                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          SEP 1 2004
                           FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    SHIRLEY A. ROBERTS,

               Plaintiff-Appellant,

    v.                                                 No. 03-2054
                                            (D.C. No. CIV-01-1262 LH/WWD)
    DEBORAH HARTZ, Secretary of the                     (D. N.M.)
    New Mexico Children, Youth, and
    Families Department; MARCI
    KENNAI, Head of Child Protective
    Services for the New Mexico
    Children, Youth, and Families
    Department; JOHN and JANE DOE,
    unknown foster/adoptive parents;
    THOMAS KUKER, Special Agent in
    Charge, Albuquerque Division of the
    F.B.I.,

               Defendants-Appellees.


                           ORDER AND JUDGMENT           *




Before HENRY , MURPHY , and TYMKOVICH , Circuit Judges.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination

of this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.     1



       Pursuant to 42 U.S.C. § 1983 and certain other federal statutes enumerated

in her complaint, plaintiff-appellant Shirley A. Roberts filed a complaint seeking

declaratory and injunctive relief pertaining to custody proceedings in New Mexico

state district courts involving her granddaughter (the “Child”). To support her

claims for injunctive and declaratory relief, Roberts claimed that state and federal

officials have violated her procedural and substantive due process rights under the

Fourteenth Amendment to the United States Constitution by wrongfully depriving

her of custody of the Child.   2
                                   In addition, Roberts sought a declaratory judgment

declaring that Chapter 32A of the New Mexico Statutes (the “Children’s Code”)


1
       We previously directed the parties to file briefs addressing the
jurisdictional issue of whether Roberts filed this appeal in a timely manner.
Having considered the briefs submitted by the parties, we conclude that Roberts
filed this appeal in a timely manner. Specifically, because Roberts named an
officer of the United States as a defendant, she had sixty days to file her notice of
appeal, see Fed. R. App. P. 4(1)(B), and the sixty-day period began to run on
December 20, 2002 when the district court entered its order granting in part
Roberts’ motion for reconsideration.   See Aplt. App. at 271-75. Roberts filed her
notice of appeal within the sixty-day period as it was filed on February 18, 2003,
the sixtieth day.
2
       In her complaint, Roberts also asserted claims against defendants under the
First and Ninth Amendments, but she has abandoned those claims in this appeal.

                                             -2-
and New Mexico Children’s Court Rule 10-108 are unconstitutional. Finally,

Roberts sought mandamus relief in the form of an order directing the Federal

Bureau of Investigation to investigate and stop what she characterized as

defendants’ unlawful detention of the Child.

       The district court dismissed Roberts’ complaint under Fed. R. Civ. P.

12(b)(1) for lack of subject matter jurisdiction, concluding that: (1) the

Rooker-Feldman      3
                        doctrine bars Roberts from challenging the orders and

judgments entered in the state-court proceedings,       see Aplt. App. at 166-68; (2)

Roberts lacks standing to pursue her constitutional challenges,      id. at 168-74; and

(3) Roberts’ claim for mandamus relief against the FBI is barred by the doctrine

of sovereign immunity,       id. at 174-75. Having conducted the required de novo

review of the district court’s dismissal order,     see Kenmen Eng’g v. City of Union     ,

314 F.3d 468, 473 (10th Cir. 2002), we conclude that the district court properly

dismissed Roberts’ complaint for lack of subject matter jurisdiction. We

therefore affirm.




3
       See Rooker v. Fid. Trust Co. , 263 U.S. 413 (1923); Dist. of Columbia Ct. of
App. v. Feldman , 460 U.S. 462 (1983) (restricting federal court review of state
court proceedings).

                                             -3-
                                              I.

       In February 1997, a New Mexico district court appointed Roberts as

guardian of the Child “until further Order of this Court” (the “Guardianship

Case”), and the appointment was made with the consent of the Child’s mother

(Roberts’ daughter).    See Aplt. App. at 15. In August 1997, the Child’s mother

filed a motion in the Guardianship Case to revoke the guardianship and have

custody of the Child returned to her.     See Aplee. Supp. App. at 1-13. In October

1998, the New Mexico district court entered an order awarding the mother

primary physical custody and sole legal custody of the Child “temporarily pending

a second [advisory] opinion” which could be obtained at Roberts’ expense.      See

Aplt. App. at 46, 54. Roberts never obtained a second advisory opinion, however,

and, in July 2001, the New Mexico district court dismissed the Guardianship Case

without prejudice for failure to prosecute.         Id. at 57.

       In the meantime, following the transfer of custody back to the mother,

defendant New Mexico Children, Youth, and Families Department (“CYFD”)

obtained legal and physical custody of the Child pursuant to an order of

a New Mexico district court. In addition, the CYFD initiated judicial proceedings

to terminate the mother’s parental rights based on allegations that she was

neglecting the Child (the “Termination Case”). In March 2000, Roberts moved to

intervene in the Termination Case, and the New Mexico district court entered an


                                              -4-
interim order regarding her motion in June 2000.      See Aplee. Supp. App. at 15-16,

43. In the interim order, the court: (1) took Roberts’ motion to intervene under

advisement; (2) ordered Roberts to cooperate with the “home study process”; (3)

ordered Roberts to contact a psychologist; and (4) stated that if Roberts did not

establish a permanent residence and contact a psychologist by June 25, 2000 her

motion to intervene would be denied.     Id. at 15-16.

      In March 2001, the New Mexico district court entered an order denying

Roberts’ motion to intervene and terminating the mother’s parental rights.       Id. at

39-41. In separate adoption proceedings to which Roberts was not a party (the

Adoption Case), the Child was subsequently placed with adoptive parents, the

Doe defendants, and the Child is apparently in their custody at the present time.

                                           II.

      1. Rooker-Feldman Doctrine .

      “The Rooker-Feldman doctrine is a jurisdictional prohibition.”         Pittsburg

County Rural Water Dist. No. 7 v. City of McAlester      , 358 F.3d 694, 705 (10th Cir.

2004) (en banc). We have summarized the doctrine as follows:

      Under 28 U.S.C. § 1257, “federal review of state court judgments can
      be obtained only in the United States Supreme Court.”     Kiowa Indian
      Tribe of Okla. v. Hoover , 150 F.3d 1163, 1169 (10th Cir. 1998)
      (citing Dist. of Columbia Ct. of App. v. Feldman   , 460 U.S. 462, 476
      . . . (1983)). As a result, the Rooker-Feldman doctrine prohibits a
      lower federal court from considering claims actually decided by a
      state court, Rooker v. Fid. Trust Co. , 263 U.S. 413, 415-16 . . .
      (1923), and claims “inextricably intertwined” with a prior state-court

                                           -5-
       judgment. Feldman , 460 U.S. at 483 n. 16 . . . . In other words,
       Rooker-Feldman precludes “a party losing in state court . . . from
       seeking what in substance would be appellate review of [a] state
       judgment in a United States district court, based on the losing party’s
       claim that the state judgment itself violates the loser’s federal
       rights.” Johnson v. De Grandy , 512 U.S. 997, 1005-06 . . . (1994).

Kenmen Eng’g v. City of Union , 314 F.3d 468, 473 (10th Cir. 2002).

       To apply the “inextricably intertwined” standard, “we must ask whether the

injury alleged by the federal plaintiff resulted from the state court judgment itself

or is distinct from that judgment.”       Id. at 476 (quotation omitted). “In other

words, we approach the question by asking whether the state-court judgment

caused , actually and proximately, the          injury for which the federal-court plaintiff

seeks redress .” Id. (footnote omitted). “If it did,        Rooker-Feldman deprives the

federal court of jurisdiction; if it did not,      Rooker-Feldman provides no bar.”

Pittsburg County , 358 F.3d at 707.

       We have also recognized, however, that “the            Rooker-Feldman doctrine

should not be applied against ‘non-parties.’”           Kenmen Eng’g , 314 F.3d at 480.

       This general rule follows from Rooker-Feldman’s underlying
       premise: the doctrine prohibits suits in lower federal court that would
       be, in substance, appellate review of state-court judgments.   See
       28 U.S.C. § 1257. Because “judgments” only decide rights of
       “parties,” a person would generally have no basis (or right) to appeal
       a judgment to which that person was not a party.

Id. (footnote omitted).




                                                  -6-
       The district court concluded that the         Rooker-Feldman doctrine barred the

bulk of Roberts’ claims because she was asking the court “either to review the

decisions of the state court or order some action in contravention of the state

court’s rulings [citing Roberts’ complaint at ¶¶ A, B, D, & E], or to make rulings

on matters that are inextricably intertwined with those state court decisions [citing

Roberts’ complaint at ¶¶ C, G, H, I, & J].” Aplt. App. at 167. Having examined

Roberts’ complaint, we agree with the district court that, with the exception of the

constitutional challenges discussed below, which are exempt from the          Rooker-

Feldman doctrine, all of Roberts’ claims against the state defendants were either

actually decided in the state-court proceedings or are inextricably intertwined

with the state-court orders and judgments.

       We also reject Roberts’ argument that the district court erred in applying

the Rooker-Feldman doctrine because she was never a party to the Termination

Case. 4 Contrary to Roberts’ contentions, the fact the New Mexico district court

denied her motion to intervene in the Termination Case is not determinative of her

status in that case for purposes of the   Rooker-Feldman doctrine. Instead, the


4
       We note that Roberts is also relying on the fact that she was not a party to
the Adoption Case in order to defeat application of the    Rooker-Feldman doctrine.
See Aplt. Br. at 25. The fact that Roberts was not a party to the Adoption Case
does not affect the applicability of the  Rooker-Feldman doctrine, however, as the
Termination Case was the determinative state-court proceeding for adjudicating
Roberts’ custody rights under New Mexico law, and we conclude that she was
a party to the Termination Case for purposes of the     Rooker-Feldman doctrine.

                                               -7-
controlling factor is that Roberts attempted to intervene in the Termination Case,

and the New Mexico district court refused to allow her to intervene, concluding

that she had no right under New Mexico law to participate in the Termination

Case. See Aplees. Supp. App. at 40-41. At that point, Roberts’ only remedy in

terms of contesting the child-custody proceedings was to file an appeal regarding

the Termination Case in a New Mexico appellate court, which she failed to do.

Instead, Roberts filed a claim in the district court, in essence requesting federal

court review of a state court decision. The         Rooker-Feldman doctrine, however,

expressly forbids the district court or this court from considering claims actually

decided by a state court.    See Wright v. Tackett , 39 F.3d 155, 157 (7th Cir. 1994)

(holding that Rooker-Feldman doctrine barred plaintiff from filing constitutional

claims in federal district court relating to state-court foreclosure actions where

“[i]n essence, [plaintiff was asking] the federal district court to review the state

court’s denial of his requests to intervene in the foreclosure actions”).

       2. Constitutional Challenges.

       Although the Rooker-Feldman doctrine disposes of the bulk of Roberts’

claims against the state defendants, her challenge to the constitutionality of New

Mexico’s Children’s Code and New Mexico’s Children’s Court Rule 10-108

remains because “discrete general challenge[s]” to the constitutionality of state

laws are not barred by the    Rooker-Feldman doctrine. Johnson v. Rodrigues


                                              -8-
(Orozco) , 226 F.3d 1103, 1108-09 (10th Cir. 2000). Roberts claims that these

provisions “are facially unconstitutional to the extent that they allow the State to

refuse to surrender to one party to a domestic relations custody dispute a child

seized from the other party for abuse or neglect without filing a petition against

the noncustodial party.” Aplt. App. at 42, ¶ F. In other words, Roberts claims

that the provisions at issue are facially unconstitutional because they do not force

CYFD and the New Mexico courts to give a non-custodial party, in this case

Roberts, the first opportunity to adopt the Child following the termination of

parental rights.

       The district court concluded that Roberts lacks standing to pursue her

constitutional challenges, and the court analyzed the standing issue in terms of

Roberts’ status both as a grandmother and as an alleged guardian, concluding that,

in either capacity, Roberts does not have a fundamental right or liberty interest in

the care, custody, and control of the Child.         Id. at 168-74. Although our analysis

of the standing issue differs from the district court’s analysis, we agree with the

court’s ultimate conclusion that Roberts lacks standing to pursue her

constitutional challenges.   5
                                 See United States v. Sandoval    , 29 F.3d 537, 542 n.6


5
       With respect to Roberts’ status as an alleged guardian of the Child, the
district court found that “the record is inconclusive about what type of
guardianship relationship was created by the February, 1997 order and as to
whether that guardianship was terminated by the October, 1998 order.” Aplt.
                                                                       (continued...)

                                               -9-
(10th Cir. 1994) (stating that this court is “free to affirm a district court on any

grounds for which there is a record sufficient to permit conclusions of law, even

grounds not relied upon by the district court”).

      “Rule 12(b)(1) motions generally take one of two forms: (1) a facial attack

on the sufficiency of a complaint’s allegations as to subject matter jurisdiction; or

(2) a challenge to the actual facts upon which subject matter jurisdiction is

based.” Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002). Here, the

district court treated defendants’ Rule 12(b)(1) motion as a facial attack.

Accordingly, we presume that all of the allegations in Roberts’ complaint are true,

id., and we must determine whether the allegations, if proven, would be sufficient

to establish subject matter jurisdiction in the district court. However, “we

conduct our review mindful that the party invoking the jurisdiction of a federal

court carries the burden of proving its existence.” Murphy v. United States, 45

F.3d 520, 522 (1st Cir. 1995) (quotation omitted). Moreover, in analyzing the

standing issue de novo, “we are not bound by conclusory allegations, unwarranted




5
 (...continued)
App. at 171-72. As a result, “for the purposes of [defendants’] motion to dismiss
only, the Court presume[d] that Plaintiff was appointed as the Child’s permanent
guardian and that the guardianship was never properly terminated.”    Id. at 172.
As explained herein, we disagree with the district court’s assertion that the record
is inconclusive as to whether the guardianship was terminated by the New Mexico
district court’s October 1998 order.

                                          -10-
inferences, or legal conclusions.” Hackford v. Babbitt, 14 F.3d 1457, 1465 (10th

Cir. 1994).

         It is well established that the Fourteenth Amendment’s Due Process Clause

has a substantive component that “provides heightened protection against

government interference with certain fundamental rights and liberty interests.”

Troxel v. Granville , 530 U.S. 57, 65 (2000) (quotation omitted). It is also firmly

established that the substantive component of the Due Process Clause grants

parents a fundamental right and liberty interest in the care, custody, and control of

their children.   Id. at 65-66. In addition, the Due Process Clause contains a

procedural component, and “the procedural component . . . protects more than just

fundamental rights. It protects all liberty interests that are derived from state law

or the Due Process Clause itself.”     Mullins v. Oregon , 57 F.3d 789, 795 (9th Cir.

1995).

         In this case, Roberts is claiming that she has a liberty interest and

fundamental right to obtain custody of the Child based solely on her alleged status

as the Child’s guardian under New Mexico law, and Roberts has expressly

disavowed any reliance on her legal status as the Child’s maternal grandmother.

See Aplt. App. at 182 (stating that “Plaintiff never alleged that her grandparent

relationship with [the Child] had any bearing on this case, or either of the cases in

the two state courts”). Thus, to resolve the standing issue, we must determine


                                            -11-
whether Roberts has alleged sufficient facts to establish that she was the Child’s

guardian under New Mexico law. And the relevant time period that we must

focus on is March 2001 when the New Mexico district court denied Roberts’

motion to intervene in the Termination Case.

       We conclude that Roberts has alleged insufficient facts to support her claim

that she was the Child’s guardian at the time her motion to intervene was denied.     6



As set forth above, while Roberts was appointed as the Child’s guardian in

February 1997, that appointment was only valid “until further Order of this

Court.” Subsequently, the mother filed a motion in the Guardianship Case in

September 1997 to have the appointment revoked and custody of the Child

returned to her. In October 1998, the New Mexico district court entered an order

in the Guardianship Case transferring primary physical custody and sole legal

custody of the Child to the mother.     Id. at 46, 54. While it appears that the

transfer of custody to the mother was initially only a temporary transfer,     id. at 46,

Roberts has failed to allege any facts showing that any form of custody was ever

returned to her. In fact, it is undisputed that defendant CYFD subsequently

obtained custody of the child in the Termination Case, and that the New Mexico


6
       Because we conclude that Roberts has failed to show that she was the
Child’s guardian during the relevant time period, we need not reach the additional
question decided by the district court; namely, whether guardians have a legally-
protected interest under New Mexico law in the care, custody, and control of a
child.

                                            -12-
district court expressly granted CYFD “the authority to determine the physical

placement of the child for her safety and welfare.” Aplee. Supp. App. at 40.

       In light of these undisputed facts, we cannot accept Roberts’ conclusory

allegation that she was the Child’s guardian under New Mexico law in March

2001 when her motion to intervene in the Termination Case was denied.

Consequently, Roberts has no legal basis for asserting that she, as a guardian, was

denied a liberty interest or fundamental right in the care, custody, and control of

the Child. Although for different reasons, we thus agree with the district court

that Roberts lacks standing to pursue her constitutional challenges.    See Utah

Animal Rights Coalition v. Salt Lake City Corp.     , 371 F.3d 1248, 1255 (10th Cir.

2004) (stating that a plaintiff does not have standing under Article III of the

United States Constitution unless there has been “an invasion of a legally

protected interest”) (quotations omitted).

       3. Claims Against the FBI.

       Roberts sought mandamus relief in the district court in the form of an order

directing the FBI to investigate and stop what she characterized as New Mexico’s

unlawful detention of the Child, and she named Thomas Kuker, Special Agent in

Charge, Albuquerque Division of the FBI, as a defendant. Roberts based her




                                           -13-
claim for mandamus relief on 28 U.S.C. § 533,       7
                                                        claiming that “[t]he F.B.I. has an

affirmative duty under [§ 533] to act to investigate and to halt the ongoing

violation of federal criminal statutes . . . by Defendants Hartz and Douglas in

continuing to hold [the Child].” Aplt. App. at 38, ¶ 68. Because Roberts’ claim

for mandamus relief could be asserted against Agent Kuker only in his official

capacity, the district court concluded that Roberts was “essentially suing the

United States, which has sovereign immunity to suit unless it has consented to be

sued.” Id. at 174. Further, the court concluded that § 533 “does not contain

language that could be construed as an unequivocal waiver of sovereign immunity

for a private citizen’s legal action against Agent Kuker for electing not to

investigate a certain matter.”    Id. at 175. The court therefore determined that the

United States’ sovereign immunity barred Roberts’ claim for mandamus relief,

and the court dismissed the claim for lack of subject matter jurisdiction.        Id.

       We agree with the district court’s analysis. We also note that the sole

argument advanced by Roberts in this appeal in support of her claim for

mandamus relief is that she should be granted leave to amend her complaint to

assert a claim against Agent Kuker under 5 U.S.C. § 701.           See Aplt. Br. at 31.

Roberts’ reliance on § 701 is misplaced, however, because she failed to raise


7
      In relevant part, § 533 provides that the United States Attorney General
may appoint officials “to detect and prosecute crimes against the United States.”
28 U.S.C. § 533(1).

                                            -14-
§ 701 in the district court proceedings, and she has not articulated a reason for us

to depart from the general rule that “a federal appellate court does not consider an

issue not passed on below.”     Walker v. Mather (In re Walker)    , 959 F.2d 894, 896

(10th Cir. 1992) (quotation omitted). Moreover, regardless of whether 5 U.S.C.

§§ 701-706 provide federal district courts with jurisdiction to review actions of

federal agencies in certain administrative contexts,   8
                                                           these statutes do not provide

any basis for mandamus relief in this case. The initiation of a criminal

investigation by the FBI is a discretionary act, and the federal courts do not have

the power to grant mandamus relief with respect to discretionary acts of FBI

officers. See Jafree v. Barber , 689 F.2d 640, 643 (7th Cir. 1982). As a result, it

would be futile to grant Roberts leave to amend her complaint.

       The judgment of the district court is AFFIRMED. We also GRANT:

(1) the motion to supplement the record that Roberts filed on September 24, 2003;

and (2) the motion to add a document to the supplemental appendix that

defendants filed on October 29, 2003.

                                                       Entered for the Court


                                                       Timothy M. Tymkovich
                                                       Circuit Judge



8
       Section 701 is part of the judicial review provisions contained in the
federal Administrative Procedure Act.     See 5 U.S.C. §§ 701-706.

                                            -15-
