Not For Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 04-1058

LINDA L. ELLISON,

Plaintiff, Appellant,

v.

DAVID BROCK, CHIEF JUSTICE, NEW HAMPSHIRE SUPREME COURT,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

Boudin, Chief Judge,

 Selya and Lynch, Circuit Judges.

Linda L. Ellison on brief pro se.

Daniel J. Mullen, Associate Attorney General, on brief for

appellee.

June 21, 2004
1Under that doctrine, articulated by the United States Supreme

Court in District of Columbia Court of Appeals v. Feldman, 460 U.S.

462 (1983), and Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923),

federal district courts lack appellate jurisdiction to review

state-court decisions. 

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Per Curiam. The pro se plaintiff in this case asked the

district court to order the defendant Chief Justice of the New

Hampshire Supreme Court to vacate orders declining plaintiff's

appeal to that court. As grounds for that relief, plaintiff

alleged that one of the other state Supreme Court justices (Justice

Broderick) who participated in the decision to decline her appeal

formerly represented the defendant University of New Hampshire in

other matters. Plaintiff also asked the district court to award

damages against the Chief Justice because he allegedly "allowed"

Justice Broderick to participate in the case. 

The district court dismissed plaintiff's claims as barred

by the Rooker-Feldman doctrine1 and by absolute judicial immunity.

Having reviewed de novo the district court's allowance of

defendant's motion to dismiss, "keeping in mind that a complaint

may be dismissed for failure to state a claim "'only if it is clear

that no relief could be granted under any set of facts that could

be proved consistent with the allegations,'" Pena-Borrero v.

Estremeda 365 F.3d 7, 11 (1st Cir. 2004) (citations omitted), we

affirm the dismissal on Rooker-Feldman grounds, without reaching

the judicial immunity ground also relied on by the district court.
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After judgment, plaintiff moved for reconsideration of

the dismissal. As grounds for that motion, in addition to arguing

that the court had erred in granting the motion to dismiss,

plaintiff claimed, for the first time, that the district court

judge, Judge McAuliffe, was disqualified from deciding the case.

In support of that claim, plaintiff alleged that Judge McAuliffe

had served as a trustee of the University of New Hampshire at the

time that the university decided to purchase the land that was the

subject of plaintiff's state-court homestead claim. The district

court denied that motion. We decline to vacate the district

court's judgment because any error in declining to recuse was

harmless.

Motion to Dismiss

As the district court stated, "[T]o the extent plaintiff

seeks relief in the nature of a 'reversal' or 'vacation' of orders

entered in her state litigation by the New Hampshire Supreme Court,

[the district court was] without jurisdiction to consider her

claim." See Hill v. Town of Conway, 193 F.3d 33, 40 (1st Cir. 1999)

(finding Rooker-Feldman doctrine applicable where the relief sought

"'would, if granted, effectively void the state court's judgment'"

(citation omitted)). Here, the injunctive relief plaintiff sought

from the district court–"to vacate all orders in regard to

[plaintiff's appeal] and issue new orders with only qualified

justices participating in the decision,"–"would, if granted,
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effectively void the state court's judgment." That relief is

therefore clearly barred by Rooker-Feldman. 

For the same reasons, plaintiff's claim for damages is

also barred. The premise of plaintiff's damage claim is that the

New Hampshire Supreme Court was incorrect in denying plaintiff's

various motions for relief from judgment based on the alleged

disqualification of Justice Broderick. Therefore, the district

court "could not give the [plaintiff] the relief [she] seek[s]

without in effect reviewing and reversing the [New Hampshire]

court," Newman v. Indiana, 129 F.3d 937, 942 (7th Cir. 1997), which

Rooker-Feldman forbids. Id.; see also Wilson v. Shumway, 264 F.3d

120, 121, 126 (1st Cir. 2001) (affirming dismissal of damages claims

under Rooker-Feldman).

Motion for Reconsideration Based on Judge McAuliffe's Alleged

Disqualification

In support of her recusal request, plaintiff alleged

that: (1) in 1993, as a trustee of the University of New Hampshire,

Steven McAuliffe "spoke very much in favor" of acquiring certain

land known as Leawood Orchards "and encouraged the other trustee[s]

to do so," and (2) Leawood Orchards is the property that was the

subject of plaintiff's state-court homestead claim. Some of these

allegations are supported] by minutes of a Board of Trustees'

meeting, which indicate that "Trustee McAuliffe asked for

reconsideration of the proposal for UNH to acquire the Leawoods

Orchards property" and that Trustee McAuliffe spoke in favor of
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acquiring the property. However, the record contains no evidence

as to, among other things, whether plaintiff had claimed a

homestead interest in that property at that time, whether Trustee

McAuliffe was aware of any such interest when he spoke in favor of

acquiring the property or at any time thereafter, or whether Judge

McAuliffe was still a trustee at the time he presided over

plaintiff's case.

We need not resolve this issue because, "[a]s in other

areas of the law, there is surely room for harmless error committed

by busy judges who inadvertently overlook a disqualifying

circumstance." Liljeberg v. Health Servs. Acquisition Corp., 486

U.S. 847, 862 (1987). "Although § 455 defines the circumstances

that mandate disqualification of federal judges, it neither

prescribes nor prohibits any particular remedy for a violation of

that duty." Id.

Here, even if we were to assume, without deciding, that

Judge McAuliffe should have recused himself, we would not vacate

the district court's judgment now. The purely legal questions that

Judge McAuliffe decided here called for no exercise of discretion

on his part and are subject to plenary review by this Court. In re

Sch. Asbestos Litig., 977 F.2d 764, 787 (3rd Cir. 1992)

(characterizing failure to recuse as "harmless error when a court

of appeals will later review a ruling on a plenary basis"). As
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discussed above, our plenary review of Judge McAuliffe's denial of

plaintiff's motion to dismiss revealed no error.

 Under these circumstances, vacating the judgment and

remanding this case for reconsideration by another district court

judge would be unfair to the defendant and unduly burden the

district court without any benefit. For those reasons, we decline

to vacate the district court judgement based on plaintiff's

recusal claim.

The grant of plaintiff's motion to dismiss and the denial

of her motion for reconsideration are affirmed.