United States District Court, S.D. Alabama, Southern Division
KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE
action is before the Court on the motion to partially dismiss
under Federal Rule of Civil Procedure 12(b)(1) for lack of
subject matter jurisdiction (Doc. 43) filed by Defendants the
Mobile County Personnel Board (“the Board”);
Liana Barnett, who is being sued in her official capacity as
the Board's Personnel Director; and Donald Dees, who is
being sued in his individual capacity. (collectively,
“the Board Defendants”). Plaintiff Michael Smith
has filed a response (Doc. 46-1) in opposition to the motion,
and the Board Defendants have filed a reply (Doc. 48) to the
response. The motion is now under submission (see
Doc. 47) and is ripe for disposition. Upon consideration, the
Court finds that the motion (Doc. 4) is due to be GRANTED in
part and DENIED in part.
STANDARD OF REVIEW
IV of the complaint alleges claims against only the Board
Defendants. (Doc. 1 at 10). These Defendants have moved to
dismiss Count IV for lack of subject matter jurisdiction
under the Rooker-Feldman doctrine, see
Rooker v. Fid. Trust Co., 263 U.S. 413 (1923); D.C.
Court of Appeals v. Feldman, 460 U.S. 462 (1983), which
“makes clear that federal district courts cannot review
state court final judgments because that task is reserved for
state appellate courts or, as a last resort, the United
States Supreme Court.” Casale v. Tillman, 558
F.3d 1258, 1260 (11th Cir. 2009) (per curiam). “[A]
motion to dismiss for lack of subject matter jurisdiction
pursuant to Fed.R.Civ.P. 12(b)(1) can be based upon either a
facial or factual challenge to the complaint.”
McElmurray v. Consol. Gov't of Augusta-Richmond
Cty., 501 F.3d 1244, 1251 (11th Cir. 2007). Because the
present motion raises a “factual challenge to subject
matter jurisdiction, a district court can consider extrinsic
evidence…In so doing, a district court is free to
weigh the facts and is not constrained to view them in the
light most favorable to the plaintiff.” Houston v.
Marod Supermarkets, Inc., 733 F.3d 1323, 1336 (11th Cir.
2013) (quotations omitted).
complaint raises state and federal law claims arising from
his termination from employment as a police officer with the
City of Mobile, Alabama.Smith was terminated by the City of
Mobile on September 12, 2014. Because he was a classified
merit system employee, Smith was entitled to appeal that
decision to the Board. After holding an appeal hearing, at which
Smith was represented by counsel, the Board upheld
Smith's termination by order issued December 1, 2014
(Doc. 41-10). Smith, through different counsel, attempted to
appeal that decision to the Circuit Court of Mobile County,
Alabama, by filing a complaint/notice of appeal (Doc. 41-11)
with the circuit court on December 12, 2014, pursuant to
§ XXXIV of Act No. 470, Local Acts of 1939, as amended
by Act No. 2004-105, Ala. Acts 2004 (“Local Act
470”), which states as follows:
COURT PROCEEDINGS: Orders of the Personnel Director and
Personnel Board may be enforced by mandamus, injunction, quo
warranto, or other appropriate proceedings in a court of
competent jurisdiction. Any person directly interested,
within 14 days, may appeal to the Circuit Court of Mobile
County from any order of the board, by filing notice thereof
with the board, whereupon the board shall certify to a
transcript of the proceedings before it and file the same in
court. Only findings of fact of the board contained in the
transcript, if supported by substantial evidence adduced
before the board or before its Personnel Director after
hearing and upon notice to the interested party or parties,
and after affording the parties an opportunity to be heard,
shall be conclusive on appeal. The issues on appeal shall be
made up under the direction of the court within 30 days after
the transcript is filed therein, and the trial shall proceed
on the evidence contained in the transcript, if it appears
therefrom that the evidence was taken after such notice and
opportunity to be heard. If upon appeal, the court finds that
the ruling, order, or action appealed from is unlawful or
unreasonable within the meaning of this act, the court shall
vacate or modify the same.
(Doc. 41-3 at 25 - 26).
Board moved to dismiss the circuit court appeal, claiming
that Smith had failed to perfect his appeal “by filing
notice thereof with the board” within 14 days of the
Board's decision as required by § XXXIV of Local Act
470. (Doc. 41-13). After holding oral argument on May 15,
2015, the circuit court entered an order on May 26, 2015,
summarily granting the Board's motion to dismiss. (Doc.
appealed that decision to the Alabama Court of Civil Appeals,
which affirmed the circuit court's dismissal in a
published opinion issued January 8, 2016. See (Doc.
41-15); Smith v. City of Mobile, 203 So.3d 885 (Ala.
Civ. App. 2016). In doing so, the Court of Civil Appeals
expressly determined: “[T]he Board entered its order on
December 1, 2014; therefore, the last day that Smith could
have filed a notice of appeal with the Board was December 15,
2014. There is nothing included in the record on appeal
indicating that the Board was served before December 18,
2014…It is clear from the language of § XXXIV
that, in order to effectuate an appeal from a decision of the
Board, the Board must be served within 14 days of
the date on which it rendered its decision. It is also clear
from the record before us that, in the present case, the
Board was not served until at least December 18, 2014, more
than 14 days after the entry of the Board's December 1,
2014, order…Because Smith's failure to serve the
Board pursuant to § XXXIV precluded the trial court from
acquiring subject-matter jurisdiction over this action, we
conclude that the trial court appropriately dismissed
Smith's complaint.” Smith, 203 So.3d at
886-87. In a footnote, the Court of Civil Appeals
further observed: “To the extent that Smith argues that
the trial court erred by stating in its order that the
Board's December 1, 2014, order was affirmed, we note
that the dismissal of Smith's appeal to the trial court
does, in fact, result in the Board's order remaining
effective. Therefore, any language indicating that the trial
court affirmed the Board's order is mere
surplusage.” Id. at 887 n.2.
filed an application for rehearing with the Court of Civil
Appeals, which denied the application on March 4, 2016.
See Smith v. City of Mobile, 203 So.3d 885 (Ala.
Civ. App. 2016), reh'g denied (Mar. 4, 2016).
Smith did not seek certiorari review with the Alabama Supreme
Court, and the last day for him to do so was March 18, 2016.
See Ala. R. App. P. 39(b)(3) (“If an
application for rehearing has been filed with the Court of
Civil Appeals, the petition for the writ of certiorari shall
be filed within 14 days (2 weeks) of the decision of that
court on the application for rehearing.”). Smith filed
the present complaint on September 8, 2016. (Doc. 1).
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.' ” Nicholson v. Shafe, 558 F.3d
1266, 1268 (11th Cir. 2009) (quoting Exxon Mobil Corp. v.
Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)).
“The doctrine bars the losing party in state court
‘from seeking what in substance would be appellate
review of the state judgment in a United States district
court, based on the losing party's claim that the state
judgment itself violates the loser's federal rights.'
” Brown v. R.J. Reynolds Tobacco Co., 611 F.3d
1324, 1330 (11th Cir. 2010) (quoting Johnson v. De
Grandy, 512 U.S. 997, 1005-06 (1994)).
his unsuccessful attempt to appeal his termination to the
Alabama courts, Smith is a “state-court loser.”
Because Smith did not attempt to seek review of the Court of
Civil Appeals's decision with the Alabama Supreme Court,
and because the time to do so expired almost six months
before the present complaint was filed, his state court
proceedings have ended for purposes of applying the doctrine.
Nicholson, 558 F.3d at 1275 (for
Rooker-Feldman to apply, “the federal action
must be filed after the state proceedings have
ended…”); Lozman v. City of Riviera Beach,
Fla., 713 F.3d 1066, 1072 (11th Cir. 2013)
(“[S]tate court proceedings end ...