both students of the university of georgia school of law at a geisha clinic also in the courtroom today the appellant mr solomon stratton his mother and one of his siblings this court has asked us to brief and argue the question of whether the district court erroneous le dismissed to this case pursuant to the record feldman dr and it also invited us to brief any other issues that we deemed meritorious by prior arrangement with this court mr lucas bradley one of the students will be presenting the argument on behalf of the am because i will remain judge king and may please the court my name is luke bradley and i am amicus counsel in support of solomon stratton in two thousand and five the united states supreme court made clear the limitations of the record feldman doctrine it said that the doctrine applied in one specific scenario when a state court loser attempts to overturn an adverse state court judgment in a lower federal court it made clear that that was the only situation in that exxon mobile opinion this court said that it would construe ricker feldman narrowly and that it would not use it as a bar for claims that were quote inextricably intertwined now this court has not yet had the opportunity to address rick or feldman in the context of a section one thousand nine hundred eighty three case in which a family alleges that the procedures used by the department of social services and the removal of their children violated the due process clause of the united states constitution and that involved new york on a court i'm sorry your honor that involved north carolina court proceeding yes your honor the proceedings in the lower courts and the yes your honor and but other circuits have had the opportunity to address such cases and the second the third and the six circuits have all said that the rocker feldman doctrine does not bar a challenge enjoying the orders of this day to get damages from other judges who try to get damages from the should everybody here yes your honor the proper parties for damages would be more accurately answered on remand but honor in the complaint stratton alleges that the children were not neglected or dependent and that the agents pursued them and that was an erroneous pursuit of those children and they say that the condition of the mecklenburg home and you can go behind a of the supreme court denied certiorari on the merits your did you go to the spring or united states it did not go to the supreme court of the united states or you stopped it right there then you moved over to the federal court yes your honor but other circuits have noted that a federal court can issue a ruling that would seem to be in conflict with the findings that were found in the state court and that that does not violate record fell upon the six and tenth circuits have said that t judgments that while they may appear inconsistent are not the situation that record feldman contemplates what rooker feldman contemplates is either a direct attack on the state court judgment itself as in saying void the state court  orders or it contemplates is this court noted in wilner versus frey a situation in which the relief saw would have the soul of fact of destroying the operation of the state courts judgment now in wilner versus for a the pla was in virginia a state court and the virginia state court said that the adverse possession statute of that state deprived him of land and transferred it to another but he then sued the clerk of court and said attempted to and enjoin the clerk of court from transferring that land and this court correctly said that rocker feldman barred that suit because the sole operation of that suit would be to keep the state court judgement from going into effect but here solomon stratton is requesting damages and is attacking the procedures that went into his removal from his parents not soley attempting to keep the state court rulings from occurring or not soley attempting to overrule those state court judgments the plaintiff there's only one plaintiff and that is a one of the children yes your honor the case originally started with both the child and the father jack stratton but jack stratton passed away in november two thousand and one was a plate up here a party to the state court proceeding yes your honor under north carolina law section seven b dash six zero one a minor is a party to child removal proceedings and the court has the supreme court in santa vs kramer also noted that children and parents both have a heavy interest in the main the maintenance of the family relationship in that the default assumption from the court should be that the parent in the child are essential in the same boat and so there is strong evidence that solomon stratton retains the causes of action that originally were filed by both him and his father now this court has recognized feldman's limited scope in other cases for example and divinely versus virginia department of transportation a state worker in virginia sued because he claimed that his employment was erroneous and violated both state and federal employment law in the state courts heard his claim and found that it had no merit and dismissed it he refiled suit in a lower federal court saying that the dismiss violated federal employment law and this court said that that was fine that what he was attacking was the procedure that went into his dismissal and the propriety of that dismissal not the state court order itself likewise here solomon stratton is attacking he elements of the procedures that went into his removal for example the stratton family headed out attacking his court judgments no euro for example proper process before they were entered yes your honor but attacking the process that occurred before the state court judgment was rendered is not the same as attacking the state court judge and it's distinguish on courts have used that language your honor but in divinely this court explicitly said that it was no longer a separate bar and that the only test that remained was the test articulated and exxon mobil versus say more importantly as t your procedural question judge king the stratton's were not a party to the suit until at the earliest january thirtieth two thousand and one when they were given notice by the juvenile court that they should appear for the initial seven day hearing under lats versus dennis a party or a litigant but was not a party to the state court judgment absolutely is not barred by record feldman so any of the claims that arise from action stemming from january thirtieth or before claims that they were not given an opportunity to contest the deprivation before it happened claims that the agents improperly pursued the children claims that the agents misrepresented the state of the stratton home which is also supported in the joint appendix on pages one ninety five and three hundred fifty seven those claims cannot be barred because the stratton's none of them were parties to those proceedings not mean that at the outset when the removal happened and when the initial violations occurred they were barred by record feldmann what was the initial violation the initial violations the violations were the lack of a pre conditions and that officer jeannette siegel a twenty nine year veteran in her affidavit on page one hundred ninety five says that the stratton children and her professional opinion were not neglected or dependent but why did those people come  hearing it's unclear from the record your honor but it certainly supports a cause of action here and the stratton family should have had an opportunity in this non emergency setting to clients and test the facts of it but if what was observed is true do you think those circumstances warranted that not necessarily your honor and children that little stagnant water  isheveled you don't think that murder situation evidence in a child in need of serves children in need of service i think it's telling here your honor that on the day that katherine darmody and gretchen caldwell went and examine the stratton family they did not take the stratton children and then the stratton children were ultimately removed on january thirtieth forty days later so if this is been a true emergency situation it seems unlikely that the stratton children would have been allowed to you now they punished because they didn't take strong is on the no your honor it simply goes to the idea that the stratton family should have had an opportunity to contest this and it's important to note that at this early stage the merit of the contest station whether it would have presented a legitimate chance for the stratton's to alter their fate that's a matter for discovery and those are questions that would be well served by discovery here but it certainly states the substantial federal cause of action under other circuits preston and under the implied preston of this court and jordan by jordan which said that unless an emergency is pressing there is an incredibly important constitutional interest in a family allowing itself to remain together and a family being able to present its best case so certainly the fact that the department of social services didn't use its strongest arm possible does not irrevocably destroy their case but the facts is taken here coupled with the affidavits of catherine or of jeanette siegel and of the neighbors indicate that the stratton children counsel could have presented evidence your honor and the record is unclear on what evidence was presented but just because a court could have ruled on that issue does not mean its record feldmann precluded because it is not an attack on the actual judgment in the actual terms of attacking what the court did what the court actually implemented that is not an attack on what the court implemented it's an attack on how the parties involved went about securing that court order and that is the key difference what the court did or did not consider isn't the relevant issue for rick or feldman the relevant issue is the difference between what the court did and how the parties involved when about securing that you say you're not  court precedent in texas versus le sage and kerry versus peiffer this clearly indicates that even if the results of the proceeding would be the same a plaintiff has the right for the proceeding to be fair and for it to be played by the correct the stratton's absolutely do not have the right to go to the federal court and say give us our children back that is foreclosed to them by record felt but if they say the procedures used here were incorrect and we deserve damages because our constitutional rights were violated that is a separate claim it does not directly attack the outcome of the state court proceeding and that is not barred under record feldman thank you say some time  with two points that i think the discussion with appellants counsel amec is counsel has made clear the claim that mr stretton or the stratton's the plaintiffs make is a claim that attacks the result o attacks the state court orders there are several orders the first order being the order of interference directed towards jones stratton but number one it is an attack on the state court orders in number  two and that was concluded by the magistrate judge in the opinion the report that was adopted by the district court judge the end at pages seven and eight there appendix three seven three sixty seven and on pages seventy eight of the report recommendation that in fact the objection was as it was throughout in many regards that judge mcdonald and the district court judge had become a part of the conspiracy that in fact the judge macdonald's decision his recommendation should be void as a part of the fraud but there was no objection to his conclusion is the core of his conclusion that the claim is an attack on the state court orders the second spears he started when and like in the eighteenth century that is a part  that goes your honor to our substantiality defense which we also think is a separate reason that the court could use for finding that there is no jurisdiction here yes that is exactly right there is a claim that there is a conspiracy  conspiracy a conspiracy that involves the ross shelves and the rockefeller's and on and on federal reserve is supposed to take care of the north a lot of part of the federal reserve is a part of it and in fact the every judge who touched this matter in fact some judges in courts who there's no claim they actually touched the matter have been joined to this vast conspiracy but the second point i'd like to make pendants are here already or so not counting them believe it is in excess of twenty i district court judges in north carolina superior court judges in north carolina court of appeals judges and former judges and off carolina and then various nonprofit organization judge the main ended up  killebrew miller who were the authors of the other orders and so it's clear as you want to point out not only from who was sued but from the allegations in the complaint to the extent they say they have any essence at all they are about as judge as the match a judge concluded they were about the state court orders the second point i'd make is that there were two one primary proceedings in the state court and off carolina in district court and off carolina the first resulted in that initial order by magistrate judge thayer within state district court judge here the stratford children were parties to those the stratford parents participated in those and in fact mr strafford so there was the will proceeding to determine abuse or neglect in the second proceeding to terminate the parents mr stretton jack stratton filed an appeal to the north carolina court of appeals from that first action north carolina court of appeals i believe it was judge  r believe it also a defendant judge moore to gear concluded that that appeal was moot because subsequently the court had terminated parental rights all bundled up in this state court orders state court decisions that were being attacked and the were parties it's an error actually to say and if you look at the record and i actually have a record site but if you look at the record of the petition the knish will petition here was the petition to prevent or prohibit an appearance by john stretton in an  investigation but the caption the parties and the court can take judicial look back judicial notice of the fact that the parties with threatened children and in fact in that same proceeding as they had a right to do mr stretton and his wife participated in those proceedings there was no separate the record it's clear from the documents that are attached to mr stratton's filings in the federal district court the record is clear that there was no separate proceeding when was the court apprised of the circumstances or of the children when they were in the new home the new it seems like everything is based on observation of me where they were first and we know they subsequently moved see nothing to indicate it was made aware of it became the subject of evidence as to what the conditions were where they moved to what from the documents that are in the the district court record here i don't know that timing is clear what is clear is that as i believe judge gregory you pointed out in response to questions or during questions earlier that the stratton's had the opportunity to offer whatever evidence in fact the evidence the testimony and the affidavit of the gaston county police woman who is in the record that was all presented during the state court proceedings there was nothing to present all of the information relevant to those first the abuse or neglect proceedings and second the terminations of parental right proceedings from coming out the stretch all of this threatens participated in those proceedings that was the place to do it and what is now being attacked is the determination that was made in those orders  actually may be able to address with a little bit more specificity what happened in those proceedings but i think that is at least the answer that i would give is that there were due proceedings had in those proceedings the stratton's had an opportunity to to raise all of this evidence and what they attack now as a part of this enterprise and you know i could argue a little bit on that for substantial substantiality purposes as a part of this enterprise that they that mr stretton lost his relationship with his children so whether it was done or not i think for the most part it is on the record that there was evidence offered because we know about the evidence from the policewoman and gaston county but they certainly had the opportunity in a full blown state court proceeding that went on for multiple years to hear all of that the second point i'd make and this is since we're a little bit off of what's clear in the the record the initial investigation the new issue of visit was to the home in mecklenburg county what appears from the record to have happened then is the str moved to avoid being at that home now that's not we don't know that for sure and i haven't i don't have the material that's not in the record from the district court but those determinations were made that you describe based on the home that the stratton's were living in at the time and then they moved from mecklenburg county to gaston county so i hope that's an answer to the question on the substantiality point in the few minutes that i have left have a separate ground for twelve b one subject matter jurisdiction challenge i mean this is really it falls well in line with the other cases where courts of have found that claims were either and there are two steps to it either so frivolous on their face  or the courts use the word bizarre that they fail to establish federal court jurisdiction and here if the court reviews the the record the reviews the amended complaint which is in the record all of this tied to the conspiracy in fact even the claims about what the county did and in fact later the claims about what the disk the federal jurist federal judiciary has done get tied to this conspiracy that is designed to break up the family in general to combat religion in the various other things that are alleged in this conspiracy it's all a part of the whole the amethyst council has for purposes of the peel tr d to to strip out pieces here and there of a complaint to make a claim but to the extent this complaint does anything it is again it goes back to it's barbaric repelled men because attack on the district court orders but it's also just it's very essence is like the other cases in which this court and other courts have said these types of allegations simply fail to state a claim that is substantial enough to survive in federal court the first part of the substantial the second part of the substantiality test is the fact that to the extent to the extent there can be divined in these claims some kind of of claim that would that is is not patently frivolous it's not a substantial claim so if you look at the amended complaint for example one of the complaint one of the argument is that the county somehow uses different documents then then the state of north carolina uses for these filings honor not judge gregory not under the circumstances i think when you read this complaint as a whole you can pick certain specific things that are said this again goes back reportedly hundreds of years it is a part of this overriding conspiracy and number two to the extent there were claims about the the process that went into the district court orders those if they are an attack ultimately what the stratton's are asking ultimately what amec is asking is phrased as an attack on the district court orders the district the the state orders the state courts were wrong to separate the family from the children that is the essence of the order everything that was done was done pursuant to those orders so i think number one in you're probably right i probably did wind on on that issue but when you read this and then complain as a whole both for purposes of substantiality and purposes frankly of twelve b six what you're left out that no we're not one place in the briefs of the advocates is there a claim that any of the is there an argument that any of the other defendants and as judge king pointed out earlier there are a bast number of other defendants ranging from state court judges to various non profits who have been hauled into this litigation and had to defend it including my direct client the counsel for children's rights and there's not one allegation in the initial brief the original brief or the reply brief about conduct by those defendants so initially first of all for twelve b six purposes there is simply not a claim nor is there argued to be a claim against any of the defendants other eloquently stated his position so i apologize to him doing a bad job of what he said but as i understand i want you to address this you seem to be saying hypothetically but seem to be saying is this i want you on to it that is not barring principle if you lose in the state court in order but someone at that hearing all that proceeding perjured themselves and you knew it was perjury to time a didn't object to it they perjured themselves and they were state actors in the one nine hundred three you could come here because you're not attacking what the ultimate order was the result you're attacking that it was perjury even though you didn't object to and you knew it was printed in time you respond to that yes i believe counsel did did cite to some cases from other circuits but dressing that issue and at least indicating that a fraud perjury in the proceeding might affect the record feldman analysis but not the substantiality analysis and the other analyses this court i don't believe has held that that's certainly not what has not held that has not addressed that specific issue it does not follow from the vani and in fact the policy we believe is in the policy that still underlies rockefeller and even after the exxon mobile case is that matters that were resolved leading to the order in the district court it is still an attack on the order of the district court in so yes i believe there is a party from at least one other circuit but from other circuits that appears to touch on that point there is no authority that we are aware of from this court and we believe that the policy underlying the reasons for feldman is betrayed by allowing the court to second guess and delve into the proceedings in the the state court and in fact what you've outlined judge gregory and what i believe advocates is outline is in fact something that is reported to have happened in the proceeding itself where there was every opportunity to address it and every opportunity to address it as a collateral matter in state court rather than invite the federal court to intervene and big clear as he has asked void ab initio corrupt the state court order thank you that's what occurred is when when in january two thousand and one when the when the department social services filed a petition to go in actually to say that the children would neglected and requesting that state court to that affidavit is basically to inform the state court as to whether or not there are any other judicial proceedings regarding custody of the children that are at issue it could be it could be a divorce proceeding could be a custody proceeding from another state and the purpose of that affidavit when you read it in its entirety it is on the other custody proceeding spending in that affidavit ms caldwell stated that the that exact question i believe is where the state where the children have lived for the last five years and she stated that they lived with jack and kathy stratton at that address on eastway drive in charlotte north carolina from one thousand nine hundred to the present and it is that the fact that she said nine hundred ninety to the pres that they can see in is a false affidavit because at the time in january two thousand and one the children were in the family was actually in gaston county across the border so they say that's a false affidavit but you got to read that affidavit also in the context with the petition chris a petition was filed the same day and the petition was signed by ms miss gretchen caldwell also and that petition was verified she she verified that petition and in that petition she stated the documents actually document twenty six dash eight in the lower court record but in that petition she states the names of all the children she states the address for the family and addresses horseshoe dr mount holly north carolina and mount holly is not in mecklenburg county it's in gastric county a district court judge in mecklenburg county would know that is no part of mount holly and gaston county where those two points close to one another oh yeah man how exactly right across the river right across the river that had a lot of rivers county lines on one side of the river children might be receiving and the environment in which they might be living so my point is when you read the affidavit where she says that they lived in a nice way drive from one thousand nine hundred to the present and you read that in conjunction with the petition that she s what happens is you file open and in this case i filed a petition asked for custody judge evidence in order to non secure custody order that the criteria exist for for cast for place children foster care judicial orders or go places but go go find these children and place them in foster care that's an order from the court to the department of social services and windsor and then they have to post deprivation here is the jurisdiction of the jurisdiction geographically children who are in mecklenburg county ok and that those children were not in mecklenburg at the time the court assumed jurisdiction over those children they were in mecklenburg county because the quarter sume jurisdiction of the children when judge k are entered in order in december two thousand two thousand he entered the order and his order is that they did that the court mecklenburg county court was assuming had jurisdiction over these children not only did judge k or so order say mecklenburg because they were in mecklenburg county when that award was entered in december two thousand and one was over his order was december twenty second to do what he or his order was for d s s to find the children and order says it is that why if as has filed the affidavit the child is physically present in the state and the child in the state is a home state of the child at the time of the commitment of the proceedings this is the order that was injured by judge evans on february second two thousand and one this is an order that judge evans in or did a hearing when the parents are present and they are represented by coun apparently they were told this is not the time for you to speak of that they had counsel representing them they they're there they are present they had ample opportunity to contest these think north carolina most states would be full and overrun by children being taken by the state so poverty alone can't do it but this family let's move to another place because i think it's important to find out and to let the court know what i'm concerned for parents to take your children away that's the worst thing you could do for parity terms of prior relationship why wouldn't why wouldn't social services say you first of all he went to another county where they were living and then say well we entered in june two thousand and three thirty sixty five about a seventy two years later they had the children for two years to dress this the family was this is about the gaston county residents family was located in one bedroom cottage stratton the mother knowledge that this home was not an appropriate environment for the children this is in the terminations case again the mother acknowledged a social worker this home did have electricity and was too small for the family like the previous home this cottage was sparsely furnished the home did not contain any educational materials to home style the church home schooled children similar to the previous home and in charlotte this home contained very little food parents didn't know the identity of who owned this home they didn't have any written lease for this home the utilities were not in their name this was just they were fleeing mecklenburg county they were fleeing from the department of social services they were fleeing from the court judge k or headed had assumed jurisdiction over these children and it was the department mecklenburg county department of social services job to locate these children and judge they located them they informed evans that they were located across the county line and judge evans internet order that said go pick up these children in gaston county now they are attacking that judge's order they not only are they attacking the judge order they are attacking the judge herself in this federal court proceeding and they are saying well you and these issues were raised in the terminations or parental rights hearing they filed a motion to dismiss for lack of jurisdiction it's in the record document number counsel why do you think it was important to know that the children were about race that is the plaintiff's allegations in the amendment there's nothing i don't believe there's anything in the petitions that these children are biracial of the that the race of these children has nothing to do with the fact that they were living in a home that had holes in the wall in the ceiling stagnant water in the kitchen no beds no schooling burke county for ten years and did not go to school these children had serious developmental delays had speech impediments they were difficult to understand when they were placed in foster care and they had to but some of them had developmental delays one um appeared to be blind but he wasn't i don't believe and these children in this family not only did they refuse services offered by the social services but they fled they were trying to hide from the department of social services the mr stratton would refute had ample opportunity to cooperate to regain custody of his children and he never did he refused to to to to bay any of the court orders his the record is clear and instead every judge who touches this case gets brought into a civil conspiracy concerning pedophiles and homosexuality and sexual abuse of children and if i'm not a little bit indignant i am because he alleged in the complaint against me personally he didn't say anything put that stuff in a federal complaint and then come up to this court asking for relief there's no all they want to do as set forth in this complaint stay that state court judgments  nconstitutional coercion to get a complaint out of a mentally incompetent criminal defendant and that testimony that confession was read into the record at trial and as the court noted was a key element of the conviction then the defendant there sued on the basis that the coersion itself was unconstitutional this court said that was fine and that was not barred by record feldman because even if it would serve to grossly undermine the proceedings in the criminal trial itself it was a separate cause of action and that goes to what amicus counsel has argued all along that explicit challenges are barred and amicus counsel has always conceded that but claims that something could have been litigated or should have been litigated below are dealt with by preclusion not by ricker feldman and the defendants repeatedly on argue that this is something that mr stratton should have a the state court but in devonshire versus virginia department of transportation mr divine a had a chance to allege that his terminations was improper in the state court in washington versus wilmore the defendant had the opportunity to allege a trial that his confession hadn't been proper but that didn't matter at least under rooker felt now in divinely this court said that record feldman had been misapplied and it remanded for a hearing on whether preclusion was appropriate and that might be appropriate today and if this court is concerned about preclusion then that is the route that it should take in that it has taken but fundamentally mr stratton does not simply attack state court judgments now judge gregory you noted that having a child taken away for a parent is essential in capital punishment it's one of the worst outcomes imaginable and this hearing today is not a trial and while the defendants have been involved in this litigation for quite some time the fact that they are indignant that the litigation proceeds does not give this court or the defendants the authority to dismiss this case improperly under the rocker feldman doctrine or under the twelve b one or twelve b six bars here mr stratton alleges core constitutional claims he says that he and his family were separated without any opportunity to explain their living conditions he says that their conditions were better than were represented by the agents of mecklenburg county d s s he says that they were not given any opportunity throughout the proceedings to know that they could discharge their counsel or have their own counsel he alleges specific procedural issues now as said this is not a trial and this is not a situation in which this court must find the facts even though the record from the siegel affidavit and the neighbor affidavit does support that the stratton's have a substantial claim and it's easy to do today what the defendants have done in their brief and say parts of this complaint can't possibly be right there can't possibly be a conspiracy that goes back to the eighteenth century and amicus counsel concedes that that conspiracy is not real but what is real and what mr stratton can speak to is what the stratton family saw with their own eyes the procedures that they saw and while amicus counsel does not speak for the stratton's this case is about every child that comes before this court comes before the circuit and may never get the chance to litigate genuine constitutional issues because of the district court's misapplication of the record feldman doctrine it's also bad federalism all and this court federal district courts this simply aren't appellate court or state or city we can get that kind of stuff prohibits mr stratton from coming before this court and saying the court below was wrong put me back with my family but just as section one thousand nine hundred eighty three gives federal cause of action for constitutional violations and other contacts it gives a cause of action for the procedures that violate the rights of families rooker feldman should not keep those claims out of court in this court should not say that here today thank you thank you young men in this case thank you very much