Marshall Fincher v. South Bend Heritage Foundation ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1964
M ARSHALL F INCHER,
Plaintiff-Appellant,
v.
S OUTH B END H OUSING A UTHORITY and
S OUTH B END H ERITAGE F OUNDATION,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:07-CV-308—Philip P. Simon, Judge.
A UGUST 20, 2009
Before P OSNER, W ILLIAMS, and SYKES, Circuit Judges.
P ER C URIAM . Marshall Fincher was evicted by the
South Bend Housing Authority (“SBHA”) and his subse-
quent application for housing to the South Bend
Heritage Foundation (“Foundation”) was denied. He
sued the SBHA and the Foundation in an Indiana state
court, charging that they had violated his rights under
the United States Housing Act and the Fair Housing Act,
2 No. 09-1964
but his precise claims were difficult to decipher. The
SBHA removed the case to federal district court on the
basis of a federal question. After discovery, though, the
SBHA argued and the district judge agreed that Fincher’s
claims against the SBHA could not be disentangled
from the state court judgment concerning Fincher’s evic-
tion. The judge concluded that he was deprived of subject-
matter jurisdiction over those claims by the Rooker-
Feldman doctrine, and so he remanded them to state
court. The claims against the Foundation related to
events after Fincher’s eviction, so the district judge pro-
ceeded to the merits and granted summary judgment
for the Foundation.
Fincher appeals, and the SBHA has moved to dismiss the
appeal as to itself, contending that under 28 U.S.C.
§ 1447(d) we lack jurisdiction to review the portion of the
district court’s order that remands Fincher’s claims.
“An order remanding a case to the State court from
which it was removed is not reviewable on appeal or
otherwise.” 28 U.S.C. § 1447(d). Although this section
is not interpreted as expansively as its language might
suggest, it does apply to remands based on a lack of
subject-matter jurisdiction. See Carlsbad Tech., Inc. v. HIF
Bio, Inc., 129 S. Ct. 1862, 1865-66 (2009); Things Remembered,
Inc. v. Petrarca, 516 U.S. 124, 127-28 (1995); Baker v. Kingsley,
387 F.3d 649, 653-54 (7th Cir. 2004). The district court
based its remand order on a lack of subject-matter juris-
diction, so whether or not that determination is correct,
we cannot review it. See Powerex Corp. v. Reliant Energy
Servs., Inc., 551 U.S. 224, 232-33 (2007); Kircher v.
Putnam Funds Trust, 547 U.S. 633, 642 (2006).
No. 09-1964 3
Fincher points out that in Taylor v. Federal National
Mortgage Association, 374 F.3d 529, 532, 536 (7th Cir. 2004),
we decided an appeal in a case the district court had
remanded on the basis of the Rooker-Feldman doctrine,
just as in this case. But Taylor does not discuss juris-
diction, and so it is not a precedent on the jurisdictional
issue presented by the present case. Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 119 (1984); see also Steel
Co. v. Citizens for a Better Environment, 523 U.S. 83, 91 (1998);
Jezierski v. Mukasey, 543 F.3d 886, 888 (7th Cir. 2008). We
emphasize that notwithstanding Taylor, remands based on
the Rooker-Feldman doctrine are jurisdictional, see Exxon
Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 291-
92 (2005), and therefore subject to the prohibition of
appellate review in § 1447(d), see Carlsbad Tech., 129 S. Ct.
at 1865-66; Things Remembered, 516 U.S. at 127-28.
One final matter: in his response Fincher has requested
that if we dismiss his appeal, we remand the case to the
district court with instructions to assess costs under 28
U.S.C. § 1447(c). That section permits a district court to
require payment of just costs as part of its remand order.
See Martin v. Franklin Capital Corp., 546 U.S. 132, 138 (2005).
But if Fincher wanted the district court to assess costs,
he should have asked the court to do so, since the
decision to award costs and fees rests within the
district court’s discretion. See id. at 138-39.
To summarize, the SBHA’s motion is granted to the
extent that it seeks dismissal of the appeal against itself
for lack of jurisdiction.
8-20-09