This suit was filed on August 21, 2006 by the Physician in the U.S. District Court for the Eastern District of Virginia, Alexandria Division, against Judge Swersky, his law clerk Sarah Haley, Deborah Baum and Karen-Faye McTavish. The Plaintiff sought declaratory relief against all four defendants and compensatory and punitive damages against Haley, Baum, and McTavish. Counts I and II were brought under 42 U.S.C. Â§ 1983, alleging that Judge Swersky and his law clerk Haley violated Plaintiff's right to due process and equal protection. Count III was a claim against all four defendants, alleging a conspiracy to violate Plaintiff's constitutional rights under 42 U.S.C. Â§ 1985(3). The remaining counts in the complaint consisted of allegations against all of the defendants under Virginia state law, including fraud, intentional infliction of emotional distress and civil conspiracy.
The case was assigned to Judge Gerald Lee (and Judge Barry Poretz as magistrate judge). Judge Lee recused himself two days before a hearing on motions to dismiss filed by the defendants. A few days later Judge Poretz did the same. Judge Leonie Brinkema was then assigned the case, along with Judge Liam O'Grady as magistrate judge.
Judge Swersky and his law clerk were represented by the Commonwealth Attorney, who stated, in a motion to dismiss, that "all that due process requires is opportunity to be heard." Neither Judge Swersky nor his counsel believed that due process entitles a litigant to an impartial judge. At a hearing held on November 17 on motions to dismiss filed by all the Defendants, Judge Brinkema granted the motions, eviscerated 42 U.S.C. Â§ 1983 of its meaning and essentially ruled that a judge acting in his judicial capacity can never be sued for declaratoy or injunctive relief. Naturally, in front of such an absurd opinion, the Physician was not given the opportunity to speak. In essence, Judge Brinkema ruled that:
[N]o matter how you want to phrase it, you're asking this Court to enter a judgment that essentially would vacate or undermine the state court proceedings. You're asking this Court to say that Judge Swersky denied you due process, committed such error as to essentially make the state court adjudication vulnerable.
The Judge added:
Now, some of the cases that you've relied upon, because we've looked at them carefully and you need to look at them again perhaps, come out of the criminal context, which is an exception to some degree to that rule, and that is, if a person is convicted in a state court, there is a federal habeas process review which does after the prisoner has fully exhausted, so you can't just hop from a state court conviction into federal court on habeas, you have to go through the entire appellate route within the state system plus their habeas route, and then you can come over to the federal courts, and the law -- and this comes down from the Supreme Court; it's not just made here in Virginia in terms of in terms of getting habeas corpus review in the federal system of state court criminal matters is extremely restricted.
All this was beautiful, except that none of the cases that the Plaintiff had cited in support of his approach involved a criminal case. See Sparks v. Duval County Ranch Co., 604 F.2d 976 (5th Cir. 1979); affâ€™d by a unanimous Supreme Court in Dennis v. Sparks, 449 U.S. 24 (1980); Kimes v. Stone, 84 F.3d 1121 (9th Cir. 1996); and Nesses v. Shepard, 68 F.3d 1003 (7th Cir. 1995). The Judge's assertion that "we" have reviewed the cases "carefully" is no more than another example of bad faith. The cases cited by the Plaintiff clearly demonstrated that a judge can be sued, as 42 U.S.C. Â§ 1983 provides, and that only in cases where a plaintiff requests that the federal court reject a state court judgment should the federal court abstain. That is the gist of the Rooker-Feldman doctrine, as defined by the United States Supreme Court in Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 US 280, 284 (2005). The Rooker-Feldman doctrine operates only in a narrow set of circumstances, namely: â€œcases 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.â€ (emphasis added)
In Davani v. Virginia DOT, 434 F.3d 712 (4th Cir. 2006), the 4th Circuit adopted the Exxon ruling and stated:
Exxon requires us to examine whether the state-court loser who files suit in federal district court seeks redress for an injury caused by the state-court decision itself. If he is not challenging the state-court decision, the Rooker-Feldman doctrine does not apply. See, e.g., Washington v. Wilmore, 407 F.3d 274, 280 (4th Cir. 2005) (holding, post-Exxon, that the Rooker-Feldman doctrine did not apply because "[the plaintiff's] claim of injury rests not on the state court judgment itself, but rather on the alleged violation of his constitutional rights [by the defendant]"). (footnote omitted)
Similarly, here, Plaintiffâ€™s claim of injury rests not on any state court judgment, but on the violation of his constitutional rights. The Plainitff never asked the federal court to reject any judgment but to declare that Judge Swersky violated his civil rights. Faced with a solid complaint, Judge Brinkema had no choice but to distort the facts to protect Judge Swersky and claimed that the caselaw involved criminal cases before dismissing the case.
That was not going to be the end of it though. The Plaintiff filed a motion for reconsideration based on the fact that the court made a "mistake" under Rule 60(b)(1) and drew the Court's attention to the fact that the cited cases were not criminal but civil ones. Plaintiff also attached the cases to the motion to prevent any further "careful" reading by the Judge and whomever she meant by "we." Plaintiff also noticed his motion for hearing.
Judge Brinkema issued an order canceling the hearing and denied the motion for reconsideration. This time, she was compelled to issue a memorandum opinion in which she "clarified" her ruling, discussed the caselaw that Plaintiff had cited and implicitly admitted that the cases did not arise out of the criminal context. So much for a "careful" review of the caselaw.
In her opinion, the Judge stated that Judge Swersky and Haley's motion was granted, by an oral ruling from the bench, based on the doctrine of judicial immunity (in addition to the reasons stated in open court). Besides the fact that judges are immune only from damages liability, and that clerks are not immune from liability when they carry their ministerial duties, nowhere in open court had she mentioned the issue of immunity. She also took the opportunity to "clarify her position" regarding dismissal of the complaint agianst Baum and McTavish. The dismissal, apparently, had been granted based on the Rooker-Feldman doctrine and for failure to state a claim, which had not been mentioned in open court.
The comedy reached its peak when the Judge stated:
Neither Dennis v. Sparks nor Kimes v. Stone support [Plaintiff], however, because the application of the Rooker-Feldman doctrine was not an issue in those cases. In Dennis, the Court concluded that "private parties who corruptly conspire with a judge in connection with such conduct" are acting under color of state law within the meaning of Â§ 1983 and are amenable to being sued under that statute. 449 U.S. at 30. Kimes held that "state immunity does not govern federal Â§ 1983 claims and the common law did not provide immunity to private attorneys conspiring with a judge to deprive someone of their constitutional rights." 84 F.3d 1128. Thus, both Dennis and Kimes found that private attorneys are not immune from suit under Â§ 1983.
Any layperson, let alone a judge, would conclude from the foregoing that Plaintiff did assert a claim against Baum and McTavish. However, this would have led to discovery and implication of a judge in a scandal. So Judge Brinkema concluded that:
These holdings are inapplicable to [Plaintiff's] cause of action because Baum and McTavish did not assert that they were immune from suit, nor did Akl bring suit against these defendants under Â§ 1983.
This was bad faith at its peak. And what about the criminal cases that the Judge had stated in open court that "they" reviewed "carefully?" Judge Brinkema gave more due process to Zacarias Moussaoui, a confessed co-conspirator in the 9/11 attacks, than to Plaintiff. She even complained that the Government uttered a "bald-faced lie" during Moussaoui's trial, yet she did not hesitate to lie herself when a Judge who should be locked behind bars was on trial.
Recently, a case strikingly similar and exactly on point emanated from the Third Circuit, further validating the Physician's approach. See Great Western Mining & Mineral Co. v. Rothschild, 615 F.3d 159 (3rd Cir. 2010).
Judge Swersky's Motion to Dismiss, Opposition and Supplement to Opposition
Baum's and McTavish's Motion to Dismiss, Opposition and Reply
Motion for Reconsideration, Opposition by Swersky, Opposition by Baum and McTavish, Reply
Order and Opinion