Filed: Aug. 25, 2017
Latest Update: Mar. 03, 2020
Summary: DAVID CURTIN; For a full chronicle, see the Rhode Island Supreme, Court's order, In re McKenna, 110 A.3d 1126, 1131-35 (R.I. As a result, only nineteen defendants remain on appeal:, five Rhode Island Supreme Court justices, twelve Disciplinary, Board members, Curtin, and DeSisto.Feldman itself.
United States Court of Appeals
For the First Circuit
No. 17-1006
KEVEN A. MCKENNA,
Plaintiff, Appellant,
v.
DAVID CURTIN; LAURA A. PISATURO; JOHN SHEKARCHI; MARIA BUCCI;
DAVID CAPRIO; RICHARD S. HUMPHREY; MATTHEW F. CALLAGHAN; FRANK
CONNOR; ANTHONY F. AMALFETANO; JOHN MORAN; PAUL TAVARES; DANIEL
EGAN; WILLIAM RAMPONE; PAUL A. SUTTELL; MAUREEN MCKENNA
GOLDBERG; WILLIAM P. ROBINSON, III; FRANCIS X. FLAHERTY; GILBERT
V. INDEGLIA; DEBRA SAUNDERS; WILLIAM SMITH; SCOTT R. JENSEN;
MARC DESISTO,
Defendants, Appellees,
HELEN MCDONALD,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Landya B. McCafferty,* U.S. District Judge]
Before
Torruella, Lynch, and Kayatta,
Circuit Judges.
Keven A. McKenna on brief pro se.
Michael W. Field, Assistant Attorney General of Rhode Island,
* U.S. District Judge for the District of New Hampshire,
sitting by designation.
and Peter F. Kilmartin, Attorney General of Rhode Island, on brief
for appellees.
August 25, 2017
LYNCH, Circuit Judge. Keven A. McKenna was suspended
from practicing law for one year by the Rhode Island Supreme Court.
He subsequently filed this federal suit under 42 U.S.C. § 1983
against twenty-three judicial officers and administrators who had
participated in his disciplinary proceedings, seeking, inter alia,
reinstatement of his license and money damages. McKenna alleged
that by revoking his license, the defendants violated the principle
of separation of powers under the Rhode Island Constitution, and
infringed upon his First, Seventh, and Fourteenth Amendment rights
under the U.S. Constitution. The district court dismissed all of
McKenna's claims, primarily on the grounds that the Rooker-Feldman
doctrine bars this suit. We affirm.
I.
In February 2015, the Rhode Island Supreme Court
suspended Keven A. McKenna ("McKenna") from practicing law for one
year, beginning on March 29, 2015. The suspension arose from
McKenna's handling of a workers' compensation claim that one of
his former employees brought against him in 2009.1 At the time,
McKenna was practicing law under the licensed entity, "Keven A.
McKenna, P.C." ("PC"). In re McKenna, 110 A.3d 1126, 1131 (R.I.
2015). McKenna refused to make payments ordered by the Workers'
1 Because McKenna does not dispute the events underlying
his suspension on appeal, we offer only a cursory summary of his
conduct. For a full chronicle, see the Rhode Island Supreme
Court's order, In re McKenna, 110 A.3d 1126, 1131-35 (R.I. 2015).
- 3 -
Compensation Court. Instead, he attempted to -- in his own words
-- "drag this on forever" by filing multiple motions to dismiss in
Workers' Compensation Court. Id. at 1131-32.
When this tactic failed, McKenna filed a Chapter 11
bankruptcy petition on behalf of the PC and a petition for personal
bankruptcy. Id. at 1133. During the pendency of the bankruptcy
litigation, McKenna committed numerous ethical violations
including (1) continuing to practice law under an unlicensed
entity, "The Law Offices of Keven A. McKenna, LLC"; (2) making
false statements in his bankruptcy filings; and (3) refusing to
comply with a subpoena issued by Assistant Disciplinary Counsel
Marc DeSisto ("DeSisto"). See id. at 1133-35.
In July 2011, the Rhode Island Supreme Court had
appointed DeSisto to investigate McKenna's professional conduct.
Upon the conclusion of DeSisto's investigation in November 2012,
the Chief Disciplinary Counsel, David Curtin ("Curtin"), filed
disciplinary charges against McKenna, alleging four counts:
[1] [T]hat respondent violated Article V,
Rules 3.3, 7.1, 7.5, and 8.4(c) of the Supreme
Court Rules of Professional Conduct by
engaging in the unauthorized practice of law
as a limited liability entity in violation of
this Court's order of February 23, 2011; [2]
that respondent violated Rules 3.3 and 8.4(c)
by failing to disclose his income to the
United States Bankruptcy Court for the
District of Rhode Island (Bankruptcy Court),
misrepresenting his interest in a receivable
to that court, and by engaging in conduct that
amounted to a lack of candor, dishonesty, and
- 4 -
misrepresentation to the bankruptcy trustee;
[3] that respondent violated Article V, Rule
1.19 of the Supreme Court Rules of
Professional Conduct by failing to provide
records requested by Assistant Disciplinary
Counsel through a subpoena and by failing to
keep records as mandated by Rule 1.19; and [4]
that respondent violated Rule 3.3 and Article
V, Rule 3.5(d) of the Supreme Court Rules of
Professional Conduct by engaging in conduct
during proceedings in the Workers'
Compensation Court and Bankruptcy Court that
demonstrated a lack of candor, as well as an
attempt to disrupt those tribunals.
From February through October 2013, a three-member panel
of the Disciplinary Board held eight hearings where McKenna
presented witness testimony, his own testimony, and exhibits to
contest these charges. Throughout the proceedings, McKenna sought
to avoid the Board's review by alleging multiple constitutional
violations. The panel dismissed all of McKenna's motions and
ultimately found that there was clear and convincing evidence that
McKenna had violated the Rhode Island Supreme Court Rules of
Professional Conduct on all four counts. On May 13, 2014, the
full Disciplinary Board adopted the panel's recommendation to
suspend McKenna's license for one year and forwarded the matter to
the Rhode Island Supreme Court, pursuant to Article III, Rule 6(d)
of the Rhode Island Supreme Court Rules for Disciplinary Procedure.
The Rhode Island Supreme Court ordered McKenna to appear
on June 11, 2014 to show cause as to why his license should not be
revoked. After listening to presentations by both McKenna and
- 5 -
Curtin, as well as reviewing the entire record, the Rhode Island
Supreme Court issued a twenty-page order adopting the Disciplinary
Board's recommendation and rejecting McKenna's constitutional
challenges. See In re McKenna, 110 A.3d 1126. The court further
directed McKenna to reapply for reinstatement at the conclusion of
his one-year period of suspension.2
On March 7, 2016, over a year after the suspension order
was issued, McKenna brought suit in federal court under 42 U.S.C.
§ 1983 against twenty-three judicial officers and administrators
of the Rhode Island court system -- in their personal capacities
-- who had participated in his disciplinary proceedings.3 McKenna
alleged that the defendants violated provisions of the Rhode Island
Constitution, as well as his rights under the First, Seventh, and
Fourteenth Amendments of the U.S. Constitution, by charging him
with ethical violations and by suspending his license. He sought,
inter alia, a judgment voiding certain Rhode Island Professional
2 McKenna did apply for reinstatement on March 23, 2016
(after filing this suit). However, the Rhode Island Supreme Court
denied his application on the grounds that he had not fulfilled
all of the requirements for reinstatement. See In re McKenna, 140
A.3d 158, 158 (R.I. 2016).
3 After the defendants filed their motion to dismiss,
McKenna voluntarily dismissed five counts of his original
complaint. As a result, only nineteen defendants remain on appeal:
five Rhode Island Supreme Court justices, twelve Disciplinary
Board members, Curtin, and DeSisto.
- 6 -
Conduct rules, an injunction to reinstate his license, money
damages, and attorney's fees.
The district court granted the defendants' motion to
dismiss all claims, primarily on the grounds that the Rooker-
Feldman doctrine divested the court of subject-matter jurisdiction
to hear the case. See McKenna v. Curtin, No. 16-cv-108-LM, 2016
WL 7015699, at *8 (D.R.I. Dec. 1, 2016). In the alternative, the
district court concluded that res judicata and judicial immunity
also precluded suit.
Id. at *9, *11.
Proceeding pro se, McKenna now contends that the
district court erred in dismissing his claims. He argues, as he
did in the district court, that (1) the Rhode Island judiciary
violated separation of powers under the Rhode Island Constitution,
and (2) the disciplinary proceedings infringed his federal
constitutional rights.4
II.
We review the dismissal of McKenna's claims de novo and
may affirm on any independently sufficient ground. See Badillo-
Santiago v. Naveira-Merly, 378 F.3d 1, 5 (1st Cir. 2004). The
4 On appeal, McKenna makes a glancing reference to the
alleged First, Seventh, and Fourteenth Amendment violations, but
does not develop his arguments, so they are waived. See United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (noting the
"settled appellate rule that issues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation,
are deemed waived").
- 7 -
district court correctly held that McKenna's suit is barred by the
Rooker-Feldman doctrine. As such, we need not reach the merits of
McKenna's constitutional claim.
The Rooker-Feldman doctrine, which is derived from two
U.S. Supreme Court cases, Rooker v. Fidelity Trust Co., 263 U.S.
413 (1923), and District of Columbia Court of Appeals v. Feldman,
460 U.S. 462 (1983), prevents "lower federal courts . . . from
exercising appellate jurisdiction over final state-court
judgments." Lance v. Dennis,
546 U.S. 459, 463 (2006); see also
Badillo-Santiago, 378 F.3d at 6. We have held that the Rooker-
Feldman doctrine only applies "in the 'limited circumstances'
where 'the losing party in state court filed suit in federal court
after the state proceedings ended, complaining of an injury caused
by the state-court judgment and seeking review and rejection of
that judgment.'" Federación de Maestros v. Junta de Relaciones
del Trabajo,
410 F.3d 17, 23-24 (1st Cir. 2005) (quoting Exxon
Mobil Corp. v. Saudi Basic Indus. Corp.,
544 U.S. 280, 291 (2005)).
These prerequisites are satisfied here. McKenna is a
state-court loser who filed suit in federal court one year after
the Rhode Island Supreme Court issued its suspension order.
Throughout his complaint, McKenna repeatedly alleges that his
suspension infringed "[his] liberty interests, his property
interests, his freedom of speech interests, and his due process
interests under the U.S. Constitution." And under multiple counts,
- 8 -
McKenna demands "a stay of his unlawful suspension," by way of
relief. Because McKenna (1) complains of a personal injury arising
from the Rhode Island Supreme Court's suspension order, and (2)
asks the district court to countermand that order, his suit is
precisely the "functional equivalent of an appeal" that the Rooker-
Feldman doctrine forbids. Badillo-Santiago, 378 F.3d at 6.
Although McKenna attempts to clear this jurisdictional
hurdle by reframing his case as a "public law" challenge, he is
felled by his own complaint. McKenna's bald assertions that the
Rules of Professional Conduct are "unconstitutional," and that the
defendants lacked "authority" to discipline him, are insufficient
to raise a facial challenge when all of the allegations in his
complaint concern the constitutionality of the rules as applied to
him. As such, adjudicating the separation of powers issue McKenna
raises would necessarily require reviewing the merits of the Rhode
Island Supreme Court's decision, thus violating the Rooker-Feldman
doctrine.
McKenna's only rejoinder -- that the Rooker-Feldman
doctrine does not apply here because his suspension hearings did
not constitute a judicial proceeding -- is plainly contradicted by
Feldman itself. There, the U.S. Supreme Court held that
proceedings in the District of Columbia Court of Appeals
surrounding Feldman's petition to be admitted to the District's
bar, without sitting for the exam, was judicial in nature. See
- 9 -
Feldman, 460 U.S. at 479. Faced with similar facts to this case,
the Court noted that:
[The proceedings] required the District of
Columbia Court of Appeals to determine in
light of existing law and in light of
Feldman's qualifications and arguments
whether Feldman's petition should be granted.
The court also had before it legal arguments
against the validity of the rule. When it
issued a per curiam order denying Feldman's
petition, it determined as a legal matter,
that Feldman was not entitled to be admitted
to the bar without examination or to sit for
the bar examination. The court had
adjudicated Feldman's "claim of a present
right to admission to the bar," and rejected
it. This is the essence of a judicial
proceeding.
Id. at 480-81 (emphasis added) (citation omitted).
The Rhode Island Supreme Court's disciplinary hearings
contained the same "essence of a judicial proceeding." Id. at
481. The court had to determine in light of existing law and the
evidence on the record whether it should adopt the Disciplinary
Board's recommendation to suspend McKenna for one year. The court
also had before it McKenna's constitutional challenges to the
proceedings, as well as his various motions to stay and to recuse
members of the court. When the Rhode Island Supreme Court issued
its twenty-page order suspending McKenna, it adjudicated his
constitutional claims, and "determined as a legal matter" that
McKenna failed to show cause.
Id. at 480. The suspension order
thus falls squarely within the definition of a final state-court
- 10 -
judgment that is insulated from federal district court review by
the Rooker-Feldman doctrine.
Application of the Rooker-Feldman doctrine is
particularly appropriate here because McKenna's separation of
powers claim is based on an interpretation of the Rhode Island
Constitution. And in this case, the Rhode Island Supreme Court
-- the ultimate arbiter of the meaning of that constitution --
itself expressly dismissed McKenna's constitutional challenge.
See In re McKenna, 110 A.3d at 1137-41.
III.
The district correctly held that McKenna's suit is
barred by the Rooker-Feldman doctrine. Accordingly, we affirm the
dismissal of McKenna's claims.
- 11 -
