## 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 b rief), Riley, Shane & Hale, P.A., Albuquerque, New Mexico, for Defendants–Appel lees.

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

LUCERO , Circuit Judge.
Stuart Guttman appeals the dismissal on summary jud gment 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 (“A DA”) and 42 U.S.C. § 1983 by revoking his medical license in a flawed state admi nistrative proceeding. The district court dismissed his claim for lack of subj ect matter jurisdiction under the Rooker-Feldmandoctrine. In the alternative, the district court held that Khalsa and Parsons were protected from suit by absolute im munity and that the state was entitled to sovereign immunity. On appeal, we affi rmed the district court’s dismissal based on a lack of subject matter jurisdi ction. 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 c ourt. 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, altho ugh 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 reviewthe district court’s decision with respect to absolute and sovereign immunity. W e AFFIRM the district court’s determination that summary judgment was pro per as to the claims against1 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. Kha lsa , 401 F.3d 1170 (10th Cir. 2005), as “Guttman II .” The Supreme Court’s decision to vacate and rema nd 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 abs olute immunity. However, as a result of two recent Supreme Court decisions – Te nnessee 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 Mexi co. It must first determine whether Guttman stated a claim that New Mexico viol ated Title II of the ADA; if so, it must then determine whether Title II abrogat ed sovereign immunity as applied to the class of conduct at issue in this ca se. As such, we REVERSE the grant of summary judgment to the State of New Mexic o 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) (“GuttmanII ”). 1 Guttman is a doctor who formerly was licensed to pr actice in New Mexico. He also suffers from depression and post-traumatic str ess disorder. In December 1999, the Impaired Physicians Committee (“Committee ”) of the New Mexico Board of Medical Examiners (“the Board”) directed G uttman to appear before it4

in response to a series of complaints about Guttman ’s professional conduct. The Committee issued a “Notice of Contemplated Action a nd an Order of Summary Suspension” of his medical license because of Guttm an’s mental illness and allegations that he lied to the committee. The Boa rd 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 medic al license pursuant to its authority under N.M. Stat. Ann. § 61-1-1, et seq. Guttman appealed the Board’s decision to the Sevent h Judicial District Court of New Mexico. On appeal, Guttman also claim ed that the Board’s decision violated Title II of the ADA. The state c ourt denied the appeal because the Board’s decision was based on substantial evide nce 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 thi s decision to the New Mexico Court of Appeals, but his appeal was denied on Apri l 10, 2003. Guttman filed a petition for certiorari to the New Mexico Supreme C ourt, 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 distr ict court, alleging violations of Title II of the ADA and violations of his proced ural due process rights under § 1983. The New Mexico Supreme Court denied his pe tition for certiorari on May 16, 2003.5

The defendants moved for summary judgment and the d istrict court dismissed the case for lack of subject-matter juris diction under the RookerFeldmandoctrine. Guttman I , 320 F.Supp.2d at 1169. In the alternative, the district court held that Khalsa and Parsons were pr otected against suit by absolute immunity and that Guttman could not raise a claim a gainst the state of New Mexico under Title II of the ADA because, under thi s 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 subjec t-matter jurisdiction because of the Rooker-Feldmandoctrine. 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 dis missing the case for lack of subject matter jurisdiction under the Rooker-Fel dmandoctrine because he filed his federal complaint before his case in state court was final. Under Exxon Mobil , the Rooker-Feldmandoctrine only applies to cases brought “after the state proceedings have ended.” 125 S. Ct. at 1526. Stat e proceedings had not ended6

when Guttman filed his federal court claim. As suc h, 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 acomplaint 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 interprete d § 1257(a) to mean that only the Supreme Court can hear appeals f rom final judgments of state courts. Therefore, a federal district court does n ot 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 challeng es to a state court judgment are barred even if the claim f orming 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 ine xtricably 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 essenc e 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 (1 0th Cir. Mar. 21, 2006). (discussing the scope of the Feldmandecision). Together, these two cases created7

what is commonly known as the Rooker-Feldmandoctrine. After its cryptic decision in Feldman , the Supreme Court did not explain the scope of the Rooker-Feldmandoctrine 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-Feldmandoctrine applied to state court decisions that wer e not final: “Under Rooker-Feldman , lower federal courts possess no power whatever to sit in direct review of state court decisions. This prohi bition extends to all state-court decisions – final or otherwise.” Kenman Eng’g v. C ity 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 decisi on holding that a federal court lacked subject matter jurisdiction when a state and federal suit were filed concurrently and the state court ruled first. Exxo n Mobil , 125 S. Ct. at 1525-26. In so doing, the Court reduced the scope of the Roo ker-Feldmandoctrine to the narrow set of cases out of which it was born. “The Rooker-Feldmandoctrine . . . is confined to cases of the kind from which the doc trine acquired its name: cases brought by state-court losers complaining of injuri es caused by state-court2 The First Circuit helpfully explained the situatio ns where a judgment

would be considered final for Rooker-Feldmanpurposes: (1) “when the highest state court in which review is available has affirm ed 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 l itigation, 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 procee dings commenced and inviting district court review and rejection of those judgme nts.” Id. at 1522-23. The Court explained the scope of its holding by stating : Rookerand Feldmanexhibit the limited circumstances in which this Court’s appellate jurisdiction over state-court jud gments, 28 U.S.C. § 1257, precludes a United States district court fr om exercising subject-matter jurisdiction in an action it would o therwise be empowered to adjudicate under a congressional grantof 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 seeki ng review and rejection of that judgment.

Id. at 1526 (emphasis added). Under Exxon Mobil , Rooker-Feldmanapplies 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-Feldmandoctrine 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. Shol es , 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 s tate suit was not final. As such, the Rooker-Feldmandoctrine does not bar his federal suit and the dis trict court does have subject matter jurisdiction to hearthe case.
III Guttman also appeals the district court’s alternate reasons for dismissing his case on summary judgment: absolute immunity fo r Parsons and Khalsa and sovereign immunity for the State of New Mexico. Th e district court properly granted absolute immunity for Parsons and Khalsa be cause they were serving in quasi-judicial and prosecutorial roles at the New M exico Board of Medical Examiners’ hearing. However, the Supreme Court’s d ecisions in Tennessee v.
Lane and United States v. Georgiarequire 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 t o 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 s tate sovereign immunity as applied to the class of conduct at issue in this ca se. A10

When the Board held its hearing to determine whethe r to revoke Guttman’s medical license, Parsons served as the hearing offi cer and Khalsa served as the administrative prosecutor. Guttman claims that bot h violated Title II of the ADA and § 1983. He further claims that the district co urt erred in granting summary judgment to each of them on the ground that they we re protected by absolute immunity. Guttman argues that Parsons does not des erve absolute immunity as a result of performing a quasi-judicial function beca use he should have recused himself. Khalsa, he argues, was not engaged in a p rosecutorial activity when he violated Guttman’s due process rights and hence is not protected by absolute immunity. Guttman’s arguments have no merit. Pars ons 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 b asis of prosecutorial and quasi-judicial immunity de novo. Pfeiffer v. Hartf ord Fire Ins. Co. , 929 F.2d 1484, 1489 (10th Cir. 1991). “This standard requir es us to affirm the district court if, upon viewing the factual record in the li ght 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 ent itled to judgment as a matter of law.’” (quoting Fed. R. Civ. P. 56(c)). Absolute i mmunity bars suits for money11

damages for acts made in the exercise of prosecutor ial 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 he arings can claim the absolute immunity that flows to judicial officers if they ar e 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 dama ges lawsuits by disappointed parties, and (c) there must exist sufficient safegu ards in the regulatory framework to control unconstitutional conduct.” Horwitz v. S tate Bd. of Med. Examiners , 822 F.2d 1508, 1513 (10th Cir. 1987). In Horwitz , a plaintiff challenged a decision made by the Col orado State Medical Examiners Board in Colorado. Id. at 1510. We held that the board’s hearing officers served a quasi-judicial function a nd, 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 unli kely to result in damages lawsuits by disappointed parties, or that the regulatory fra mework governing the New3 Guttman raised the issue of their previous contac ts 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 sup ervised Guttman during his probationary period. 3 The Supreme Court has established that an accusat ion of a conflict of interest does not trump a claim of abso lute immunity. “[J]udicial immunity is not overcome by allegations of bad fait h 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 o f all jurisdiction can overcome absolute immunity. Id. Guttman does not allege that the Board or Parsons was without jurisdiction – he merely claims that Parson s should have recused himself. Parsons is hence entitled to absolute immunity in t his suit. Khalsa is equally entitled to absolute immunity. Guttman alleges that Khalsa neglected to place certain documents into ev idence 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 fi led by patients against him and threatened to file a revocation action unless he re sponded within the deadline. Finally, he complains that Khalsa improperly argued that Parsons did not need to13

recuse himself. According to Guttman, these action s were investigatory or administrative in nature and hence were not protect ed by absolute immunity. In Imbler v. Pachtman , 424 U.S. 409, 431 (1976), the Supreme Court ruledthat 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 Im bler ’s ambit. In a footnote, the Court explicitly stated that prosecutors are protec ted by absolute immunity from a claim that they failed to turn over exculpatory evi dence. Id. at 431-32 n.34 (explaining that the “deliberate withholding of exc ulpatory information” although reprehensible, is protected by absolute immunity). Khalsa’s other alleged violations of Guttman’s rights under the Due Proces s Clause and Title II – offering opinions to the hearing officer and negoti ating 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 Imblerto prosecutors appearing before the Colorado State Board of Medica l Examiners). Khalsa’s actions were clearly within his role as an administ rative prosecutor. The district court properly determined that he is entitled to ab solute immunity.
B The district court dismissed Guttman’s claim agains t the state of New4 To abrogate sovereign immunity, Congress must une quivocally 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 cons titutional authority. Congress cannot abrogate sovereign immunity through its powe r 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 immuni ty through its enforcement power under § 5 of the Fourteenth Amendment. “Cong ress can abrogate a State’s sovereign immunity when it does so pursuant to a va lid exercise of its power under § 5 of the Fourteenth Amendment to enforce th e 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 dete r violation of rights guaranteed [by the Fourteenth Amendment] by prohibiting a some what broader swath of (continued...) 14 Mexico because the state was protected by sovereignimmunity. At the time, this was clearly the proper result. Our decision in Tho mpson v. Colorado , 278 F.3d at 1034, held that Title II of the ADA did not abrogat e sovereign immunity under any context. Thompson , however, is no longer good law. Under the Suprem e Court’s decisions in Lane and Georgia , Title II validly abrogates sovereign immunity as to (1) actual violations of the Constit ution and (2) at least some classes of conduct that do not facially violate the Constitution but are prohibited to “prevent and deter unconstitutional conduct.” L ane , 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 g ranted to Congress under § 5 of the Fourteenth Amendment. 4 Id. at 533-34. The Court held that, although the4 (...continued)

conduct, including that which is not itself forbidd en 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 pro scribes constitutional conduct in order to prevent and deter unconstitutional cond uct. Id. In order for such legislation to be proper under § 5, it must, howeve r, 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 speci fic challenge alleged, passed this test. 541 U.S. at 533. 15 conduct that was the basis for the suit was not a d irect 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 abrog ated sovereign immunity in other contexts where parties allege violations of t he law that are not independent constitutional violations. In Georgia , 126 S. Ct. at 877, the Court explained the proced ure by which courts should address Title II cases brought agains t states. The plaintiff in Georgia , a state prisoner, alleged that prison officials v iolated 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 whethe r the plaintiffs alleged that prison officials engaged in conduct that violated T itle II but that was not also a violation of the Eighth Amendment. Id. As such, the Court remanded the case16

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 e xplaining 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 c laim-by-claim basis, (1) which aspects of the State’s alleged conduct vi olated Title II; (2) to what extent such misconduct also violated the Fo urteenth Amendment; and (3) insofar as such misconduct violated Title II but did not violate the Fourteenth Amendment, whether C ongress’s purported abrogation of sovereign immunity as to th at 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 Mexic o 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 als o will be able to determine whether Guttman’s claims are otherwise barred becau se they are precluded by res judicata or collateral estoppel. If the district court decides that Guttman did stat e a valid claim under Title II, it must then determine whether Congress abrogat ed sovereign immunity as applied to the class of conduct at issue in this ca se. Georgia , 126 S. Ct. at 880- 81. If his Title II claims against New Mexico als o constitute an independent17

constitutional violation, Guttman may proceed with those claims against the state. Id. If Guttman has stated a valid Title II claim thatis not also an independent constitutional violation, the district court must c onduct the Lane analysis to determine whether Title II abrogated sovereign immu nity for an as applied challenge. The procedural rule laid out in Georgiais wise. Before a court can determine whether Title II abrogated sovereign immu nity as applied to a specific suit, it must know the specifics of the claim at is sue. Otherwise, the court would be engaged in a guessing game about what class of c onduct is implicated by the complaint. Further, a court that tried to determin e whether Title II abrogated sovereign immunity before it determined that a plai ntiff actually alleged a Title II violation would risk issuing an advisory opinion. As such, we reverse the district court’s grant of s ummary judgment to the State of New Mexico and remand for hearings to dete rmine whether Guttman alleged a violation of Title II. If the district c ourt determines that there was such an allegation, and that the allegation is not precl uded by res judicata or collateral estoppel, it should then determine whether, by pass ing Title II, Congress abrogated sovereign immunity as applied to that cha llenge.
IV We AFFIRM the district court’s determination that both Parso ns and18

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.