PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SUAREZ CORPORATION INDUSTRIES;

EMERSON SONNY CLOPPER; PATRICIA

CLOPPER; ELIZABETH PISHNER,

Plaintiffs-Appellees,

v.

No. 95-3093

DARRELL V. MCGRAW, JR., Attorney

General of the State of West

Virginia, in his official capacity;

THOMAS RODD, individually,

Defendants-Appellants.

Appeal from the United States District Court

for the Southern District of West Virginia, at Charleston.

Charles H. Haden II, Chief District Judge.

(CA-95-248-2)

Argued: September 24, 1996

Decided: September 11, 1997

Before ERVIN, HAMILTON, and LUTTIG, Circuit Judges.

_________________________________________________________________

Affirmed in part, reversed in part, and vacated and remanded in part

by published opinion. Judge Ervin wrote the opinion, in which Judge

Hamilton and Judge Luttig joined.

_________________________________________________________________

COUNSEL

ARGUED: Rebecca Ann Baitty, REBECCA A. BAITTY, P.A., Sarasota, Florida, for Appellants. John Christian Yoder, Harpers Ferry,
West Virginia, for Appellees. ON BRIEF: Rudolph A. DiTrapano,

DITRAPANO & JACKSON, Charleston, West Virginia, for Appellant McGraw; Robert Cohen, COHEN, ABATE & COHEN, L.C.,

Fairmont, West Virginia, for Appellant Rodd. J. Thomas Burch, Jr.,

William T. Bennett, BURCH & ASSOCIATES, P.C., Washington,

D.C., for Appellees.

_________________________________________________________________

OPINION

ERVIN, Circuit Judge:

Defendants-Appellants Darrell V. McGraw, Jr. and Thomas Rodd

appeal from an order denying their motions to dismiss under Fed. R.

Civ. P. 12(b) on the particular ground that the order denied them the

defense of absolute immunity to claims arising in part under 42

U.S.C. § 1983. They also inject into this appeal issues of qualified

immunity and sovereign immunity. The appeal raises a number of

jurisdictional difficulties. We ultimately determine that portions of the

complaint against McGraw and Rodd must be dismissed for lack of

jurisdiction. We also conclude that we possess appellate jurisdiction

to hear the appeal to the extent it raises both absolute and sovereign

immunity. We will not consider the qualified immunity defense in

this posture. On the merits of the appeal, we reverse the district court

on one count and affirm on the remainder of those counts over which

federal court jurisdiction may be properly invoked.

I.

Plaintiff-Appellee Suarez Corporation Industries (SCI) is an Ohio

corporation that markets its goods through direct-mail sweepstakes

promotions and other contests. Plaintiffs-Appellees Emerson Clopper,

Patricia Clopper, and Elizabeth Pishner are West Virginia residents

who have purchased goods from SCI or participated in its promotions.

Plaintiffs-Appellees are collectively referred to as SCI. McGraw is the

Attorney General of West Virginia and Rodd is a Senior Assistant

Attorney General.

In January 1994, McGraw filed a civil action against four direct

marketing companies, alleging violations of the state's Consumer

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Credit and Protection Act, W. Va. Code 46A-6-104 (1974). Rodd represented the State in the action. In August 1994, McGraw moved to

join 102 additional defendants, including SCI, and applied for a preliminary injunction against all of the defendants in a single hearing.

The state trial judge granted the motion to join but directed the State

to proceed against only several of the defendants at the next hearing.

On September 2, 1994, SCI published a two-page ad in a local

newspaper criticizing Attorney General McGraw for his prosecution

of the lawsuit. That same day the Attorney General's office

announced it would proceed against SCI alone at the next hearing.

Ultimately, several of SCI's marketing schemes were temporarily

enjoined by the state courts. See, e.g., State v. Imperial Mktg., 472

S.E.2d 792 (W. Va.), cert. denied sub nom. Suarez Corp. Indus. v.

West Virginia, 117 S. Ct. 391 (1996).

On April 4, 1995, SCI instituted this action. McGraw and Rodd

responded with a motion to dismiss under Rule 12(b), based in part

on the ground of absolute immunity. While that motion was pending,

SCI filed a First Amended Complaint (hereinafter FAC), and

McGraw and Rodd responded with another motion to dismiss that did

not refer specifically to a claim of absolute immunity but that did

incorporate by reference the earlier motion to dismiss and its supporting memorandum.

The FAC contains nine counts. Counts I, II, III, and VI, the federal

question claims, are brought pursuant to 42 U.S.C.§ 1983. Count I

seeks declaratory and injunctive relief from enforcement of the state

court's preliminary injunction on the grounds of retaliation against

First Amendment rights, while Count II seeks the same relief on the

basis of a denial of equal protection. Count III seeks money damages

from McGraw and Rodd, in their individual capacities, for First

Amendment retaliation outside the scope of their duties. In Count VI,

the individual plaintiffs seek injunctive relief from the state court's

preliminary injunction at least to the extent it impedes their First

Amendment rights to receive communications from SCI. The remaining claims are based on state law, including defamation (Count IV),

intentional interference with contractual relations (Count V), a state

constitutional right to receive communications (Count VII), interference with prospective contractual relations (Count VIII), and a prima

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facie tort claim for damages (Count IX). The principal bases for these

claims are that McGraw and Rodd accelerated enforcement proceedings against SCI after the newspaper ad; that McGraw faxed to all

state attorneys general a warning that SCI's counsel threatened violence upon Rodd; that Rodd threatened the Canton, Ohio, Better Business Bureau (BBB) that the Attorney General would offer it no

assistance in its expansion plan into West Virginia as long as SCI

remained a member, leading ultimately to SCI's expulsion; that

McGraw engaged in a running defamatory newspaper campaign

against SCI, including calling SCI to one reporter a"gambling syndicate" that "prey[s] on the elderly and infirm"; and that McGraw and

Rodd have disseminated derogatory information about other legal

proceedings against SCI to the media and Dun & Bradstreet.

On November 16, 1995, the district court denied McGraw and

Rodd's motions to dismiss in a very brief Memorandum Opinion and

Order, see Suarez Corp. Indus. v. McGraw, No. CA-95-248-2 (S.D.

W. Va. entered Nov. 16, 1995), stating, "After consideration of the

submitted memoranda, the Court concludes it has subject matter jurisdiction and the Plaintiffs' First Amended Complaint states a claim

upon which relief can be granted." See id. at 2. The district court's

only explanation was provided in a footnote:

 Plaintiffs' First Amended Complaint is not a model pleading in several respects. For instance, the Court is unclear

what injury the Plaintiff is alleging it has suffered under 42

U.S.C. § 1983 in Counts One and Two of the First Amended

Complaint. However, a mere defect in the pleading does not

warrant 12(b)(6) dismissal. See Gordon v. Leeke , 574 F.2d

1147, 1151 (4th Cir. 1978) ("pleadings should not be scrutinized with such technical nicety that a meritorious claim

should be defeated, and even if the claim is insufficient in

substance, it may be amended to achieve justice."), cert.

denied, 439 U.S. 970 (1978). The Court will revisit the issue

at the dispositive motion stage if necessary.

Id. at 2 n.3.

The district court subsequently denied a motion to certify its

November 16, 1995, order for interlocutory appeal pursuant to 28

 4
U.S.C. § 1292(b). Its order is thus appealable, if at all, only if it falls

within the collateral order doctrine. We granted a stay of discovery

on January 26, 1996, while we determined the matter.

II.

Before proceeding to the merits of McGraw and Rodd's appeal,

there are a number of jurisdictional issues with which we must contend.

A.

Ordinarily, appellate jurisdiction is lacking to hear an appeal from

an order denying a Rule 12(b)(6) motion to dismiss since such an

order is interlocutory in nature. Certain collateral orders are, however,

considered "final decisions" within the meaning of 28 U.S.C. § 1291

and are therefore immediately appealable. See Cohen v. Beneficial

Indus. Loan Corp., 337 U.S. 541, 546-47 (1949). In Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978), the Supreme Court stated that

the "small class" of appealable collateral orders comprise those that

"conclusively determine the disputed question, resolve an important

issue completely separate from the merits of the action, and [are]

effectively unreviewable on appeal from a final judgment." Id. at 468.

In particular, certain denials of absolute and qualified immunity fall

within this collateral order doctrine. Recently, we held that an order

denying a Rule 12(b)(6) motion to dismiss based on qualified immunity is a final order over which we can exercise appellate jurisdiction.

See Jenkins v. Medford, ___ F.3d #6D 6D6D#, 1997 WL 442679 (4th Cir.

Aug.7, 1997) (en banc). See also Behrens v. Pelletier, 116 S. Ct. 834,

839 (1996). The same principles underlie the determination of

whether the denial of either qualified or absolute immunity is an

immediately appealable collateral order. Compare Nixon v.

Fitzgerald, 457 U.S. 731, 740-43 (1982) (absolute immunity), with

Mitchell v. Forsyth, 472 U.S. 511, 524-30 (1985) (qualified immunity). We accordingly hold now that we possess appellate jurisdiction

to review an order denying a Rule 12(b)(6) motion to dismiss based

on absolute immunity. The scope of our review is plenary, and, in this

posture, we accept as true the facts as alleged in the complaint, view-

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ing them in the light most favorable to the non-moving party. See

Jenkins, ___ F.3d at ___, 1997 WL 442679, at *2.

B.

McGraw and Rodd also wish to place before us a claim of qualified

immunity. They argue that, to the extent their absolute immunity

claim may fail, SCI's claims against them are nevertheless barred by

qualified immunity. If properly before us, our decision in Jenkins

directly establishes our appellate jurisdiction. However, McGraw and

Rodd raise their qualified immunity claim for the first time on this

appeal. They claim they argued this "defense" in their Reply Memorandum in Support of Defendants' Motion to Dismiss, but a perusal

of that memorandum does not substantiate their claim. It is nevertheless clear that the defense was not squarely before the district court,

and, indeed, the notice of appeal to this court only specifically refers

to the defense of absolute immunity. It is well-settled that a defense

may not be first raised on appeal. G. Heileman Brewing Co. v. Stroh

Brewery Co., 843 F.2d 169, 172 (4th Cir. 1988) (citation omitted). In

fact, we have refused to consider sua sponte a defense of qualified

immunity in a § 1983 action when it was not properly preserved

below, Buffington v. Baltimore County, Md., 913 F.2d 113, 120-22

(4th Cir. 1990) (drawing a distinction between raising the issue of

qualified immunity and raising the question of whether a constitutional violation occurred), cert. denied, 499 U.S. 906 (1991), and

other circuits are in agreement, see, e.g., Caban-Wheeler v. Elsea, 71

F.3d 837, 842 (11th Cir. 1996) (finding summarily that district court

committed no error when defense of qualified immunity to § 1983

claim was not raised in the district court); Berryman v. Regiler, 47

F.3d 1167, 1995 WL 31575, at **4 (6th Cir. Jan. 26, 1995) (unpublished disposition) (refusing to consider defense of qualified immunity to § 1983 action not raised below and rejecting argument that

review should be exercised because the issue presents a pure question

of law). We therefore refuse to consider the merits of McGraw and

Rodd's qualified immunity defense at this stage.

C.

McGraw and Rodd also interjected for the first time on appeal

claims of sovereign immunity under the Eleventh Amendment.

 6
Before we may reach the merits of those claims, we must again determine whether we possess appellate jurisdiction to do so.

We have recently held that, on an appeal from a grant of summary

judgment, Eleventh Amendment immunity could be raised for the

first time on that appeal. See In Re Creative Goldsmiths of Washington, D.C., Inc., No. 96-1895, slip op. at 5, ___ F.3d ___, ___ (4th Cir.

July 22, 1997). The question here is whether it should be permitted

on an appeal from the denial of a Rule 12(b)(6) motion. We conclude

that it should be.

The Eleventh Amendment provides that "[t]he Judicial power of

the United States shall not be construed to extend to any suit in law

or equity, commenced or prosecuted against one of the United States

by Citizens of another State, or by Citizens or Subjects of any Foreign

State." U.S. Const. amend. XI. The Eleventh Amendment, therefore,

demands a "withdrawal of jurisdiction" that"effectively confers an

immunity from suit" in federal court. Puerto Rico Aqueduct and

Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993).

Although we had previously noted that this "Eleventh [A]mendment

immunity is a form of absolute immunity," Coakley v. Welch, 877

F.2d 304, 305 (4th Cir.), cert. denied, 493 U.S. 976 (1989), the qualifying proviso that it is "expressed as a limit on the jurisdiction of the

federal courts," id., makes this form of absolute immunity an entirely

different animal than the species McGraw and Rodd raised below and

in their notice of appeal. Eleventh Amendment immunity is properly

classified an "immunity" only to the extent that it operates as a bar

to suit in a federal forum; whenever it is properly invoked by a state

or its agents, however, that bar is absolute. The defenses of absolute

and qualified immunity, conversely, are personal immunities that may

be invoked independent of the forum.

In Coakley, we found we possessed appellate jurisdiction over an

appeal from a denial of a Rule 12(b)(6) motion to dismiss predicated

on Eleventh Amendment immunity, for there there was"no serious

contention that the order denying immunity in this case does not fulfill the Cohen criteria," id., a position later supported by the Supreme

Court in Puerto Rico Aqueduct. Unlike in the instant case, in Coakley

the issue of Eleventh Amendment immunity was squarely before the

district court, and there could be no claim that the"defense" was

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raised for the first time on appeal. The posture was similar in Puerto

Rico Aqueduct. There the Aqueduct and Sewer Authority moved to

dismiss on the ground that it was an "arm of the State," and thus

immune from suit in federal court under the Eleventh Amendment.

Puerto Rico Aqueduct, 506 U.S. at 141. The district court denied the

motion, and the First Circuit determined it lacked appellate jurisdiction over the interlocutory appeal. Id. at 142. The Supreme Court

reversed, holding that the collateral order doctrine applied in these

circumstances with "its ultimate justification[being] the importance

of ensuring that the States' dignitary interests can be fully vindicated." Id. at 146.

In Creative Goldsmiths, however, the defense was raised for the

first time on an appeal from summary judgment. There we concluded

that the defense's jurisdictional characteristics did permit it to be

raised on appeal. See Creative Goldsmiths, slip op. at 5, ___ F.3d at

___. See also Edelman v. Jordan, 415 U.S. 651, 677-78 (1974) (holding that the "Eleventh Amendment defense sufficiently partakes of the

nature of a jurisdictional bar . . . that it need not be raised in the trial

court"); Ford Motor Co. v. Department of Treasury, 323 U.S. 459,

467 (1945) ("The Eleventh Amendment declares a policy and sets

forth an explicit limitation on federal judicial power of such compelling force that this Court will consider the issue .. . even though

urged for the first time in this Court."). We believe that, because of

its jurisdictional nature, a court ought to consider the issue of Eleventh Amendment immunity at any time, even sua sponte. We therefore conclude that, although McGraw and Rodd did not properly

present their Eleventh Amendment claim to the district court in their

motion to dismiss, we nevertheless possess appellate jurisdiction to

determine the matter.

D.

Although not raised by the parties, we see additional jurisdictional

hurdles. Counts I, II, VI, and VII of the FAC seek, in part, injunctive

relief from the enforcement of the state court preliminary injunction.

That injunction was originally set to expire 180 days after the entry

of the mandate by the West Virginia Supreme Court of Appeals on

March 20, 1996. See Imperial Mktg., 472 S.E.2d at 810. The parties,

however, agreed that the preliminary injunction would continue for

 8
180 days after the United States Supreme Court denied certiorari on

November 4, 1996. See Suarez Corp. Indus. v. West Virginia, 117

S. Ct. 391 (1996). While this appeal has been pending, those 180 days

have passed. Indeed, just prior to the expiration of the preliminary

injunction, the state circuit court modified it into a permanent injunction. See State v. Imperial Mktg., No. 94-C-243, slip op. at 14 (Kanawha County, W. Va., Cir. Ct. entered Apr. 25, 1997).

A federal court may adjudicate a claim only if "an actual controversy [is] extant at all stages of review, not merely at the time the

complaint is filed." Arizonans for Official English v. Arizona, 137

L.Ed.2d 170, 193 (1997) (internal quotation marks and citations omitted). Federal courts should determine whether a live case or controversy continues to exist at the outset since mootness goes to the heart

of the Article III jurisdiction of the courts. See id. To the extent

Counts I, II, VI, and VII seek relief from the preliminary injunction,

they are now moot. We accordingly lack jurisdiction to hear SCI's

appeal on those counts. Rather than merely dismiss the appeal as to

that aspect of those counts, we instead vacate the order below and

remand with instructions to dismiss the FAC to that extent. See id. at

196 (stating that "[w]hen a civil case becomes moot pending appellate

adjudication, the established practice . . . is to .. . vacate the judgment

below and remand with a direction to dismiss""when mootness

occurs through happenstance" (internal quotation marks and citations

omitted)).

Counts I, II, and VI, each a federal constitutional claim predicated

on 42 U.S.C. § 1983, and Count VII, a state constitutional claim, also

seek variously a declaration that the prosecution of SCI is unwarranted as well as injunctive relief against future enforcement actions

against SCI, including proceedings to seek a permanent injunction

against SCI. That state court permanent injunction has now issued.

The Rooker-Feldman doctrine, however, makes it clear that federal

courts do not possess jurisdiction to hear constitutional claims adjudicated by state courts or claims that are inextricably intertwined with

the merits of a state court judgment. See Rooker v. Fidelity Trust Co.,

263 U.S. 413 (1923); District of Columbia Ct. App. v. Feldman, 460

U.S. 462 (1983). See also Jordahl v. Democratic Party of Va., No.

96-2402, slip op. at 11-18, ___ F.3d ___, ___ (4th Cir. July 28, 1997);

Guess v. Board of Med. Examiners, 967 F.2d 998, 1002-05 (4th Cir.

 9
1992). Lower federal courts cannot sit in direct review of final state

court decisions. See Feldman, 460 U.S. at 483 n.16; Jordahl, slip op.

at 11, ___ F.3d at ___. A plaintiff cannot seek, in federal court,

review of, or relief from, a state action or proceeding that is essentially judicial in nature. There is no question that the preliminary

injunction, now moot, as modified into a permanent injunction, is a

state court decision arising from a judicial proceeding. To the extent

SCI's FAC seeks review of, or relief from, such state judicial decisions, neither we nor the district court possess jurisdiction to hear the

claims. We therefore vacate the order below and remand with instructions to dismiss the FAC to the extent the Rooker-Feldman doctrine

is implicated.

III.

We now turn to the merits of McGraw and Rodd's appeal on those

counts over which we appear to possess jurisdiction, beginning first

with their assertion of Eleventh Amendment immunity.

A.

Examining the FAC under the lens of the Eleventh Amendment,

we find we must reverse the denial of the motion to dismiss with

regard to whatever remains of Count VII, a claim seeking injunctive

relief for a state official's violation of state law. Such a claim is

barred by the Eleventh Amendment under Pennhurst State Sch. &

Hosp. v. Halderman, 465 U.S. 89, 106, 121 (1984), a point SCI conceded at oral argument, and therefore the district court lacked subject

matter jurisdiction to hear the claim.

McGraw and Rodd urge that all of the state law claims are similarly barred. The remaining counts (Counts IV, V, VIII, and IX), however, seek monetary relief. Although the FAC is silent as to the

capacity in which McGraw and Rodd are being sued in these counts,

we take SCI's request for compensatory and punitive damages as an

indication that these state actors are being sued in their personal

capacities here, since such relief is unavailable in official capacity

suits. See Biggs v. Meadows, 66 F.3d 56, 61 (4th Cir. 1995). This conclusion is supported by the fact that SCI did not allege that McGraw

and Rodd were acting in accordance with a governmental policy or

 10
custom. See id. Indeed, Count IV explicitly alleges that McGraw was

acting outside the scope of his duties as Attorney General. See J.A.

at 314. The relevant factors thus demonstrate that SCI intended to sue

McGraw and Rodd in these counts in their personal capacities.

Because the Eleventh Amendment does not bar suits against governmental officials sued in their personal capacities, see Hafer v. Melo,

502 U.S. 21, 30-31 (1991), McGraw and Rodd may not seek to interpose sovereign immunity to these claims.

There is also no prima facie Eleventh Amendment bar to the four

federal claims. Two claims (Counts I and II) seek declaratory and

injunctive relief, and a third (Count VI) seeks injunctive relief; the

long-standing rule of Ex parte Young, 209 U.S. 123 (1908), permits

these claims. See also Will v. Michigan Dep't of State Police, 491

U.S. 58, 71 n.10 (1989); Gray v. Laws, 51 F.3d 426, 430 n.1 (4th Cir.

1995). As noted above, we leave it to the district court to determine

what remains of these three counts after application of the RookerFeldman doctrine. Count III, which seeks money damages against

McGraw and Rodd in their personal capacities, like the state law

counts discussed above, but in this instance pursuant to an alleged

violation of 42 U.S.C. § 1983, is likewise not barred. As a general

rule, damages against state officers in their individual capacities are

permissible. See Scheuer v. Rhodes, 416 U.S. 232, 238 (1974) (citations omitted); Kentucky v. Graham, 473 U.S. 159, 165-66 (1985).

The four remaining state law claims may coattail in under the supplemental jurisdiction statute, 28 U.S.C. § 1367.

B.

Finding subject matter jurisdiction over what remains of the eight

remaining claims,1 we finally address the issue of the adequacy of the

complaint. We have previously held that defendants face a "procedural stumbling block" in asserting affirmative defenses in a Rule

12(b)(6) motion. Richmond, Fredericksburg & Potomac R.R. Co. v.

Forst, 4 F.3d 244, 250 (4th Cir. 1993). Because such a motion is

intended to test the legal adequacy of the complaint, not to address the

_________________________________________________________________

1 To be clear, there is no federal court jurisdiction over Count VII.

There is also no federal court jurisdiction over those parts of Counts I,

II, and VI that are barred by the Rooker-Feldman doctrine.

 11
merits of any affirmative defenses, we permit a defense to be raised

under Rule 12(b)(6) "only if it clearly appears on the face of the complaint." Id. (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357, at 348-49 (2d ed. 1990) ("The

complaint also is subject to dismissal under Rule 12(b)(6) when its

allegations indicate the existence of an affirmative defense, but the

defense clearly must appear on the face of the pleading." (footnotes

omitted))) (citation omitted) (emphasis added). In Forst, we found

that neither the defense of collateral estoppel nor the defense of res

judicata appeared on the face of the complaint and thus refused to

consider them in that case's current posture, stating that they were

"more properly reserved for consideration on a motion for summary

judgment." Id.

McGraw and Rodd argue that, to the extent the FAC seeks relief

for their pursuit of the state court action, the claims are barred by

absolute immunity. While traditional prosecutorial activities are

accorded absolute immunity, see Imbler v. Pachtman, 424 U.S. 409,

431 n.33 (1976), the scope of absolute prosecutorial immunity has

been narrowly drawn. See Buckley v. Fitzsimmons , 509 U.S. 259, 277-

78 (1993) (holding unanimously that a prosecutor's statements to the

media are not protected by absolute immunity); Burns v. Reed, 500

U.S. 478, 492-96 (1991) (explaining that, historically, there is no

absolute immunity for prosecutors advising law enforcement officers). Moreover, in each of the remaining counts of the instant case,

SCI alleges injuries from McGraw and Rodd, either directly or by

incorporation, from their "communications with the state attorneys

general, BBB, the media and the credit reporting companies." J.A. at

305; see also id. at 311, 313, 322. Thus, looking only to the face of

the complaint, Forst, 4 F.3d at 250, SCI's own allegations do not

show that the defense of absolute immunity will vitiate entirely its

ability to recover on any of these eight counts, since each alleges

communications to the media, controlled by Buckley, and other attorneys general, controlled by Burns. Furthermore, given the Supreme

Court's reticence in recognizing absolute immunity in § 1983 actions,

see, e.g., Buckley, 509 U.S. at 269; Forrester v. White, 484 U.S. 219,

224 (1988), as well as our own recent holding that an official "who

performs an act clearly established to be beyond the scope of his discretionary authority is not entitled to claim qualified immunity under

 12
§ 1983," In re Allen, 106 F.3d 582, 593 (4th Cir. 1997),2 McGraw and

Rodd face considerable difficulty in establishing a claim to absolute

immunity where the FAC explicitly alleges the ultra vires nature of

their acts. Finally, the FAC, read as a whole, alleges its claims with

"sufficient precision" to clearly advise McGraw and Rodd of the

nature of the claims, thereby satisfying our heightened pleading standard for actions against government officials for money damages.

Dunbar Corp. v. Lindsey, 905 F.2d 754, 763-64 (4th Cir. 1990). We

therefore conclude that those portions of the FAC over which federal

court subject matter jurisdiction may be exercised sufficiently state

claims upon which relief can be granted to withstand McGraw and

Rodd's Rule 12(b)(6) motion to dismiss.

IV.

We agree with the district court's observation that the FAC is not

a model pleading. This court, however, is a court of limited jurisdiction. Where issues have not been properly presented below, permitting the district court to do its job, we refuse, beyond what our

jurisdictional mandate requires, to parse through every element in a

nine-count complaint upon the denial of a Rule 12(b)(6) motion and

tell the parties where we think viable claims and defenses thereto may

lie. Such a piecemeal approach would hazard us stepping beyond our

proper jurisdictional bounds and stepping on the toes of the district

court.

Here we do decide that we possess appellate jurisdiction to consider whether a complaint on its face may be vitiated by an Eleventh

Amendment claim to immunity from suit in federal court. In this case,

Count VII of the FAC is barred on its face under the Eleventh

Amendment, and the district court's order must therefore be reversed

with respect to that one count. The other eight counts are not so

barred. We express no opinion as to whether, upon further proceedings and factual development, this same conclusion would hold.

_________________________________________________________________

2 We, of course, recognize that McGraw was the defendant in Allen

whom we denied qualified immunity for acts clearly established to be

beyond the scope of his authority. That recognition, however, in no way

unduly influences our decision in the instant case.

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We also conclude that those parts of the controversy seeking relief

from a state court preliminary injunction have become moot and that

Article III jurisdiction is accordingly lacking. In addition, we determine that both we and the district court lack jurisdiction to hear SCI's

claims to the extent it seeks review of, or relief from, any continuing

state court judicial proceedings or decisions. We therefore vacate the

order below and remand with instructions to the district court to dismiss the FAC to the extent that claims are moot or the RookerFeldman doctrine is implicated.

We further decide that we do possess appellate jurisdiction to consider McGraw and Rodd's claim of absolute immunity. On that claim,

we conclude that SCI's allegations do not show that the defense of

absolute immunity will vitiate completely its ability to recover on any

of the counts over which federal court subject matter jurisdiction is

properly invoked. We accordingly affirm the district court's order to

that extent.

We will not consider McGraw and Rodd's claim of qualified

immunity at this stage of the litigation.

IT IS SO ORDERED.

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