Rule 206 ELECTRONIC CITATION: 2004 FED App. 0286P (6th Cir.) File Name: 04a0286p.06… v. WILLIAM C. WHITBECK, Chief Judge of the Michigan Court of Appeals

*The Honorable B obb y R. B aldock, Circuit Judge of the United States
Court of Appeals for the Tenth Circuit, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0286P (6th Cir.)
File Name: 04a0286p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
JAMES L. HOWARD,
Plaintiff-Appellant,
v.
WILLIAM C. WHITBECK, Chief
Judge of the Michigan Court
of Appeals; MAURA D.
CORRIGAN, Chief Justice of
the Michigan Supreme Court,
Defendants-Appellees.
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No. 03-1396
Appeal from the United States District Court
for the Western District of Michigan at Lansing.
No. 02-00093—Wendell A. Miles, District Judge.
Argued: June 11, 2004
Decided and Filed: August 31, 2004
Before: SILER, MOORE, and BALDOCK, Circuit
Judges.*
2 Howard v. Whitbeck, et al. No. 03-1396
_________________
COUNSEL
ARGUED: Sarah M. Riley, WARNER, NORCROSS &
JUDD, Grand Rapids, Michigan, for Appellant. Kevin R.
Himebaugh, OFFICE OF THE ATTORNEY GENERAL,
Lansing, Michigan, for Appellees. ON BRIEF: Sarah M.
Riley, WARNER, NORCROSS & JUDD, Grand Rapids,
Michigan, for Appellant. Kevin R. Himebaugh, OFFICE OF
THE ATTORNEY GENERAL, Lansing, Michigan, for
Appellees.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Michigan
prisoner James L. Howard (“Howard”) appeals from the
district court’s dismissal of his § 1983 suit for lack of subject
matter jurisdiction on the basis of the Rooker-Feldman
doctrine. Howard had filed suit against William C. Whitbeck
(“Whitbeck”), Chief Judge of the Michigan Court of Appeals,
and Maura D. Corrigan (“Corrigan”), Chief Justice of the
Michigan Supreme Court, alleging that he had been denied
access to the courts under MCL § 600.2963, requiring certain
filing fees to be paid by prisoners before filing civil suits.
Howard previously had appeals rejected by both the Michigan
Court of Appeals and the Michigan Supreme Court for failure
to pay filing fees. While the district court was correct to
dismiss Howard’s claim that § 600.2963 was unconstitutional
as applied to him, as that claim is barred by Rooker-Feldman,
we conclude that the district court erred in deciding the merits
of Howard’s general challenge to the statute in deciding it
lacked subject matter jurisdiction. The failure of a claim on
the merits does not divest the district court of jurisdiction.
We therefore hold that the district court erred in dismissing

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No. 03-1396 Howard v. Whitbeck, et al. 3
1Counsel was appointed by the district court subsequent to the filing
of Howard’s complaint, and the same appo inted counsel represents
Ho ward on ap peal.
2No explanation appears for Tro sky’s nonparticipation in subsequent
litigation.
that part of the complaint, and REVERSE the judgment of
the district court.
I. BACKGROUND
Given Howard’s pro se status in the Michigan courts and in
filing his initial complaint in the United States district court,1
and the sparse nature of the state-court records filed in the
district court, the procedural history of Howard’s suit in the
state courts is not entirely clear on appeal. On September 20,
2000, Howard and two other prisoners, James Tomzek
(“Tomzek”) and Stuart Trosky (“Trosky”), filed suit in the
Ingham County Circuit Court, complaining of prison
conditions, namely environmental tobacco smoke. On
September 12, 2001, the suit was dismissed, presumably on
the merits, as it was after extensive briefing. Along with the
appeal filed by Tomzek and Howard,2 a motion to waive fees
was filed on January 2, 2002. When that motion was
docketed, it was classified as only having been filed for
Tomzek, and Howard’s federal complaint seems to indicate
that this was the case: “Plaintiff and Mr. Tomzek filed a
claim of appeal along with a motion for waiver of fees and
costs and prisoner account statement for Mr. Tomzek.” Joint
Appendix (“J.A.”) at 12 (Compl.). It appears from Howard’s
complaint that he and Tomzek believed only one fee was
necessary, and so filed a waiver for just Tomzek. The waiver
motion is not in the Joint Appendix, nor does it appear to
have been part of the record in the district court. In any case,
that motion was denied on February 26, 2002, by Chief Judge
Whitbeck. Tomzek paid the partial fee he had been directed
to pay; Howard instead filed “an application to the Michigan
4 Howard v. Whitbeck, et al. No. 03-1396
Supreme Court,” complaining that requiring two filing fees
and denying the indigency application had been in error and
that MCL § 600.2963(8), requiring filing fees for prior cases
to be paid in full before subsequent suits can be filed, was
unconstitutional. J.A. at 14-15 (Compl.). Because Howard
did not pay the initial partial filing fee required by the
February 26 order and refile his pleadings with that fee, his
appeal was not officially filed.
The application Howard submitted to the Michigan
Supreme Court does not appear in the Joint Appendix, but the
docket sheet for Howard’s suit in the Michigan Court of
Appeals indicates that he filed an “Inter Application” to the
Michigan Supreme Court on March 21, 2002. J.A. at 127. A
motion to waive fees for the appeal to the Michigan Supreme
Court appears on the Court of Appeals docket sheet as well;
the entries for both “Sct Motion:Waive Fees” and
“SctOrder:Denying Motion” are dated March 25, 2002, J.A.
at 127, but Howard’s appellate brief indicates that he filed the
waiver at the same time as his application (i.e., March 21).
The Michigan Supreme Court Order of March 25, 2002
required an initial partial filing fee of $21.00, which Howard
did not pay, and his appeal to the Michigan Supreme Court
was dismissed on May 8, 2002. On May 10, Howard
submitted a “Motion For Show Cause Hearing” to the
Michigan Court of Appeals, alleging three errors: the “split
filing fee” (requiring money from both Howard and Tomzek);
the denial of his motion for waiver of the fee; and that the
refusal to file Howard’s appeal had resulted in a constitutional
violation. J.A. at 137-38 (Mot. For Show Cause Hr’g). This
motion was returned to Howard on May 15 because he no
longer had an appeal pending in the Michigan Court of
Appeals.
On June 11, 2002, Howard filed a complaint in the United
States District Court for the Western District of Michigan,
asking for a declaratory judgment and a preliminary
injunction against Chief Justice Corrigan and Chief Judge
Whitbeck requiring them to accept his appeals despite his

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No. 03-1396 Howard v. Whitbeck, et al. 5
failure to pay his filing fees. A motion to dismiss on the basis
of the Rooker-Feldman doctrine was filed on August 9, 2002,
by Chief Justice Corrigan and Chief Judge Whitbeck.
Counsel was appointed for Howard on October 7, 2002, who
filed a response to the motion to dismiss and a motion for
summary judgment on November 15, 2002. On March 19,
2003, the district court granted Chief Justice Corrigan and
Chief Judge Whitbeck’s motion to dismiss. Howard filed a
timely notice of appeal.
II. ANALYSIS
A. Standard of Review
We normally review de novo the district court’s decision to
dismiss for lack of subject matter jurisdiction under Federal
Rule of Civil Procedure 12(b)(1). See COB Clearinghouse
Corp. v. Aetna United States Healthcare, Inc., 362 F.3d 877,
880 (6th Cir. 2004). Where the district court does not merely
analyze the complaint on its face, but instead inquires into the
factual predicates for jurisdiction, the decision on the Rule
12(b)(1) motion resolves a “factual” challenge rather than a
“facial” challenge, and we review the district court’s factual
findings for clear error. See RMI Titanium Co. v.
Westinghouse Elec. Corp., 78 F.3d 1125, 1133-35 (6th Cir.
1996); United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.
1994); Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d
320, 325 (6th Cir. 1990). While this is a “factual” challenge,
as the parties submitted exhibits relating to the state-court
proceedings, the district court made no factual findings that
would require deference.
B. The Statute
The Michigan statute at issue, requiring the payment of
partial filing fees before an action or appeal will be docketed,
reads in its entirety:
6 Howard v. Whitbeck, et al. No. 03-1396
§ 600.2963. Indigent prisoners; filing of civil action
or appeal in civil action; submission of
institutional account for payment of
filing fees
Sec. 2963. (1) If a prisoner under the jurisdiction of the
department of corrections submits for filing a civil action
as plaintiff in a court of this state or submits for filing an
appeal in a civil action in a court of this state and states
that he or she is indigent and therefore is unable to pay
the filing fee and costs required by law, the prisoner
making the claim of indigency shall submit to the court
a certified copy of his or her institutional account,
showing the current balance in the account and a
12-month history of deposits and withdrawals for the
account. The court then shall order the prisoner to pay
fees and costs as provided in this section. The court shall
suspend the filing of the civil action or appeal until the
filing fee or initial partial filing fee ordered under
subsection (2) or (3) is received by the court. If the court
orders that a prisoner pay a filing fee or partial filing fee,
all documents submitted by the prisoner that relate to that
action or appeal shall be returned to the prisoner by the
court along with 2 certified copies of the court order. An
additional certified copy of the court order shall be sent
to the department of corrections facility where the
prisoner is housed. The prisoner then shall, within 21
days after the date of the court order, resubmit to the
court all documents relating to the action or appeal,
accompanied by the required filing fee or partial filing
fee and 1 certified copy of the court order. If the filing
fee or initial partial filing fee is not received within 21
days after the day on which it was ordered, the court shall
not file that action or appeal, and shall return to the
plaintiff all documents submitted by the plaintiff that
relate to that action or appeal.
(2) If, upon commencement of the civil action or the
filing of the appeal, the balance in the prisoner's
institutional account equals or exceeds the full amount of

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No. 03-1396 Howard v. Whitbeck, et al. 7
the filing fee required by law, the court shall order the
prisoner to pay that amount.
(3) If, upon commencement of the civil action or the
filing of the appeal, the balance in the prisoner's
institutional account is less than the full amount of the
filing fee required by law, the court shall require the
prisoner to pay an initial partial filing fee in an amount
equal to 50% of the greater of the following:
(a) The average monthly deposits to the prisoner's
institutional account for the 12 months preceding the date
on which the civil action is commenced or the appeal is
filed.
(b) The average monthly balance in the prisoner's
institutional account for the 12 months preceding the date
on which the civil action is commenced or the appeal is
filed.
(4) In determining the balance in a prisoner's
institutional account for purposes of subsection (2) or (3),
the court shall disregard amounts in the institutional
account that are required by law or by another court order
to be paid for any other purposes.
(5) In addition to an initial partial filing fee under
subsection (3), the court shall order the prisoner to make
monthly payments in an amount equal to 50% of the
deposits made to the account. Payments under this
subsection shall continue until the full amount of the
filing fee is paid. The collection of payments from the
account, and their remittal by the department of
corrections, shall be conducted as provided in section 68
of 1953 PA 232, MCL 791.268. If costs are assessed
against a prisoner, and if the balance of the prisoner's
institutional account is not sufficient to pay the full
amount of the costs assessed, the court shall order the
prisoner to make payments in the same manner required
in this section for the payment of filing fees, and the full
amount of the costs shall be collected and paid in the
manner provided in this subsection and in section 68 of
1953 PA 232, MCL 791.268.
8 Howard v. Whitbeck, et al. No. 03-1396
(6) The total amount collected from a prisoner under
subsections (3) to (5) shall not exceed the full amount of
the filing fee and costs required by law.
(7) For purposes of this section, the fact of a prisoner's
incarceration cannot be the sole basis for a determination
of indigency. However, this section shall not prohibit a
prisoner from commencing a civil action or filing an
appeal in a civil action if the prisoner has no assets and
no means by which to pay the initial partial filing fee. If
the court, pursuant to court rule, waives or suspends the
payment of fees and costs in an action described in
subsection (1) because the prisoner has no assets and no
means by which to pay the initial partial filing fee, the
court shall order the fees and costs to be paid by the
prisoner in the manner provided in this section when the
reason for the waiver or suspension no longer exists.
(8) A prisoner who has failed to pay outstanding fees
and costs as required under this section shall not
commence a new civil action or appeal until the
outstanding fees and costs have been paid.
(9) If a prisoner is ordered by a court to make monthly
payments for the purpose of paying the balance of filing
fees or costs under this section, the agency having
custody of the prisoner shall remove those amounts from
the institutional account of the prisoner subject to the
order and, when an amount equal to the balance of the
filing fees or costs due is removed, remit that amount as
directed in the order.
MCL § 600.2963 (2000).
C. The Rooker-Feldman Doctrine
The Rooker-Feldman doctrine, named for Rooker v.
Fidelity Trust Co., 263 U.S. 413 (1923), and District of
Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983),
bars attempts by a federal plaintiff to receive appellate review

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No. 03-1396 Howard v. Whitbeck, et al. 9
3The doctrine flows in large part from “the p roposition that Congress
has conferred appellate jurisdiction over state court judgments upon only
one federal court, the Sup reme Court of the U nited States.” Tho mas D.
Rowe, Jr., Rooker-Feldman: Worth Only the Powder to Blow it Up?, 74
NOTRE DAME L. REV. 1081, 1081 (1999). Its frequent use in the lower
federal courts in recent years has been met with critical commentary. See
Barry Friedman & Ja mes E . Gaylo rd, Rooker-Feldman, From the Ground
Up, 74 NOTRE DAME L. REV. 1129, 11 33 (199 9) (calling for Feldman to
be overruled); Suzanna Sherry, Judicial Federalism in the Trenches: The
Rooker-Feldman Doctrine in Action, 74 NOTRE DAME L. REV. 1085,
1087-89 (1999) (describing “explosive growth” of the doctrine). W e note
in passing that when Feldman was decide d, a party aggrieved by a state-
court decisio n “against the validity of a treaty or Act o f Congress, or in
favor of the validity of a state statute attacked upon federal grounds” was
entitled to mandatory review in the Supreme Court. RIC H A R D H. FA LL ON
ET AL., HART & W ECHSLER’S THE FEDERAL CO U R T S A N D THE FEDERAL
SYSTEM , at 494 (4th ed. 1996 ). The elimination o f mandatory review in
1988 may affect the continuing vitality of the logic underlying Rooker-
Feldman, but we are of course bound to follow that precedent of the
Supreme Court and prior precedent of our own court that mandates the
application of the doctrine.
of a state-court decision in a federal district court.3 Two
categories of claims are barred by Rooker-Feldman: those
which allege some injury arising directly from the state
court’s judgments, and those which allege an injury predating
the state-court’s judgments but which are still “inextricably
intertwined” with state-court judgments. In determining
whether a claim is in the first category, we look to the nature
of the relief demanded and the particular injury alleged; “‘the
fundamental and appropriate question to ask is whether the
injury alleged by the federal plaintiff resulted from the state
court judgment itself or is distinct from that judgment.’”
Hutcherson v. Lauderdale County, 326 F.3d 747, 755 (6th
Cir. 2003). In determining whether a claim is in the second
category, we look to Justice Marshall’s test in Pennzoil Co. v.
Texaco Inc., 481 U.S. 1, 25 (1987) (Marshall, J., concurring):
[T]he federal claim is inextricably intertwined with the
state-court judgment if the federal claim succeeds only to
the extent that the state court wrongly decided the issues
10 Howard v. Whitbeck, et al. No. 03-1396
before it. Where federal relief can only be predicated
upon a conviction that the state court was wrong, it is
difficult to conceive the federal proceeding as, in
substance, anything other than a prohibited appeal of the
state-court judgment.
See Peterson Novelties, Inc. v. City of Berkley, 305 F.3d 386,
391 (6th Cir. 2002); Anderson v. Charter Township of
Ypsilanti, 266 F.3d 487, 492-94 (6th Cir. 2001) (applying
“inextricably intertwined” test to hold abstention appropriate).
An exception to the doctrine is that where a claim
represents a “general challenge . . . to a state law implicated”
in the state decision, the federal courts have jurisdiction over
that general challenge. Catz v. Chalker, 142 F.3d 279, 294-95
(6th Cir. 1998); see also Feldman, 460 U.S. at 482-83 (“To
the extent that Hickey and Feldman mounted a general
challenge to the constitutionality of Rule 46I(b)(3), however,
the District Court did have subject-matter jurisdiction over
their complaints.”). However, even where a general
constitutional attack is mounted, the state proceedings may
foreclose the federal claim under the doctrine of res judicata.
See Feldman, 460 U.S. at 487-88 (“[W]e expressly do not
reach the question of whether the doctrine of res judicata
forecloses litigation on these elements of the complaints.”).
D. The District Court’s Decision
The district court, after describing the Rooker-Feldman
doctrine, classified Howard’s claim as an as-applied
challenge. Howard’s complaint alleges that § 600.2963 is
unconstitutional in denying access to the courts to indigents
who are unable to pay the initial partial filing fee. The district
court reasoned that because § 600.2963(7) allows for waiver
of that fee, the statute was capable of constitutional
application, and Howard could only be complaining of the
application of the statute to his particular case. J.A. at 214.
Having concluded that the “general challenge” exception to
the Rooker-Feldman doctrine did not apply, the district court

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No. 03-1396 Howard v. Whitbeck, et al. 11
went on to determine that Howard’s federal claim was
inextricably intertwined with the state-court decision, because
for Howard to prevail, the district court “would necessarily be
forced to conclude that Defendants’ interpretation and
application of the statute was improper.” J.A. at 215. Finally,
the district court noted that while Howard had fairly asserted
a challenge to § 600.2963(8)—because subsection 8 bars
future actions, its application would be challenged
prospectively, and Rooker-Feldman would not
apply—Howard lacked standing due to his failure to allege
that he had any claim or appeal that he intended to file. J.A.
at 219-20.
E. Claims of Error
On appeal, Howard does not contest the district court’s
conclusion that he lacked standing to challenge subsection 8,
but he does argue that the Rooker-Feldman doctrine does not
apply both because the actions of defendants in this matter
were not “judicial acts” under Feldman, and because he has
mounted a general challenge to § 600.2963. While this
former argument fails, we conclude that Howard’s complaint
fairly presented a general challenge to the statute, sufficient
to give the district court jurisdiction. Whether or not
Howard’s general challenge to the Michigan statute would
ultimately succeed is irrelevant to the question of subject
matter jurisdiction, as long as the claim presented is not
frivolous. See Musson Theatrical, Inc. v. Fed. Express Corp.,
89 F.3d 1244, 1248-49 (6th Cir. 1996) (in responding to a
motion under Rule 12(b)(1), “the plaintiff can survive the
motion by showing any arguable basis in law for the claim
made”). Although Chief Justice Corrigan and Chief Judge
Whitbeck take issue with whether or not Howard’s pro se
complaint fairly alleged a facial challenge, the district court
was correct to conclude that it did. While the thrust of the
complaint is definitely an “as-applied” challenge, the
language used clearly indicates that the statute itself is also
being challenged as unconstitutional, and under Feldman the
dismissal of the as-applied claim on the basis of Rooker-
12 Howard v. Whitbeck, et al. No. 03-1396
Feldman does not mean that the facial challenge cannot be
allowed to proceed. J.A. at 10 (Compl.) (Howard seeks
declaratory judgment that “both the defendants refusal to file
Plaintiff’s appeal and portions of said statute is
unconstitutional” (emphases added)); see Feldman, 460 U.S.
at 482-88. We conclude that Howard’s complaint fairly
presented a facial constitutional challenge over which the
district court had jurisdiction.
Howard’s remaining arguments, presumably directed
towards preserving his “as-applied” challenge or a broader
general challenge, all fail. First, Howard argues that the
Michigan courts’ actions were not “judicial determinations”
within the meaning of Feldman, which distinguished judicial
determinations from legislative determinations in concluding
that bar membership decisions were judicial in nature.
460 U.S. at 478-79. Howard’s main argument is that the
courts could not exercise discretion because of the mandatory
language in subsection 1. Howard asserts that despite the
plain language of subsection 7, the safety-valve provision,
because subsection 1 includes the mandatory language
“shall,” the Michigan courts have read subsection 7 out of the
statute. In Keenan v. Department of Corrections, 644 N.W.
2d 756, 757 (Mich. 2002), the Michigan Supreme Court held
that the phrase “outstanding fees and costs” in subsection 8
includes fees which are currently being paid on installment,
even if full payment will eventually be made. Keenan had
filed a previous action, from which fees were still
outstanding, and was attempting to proceed in a subsequent
action; the court did not allow the subsequent action because
of the outstanding fees, despite Keenan’s regular payments by
installment. It is unclear where Howard finds any reference
to subsection 7 in Keenan; there is no indication that Keenan
applied for a waiver of fees in his initial action, or any sort of
waiver or suspension of the operation of subsection 8 in the
subsequent action. The court noted that Keenan argued “that
he has not ‘failed’ to pay outstanding fees [under subsection
8] because the remainder of the filing fee is being taken out of
his account on a monthly basis,” id., and rejected his

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No. 03-1396 Howard v. Whitbeck, et al. 13
interpretation as contrary to the plain language of the statute.
While Keenan is disturbing in that it operates to bar
subsequent actions where plaintiffs are paying to the fullest of
their ability, the injury suffered by Keenan is not that
complained of by Howard. Keenan provides no support for
Howard’s specific claim of statutory meaning, however much
support it provides for his general argument that the Michigan
courts have applied § 600.2963 in a draconian fashion.
In Palmer v. Oakland Circuit Judge, 621 N.W. 2d 221, 221
(Mich. 2001), however, the Michigan Supreme Court held
that merely because a prisoner had a zero account balance
“does not necessarily mean that a prisoner” is qualified for
waiver under subsection 7. To hold otherwise would give
“the calculation provisions of subsections (3) and (4) . . . no
effect.” Id.; see also Bennett v. McBride, No. 01-1939, 2003
WL 1870913, *3 (6th Cir. Apr. 8, 2003) (citing Palmer and
noting, “Under Michigan law, a prisoner’s present account
balance of zero does not necessarily mean that the prisoner is
entitled to a waiver of an initial partial filing fee”). The
statute, as authoritatively construed by the highest court of the
state, thus allows prisoners who have insufficient funds to pay
a filing fee to be denied the right to file a claim or an appeal.
As discussed above, however, the Michigan courts have
construed the statute to allow waivers in certain conditions,
but not to require them whenever a prisoner is unable to pay
an initial partial filing fee. This may be unconstitutional, but
it still allows discretion: it allows waivers in situations where
prisoners have a zero balance, it merely does not require
them. In rejecting Howard’s motions to waive the filing fees,
the Michigan courts made judicial decisions that under state
law they had discretion in making. We therefore cannot reach
the greater question of whether those decisions violate the
Constitution, as to reach that question would be to sit in
review of the Michigan courts in violation of the Rooker-
Feldman doctrine.
Howard then argues that the issues in his federal claim are
not inextricably intertwined with the state-court claims. This
14 Howard v. Whitbeck, et al. No. 03-1396
is not persuasive at the outset, because his case is most
properly analyzed in the first category of Rooker-Feldman
cases, where the complained-of injury is the decision of the
state court. Howard seeks the sort of direct appeal of the
state-court decisions which is not allowed, except to the
extent that he mounts a general constitutional challenge to the
statute. Additionally, it is impossible to determine whether
his case is inextricably intertwined with the state-court
decisions, because we do not have the actual motions for
waiver filed with the Michigan courts. It is entirely possible
that Howard included in those motions constitutional
arguments, in which case the Michigan courts necessarily
rejected those arguments in refusing to waive his initial filing
fees. In any case, however, Howard is clearly barred from
bringing an as-applied challenge under the first category of
Rooker-Feldman; that the Michigan courts may not have
decided the exact issues he brings before this court, a claim
impossible to analyze on appeal, does not change the nature
of the decision and relief he seeks from this court.
Howard finally argues that the statute is unconstitutional for
a number of reasons. As mentioned above, it is quite possible
that res judicata principles will foreclose the district court
from reaching the merits of this claim, so remand is the
appropriate course, especially in the absence of the motions
submitted by Howard to the Michigan courts that will
partially determine the res judicata effect of the prior
judgments.
III. CONCLUSION
The district court’s judgment is REVERSED and the case
is REMANDED for further proceedings not inconsistent with
this opinion.

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