant complaint on a variety of grounds. Foremost among them is that this Court lacks subject matter jurisdiction under Rooker-Feldman. Defendants acknowledge that no State court judgment underlies this action. Nonetheless, they contend that Rooker-Feldman can and should be applied to the quasi-judicial State administrative proceeding, because that proceeding has collateral estoppel effects under New York law. The defendants claim that this conclusion is compelled by Moccio, where the plaintiff was (in essence) estopped from litigating claims in federal court that he had a full and fair opportunity to raise in a state court proceeding. In addition, defendants urge dismissal because plaintiff has failed to raise disputed issues of material fact as to each of his claims.

As I am required to resolve a challenge to this Court's subject matter jurisdiction prior to considering any other question, see Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990) (stating that district courts should address a Rule 12(b)(1) challenge first, since if the court must dismiss the complaint for lack of subject matter jurisdiction, the accompanying objections become moot and need not be determined); Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987) (noting that before addressing the merits of any claim, a federal court must examine the basis of federal jurisdiction), I begin by addressing defendant's Rooker-Feldman argument. While I find that I am not compelled by Rooker-Feldman to abstain from hearing plaintiff's claims, I conclude that I must dismiss portions of the complaint on other grounds.

Background Facts

The following facts, which are viewed most favorably to plaintiff, are deemed accepted for purposes of this motion only.

William Birmingham was a lieutenant on the City of Middletown police force. He was, by the admission of his Police Chief, defendant Ogden, an excellent officer during his tenure with the department. As a tenured municipal employee, Birmingham had a property interest in his position.

During his employment, at times and in places that are not specified in the complaint or in any evidentiary form, plaintiff expressed to Ogden, his friend, former partner and captain, various opinions concerning the running of the police department, including his opinion that the workings of the department were permeated with local politics and that the Police Chief was too closely tied to the Mayor. Plaintiff was also extremely active in the Police Benevolent's Association ("PBA"), and he criticized the leadership of the police department for not encouraging union activity among the rank and file. It would appear from the papers before me that Birmingham did not make these comments in any public forum, but instead privately, to Ogden or other senior officers of the department. It would be fair to infer that plaintiff developed something of a reputation as a troublemaker.

Over a year after this incident, but prior to dismissal of the criminal complaint, Police Chief Ogden brought plaintiff up on disciplinary charges based on the alleged domestic abuse. Plaintiff appeared before the Board of Police Commissioners, in May 1997, and was adjudged guilty of misconduct after an Article 75 disciplinary hearing that plaintiff contends was rigged against him and conducted in violation of his rights and the rules governing such proceedings. Among other things, plaintiff alleges that a series of ex parte contacts between Chief Ogden and certain members of the Board of Commissioners, and between Board members and the prosecutor, should have led three of the Board members (the three who voted against him) to recuse themselves. He alleges that the Commissioners made their decision based on evidence they learned outside the hearing, and contends that the meeting at which the final vote was taken was deliberately scheduled for a time when his two supporters among the five Board members could not be present — although plaintiff does not explain how their presence would have helped his cause, since he believes that three of the five Board members were determined to discharge him from the outset of the proceeding. Those three did indeed vote to discharge Birmingham, and plaintiff was dismissed from the police force effective July 18, 1997.

Plaintiff had two avenues of appeal under state law from the adverse administrative determination. He could have appealed to the Civil Service Commission, pursuant to New York Civil Service Law § 76(1). Or, he could have commenced an Article 78 proceeding in the Supreme Court, Orange County, to determine whether the decision of the Board members was supported by substantial evidence.*fn3 He did neither. Instead, Birmingham retained counsel and filed the instant action in federal court.

Plaintiff brings several claims, pursuant to 42 U.S.C. § 1983, alleging violations of his federal constitutional rights under color of state law.*fn4 As his first and second causes of action, Birmingham asserts that the defendants' actions violated his rights to free speech and free association under the First Amendment. Complaint ¶¶ 28, 30. Plaintiff states that during his 20 years with the Middletown Police Department, he "consistently articulated to [defendant] Ogden" his feelings about two topics: one, that local politics were having a corrupting influence on the administration of the police department, and two, that participation by members of the police department in the Police Benevolents Association (PBA) should be encouraged by the leadership of the department. Complaint ¶ 6. Plaintiff believes that Chief Ogden held the opposite views with respect to both topics — i.e., that Ogden thought that "[s]worn members of the Department should be grateful to their local elected politicians[,] whose influence in the administration should be countenanced," and that "exercise of associational rights by members of the PBA, including Plaintiff, should be suppressed and not encouraged since the associational activities of the PBA membership were not in the best interest of the City." Complaint ¶ 7. Plaintiff's claim is that, because he held views that were disfavored by Chief Ogden and certain members of the Board of Police Commissioners (namely, the Mayor, who was both President of the Board and the main target of plaintiff's allegations of political corruption), the Chief and the Mayor preferred disciplinary charges against him, put him through a sham disciplinary hearing and procured his dismissal — all to retaliate against him and "shut [his] mouth" about these topics.

As his third claim, plaintiff alleges a violation of his due process rights under the Fourteenth Amendment. Complaint ¶ 32. Plaintiff alleges that his termination was unlawful because the Board was without sufficient evidence to remove him from the force and because it made the decision to remove him based on information learned outside the record at the hearing. Plaintiff claims that certain police officers, including defendant Ogden, perjured themselves at the disciplinary hearing, and that Ogden had several ex parte discussions with the Mayor (which the Mayor then relayed to his "cronies" on the Board) about Birmingham and the disciplinary charges against him. Complaint at ¶ 18; Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment ("Plaintiff's Brief"), at 20. Plaintiff also alleges that defendant Ogden and the Mayor arranged, after the hearing, to have the hearing stenographic record altered so as to protect themselves from perjury charges. Complaint ¶ 18. Plaintiff further complains that the process used to render a determination in his case violated lawful procedures. Plaintiff's Brief at 32. Specifically, plaintiff's complaint states that he was "pre-judged by a three-to-two split . . . to be guilty," and that Chief Ogden and the Mayor deliberately stalled the final vote on dismissal until a time when the two members of the Commission who would not vote to terminate plaintiff were not available. Complaint ¶¶ 19, 20. The three members of the Board who were present at the meeting then "convicted Plaintiff and summarily terminated his employment." Complaint ¶ 21.

Plaintiff's fourth claim is that the defendants' conduct violated his right to Equal Protection under the Fourteenth Amendment because he was subjected to a disciplinary hearing and terminated from employment while other officers on the force who had engaged in misconduct were not required to undergo a hearing or terminated for that misconduct. Plaintiff alleges that other Middletown police officers have gone undisciplined for acts of misconduct that have brought discredit to the police department, such as harassment or drunkenness. Plaintiff's Brief at 37-38. Plaintiff also notes that he is aware that at least one other police officer was disciplined after an accusation by his wife that he assaulted her, but that officer was not put through a disciplinary hearing and was suspended for two weeks rather than terminated. Plaintiff's Brief at 37. Plaintiff, in fact, alleges that no other disciplinary hearings pursuant to Section 75 of the New York Civil Service Law have been held against members of the Middletown Police Department since 1986, and that only one other hearing was held by the Board of Police Commissioners since approximately 1975. Plaintiff's Brief at 39.

As his fifth claim, Plaintiff has asserted that the actions of the defendants were "arbitrary, capricious, and/or otherwise unlawful in violation of Plaintiff's state law entitlements to a fair hearing" and that "the disciplinary hearing and/or conviction must be declared null and void." Complaint ¶¶ 37-38. Plaintiff describes this as a supplemental state law claim. Of course, what he is doing is asking this court to conduct an Article 78 review of the hearing held by the Board of Police Commissioners.


1. The Rooker-Feldman Issue

The essence of the Rooker-Feldman doctrine is that the federal district courts have no authority to review final judgments of state courts in judicial proceedings. Narey v. Dean, 32 F.3d 1521, 1524 (11th Cir. 1994). Appellate review of state court judgments is available only in the Supreme Court. 28 U.S.C. § 1257; Van Harken v. City of Chicago, 103 F.3d 1346, 1349 (7th Cir. 1997). Under the Rooker-Feldman doctrine, a district court is without subject matter jurisdiction if a federal claim is "inextricably intertwined" with a state court judgment. Feldman, 460 U.S. at 483 n. 16, 103 S.Ct. 1303. A federal claim is "inextricably intertwined" with the underlying judgment if the federal claim succeeds only to the extent that the state court wrongly decided the issues before it. See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 25, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987). The Second Circuit has interpreted "inextricably intertwined" to be co-extensive with the law of preclusion. Moccio at 199-200. Thus, "where a federal plaintiff had an opportunity to litigate a claim in a state proceeding (as either the plaintiff or defendant in that proceeding), subsequent litigation of the claim will be barred under the Rooker-Feldman doctrine if it would be barred under the principles of preclusion." Id. at 199 (citations omitted).

Applying that logic to the facts in the Moccio case, the Second Circuit concluded as follows: a plaintiff who had availed himself of a state forum (i.e., an Article 78 proceeding), where constitutional challenges to the fact-specific application of a state law or regulation to an aggrieved litigant could be considered, could not fail to litigate those constitutional issues in the state forum and then expect to maintain a lawsuit for damages in a federal district court. The Court then found that issues essential to both Moccio's causes of action under § 1983 were actually and necessarily decided adversely to him in the Article 78 proceeding, so that any inquiry into matters comprehended within the Article 78 judgment would run afoul of the rule forbidding federal courts from making determinations that undermine the validity of a state court judgment.

Here, of course, plaintiff has sidestepped state court review of the administrative determination altogether. Without availing himself of either of the two forms of state court appeal that lay from the ruling against him (an Article 78 or an appeal to the Civil Service Commission), he has commenced this federal court action for damages. Plaintiff maintains that he is not compelled to take advantage of available State law remedies and can come directly to federal court with both his constitutional claims and his request that the determination of the Police Commissioners — and his dismissal — be declared null and void.

Not so, say defendants. They point to the Moccio Court's application of preclusion law to determine whether Rooker-Feldman must be invoked. They argue, correctly, that the disciplinary proceeding that ended in plaintiff's termination was judicial in nature — i.e., it was a proceeding held to find facts and apply existing law and regulation to them, not to legislate new law and regulations. They note that Birmingham had the opportunity to be represented at the proceeding, to call witnesses and to cross examine those called against him. Under New York law, facts found in such a quasi-judicial proceeding have collateral estoppel effect in future proceedings. Zanghi v. Incorporated Village of Old Brookville, 752 F.2d 42, 46 (2d Cir. 1985); Ryan v. New York Telephone Co., 62 N.Y.2d 494, 496, 478 N.Y.S.2d 823, 825-26, 467 N.E.2d 487 (1984). Defendants reason, therefore, that Rooker-Feldman must apply to bar plaintiff's collateral federal attack on the results of the quasi-judicial administrative proceeding.

Defendants are wrong. While the New York courts have held that quasi-judicial administrative findings have collateral estoppel effect in state courts (and in fact the usual rule is that the same amount of collateral estoppel effect applies in the federal courts as would in the state courts), see 28 U.S.C. § 1738; University of Tennessee v. Elliott, 478 U.S. 788, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986), Rooker-Feldman simply is not implicated when no judgment of a state court is at issue. The three federal circuits that have already considered this precise question — in factual situations strongly reminiscent of those before me — have so held. See Van Harken v. City of Chicago, 103 F.3d 1346, 1348-49 (7th Cir. 1997); Narey v. Dean, 32 F.3d 1521, 1525 (11th Cir. 1994); Scott v. Flowers, 910 F.2d 201, 206 (5th Cir. 1990).

In Narey v. Dean, the Eleventh Circuit held that the Rooker-Feldman doctrine did not apply to an unreviewed decision of the Georgia State Personnel Board. Plaintiff Narey was demoted from his position as director of the Northwest Georgia Community Mental Health Center after an audit and investigation suggested that he had, among other things, improperly handled client funds and misused state grant monies. Narey appealed his demotion to the State Personnel Board. After a sevenday, quasi-judicial hearing on the matter, a hearing officer upheld the demotion decision. Narey subsequently appealed to the full Board, which affirmed.*fn5

Narey then brought a § 1983 suit in federal district court, claiming that the Center's action violated his due process rights because the defendants had demoted him for pretextual reasons, had failed to satisfy the requirements of progressive discipline before demoting him, and were without legal authority to take the adverse action against him.*fn ...

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