                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit Rule 206
                                  File Name: 09a0043p.06

               UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                _________________


                                                X
                                                 -
 ROBERT C. MARKS, SR.,
                                                 -
                             Plaintiff-Appellant,
                                                 -
                                                 -
                                                     No. 08-5042
           v.
                                                 ,
                                                  >
                                                 -
                                                 -
 STATE OF TENNESSEE and the
                                                 -
 ADMINISTRATIVE OFFICE of the STATE
                                                 -
 COURTS,
                      Defendants-Appellees. -
                                                N
                  Appeal from the United States District Court
                for the Middle District of Tennessee at Nashville.
              No. 06-01208—William J. Haynes, Jr., District Judge.
                              Submitted: October 29, 2008
                         Decided and Filed: February 10, 2009
            Before: BATCHELDER, CLAY, and SUTTON, Circuit Judges.

                                  _________________

                                       COUNSEL
ON BRIEF: Robert C. Marks, Sr., Spring Hill, Tennessee, for Appellant. David E. Coenen,
OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for
Appellee.
                                  _________________

                                       OPINION
                                  _________________

        ALICE M. BATCHELDER, Circuit Judge. Robert Marks appeals a district court
order that dismissed his complaint for lack of jurisdiction on the basis of Rooker-Feldman.
For the reasons that follow, we REVERSE and REMAND for further proceedings consistent
with this opinion.




                                            1
No. 08-5042            Marks v. State of Tennessee, et al.                               Page 2


                                                 I.

           Marks claims that during the litigation in state court of an attorney malpractice case
in which he was the defendant, the State of Tennessee (i.e., a trial court judge) and the
Tennessee Administrative Office of the Courts (AOC) discriminated and retaliated against
him because of his disability. In the case that begot the malpractice case (that, in turn, begot
the present case), a man named John Atkins had hired Robert Marks, then a practicing
attorney, to sue a putatively negligent driver for damages resulting from an auto accident that
had killed Atkins’s wife and injured his three children. But Marks negligently allowed the
statute of limitations to expire without filing the suit. In July 2001, Atkins sued Marks in the
Montgomery County, Tennessee, Circuit Court, claiming attorney malpractice, and, in June
2002, that court granted Atkins a default judgment, which Atkins was initially unable to
collect.

           Marks is disabled — he has diabetes, diabetic neuropathy, multiple sclerosis,
lymphedema, a constricted esophagus, and Liddle’s Syndrome, and his right leg and one toe
on his left foot have been amputated. The Tennessee Supreme Court suspended his law
license in December 2002, due in part to his disability. Marks is a “qualified individual with
a disability” and no one has suggested otherwise.

           In May 2003, Atkins petitioned the state court to enforce a judgment lien against
certain of Marks’s property, specifically the assets of three spendthrift trusts of which Marks
was beneficiary. Marks defended the claim himself and, due to his declining medical
condition — which included hospital stays for amputations and resulting complications —
he sought to delay the proceedings several times. When seeking these delays, however,
Marks did not move the court for continuances (as an attorney ordinarily would); instead,
Marks would fax a “Request for Modification” (RFM), pursuant to the Tennessee judiciary’s
ADA policy, to the AOC, which is the agency charged with administering the courts’ ADA
policy. Marks claimed that a “reasonable accommodation” for his disability would be
additional time to prepare, and asked that the “setting or occurrence of the hearing[s] be
conditioned on [a] medical release by [his] two [] treating physicians.” The AOC refused
to modify the judge’s calendar, but did inform the judge of the requests. The judge
admonished Marks and directed him to move for continuances rather than filing RFMs with
No. 08-5042            Marks v. State of Tennessee, et al.                                           Page 3


AOC, but nonetheless granted Marks a continuance every time he filed an RFM. The AOC
therefore rejected Marks’s complaints that he was not receiving the reasonable
accommodation that he was due.

         Eventually, after “numerous procedural delays in this matter due to Defendant
Marks’[s] inability to participate and the obligation of the court to make accommodations
to allow him to do so,” the court granted Atkins’s petition to open the spendthrift trusts in
order to satisfy the judgment, and Marks appealed to the state appellate court. One of
Marks’s 18 issues on appeal was: “Whether the trial court erred in holding that the
Americans with Disabilities Act and the procedures under Tenn. S. Ct. Rule 45 did not apply
to trial courts except in cases involving physical barriers and auxiliary aids.” While that
appeal was pending, Marks sued the State and the AOC in federal district court, claiming
discrimination and retaliation on the basis of his disability.

         In the district court, the defendants moved to dismiss Marks’s complaint on the basis
that it was barred by the Rooker-Feldman doctrine. The defendants argued that because
Marks’s complaint challenged the trial court’s refusal to allow him to use RFMs, rather than
continuances, to delay the proceedings (despite the fact that the trial court had actually
                                                                                             1
granted him every request), and because that challenge could be (and had been ) appealed
to the state appellate court, the federal law suit was, in effect, an attempt to have the
federal court review and remedy the state trial court’s judgment — an action that is


         1
          Since Marks’s filing of this appeal and the parties’ submission of their briefs, the Tennessee
appellate court has ruled on Marks’s state-court appeal. The court addressed this particular issue in a
perfunctory fashion:
         On appeal, [Marks] raises the following issue:
                  Whether the trial court erred in holding that the Americans with
                  Disabilities Act and the procedures under Tenn. S. Ct. R. 45 did not
                  apply to trial courts except in cases involving physical barriers and
                  auxiliary aids.
         [Marks’s] entire argument on this issue is as follows:
                  The trial court so held by Order entered January 6, 2006. This is
                  error because under the Judicial ADA Policy enacted pursuant to
                  Rule 45, the ‘Judicial Branch shall conduct its services, programs or
                  activities, when viewed in their entirety, in a matter that is readily
                  accessible to and useable by qualified individuals with disabilities.’
         (Citations to record omitted). After reviewing the record in light of the above argument,
         we conclude that this issue is without merit.
Atkins v. Marks, No. M2006-02514-COA-R3-CV, 2008 WL 2415466, *15 (Tenn. Ct. App., June 11,
2008).
No. 08-5042        Marks v. State of Tennessee, et al.                              Page 4


expressly prohibited by the Rooker-Feldman doctrine. The district court agreed with the
defendants and dismissed Marks’s complaint, explaining:

              In essence, in this action, [Marks] alleges that the trial judge
       improperly scheduled proceedings without due regard for his medical
       condition. On one occasion, by facsimile, [Marks] sent a request for
       modification to the Administrative Office of the Courts, citing his
       medical problems and requesting a continuance.
               In more recent developments, in March 2006, the trial judge
       continued the April 13, 2006 hearing due to [Marks]’s medical condition.
       According to his complaint, ‘[Marks] filed a Request for Modification on
       June 26, 2006, to split the remaining proof on the merits in Atkins v.
       Marks into hearings not lasting an entire day.’ The trial judge bifurcated
       the hearing into two three-hour sessions on June 30, 2006[,] and July 13,
       2006. On October 16, 2006, the state trial court entered its judgment
       against [Marks].
               After the entry of the judgment, [Marks] appealed to the
       Tennessee Court of Appeals[,] challenging the trial judge’s orders
       granting continuances. One of the appellate issues is ‘Whether the trial
       court erred in holding that [the] Americans with Disabilities Act and the
       procedures under Tenn. [S.] Ct. Rule 45 did not apply to trial courts
       except in cases involving physical barriers and auxiliary aids.’
               In sum, [Marks] seeks federal judicial review under the ADA of
       the trial judge’s orders and rulings on continuances. Th[is] [c]ourt
       concludes that the Rooker-Feldman doctrine applies here. The Sixth
       Circuit recently described this doctrine as applicable to
               ‘cases brought by state-court losers complaining of
               injuries caused by state-court judgments rendered before
               the district court proceedings commenced and inviting
               district court review and rejection of those judgments.’
               The dispositive question regarding the jurisdictional
               issue, then, is whether the decision denying [the
               appellant] admission to practice law in Ohio was a
               state-court judgment for purposes of the Rooker-Feldman
               doctrine.
       Raymond v. Moyer, [501 F.3d 548, 551 (6th Cir. 2007)] (quoting Exxon
       Mobil Corp. [v. Saudi Basic Industries Corp.], 544 U.S. 280, 284
       (2005)[ ) ].
                Here, [Marks]’s pending state court appeal reflects that [Marks]
       ha[d] a [] state court judgment rendered against him prior to his filing
       [of] this action. [Marks] is presenting his ADA claims to the Tennessee
No. 08-5042         Marks v. State of Tennessee, et al.                                Page 5


        Court of Appeals and to this [c]ourt. Whether the trial judge correctly
        ruled on continuances in [Marks]’s state court action case [sic] is an issue
        for the Tennessee appellate courts.
                Thus, th[is] [c]ourt concludes that the Rooker-Feldman doctrine
        applies here and the Defendant[s’] motion to dismiss is GRANTED.
JA 36-37 (citations omitted). Marks filed a Motion to Alter or Amend the Judgment,
which the district court denied. Marks timely appealed.

                                             II.

        We review de novo a district court’s ruling that the Rooker-Feldman doctrine
precludes subject matter jurisdiction. Gilbert v. Ferry, 401 F.3d 411, 416 (6th Cir.
2005). “While [we] generally review[] the denial of a Rule 59(e) motion to alter or
amend a judgment for an abuse of discretion, [we apply] a de novo standard of review
[] when the Rule 59(e) motion seeks review of a grant of summary judgment.” Cockrel
v. Shelby County School Dist., 270 F.3d 1036, 1047 (6th Cir. 2001). Because we find
it appropriate to apply this same approach to the review of the denial of a Rule 59(e)
motion that results in a jurisdictional bar on Rooker-Feldman grounds, we review both
of the district court’s rulings de novo.

        Under the Rooker-Feldman doctrine, “lower federal courts are precluded from
exercising appellate jurisdiction over final state-court judgments.” Lance v. Dennis, 546
U.S. 459, 463 (2006); see Dist. of Columbia Ct. of App. v. Feldman, 460 U.S. 462, 476
(1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923). But the Rooker-
Feldman doctrine is also limited. It does not apply to parallel state and federal litigation.
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 292 (2005). And it “has
no application to judicial review of executive action, including determinations made by
a state administrative agency.” Verizon Md. Inc. v. Pub. Serv. Comm’n, 535 U.S. 635,
644, n.3 (2002).

        Here, the district court accepted the defendants’ contention that Marks sought
“federal judicial review under the ADA of the [state court] trial judge’s orders and
rulings on continuances,” and that Rooker-Feldman barred the action because Marks was
No. 08-5042         Marks v. State of Tennessee, et al.                              Page 6


“presenting [equivalent] ADA claims to the Tennessee Court of Appeals and to th[e]
[district] [c]ourt.” We conclude that neither the district court’s description of the claim
nor its Rooker-Feldman analysis is correct.

        In actuality, Marks’s claim to the district court (and to this court on appeal) is
that, as a qualified individual with a disability, he is entitled to reasonable
accommodation, and, in this case, a reasonable accommodation would be to allow him
to stay the court proceedings by faxing an RFM to the OAC (rather than moving the
court for a continuance via an actual appearance or a filing at the courthouse) and to
maintain that stay until his treating physicians had given him a medical release to
proceed. Marks does not claim that he was injured by the court’s rulings on the
continuances (nor could he, inasmuch as the court granted every continuance), but
instead claims that he was injured by: (1) his having to file the continuances (rather than
the faxes) at all and to engage in this dispute with the court and the OAC about this
accommodation while in his weakened and disabled condition; (2) the court’s and the
OAC’s refusal to stay the proceedings (indefinitely) pending his doctor’s release (i.e.,
their refusal to grant him his preferred “reasonable accommodation”); and (3) the court’s
and the OAC’s failure to post the ADA signs in the court house, as required by the ADA.
As a remedy, Marks seeks damages, based on his pain and suffering from these three
alleged harms.

        To be sure, Marks filed a direct appeal in the state appellate court in which he
claimed that the trial court had erred by holding that the ADA and Tennessee Supreme
Court Rule 45 did not allow the use of RFMs to continue the proceedings. And, the
present claim — being essentially a claim that he was entitled to the reasonable
accommodation of obtaining a stay of the proceedings by faxing an RFM — is a similar
claim of error. But this claim involves different defendants, states a different injury, and
seeks a different remedy. Furthermore, as a claim presented to the state appellate court,
this claim was wholly meritless. That is, even if the state trial court erred by refusing
to allow Marks to stay the proceedings by use of the RFM, the court nonetheless
continued the proceedings every time Marks requested a stay, and therefore any error
No. 08-5042        Marks v. State of Tennessee, et al.                            Page 7


affecting Marks under that formulation was clearly harmless. The present case, on the
other hand, is an ADA claim for damages and, even if the state-court claim could be
deemed an ADA claim for damages (which is not likely), these are merely parallel
actions, to which Rooker-Feldman does not apply. See Exxon Mobil, 544 U.S. at 292.
Similarly, Rooker-Feldman does not apply to judicial review of the OAC’s actions —
the actions of a state administrative agency. See Verizon, 535 U.S. at 644.

       The defendants contend that even if we disagree with the district court’s Rooker-
Feldman ruling we should affirm on other grounds, namely that Marks has failed to set
out a prima facie case of disability discrimination or retaliation. But our review of the
record (and of the issues, properly framed) leads us to conclude that material factual
issues may be in dispute and we must afford the trial court the first opportunity to rule
on those arguments.

                                           III.

       For the foregoing reasons, we REVERSE the district court’s dismissal of the
case for lack of jurisdiction and REMAND for further proceedings consistent with this
opinion.
