NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 13a0576n.06 No. 12-5965 UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T

SHERRI E L . DURHAM, Plaintiff-Appellant,

v. BI L L HASL AM, ROBERT E. COOPER, R E B E C C A H U N T E R , KA R LA D A V IS , L AURA HOL L AND, in their officia l capa cities, an d J OHN DOE, and J ANE DOE, in thei r individual capac ities, Def endants-A

ppellees. ON APPEAL FROM THE UNI TED STATES DI STRI CT COURT FOR THE M I DD L E DISTRI CT OF TENNESSEE

OPI NI ON

Be fore : McKEAGU E and DO NAL D, Circuit J udg es; L AWSON, District J udg e. *

David M. Law son, District Judge. Plaintiff Sherrie L . Durham, an attorne y , worke d for the Tenne ssee De partment of L abor a s an unemploy ment hear ing office r from J une 1998 until she

was discharg ed in J une 2007. She appea led her discharg e to the Tenne ssee Civil Service Commi ssion and then to the Davidson County , Tenne ssee chanc ery court. During the course of the chanc ery court case, Durham m oved to strike the a dminist rative r ecor d beca use the State fa iled to file it by the date require d under T en n es s ee law. The chanc ery court g rante d the motion, afte r

The Honorable David M. L awson, United States District J udg e for the Eastern District of * Michig an, sitting by

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war ning Durham of the conseque nces that the absenc e of the rec ord would have for her case , namely , aff irmance of her

discharg e.
After the inevitable occur red, Durham f

iled the prese nt a ction in f eder al court alleg ing that the state violated her First and Four teenth Amendment rig hts to fre e speec h and due proce ss, by (1) “interpr et[ing] [t he Tenne ssee Administrative Procedur es Act (APA)] in such a way that courts can

assess fault and blame a petitioner for pointing out that the State has failed to timely file the ag ency

rec ord,” Compl

. ¶ 27; and (2) “interpr et[ing] [ the Act] in such a wa y that the ag ency alway s wins if the ag enc y d o es not prepa re or file the ag ency rec ord with the revie wing court,” Compl. ¶ 28. Among other things, she asked the district court to v ac at e h er d ischarg e and reinstate her. After revie wing the complaint, the district court dismiss ed it on its own motion for want of subject matter jurisdiction under the Rooke r-Feldman doctrine. Durha m timely appeal ed , and, for the rea sons discussed below, w e af

firm.

I

. Durham call s h e r s e lf a w h is tl e blower who complained about state hear ing office r supervisors who routinely allowed hear ings to proce ed when one of the nece ssary par ti e s h a d n ot rec eived notice. The defe ndants descr ibe Durha m as a state hear ing office r who was terminated “for repe ated acts of insubordination.” We need not adopt either char acte rization; it is sufficie nt to note that Durham was terminated from her job a s a Tenne ssee state unemploy ment hear ing office r on J une 22, 2007, and

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her administrative appea l was denied by a state administrative law judge on J uly 20, 2009. On May 18, 2010, the Tenne ssee Civil Servi ce C o m m i s s i on adopted the AL J ’s order in its entirety

. See Durham v. Tennessee Dept. of Labor and W orkforce Dev. , No. 101139-I V, 2012 WL 1407372, at *1 (Tenn. Ct. App. Apr . 20, 2012).

On J uly 16, 2010, Durham filed a petition for judicial revie w of the administrative discharg e proce eding in t h e Davidson County , Tenne ssee chanc ery court. The petition alleg ed that by termin a ti n g Durham’s employ

ment, “the Commi ssion violated her rig hts to due proce ss, fre e speec h, and equal protec tion under the Tenne ssee and United States Constit utions, and that the decision was arbitra ry , capr icious, and not supported by substantial and materia l evidenc e.” Ibid. On J anuar y 26, 2011, the State filed a motion to d i s m i s s the petition beca use Durham had not filed a supporting brief as require d by the local court rules. On Marc h 11, 2011, Durham re s p o n d ed to the State’s motion to dismiss by filing a motion to strike the administrative reco rd fr o m the proce eding s, alleg ing tha t it was not filed within the time allowed under the Tenne ssee APA.

Under the rele vant Tenne ssee statute, the State was require d to file with the chanc ery court the administrative rec ord of the discharg e proce eding s “[w]i thin 45 day s afte r service of the petition,

or within f

urther time allowed by the court
. . . .” Tenn. Code Ann. § 4-5-322( d). Durham a lleg ed that the State did not file the rec ord until 73 day s afte r it rec eived service of proce ss. She also arg ued that the chancer y court could not enlar g e the time for filing t he record beca use t he S tate’s request to do so was made afte r the 45-day period elapse d. At the motion hear ing, the chanc ery court judge - 3 -No. 12-5965

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explained that the court wa s authorized to e x tend the administrative rec ord filing deadline a nd the extension was war

rante d in that case . The judge war ned Durham that without an administrative

rec ord, she could not revie w t he C i v i l S ervic e C ommissi on’s decision, and it would be affirmed. Nonethele ss, Durham insisted on striking the rec ord. The chanc ery court reluc t an t l y ac q uiesce d, since Durham, an attorney and former hear ing office r herse lf, made her reque st with ey es wide open.
Durham appar ently fig ured that the absenc e of an administ ra t i ve rec ord would mandate

reve rsal of the Commi ssion’s de cision under state law, and she filed a motion for judgme nt on the pleading s to that eff

ect. She miscalculate d. The Commi ssion’s subsequent motion to dismiss was g rante d. The dismissal was af firmed on a

ppeal. Durham , 2012 WL 1407372.

Durham’s fede ral lawsuit invoked 42 U.S.C. § 1983 and alleg ed that the Te nnessee courts misint erpr eted the Tenne ssee APA in such a way as to deprive her of her rig hts unde r the First and Four teenth Amendments. She sued Tenne ssee’ s g overnor , attorney g ener al, secr etar y of state, commissioner of the state depar tment of human resour ces, and two anony mous Doe defe ndants. She said that the state court punished her for speaking out about the state’s failure to file the adminis t ra t ive rec ord on time, and the courts violated her constitutional rig hts by interpre ting the APA to allow the state to win b y s t o n ew al ling an opponent and withholding the administrative

rec ord on judi ci al re v i ew . She asked the district court to decla re the Tenne ssee APA unconst itutional and enjoin its enfor ceme nt, vaca te her discharg e and reinstate her, and order damag es ag ainst the individual defenda nts. - 4 -No. 12-5965

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The district court viewed the lawsuit as nothing more than an appea l of the state administrative proce eding s. I t deter mined that it did not have jurisdiction to enter tain such an appea l under the Rooke r-Feldman doctrine and dismiss ed the case on its o wn m otion. Durham filed a motion to rec onsider, arguing that (1) the complaint stated an “indepe ndent cause of action” ag ainst t h e defe ndants beca

use the named and unnamed defe ndants wer e not parties to the state j u d i ci al revie w proce eding ; (2) the complaint alleg ed harm to Durha m’s constitutional rig hts unrela ted to the state court judgme nt and resulting from separ ate acts by the defe ndants; (3) the state courts did not decide Durham’s claims on the merits; and (4) the Rooke r-Feldm a n d o ct ri n e does not prec lude g ener al constitutional challeng es to a state statute. I n a memorandum order , the district court g rante d the motion to reconsider

and re aff irmed its order of

dismiss al without elaboration. Eleven day s later, D urham filed a motion to vacate the order of di smissal and for leave to file an amende d complaint. She stated that she would “fix the problem that [t he] Court had with her complaint if it gra n t s h er re quest to allow her to amend her pleading s,” but did not include any proposed amende d complaint with her motion or propose a ny specific chang es to her claims. The district court denie d the motion to vacate a nd for lea ve to amend. This appea l followed.

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I I

.
We g ive fre sh revie w to a district court’s decision to dismiss for lack of subject mat t er jurisdiction under Fe d. R. Civ. P. 12(b)( 1). Taylor v. Geithner , 703 F.3d 328, 332 (6th Cir. 2013). Where a p ar t y als o appea ls the denial of a motion to rec onsider or for relief from a judgme nt of dismiss al, “re view of the district court’s denial of [a] Rule 60(b) Motion for Relief [or a] Rule 59(e) Motion to Amend the J udg ment is merg ed with

. . . revie w of the district court’s dismiss al for lack of subject matter jurisdiction.” Good v. Oh i o E d i s o n Co. , 149 F.3d 413, 418 n.9 (6th Cir. 1998) (citing Perez v. Aetna Life Ins. Co. , 96 F.3d 813, 819 (6th Cir. 1996)). This court revie ws the denial of a motion to amend under the abuse- of-discr etion standard, “unless the motion was denied beca use the amende d pleading would not withstand a motion to dismiss , in which case the standard of revie w is de novo.” Colvin v. Caruso , 605 F.3d 282, 294 ( 6th Cir. 2010).

A.

D u r h am’s main argument is that the Rooke r-Feldman doctrine cannot bar h e r la w s u it b e c a

u s e she is not direc tly appea ling the state court judgme nt, she does not complain about an injury that was

cause d by a state court judgme nt, and she did not ask the district court to revie w and reje ct the state court judgme nt. She points out that she seeks damag es from the Doe defe ndants in the fed er al action, wher eas no damag es wer e soug ht in the state court case . And she insists t h at the Rooke r-

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Feldman doctrine does not apply to a gene ral challeng e to a state st atute, which, she believes, she has asse rted he re.

T h e Rooke r-Feldman doctrine is a narr ow rule based on the idea that fede ral ap p el l at e jurisdiction over a state court decision lies exclusively with the Supreme Court, and not lower fede ral courts. D.C. Ct. of

Appeals v. Feldman , 460 U.S. 462, 476 (1983) (citing 28 U.S.C. § 1257; Rooke r

v. F i del i t y T rust Co. , 263 U.S. 413, 415, 416 (1923))

. This court tended to interpre t the doctri n e broadly , see Exe cutive Arts Studio, Inc. v. City of Grand Rapids , 391 F.3d 783, 793 (6th Cir. 2004), but later revised its views afte r the Supreme Court clar ified the limit s of the doctrine in Exx on Mobil Corporati on v. Saudi Basic Industries Corporati on , 544 U.S. 280 (2005), see Kovacic v. Cuyahoga County Dep’t of Children and Family Serv s. , 606 F.3d 301, 309 ( 6th Cir. 2010). In Exx on Mobil , the Court held that the Rooke r-Feldman doctrine bars “ca ses broug ht by st at e- co u rt losers complaining of injuries cause d by state-c ourt judgme nts rende red befor e the distr ict court proce eding s commence d and inviting district court revie w and reje ction of those judgme nts.” Exx on Mobil , 544 U.S. 284. Howeve r, it does not “stop a district court from exercising subject matter jurisdiction simply beca

use a party attempts to litigate in fede ral court a matter previously litigated in state court.” Id. at 293.

I n th e wa k e o f E

xx o n Mobil , we have held that “the pertinent inquiry

. . . is whether the ‘sourc e of the injury ’ upon which plaintiff bases [her] fede ral claim is the state court judgme nt, not simply whether the injury c o mp la in e d o f is ‘ in e xtric ably intertwined’ with the state-c ourt judgme nt.” - 7 -No. 12-5965

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Kovacic , 606 F.3d at 309 (citing McCormick v. Braverm an , 451 F.3d 382, 393-95 (6th Cir. 2006)). To deter mine whether the pl aintiff’s complain t s ee k s ap pellate review of a st ate court decision or instead asser

ts an independe nt claim for relief , the fede ral court must examine “the s o u rc e of the injury the plaintiff alleg es in the fe d er al complaint.” McCormick , 451 F.3d at 393. “Rooke rFeldman focuse s on whe t h er t h e s t ate court decision cause d the injury ,” and the “cour t cannot d eter mine the s ource of t he inj ury without ref ere nce to the pl aintiff’s request for relief

. ” B er r y v. Schmitt , 688 F.3d 290, 299 ( 6th Cir. 2012) (quotation marks and a lterations omitted).

Durham contends that her complaint in fede ral court states a g ener al constitutional challeng e to a state statute, the Tenne ssee APA. She say s that the statute is unconstitutional beca use it g ives the state an unfair advanta g e by allowing it to block judicial revie w o f admi nistrative public employ ment decisions simply by no t filing the administrative rec ord. She insists that her fede ral complaint does not see k t o u p s et the state court judgme nt aff irming her discharg e. For sever al

rea sons, we believe that Durham has mischara cter ized her plea dings. First, it is evident from her complaint and briefing that Durham has not raised any “g ener al challeng e” to the Tenne ssee APA. She mere ly contests the application of t h e s t atute to her case , beca use she argues specific ally that t h e s tate chanc ery court violated her First and Four teenth Amendment rig hts to fre e speec h and due proce ss by (1) “interpr et[ing] [t he Tenne ssee APA] in such

a way that courts can assess fault and blame a petitioner for pointing out that the State has failed to timely file the ag ency rec ord,” Compl. ¶ 27; and (2) “interpr et[ing] [t he Act] in such a way that the - 8 -No. 12-5965

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ag ency alway s wins if the ag ency does not prepa re or file the ag ency rec ord with revie wing court,” Compl. ¶ 28. The corner stone of t hat arg ument i s that the s tate chance ry court erre d when it held that it could enlar g e the filing deadline afte r the 45-day period elapse d. Durham rea sons that the state court’s attempt to do so was a nullity , so that striking the rec ord was the only appropr iate form of re lief.

Durham’s entire arg ument rests on her premise t hat i t was unconstitut io n al for the state t o dismiss her petition for judicial revie w wher e there was no administrative rec ord to revie w, wher eas the state courts held that it was the petitioner’s burden to point out flaws in the administrative revie w proce ss, which she could not do afte r she succe ssfully cause d the rec ord to be stricken. This is nothing if not a challeng e to the judgme nt of the state court that aff irmed her discharg e, b ec au se Durham alleg es that t h e s t at e co urt interpre ted the statute and applied it to her case in an unconstitutional manner . Where the plaintiff alleg es that a state court interpre ted and applied a state statute to her cas e i n an u nconstitutional manner , her complaint is an as-a pplied constitutional challeng e and is prohibited under the Rooke r-Feldman doctrine. Carter v. Burns , 524 F.3d 796, 799 (6th Cir. 2008). Second, Durham specific ally demande d that the district court (1 ) d ecla re unconstitutional the Tenne ssee APA, Tenn. Code Ann. § 4-5-101 et. seq. ; (2) enjoin enfor ceme nt of the Act; (3) “addr ess the constitutional violations that occur red and order that the defe ndant[s] vacate Ms. Durham’s discharg e and that the defe ndant[s] reinstate her” ; and (4) “re quire[] J ohn Doe and J ane Doe to pay - 9 -No. 12-5965

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Ms. Durham for all of the damag es, whether monetary , phy sical, and/or emotional, that their actions

cause d her to inc ur.” Compl. at 8. The relief that Durham r equeste d could not be g rante d without overturning the judgme nt of the state court that aff irmed her discharg e and issuing a contra ry order restoring Du rh am t o her job. And that could not occur without a frontal attack on the chanc ery court’s ruling that it is the petitioner that must prove er ro r by ref ere ncing the rec ord of the administrative proce eding s, and the ruling that the court could have enlar g ed the filing deadline afte r the initial 45-day time limit elapse d. I f Durham soug ht mere ly to overturn the Ten n es s ee s t at ute without disturbing the state court judgme nt, as she claims, then that outcome would have no eff ect on her discha

rg e. Third, contra

ry to Durham’s argument, she has not raised a claim that the defe ndants eng ag ed in independe nt acts unrela ted to the state court judgme nt, and she has not raised any viable claim that the defe ndants unlawfully procur ed that judgme nt. As the defe ndants point out, any injury Durham suffe red a s a re sult of the state cour t dismissal of her case was by her own hand, not any act of the defe ndants. The administrative rec ord in the state cour t wa s stricken at her own insistence, by a reluc tant state court chanc ellor who war ned Du rh am that without the rec ord she would have no choice but to dismiss her petition fo r re v i ew . Durham cannot maintain that the defe ndants “proc ured” a state court judgme nt when that judgme nt is nothing more than the inevitable outcome of her own ill-cons i d er ed l i t i gation strateg y . The fede ral court does not operate as a reg imental dressing station to treat self- inflicted wounds.

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Durham’s relianc e on Skinner v. Switzer , 131 S. Ct. 1289 (2011), is misplaced. I n that case

a state prisoner sued under 42 U.S.C. § 1983 alleg ing that the deni al o f p o s t conviction acc ess to biologica l evidenc e for DNA testing violated his rig hts under th e Du e P ro ce ss Clause of the Four teenth Amendment. The Supreme Court held that the complaint was not barr ed by the Rooke rFeldman doctrine, beca

use the plaintiff did not alleg e that the state courts had wrong ly interpre ted the statute or unjustly aff

irmed his conviction. Skinner , 131 S. Ct. at 1298. Rather, he arg ued that the statute was unconstitutional beca use it allowed the state to obstruct his acc ess to the evidenc e he soug ht no matter wha t the basis for that obstruction. I n Skinner , the statute direc tly g overne d the constitutional rig ht that the plaintiff soug ht to vindicate — his Four teenth Amendm e n t r ig

h t to acc ess evidenc e that he claimed might prove his innocenc e. That statute had no substantive bear ing on his criminal conviction, and finding the statute unconstitutional there fore would have no eff ect on any judgme nt of the cour

ts in which he wa s convicted a nd his conviction was af

firmed.

I n this case , unlike in Skinner , the Tenne ssee APA — at least the parts of it that Durham challeng es — does not conce rn any independe nt constitutional rig ht that the plaintiff alleg es she was denied. Durha

m does not seek a

rehe aring of her

petition for judicial re view. She wants a fede ral court to order her returne d to her job. But the Tenne ssee statute neither g rants nor denies Durham’s rig ht to be employ ed by the state; it mere ly g overns the judicial revie w of a decision by the state to discharg e her. The statute there fore has no independe nt b ea ri n g on the i njury she allege s that she suffe red, and striking it as unconstitutional would not g ive her the relief she seeks. Had the plaintiff

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in Skinner soug ht to overturn his conviction on the basis that he was denied post-conviction acc ess to DNA evidenc e, then the case would be on all fours with the fac ts he re, wher e Durham seeks not to vindicate her right to due proc ess, but to reve rse the substantive r uling of a state c ourt that held she was proper ly discharg ed by the state. The plaint i ff in Skinner alleg ed that he was denied an independe nt rig ht to explore evidenc e that might prove h i m i n n o ce nt, reg ardle ss of whether that exploration might eventua lly impact his criminal conviction. Her e, Durham has not alleg ed that she suffe red any injury o ther than the deprivation of her state j ob in the first instance, and she has not soug ht any

reme dy other than r ever sal of that alleg ed har m.
Durham also argues that the district court acte d improperly by dismiss ing her complaint on its own motion without war ning to her. She has a point. Perhaps a better prac tice would have been to i s s u e a show cause order first, direc ting the plaintiff to justify her asser tion of subject matter jurisdiction. But the Rooke r-Feldman doctrine co n c e r n s th e s u b je c t-matter jurisdiction of the district court, In re Squire , 617 F.3d 461, 465 ( 6th Cir. 2010), and “fede ral courts have a dut y to consider their subject matter jurisdiction in reg ard to ever y case and may raise the issue sua sponte ,” Answers in Genesis of Kentucky

, Inc. v. Creation Ministries Int’l, L td. , 556 F.3d 459, 465 (6th Cir. 2009). Moreove r, the plaintiff had the opportunity to a ssert her arguments in he r post-dismiss al motions. We f ind no reve rsible err or in the proce dure used by the district c ourt under the se circ umstances.

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We conclude that the district court corre ctly deter mined that it did not have subje ct matter jurisdiction over the complaint Durham initially filed. Nor did the district court err by denying the motion for rec onsideration.

B.

Durham also argues that the district court err ed by ref using to vaca

te its dismiss al order and allow Durham to file an amende d complaint. She contends that she had a rig ht to file an amende d complaint even afte r the court dismiss ed her case b ec au s e Fe dera l Rule of Civil Procedur e 15(a) (1)( B) g ives a plaintiff the rig ht to amend within 21 day s afte r service of a responsive pleading , and the defe ndants never answe red her complaint. She also argues that the district court should not have assumed t hat her amendment would have been futile and ins tead should have “orde r[ed] her to tell it how she [ should] amend he r complaint.” A ppellant’s B r. at 38. First, Durham is wrong on the time limit ations in Rule 15. I n her citation to Rule 15(a) (1), she omits the lang uag e of subsection 15(a) (1)( A), which limit s to 21 day s afte r service the time for amendment as a matter of co u rs e, ev en in the absenc e of the service of a responsive pleading

. Moreove r, Durham’s argument ignor es the fac t that judgme nt was enter ed befor e she moved to amend her complaint. “When a party seeks to amend a complaint afte r an adver se judgme nt,
. . . the [party ] must meet the require ments for reope n i n g a ca s e established by [Feder al] Rules [of Civil Procedur e] 59 or 60.” Leisure Caviar, LLC v. U.S. Fish and W ildlif e Servic e , 616 F.3d 612, 616 (6th

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Cir. 2010); see also Morse v. McW horter , 290 F.3d 795, 799 (6th Cir. 2002) (citations omitted). She has not satisfied those re quirements her e.
S ec o n d , althoug h the di strict court did not elabor ate on its rea sons for deny ing the motion to amend, it is evident that it did so because Durham sug g ested no wa y in which she c ould amend her complaint in order to state a claim that would not be barr ed under the Rooke r-Feldman doctrine. Although Durham sa id tha t she could “fix” the problem, the district c ourt was under no obligation to take her word for it. Durha m herse lf should have sug g ested some plausible fix

. The district court must have conclude d, as do we , that there is no set of fac ts that Durham could plead that would support a viable claim, beca use the relief she demands — reve rsal of the s t at e ch an ce ry court’s decision aff

irming her discharg e and an order for the defe ndants to r estore her job — is that which the lower fede ral c ourts cannot g ive her . No ruling on the constitutionalit y of the Tenne ssee APA could acc omplish that end u n l es s it also was acc ompanied by an order vacating the state court judgme nt, and that is exactly the outcome that Rooke r-Feldman prohibits.

I I I

.
For these re asons, the district cour t judgment is AF F IRMED

.

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