UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CHARLES WILLIAM FLEMING,
Plaintiff-Appellant,

v.

WORKER'S COMPENSATION
COMMISSION OF THE
COMMONWEALTHOF VIRGINIA; UNITED
STATES FIDELITY & GUARANTY
COMPANY; LAWRENCE D. TARR,
                                                               No. 95-1815
Chairman of the Worker's
Compensation Commission; ROBERT
P. JOYNER, Commissioner of the
Worker's Compensation
Commission; VIRGINIA DIAMOND,
Commissioner of the Worker's
Compensation Commission,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CA-94-710-3)

Argued: December 6, 1995

Decided: March 5, 1996

Before HALL, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Thomas Hunt Roberts, ROBERTS PROFESSIONAL
LAW CENTER, Richmond, Virginia, for Appellant. Archibald Wal-
lace, III, SANDS, ANDERSON, MARKS & MILLER, Richmond,
Virginia, for Appellee USF&G; John M. McCarthy, Senior Assistant
Attorney General, OFFICE OF THE ATTORNEY GENERAL, Rich-
mond, Virginia, for Appellees Commission, Tarr, Joyner, and Dia-
mond. ON BRIEF: Ronald P. Geiersbach, ROBERTS
PROFESSIONAL LAW CENTER, Richmond, Virginia, for Appel-
lant. Richard T. Pledger, SANDS, ANDERSON, MARKS & MIL-
LER, Richmond, Virginia, for Appellee USF&G.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

In this action under 42 U.S.C. § 1983, Charles W. Fleming appeals
an order of the district court dismissing, without prejudice, his com-
plaint for declaratory and injunctive relief against the Workers' Com-
pensation Commission of the Commonwealth of Virginia and its
individual Commissioners. The order also granted summary judgment
to USF&G Co., the private workers' compensation coverage carrier
for Fleming's last employer. We affirm.

I.

Fleming suffered back injuries on June 30, 1993, while lifting a
kitchen cabinet during the course of his employment with Callaway's
Transportation, Inc. Callaway's notified USF&G, which agreed to
pay all of Fleming's medical expenses stemming from the injury, and

                    2
to award him temporary disability benefits. The agreement was
approved by the Commission on September 2, 1993. 1

In May 1994, and again six months later, USF&G suspended its
weekly disability payments to Fleming, asserting that Fleming had not
complied with certain statutory requirements on which the continued
receipt of benefits was conditioned.2 About two months prior to the
_________________________________________________________________
1 See Va. Code Ann. § 65.2-701(A) (Michie 1995):

            If after injury . . . , the employer and the injured employee
            . . . reach an agreement in regard to compensation or in com-
            promise of a claim for compensation under this title, a memoran-
            dum of the agreement . . . shall be filed with the Commission for
            approval. . . . If approved, the agreement shall be binding. . . .
2 On four occasions from May 5-11, 1994, Fleming missed appoint-
ments for work hardening therapy at an occupational rehabilitation cen-
ter. Under Virginia law, "[t]he unjustified refusal of the employee to
accept . . . medical service or vocational rehabilitation services when pro-
vided by the employer shall bar the employee from further compensation
until such refusal ceases. . . ." Va. Code Ann.§ 65.2-603(B) (Michie
1995). Soon after USF&G suspended payment of benefits, Fleming's
attending physician decided to abandon the work hardening strategy in
favor of having Fleming concentrate on adapting to his reduced level of
physical functioning. Upon being informed that the rehabilitation ses-
sions had suddenly become unnecessary, USF&G reinstated Fleming's
disability compensation and paid him the five weeks' worth of withheld
benefits.

USF&G again suspended Fleming's benefits on November 7, 1994,
after learning that Fleming had refused an offer of employment as a
security guard. See Va. Code Ann. § 65.2-510(A) (Michie 1995):

          If an injured employee refuses employment procured for him
          suitable to his capacity, he shall only be entitled to the benefits
          provided for in §§ 65.2-503 [permanent loss] and 65.2-603
          [medical attention and appliances], excluding vocational rehabil-
          itation services . . . during the continuance of such refusal, unless
          in the opinion of the Commission such refusal was justified.

Apparently, Fleming turned down the security guard position because he
mistakenly believed that he would be required to purchase or borrow an
automobile to use on the job. A representative of the Commission's Dis-
pute Resolution Department investigated the circumstances surrounding
Fleming's refusal, and advised USF&G that it should withdraw its appli-
cation to discontinue benefits. USF&G complied; it again resumed pay-
ments and issued Fleming a check for the three weeks' worth of benefits
that he had missed.

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second suspension, Fleming filed this action in the district court.3
Fleming alleged that USF&G's unilateral suspension of his benefits,
accomplished without prior notice and an opportunity to be heard,
deprived him of his right to due process as secured by the Fourteenth
Amendment. The complaint prayed that the Commonwealth's statutes
and regulations permitting pre-hearing suspension of workers' com-
pensation benefits be declared unconstitutional, and it requested that
the Commission be enjoined from enforcing them. Fleming's com-
plaint also demanded compensatory and punitive damages from
USF&G as a result of the two suspensions.

On March 7, 1995, the district court entered an order dismissing
the action against the state defendants, noting that because Fleming
had been paid all the benefits due him, see note 

, his request
for equitable relief had become moot. The order of dismissal was
without prejudice to its refiling in the event that Fleming's benefits
were again suspended. The order also granted summary judgment to
USF&G, on the ground that it is not a state actor, and thus not amena-
ble to suit under § 1983. Fleming appeals. 4

II.

An indisputably private entity will not ordinarily be deemed to
have acted under color of law unless the state is, in essence, responsi-
_________________________________________________________________
3 Fleming later amended his complaint to claim additional injuries suf-
fered as a result of the November 1994 suspension.
4 The appellees have suggested that we remand this case so that it may
be dismissed; they maintain that the district court should have declined
to assume jurisdiction over this dispute on the principle that the merits
of state court judgments are not subject to federal review upon the mere
allegation that the judgment itself violates the plaintiff's constitutional
rights. Rooker v. Fidelity Trust Co., 

, 416 (1923); District
of Columbia Court of Appeals v. Feldman, 

, 482 (1983); see
also Johnson v. De Grandy, 

, 2654 (1994). We disagree.
Even if the limited, informal actions taken by the Commission in the
instant case could be construed as "judgments," state administrative
agencies are not "courts" within the meaning of the Rooker-Feldman
doctrine. Narey v. Dean, 

, 1524-26 (11th Cir. 1994); Ivy
Club v. Edwards, 

, 284 (3d Cir.), cert. denied, 

(1991).

                    4
ble for the specific action at issue, either through the existence of a
"symbiotic relationship" with the private entity, or by so thoroughly
regulating the entity as to impose its will through coercion or, at least,
"significant encouragement." See Haavistola v. Community Fire Co.
of Rising Sun, 

, 215 (4th Cir. 1993). 5

Although the Commonwealth created the underlying statutory and
regulatory mechanism challenged in the instant proceeding, it did not
compel or direct the suspension of Fleming's benefits. That decision
instead rested squarely on the shoulders of USF&G."Regulations that
dictate procedures, forms, or even penalties without dictating the
challenged action do not convert private action into state action."
Barnes v. Lehman, 

, 1387 (5th Cir. 1988) (citing Blum
v. Yaretsky, 

, 1010 (1982)) (emphasis in original). We
therefore affirm the district court's summary judgment in favor of
USF&G.

III.

We also agree with the district court that Fleming's case against the
state defendants has become moot. The parties have stipulated that
"[a]ll wage and medical payments are now current and all back pay-
ments have been made."6 Hence, there is no longer a justiciable case
or controversy between Fleming and the state defendants. See S1 v.
Spangler, 

, 297 & n.1 (4th Cir. 1987). As the district
court noted, "Fleming is merely seeking a declaration that he was
once injured, and an order barring these defendants from acting in
similar fashion in the future." Because Fleming is unable to allege any
continuing adverse effect from the Commission's past actions, Article
III's case or controversy requirement is not met.

Fleming nevertheless asserts that his claim is "capable of repetition,
yet evades review," see City of Los Angeles v. Lyons, 

,
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5 An exception to the general rule may also apply where the private
entity exercises powers that are traditionally the exclusive prerogative of
the state. 

.
6 In addition, the complaint does not state a claim for money damages
from any defendant other than USF&G, and Fleming conceded at oral
argument that he seeks only equitable relief from the state defendants.

                     5
109-11 (1983), because USF&G is likely to again suspend his bene-
fits at a future date. The district court, however, found to the contrary,
and we do not perceive that finding to be clearly erroneous.

The judgment of the district court is affirmed.

AFFIRMED

                     6