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No.

11-1456

In The Supreme Court of the United States


BRYAN J. BROWN, Petitioner, v. ELIZABETH BOWMAN, et al. Respondents. On Petition for a Writ of Certiorari To the United States Court of Appeals For the Seventh Circuit PETITIONERS REPLY BRIEF Charles Rice Notre Dame Law School P.O. Box 780 Notre Dame, IN 46556 (574) 633-4415 Charles.E.Rice.1@nd.edu

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Contents
1. Focusing on the salient facts ......................................... 2 2. Focusing on conflicts in the Rooker-Feldman jurisprudence ............................................................................ 3 a. Bowman sides with arguably errant district courts when applying the inextricably intertwined analysis .................................................................................. 4 b. Bowmans inextricably intertwined analysis amounts to circular reasoning .......................................... 6 3. Does Rooker-Feldman apply when allegations of state court corruption are at bar? ........................................ 7 4. Petitioners Equal Protection claims were virtually unheard by the courts below ................................................. 9 5. Absolute immunity can ripen into tyranny.............. 10 a. Bowman raises the question of what makes a witness ................................................................................. 11 b. Rehberg does not justify absolute immunity in the present context ................................................................... 12

c.

Bowman threatens the viability of all civil

rights litigation .................................................................. 12 CONCLUSION ....................................................................... 14

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Cases

Baird v. State Bar of Arizona, 401 U.S. 1 (1971)..... 9 Berry v. Schmitt, 688 F.3d 290, 302 (6th Cir. 2012) 3 Briscoe v. Lahue, 460 U.S. 325 (1983) ..................... 12 Cooney v. Rossiter, 583 F.3d 967 (7th Cir.2009). ... 10 Edwards v. Ill. Bd. Admissions to the Bar, 261 F.3d
723 (7th Cir.2001). ....................................................... 3 GASH Assoc. v. Vill. of Rosemont, Ill., 995 F.2d 726 (7th Cir.1993) ............................................................ 7, 8

Great Western Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 166 (3d Cir.2010).

Hale v. Comm. On Character and Fitness for State of Illinois, 335 F.3d 678 (7thCir.2003) ................... 3 Krohn v. United States, 742 F.2d 24, 31 (1st
Cir.1984) ..................................................................... 12 Loubser v. Thacker, 440 F.3d 439 (7th Cir.), cert dend, 548 U.S. 907 (2006) ........................................ 7 Nesses v. Shepard, 68 F.3d 1003 (7th Cir.1995) ....... 7 Rehberg v. Paulk, 132 S.Ct. 1497 (2012) ................. 12 Scheuer v. Rhodes, 416 U.S. 232, 24748 (1974)... 12 Sterling v. Constantin, 287 U.S. 378, 397 (1932) .. 12 Vasquez v. YII Shipping Co., Ltd., 2012 WL 3740435 (11th Cir. Aug. 30, 2012) .......................... 4 Willowbrook v. Olech, 528 U.S. 562 (2000). .............. 9 Statutes 42 U.S.C. 1983 ............................................................ 13

......................................................................................... 7

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Other Authorities U.S. Const. amend. I and XIV.................................... 12 U.S. Const. amend. I and XIV.................................... 10 U.S. Const. amend. I and XIV...................................... 9 Treatises Steven M. Baker, The Fraud Exception to the

Rooker Feldman Doctrine: How it almost wasnt (and probably shouldnt be), 5 FEDERAL COURTS

LAW REVIEW, 139 (2011) ............................................ 8

INTRODUCTION The Complaint in this case (which must be taken as true for present purposes) alleges that Respondents ran Petitioner through an inquisition designed (according to Respondent Sudrovech) to uncover any lack of empathy that the applicant harbored when issues associated with his [religious and political] beliefs, were under discussion. App. 110, 197. When Petitioner failed to espouse those religious and political perspectives desired by his government-assigned inquisitors, state agents portrayed him as a person of questionable mental health, justifying their recommendation that Petitioner be professionally shunned for his noxious viewpoints. Petition (Pet.) at 5-9. It is crucial to note the techniques utilized to paint the politically incorrect applicant as mentally ill. They included, inter alia, misdiagnosis, seizure of attorney work product, inclusion of hearsay in reports, collusion, intrusive and unconstitutional inquiries, fraudulent reporting of mental illness, fabrication of evidence, weighing of religious and political perspectives, employment of ideological adversaries as evaluators and the use of unsworn reports as testimonial instruments. See App.64113, 17, 27, 35, 40, 52-3, 55, 64, 74, 82, 85, 94, 10203, 122, 133, 139-40, 149-50, 153-54, 160, 163, 164, 177, 178, 184, 189, 195, 197, 199, 204-05, 265.

The lower courts did not deny these allegations, they rather held the suit nonjusticiable based upon an incorrect reading of the RookerFeldman doctrine (a reading over which there is a

2 circuit conflict) and an incorrect reading of the scope of the absolute immunity doctrine (over which there is also a circuit conflict). Brown v. Bowman, et al, (Bowman) also ignored two distinct equal protection claims. 1. Focusing on the salient facts The courts below fell into this erroneous reading of Rooker-Feldman by conflating the acts of the Judges and Lawyers Assistance Program (JLAP) and the ruling of the Indiana Board of Law Examiners (BLE). Respondents do the same on brief. Petitioner raises no claims against the BLE, seeks no review of any BLEs order, and instead narrowly focuses all injury allegations, damages claims and prayers for relief on the actions of Respondents. Respondents factual recitation on pages 3-12 of their Brief in Opposition (Opp.) is primarily rooted in the September 25, 2009 final judgment of the BLE and the Seventh Circuits opinion that borrowed from that BLE report in a bid to justify its Rooker-Feldman ruling. See fn.1, Pet. That BLE report identifies JLAP as a coordinate agency of the Judicial Branch whose qualified-immunity graced employees (Sudrovech and Harrell) are not employed by the absolutely immune Board of Law Examiners. ECF 52-2. Petitioner was remanded out of the BLE and into JLAP between January 25, 2008 and January 22, 2009 (App. 71, 28-9) and claims no injuries before or after that period. App.65, 2. Drs. Ross and Bowman are not employees of JLAP, but rather were retained by Petitioner on the express order of

3 Sudrovech and Harrell. The Seventh Circuit conceded that Petitioners complaint does not explicitly request a lower federal court to overturn an inconsistent state court judgment. App. 11.1 See also App. 41. It is crucial to note that there is no privity between JLAP and the BLE and that none of the Respondents appeared as defendants in litigation adverse to Petitioner prior to the filing of the instant complaint. Furthermore, neither the BLE nor the Indiana Supreme Court could have ordered relief sounding in tort, contract or civil rights against Respondents, even if either had entertained such claims in a bar application hearing. (Neither did.) This Court should grant review given the verified claims of fraudulent activity at bar. Focusing on conflicts in the RookerFeldman jurisprudence 2. The petition describes conflicts in the circuits over the Rooker-Feldman doctrine, and in particular whether the inextricably intertwined test has substantive meaning. The decision below says yes, while many other circuits say no. Pet. at 23-30. See also Berry v. Schmitt, 688 F.3d 290, 302 (6th Cir. 2012) (The parties argue extensively whether or not the district court mistakenly applied an inextricably intertwined standard. . . .
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v. Comm. On Character and Fitness for State of Illinois, 335 F.3d 678 (7thCir.2003) and Edwards v. Ill. Bd. Admissions to the Bar, 261 F.3d 723 (7th Cir.2001). Both of these pre-Exxon Mobil cases can be distinguished on the facts and law. (See briefing below).

The Seventh Circuit likened Petitioners case to Hale

4 In the wake of Exxon, this court has explicitly backed away from that standard); cf. Vasquez v. YII Shipping Co., Ltd., 2012 WL 3740435 (11th Cir. Aug. 30, 2012) (rejecting Rooker-Feldman defense without using, or even mentioning, an inextricably intertwined test). a. Bowman sides with arguably errant district courts when applying the inextricably intertwined analysis Respondents point out that a subset of the conflict Petitioner presents exists on the district court level. It is crucial to note that Bowman is on all fours with the troubling district court cases rather than most sister circuits cited in the Petition. In other words, Bowman is on the allegedly errant side of the conflict. It is the circuit-

level decisions of other circuits that contradict the approach of the Seventh Circuit below.

Such circuit conflicts cannot be resolved by sister circuits overruling or affirming district court rulings on opposing sides of existing circuit splits. The divided district courts only compound the problem of split circuits. Unable to justify Bowman against the backdrop of sister circuits, Respondent instead takes on the valiant effort of papering over the Seventh Circuits reasoning. Respondents do this by insisting that the Bowman court really did not give any independent force to the controversial inextricably intertwined test. The Seventh Circuits words are, however, undeniable: Rooker-Feldman bars federal claims

in two instances, App. 10 (emp.add), [t]he first is


when a federal court is asked to overturn an adverse state court judgment. Id. The second, and more difficult instance [occurs when] the federal claims were not raised in state court and do not on their face require review of a state courts decision.In this latter instance, RookerFeldman will act as a jurisdictional bar if those claims are inextricably intertwined with a state court judgment.

Id.2
It is beyond cavil that Bowman expressly recognizes two distinct scenarios, with the inextricably intertwined test governing the second. To assert, as Respondents do, that the court below perceived the only inquiry as being the first of the two tests whether the plaintiff is seeking to have the state court judgment overturned, Opp.,32, is simply false. Hence, the Seventh Circuits embrace of a separate, independently significant inextricably intertwined test is in direct conflict with what even Respondents concede to be the test in several other circuits. As Respondents put it, The Second, Third, Fourth, Sixth, and Eighth Circuits [ ] have, as a matter of substance, consistently recognized that [the inextricably intertwined] language does not necessarily create a separate legal test.
This second Rooker-Feldman test is understandably labeled a metaphysical concept according to the Bowman court. App.10
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6 Opp.,28. This Court should resolve the decades-old circuit conflict over the scope and meaning of the Rooker-Feldman doctrine, and especially as it relates to the allegedly metaphysical concept of being inextricably intertwined. b. Bowmans inextricably intertwined analysis amounts to circular reasoning Respondents repeatedly insist that the true test under Rooker-Feldman asks whether the state court judgment caused the injury of which plaintiff complains. Opp.,33-35. Petitioner agrees that this is a required element of the Rooker-Feldman test. Respondents fail to understand that this true test is a reason to grant review, not deny review. For in this case, it was the Soviet-style psychological evaluation that caused the injury, not the subsequent judgment of the state supreme court. The courts below nevertheless equated and conflated the two -- by invoking the inextricably intertwined rule! App. 11, 13-14. In effect, the court constructed a circular argument: A suit is inextricably intertwined if it alleges injury from a state court judgment, App. 10, and it will be deemed to allege such an injury if the suit is inextricably intertwined with that same state judgment. App. 11, 13-14. This again demonstrates the need for a review bringing analytical clarity to this troubled area of the law.

7 3. Does Rooker-Feldman apply when allegations of state court corruption are at bar? Respondents correctly characterize Bowman as a case alleging government corruption. Opp.,36-37, App.67,17. The Seventh Circuit noted that Petitioners complaint alleges a conspiracy that resulted in a series of politically-biased mental health evaluations focused upon his religious beliefs [that] violated his constitutional rights. App.2. If Nesses v. Shepard, 68 F.3d 1003 (7th Cir.1995) and Loubser v. Thacker, 440 F.3d 439 (7th Cir.), cert dend, 548 U.S. 907 (2006) had been applied to the instant facts then Bowman would have ended quite differently. Bowman instead stands as the Seventh Circuits repudiation of the aforementioned precedent, and likely GASH Assoc. v. Vill. of Rosemont, Ill., 995 F.2d 726 (7th Cir.1993) as well. This repudiation constitutes yet another split in Rooker-Feldman analysis, since the Third Circuit adopted Nesses in Great Western Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 166 (3d Cir.2010). Mr. Nesses filed his pre-Exxon Mobil suit alleging that his opponents lawyers used their political clout to turn the judges against him. Nesses, 68 F.3d at 1004. A divided panel determined that if a litigant alleged that those involved in the state judicial process violated some independent right of his, such as a right (if it is a right) to be judged by a tribunal that is uncontaminated by politics, then he [could],

8 without being blocked by the RookerFeldman doctrine, sue to vindicate that right. Id. at 1005. The Seventh Circuit reasoned that RookerFeldman did not apply if the litigant relied on the adverse decision only to show that the violation of his rights had caused the plaintiff's harm. Id. (citation omitted). Petitioner filed credible allegations of an outof-court civil conspiracy that skewed state court processing in a way that harmed him (independent of any state court ruling) while seeking remedies that would reverse no state court judgment. Petitioner qualifies for the Nesses-Loubser-Great Western exception3 if it yet exists. Granting review would afford this Court opportunity to resolve a split among the circuits as to the vitality of the Nesses-Loubser-Great Western line of cases, as well as address the equitable question of the application of Rooker-Feldman when credible allegations of fraud, judicial omission and/or corruption are at bar.4

As well as the exemption for those who, like Petitioner, suffer an injury out of court and then fail to get relief from state court. GASH, 995 F.2d at 728. 4 See Steven M. Baker, The Fraud Exception to the
3

Rooker Feldman Doctrine: How it almost wasnt (and probably shouldnt be), 5 FEDERAL COURTS LAW REVIEW,
139 (2011) (detailing a split in the circuits as to the analysis of fraud in the Rooker-Feldman context).

9 4. Petitioners Equal Protection claims went virtually unheard below Respondents concede that an equal protection claim would not be barred by Rooker-Feldman. Opp.,36. Respondents justify the lower courts failure to address Petitioners equal protection claim by alleging that the Petitioner did not present such a claim. Opp.,37. This is incorrect; Petitioners complaint explicitly raised an equal protection claim. App. 8,22. Respondents discount this fact by arguing that a viable equal protection claim requires more than the assertion that the plaintiff faced discrimination for religious and political beliefs. Respondents apparently believe that discrimination cannot be found unless every (or nearly every) member of the class is targeted. Opp., 37-38. This is not the law. When someone acting under color of state law treats another unequally because of their race, religion, or politics, equal protection is denied even if the same bad actor does not similarly mistreat other members of the same class.5 If adverse treatment of an individual bar applicant because of her beliefs violates the fundamental rights to free speech and association, Baird v. State Bar of Arizona, 401 U.S. 1 (1971), then discrimination based upon adherence to beliefs which the government-designated bar evaluators find distasteful plainly states an equal
Indeed, even if Respondents merely targeted Petitioner for invidious discrimination without reference to a class, he could still filed a viable claim of equal protection denial. Willowbrook v. Olech, 528 U.S. 562 (2000).
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10 protection claim. Respondents concession that Rooker-Feldman does not bar an equal protection claim, and the fact that Petitioner has clearly alleged such a claim, is an additional ground for review. Petitioner also raises an equal protection argument in response to the federal judiciarys use of Rooker-Feldman to dismiss complaints arising in bar admission context. (The complaints of all in the class of law-license applicants.) Respondents label this concern as hardly one of national importance. Opp.,38. It is rather of the utmost import to the ongoing vitality of our national dedication to due process, equal protection and the First Amendment. Simply put, bar applicants should not face barriers to justice that medical applicants do not. 5. Absolute immunity can ripen into tyranny Respondents claim the challenged absolute immunity ruling rests upon dicta. Opp.,38-9. Yet Respondents admit that the District Court further found that Drs. Bowman and Ross were entitled to absolute immunity as witnesses. Opp.,17. Respondents furthermore note that the Seventh Circuit agreed that, like the expert witnesses in Cooney, Sudrovech and Drs. Bowman and Ross were entitled to absolute immunity. Opp.,1920. This grant of absolute witness immunity to mere report-writers constitutes a dangerous broadening of Cooney v. Rossiter, 583 F.3d 967 (7th Cir.2009). Bowman deputizes government social workers to confer absolute immunity upon their

11 designated mental health agents. This deputization is unparalleled in federal case law. Respondents clearly claim this immunizationgranting power: JLAP maintains a list of available providers who offer a broad range of therapeutic resources. Opp.,4. Defendant Tim Sudrovech, the Clinical Director of JLAP, referred Petitioner to Dr. Ross. Opp.,6. Sudrovech denied [Browns request for a second opinion] stating that evaluations were to be provided [only] by a psychiatrist from the JLAP providers list. Opp.,7. Psychologist Dr. Ross and psychiatrist Dr. Bowman are both healthcare providers who are authorized by the Indiana Supreme Court, through JLAP, to provide services and evaluations on its behalf. Opp.,5 (emp.add.). Respondents point to no actual court orders appointing Drs. Ross or Bowman. They cannot, for no such orders exist. Those mental health authorities were appointed, as the above admission reveals, by Defendant Sudrovech, a government social worker who enrolls acceptable mental health authorities on JLAPs use only these providers list. a. Bowman raises the question of what makes a witness Respondents paint the characterization of Drs. Ross and Bowman as witnesses as a factual question, but their characterizationby both lower courts Opp.,41 is precisely the legal issue raised here. Does absolute immunity extend to nontestifying, unsworn witnesses? The lower

12 courts are divided. This Court should grant review to resolve that split. b. Rehberg does not justify absolute immunity in the present context Respondents appeal to Rehberg v. Paulk, 132 S.Ct. 1497 (2012), to support the lower courts novel grant of absolute immunity to nontestifying witnesses. But Rehberg merely stands for the proposition that the factors that justify absolute immunity for trial witnesses apply with equal force to grand jury witnesses. Id., at 1505. Rehberg reaffirmed the demarcation of witnesses from nonwitnesses set by Briscoe v. Lahue, 460 U.S. 325 (1983). Pet.,41-45. Under this framework, none of the instant report-writing Respondents qualify for absolute witness immunity. (Neither do reportwriting federal officers. See, e.g., Krohn v. United States, 742 F.2d 24, 31 (1st Cir.1984)).

c. Bowman threatens the viability of all civil rights litigation


Rather than supporting the Respondents argument, Rehberg reaffirmed Scheuer v. Rhodes, 416 U.S. 232, 24748 (1974), which warns that civil rights laws would be drained of meaning were we to hold that the acts of [state bureaucrats] have the quality of a supreme and unchangeable edict, overriding all conflicting rights of property and unreviewable through the judicial power of the federal government. Id., quoting Sterling v. Constantin, 287 U.S. 378, 397 (1932). The decision below drains the meaning out of the First Amendment by installing social workers

13 on such unreviewable thrones. Bowman arguably authorizes any judicial officer to deputize social workers, sending them out to collect unsworn and inaccurate expert opinions that are beyond the reach of civil rights litigation an arm of the state with absolutely no legal accountability. The Scheuer Court turned to Chief Justice Hughes for an explanation of how tyranny advances in polite society: If this extreme position [arguing for absolute immunity] could be deemed to be well taken, it is manifest that the fiat of a

[state actor], and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the
Federal Constitution upon the exercise of state power would be but impotent phrases, the futility of which the State may at any time disclose by the simple process of

transferring powers [to a social worker] to be exercised by him, beyond control, upon his assertion of necessity. Under our system
of government, such a conclusion is obviously untenable. There is no such avenue of escape from the paramount authority of the Federal Constitution. When there is a substantial showing that the exertion of state power has overridden private rights secured by that Constitution,

the subject is necessarily one for judicial inquiry in an appropriate proceeding directed against the individuals charged with the transgression.

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Sterling, 287 U.S. at 397-98 (emp.add).


Petitioner alleges that the Respondents conspired to leverage delegated state power in a manner violative of constitutional rights. When the lower courts grant these government agents absolute immunity for their unsworn musings, it confers upon them a monarchial privilege that no report-writing governor or affidavit-swearing federal officer enjoys. For their misuse of these powers the Respondents should face judicial inquiry in an appropriate proceeding. Because the circuits are divided on this important question, this Court should grant review.

CONCLUSION
This Court should grant certiorari on all three of the questions presented. Respectfully Submitted,

Charles Rice Notre Dame Law School P.O. Box 780 Notre Dame, IN 46556 (574) 633-4415 Charles.E.Rice.1@nd.edu