                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       January 16, 2007
                            FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                         Clerk of Court

    RO BERT A . W EST,

                Plaintiff-Appellant,

    v.                                                   No. 05-1035
                                                  (D.C. No. 04-PC-385 (BNB))
    EV ERGR EEN H IG H LA N D S                            (D . Colo.)
    A SSO CIA TIO N ; STA TE O F
    C OLO RA D O ,

                Defendants-Appellees.



                             OR D ER AND JUDGM ENT *


Before O’BRIEN, HOL LOW A Y, and BALDOCK , Circuit Judges.




         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.

         Plaintiff Robert W est appeals from an order of the magistrate judge, acting

on consent of the parties, see 28 U.S.C. § 636(c)(1), dismissing the case for lack


*
      This order and judgment is not binding precedent, except under the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.
of jurisdiction. This case has its roots in a state action plaintiff filed to challenge

a newly issued homeowner’s covenant requiring lot owners in his subdivision to

be members of and pay assessments to the Evergreen Highlands Association, Inc.

(EHA). EHA defended the covenant and also counterclaimed for past damages

for breach of a pre-existing obligation, implied in law , requiring lot owners to

defray the cost of maintaining common areas in the subdivision. Following a

final decision for EHA on both points, see Evergreen H ighlands Ass’n v. West,

73 P.3d 1 (Colo. 2003), cert. denied, West v. Evergreen Highlands Ass’n,

540 U.S. 1106 (2004), plaintiff filed this case, alleging that EHA and the State of

Colorado acted jointly to deprive him of various federal and state rights. The

magistrate judge concluded this action was barred by the Rooker-Feldman

doctrine, which recognizes that under 28 U.S.C. § 1257 the only federal court

with jurisdiction to review state court judgments is the Supreme Court. Exxon

M obil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283-88 (2005) (discussing

Dist. of Columbia Ct. of App. v. Feldman, 460 U.S. 462, 482 (1983) and Rooker v.

Fid. Trust Co., 263 U.S. 413, 414-16 (1923)). W e review this jurisdictional

determination de novo, Kenmen Eng’g v. City of Union, 314 F.3d 468, 473

(10th Cir. 2002), and affirm. 1




1
      Kenmen Engineering was abrogated in part, on grounds not material here,
by Exxon M obile, as noted in Tal v. Hogan, 453 F.3d 1244, 1256 n.10 (10th Cir.
2006), and Guttman v. Khalsa, 446 F.3d 1027, 1031 (10th Cir. 2006).

                                           -2-
      The Supreme Court recently clarified that the Rooker-Feldman doctrine

applies 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.” Exxon M obil

Corp., 544 U.S. at 284. Here, plaintiff’s claim is precisely that he has been

injured by the state court judgment, which he cites as the final action effectuating

his injury and as the state action necessary to frame that injury in constitutional

terms. 2 In an effort to avoid the adverse conclusion that would otherwise follow

from these legal and factual premises, plaintiff advances three arguments on

appeal.

      Plaintiff’s first broad line of argument begins with the contention that the

Rooker-Feldman doctrine should not apply because the decision he challenges not

only w rongfully diminished his rights but wrongfully expanded the rights of EH A

and, thus, insofar as he seeks to rectify the latter action, he does so independently

of any injury to him caused by the state court judgment he challenges. The

immediate w eakness of this contention is that by disclaiming any remedial effort



2
       Plaintiff claims that the state court’s enforcement of the covenant imbued
EHA’s private conduct with state character under the rule of Shelley v. Kraemer,
334 U.S. 1 (1948). W e note that as a general matter Shelley has been limited to
its facts, involving judicial enforcement of private racial discrimination. See,
e.g., Loren v. Sasser, 309 F.3d 1296, 1303 (11th Cir. 2002); Parks v. “M r. Ford,”
556 F.2d 132, 135 n.6a (3d Cir. 1977). In any event, the question of state action,
which goes to the merits of the case, is moot here in light of our jurisdictional
disposition based on the Rooker-Feldman principle.

                                          -3-
aimed at injury to himself, plaintiff would seem to be renouncing his standing to

bring the case, as standing requires that the plaintiff have an injury in fact, caused

by the conduct complained of, that will likely be redressed by a favorable

decision in the case. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61

(1992). In any event, plaintiff’s contention rests on a specious separation of the

benefit the state court decision gave EHA from the adverse consequences it held

for him. The assertedly independent benefit to EHA was the holding that the

subdivision is an implied common interest community entitling EHA to collect

from lot ow ners the cost of common-area maintenance. But that was the very

basis for the state supreme court’s remand “to the trial court for calculation of

[EHA’s] damages” on its counterclaim against plaintiff. Evergreens Highlands

Ass’n, 73 P.3d at 9. Plaintiff cannot separate the underlying legal holding from

its immediate and obvious adverse effect on his interest.

      In a similar vein, plaintiff insists that he is not challenging the disposition

of his particular case but, rather, asserting a general constitutional challenge to

the state common law announced in his case. This distinction, he argues, brings

him within an exception to Rooker-Feldman illustrated by Feldman itself, which

held that a challenge to a local (District of Columbia) bar admission rule – as

opposed to the judicial decision enforcing the rule – could be brought in federal

district court. See Feldman, 460 U.S. at 485-86. But the point of this distinction,

as the Supreme Court has recently reaffirmed, was that “in promulgating the bar

                                          -4-
admission rule, . . . the D.C. court had acted legislatively, not judicially.” Exxon

M obil Corp., 544 U.S. at 285-86. In plaintiff’s case against EHA, however, the

state supreme court did not act legislatively. On the contrary, the court performed

a uniquely judicial function: it determined the common law of the state. Not

only is plaintiff’s attempt to equate such a judicial determination with the

legislative (or regulatory) act of rule-making conceptually misguided, it would

effectively gut the Rooker-Feldman doctrine, as any artful pleader could re-frame

a challenge to a particular state court decision as a “general” challenge to the

state court’s “legislative” determination of the law on which its decision rested.

Plaintiff cites no authority for this doubly dubious position.

      Plaintiff’s final effort in this general line of argument relies on Pennzoil

Co. v. Texaco, Inc., 481 U.S. 1 (1987). “In Pennzoil, five justices concluded in

concurring opinions that Rooker-Feldman did not divest a federal court of

jurisdiction over [a] constitutional challenge to Texas’s post-judgment collection

procedures,” which was characterized as “separable from and collateral to the

merits of the state-court judgment.” Kenmen Eng’g, 314 F.3d at 475-76

(quotations omitted). Here, however, plaintiff’s challenges are directed not at

collateral procedures separable from the merits of the state court decision, but at

the decision itself. And plaintiff raised (albeit belatedly) in the state action the

constitutional objections he now asserts in this federal case, at both the state

appellate and supreme court levels.

                                          -5-
      Plaintiff contends that the state courts did not give these objections due

consideration, but that is not a basis for avoiding Rooker-Feldman limitations on

federal court review. Insofar as plaintiff complains that he was not given a

sufficient opportunity to raise and pursue these matters in the state courts, his

point is deflected by Kenmen Engineering, which held that application of the

Rooker-Feldman doctrine does not turn on whether the state court proceeding

afforded the plaintiff an opportunity to litigate his federal claims. Kenmen Eng’g,

314 F.3d at 478-80. In any event, as noted below, plaintiff was precluded from

pursuing his constitutional claims on his state appeal only because he had failed

to take advantage of the earlier opportunity to pursue them in the state trial court.

A foregone opportunity is not a denied opportunity.

      Insofar as plaintiff challenges the state courts’ disposition of these matters,

his argument fails for reasons explained below in connection with his second

issue on appeal. Plaintiff’s certiorari petition to the Supreme Court following the

final decision in his state litigation reflects the proper – and exclusive – means for

seeking review of objections regarding how the state appellate courts proceeded,

consistent with § 1257.

      The second distinct issue designated by plaintiff consists of his assertion

that the Rooker-Feldman doctrine should not bar federal review of constitutional

claims when state courts “have mistakenly refused to consider the same or similar

claims made in State litigation.” A plt. Opening Brief at 11. The Colorado Court

                                          -6-
of Appeals ruled in plaintiff’s favor on the basic question whether EHA lacked

authority to issue the new assessment covenant and did not address his alternative

constitutional arguments against the assessment, which had not been raised in the

trial court. See West v. Evergreen Highlands Ass’n, 55 P.3d 151, 154-55

(Colo. Ct. App. 2001). After the Colorado Supreme Court reversed this ruling,

plaintiff sought to reintroduce the constitutional issues by way of rehearing,

which the court summarily denied. Plaintiff now insists that the state courts’

handling of his constitutional objections w as a “mistake,” and that this

circumstance negates the Rooker-Feldman doctrine. There are several problems

with this argument.

      Given the broad sense in which plaintiff seeks to use the operative term

“mistake” here, just to signify analytical or procedural error in a disposition, his

argument is hopelessly circular. He claims in effect that the Rooker-Feldman

doctrine barring federal review of state decisions does not apply if, by engaging

in the very review the doctrine prohibits, a federal court concludes that a state

court erred. Such a self-justifying exception would swallow the Rooker-Feldman

doctrine whole.

      Actually, the authority plaintiff relies on for the exception uses the term

“mistake” in a more limited sense, which would not apply here. Plaintiff cites

Sun Valley Foods Co. v. Detroit M arine Terminals, Inc. (In re Sun Valley Foods

Co.), 801 F.2d 186 (6th Cir. 1986), which (quoting a case addressing res judicata,

                                          -7-
not Rooker-Feldman) states: “A federal court ‘may entertain a collateral attack

on a state court judgment which is alleged to have been procured through fraud,

deception, accident, or mistake. . . .” Id. at 189 (quoting Resolute Ins. Co. v.

North Carolina, 397 F.2d 586, 589 (4th Cir. 1968)). A judgment procured by one

of the listed means is not simply a judgment in error. Resolute Insurance itself

illustrates this point, holding that a state court loser’s contention that the decision

was “grossly erroneous” provided “no basis” for a collateral attack in federal

court. Resolute Ins. Co., 397 F.2d at 589. Rather, the principle turns on the

improper procurement of the judgment, i.e., whether a party “deceived the C ourt

into a wrong decree.” Sun Valley Foods Co., 801 F.2d at 189 (rejecting collateral

attack where deceit not shown) (quotation omitted); see Jordahl v. D emocratic

Party of Va., 122 F.3d 192, 203 n.11 (4th Cir. 1997) (rejecting collateral attack

under Resolute Insurance in absence of “fraud or deception on the part of the

[state court winner] in the procurement of the [judgment] at issue”). Thus, by

complaining of mere state court error, plaintiff has not even asserted an

appropriate basis for invoking the principle on which he relies. 3



3
       This circuit has not held that Rooker-Feldman may be circumvented by a
collateral attack of the sort suggested in the cases discussed above. There is good
reason to balk at such a step. State rules of procedure provide various means to
attack a wrongfully obtained judgment. See In re the M arriage of Gance, 36 P.3d
114, 116-18 (Colo. App. 2001) (discussing motion for relief from judgment based
on misconduct of party, equitable action for relief from judgment based on fraud,
and claim of “fraud upon the court”). Construing Rooker-Feldman to permit
                                                                      (continued...)

                                          -8-
      For his third issue on appeal, plaintiff asserts that the Rooker-Feldman

doctrine provides an incentive for state courts to ignore the civil rights of parties

who cannot turn to the federal courts for redress. This is an objection more aptly

addressed to the legislature for amendment of § 1257 or to the Supreme Court for

modification of the Rooker-Feldman doctrine, whose actions on such matters are

binding on this court. W e do deem it appropriate to note, however, that plaintiff

unjustifiably discounts the integrity of state judiciaries and the salutary effect of

Supreme Court review under § 1257. Here, for example, there is nothing in the

Colorado courts’ treatment of plaintiff’s unpreserved constitutional arguments to

warrant plaintiff’s criticism, and while Supreme Court certiorari review (denied

here) does not operate as a case-by-case error-correction mechanism, it does

provide a systemic protection – guided by the Court’s careful selection of

review-worthy decisions – for all cases in which constitutional rights are at issue.

See generally 28 U.S.C.A. § 1257, Commentary on 1988 Revision.

      Finally, plaintiff objects that his consent to disposition of this case by a

magistrate judge under 28 U.S.C. § 636(c)(1) was obtained in a misleading manner

and requests that, in the event of remand, the case be returned to the district court



3
 (...continued)
federal reconsideration and nullification of state judgments on grounds that could
have been pursued in state court arguably allows under the rubric of collateral
attack just another mechanism for lower federal court review unauthorized under
§ 1257. In any event, given the inadequacy of plaintiff’s factual basis noted
above, we need not resolve the larger legal point here.

                                          -9-
judge to w hom it was originally assigned. Our holding that the district court

lacks jurisdiction over the action renders this objection, with its request for

prospective relief on remand, moot. Cf. Tonkovich v. Kan. Bd. of Regents,

254 F.3d 941, 946 (10th Cir. 2001) (reaching same conclusion with respect to

recusal objection raised in support of request for reassignment of case to new

judge on remand); Utah Foam Prods. Co. v. The Upjohn Co., 154 F.3d 1212,

1219 (10th Cir. 1998) (same).

      The judgment of the magistrate judge is AFFIRM ED.


                                                     Entered for the Court



                                                     W illiam J. Holloway, Jr.
                                                     Circuit Judge




                                         -10-
