                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-1658



WALTER HARRY HORNER, MD, PhD,

                                            Plaintiff - Appellant,

          versus


THE DEPARTMENT OF MENTAL HEALTH, MENTAL
RETARDATION AND SUBSTANCE ABUSE SERVICES; JACK
W. BARBER, MD; MARY CLARE SMITH, MD; JAMES
REINHARD,

                                           Defendants - Appellees.



                            No. 04-1637



WALTER HARRY HORNER, MD, PhD,

                                            Plaintiff - Appellant,

          versus


THE DEPARTMENT OF MENTAL HEALTH, MENTAL
RETARDATION AND SUBSTANCE ABUSE SERVICES; JACK
W. BARBER; MARY CLARE SMITH,

                                           Defendants - Appellees.



Appeals from the United States District Court for the Western
District of Virginia, at Harrisonburg.  James H. Michael, Jr.,
Senior District Judge.    (CA-02-99-5)  James C. Turk, Senior
District Judge. (CA-03-37-5)
Argued:   October 26, 2005              Decided:   December 2, 2005


Before WILKINS, Chief Judge, and NIEMEYER and KING, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: William Richard Goode, Portland, Oregon, for Appellant.
Sydney E. Rab, Senior Assistant Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees.
ON BRIEF: Tate C. Love, BLACK, NOLAND & READ, P.L.C., Staunton,
Virginia, for Appellant. Jerry W. Kilgore, Attorney General of
Virginia, Joseph R. Carico, Chief Deputy Attorney General, Judith
Williams Jagdmann, Deputy Attorney General, Edward M. Macon, Senior
Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, Richmond, Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                                2
PER CURIAM:

      In these consolidated appeals, Walter Harry Horner challenges

the district court’s dismissals of his employment-related actions

against   the        Virginia    Department      of   Mental      Health,   Mental

Retardation and Substance Abuse Services (the “Department”) and

various Department officials.             The court dismissed the first of

these suits (“Horner I”) for lack of subject matter jurisdiction

under the Rooker-Feldman doctrine.              See Horner v. Dep’t of Mental

Health, Mental Retardation & Substance Abuse Servs., No. CA-02-99-

5, slip op. at 5-9 (W.D. Va. May 1, 2003) (citing, inter alia, D.C.

Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fid.

Trust Co., 263 U.S. 413 (1923)).              The court subsequently dismissed

the second suit (“Horner II”) on the ground of collateral estoppel.

See   Horner    v.    Dep’t     of   Mental    Health,   Mental    Retardation   &

Substance Abuse Servs., No. CA-03-37-5, slip op. at 6-7 (W.D. Va.

Apr. 26, 2004).

      Each of the district court’s dismissal orders turned on prior

decisions of a state grievance hearing officer.                After the court’s

dismissal orders were rendered, however, the Supreme Court of

Virginia determined that Horner’s grievances had not been properly

before the hearing officer.           See Horner v. Dep’t of Mental Health,

Mental Retardation & Substance Abuse Servs., 597 S.E.2d 202 (Va.




                                          3
2004).     We therefore vacate the dismissal orders of the district

court and remand for further proceedings.1



                                       I.

      On May 15, 2001, Horner was discharged from his position with

the   Department   as   a   physician       at    Western    State    Hospital   in

Staunton, Virginia.       Horner’s termination was based on his receipt

of three “Group II” disciplinary notices; discharge is warranted on

the accumulation of two such notices.                 Horner utilized Virginia’s

statutory grievance procedure to contest the alleged workplace

violations underlying the notices.               See Va. Code Ann. §§ 2.2-3000

to -3008.     At some point during the grievance process, he also

raised the contention that he had been fired in retaliation for

being an outspoken critic — both internally and publicly — of

hospital policies and practices.

      The grievance procedure in place at that time provided for up

to three levels of management review, followed by a formal hearing.

Horner’s    immediate   supervisor,     as       the    first-level     respondent,

supported reversal of the disciplinary notices and resolved that

Horner should be reinstated with back pay and restoration of fringe

benefits.      Horner’s     response   was       to    conclude   his    grievance.


      1
      In ruling today, we express no opinion on the propriety of
the district court’s dismissal orders under the circumstances that
existed when they were entered, or on the present viability of the
Horner I and Horner II claims.

                                       4
However, the Department proceeded to the second- and third-level

respondents, who each disagreed with the first-level respondent and

pronounced that Horner should be denied relief.

      Thereafter, the matter went before the grievance hearing

officer.     One of the notices was subsequently dismissed.                         In

separate decisions issued on August 20, 2001, the hearing officer

upheld the two remaining notices, which together were sufficient to

warrant    Horner’s    discharge.       The    hearing        officer    explicitly

rejected    Horner’s    allegation    that         his    termination     had     been

retaliatory, observing that Horner presented no evidence on which

to base a finding of retaliation.           See J.A. 26-27, 37-38.2

      After losing on reconsideration by the hearing officer and

exhausting his administrative appeals, Horner appealed to the

Circuit Court of the City of Staunton.               See Va. Code Ann. § 2.2-

3006(B) (authorizing such appeal on grounds that hearing officer’s

decision was “contradictory to law”).               By its opinion of July 11,

2002, the circuit court reversed the hearing officer’s decisions on

one   of   several    grounds   asserted      by    Horner:       that    under    the

statutory    grievance     procedure,       the     first-level         respondent’s

determination    in    Horner’s     favor     was        final,   and    no   further

proceedings (including those before the hearing officer) were

authorized. Without reaching Horner’s other contentions, the court



      2
      This citation to the “J.A.” refers to the contents of the
Joint Appendix filed by the parties in these consolidated appeals.

                                       5
awarded the remedy that had been deemed appropriate by the first-

level respondent — reinstatement with back pay and restoration of

fringe benefits.       See Horner v. Dep’t of Mental Health, Mental

Retardation & Substance Abuse Servs., No. CL01000109-00 (Va. Cir.

Ct. entered Sept. 5, 2002).

      On September 30, 2002, the Department filed a notice of appeal

in the Court of Appeals of Virginia.            In its opinion of April 22,

2003, the court of appeals reversed the ruling of the circuit court

and remanded for consideration of Horner’s other grounds for

challenging the decisions of the hearing officer.                See Dep’t of

Mental Health, Mental Retardation & Substance Abuse Servs. v.

Horner, 579 S.E.2d 372, 373 (Va. Ct. App. 2003).3

      Meanwhile, during the pendency of the Department’s appeal in

the   court   of    appeals,   Horner       initiated   these   federal   court

proceedings.       Specifically, on October 11, 2002, Horner filed his

complaint in the Western District of Virginia in Horner I, alleging

retaliation claims under 42 U.S.C. § 1983 for infringement of his

free speech rights and under Virginia law for violation of the

Commonwealth’s public policy.       The Department and other Horner I

Defendants subsequently filed a motion to dismiss. In a report and

recommendation of March 14, 2003, the magistrate judge advised the

district court to grant the motion to dismiss on the ground that

      3
      On June 23, 2003, following the denial of rehearing en banc
by the court of appeals, Horner noticed an appeal to the Supreme
Court of Virginia.

                                        6
the court lacked subject matter jurisdiction under the Rooker-

Feldman doctrine.       On May 1, 2003, the court dismissed Horner I in

accordance with the magistrate judge’s recommendation — a ruling

that hinged on the administrative decisions of the grievance

hearing officer.

       Two weeks later, on May 14, 2003, Horner filed his complaint

in the Western District of Virginia in Horner II, again alleging a

retaliation claim under § 1983 for infringement of his free speech

rights, and for the first time alleging a retaliation claim under

§ 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794.                The

Department and other Horner II Defendants filed a motion to dismiss

and,   on   November    4,    2003,   the   magistrate   judge   recommended

dismissal    (as   he   had   in   Horner   I)   under   the   Rooker-Feldman

doctrine.     On April 26, 2004, the district court granted the

motion.     Rather than relying on the Rooker-Feldman doctrine,

however, the court concluded that it was obliged under the doctrine

of collateral estoppel to give the decisions of the grievance

hearing officer — including his findings of no retaliation — issue

preclusive effect.

       Horner filed timely notices of appeal in both Horner I and

Horner II.     Thereafter, by its opinion of June 10, 2004, the

Supreme Court of Virginia reinstated and affirmed the decision of

the Circuit Court of the City of Staunton that Horner’s grievances

had not been properly before the grievance hearing officer, because

                                       7
the determination of the first-level respondent was a final one.

See    Horner     v.   Dep’t   of    Mental      Health,    Mental    Retardation     &

Substance Abuse Servs., 597 S.E.2d 202, 206 (Va. 2004).                              In

reaching    its    decision,        the   supreme    court      observed     that   “the

legislature provided the employee with the substantive right to be

afforded a remedy by the first-level respondent.”                        Id. at 205.

Accordingly, the court held that “[o]nce the employee accepted the

remedy,     the   statutory      scheme     existing       at   the   time    precluded

management from contesting the first-level decision.”                         Id.   The

Department sought reconsideration, but the court denied rehearing

on October 1, 2004.

       With the benefit of the intervening opinion of the Supreme

Court of Virginia, we now address Horner’s appeals of the district

court’s dismissal orders in Horner I and Horner II.                          We possess

jurisdiction over these appeals under 28 U.S.C. § 1291.



                                           II.

                                           A.

       As explained above, the district court dismissed Horner I for

lack   of   subject     matter      jurisdiction     under      the   Rooker-Feldman

doctrine.    We review the application of this doctrine de novo.                    See

Burrell v. Virginia, 395 F.3d 508, 511 (4th Cir. 2005).

       In applying the Rooker-Feldman doctrine here, the district

court relied on the established principle that federal courts lack


                                            8
jurisdiction   to   hear   “constitutional   claims   presented   or

adjudicated by the state courts,” as well as “claims that are

inextricably intertwined with a state court judgment.” See Jordahl

v. Democratic Party of Va., 122 F.3d 192, 199 (4th Cir. 1997)

(internal quotation marks omitted).    The court concluded, first,

that the grievance hearing officer’s decisions (and particularly

his findings of no retaliation) were the result of an adjudicatory

process subject to application of the Rooker-Feldman doctrine, and,

second, that the doctrine was appropriately applied herein because

the Horner I retaliation claims were based on the same essential

facts as the retaliation claims before the grievance hearing

officer.4

     Because the state administrative decisions at the heart of the

district court’s Rooker-Feldman ruling were the decisions of the

grievance hearing officer, we must vacate the court’s dismissal

order in Horner I.    Although the Virginia courts did not (for

whatever reason) address the hearing officer’s factual findings,

the Supreme Court of Virginia ultimately concluded that the hearing


     4
      Notably, following entry of the district court’s dismissal
orders and after these appeals were filed, the Supreme Court
decided Exxon Mobil Corp. v. Saudi Basic Industries Corp.,
emphasizing that the Rooker-Feldman doctrine is to be narrowly
applied, only in “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.” 125 S. Ct. 1517, 1521-22
(2005). The parties have submitted supplemental briefs outlining
their views on the effects of Exxon Mobil herein.      That issue,
however, is outside the purview of our ruling today.

                                 9
officer had lacked authority to hear Horner’s claims.               In other

words, the hearing officer’s decisions are a nullity and therefore

cannot serve as the basis for the application of the Rooker-Feldman

doctrine.

                                     B.

       The district court dismissed Horner II based on its conclusion

that it was obliged under the doctrine of collateral estoppel to

give    the   decisions   of   the   grievance     hearing    officer   issue

preclusive    effect.     We   review     the   application   of   collateral

estoppel de novo.       See Tuttle v. Arlington County Sch. Bd., 195

F.3d 698, 703 (4th Cir. 1999).

       The district court relied for its collateral estoppel ruling

on the principle “that when a state agency acting in a judicial

capacity resolves disputed issues of fact properly before it which

the parties have had an adequate opportunity to litigate, federal

courts must give the agency’s factfinding the same preclusive

effect to which it would be entitled in the State’s courts.”            Univ.

of Tenn. v. Elliott, 478 U.S. 788, 799 (1986) (internal quotation

marks and alteration omitted) (emphasis added).           Here, of course,

the Supreme Court of Virginia has now clearly ruled that Horner’s

grievances were not properly before the grievance hearing officer.

Accordingly, the hearing officer’s findings are not entitled to be

given issue preclusive effect, and we are also constrained to

vacate the district court’s Horner II dismissal order.


                                     10
                              III.

     Pursuant to the foregoing, we vacate the district court’s

dismissal orders in Horner I and Horner II, and remand for such

other and further proceedings as may be appropriate.



                                             VACATED AND REMANDED




                               11
