                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0240n.06

                                            No. 07-2342
                                                                                          FILED
                           UNITED STATES COURT OF APPEALS                             Apr 20, 2010
                                FOR THE SIXTH CIRCUIT                            LEONARD GREEN, Clerk


GEOFFREY NELS FIEGER,                             )
                                                  )
       Plaintiff-Appellant,                       )
                                                  )
v.                                                )    ON APPEAL FROM THE UNITED
                                                  )    STATES DISTRICT COURT FOR THE
CARL L. GROMEK, et al.,                           )    EASTERN DISTRICT OF MICHIGAN
                                                  )
       Defendants-Appellees.                      )
                                                  )
                                                  )


Before: COLE and GIBBONS, Circuit Judges; and BELL, District Judge.*


       JULIA SMITH GIBBONS, Circuit Judge. This appeal represents trial attorney Geoffrey

N. Fieger’s latest attempt to involve the federal courts in his long-running dispute with several

justices of the Michigan Supreme Court.1 See, e.g., Fieger v. Mich. Supreme Court, 553 F.3d 955

(6th Cir. 2009); Fieger v. Ferry, 471 F.3d 637 (6th Cir. 2006); Gilbert v. Ferry, 413 F.3d 578 (6th

Cir. 2005). In his second trip to our court in the present case, Fieger argues that the district court

improperly dismissed his suit by misconstruing our prior mandate and finding that Fieger’s as-

applied challenge to the recusal rules of the Michigan Supreme Court did not survive his initial



       *
       The Honorable Robert Holmes Bell, United States District Judge for the Western District
of Michigan, sitting by designation.
       1
       We have substituted the current State Court Administrator, Carl L. Gromek, for original
defendant John D. Ferry, Jr., in accordance with Federal Rule of Civil Procedure 25(d).
Fieger v. Gromek (07-2342)

appeal. We agree that the district court improperly interpreted our mandate; however, because the

Michigan Supreme Court formally amended its court rule pertaining to the disqualification of a judge

by providing for its application to Justices of that court, Fieger’s remaining as-applied claim is now

moot. We therefore vacate the judgment of the district court and remand to the district court with

instructions to dismiss.


                                                  I.


       Because this is the second time this case has arrived at our court, we will summarize the

relevant facts. Fieger is a trial attorney and former Democratic candidate for Michigan governor best

known for defending assisted suicide advocate Dr. Jack Kevorkian. Over the past several years,

Fieger has engaged in what the district court aptly characterized as an “acrimonious and well-

publicized dialogue” with four Republican justices of the Michigan Supreme Court: Maura

Corrigan, Stephen J. Markman, Clifford W. Taylor2, and Robert P. Young, Jr. (the “justices”). The

justices have publicly responded to Fieger’s comments during the course of their re-election

campaigns, suggesting to the citizens of Michigan that being despised by Fieger is not necessarily

a bad thing. The current spate of federal litigation began after the Michigan Supreme Court reviewed

and reversed two multimillion dollar jury verdicts Fieger’s firm had won.             See Gilbert v.



       2
        We note that Chief Justice Taylor did not win reelection to the Michigan Supreme Court in
2008 and is therefore no longer a proper party to this suit. See David Eggert, Marilyn Kelly New
Chief Justice of Michigan Supreme Court, mlive.com, Jan. 8, 2009, available at
http://www.mlive.com/news/index.ssf/2009/01/marilyn_kelly_new_chief_justic.html (last visited
Aug. 31, 2009) (noting that Democratic candidate Diane Hathaway defeated Taylor); see also Audio
Recording: Oral Arg. at 9:43 (Jan. 21, 2009) (on file with the clerk).

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Fieger v. Gromek (07-2342)

DaimlerChrysler Corp., 685 N.W.2d 391, 395 (Mich. 2004) (finding a new trial warranted because

Fieger “engaged in a sustained and deliberate effort to divert the jury’s attention from the facts and

the law”); Graves v. Warner Bros., 666 N.W.2d 665 (Mich. 2003) (denying leave to appeal from the

Michigan Court of Appeals’ reversal of $29.3 million verdict). In each case, Fieger sought the

recusal of the four Michigan justices, alleging that their public statements demonstrated bias against

Fieger and his clients. The justices rejected Fieger’s motions in both cases. See Gilbert v.

DaimlerChrysler Corp., 669 N.W.2d 265 (Mich. 2003); Graves v. Warner Bros., 669 N.W.2d 552

(Mich. 2003).


        Before the justices ruled on Fieger’s recusal motions, Fieger filed suit in the United States

District Court for the Eastern District of Michigan, claiming that the Michigan courts would violate

his right to a fair and impartial tribunal if the justices failed to recuse themselves. The district court

dismissed Fieger’s suit on the basis of the Rooker-Feldman doctrine following the justices’ denial

of the motions, Gilbert v. Ferry, 298 F. Supp. 2d 606, 618 (E.D. Mich. 2003); and we ultimately

affirmed on the alternative grounds of Younger abstention and collateral estoppel. Gilbert, 413 F.3d

at 579; see also District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983); Younger

v. Harris, 401 U.S. 37 (1971); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923).


        Fieger filed the present suit on April 9, 2004. Rather than assert the alleged harm to his

clients’ interests by the potential absence of an impartial tribunal, the current suit seeks to vindicate

Fieger’s own personal interest “to pursue his chosen profession, avocation and occupation free from

reprisal for exercising his First Amendment rights . . . and to have his cases . . . decided by a fair,


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Fieger v. Gromek (07-2342)

independent, and impartial tribunal.” (Compl. at ¶ 10.) Fieger alleges that the justices’ “public,

personal, political, and professional animus” toward him requires their recusal and that the justices’

failure to do so violates his Fourteenth Amendment right to due process of law. (Compl. at ¶ 11.)

The district court initially dismissed this second suit, citing once again to the Rooker-Feldman

doctrine. Fieger v. Ferry, No. 04-60089, 2005 U.S. Dist. LEXIS 44190, at *2, *14-27 (E.D. Mich.

Jan. 13, 2005). On appeal, we reversed the district court’s judgment in part, explaining that the

Rooker-Feldman doctrine only applies when the alleged harm finds its foundation in the past

judgment of a state court. Fieger, 471 F.3d at 646. While Fieger could not employ a federal suit to

challenge the Michigan justices’ past refusals to recuse themselves, he potentially could assert a

claim alleging that their failure to do so in future cases would violate Fieger’s Fourteenth

Amendment rights. Id.; see also Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284

(2005) (limiting application of the Rooker-Feldman Doctrine 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”).

Consequently, we remanded Fieger’s remaining challenges to Michigan’s recusal procedure to the

district court for further proceedings. Fieger, 471 F.3d at 646.


       On remand, the district court determined that while Fieger had brought both facial and as-

applied challenges to Michigan’s recusal procedure, only the facial challenge survived the issuance

of our mandate. Fieger v. Ferry, No. 04-60089, 2007 U.S. Dist. LEXIS 71274, at *12 (E.D. Mich.

Sept. 26, 2007). The district court reasoned that an as-applied challenge “in future cases” necessarily

“does not and cannot exist” because as-applied challenges can only concern past actions of the

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Fieger v. Gromek (07-2342)

parties involved. Id. at *12-13. According to the district court, as-applied challenges exist solely

“to redress existing violations,” not future ones. Id. at *13. Turning to the merits of the remaining

facial challenge, the district court found that Fieger’s claim could not succeed because Michigan’s

existing recusal procedures would not be clearly unconstitutional in all circumstances. Id. at *20.

Fieger timely appealed only the district court’s dismissal of his as-applied challenge.


                                                 II.


                                                 A.


       Fieger argues on appeal that the district court misconstrued both our mandate and the

purpose of as-applied challenges in general when it determined that Fieger could not press his as-

applied claim on remand. The justices argue that the district court correctly interpreted our prior

mandate and carried it into effect through its finding that Fieger could not proceed with his as-

applied challenge. It is axiomatic that district courts “must adhere to the commands of a superior

court.” United States v. Twp. of Brighton, 282 F.3d 915, 919 (6th Cir. 2002) (per curiam) (internal

quotation marks and citation omitted). Consequently, district courts have a duty, after they receive

our mandate and once again obtain jurisdiction, “to obey the terms of the mandate and to carry it into

effect.” Fort Gratiot Sanitary Landfill, Inc. v. Mich. Dep’t of Natural Res., 71 F.3d 1197, 1202 (6th

Cir. 1995). In order to determine which party’s arguments are correct, we must examine what our

prior opinion actually held.




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Fieger v. Gromek (07-2342)

       Our initial opinion found that the most difficult issue presented was whether “Fieger’s

constitutional challenge (both facial and as-applied) to Michigan’s recusal procedures was barred

by Rooker-Feldman.” Fieger, 471 F.3d at 644 (emphasis added). We noted that Fieger framed his

litigation as “forward-looking . . . not complaining of injuries caused by [his] past cases” before the

Michigan Supreme Court. Id. at 644-45. After analyzing the United States Supreme Court’s newest

restatement of the Rooker-Feldman doctrine in Exxon Mobil, we held that to the “extent[] the source

of Fieger’s alleged injury is not the past state court judgments . . . [but rather] the purported

unconstitutionality of Michigan’s recusal rule as applied in future cases,” Rooker-Feldman could

not serve to bar Fieger’s suit. Id. at 646 (emphasis added). Thus, we reversed the district court’s

dismissal of Fieger’s complaint and remanded for further proceedings. Id.


       It is clear that our prior holding explicitly acknowledged that Fieger’s suit contained an as-

applied challenge to Michigan’s recusal rules in addition to his facial attack. See id. at 648 n.1

(noting that “[t]he district court on remand will consider the merits of Plaintiff’s twin due process

challenges” (emphasis added)) (Clay, J., concurring). As we did not consider that our holding

prohibited Fieger from advancing his as-applied challenge on remand, it was error for the district

court to cite our opinion as the basis for its decision to refuse to consider the claim. Compare id. at

646 (Stafford, J., for the court) (noting that Fieger’s as-applied challenge survived Rooker-Feldman

analysis), with Fieger, 2007 U.S. Dist. LEXIS 71274, at *12-14 (concluding that Fieger’s claim was

barred). Further, to the extent the district court believed that an as-applied challenge “does not and

cannot” apply to a potentially future set of facts, it is mistaken. Compare Fieger, 2007 U.S. Dist.

LEXIS 71274, at *12, with Giles v. Garland, 281 F. App’x 501, 512 (6th Cir. 2008) (vacating a

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Fieger v. Gromek (07-2342)

district court’s dismissal of an as-applied First Amendment claim). “[A] declaratory judgment

generally is sought before a completed injury-in-fact has occurred.” Peoples Rights Org., Inc. v. City

of Columbus, 152 F.3d 522, 527 (6th Cir. 1998). Thus, we agree with Fieger and hold that the

district court failed to follow our mandate when it refused to consider his as-applied challenge on

remand.


                                                 B.


       Our holding that the district court violated the mandate rule does not conclude our analysis.

“A federal court has no authority to render a decision upon moot questions or to declare rules of law

that cannot affect the matter at issue.” United States v. City of Detroit, 401 F.3d 448, 450 (6th Cir.

2005) (quoting Cleveland Branch, N.A.A.C.P. v. City of Parma, 263 F.3d 513, 530 (6th Cir. 2001));

see also Church of Scientology v. United States, 506 U.S. 9, 12 (1992). “A case becomes moot when

the issues presented are no longer live or parties lack a legally cognizable interest in the outcome.”

Id. (citations and quotation marks omitted). The mootness inquiry generally depends upon “whether

the relief sought would, if granted, make a difference to the legal interests of the parties . . . .”

McPherson v. Mich. High Sch. Athletic Ass’n, Inc., 119 F.3d 453, 458 (6th Cir. 1997) (en banc)

(citation and quotation marks omitted). It must, therefore, “be made at every stage of a case; thus,

if a case becomes moot during an appeal, the judgment below must be vacated and the case

remanded with instructions to dismiss.” Id.


       As we have previously described:



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Fieger v. Gromek (07-2342)

       Fieger maintains that the Michigan Supreme Court does not follow the procedures
       set forth in [Michigan Court Rule (“MCR”)] 2.003(c)(3) for review of a judge’s
       decision not to recuse himself or herself from a case. He contends that, by failing to
       follow such procedures, the Michigan Supreme Court violates the Constitutional
       guarantee to due process. In his complaint, he asks the court to enter a declaratory
       judgment that the word “judge” in MCR 2.003 includes “Justice” of the Michigan
       Supreme Court, thus making the review procedures applicable to the Michigan
       Supreme Court. In the alternative, Fieger asks the Court to declare that the rule is
       unconstitutional . . . as applied.
Fieger, 471 F.3d at 642.


       On November 25, 2009, the Michigan Supreme Court formally amended MCR 2.003,

specifically providing for its application to justices of that court. See MCR 2.003(A) (“Applicability.

This rule applies to all judges, including justices of the Michigan Supreme Court, unless a specific

provision is stated to apply to judges of a certain court. The word “judge” includes a justice of the

Michigan Supreme Court.”). The amendments also incorporate several changes that directly address

and clarify the issues underlying Fieger’s challenge. For example, the disqualification rule now

expressly addresses the question of bias or any appearance of bias that may arise from a judge’s

campaign speech:


       A judge is not disqualified based solely upon campaign speech protected by
       Republican Party of Minn. v. White, 536 U.S. 765 (2002), so long as such speech
       does not demonstrate bias or prejudice or an appearance of bias or prejudice for or
       against a party or an attorney involved in the action.


MCR 2.003(C)(2)(b). The new disqualification rule also expressly sets forth a process by which a

challenge to the participation of a Supreme Court justice in a given case will be decided:




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Fieger v. Gromek (07-2342)

       In the Supreme Court, if a justice’s participation in a case is challenged by a written
       motion or if the issue of participation is raised by the justice himself or herself, the
       challenged justice shall decide the issue and publish his or her reasons about whether
       to participate.
       If the challenged justice denies the motion for disqualification, a party may move for
       the motion to be decided by the entire Court. The entire Court shall then decide the
       motion for disqualification de novo. The Court’s decision shall include the reasons
       for its grant or denial of the motion for disqualification. The Court shall issue a
       written order containing a statement of reasons for its grant or denial of the motion
       for disqualification. Any concurring or dissenting statements shall be in writing.
MCR 2.003(D)(3)(b).


       Because we must “apply the law as it is now,” Kremens v. Bartley, 431 U.S. 119, 129 (1977),

we “can neither declare unconstitutional nor enjoin the enforcement of a provision that is no longer

in effect,” Brandywine, Inc. v. City of Richmond, 359 F.3d 830, 836 (6th Cir. 2004); see also Dubuc

v. Parker, 168 F. App’x 683, 688 (6th Cir. 2006). The Michigan Supreme Court’s adoption of a new

court rule deprives this court of a live case or controversy, and consequently, jurisdiction over this

case. Kremens, 431 U.S. at 128–29. We therefore conclude that the Michigan Supreme Court’s

action has mooted Fieger’s challenge.


                                                 III.


       We therefore vacate the decision of the district court and remand with instructions to dismiss

Fieger’s complaint.




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