Linda L. Ellison v. David Brock, Chief Justice, New Hampshire Supreme Court

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1058
LINDA L. ELLISON,
Plaintiff, Appellant,
v.
DAVID BROCK, CHIEF JUSTICE, NEW HAMPSHIRE SUPREME COURT,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya and Lynch, Circuit Judges.
Linda L. Ellison on brief pro se.
Daniel J. Mullen, Associate Attorney General, on brief for
appellee.
June 21, 2004

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1Under that doctrine, articulated by the United States Supreme
Court in District of Columbia Court of Appeals v. Feldman, 460 U.S.
462 (1983), and Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923),
federal district courts lack appellate jurisdiction to review
state-court decisions.
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Per Curiam. The pro se plaintiff in this case asked the
district court to order the defendant Chief Justice of the New
Hampshire Supreme Court to vacate orders declining plaintiff's
appeal to that court. As grounds for that relief, plaintiff
alleged that one of the other state Supreme Court justices (Justice
Broderick) who participated in the decision to decline her appeal
formerly represented the defendant University of New Hampshire in
other matters. Plaintiff also asked the district court to award
damages against the Chief Justice because he allegedly "allowed"
Justice Broderick to participate in the case.
The district court dismissed plaintiff's claims as barred
by the Rooker-Feldman doctrine1 and by absolute judicial immunity.
Having reviewed de novo the district court's allowance of
defendant's motion to dismiss, "keeping in mind that a complaint
may be dismissed for failure to state a claim "'only if it is clear
that no relief could be granted under any set of facts that could
be proved consistent with the allegations,'" Pena-Borrero v.
Estremeda 365 F.3d 7, 11 (1st Cir. 2004) (citations omitted), we
affirm the dismissal on Rooker-Feldman grounds, without reaching
the judicial immunity ground also relied on by the district court.

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After judgment, plaintiff moved for reconsideration of
the dismissal. As grounds for that motion, in addition to arguing
that the court had erred in granting the motion to dismiss,
plaintiff claimed, for the first time, that the district court
judge, Judge McAuliffe, was disqualified from deciding the case.
In support of that claim, plaintiff alleged that Judge McAuliffe
had served as a trustee of the University of New Hampshire at the
time that the university decided to purchase the land that was the
subject of plaintiff's state-court homestead claim. The district
court denied that motion. We decline to vacate the district
court's judgment because any error in declining to recuse was
harmless.
Motion to Dismiss
As the district court stated, "[T]o the extent plaintiff
seeks relief in the nature of a 'reversal' or 'vacation' of orders
entered in her state litigation by the New Hampshire Supreme Court,
[the district court was] without jurisdiction to consider her
claim." See Hill v. Town of Conway, 193 F.3d 33, 40 (1st Cir. 1999)
(finding Rooker-Feldman doctrine applicable where the relief sought
"'would, if granted, effectively void the state court's judgment'"
(citation omitted)). Here, the injunctive relief plaintiff sought
from the district court–"to vacate all orders in regard to
[plaintiff's appeal] and issue new orders with only qualified
justices participating in the decision,"–"would, if granted,

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effectively void the state court's judgment." That relief is
therefore clearly barred by Rooker-Feldman.
For the same reasons, plaintiff's claim for damages is
also barred. The premise of plaintiff's damage claim is that the
New Hampshire Supreme Court was incorrect in denying plaintiff's
various motions for relief from judgment based on the alleged
disqualification of Justice Broderick. Therefore, the district
court "could not give the [plaintiff] the relief [she] seek[s]
without in effect reviewing and reversing the [New Hampshire]
court," Newman v. Indiana, 129 F.3d 937, 942 (7th Cir. 1997), which
Rooker-Feldman forbids. Id.; see also Wilson v. Shumway, 264 F.3d
120, 121, 126 (1st Cir. 2001) (affirming dismissal of damages claims
under Rooker-Feldman).
Motion for Reconsideration Based on Judge McAuliffe's Alleged
Disqualification
In support of her recusal request, plaintiff alleged
that: (1) in 1993, as a trustee of the University of New Hampshire,
Steven McAuliffe "spoke very much in favor" of acquiring certain
land known as Leawood Orchards "and encouraged the other trustee[s]
to do so," and (2) Leawood Orchards is the property that was the
subject of plaintiff's state-court homestead claim. Some of these
allegations are supported] by minutes of a Board of Trustees'
meeting, which indicate that "Trustee McAuliffe asked for
reconsideration of the proposal for UNH to acquire the Leawoods
Orchards property" and that Trustee McAuliffe spoke in favor of

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acquiring the property. However, the record contains no evidence
as to, among other things, whether plaintiff had claimed a
homestead interest in that property at that time, whether Trustee
McAuliffe was aware of any such interest when he spoke in favor of
acquiring the property or at any time thereafter, or whether Judge
McAuliffe was still a trustee at the time he presided over
plaintiff's case.
We need not resolve this issue because, "[a]s in other
areas of the law, there is surely room for harmless error committed
by busy judges who inadvertently overlook a disqualifying
circumstance." Liljeberg v. Health Servs. Acquisition Corp., 486
U.S. 847, 862 (1987). "Although § 455 defines the circumstances
that mandate disqualification of federal judges, it neither
prescribes nor prohibits any particular remedy for a violation of
that duty." Id.
Here, even if we were to assume, without deciding, that
Judge McAuliffe should have recused himself, we would not vacate
the district court's judgment now. The purely legal questions that
Judge McAuliffe decided here called for no exercise of discretion
on his part and are subject to plenary review by this Court. In re
Sch. Asbestos Litig., 977 F.2d 764, 787 (3rd Cir. 1992)
(characterizing failure to recuse as "harmless error when a court
of appeals will later review a ruling on a plenary basis"). As

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discussed above, our plenary review of Judge McAuliffe's denial of
plaintiff's motion to dismiss revealed no error.
Under these circumstances, vacating the judgment and
remanding this case for reconsideration by another district court
judge would be unfair to the defendant and unduly burden the
district court without any benefit. For those reasons, we decline
to vacate the district court judgement based on plaintiff's
recusal claim.
The grant of plaintiff's motion to dismiss and the denial
of her motion for reconsideration are affirmed.

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