18-2266
Deem v. DiMella-Deem


                                   In the
                       United States Court of Appeals
                          For the Second Circuit

                                   August Term, 2019

                                Argued: August 26, 2019
                                Decided: October 30, 2019

                                   Docket No. 18‐2266



                               MICHAEL ANTHONY DEEM,

                                    Plaintiff‐Appellant,

                                             v.

  LORNA DIMELLA‐DEEM, ROBERT J. FILEWICH, PHD, ANGELINA YOUNG, ROLLIN
  AURELIEN, ROBIN D. CARTON, ESQ., FAITH G. MILLER, ANGELA DIMELLA, JANE
                 DOE, HON. ARLENE GORDON‐OLIVER, F.C.J.,

                                  Defendants‐Appellees.




                       Appeal from the United States District Court
                         for the Southern District of New York
                              No. 18‐cv‐6186, Román, Judge.



Before:      WINTER, POOLER, AND SULLIVAN, Circuit Judges.
       Plaintiff‐Appellant Michael Anthony Deem appeals the district court’s sua
sponte dismissal of his complaint, in which he claimed that Defendants – various
individuals involved in his pending divorce and child custody proceedings,
including his wife, their marriage counselor, and a family court judge – violated
his constitutional rights and New York state law. We agree with the district court
that the family court judge is entitled to judicial immunity, and we further hold
that the domestic relations abstention doctrine articulated in American Airlines, Inc.
v. Block, 905 F.2d 12 (2d Cir. 1990), applies in federal‐question cases. Accordingly,
we affirm.

      AFFIRMED.

                                 MICHAEL ANTHONY DEEM, pro se, Yonkers, NY
                                 (argued).

                                 LORNA DIMELLA‐DEEM, pro se, Briarcliff Manor,
                                 NY.

                                 BARBARA DECROW GOLDBERG, Martin Clearwater
                                 & Bell LLP, New York, NY (argued), for
                                 Defendant‐Appellee Robert J. Filewich, PhD.

                                 JOHN M. NONNA, Westchester County Attorney
                                 (Justin R. Adin, Associate County Attorney, on the
                                 brief), White Plains, NY, for Defendant‐Appellee
                                 Angelina Young.

                                 THOMAS E. HUMBACH, Rockland County
                                 Department of Law, New City, NY, for Defendant‐
                                 Appellee Rollin Aurelien.

                                 ERIN A. O’LEARY, Morgan Melhuish Abrutyn,
                                 Attorneys at Law, New York, NY, for Defendant‐
                                 Appellee Robin D. Carton, Esq.




                                          2
                               BRETT A. SCHER, Kaufman Dolowich & Voluck
                               LLP, Woodbury, NY, for Defendant‐Appellee
                               Faith G. Miller.

                               ANGELA DIMELLA, pro se, Cortlandt Manor, NY.

                               BARBARA D. UNDERWOOD, Attorney General, State
                               of New York (Judith N. Vale, Senior Assistant
                               Solicitor General, argued and on the brief, and Mark
                               H. Shawhan, Assistant Solicitor General, on the
                               brief), New York, NY, for Defendant‐Appellee Hon.
                               Arlene Gordon‐Oliver, F.C.J.

RICHARD J. SULLIVAN, Circuit Judge:

      In November 2017, Plaintiff‐Appellant Michael Anthony Deem filed for

divorce from Defendant‐Appellee Lorna DiMella‐Deem in New York State

Supreme Court, Westchester County, seeking joint custody of their two children.

The divorce gave rise to family court proceedings over which Family Court Judge

Arlene Gordon‐Oliver presided.        In the course of those proceedings, Judge

Gordon‐Oliver granted an application filed by Defendant‐Appellee Faith Miller,

who had been appointed to represent the children during the family court

proceedings, for a temporary protection order requiring Deem to refrain from any

contact with the children.

      Deem, a licensed attorney, responded by filing this suit in the Southern

District of New York against his wife, their marriage counselor, Judge Gordon‐


                                         3
Oliver, and other individuals (collectively, “Defendants”) involved in the family

court proceedings. In particular, Deem asserted claims under 42 U.S.C. §§ 1983,

1985, and New York state law, alleging, inter alia, that Defendants conspired to

maliciously prosecute him and to violate his right to intimate association with his

children. Upon the filing of Deem’s complaint, Judge Gordon‐Oliver recused

herself, adjourned an upcoming hearing to a date two months out, and transferred

the case to a different judge. Judge Gordon‐Oliver also extended the temporary

order of protection until the next court date. One week later, Deem filed an

amended complaint seeking damages against Judge Gordon‐Oliver.

      On July 24, 2018, the district court (Nelson S. Román, Judge) sua sponte

dismissed the case. Specifically, the district court concluded that Judge Gordon‐

Oliver was entitled to judicial immunity and that Deem’s claims against her were

therefore frivolous. With respect to Deem’s federal claims against the remaining

defendants, the district court declined to exercise subject matter jurisdiction,

ruling that abstention was warranted under our holding in American Airlines, Inc.

v. Block, since Deem’s claims “are, or are on the verge of being, about child

custody,” and Deem had “alleged no facts indicating that there is any ‘obstacle to

[a] full and fair determination [of his child custody issues] in state courts.’” App’x



                                          4
at 44 (alterations in original) (quoting Am. Airlines, Inc. v. Block, 905 F.2d 12, 14 (2d

Cir. 1990)).   After dismissing all of Deem’s federal claims, the district court

declined to exercise supplemental jurisdiction over his state law claims. Deem

timely appealed the dismissal of his federal claims.

                                 I. Judicial Immunity

      We affirm the dismissal of Deem’s claims against Judge Gordon‐Oliver

substantially for the reasons set forth in the district court’s well‐reasoned decision.

See App’x 40–42. In particular, the district court correctly determined that, at all

relevant times, Judge Gordon‐Oliver acted in her judicial capacity. See Mireles v.

Waco, 502 U.S. 9, 11 (1991). Furthermore, even assuming that Judge Gordon‐Oliver

erred in extending the temporary protection order against Deem shortly after

recusing herself, any such error falls far short of an act “taken in the complete

absence of all jurisdiction.” Id. at 12; see also, e.g., Brandley v. Keeshan, 64 F.3d 196,

201 (5th Cir. 1995) (holding that judicial immunity barred suit against a state court

judge who set an execution date after recusing himself), abrogated on other grounds

by Wallace v. Kato, 549 U.S. 384 (2007). Because Judge Gordon‐Oliver was thus

clearly entitled to judicial immunity, the district court did not err in sua sponte

dismissing the claims against her as frivolous. See Mills v. Fischer, 645 F.3d 176,



                                            5
177 (2d Cir. 2011) (“Any claim dismissed on the ground of absolute judicial

immunity is ‘frivolous’ for purposes of 28 U.S.C. § 1915(g).”).

                II. Domestic Relations Exception and Abstention

      With respect to Deem’s remaining federal claims, the district court abstained

from exercising subject matter jurisdiction under American Airlines. On appeal,

Deem argues that, under our subsequent decision in Williams v. Lambert, 46 F.3d

1275 (2d Cir. 1995), the domestic relations abstention doctrine does not apply in

federal‐question cases. We disagree. Although the domestic relations “exception”

to subject matter jurisdiction recognized by the Supreme Court in Ankenbrandt v.

Richards, 504 U.S. 689 (1992), does not apply in federal‐question cases, the domestic

relations abstention doctrine articulated in American Airlines does. And since

American Airlines remains good law in this Circuit, we affirm the district court’s

dismissal of Deem’s federal claims on abstention grounds.

A. Background: American Airlines (1990), Ankenbrandt (1992), and Williams (1995)

      In American Airlines, a federal‐question interpleader case, we held that the

district court erred in not abstaining from adjudicating the parties’ dispute over

the distribution of certain funds – specifically, funds corresponding to an ex‐

spouse’s maintenance obligations that had not yet been reduced to a final



                                         6
judgment in state court. 905 F.2d at 15. Before reaching the question of abstention,

we first concluded that the case did not fall within the exception to subject matter

jurisdiction recognized in Barber v. Barber, 62 U.S. (21 How.) 582, 584 (1859). Id. at

14. That was so, we explained, because the Barber exception applied “only where

a federal court is asked to grant a divorce or annulment, determine support

payments, or award custody of a child” – in other words, a “rather narrowly

confined” set of disputes not present in American Airlines. Id. (internal quotation

marks and citation omitted). We also noted that the exception might not apply in

federal‐question cases, but declined to resolve that issue. Id. at 14 n.1. Proceeding

to the question of abstention, we then explained:

       Nevertheless, even if subject matter jurisdiction lies over a particular
       matrimonial action, federal courts may properly abstain from
       adjudicating such actions in view of the greater interest and expertise
       of state courts in this field. A federal court presented with
       matrimonial issues or issues “on the verge” of being matrimonial in
       nature should abstain from exercising jurisdiction so long as there is
       no obstacle to their full and fair determination in state courts.

Id. at 14 (quoting Bossom v. Bossom, 551 F.2d 474, 475 (2d Cir. 1976) (per curiam);

Phillips, Nizer, Benjamin, Krim & Ballon v. Rosenstiel, 490 F.2d 509, 516 (2d Cir. 1973)).

Because the parties’ dispute over certain maintenance funds was, at a minimum,

on the verge of being matrimonial in nature, and since there was no obstacle to the



                                            7
full and fair determination of that dispute in state court, we concluded that the

district court should have abstained from exercising jurisdiction over it. See id. at

14–15.

         Two years later, in Ankenbrandt, the Supreme Court reaffirmed the existence

of the jurisdictional exception recognized in Barber. 504 U.S. at 699–704. The Court

first held that the domestic relations exception was not of constitutional

dimension, but rather was an implied exception to Congress’s grant of diversity

jurisdiction in 28 U.S.C. § 1332. Id. at 696, 700–03. The Court further held,

consistent with American Airlines, that the exception did not apply because the

plaintiff’s tort suit for damages, alleging child abuse against her ex‐husband and

his female companion, did not “involv[e] the issuance of a divorce, alimony, or

child custody decree.” Id. at 704. Finally, the Court concluded that abstention was

not appropriate under Younger v. Harris, 401 U.S. 37 (1971), because there were no

pending state court proceedings, or under Burford v. Sun Oil Co., 319 U.S. 315

(1943), because the “status of the domestic relationship ha[d] been determined as

a matter of state law, and in any event ha[d] no bearing on the underlying torts

alleged.” Id. at 705–06.




                                          8
      The following year, in Williams, we considered an Equal Protection Clause

challenge to a New York law that allegedly discriminated against children born

out of wedlock. 46 F.3d at 1277. After concluding that various other abstention

doctrines did not apply, we stated, without elaboration, that “the general policy

that federal courts should abstain from deciding cases that involve matrimonial

and domestic relations issues” likewise did not apply. Id. at 1281–83. The Williams

decision did not mention abstention again, but rather proceeded to discuss the

“matrimonial exception” articulated in Barber and reaffirmed in Ankenbrandt. Id.

at 1283–84. In the course of that discussion, Williams cited American Airlines in

passing, together with other cases, when recognizing the existence of the

matrimonial exception; however, Williams did not address or even acknowledge

American Airlines’s abstention holding. Id. at 1283. Ultimately, the Williams Court

held that “the matrimonial exception d[id] not apply” because the case did not

involve a decree for divorce, alimony, or child custody, and was “before this Court

on federal question jurisdiction, not diversity.” Id. at 1284.

                                   B. Discussion

      Here, as in American Airlines, we first consider whether the domestic

relations exception to federal jurisdiction applies – that is, whether the district



                                          9
court lacks subject matter jurisdiction as a threshold matter – and then, if the

answer is no, we proceed to consider whether the district court properly abstained

from exercising its jurisdiction. See Am. Airlines, 905 F.2d at 15; see also In re S.G.

Phillips Constructors, Inc., 45 F.3d 702, 708 (2d Cir. 1995) (“[T]he abstention

provisions implicate the question whether the bankruptcy court should exercise

jurisdiction, not whether the court has jurisdiction in the first instance. . . . The act

of abstaining presumes that proper jurisdiction otherwise exists.”).

      With respect to the first question, the domestic relations exception clearly

does not apply to this case because it is “before this Court on federal question

jurisdiction, not diversity.” Williams, 46 F.3d at 1284. Even if that answer were not

compelled by our holding in Williams, we would find no basis for inferring a

domestic relations exception to the federal‐question jurisdiction statute, 28 U.S.C.

§ 1331. That the Court in Ankenbrandt recognized a domestic relations exception

to the diversity jurisdiction statute (based mainly on the statute’s pre‐1948 text, the

Court’s longstanding interpretation, and stare decisis) has no bearing on whether

such an exception applies in non‐diversity cases. See Atwood v. Fort Peck Tribal

Court Assiniboine, 513 F.3d 943, 947 (9th Cir. 2008) (holding that the domestic

relations exception does not apply in non‐diversity cases); United States v. Bailey,



                                           10
115 F.3d 1222, 1231 (5th Cir. 1997) (same); United States v. Johnson, 114 F.3d 476, 481

(4th Cir. 1997) (same). Nor are we persuaded by the Seventh Circuit’s view that

“the domestic‐relations exception . . . appl[ies] to both federal‐question and

diversity suits.” Kowalski v. Boliker, 893 F.3d 987, 995 (7th Cir. 2018) (citing Allen v.

Allen, 48 F.3d 259, 262 n.3 (7th Cir. 1995)). In Allen, the court recognized that the

“domestic relations exception is statutorily carved out from diversity jurisdiction,”

but reasoned that “its goal of leaving family disputes to the courts best suited to

deal with them [was] equally strong, if not stronger, in the instant, non‐diversity

dispute.” 48 F.3d at 262 n.3. But the exception’s “goal” is not enough to broaden

its scope beyond the diversity jurisdiction context, since the exception “exists as a

matter of statutory construction.” Ankenbrandt, 504 U.S. at 700. Thus, in the

federal‐question context, the policies animating the outcome in Allen are

appropriately considered as a basis for domestic‐relations abstention, not the

domestic relations exception.

      With respect to abstention, we agree with the district court that Deem’s

claims are, at a minimum, “on the verge of being matrimonial in nature” and that

“there is no obstacle to their full and fair determination in state courts.” Am.

Airlines, 905 F.2d at 14 (internal quotation marks omitted). Accordingly, this case



                                           11
is squarely governed by our holding in American Airlines, unless that holding is no

longer good law.

      Turning then to the question of American Airlines’s validity, we begin by

recognizing the basic rule that a published panel decision is binding on future

panels “unless and until it is overruled by the Court en banc or by the Supreme

Court.” Jones v. Coughlin, 45 F.3d 677, 679 (2d Cir. 1995) (per curiam). Of course,

“[w]e have recognized . . . that there is an exception to this general rule when an

intervening Supreme Court decision . . . casts doubt on our controlling precedent.”

In re Arab Bank, PLC Alien Tort Statute Litig., 808 F.3d 144, 154 (2d Cir. 2015) as

amended (Dec. 17, 2015) (internal quotation marks and citation omitted), aff’d sub

nom. Jesner v. Arab Bank, PLC, 138 S. Ct. 1386 (2018). In those circumstances, “the

intervening decision need not address the precise issue already decided by our

Court,” though there must still be a “conflict, incompatibility, or inconsistency”

between the intervening decision and our precedent. Id. at 154–55 (brackets,

internal quotation marks, and citations omitted).

      Ankenbrandt, the intervening Supreme Court decision most relevant to

American Airlines’s abstention holding, neither overruled that holding nor cast

doubt on it to the extent that we are free to chart a new course here. As we have



                                        12
explained, Ankenbrandt was not a federal‐question case and thus did not squarely

address the issue presented in American Airlines or this case.               And while

Ankenbrandt could be read to suggest that abstention based on domestic relations

concerns is merely a variant of Younger or Burford abstention, see Ankenbrandt, 504

U.S. at 705–06, 706 n.8, the existence of a distinct abstention doctrine for certain

domestic relations disputes is supported by the Supreme Court’s longstanding

recognition – in a non‐diversity case involving a child custody dispute – that “[t]he

whole subject of the domestic relations of husband and wife, parent and child,

belongs to the laws of the states, and not to the laws of the United States.” In re

Burrus, 136 U.S. 586, 593–94 (1890); see also Ankenbrandt, 504 U.S. at 703 (citing In re

Burrus with approval while noting that it “technically did not involve a

construction of the diversity statute”); Elk Grove Unified Sch. Dist. v. Newdow, 542

U.S. 1, 13 (2004) (reiterating, in the context of prudential standing, that “in general

it is appropriate for the federal courts to leave delicate issues of domestic relations

to the state courts”), abrogated on other grounds by Lexmark Int’l, Inc. v. Static Control

Components, Inc., 572 U.S. 118 (2014). Consistent with these statements, several of

our sister circuits have continued to recognize a distinct domestic relations

abstention doctrine in one form or another post‐Ankenbrandt.              See supra p.7



                                           13
(discussing the Seventh Circuit’s abstention‐like approach to federal‐question

domestic relations cases); Chambers v. Michigan, 473 F. App’x 477, 479 (6th Cir.

2012) (unpublished) (“Even when brought under the guise of a federal question

action, a suit whose substance is domestic relations generally will not be

entertained in a federal court.” (citing Firestone v. Cleveland Tr. Co., 654 F.2d 1212,

1215 (6th Cir. 1981)); DeMauro v. DeMauro, 115 F.3d 94, 99 (1st Cir. 1997)

(“[A]bstention by use of a stay may be permissible where a RICO action is directed

against concealment or transfer of property that is the very subject of a pending

divorce proceeding.”); see also Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 11 n.9 (1987)

(“The various types of abstention are not rigid pigeonholes into which federal

courts must try to fit cases.”). Therefore, in the absence of a clear statement from

the Supreme Court precluding an abstention doctrine like the one in American

Airlines, we discern no conflict, incompatibility, or inconsistency between that case

and intervening Supreme Court law that would render prior Circuit precedent not

binding on us. See In re Arab Bank, 808 F.3d at 153 (“Whatever the tension between

[our precedent and Supreme Court precedent], the decisions are not logically

inconsistent.”).




                                          14
       Finally, there is no merit to the argument that the abstention issue presented

here is governed by Williams rather than American Airlines. Admittedly, certain

language in Williams is, at first glance, suggestive of a ruling on abstention.

Nevertheless, Williams did not squarely address whether abstention under

American Airlines was appropriate, let alone whether its abstention holding had

been abrogated by Ankenbrandt. See 46 F.3d at 1283–84. Rather, Williams ultimately

relied on Ankenbrandt to conclude that “the matrimonial exception does not apply.”

Id. at 1284 (emphasis added). In these circumstances, we will not read Williams to

be in conflict with American Airlines, much less a binding holding that American

Airlines is no longer good law. See Friends of the E. Hampton Airport, Inc. v. Town of

E. Hampton, 841 F.3d 133, 153 (2d Cir. 2016) (“[A] sub silentio holding is not binding

precedent.” (internal quotation marks and citation omitted)). Furthermore, “even

if the [Williams] Court had wanted to overrule [American Airlines], it could not have

done so.” Tanasi v. New All. Bank, 786 F.3d 195, 200 n.6 (2d Cir. 2015) as amended

(May 21, 2015). Thus, even assuming the two cases were in direct conflict, we

would “have no choice but to follow” American Airlines, and we do so here.1 Id.



1Our decision today is consistent with our unbroken practice of citing American Airlines
when upholding, in unpublished decisions, the dismissal of both federal‐question and
diversity cases involving domestic relations disputes. See, e.g., Martinez v. Queens Cty.
Dist. Att’y, 596 F. App’x 10, 12 (2d Cir. 2015); Keane v. Keane, 549 F. App’x 54, 55 (2d Cir.
                                             15
       Accordingly, since American Airlines continues to be the law of this Circuit,

and since Deem’s claims are at least “on the verge of being matrimonial in nature”

and are capable of being fairly resolved in state court, we affirm the district court’s

dismissal of Deem’s federal claims on abstention grounds.

                                             III.

       We have considered Deem’s remaining arguments and find them without

merit. For the reasons stated above, we AFFIRM the judgment of the district court.




2014); Hamilton v. Hamilton‐Grinols, 363 F. App’x 767, 769 (2d Cir. 2010); Schottel v. Kutyba,
No. 06‐1577, 2009 WL 230106, at *1 (2d Cir. Feb. 2, 2009); Mitchell‐Angel v. Cronin, 101 F.3d
108, 1996 WL 107300, at *2 (2d Cir. Mar. 8, 1996).
                                             16
