F I L E D

United States Court of Appeals

Tenth Circuit

April 19, 2006

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

STUART T. GUTTMAN, M.D.,

Plaintiff - Appellant,

v.

G.T.S. KHALSA, LIVINGSTON

PARSONS, and THE STATE OF

NEW MEXICO,

Defendants - Appellees.

 -------------------------

 UNITED STATES OF AMERICA,

Intervenor.

No. 03-2244

Appeal from the United States District Court

for the District of New Mexico

(D.C. No. CIV-03-463)

Ian D. McKelvy, Sanders, Bruin, Coll & Worley, P.A., Roswell, New Mexico, for

Plaintiff–Appellant.

Timothy S. Hale (Susan R. Johnson with him on the brief), Riley, Shane & Hale,

P.A., Albuquerque, New Mexico, for Defendants–Appellees.

Before LUCERO, ANDERSON, and McCONNELL, Circuit Judges.
2

LUCERO, Circuit Judge.

Stuart Guttman appeals the dismissal on summary judgment of his claims

that G.T.S. Khalsa, Livingston Parsons, and the State of New Mexico violated

Title II of the Americans with Disabilities Act (“ADA”) and 42 U.S.C. § 1983 by

revoking his medical license in a flawed state administrative proceeding. The

district court dismissed his claim for lack of subject matter jurisdiction under the

Rooker-Feldman doctrine. In the alternative, the district court held that Khalsa

and Parsons were protected from suit by absolute immunity and that the state was

entitled to sovereign immunity. On appeal, we affirmed the district court’s

dismissal based on a lack of subject matter jurisdiction. Guttman v. Khalsa, 401

F.3d 1170 (10th Cir. 2005). That decision was vacated by the Supreme Court in

light of its decision in Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S.

280, 125 S. Ct. 1517 (2005), and remanded to this court. Guttman v. Khalsa, 126

S. Ct. 321 (2005).

Under Exxon Mobil, it is clear that the district court does have subject

matter jurisdiction to hear the case because, although Guttman filed his claim

after it was resolved by a New Mexico court, it was filed before the end of the

state courts’ appeal process. Thus, we must review the district court’s decision

with respect to absolute and sovereign immunity. We AFFIRM the district

court’s determination that summary judgment was proper as to the claims against
1

 For ease of reference, this opinion will refer to the district court opinion,

Guttman v. Khalsa, 320 F. Supp. 2d 1164 (D. N.M. 2003), as “Guttman I.” It will

refer to the previous panel opinion, Guttman v. Khalsa, 401 F.3d 1170 (10th Cir.

2005), as “Guttman II.” The Supreme Court’s decision to vacate and remand the

panel decision, Guttman v. Khalsa, 126 S. Ct. 321 (2005), will be referred to as

“Guttman III.”

3

Khalsa and Parsons because they are entitled to absolute immunity. However, as

a result of two recent Supreme Court decisions – Tennessee v. Lane, 541 U.S. 509

(2004), and United States v. Georgia, 126 S. Ct. 877 (2006) – the district court

must reconsider the Title II claim against New Mexico. It must first determine

whether Guttman stated a claim that New Mexico violated Title II of the ADA; if

so, it must then determine whether Title II abrogated sovereign immunity as

applied to the class of conduct at issue in this case. As such, we REVERSE the

grant of summary judgment to the State of New Mexico and REMAND the case

for proceedings consistent with this opinion.

I

The facts of this case were discussed at length in our original opinion. See

Guttman v. Khalsa, 401 F.3d 1170, 1170-72 (10th Cir. 2005) (“Guttman II”).1 

Guttman is a doctor who formerly was licensed to practice in New Mexico. He

also suffers from depression and post-traumatic stress disorder. In December

1999, the Impaired Physicians Committee (“Committee”) of the New Mexico

Board of Medical Examiners (“the Board”) directed Guttman to appear before it
4

in response to a series of complaints about Guttman’s professional conduct. The

Committee issued a “Notice of Contemplated Action and an Order of Summary

Suspension” of his medical license because of Guttman’s mental illness and

allegations that he lied to the committee. The Board held a three-day hearing in

front of Livingston Parsons, with G.T.S. Khalsa serving as the Administrative

Prosecutor. The Board then revoked Guttman’s medical license pursuant to its

authority under N.M. Stat. Ann. § 61-1-1, et seq. 

Guttman appealed the Board’s decision to the Seventh Judicial District

Court of New Mexico. On appeal, Guttman also claimed that the Board’s

decision violated Title II of the ADA. The state court denied the appeal because

the Board’s decision was based on substantial evidence and was not arbitrary,

capricious, or fraudulent. It refused to consider Guttman’s ADA claim because he

did not raise it before the Board. He appealed this decision to the New Mexico

Court of Appeals, but his appeal was denied on April 10, 2003. Guttman filed a

petition for certiorari to the New Mexico Supreme Court, but on April 17, 2003,

before the New Mexico Supreme Court acted, he filed this claim against Parsons,

Khalsa and the state of New Mexico in federal district court, alleging violations

of Title II of the ADA and violations of his procedural due process rights under

§ 1983. The New Mexico Supreme Court denied his petition for certiorari on

May 16, 2003. 
5

The defendants moved for summary judgment and the district court

dismissed the case for lack of subject-matter jurisdiction under the RookerFeldman doctrine. Guttman I, 320 F.Supp.2d at 1169. In the alternative, the

district court held that Khalsa and Parsons were protected against suit by absolute

immunity and that Guttman could not raise a claim against the state of New

Mexico under Title II of the ADA because, under this court’s decision in

Thompson v. Colorado, 278 F.3d 1020, 1034 (10th Cir. 2001), Title II of the ADA

did not abrogate the state’s sovereign immunity. Id. at 1169-71. We affirmed

that decision, holding that the court lacked subject-matter jurisdiction because of

the Rooker-Feldman doctrine. Guttman II, 401 F.3d at 1176. Because we

dismissed for lack of subject matter jurisdiction, we did not address the district

court’s alternate holdings with respect to absolute and sovereign immunity. The

Supreme Court vacated our decision and remanded in light of its decision in

Exxon Mobil. Guttman III, 126 S. Ct. 321 (2005). 

II

Guttman claims that the district court erred in dismissing the case for lack

of subject matter jurisdiction under the Rooker-Feldman doctrine because he filed

his federal complaint before his case in state court was final. Under Exxon

Mobil, the Rooker-Feldman doctrine only applies to cases brought “after the state

proceedings have ended.” 125 S. Ct. at 1526. State proceedings had not ended
6

when Guttman filed his federal court claim. As such, the Rooker-Feldman

doctrine does not apply and the district court did have subject matter jurisdiction.

We review de novo a district court’s dismissal of a complaint for lack of

subject matter jurisdiction. Kiowa Indian Tribe of Okla. v Hoover, 150 F.3d

1163, 1165 (10th Cir. 1998). By statute, “[f]inal judgments or decrees rendered

by the highest court of a State in which a decision could be had, may be reviewed

by the Supreme Court by writ of certiorari.” 28 U.S.C. § 1257(a). In Rooker v.

Fid. Trust Co., 263 U.S. 413 (1923), the Supreme Court interpreted § 1257(a) to

mean that only the Supreme Court can hear appeals from final judgments of state

courts. Therefore, a federal district court does not have subject matter

jurisdiction to review a case that was resolved by state courts. In D.C. Court of

Appeals v. Feldman, 460 U.S. 462 (1983), the Court held that challenges to a

state court judgment are barred even if the claim forming the basis of the

challenge was not raised in the state proceedings. “[I]f the constitutional claims

presented to a United States District Court are inextricably intertwined with the

state court’s denial in a judicial proceeding of a particular plaintiff’s . . . [state

court claims], then the district court is in essence being called upon to review the

state-court decision.” Id. at 483, n.16. See Bolden v. City of Topeka, __ F.3d __,

2006 U.S. App. LEXIS 6917, 2006 WL 701151, at *8 (10th Cir. Mar. 21, 2006).

(discussing the scope of the Feldman decision). Together, these two cases created
7

what is commonly known as the Rooker-Feldman doctrine.

After its cryptic decision in Feldman, the Supreme Court did not explain

the scope of the Rooker-Feldman doctrine until it decided Exxon Mobil twentythree years later. Exxon Mobil, 125 S. Ct. at 1523. In the absence of such

guidance, this court, like others around the country, adopted a rule that the

Rooker-Feldman doctrine applied to state court decisions that were not final: 

“Under Rooker-Feldman, lower federal courts possess no power whatever to sit in

direct review of state court decisions. This prohibition extends to all state-court

decisions – final or otherwise.” Kenman Eng’g v. City of Union, 314 F.3d 468,

473 (10th Cir. 2002) (citations and quotation marks omitted). See also Facio v.

Jones, 929 F.2d 541, 542-43 (10th Cir. 1991); Anderson v. Colo., 793 F.2d 262,

263-64 (10th Cir. 1986).

Exxon Mobil reverses this holding from our decision in Kenman. In Exxon

Mobil, the Supreme Court reversed a Third Circuit decision holding that a federal

court lacked subject matter jurisdiction when a state and federal suit were filed

concurrently and the state court ruled first. Exxon Mobil, 125 S. Ct. at 1525-26. 

In so doing, the Court reduced the scope of the Rooker-Feldman doctrine to the

narrow set of cases out of which it was born. “The Rooker-Feldman doctrine . . .

is 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
2

 The First Circuit helpfully explained the situations where a judgment

would be considered final for Rooker-Feldman purposes: (1) “when the highest

state court in which review is available has affirmed the judgment below and

nothing is left to be resolved”; (2) “if the state action has reached a point where

neither party seeks further action”; or (3) “if the state court proceedings have

finally resolved all the federal questions in the litigation, but state law or purely

factual questions (whether great or small) remain to be litigated.” Federacion de

Maestros de Puerto Rico v. Junta de Relaciones del Trabajo de Puerto Rico , 410

F.3d 17, 24 (1st Cir. 2005). 

8

judgments rendered before the district court proceedings commenced and inviting

district court review and rejection of those judgments.” Id. at 1522-23. The

Court explained the scope of its holding by stating:

Rooker and Feldman exhibit the limited circumstances in which this

Court’s appellate jurisdiction over state-court judgments, 28 U.S.C.

§ 1257, precludes a United States district court from exercising

subject-matter jurisdiction in an action it would otherwise be

empowered to adjudicate under a congressional grant of 

authority . . . . In both cases, the losing party in state court filed suit

in federal court after the state proceedings ended, complaining of an

injury caused by the state-court judgment and seeking review and

rejection of that judgment.

Id. at 1526 (emphasis added). Under Exxon Mobil, Rooker-Feldman applies only

to suits filed after state proceedings are final.2

 See Federacion, 410 F.3d at

24-25 (holding that, after Exxon Mobil, the Rooker-Feldman doctrine only applies

to final state court decisions); Hoblock v. Albany County Board of Elections, 422

F.3d 77, 89 (2d Cir. 2005) (same); Dornheim v. Sholes, 430 F.3d 919, 924 (8th

Cir. 2005) (same); Mothershed v. Justices of the Supreme Court, 410 F.3d 602,
9

604 n.1 (9th Cir. 2005) (same).

In this case, Guttman filed his federal suit while his petition for certiorari

to the New Mexico Supreme Court was pending. His state suit was not final. As

such, the Rooker-Feldman doctrine does not bar his federal suit and the district

court does have subject matter jurisdiction to hear the case. 

III

Guttman also appeals the district court’s alternate reasons for dismissing

his case on summary judgment: absolute immunity for Parsons and Khalsa and

sovereign immunity for the State of New Mexico. The district court properly

granted absolute immunity for Parsons and Khalsa because they were serving in

quasi-judicial and prosecutorial roles at the New Mexico Board of Medical

Examiners’ hearing. However, the Supreme Court’s decisions in Tennessee v.

Lane and United States v. Georgia require that we reverse the district court’s

ruling that the State of New Mexico is protected by sovereign immunity. Georgia

lays out specific procedures that courts must use to determine whether Title II of

the ADA abrogates a state’s sovereign immunity. We therefore remand the case

to the district court to determine whether Guttman has stated a claim under Title

II and, if so, whether Title II validly abrogates state sovereign immunity as

applied to the class of conduct at issue in this case. 

A
10

When the Board held its hearing to determine whether to revoke Guttman’s

medical license, Parsons served as the hearing officer and Khalsa served as the

administrative prosecutor. Guttman claims that both violated Title II of the ADA

and § 1983. He further claims that the district court erred in granting summary

judgment to each of them on the ground that they were protected by absolute

immunity. Guttman argues that Parsons does not deserve absolute immunity as a

result of performing a quasi-judicial function because he should have recused

himself. Khalsa, he argues, was not engaged in a prosecutorial activity when he

violated Guttman’s due process rights and hence is not protected by absolute

immunity. Guttman’s arguments have no merit. Parsons and Khalsa were acting

in their quasi-judicial and prosecutorial functions and are hence entitled to

absolute immunity from this suit.

Using the standard established by Fed. R. Civ. P 56(c), we review the

district court’s grant of summary judgment on the basis of prosecutorial and

quasi-judicial immunity de novo. Pfeiffer v. Hartford Fire Ins. Co., 929 F.2d

1484, 1489 (10th Cir. 1991). “This standard requires us to affirm the district

court if, upon viewing the factual record in the light most favorable to the party

opposing summary judgment, we conclude that ‘there is no genuine issue as to

any material fact and . . . the moving party is entitled to judgment as a matter of

law.’” (quoting Fed. R. Civ. P. 56(c)). Absolute immunity bars suits for money
11

damages for acts made in the exercise of prosecutorial or judicial discretion.

Mireles v. Waco, 502 U.S. 9, 13 (1991) 

Parsons is clearly protected by absolute immunity. The Supreme Court has

long recognized that officials in administrative hearings can claim the absolute

immunity that flows to judicial officers if they are acting in a quasi-judicial

fashion. Butz v. Economou, 438 U.S. 478, 514 (1978). For an official at an

administrative hearing to be protected by absolute immunity “(a) the officials’

functions must be similar to those involved in the judicial process, (b) the

officials’ actions must be likely to result in damages lawsuits by disappointed

parties, and (c) there must exist sufficient safeguards in the regulatory framework

to control unconstitutional conduct.” Horwitz v. State Bd. of Med. Examiners,

822 F.2d 1508, 1513 (10th Cir. 1987).

 In Horwitz, a plaintiff challenged a decision made by the Colorado State

Medical Examiners Board in Colorado. Id. at 1510. We held that the board’s

hearing officers served a quasi-judicial function and, hence, that they were

protected by absolute immunity from a suit alleging that one of their decisions

violated federal law. Id. This case is nearly identical to the case at bar. 

Guttman does not argue that Parsons’ functions were dissimilar to those involved

in the judicial process, that his actions were unlikely to result in damages lawsuits

by disappointed parties, or that the regulatory framework governing the New
3

 Guttman raised the issue of their previous contacts during the hearing,

but Parsons declined to recuse himself.

12

Mexico Board of Medical Examiners is somehow infirm.

Instead, Guttman attempts to distinguish this case from Horowitz by

alleging that Parsons was biased because he had supervised Guttman during his

probationary period.3 The Supreme Court has established that an accusation of a

conflict of interest does not trump a claim of absolute immunity. “[J]udicial

immunity is not overcome by allegations of bad faith or malice . . . .” Mireles,

502 U.S. at 12. Only accusations that a judge was not acting in his judicial

capacity or that he acted in the complete absence of all jurisdiction can overcome

absolute immunity. Id. Guttman does not allege that the Board or Parsons was

without jurisdiction – he merely claims that Parsons should have recused himself. 

Parsons is hence entitled to absolute immunity in this suit.

 Khalsa is equally entitled to absolute immunity. Guttman alleges that

Khalsa neglected to place certain documents into evidence before the Board and

failed to disclose a file created by one of Guttman's employers until after Guttman

had met with the committee. Further, he claims that Khalsa imposed an

impossible deadline for disputing the complaints filed by patients against him and

threatened to file a revocation action unless he responded within the deadline. 

Finally, he complains that Khalsa improperly argued that Parsons did not need to
13

recuse himself. According to Guttman, these actions were investigatory or

administrative in nature and hence were not protected by absolute immunity. In

Imbler v. Pachtman, 424 U.S. 409, 431 (1976), the Supreme Court ruled that a

prosecutor is entitled to absolutely immunity from a Section 1983 suit for

damages based on his “initiating a prosecution and . . . presenting the State’s

case.” All of Guttman’s allegations fall within Imbler’s ambit. In a footnote, the

Court explicitly stated that prosecutors are protected by absolute immunity from a

claim that they failed to turn over exculpatory evidence. Id. at 431-32 n.34

(explaining that the “deliberate withholding of exculpatory information” although

reprehensible, is protected by absolute immunity). Khalsa’s other alleged

violations of Guttman’s rights under the Due Process Clause and Title II –

offering opinions to the hearing officer and negotiating with Khalsa over

deadlines – were part of his prosecutorial duties. We have ruled that Imbler

applies to attorneys appearing before a state board of medical examiners. Pfeiffer

v. Hartford Fire Ins. Co., 929 F.2d at 1489 (applying Imbler to prosecutors

appearing before the Colorado State Board of Medical Examiners). Khalsa’s

actions were clearly within his role as an administrative prosecutor. The district

court properly determined that he is entitled to absolute immunity.

B 

The district court dismissed Guttman’s claim against the state of New
4

 To abrogate sovereign immunity, Congress must unequivocally express

its intent to abrogate and it must act pursuant to a valid grant of constitutional

authority. Lane, 541 U.S. at 517. Congress clearly expressed its intent to

abrogate sovereign immunity when it passed the ADA. Id. The key question is

whether it did so pursuant to a valid grant of constitutional authority. Congress

cannot abrogate sovereign immunity through its power under the Interstate or

Indian Commerce Clauses. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 72-73

(1996). It can, however, abrogate sovereign immunity through its enforcement

power under § 5 of the Fourteenth Amendment. “Congress can abrogate a State’s

sovereign immunity when it does so pursuant to a valid exercise of its power

under § 5 of the Fourteenth Amendment to enforce the substantive guarantees of

that Amendment.” Lane, 541 U.S. at 518. Congress’s power under § 5 also

“includes ‘the authority both to remedy and to deter violation of rights guaranteed

[by the Fourteenth Amendment] by prohibiting a somewhat broader swath of

(continued...)

14

Mexico because the state was protected by sovereign immunity. At the time, this

was clearly the proper result. Our decision in Thompson v. Colorado, 278 F.3d at

1034, held that Title II of the ADA did not abrogate sovereign immunity under

any context. Thompson, however, is no longer good law. Under the Supreme

Court’s decisions in Lane and Georgia, Title II validly abrogates sovereign

immunity as to (1) actual violations of the Constitution and (2) at least some

classes of conduct that do not facially violate the Constitution but are prohibited

to “prevent and deter unconstitutional conduct.” Lane, 541 U.S. at 518.

In Lane, 541 U.S. 509 (2004), the Supreme Court held that, as applied to a

case alleging discriminatory access to the courts, Title II abrogated sovereign

immunity because it was a valid use of the powers granted to Congress under § 5

of the Fourteenth Amendment.4 Id. at 533-34. The Court held that, although the
4

(...continued)

conduct, including that which is not itself forbidden by the Amendment’s text.’”

Id. (quoting Kimel v. Florida Bd. of Regents, 528 U.S. 62, 81 (2000)). As such,

Congress can pass prophylactic legislation that proscribes constitutional conduct

in order to prevent and deter unconstitutional conduct. Id. In order for such

legislation to be proper under § 5, it must, however, exhibit “a congruence and

proportionality between the injury to be prevented or remedied and the means

adopted to that end.” City of Boerne v. Flores, 521 U.S. 507, 520 (1997). In

Lane, the Court found Title II, as applied to the specific challenge alleged, passed

this test. 541 U.S. at 533.

15

conduct that was the basis for the suit was not a direct violation of the

Constitution, Title II, in the context of the suit, was valid prophylactic legislation

that prevents and deters unconstitutional conduct. Id. at 518. The Court,

however, declined to address whether Title II abrogated sovereign immunity in

other contexts where parties allege violations of the law that are not independent

constitutional violations.

In Georgia, 126 S. Ct. at 877, the Court explained the procedure by which

courts should address Title II cases brought against states. The plaintiff in

Georgia, a state prisoner, alleged that prison officials violated both Title II and

the Eighth Amendment. Id. at 880-81. It is well-settled that Congress can

abrogate sovereign immunity as to actual violations of constitutional rights. 

However, it was not clear from the pleadings whether the plaintiffs alleged that

prison officials engaged in conduct that violated Title II but that was not also a

violation of the Eighth Amendment. Id. As such, the Court remanded the case
16

to allow amended pleadings to permit the plaintiffs to make clear whether they

allege ADA violations beyond the direct violations of the Eighth Amendment. In

doing so, the Court laid out a procedural roadmap explaining how Title II claims

against a state should proceed:

Once Goodman’s complaint is amended, the lower courts will be best

situated to determine in the first instance, on a claim-by-claim basis,

(1) which aspects of the State’s alleged conduct violated Title II; (2)

to what extent such misconduct also violated the Fourteenth

Amendment; and (3) insofar as such misconduct violated Title II but

did not violate the Fourteenth Amendment, whether Congress’s

purported abrogation of sovereign immunity as to that class of

conduct is nevertheless valid.

Id.. 

Because of our holding in Thompson, the district court did not address

whether the plaintiff stated a claim that New Mexico violated Title II of the ADA. 

Under the Supreme Court’s decision in Georgia, we must remand the case to the

district court so that it can determine whether Guttman properly alleged violations

of Title II. When doing so, the district court also will be able to determine

whether Guttman’s claims are otherwise barred because they are precluded by res

judicata or collateral estoppel.

If the district court decides that Guttman did state a valid claim under Title

II, it must then determine whether Congress abrogated sovereign immunity as

applied to the class of conduct at issue in this case. Georgia, 126 S. Ct. at 880-

81. If his Title II claims against New Mexico also constitute an independent
17

constitutional violation, Guttman may proceed with those claims against the state. 

Id. If Guttman has stated a valid Title II claim that is not also an independent

constitutional violation, the district court must conduct the Lane analysis to

determine whether Title II abrogated sovereign immunity for an as applied

challenge.

The procedural rule laid out in Georgia is wise. Before a court can

determine whether Title II abrogated sovereign immunity as applied to a specific

suit, it must know the specifics of the claim at issue. Otherwise, the court would

be engaged in a guessing game about what class of conduct is implicated by the

complaint. Further, a court that tried to determine whether Title II abrogated

sovereign immunity before it determined that a plaintiff actually alleged a Title II

violation would risk issuing an advisory opinion.

As such, we reverse the district court’s grant of summary judgment to the

State of New Mexico and remand for hearings to determine whether Guttman

alleged a violation of Title II. If the district court determines that there was such

an allegation, and that the allegation is not precluded by res judicata or collateral

estoppel, it should then determine whether, by passing Title II, Congress

abrogated sovereign immunity as applied to that challenge.

IV

We AFFIRM the district court’s determination that both Parsons and
18

Khalsa are protected by absolute immunity. However, we REVERSE the district

court’s determination that New Mexico is protected against all suits under Title II

of the ADA by sovereign immunity and REMAND for hearings consistent with

this opinion.