we now turn to michael anthony dean versus  julian a young ours are relying on their briefs i assume ok counsel you may begin and here are may please the court your honor the underlying complaint was filed filed two different states proceedings were in progress one matrimonial case in which divorce eckel distribution and custody were being litigated the other in family court in which family court proceedings under article eighty of new york state family court act were being litigated the family court proceedings had absolutely nothing to do with custody or visitation they have my wife's allegations against me claiming that i committed various family offenses but that doesn't have to do with custody and visitation no you are the fallout from that wouldn't have an impact on custody i submit it's not supposed to in fact the issue of custody was raised in a prior quarter prince and judge greer refused to grant a temporary order of custody because the complaint i filed for divorce was filed prior to the family court proceedings so therefore that the issue of custody was already in supreme court in new york state supreme court subsequently judge rice in a january th or  proceedings and that is just a snapshot in time and my suspicions and what was going on were accurate and subsequent proceedings in family court prove me to be correct  number one in order for the family that domestic relations exception to apply i submit that there must be a domestic relationship between the parties there's only one defendant that has a domestic relationship with either me or my children issue of custody visitation et cetera was not at issue in family court the family the federal complaint arises exclusively from the conduct within the family yes your honor but her actions were taken after she refused herself she disqualified herself presumably pursuant to compelling state law which requires her to to do so when there is a personal  new judge came in why isn't that within her conduct as a judge which gives her immunity because it happened after she refused their cellphone she she can't refuse herself saying that i'm prejudiced unbiased or at least  you know pursuant to statutory law and then i'm going to extend the the no contact order protection and do that what makes that outside of the scope of her job as a judge i mean you may not like it maybe even she made a mistake but the fact is the judges stay things that's what judges do and they generally get immunity for doing that understood your honor but not after they recuse themselves or decide on a magic spell she just loses the impression however there is a state law compelling state law that says that once she recused self or disqualifies herself she loses all jurisdiction that's clear and that's in my brief the your view is that of a judge acts without jurisdiction and they lose immunity even if it's a good thing a mistake that's after after they refuse themselves your honor because there's no question with respect to jurisdiction they can only transfer the case and by extending the order of protection she went well beyond that that administrative requirement just transfer in the case ok let's hear thank you your honor nate please my name is and i represent gordon oliver i'll be addressing the judicial immunity issue and barbara goldberg counsel for defendant dr phil which will address the domestic relations abstention issue the district court here correctly dismissed plaintiff's complaint against judge gordon oliver because as both of your honor suggested it is barred by absolute huge issue in unity and frivolous  s clearly outside of all jurisdiction not just not within the jurisdiction but but clearly outside of all jurisdiction in the absence of all just fiction and that increases an easy one here and the reason for that is  the initial piece of this is this something in her judicial capacity well absolutely issuing an order a routine housekeeping order to effectuate her recuse all and simply stay the status quo order of protection that was already in place before her recusal and clearly that's a judicial act there's no question about that and clearly it's something that's not clearly in the absence of all jurisdiction because the question of how  determine what's in the clear absence of all jurisdiction goes to whether you're doing something that's within the subject matter that your court deals with judge morgan oliver is a family court judge she was simply issuing a two sentence order saying i'm refusing myself and my existing order regarding protection something that my court always does is going to remain in place until a new judge why she refused herself the record does let me just step back and make clear exactly what the situation is here in case there's any ambiguity the only order that work talking about here is literally a two sentence e mail that was sent at the time that judge gordon oliver was sued saying i'm refusing myself this case is going to be transferred to a new judge the existing order protections to remain in place until the new judge can set a hearing on this shortly in the future that's all that we're talking about that was a totally routine judicial act it's clearly within her immunity and that is all that's necessary to decide this case  another thing i'll just mention going back to the question of what is within what is clearly in the absence of all jurisdiction well the judge also has to know the case law sets have to know she's acting in the clear absence of all jurisdiction in order to lose her immunity there's no allegation even in this case that judge gordon oliver knew she was acting in the clear absence of all jurisdiction and so she couldn't be stripped for short of her immunity for that reason either  the only way you're stripped of your immunity because you're acting in a clear absence while jurisdiction again is there's no subject matter jurisdiction in your court and as i believe judge sullivan you alluded to it doesn't matter whether the judge is accused of acting maliciously cases where the issues are matrimonial or on the verge of being matrimonial and one way that that has been expressed is where the controversy begins and ends with a domestic dispute and i think that that is clearly the case here because all of these proceedings began after mr deane allegedly made a discovery about his wife alleged sexuality that led them to consult dr phil which in september and october two thousand and seventeen after that mr dean commenced an action for divorce and in connection with that divorce proceeding he sought joint custody of the couple's two children again i think that's clearly within the the domestic abstentions domestic relations a conceivable stretch of the imagination even when mr young angeline a young caseworker consults him for his impressions that doesn't suddenly turn him into a state actor he's a private psychologist a private marital counsellor and that is the context in which he was consulted by the parties and if mr dean doesn't like his his diagnosis that doesn't suddenly make him a state actor and turn this into a section nine hundred and eighty three conspiracy and i would think that if we go even even further we could even look at whether the allegations against now to fill in which are plausible and i submit that they are the are not possible and they could probably have been subject to dismissal under rules wealthy six as well but we don't get to the merits we don't get to the we don't get to the merits i think i think all  court needs to do really is and here to do its part decision in american airlines against block which talks about the domestic relations extension doctrine you keep referring to ascension doctrine and that's what american airlines is is not a diversity case and i know that mr dean has cited the case of williams against lambert and he was critical of the district court for not mentioning williams in its decision but williams is completely distinguishable from this case because williams involves the constitutionality of a state statute which treated children born out of wedlock differently from children born in wedlock for purposes of support agreement so even though superficially that case might have had something to do with domestic relations what was really at issue was because the traditionally of the state statute and i think it it clearly has nothing to do what's involved here and i think that that is the reason why the district court correctly did not cite it and unless the court has other questions all the arguments in the brief well there are other courts outside of this circuit that have also declined to i guess follow us on american airlines in terms of in the tension doctrine they seem to be following the supreme court and can branch which talks about an exception to diversity but they don't go so far as  number of cases in this circuit which american airlines predate and can grant rights so does and can branch call into question the validity of american airlines that's my question i absolute judicial committee when i originally named her your honor it was not in her individual capacity i was only trying to get her to provide me with a post deprivation hearing i submit that all of the allegations in family court were based on fabricated allegations that originated with my wife as well as dr phil which it's not a matter of me not liking the diagnosis it's that the diagnosis was fabricated he knew is fabricated with respect is that we're just suggesting under compelling state law your honor no there has to be a specific bias or reason why she cannot be neutral so the fact that she recused herself would lead to that but if i may your honor as and i think that's really what's at the heart of all of this i was trying to get discovery to do this nobody was doing their job not miss miller not miss cartan not the judge nobody and i was if the nd the partment has a custom and practice of the th all discovery regarding orders of protection and i submit a custom of practice of the nine both pre and post deprivation hearings what  else to do judge appeal the rulings i guess what it is i'm appealing to the apartment that that put in place that ruling through the state courts but you know i tried that your honor i tried that and different case