                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                February 3, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                           FOR THE TENTH CIRCUIT




    DANIEL W. DAUWE,

               Plaintiff-Appellant,

    v.                                                  No. 09-1321
                                            (D.C. No. 1:08-cv-02481-LTB-KMT)
    G. DAVID MILLER, individually and                    (D. Colo.)
    in his capacity as judicial officer;
    JOANN L. VOGT, individually and in
    her capacity as judicial officer;
    DIANA TERRY, individually and in
    her capacity as judicial officer;
    NANCY J. LICHTENSTEIN,
    individually and in her capacity as
    judicial officer,

               Defendants-Appellees.


                            ORDER AND JUDGMENT *


Before GORSUCH and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.




*
       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. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Plaintiff Daniel W. Dauwe brought this action against Colorado District

Court Judge G. David Miller and Colorado Court of Appeals Judges Joann L.

Vogt, Diana L. Terry, and Nancy J. Lichtenstein, complaining about various

unfavorable rulings made by Judge Miller and affirmed by the appellate judges in

a state collection suit. In that suit, which arose out of Mr. Dauwe’s refusal to pay

for psychiatric services he had not consented to for his children, Mr. Dauwe

unsuccessfully asserted counterclaims for wrongful debt collection against the

collection company and third-party claims for professional negligence against the

psychiatrist. In an overlapping time frame, another state suit, over fees owed to

an arbitrator, was resolved adversely to Mr. Dauwe. The same three appellate

judges were involved and, after receiving their decision, Mr. Dauwe amended his

complaint to add two more claims against them. All defendants moved to dismiss

on numerous grounds, including the jurisdictional bars associated with the

Rooker-Feldman 1 and Younger 2 doctrines. The district court granted the motion

and Mr. Dauwe appeals. As explained below, jurisdiction over much of this case

is barred by Younger and the rest is barred by Rooker-Feldman. Accordingly, we

affirm dismissal, though we direct that it be without prejudice, and do not reach

other, non-jurisdictional deficiencies discussed by the district court.



1
      See Rooker v. Fid. Trust Co., 263 U.S. 413 (1923); D.C. Court of Appeals
v. Feldman, 460 U.S. 462 (1983).
2
      See Younger v. Harris, 401 U.S. 37 (1971).

                                         -2-
      Both Younger and Rooker-Feldman bar federal interference with state court

decision-making. For our purposes, the key difference between them lies in the

procedural stage at which the jurisdictional bar operates:

      The Rooker-Feldman doctrine . . . precludes inferior federal courts
      from reviewing the final decisions of state tribunals. See Crutchfield
      v. Countrywide Home Loans, 389 F.3d 1144, 1147 (10th Cir. 2004)
      [overruled in part on other grounds by Exxon Mobil Corp. v. Saudi
      Basic Indus. Corp., 544 U.S. 280 (2005)]. In the alternative, if the
      state-court judgment [challenged in federal court] is not final, the
      Younger abstention doctrine prevents the federal district court from
      interfering in an ongoing state proceeding. Weitzel v. Div. of
      Occupational & Prof’l Licensing of the Dep’t of Commerce of Utah,
      240 F.3d 871, 875 (10th Cir. 2001). Either way, the federal courts
      lack jurisdiction.

Hennelly v. Flor De Maria Oliva, 237 F. App’x 318, 319 (10th Cir. 2007).

      Mr. Dauwe’s pleadings clearly reflect an attempt to have the federal courts

review and invalidate rulings made in his state cases. His amended complaint

alleges that his rights to due process, equal protection, and/or access to the courts

were violated when (1) his state wrongful debt collection claims did not go to

trial; (2) his claims of professional negligence did not go to trial; (3) Judge Miller

suspended the rules of district court procedure and followed county court rules

instead; (4) Judge Miller refused to recuse himself; (5) the court of appeals held

that the Uniform Consumer Credit Code remedy invoked by Mr. Dauwe did not

apply to an arbitrator’s fee; and (6) the court of appeals wrongly concluded that

Mr. Dauwe’s appeal was frivolous, exposing him to an attorney fee award under

Colo. Rev. Stat. § 13-17-102(6). See R., Vol. 1 at 103-06. The complaint seeks

                                          -3-
“declaratory or injunctive relief, requiring Defendants to recognize [Mr. Dauwe’s]

legal rights.” Id. at 106.

      All of Mr. Dauwe’s claims are put forward in constitutional terms, but

cloaking an attack on a state court judgment in this way does not forestall

application of Rooker-Feldman or Younger. As for Rooker-Feldman, “‘a district

court cannot entertain constitutional claims attacking a state-court judgment, even

if the state court did not pass directly on those claims, when the constitutional

attack is inextricably intertwined with the state court’s judgment.’” Mann v.

Boatwright, 477 F.3d 1140, 1147 (10th Cir. 2007) (brackets omitted) (quoting

Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 286 n.1 (2005)

(further quotation omitted)). Clearly Mr. Dauwe’s constitutional claims are

inextricably intertwined with the state court judgments at which they are aimed.

Similarly for Younger, “federal courts should not interfere with state court

proceedings by granting equitable relief–such as injunctions of important state

proceedings or declaratory judgments regarding constitutional issues in those

proceedings–when a state forum provides an adequate avenue for relief.” Joseph

A. ex rel. Corrine Wolfe v. Ingram, 275 F.3d 1253, 1267 (10th Cir. 2002)

(quotation omitted). As a general matter, “Colorado law does not bar [federal

constitutional] claims,” Crown Point I, L.L.C. v. Intermountain Rural Elec. Ass’n,

319 F.3d 1211, 1215 (10th Cir. 2003), and no particular reason appears why the




                                          -4-
objections advanced here could not be given fully adequate consideration in the

state courts. 3

       It remains for us to determine which doctrine applies to which claims,

depending on the presence or absence of ongoing state proceedings. 4 The time

frame for this determination is when the federal action was filed. See Bear v.

Patton, 451 F.3d 639, 642 (10th Cir. 2006); Bettencourt v. Bd. of Registration in

Med., 904 F.2d 772, 777 (1st Cir. 1990) (citing cases). The case involving Judge

Miller giving rise to the first four claims was resolved on September 18, 2008, by

the Colorado Court of Appeals, which denied rehearing on November 6, 2008.

Mr. Dauwe did not seek review in the Colorado Supreme Court, so the proceeding

ended when the time for seeking such review expired. Bear, 451 F.3d at 642.

Under Colorado Appellate Rule 52(b)(3), that was thirty days after rehearing was

denied. Thus the state case was ongoing when Mr. Dauwe filed his original

federal complaint on November 14, and the district court correctly held that

Younger barred the four claims asserted therein.

3
      We note that the final prong of the Younger test is also satisfied here, as
important state interests are implicated and the state court rulings challenged by
Mr. Dauwe involve “matters which traditionally look to state law for their
resolution.” Crown Point I, 319 F.3d at 1215.
4
       Our resolution of the case in this respect diverges somewhat from the
district court, but we may affirm the dismissal of this action “on any grounds for
which there is a record sufficient to permit conclusions of law, even grounds not
relied upon by the district court.” Mann, 477 F.3d at 1145 (quotation omitted).
Indeed, as these matters go to the court’s lack of subject matter jurisdiction, we
are obligated to reach and resolve them as we deem proper.

                                         -5-
      The timing question is a little more complicated with respect to the claims

arising out of the second state court case. After the Colorado Court of Appeals

affirmed the trial court’s final order denying Mr. Dauwe’s motion for

post-judgment relief, the Colorado Supreme Court denied review on January 12,

2009. Ordinarily, that would mark the end of the state proceeding, triggering

application of Rooker-Feldman to Mr. Dauwe’s amended federal complaint, filed

eight days later, adding the two claims relating to the second state case. But the

court of appeals had found Mr. Dauwe’s appeal legally frivolous and remanded

for an award of attorney fees to the appellee as a sanction. Issuance of the

mandate effecting the remand did not even take place until January 30, 2009, ten

days after Mr. Dauwe amended his federal complaint in this case. While the

ongoing fee matter did not affect Rooker-Feldman’s application to the merits

judgment that became final with the denial of review by the state supreme court,

see Bear, 451 F.3d at 642 (explaining that ongoing proceedings collateral to

decision that has become final do not affect application of Rooker-Feldman to

that decision), it precludes application of Rooker-Feldman to the extent any

claims in this case are specifically directed at the fee proceeding. The sixth claim

asserted in the amended complaint does relate to the fee award and, indeed,

Mr. Dauwe followed up on that claim by moving to enjoin the state fee

proceedings. As to this part of the case, then, the Younger doctrine barred federal

interference in the ongoing state proceeding.

                                         -6-
      The Rooker-Feldman and Younger doctrines go to the jurisdiction of the

federal courts. Thus, while they mandate dismissal of the claims asserted here,

that dismissal should be without prejudice to any non-federal litigation where

they do not apply. See Chapman v. Oklahoma, 472 F.3d 747, 750 (10th Cir.

2006); see also Brereton v. Bountiful City Corp., 434 F.3d 1213, 1216, 1220

(10th Cir. 2006).

      Finally, we note that Mr. Dauwe advances a number of meritless objections

to the federal district court’s handling of this case. 5 These objections do not

affect our analysis of the controlling jurisdictional issues and do not warrant

additional particularized discussion here.

      The dismissal of this action is AFFIRMED, but we REMAND the case to

the district court with directions to modify the judgment to indicate that the

dismissal is without prejudice.

                                                     Entered for the Court



                                                     Wade Brorby
                                                     Senior Circuit Judge




5
      Mr. Dauwe even complains of the district court’s handling of a prior case
from which he took no appeal. We obviously have no jurisdiction to consider that
matter.

                                          -7-
