In the

United States Court of Appeals

For the Seventh Circuit

Nos. 09-8046 & 09-8047

SANDRA BERGQUIST,

Plaintiff-Respondent,

v.

MANN BRACKEN, LLP, and

FIA CARD SERVICES, N.A.,

Defendants-Petitioners.

Petitions for Leave to Appeal from the

United States District Court for the

Northern District of Illinois, Eastern Division.

No. 09 C 5056—Harry D. Leinenweber, Judge.

SUBMITTED DECEMBER 22, 2009—DECIDED JANUARY 26, 2010

Before EASTERBROOK, Chief Judge, and BAUER and

ROVNER, Circuit Judges.

EASTERBROOK, Chief Judge. Sandra Bergquist borrowed

money on a credit card issued by FIA Card Services

(formerly known as MBNA American Bank). The bank

hired Mann Bracken, a law firm, to collect the debt. Mann

Bracken invoked the arbitration clause of the credit-card

contract. The National Arbitration Forum rendered an
2 Nos. 09-8046 & 09-8047

award against Bergquist, and a state court in Illinois

entered a judgment enforcing that award.

Bergquist believes that the National Arbitration Forum

and Mann Bracken secretly are under common control,

which if true could vitiate the award (that would depend

on whether the arbitrators were chosen and compensated).

She asked the state judge to set aside the judgment enforcing the award; without saying why, the judge did so,

and the case was dismissed without prejudice. Bergquist

also filed an independent suit seeking relief on behalf of

a class of all persons whose disputes have been

arbitrated by the National Arbitration Forum when

Mann Bracken represented the creditor. Before the state

court could act, defendants removed it to federal court

under the Class Action Fairness Act of 2005, 28 U.S.C.

§§ 1332(d), 1453. The proposed class includes more

than 100 persons, the defendants include citizens of states

other than Illinois (FIA is a national bank with its headquarters in Delaware, and Mann Bracken has partners

in many states), and the notice of removal asserts that

the stakes exceed $5 million.

The district court did not find fault with any of these

jurisdictional allegations. But it remanded the case nonetheless, concluding that the Rooker-Feldman doctrine

prevents federal adjudication of any claim that seeks to

invalidate judgments entered by state courts. Mann

Bracken and FIA Card Services filed petitions for

appellate review under §1453(c). We grant those

petitions and, because the papers already on file cover

the essential arguments, we resolve the appeals sum-
Nos. 09-8046 & 09-8047 3

marily. The absence of class certification is no obstacle

to jurisdiction in either the district court or this court. See

Cunningham Charter Corp. v. Learjet Inc., No. 09-8042

(7th Cir. Jan. 22, 2010).

The Rooker-Feldman doctrine takes its name from

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

of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).

Those decisions hold that only the Supreme Court of the

United States may set aside a state court’s decision in

civil litigation. The lack of any civil analog to 28 U.S.C.

§2241 or §2254 means that federal district judges may

not entertain collateral attacks on state judges’ decisions.

If a state court fails to rectify an injury that predates

the state litigation, then a federal suit about those extrajudicial events is possible—though it may be blocked

by doctrines of issue or claim preclusion. See 28 U.S.C.

§1738. But if the state court’s decision causes the federal

plaintiff’s injury, then review is limited to the state’s

own appellate judiciary, with the possibility of review by

the Supreme Court once the state has made its final

decision. 28 U.S.C. §1257(a). See Exxon Mobil Corp. v.

Saudi Basic Industries Corp., 544 U.S. 280 (2005); GASH

Associates v. Rosemont, 995 F.2d 726 (7th Cir. 1993).

The petitions for leave to appeal question whether the

Rooker-Feldman doctrine applies to proceedings under

the Class Action Fairness Act. It does. The Act expands

federal jurisdiction to cover large-stakes class actions

with minimal diversity of citizenship. It amends §1332,

which creates jurisdiction in diversity cases, without

changing the nature of that jurisdiction to permit collateral
4 Nos. 09-8046 & 09-8047

review of state-court decisions. Nothing in the 2005 Act

so much as hints at allowing federal district judges to

review state-court decisions—other than the interlocutory

steps taken in the same case before its removal, a power

that the federal court enjoys no matter the source of

authority for removal. The Rooker-Feldman doctrine was

originally stated as a limitation on federal-question jurisdiction under 28 U.S.C. §§ 1331 and 1343; today no one

doubts that it is equally applicable to diversity litigation.

See Exxon Mobil, 544 U.S. at 291; Downs v. Westphal, 78

F.3d 1252, 1256 (7th Cir. 1996). It therefore applies as

well to suits in which federal jurisdiction rests on the

2005 Act’s extension of diversity jurisdiction.

The problem with the district court’s decision is not that

it applies the Rooker-Feldman doctrine to a suit removed

under §1453, but that the doctrine does not apply to

Bergquist’s claim. She is no longer a state-court loser; the

state judiciary itself vacated its decision enforcing the

arbitration award. The state court’s order dismissing the

action without prejudice restores the parties to the

position they occupied before FIA Card Services filed

suit. Any injury comes from the award itself, and the

Rooker-Feldman doctrine does not apply to arbitral awards.

Federal as well as state courts are empowered to review

and enforce, or set aside, decisions rendered by private

arbitrators. See 9 U.S.C. §§ 1–16. And when injuries

created by the process of arbitration are redressable in

damages, federal courts are competent to act—provided

that the diversity and amount-in-controversy requirements

are met. See Vaden v. Discover Bank, 129 S. Ct. 1262 (2009)

(discussing how the jurisdictional rules work for disputes

that entail arbitration).
Nos. 09-8046 & 09-8047 5

The district court recognized that the Rooker-Feldman

doctrine does not apply to Bergquist’s claim. It remanded

the suit nonetheless because Bergquist seeks relief on

behalf of persons who lost in state court when judges

confirmed arbitral awards adverse to their interests.

Bergquist wants those decisions vacated, which would

indeed be incompatible with the Rooker-Feldman doctrine. The district judge thought that only a state

court could resolve the whole dispute, so it remanded

the whole case.

Federal law does not permit a district judge to

remand the complete litigation just because portions

belong in state court. Judges must exercise the jurisdiction they have been given and may not adopt commonlaw rules that prefer state over federal adjudication

of claims that are within the jurisdiction defined by

Congress. See Thermtron Products, Inc. v. Hermansdorfer, 423

U.S. 336 (1976). If some parts of a single suit are

within federal jurisdiction, while others are not, then the

federal court must resolve the elements within federal

jurisdiction and remand the rest—unless the balance can

be handled under the supplemental jurisdiction. See 28

U.S.C. §§ 1367(c)(3), 1441(c). See also Carlsbad Technology,

Inc. v. HIF Bio, Inc., 129 S. Ct. 1862 (2009); Carnegie-Mellon

University v. Cohill, 484 U.S. 343 (1988). Because of the

Rooker-Feldman doctrine, the balance of this suit cannot

be resolved in federal court, but the need to remand

some of it does not entail a power to remand all.

The district judge may have been thinking along the

lines of Colorado River abstention. See Colorado River Water

Conservation District v. United States, 424 U.S. 800 (1976).
6 Nos. 09-8046 & 09-8047

The Court held in Colorado River that, when a state is

conducting an in rem procedure that the federal tribunal

cannot replicate, a district judge should abstain so that

all parties and claims will be before the state court.

The issue in Colorado River was water rights in an appropriation state. Colorado has a procedure for adjudicating

competing claims to the same flows, and, because allocation is a zero-sum game (a court cannot increase

the amount of water in a drainage system), only a single

forum can avoid the risk of inconsistent decisions

about rights in the water. Colorado River abstention is not

a good fit for Bergquist’s complaint, not only because

credit-card-debt arbitration is not an all-or-none proceeding for all borrowers, but also because Illinois

does not guarantee that similar claims throughout the

state will be assigned to a single judge. The potential

for inconsistency in allowing a federal judge to consider

one group of borrowers’ arguments, while a different

group litigates in state court, is no worse than the

potential for inconsistency if one group of borrowers

sues in Rockford and another in Springfield.

Actually it is not clear that the district judge needs

to remand any claims in this suit. True, the federal court

lacks jurisdiction to vacate a state court’s judgments.

But there would be no occasion for such a remedy if the

class were suitably defined. There are at least three potential subclasses of persons whose debts were determined

by the National Arbitration Forum when Mann Bracken

represented the creditor: (1) persons who lost in state

court (award confirmed), (2) persons who won in state

court (award set aside), and (3) persons who have

neither won nor lost (because, for example, the creditor
Nos. 09-8046 & 09-8047 7

never asked a court to confirm the award, or a suit

ended without a conclusive resolution). Bergquist is in

the third subclass, while only the first presents a RookerFeldman problem. Federal courts do not certify “across-theboard” classes; the named plaintiff’s claim must be

typical of the claims held by persons being represented.

Fed. R. Civ. P. 23(a)(3); General Telephone Co. of the

Southwest v. Falcon, 457 U.S. 147 (1982). Bergquist does

not have a claim typical of state-court losers (subclass 1),

so a class definition not only can but also should be

limited in a way that avoids any Rooker-Feldman problem,

and thus avoids a need for even a partial remand.

The district court needs to determine whether more

than 100 persons would be in a properly defined class

with Bergquist as the representative, and whether the

amount in controversy exceeds $5 million. Valuation

may be difficult, because the persons in subclasses 2 and 3

have not (yet) lost anything. Even if a court were to

deem awards by the National Arbitration Forum tainted

by a conflict of interest, this would not affect the

amount that the borrowers owe; it would just complicate

the banks’ tasks of reducing their claims to judgment.

The district court has yet to consider Bergquist’s argument that the stakes of this dispute are less than

$5 million. The judgment is vacated, and the case is

remanded so that the district court can determine

whether the jurisdictional requirements of the 2005 Act

have been met and, if they have been, for the certification

of an appropriate class and decision on the merits.

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