                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 06a0469p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                         X
                                   Plaintiff-Appellant, -
 GEOFFREY N. FIEGER,
                                                          -
                                                          -
                                                          -
                                                              No. 05-1295
           v.
                                                          ,
                                                           >
 JOHN D. FERRY, JR., et al.,                              -
                                Defendants-Appellees. -
                                                         N
                          Appeal from the United States District Court
                       for the Eastern District of Michigan at Ann Arbor.
                     No. 04-60089—Marianne O. Battani, District Judge.
                                         Argued: September 21, 2006
                                 Decided and Filed: December 26, 2006
              Before: SILER and CLAY, Circuit Judges; STAFFORD, District Judge.*


                                             _________________
                                                   COUNSEL
ARGUED: Michael R. Dezsi, FIEGER, FIEGER, KENNEDY & JOHNSON, Southfield, Michigan,
for Appellant. Margaret A. Nelson, MICHIGAN DEPARTMENT OF ATTORNEY GENERAL,
Lansing, Michigan, for Appellees. ON BRIEF: Richard L. Steinberg, Detroit, Michigan, for
Appellant. Margaret A. Nelson, MICHIGAN DEPARTMENT OF ATTORNEY GENERAL,
Lansing, Michigan, for Appellees.
         STAFFORD, D. J., delivered the opinion of the court, in which SILER, J., joined. CLAY,
J. (pp. 9-13), delivered a separate concurring opinion.
                                             _________________
                                                 OPINION
                                             _________________
         STAFFORD, District Judge. Plaintiff, Geoffrey N. Fieger ("Fieger"), appeals the district
court's dismissal of his § 1983 civil rights action challenging the refusal of certain Michigan
Supreme Court Justices to recuse themselves from cases in which he is involved. We AFFIRM the
district court's decision to dismiss Fieger's challenge to the Justices' past recusal decisions. We

        *
           The Honorable William H. Stafford, Jr., United States District Judge for the Northern District of Florida,
sitting by designation.


                                                         1
No. 05-1295             Fieger v. Ferry, et al.                                                           Page 2


REVERSE the district court's decision to dismiss Fieger's challenge to the constitutionality of
Michigan's recusal rule.
                                            I. BACKGROUND
         This appeal arises out of what the district court described as the "acrimonious and well-
publicized dialogue" between Fieger, a former gubernatorial candidate and well-known Michigan
trial lawyer, and several justices of the Michigan Supreme Court. Fieger has been an outspoken
critic of the Michigan Supreme Court, and–in turn–several of the justices have made public remarks
regarding Fieger. Claiming bias, Fieger sought the recusal of four of the justices–Maura Corrigan,
Clifford W. Taylor, Robert P. Young, Jr., and Stephen J. Markman (collectively, "the Justices")–in
two appeals that were pending before the Michigan Supreme Court in cases involving his clients.
In one of those cases, Gilbert v. DaimlerChrysler Corp., 669 N.W.2d 265 (Mich. 2003), a jury
awarded Fieger's clients a substantial verdict. After the verdict was affirmed by the Michigan Court
of Appeals, the Michigan Supreme Court granted leave to appeal, then reversed the trial court's
judgment entered on the verdict, thus causing Fieger to lose his entitlement to contingent fees. In
the other case, Graves v. Warner Brothers, 669 N.W.2d 552 (Mich. 2003), a judgment favorable to
Fieger's clients was reversed by the Michigan Court of Appeals. The Michigan Supreme Court later
denied the plaintiff's application for appeal, again causing Fieger to lose his entitlement to
contingent fees. Although Fieger was trial counsel in both cases, he did not argue either case at the
appellate level.
         Before rulings were issued on the recusal motions in Gilbert and Graves, Fieger and his
clients filed an action in the United States District Court for the Eastern District of Michigan
(Gilbert v. Ferry, No. 03-60185), claiming that they were entitled to a fair hearing on the recusal
motions before an impartial tribunal. After the Justices denied the recusal motions in the two state
court cases, the federal district court dismissed  the action for lack of subject matter jurisdiction on
the basis of the Rooker-Feldman doctrine.1 Gilbert v. Ferry, 298 F. Supp. 2d 606, 618 (E.D. Mich.
2003) (the "Gilbert case"). The district court explained that, because the plaintiffs had
unsuccessfully raised the same due process arguments in their motions for recusal filed in the state
court cases, the federal court could not find that the plaintiffs' due process rights were violated
without also finding that the justices wrongly decided the motions for recusal. Id. at 618. This court
initially affirmed the district court's dismissal of the lawsuit on Rooker-Feldman grounds. Gilbert
v. Ferry, 401 F.3d 411, 418 (6th Cir. 2005). On rehearing, however, this court vacated the Rooker-
Feldman portion of its previous opinion, citing the Supreme Court's recent decision in Exxon Mobil
Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005). Gilbert v. Ferry, 413 F.3d 578, 579 (6th
Cir. 2005). In Exxon Mobil, the Supreme Court held that the Rooker-Feldman doctrine is limited
to "cases brought by state-court losers complaining of injuries by state-court judgments rendered
before the district court proceedings commenced and inviting district court review and rejection of
those judgments." Exxon, 544 U.S. at 284. Because Fieger and his clients filed their federal action
before entry of judgment in the two parallel state court cases, this Court held that, under Exxon
Mobil, the Rooker-Feldman doctrine did not preclude the district court's review of the plaintiffs'
claims regarding the Justices' interlocutory orders denying the plaintiffs' motions to recuse. The
Court nonetheless upheld the dismissal of the plaintiff's federal lawsuit on both Younger-abstention
and collateral estoppel grounds. Gilbert, 413 F.3d at 579.
        In the meantime, on his own behalf, Fieger filed this action in the United States District
Court for the Eastern District of Michigan (Fieger v. Ferry, No. 04-60089) (the "Fieger case"). He
did so in response to the district court's suggestion in the Gilbert case that "[i]f Mr. Fieger believes


        1
          Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia Court of Appeals v. Feldman, 460
U.S. 462 (1983).
No. 05-1295              Fieger v. Ferry, et al.                                                          Page 3


he has a viable claim, he may file a separate suit where his due process interests, whatever they may
be, form the 'primary question' presented." Gilbert, 298 F. Supp. 2d at 616 n.10. In this, the Fieger
case, Fieger alleged that the Justices deprived him of his constitutional rights by expressing "public,
personal, political, and professional animus" toward him, by refusing to recuse themselves from
cases in which he was involved, and by actively pursuing disciplinary proceedings against him
before the Attorney Grievance Commission. Invoking 42 U.S.C. § 1983, Fieger asked the court to
enter "[a] declaratory judgment that the Defendants, and each of them, has violated the
Constitutional Rights of the Plaintiff" as alleged. He also asked the court to enter a judgment
declaring that the Michigan Supreme Court's interpretation of the state's recusal rule was
unconstitutional. Finally, he asked the court to enter  a judgment declaring that Michigan's recusal
rule either permits the State Court Administrator2 to assign a judge of another court to hear and
decide a motion to recuse a supreme court justice or, in the alternative, is unconstitutional.
        The district court dismissed Feiger's case on Rooker-Feldman grounds. Despite Fieger's
allegation that "[t]here is no parallel State proceeding, nor any decision or order of a State Court
which would divest this Court of jurisdiction under the Rooker-Feldman doctrine," the district court
determined that it could not enter "[a] declaratory judgment that the Defendants, and each of them,
has violated the Constitutional Rights of the Plaintiff" without sitting in review of the state court's
implicit judgment that Fieger's constitutional rights were not violated by the Justices' failure to
recuse themselves. The district court also rejected Fieger's as-applied challenge to Michigan's
recusal rule, refusing to "second guess" the Michigan Supreme Court's interpretation of its own rule.
Finally, the district court rejected Fieger's facial challenge to the state court recusal rule, finding
such challenge to be inextricably intertwined with the final judgments of the Michigan Supreme
Court. In the words of the district court:
                  The substance and language of the Complaint make clear that
                  Plaintiff's constitutional challenge is not "general" at all; rather the
                  Complaint's factual and legal allegations are exclusively limited to
                  the manner in which Plaintiff believes the Justices violated his rights
                  or the rights of his clients by refusing to recuse themselves.
                  Plaintiff's factual allegations are entirely specific to the Justices'
                  political censure of him and their rejection of his motions for recusal.
                  More conspicuously, Plaintiff's legal claims are limited to the alleged
                  injury to his constitutional rights caused by the Justices' decision not
                  to recuse themselves. Indeed, the very manner in which Plaintiff
                  frames the issue presented by his putative challenge betrays his
                  intention to relitigate issues that were prominent in the state
                  proceedings. Certainly, there may be situations where a portion of a
                  complaint stating a general challenge may be permitted to proceed
                  even though the general thrust of the complaint presents an as-applied
                  challenge. However, where, as here, a complaint is devoid of any
                  legal or factual claim that is independent of previous state court
                  proceedings, the Rooker-Feldman doctrine requires dismissal.
Distr. Ct. Order at 12-13 (citations omitted); J.A. at 28-29.
       Fieger filed this timely appeal on March 1, 2005.




       2
           The State Court Administrator, John D. Ferry, Jr., is a named defendant in Fieger's lawsuit.
No. 05-1295           Fieger v. Ferry, et al.                                                     Page 4


                             II. MICHIGAN'S RECUSAL RULE
       Michigan Court Rule ("MCR") 2.003 governs the disqualification of judges in civil
proceedings, providing, in pertinent part, as follows:
       (A) Who May Raise. A party may raise the issue of a judge's disqualification by
       motion, or the judge may raise it.
       (B) Grounds. A judge is disqualified when the judge cannot impartially hear a case,
       including but not limited to instances in which:
               (1) The judge is personally biased or prejudiced for or against a party
               or attorney.
               ....
       (C) Procedure.
               ....
               (3) Ruling. The challenged judge shall decide the motion. If the
               challenged judge denies the motion,
               (a) in a court having two or more judges, on the request of a party,
               the challenged judge shall refer the motion to the chief judge, who
               shall decide the motion de novo;
               (b) in a single-judge court, or if the challenged judge is the chief judge, on
               the request of a party, the challenged judge shall refer the motion to the state
               court administrator for assignment to another judge, who shall decide the
               motion de novo.
       Fieger maintains that the Michigan Supreme Court does not follow the procedures set forth
in 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 a "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, both on its face and as applied.

                         III. THE ROOKER-FELDMAN DOCTRINE
         In Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), the Supreme Court held that a federal
district court may not review a state court decision for alleged federal law error. Such holding was
reaffirmed sixty years later in District of Columbia Court of Appeals v. Feldman, 460 U.S. 462
(1983). In Feldman, the court wrote:
               [L]ower federal courts possess no power whatever to sit in direct
               review of state court decisions. If the constitutional claims presented
               to a United States District Court are inextricably intertwined with the
               state court's denial [of a claim] in a judicial proceeding . . . then the
               District Court is in essence being called on to review the state-court
               decision. This the District Court may not do.
No. 05-1295            Fieger v. Ferry, et al.                                                    Page 5


Id. at 483 n.16 (internal quotation marks and citation omitted). The principles enunciated in Rooker
and Feldman have become known as the Rooker-Feldman doctrine. As clarified in Exxon Mobil,
application of the doctrine is confined to "cases brought by state-court losers complaining of injuries
by state-court judgments rendered before the district court proceedings commenced and inviting
district court review and rejection of those judgments." Exxon Mobil, 544 U.S. at 284. As stressed
in Exxon Mobil, "[i]f a federal plaintiff present[s] 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."
Id. at 293 (internal quotation marks omitted); see also McCormick v. Braverman, 451 F.3d 382, 394
(6th Cir. 2006) (explaining that "[i]n Exxon, the Supreme Court implicitly repudiated the circuits'
post-Feldman use of the phrase 'inextricably intertwined' to extend Rooker-Feldman to situations
where the source of the injury was not the state court judgment"); Hoblock v. Albany County Bd. of
Elections, 422 F.3d 77, 87 (2d Cir. 2005) (explaining that "federal plaintiffs are not subject to the
Rooker-Feldman bar unless they complain of an injury caused by a state judgment" (emphasis
omitted)); Davani v. Virginia Dep't of Transp., 434 F.3d 712, 719 (4th Cir. 2006) (explaining that
"[u]nder Exxon, . . . Feldman's 'inextricably intertwined' language does not create an additional legal
test for determining when claims challenging a state-court decision are barred, but merely states a
conclusion: if the state-court loser seeks redress in the federal district court for the injury caused by
the state-court decision, his federal claim is, by definition, 'inextricably intertwined' with the
state-court decision, and is therefore outside of the jurisdiction of the federal district court"). In
other words, "[t]he key point is that the source of the injury must be from the state court judgment
itself; a claim alleging another source of injury is an independent claim." McCormick, 451 F.3d at
394.
                                          IV. DISCUSSION
A. Standard of Review
      This court reviews de novo a district court's dismissal of a case on the grounds that the
Rooker-Feldman doctrine deprives it of subject matter jurisdiction. McCormick, 451 F.3d at 389.
B. Standing
        Although the district court did not address the issue of Fieger's standing to sue, it is–of
course–an issue that may be raised and/or considered at any time. In general, to establish standing
to bring suit, a plaintiff must show that (1) he or she has "suffered an 'injury in fact' that is
(a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the
injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to
merely speculative, that the injury will be redressed by a favorable decision." Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000) (citing Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560-61 (1992)). In the context of a declaratory judgment action,
allegations of past injury alone are not sufficient to confer standing. The plaintiff must allege and/or
"demonstrate actual present harm or a significant possibility of future harm." Peoples Rights Org.,
Inc. v. City of Columbus, 152 F.3d 522, 527 (6th Cir. 1998); see also O'Shea v. Littleton, 414 U.S.
488, 495-96 (1974) (explaining that "[p]ast exposure to illegal conduct does not in itself show a
present case or controversy regarding injunctive relief"); Golden v. Zwickler, 394 U.S. 103, 109-10
(1969) (dismissing the plaintiff's action seeking a declaration that a state statute was unconstitutional
because, although the plaintiff had been prosecuted under the statute in the past, the likelihood of
the plaintiff's suffering repeat exposure to the statute was remote and, thus, the plaintiff lacked
standing).
       Here, Fieger has alleged that "[t]he threat that the Plaintiff cannot, and will not, receive a fair
hearing before an impartial and independent tribunal is real, immediate, and continuing." Compl.
No. 05-1295                Fieger v. Ferry, et al.                                                                   Page 6


at ¶ 20. In 2005, the district court in Gilbert noted that "Mr. Fieger has been involved with as many
as thirty-eight cases filed with the [Michigan] Supreme Court." Gilbert, 298 F. Supp. 2d at 609.
In his complaint, Fieger alleged that one of the Justices stated–during the 2000 Election Cycle–that
"Geoffrey Fieger has $90 million in lawsuit awards pending in the State Court of Appeals." Compl.
at ¶ 11(f). Given his litigation history, it is reasonable to conclude that there is a significant, rather
than a remote, possibility that Fieger's present and future cases will someday reach the Michigan
Supreme Court. Because it is, therefore, likely, rather than speculative, that Fieger will again face
the recusal issue that he has faced in past cases, we find that Fieger has standing to pursue his claim
for declaratory relief in this case.
C. Challenge to the Justices' Past Actions
         In his brief on appeal, Fieger explains that "[t]he only relief which [he] sought, in the case
at bar, was the entry of a declaratory judgment that the failure to provide a meaningful mechanism
by which the impartiality of a member of the Michigan Supreme Court could be feasibly and
realistically challenged was a denial of due process." Pl.'s Br. at 15. It is unclear from his
complaint, however, that Fieger so limits his § 1983 claim. Indeed, it is only in the section entitled
"Prayer for Relief" that the reader of the complaint is made aware that Fieger seeks to challenge the
constitutionality of Michigan's recusal rules. His complaint otherwise focuses on the past actions
of the Justices, including the Justices' past expression of "public, personal, political, and professional
animus" toward Fieger, the Justices' pursuit of disciplinary proceedings against Fieger in reprisal
for Fieger's exercise of his First Amendment rights, and the Justices' refusal "to recuse themselves
from making decisions concerning [Fieger]." Compl. at ¶ 12; J.A. at 10-12. The district court
described Fieger's complaint as being "devoid of any legal or factual claim that is independent of
previous state court proceedings." Dist. Ct. Op. at 13; J.A. at 29. Fieger, moreover, requests in his
complaint a declaration that "the Defendants, and each of them, has violated the Constitutional
Rights of the Plaintiff, as alleged." Compl. at 7; J.A. at 13. The district court understandably
construed such a request as a request for a declaration regarding       the past actions of the Justices,
including the Justices' refusal to recuse themselves in past cases.3 To the extent, if any, that Fieger
seeks such a declaration, the district court was correct in finding that Rooker-Feldman precludes the
federal courts from reviewing the Justices' past recusal decisions.4 Fieger's counsel conceded as
much at oral argument. To this extent, therefore, the district court's judgment must be affirmed.
D. Challenge to Michigan's Recusal Rule
        The more difficult issue is whether the district court was correct in determining that Fieger's
constitutional challenge (both facial and as-applied) to Michigan's recusal procedures was barred
by Rooker-Feldman. Fieger challenges the district court's decision, arguing that Rooker-Feldman
is inapplicable to his claims. Among other things, Fieger stresses that he is asking the federal court
to compel compliance with the Constitution in "the post-Gilbert litigation which poses the
continuing conundrum, unresolved, and unresolveable, by the Michigan Supreme Court." Pl.'s Br.
at 16. He suggests, in other words, that his litigation is forward-looking, that it is independent of



         3
           A declaratory judgment is an inappropriate mechanism to address allegations of past harm. See AmSouth Bank
v. Dale, 386 F.3d 763, 786 (6th Cir. 2004) (explaining that "[t]he 'useful purpose' served by the declaratory judgment
action is the clarification of legal duties for the future, rather than the past harm a coercive tort action is aimed at
redressing").
         4
           Although Fieger was not a party in the state court cases, and while–generally–"[t]he Rooker-Feldman doctrine
does not apply to bar a suit in federal court brought by a party that was not a party in the preceding action in state court,"
United States v. Owens, 54 F.3d 271, 274 (6th Cir. 1995) (citation omitted), Fieger (whether on behalf of his clients or
on his own behalf) cannot seek in federal court to undo a state court judgment.
No. 05-1295           Fieger v. Ferry, et al.                                                       Page 7


the two cases already decided, and that he is not complaining of injuries caused by those past cases.
Fieger's counsel reiterated this argument during oral argument.
        The district court was not convinced by Fieger's attempts to redefine the relief sought.
Finding Fieger's complaint devoid of any legal or factual claim independent of the previous state
court proceedings, the court rejected Fieger's argument regarding an independent claim, concluding
that Rooker-Feldman barred all of Fieger's claims, however couched, because–at the very least–they
were inextricably intertwined with the final judgments of the Michigan Supreme Court.
        The district court cited two cases in support of its decision: Howell v. Supreme Court of
Texas, 885 F.2d 308 (5th Cir. 1989), and Chafin v. West Virginia Supreme Court of Appeals, No.
3:98-0134, 1998 WL 1297605 (S.D. W.Va. Dec. 18, 1998), aff'd, 203 F.3d 819 (4th Cir. 1999). In
Howell, the Fifth Circuit considered whether the Rooker-Feldman doctrine barred a plaintiff's claim
that a Texas Rule of Appellate Procedure, governing recusal and disqualification of judges, was
unconstitutional on due process grounds. Before filing his constitutional challenge in federal court,
Howell (a judge on the Texas Court of Appeals) had filed motions requesting that the justices of the
Texas Supreme Court recuse themselves from hearing an appeal from an adverse jury verdict in a
case that he, as the plaintiff, had brought in state court. When the justices refused, Howell filed a
§ 1983 action in federal court. The Fifth Circuit concluded that Howell's constitutional claim was
barred by Rooker-Feldman because it was inextricably intertwined with the state court's judgment.
        In Chafin, the plaintiff likewise challenged the constitutionality of the state's recusal rules.
Before filing suit in federal court, the plaintiff had unsuccessfully requested that certain state
supreme court justices disqualify themselves from hearing his divorce appeal. While acknowledging
that a ruling to the effect that West Virginia's recusal rules were unconstitutional would not
necessarily mean that the recusal decisions themselves were wrong, the federal district court
nonetheless dismissed the claim, finding that the plaintiff's constitutional claim was inextricably
intertwined with the state court decision. Such finding was based not only on the language of the
plaintiff's complaint, the substance of which was limited to a core allegation that the state justices
had violated his constitutional rights by not recusing themselves from the appeal of his divorce, but
also on the obvious inability of the plaintiff to establish harm in the absence of decisions by the state
court justices. The Fourth Circuit affirmed the district court's decision on Rooker-Feldman grounds.
        It is important to note that Howell and Chafin were both decided before the Supreme Court
clarified the reach of Rooker-Feldman in Exxon Mobil. Indeed, given the lessons taught in Exxon
Mobil and its progeny, the decisions in Howell and Chafin are not persuasive here.
        In Feldman, the Supreme Court explained:
        Challenges to the constitutionality of state bar rules . . . do not necessarily require a
        United States District Court to review a final state court judgment in a judicial
        proceeding. . . . United States District Courts . . . have subject matter jurisdiction
        over general challenges to state bar rules, promulgated by state courts in non-judicial
        proceedings, which do not require review of a final state court judgment in a
        particular case.
Feldman, 460 U.S. at 486. In Exxon Mobil, the Court emphasized that "[i]f a federal plaintiff
'present[s] 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.'" Exxon Mobil, 544 U.S. at 293.
      In McCormick v. Braverman, this court addressed the question of "how to differentiate
between a claim that attacks a state court judgment, which is within the scope of the Rooker-
No. 05-1295           Fieger v. Ferry, et al.                                                 Page 8


Feldman doctrine, and an independent claim, over which a district court may assert jurisdiction."
451 F.3d at 393. In the words of the McCormick court:
               The inquiry . . . is the source of the injury the plaintiff alleges in the
               federal complaint. If the source of the injury is the state court
               decision, then the Rooker-Feldman doctrine would prevent the
               district court from asserting jurisdiction. If there is some other source
               of injury, such as a third party's actions, then the plaintiff asserts an
               independent claim.
Id.
        To the extent that Fieger challenges the constitutionality of Michigan's recusal rules by
alleging that "[t]he threat that the Plaintiff cannot, and will not, receive a fair hearing before an
impartial and independent tribunal is real, immediate, and continuing," Rooker-Feldman does not
bar his action. To that extent, the source of Fieger's alleged injury is not the past state court
judgments; it is the purported unconstitutionality of Michigan's recusal rule as applied in future
cases. Such a claim is independent of the past state court judgments. Thus, insofar as the district
court dismissed Fieger's challenge to the constitutionality of Michigan's recusal rule pursuant to the
Rooker-Feldman doctrine, the court's judgment must be reversed.
                                        V. CONCLUSION
        For the reasons set forth above, the district court's judgment of dismissal is AFFIRMED to
the extent, if any, that Fieger challenges the Justices' past recusal decisions. The district court's
judgment of dismissal is REVERSED to the extent Fieger challenges the constitutionality of
Michigan's recusal rule. The case shall be REMANDED to the district court for further proceedings
consistent with this opinion.
No. 05-1295           Fieger v. Ferry, et al.                                                   Page 9


                                       ___________________
                                         CONCURRENCE
                                       ___________________
         CLAY, Circuit Judge, concurring. I concur in the majority opinion, but write separately to
more fully explicate Plaintiff’s standing to challenge Michigan’s Recusal Rule. In my view,
Plaintiff has established standing to sue both in his own right, and on behalf of his present and future
clients.
        Three elements comprise the “irreducible constitutional minimum” of standing: injury in
fact, causation, and redressibility. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). A
plaintiff can establish injury in fact by showing that he suffered “an invasion of a legally protected
interest which is (a) concrete and particularized; and (b) actual or imminent, not conjectural or
hypothetical.” Defenders of Wildlife, 504 U.S. at 560 (internal citations and quotations omitted).
Where a plaintiff seeks declaratory judgment, he must demonstrate “a substantial controversy,
between parties having adverse legal interests, of sufficient immediacy and reality to warrant the
issuance of a declaratory judgment.” Golden v. Zwickler, 394 U.S. 103, 108 (1969) (citations
omitted).
        Plaintiff contends that the Rule violates his own due process rights inasmuch as he stands
to suffer the deprivation of his property interest in fees and in his client base, and of his liberty
interest in practicing his chosen profession, absent any prior procedural review. (See Pl.’s Br. at 30
(alleging “significant possibility of future harm” in the form of “loss of substantial income”); Compl.
at ¶ 10; J.A. at 9 (claiming violation of his right “to pursue his chosen profession . . . free from
reprisal for exercising his First Amendment rights”)) This doubtless constitutes a cognizable injury
to legally protected interests. See Singleton v. Wulff, 428 U.S. 106, 112-13 (1976) (loss of income
constitutes injury in fact to physicians); Conn v. Gabbert, 526 U.S. 286, 291-92 (1999)
(acknowledging “that the liberty component of the Fourteenth Amendment’s Due Process Clause
includes some generalized due process right to choose one’s field of private employment”). A
substantial controversy exists in this case, characterized by the “significant possibility” of harm to
Plaintiff’s economic and professional interests in the future. See Peoples Rights Org., Inc. v. City
of Columbus, 152 F.3d 522, 527 (6th Cir. 1998).
        The significant possibility of future harm here is born of the Justices’ past construction and
application of the Michigan Recusal Rule. See O’Shea v. Littleton, 414 U.S. 488, 496 (1974)
(“[P]ast wrongs are evidence bearing on whether there is a real and immediate threat of repeated
injury.”); see also City of Los Angeles v. Lyons, 461 U.S. 95, 107 n.8 (1983) (“It is the reality of the
threat of repeated injury that is relevant to the standing inquiry, not the plaintiff’s subjective
apprehensions.”). The immediacy and reality of the threat of future harm flow from the fact that
many of Plaintiff’s cases have been appealed to the Michigan Supreme Court, and that
notwithstanding the “acrimonious and well-publicized dialogue” between Plaintiff and the Justices,
the Justices have declined to recuse themselves from consideration of those appeals. Additionally,
Plaintiff continues to represent clients before Michigan’s tribunals, and to undertake representation
of new clients. Cf. Zwickler, 394 U.S. at 109 (finding no controversy of “sufficient immediacy and
reality” in a challenge to a law criminalizing distribution of anonymous handbills given the low
likelihood that the targeted “Congressman would again be a candidate” for office). The State of
Michigan itself has licensed Plaintiff in this regard, and he engages in the endeavor of legal
representation as a profession. He therefore demonstrates a “realistic threat” of being subject to a
forum in which he asserts the Rule should apply. Thus, Plaintiff asserts a cognizable injury for
purposes of standing.
No. 05-1295                Fieger v. Ferry, et al.                                                               Page 10


          A causal connection must also exist “between the assertedly unlawful conduct and the
alleged injury.” Allen v. Wright, 468 U.S. 737, 753 n.19 (1984). That is, the injury must “be fairly
traceable to the challenged action.” Defenders of Wildlife, 504 U.S. at 560 (citations omitted);
Friends of the Earth v. Laidlaw, 528 U.S. 167, 180 (2000); see also Allen, 468 U.S. at 751. Plaintiff
asserts that the Michigan Recusal Rule either applies to the Michigan Supreme Court, or violates
his due process rights both facially and as-applied. The injuries alleged to Plaintiff’s economic and
professional interests flow directly from the Rule inasmuch as the Justices interpret the Rule to apply
only to Michigan’s lower courts and court of appeals. See Fieger v. Ferry, No. 04-60089, Slip Op.
at 3 (E.D. Mich. Jan. 13, 2005) (noting that “recent practice of the Michigan Supreme Court
indicates that, although the court does entertain motions for recusal or disqualification, it does not
follow the procedures set forth in MCR 2.003”). These injuries do not “result[] from the
independent action of some third party not before the court.” Simon v. E. Ky. Welfare Rights Org.,
426 U.S. 26, 42 (1976); see also Allen, 468 U.S. at 757 (citations omitted). Rather, the deprivation
alleged is “fairly traceable” to the Rule which, as interpreted by the Justices, provides no mechanism
for review and requires no statement on the record of the rationale supporting the Justices recusal
decisions.
        Further, “it must be likely, as opposed to merely speculative, that the injury will be redressed
by a favorable decision.” Defenders of Wildlife, 504 U.S. at 561 (citations omitted); see also Allen,
468 U.S. at 751. Here, the Court looks to “the causal connection between the alleged injury and the
judicial relief requested.” Allen, 468 U.S. at 753 n.19. A favorable decision in this case would
redress the injury advanced. On remand, the district court is capable of providing relief sufficient
to redress the injury Plaintiff asserts. Should the district court determine, after consideration on the
merits, that such relief is warranted, declaratory judgment would redress Plaintiff’s alleged injuries
either by requiring the Justices to follow   the Michigan Recusal Rule as written, or by effectively
requiring amendments to that Rule.1 Thus, Plaintiff has established standing to assert his own due
process rights.
        Additionally, Plaintiff asserts his present and future clients’ due process rights to a “fair
hearing before an impartial and independent tribunal.” Plaintiff maintains his clients will likely
suffer injury absent some procedure for reviewing the Justices’ recusal decisions in future cases on
appeal from his lower court victories and losses. (Compl. at ¶ 19; J.A. at 13) To secure adjudication
on the merits of his clients’ rights, Plaintiff must first overcome the Supreme Court’s prudential
limitation on third party standing.
        As a general matter, a plaintiff “must assert his own legal rights and interests, and cannot rest
his claim to relief on the legal rights or interests of third parties.” Warth v. Seldin, 422 U.S. 490, 499
(1975) (citations omitted). However, the Supreme Court has delineated exceptions to its prudential
limitation on third party standing, and has allowed plaintiffs to assert the rights of a third party
“[w]here practical obstacles prevent a party from asserting rights on behalf of itself.” Sec’y of State
of Md. v. Joseph H. Munson Co., Inc., 467 U.S. 947, 956 (1984). To fit within this exception, a
plaintiff must show three elements: first, injury in fact; second, a close relationship with the third
party whose rights he asserts; and third, that the third party has no forum to protect its own interests.
Id.; Kowalski v. Tesmer, 543 U.S. 125, 130 (2004); Powers v. Ohio, 499 U.S. 400, 411 (1991);
Singleton, 428 U.S. at 114-16; Eisenstadt v. Baird, 405 U.S. 438, 443-46 (1972).


         1
             The district court on remand will consider the merits of Plaintiff’s twin due process challenges and this
discussion of Plaintiff’s standing should in no way be construed as commentary on the merits of Plaintiff’s claims. See,
e.g., Dep’t of Labor v. Triplett, 494 U.S. 715, 721, 726 (1990) (finding third party standing to assert clients’ due process
rights, but later concluding there was no violation); Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 623
n.3, 632-33 (1989) (prudential limitation on third party standing not applicable, but Sixth Amendment claim fails on the
merits). Most appropriately framed, the standing inquiry looks only to the existence of a case or controversy sufficient
to insure the parties properly frame the issues and vigorously advocate their views.
No. 05-1295           Fieger v. Ferry, et al.                                                   Page 11


        On at least four occasions, the Supreme Court has considered the propriety of permitting
lawyers to assert the constitutional rights of their clients. Two times, the lawyers met the strictures
of prudential standing and the Court proceeded to consideration on the merits. See Caplin &
Drysdale, 491 U.S. at 623 n.3; Triplett, 494 U.S. at 721. In Caplin & Drysdale, the limitation on
third party standing did not prevent the litigant law firm from asserting its client’s Sixth Amendment
Right to Counsel in a challenge to the asset forfeiture provision of the continuing criminal enterprise
statute. Caplin & Drysdale, 491 U.S. at 623 n.3. The Court found third party standing appropriate
even though it concluded the criminal defendant faced no significant hurdles in personally asserting
the right. Id. In the Court’s view, the law firm properly relied on its client’s constitutional rights
because “[t]he attorney-client relationship . . . is one of special consequence,” and the challenged
provision “may ‘materially impair the ability of’ third persons in [the client’s] position to exercise
their constitutional rights.” Id.
        In Triplett, the Supreme Court found an attorney had third party standing to advance his
clients’ Fifth Amendment due process rights to legal representation in a challenge to the Black Lung
Benefits Act, which limited attorneys’ fees to those approved by the Department of Labor. Triplett,
494 U.S. at 720-21. The lawyer there agreed to represent black lung claimants for a contingent fee.
Id. at 718. As a result, a committee of the state bar recommended sanctions against him and filed
a complaint to enforce them. Id. The state’s highest court denied enforcement, finding the Act
violated due process in “‘effectively den[ying] claimants necessary access to counsel.’” Id. at 718-
19.
        In defense to the disciplinary charges, the lawyer in Triplett challenged the fee scheme set
forth in the Act, alleging it violated his clients’ interests. Id. at 720. Finding third party standing
appropriate, the Court noted that “enforcement of [the] restriction against the litigant prevents a third
party from entering into a relationship with the litigant (typically a contractual relationship), to
which relationship the third party has a legal entitlement (typically a constitutional entitlement).”
Id. Additionally, the Court observed that the due process rights of existing claimants were at issue
since, in the same action, the government sought to recover fees improperly paid. Id. at 721.
        On two occasions, the Supreme Court denied third party standing to lawyers pressing their
clients’ rights. See Gabbert, 526 U.S. at 292-93; Tesmer, 543 U.S. at 134. In Gabbert, the Court
declined third party standing for a lawyer to assert his client’s purported right to have counsel
present during her grand jury testimony. Gabbert, 526 U.S. at 292. There, the client could
ostensibly have brought a § 1983 claim in her own right. Most recently, in Kowalski v. Tesmer, two
attorneys challenged a law prohibiting the appointment of appellate counsel to represent indigents
who pled guilty. Tesmer, 543 U.S. at 127. The Tesmer court concluded that the attorneys’
relationship with “as yet unascertained Michigan criminal defendants” was not sufficiently close,
characterizing it as a “hypothetical” relationship with unknown claimants and observing that the
alleged violation did not result from enforcement of the law against the litigant lawyers. Id. at 131.
Additionally, the Court found no hindrance to the indigent defendants’ ability to personally
challenge the law either on direct appeal or in state or federal collateral proceedings. Id. at 131-32.
Denying standing, the Court relied in part on the “fair inference” that the plaintiff attorneys “wanted
a federal court to short-circuit the State’s adjudication of th[e] constitutional question.” Id. at 132-
33. Accordingly, in both Gabbert and Tesmer, the plaintiffs failed to meet the requirements of
prudential standing.
        In my view, Plaintiff’s challenge on behalf of his clients fits neatly within the exceptions
established in the Court’s third party standing jurisprudence. First, as previously discussed, Plaintiff
alleges adequate injury in fact. He “can be expected satisfactorily to frame the issues” here, see
Joseph H. Munson Co., Inc., 467 U.S. at 958, because of his personal stake in the matter. Second,
Plaintiff has established a close relationship with his current and future clients.
No. 05-1295           Fieger v. Ferry, et al.                                                  Page 12


        An attorney’s relationship with his clients is undeniably a close one, and the Supreme Court
has recognized the “special consequence” of that relationship. Caplin & Drysdale, 491 U.S. at 623
n.3; see also Triplett, 494 U.S. at 721; but see Gabbert, 526 U.S. at 292-93; Tesmer, 543 U.S. at
131-32. Here, Plaintiff asserts the rights of both existing and future clients. At the trial level,
Plaintiff currently represents clients whose cases may progress to the highest state level of appeal,
and he continues to undertake new representation. Plaintiff’s current clients form an ascertainable
class, and any and all individuals who retain him share the same interests as that class. In Triplett,
the lawyer had standing to broadly challenge the Black Lung Benefits Act due to his relationship
with certain existing clients. See Triplett, 494 U.S. at 721. There, the lawyer predicated his
challenge on rights not actually violated but capable of violation with respect to future clients, since
his existing clients already had the benefit of his representation. Id. at 718. Similarly, Plaintiff’s
relationship with current clients suffices to support his broad-based challenge to the Michigan
Recusal Rule, a challenge designed to protect the rights and interests of future clients.
        What is more, the Michigan Recusal Rule provides for disqualification where a “judge is
personally biased . . . against a party or attorney.” MCR 2.003(B)(1) (emphasis added). That Rule
further establishes a procedure for de novo review of recusal motions following a denial. MCR
2.003(C). As interpreted by the Justices, application of the Michigan Recusal Rule against Plaintiff
could impair his current and future clients’ access to the type of fair and impartial tribunal secured
under the Due Process Clause. See Triplett, 494 U.S. at 720.
        Additionally, courts have more readily found a sufficiently close relationship where the
plaintiff and the third parties share a “congruence of interests.” Powers, 499 U.S. at 414. In this
case, “[t]he activity sought to be protected is at the heart of the business relationship between
[Plaintiff] and [his] clients,” see Joseph H. Munson Co., Inc., 467 U.S. at 958, who contract for
Plaintiff’s services and expect to receive adequate and meaningful representation. To be sure,
Plaintiff’s present and future clients seek and retain legal counsel to bolster their chances of
prevailing at every stage of judicial proceedings. Absent an impartial and unbiased forum for
appeals brought on their behalf, the assistance of counsel is much less meaningful to a litigant. By
asserting his clients’ rights, Plaintiff seeks to insure that they enter the appellate forum on equal
footing with their opponents. Plaintiff’s unquestionable desire to protect his client base, as well as
his personal pecuniary interest in preserving his clients’ jury awards, align his interests with those
of his clients in such a way to insure that he will “properly . . . frame the issues and present them
with the necessary adversarial zeal.” See id. at 956. Thus, Plaintiff’s interests in raising a due
process challenge to the Rule directly correlate with his clients’ interests.
        Third, and most critically in this case, Plaintiff’s clients have no viable avenue to personally
challenge the constitutionality of the Michigan Recusal Rule. See Baird, 405 U.S. at 446 (permitting
physician to assert the rights of his patients to access contraceptives because they “are not
themselves subject to prosecution and, to that extent, are denied a forum in which to assert their own
rights”); see also Barrows v. Jackson, 346 U.S. 249, 257 (1953) (citing Pierce v. Soc’y of Sisters,
268 U.S. 510 (1925)). This is simply not a case where Plaintiff or his clients failed to utilize an
alternate route to have their due process rights adjudicated. Although Plaintiff’s clients could
hypothetically challenge Michigan’s Recusal Rule in the first instance, they would lack standing to
do so because they could not “demonstrate . . . a significant possibility of future harm.” See Peoples
Rights Org., Inc., 152 F.3d at 527. Nor could they prove actual present harm, until their cause – in
effect – would be barred by the preclusive effects of collateral estoppel or the Younger doctrine. See
Gilbert v. Ferry, 413 F.3d 578, 579, reh’g and vacating in part, 401 F.3d 411 (6th Cir. 2005).
Moreover, “normal processes of appellate review” provide no alternative. Cf. Cohn v. Brown, No.
04-5375, 161 F. App’x 450, 455 (6th Cir. Dec. 14, 2005) (eschewing attorney’s challenge to the
court’s method of calculating fees in bankruptcy proceedings when he could have directly appealed).
Further, unlike the litigants in Tesmer, Plaintiff brought this § 1983 suit not because he “wanted a
federal court to short-circuit the State’s adjudication of this constitutional question,” see 543 U.S.
No. 05-1295                Fieger v. Ferry, et al.                                                               Page 13


at 132-33, but because he wanted the question to be adjudicated at all. Plaintiff’s cause falls2
squarely within the well-defined exception to the prudential limitation on third party standing.
Consequently, in my view, Plaintiff has established standing to challenge the Michigan Recusal Rule
to protect his clients’ due process rights, as well as his own.




         2
            To be clear, by concluding that Plaintiff has standing to assert the due process rights of his clients, I do not
advocate a more expansive view that lawyers should in all cases be permitted to “bring in court the claims of future
unascertained clients.” Tesmer, 543 U.S. at 134 (quoting Tesmer v. Granholm, 333 F.3d 683, 709 (6th Cir. 2003)
(Rogers, J., dissenting in part), rev’d sub nom. Kowalski v. Tesmer, 543 U.S. 125 (2004)). Narrowly confined to
Plaintiff’s unique circumstance, I would permit third party standing in this case because the challenged Rule potentially
impacts the due process rights of an ascertainable class comprised of current clients, and correspondingly any and all
clients that retain Plaintiff.
