                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 02 2015

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


MICHAEL SALMAN and SUZANNE                       No. 12-16497
SALMAN,
                                                 D.C. No. 2:12-cv-01219-JAT
              Plaintiffs - Appellants,

  v.                                             MEMORANDUM*

CITY OF PHOENIX, a municipal
corporation of the State of Arizona and
UNKNOWN PARTIES, named as: John
Does I-X, Jane Does I-X, Black and White
Corporations I-X, and ABC Partnerships I-
X,

              Defendants - Appellees.


                   Appeal from the United States District Court
                            for the District of Arizona
                James A. Teilborg, Senior District Judge, Presiding

                      Argued and Submitted October 10, 2014
                                Phoenix, Arizona

Before: WALLACE, SILVERMAN, and M. SMITH, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Plaintiffs-Appellants Michael and Suzanne Salman appeal from what we

interpret as the district court judgment dismissing their action against the City of

Phoenix. The Salmans do not dispute the district court’s denial of their request for

an injunction restraining the execution of Michael Salman’s municipal court

sentence and dismissal of their other section 1983 claims based on the collateral

estoppel effect of Judge Martone’s dismissal of similar claims under Heck v.

Humphrey, 512 U.S. 477 (1994), in their prior federal action. However, the

Salmans challenge the district court’s holding under the Rooker–Feldman doctrine

that it lacked subject matter jurisdiction over their request for an order enjoining

the City from implementing or enforcing Section 303 of the 2006 Phoenix

Building Code on private religious gatherings and bible studies and over their other

remaining claims. We have jurisdiction pursuant to 28 U.S.C. § 1291, and, under

de novo review, we reverse.

      The district court erred when it concluded that under Rooker–Feldman it

lacked subject matter jurisdiction over the Salmans’ request for a prospective

injunction and over their other claims not barred by collateral estoppel because the

Salmans’ success on those claims would necessarily depend on the district court

reaching findings opposite to those reached by the state court in Michael Salman’s

appeal from his conviction, requiring the district court to review the state court’s


                                           2
decision. Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 293

(2005) (“If a federal plaintiff presents some independent claim, albeit one that

denies a legal conclusion that a state court has reached in a case to which he was a

party, then there is jurisdiction and state law determines whether the defendant

prevails under principles of preclusion.”) (internal citations, quotation marks

omitted); see also Manufactured Home Cmtys. Inc. v. City of San Jose, 420 F.3d

1022, 1030 (9th Cir. 2005) (reversing the district court’s holding that the

Rooker–Feldman doctrine removed jurisdiction over the plaintiff’s claims that a

city ordinance denied constitutional rights and that the hearing officer was biased,

since the plaintiff was “su[ing] the City ... (an adverse party), not a state court,”

and since the plaintiff was “challenging the City’s interpretation of the Ordinance”

but not “directly challeng[ing] the state court’s factual or legal conclusion”).

      The district court likewise erred in concluding that it lacked subject matter

jurisdiction under Rooker–Feldman because the Salmans’ claims were

“inextricably intertwined” with the prior state court decision. Noel v. Hall, 341

F.3d 1148, 1158 (9th Cir. 2003); see also Bell v. City of Boise, 709 F.3d 890, 897

(9th Cir. 2013) (“The ‘inextricably intertwined’ language from Feldman is not a

test to determine whether a claim is a de facto appeal, but is rather a second and

distinct step in the Rooker–Feldman analysis”).


                                            3
REVERSED AND REMANDED.




                     4
                                                                            FILED
Salman v. City of Phoenix, 12-16497                                          JAN 02 2015

                                                                         MOLLY C. DWYER, CLERK
SILVERMAN, Circuit Judge, dissenting:                                      U.S. COURT OF APPEALS




      The Salmans were convicted in Phoenix Municipal Court of various city

code violations. Their defense at trial was that the code sections in question

unconstitutionally infringed on their right to freedom of religion. They argued the

same point on appeal to the Maricopa County Superior Court, which rejected the

argument in reasoned decisions and affirmed their convictions.1 The Salmans’

next step was to the Arizona Court of Appeals; that was unsuccessful, too. They

made no effort to seek review by the Arizona Supreme Court or to petition for

certiorari in the U.S. Supreme Court.



      Instead, they brought this lawsuit against the City of Phoenix seeking the

federal district court’s declaratory judgment on the very point on which they

premised the defense of their criminal cases – that the Phoenix City Code sections

are unconstitutional as applied to them. Of course, such declaratory relief would

necessarily imply the invalidity of their convictions. As the district court correctly



      1
        The court takes judicial notice of Maricopa County Superior Court case
number LC2011-00583, affirming Suzanne Salman’s conviction for three zoning
violations.
                                          -2-
concluded, this suit is in reality a “forbidden de facto appeal” under this court’s

precedents, and is therefore barred by the Rooker-Feldman doctrine. See Noel v.

Hall, 341 F.3d 1148, 1163 (9th Cir. 2003).



      This conclusion is not at odds with Manufactured Home Communities, Inc.

v. City of San Jose, 420 F.3d 1022 (9th Cir. 2005). There, the plaintiff challenged

the city’s interpretation of an ordinance to conclude that the plaintiff had not

supplied adequate information to qualify for its desired rent change. Id. at 1030.

This is in contrast to the Salmans’ current challenge, which is to the city’s criminal

enforcement of an ordinance as it specifically applies to them. This is simply

another way of saying that they had a constitutional right to do what they were

charged with and should have been granted a judgment of acquittal. The Salmans

already litigated this challenge as part of their defense in their criminal cases and

lost. Despite the Salmans’ attempt to portray their lawsuit as something other than

an attack on their convictions, it is obviously “inextricably intertwined” with their

criminal case. Noel, 341 F.3d at 1165. That is, they have no “independent claim”

over which a federal court might have jurisdiction; rather, their claims here are the

same as those decided by the state court. Exxon Mobil Corp. v. Saudi Basic Indus.

Corp., 544 U.S. 280, 293 (2005). As the district court ruled, Rooker-Feldman bars
                                          -3-
federal courts from reviewing such claims. See Cooper v. Ramos, 704 F.3d 772,

781 (9th Cir. 2012) (barring inmate’s challenge to ruling in his state case as a

“forbidden de facto appeal” despite his portrayal of it as independent). Therefore, I

would affirm the district court’s dismissal of the case.
