Fleming v. United States Petition for Certiorari

    r|Mi a w

RECORD #

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1994

JAMES N. FLEMING,

UNITED STATES OF AMERICA, ET AL.

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR CERTIORARI

LAW OFFICES J. BENJAMIN DICK 
J. BENJAMIN DICK*
421 Park Street, #2 
Charlottesville, VA 22901
Arthur Kinoy
76 North Fullerton Ave.
Montclair, NJ 07042
Attorneys for Petitioner

Petitioner,
v.

Respondents.

* Counsel of Record



THE QUESTIONS PRESENTED FOR REVIEW

I
WAS IT ERROR FOR THE COURTS BELOW TO 

DENY JAMES N. FLEMING HIS DECLARATORY 
JUDGMENT, REQUESTED RELIEF, AND TO ENTER A 
SUMMARY AFFIRMANCE AGAINST THE UNDERLYING 
CASE BASED ON THE ROOKER-FELDMAN DOCTRINE, 
WHICH DOCTRINE HE ASSERTS CREATES AN ACTUAL 
CONTROVERSY UNDER THE CONSTITUTION AND LAWS 
OF CONGRESS THAT ONLY THIS COURT CAN RESOLVE 
TO RESTORE HIS FEDERALLY PROTECTED 
FUNDAMENTAL RIGHTS? II

II
ARE NOT THE UNITED STATES 

CONSTITUTION'S THIRTEENTH AND FOURTEENTH 
AMENDMENTS, AND LAWS PASSED PURSUANT TO THEIR 
ENABLING CLAUSES BY CONGRESS, WHICH GIVE 
GRANTS OF ORIGINAL JURISDICTION TO THE UNITED 
STATES DISTRICT COURTS OF THIS NATION TO

1



ENFORCE THOSE AMENDMENTS, E .G ., 28 USC 1343

(A) , AS THE INFERIOR COURTS SO AUTHORIZED BY 
THE LEGISLATIVE BRANCH, UNDER ARTICLE III 
SECTIONS 1 AND 2, AND THOSE ENACTED LAWS PER 
ARTICLE VI OF THE CONSTITUTION, THE SUPREME 
LAW OF THE LAND AS OPPOSED TO THE ROOKER- 
FELDMAN DOCTRINE?

Ill
AND THEREFORE, ARE THOSE GRANTS OF 

JURISDICTION NOT SUPERIOR IN JURISDICTION TO 
THE JUDICIAL PROCEDURAL JURISDICTIONAL 
DOCTRINE KNOWN AS THE "ROOKER-FELDMAN 
DOCTRINE,1' VIZ., DISTRICT OF COLUMBIA COURT 
OF APPEALS V. FELDMAN. 460 U.S. 462, 482 
(1983) ; ROOKER V. FIDELITY TRUST CO. . 263 
U.S. 413, 415, 416 (1923), WHICH JUDICIAL 
DOCTRINE WAS DECLARED BY THE DISTRICT COURT, 
AND AFFIRMED BY THE COURT OF APPEALS FOR THE 
DISTRICT OF COLUMBIA CIRCUIT BELOW, TO BE THE 
SUPREME LAW OF THE LAND; THEREBY, BARRING IN

11



THIS DECLARATORY ACTION BELOW ALL FEDERAL 
PROTECTIONS AND REMEDIES OF YOUR PETITIONER 
JAMES N. FLEMING TO VINDICATE BEFORE FEDERAL 
COURTS HIS THIRTEENTH AND FOURTEENTH 
AMENDMENT RIGHTS VIOLATIONS WHICH STEM FROM A 
FINAL STATE JUDGMENT THAT CONSTITUTES A STATE 
SANCTION TO IMPOSE UNLAWFUL BADGES AND 
INCIDENTS OF SLAVERY?

iii



The Parties To the Proceedings 
In the Court Below 

The petitioner is James N. Fleming.
The Respondents are the United States of 
America and its judicial employees of the 
United States District Courts for the Western 
District of Virginia and the United States 
Court of Appeals for the Fourth Circuit.

IV



TABLE OF CONTENTS

THE QUESTIONS PRESENTED FOR
REVIEW .................    i-iii
THE PARTIES TO THE PROCEEDINGS .......... iv
TABLE OF CONTENTS ...............   v-vi
TABLE OF AUTHORITIES ................ vii-ix

PAGEfS)

PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT ..... 1
OPINIONS BELOW ........................... 1
GROUNDS FOR JURISDICTION ................. 2

Date of Judgment ..............    2
Order on Rehearing ..................... 2
Statutory Provision Conferring

Certiorari Jurisdiction .............. 2
CONSTITUTIONAL PROVISIONS AND
STATUTES INVOLVED ................... 2-12

STATEMENT OF THE CASE ................  13-34

v



PAGEfS)

BASIS FOR JURISDICTION OF
FEDERAL DISTRICT COURT...............  3 5

REASONS FOR ALLOWANCE OF THE WRIT .......  3 6
(A) Summary of the Argument .......  36-42
(B) The Constitutional Issue Is Also 

Strictly One of Jurisdiction . . . 4.3-46
(C) Jurisdiction is Supreme ........ 46-56

CONCLUSION ......................    57-58
APPENDIX ......................   1-34

vi



TABLE OF AUTHORITIES

PAGE(S)

CASES
Ames v. Kansas 111 U.S. 449 (1884)....49
Batson v. Kentucky 476 U.S. 79 (1985)....
. .............................. ..... 28

Bell v. Maryland 378 U.S. 221 (1964)...46 
Chaves v. Johnson 230 Va. 112,
335 S.E. 2d 97 (1985)................. 25

Civil War Cases 109 U.S. 3 (1883).....52
District of Columbia Court of Appeals
v. Feldman 460 U.S. 462 (1983)..........
........... .............. i, ii, 14, 35

Edmonson v. Leesville Concrete Co.
500 U.S. 614, 111 S. Ct. 2077
(1991)........................ . .28, 29

Fleming v. Moore, sub nom The Gazette 
v. Harris 229 Va 1, 43, 325 S.E. 2nd 
713 (1985)................ ......... 26

vii



PAGE(S)
Fleming v. Moore 221 Va. 884,

275 S.E. 2d 713 (1985)...........26, 27
Jones v. Alfred H. Maver Co.
392 U.S. 409 (1968)...............20, 51

Marburv v. Madison. 1 Cranch 137
(18 03) .........  ................ . 46

Rooker v. Fidelity Trust Co,
263 U.S. 413 (1923)........i, ii, 14, 35

B. UNITED STATES CONSTITUTION
Amendment I ...
Amendment XIII. ....2, 31,
33, 36, 37, 38, 41, 42, 47, 50, 52, 55
Amendment XIV.. 3, 31, 33,
36, 37, 38, 41, 42, 46, 47, 50, 52, 55
Article III ...,
..........4, 5, 13, 16, 18, 43, 47, 48

Article VI ....... .... 6, 7, 13, 16, 18

v m



c FEDERAL STATUTES

28 USC 1257 .............7, 13, 35, 48, 53
28 USC 1331 ...............9, 35, 49, 51
28 USC 1343 ......
10 , 13, 16, 31, 32, 42, 48, 49, 50, 51
28 USC 2201 ... 35
42 USC 1981 ___...................11, 35
42 USC 1983 11, 12, 35



PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT

The petitioner, James N. Fleming, 
respectfully prays that a writ of certiorari 
issue to review the judgment and opinion of 
the United States Court of Appeals for the 
District of Columbia Circuit entered in this 
proceeding on July 27, 1994.

OPINIONS BELOW
The "unpublished", per curiam, opinion 

of the United States Court of Appeals for the 
District of Columbia Circuit is set out in 
the appendix at pages 3 through 5. The 
unpublished memorandum of the District Court 
is set out in the appendix at pages 7 through
18.



GROUNDS FOR JURISDICTION
The judgment sought to be reviewed is 

dated and was entered July 27, 1994 by the 
United States Court of Appeals for the 
District of Columbia. (App. 3-5)

Rehearing was denied by order filed 
September 14, 1994 (App. 1-2)

Title 28 United States Code, Section 
1254(1) confers jurisdiction to review the 
judgment by writ of certiorari.

THE CONSTITUTIONAL PROVISIONS AND 
STATUTES INVOLVED

Constitution of the United States: 
Amendment XIII 

Section 1.
Neither slavery nor involuntary 

servitude, except as a punishment for crime 
whereof the party shall have been duly 
convicted, shall exist within the United

2



States, or any place subject to their 
jurisdiction.

Section 2.
Congress shall have power to enforce 

this article by appropriate legislation.

Amendment XIV 
Section 1.

No state shall make or enforce any law 
which shall abridge the privileges or 
immunities of citizens of the United States; 
nor shall any State deprive any person or 
life, liberty, or property, without due 
process of law; nor deny to any person within 
its jurisdiction the equal protection of the 
laws.

Section 5
[Power to Enforce This Article]
The Congress shall have power to 

enforce, by appropriate legislation, the

3



provisions of this article. (Proposed by 
Congress on June 13, 1866, and declared 
ratified on July 28, 1868.)

ARTICLE III.
Section 1.

[Judicial Power, Tenure of Office]
The judicial power of the United States, 

shall be vested in one supreme court, and in 
such inferior courts as the Congress may from 
time to time ordain and establish. The 
judges, both of the supreme and inferior 
courts, shall hold their offices during good 
behavior, and shall, at stated times, receive 
for their services, a compensation, which 
shall not be diminished during their 
continuance in office.

Section 2.
[Jurisdiction]

The judicial power shall extend to all

4



cases, in law and equity, arising under this 
Constitution, the laws of the United States, 
and treaties made, or which shall be made, 
under their authority;— to all cases 
affecting ambassadors, other public ministers 
and consuls;--to all cases of admiralty and 
maritime jurisdiction;— to controversies to 
which the United States shall be a party;— to 
controversies between two or more states;—  
between a state and citizens of another 
state;--between citizens of different 
states;— -between citizens of the same state 
claiming lands under grants of different 
states, and between a state, or the citizens 
thereof, and foreign states, citizens or 
subjects.

In all cases affecting ambassadors, 
other public ministers and consuls, and those 
in which a state shall be party, the supreme 
court shall have original jurisdiction. In

5



all other cases before mentioned, the supreme 
court shall have appellate jurisdiction, both 
as to law and fact, with such exceptions, and 
under such regulations as the Congress shall 
make.

ARTICLE VI
[Debts, Supremacy, Oath]

This Constitution, and the laws of the 
United States which shall be made in 
pursuance thereof; and all treaties made, or 
which shall be made, under the authority of 
the United States, shall be the supreme law 
of the land; and the judges in every state 
shall be bound thereby, any thing in the 
Constitution or laws of any state to the 
contrary notwithstanding.

The senators and representatives before, 
mentioned, and the members of the several 
state legislatures, and all executives and

6



judicial officers, both of the United States 
and of the several states, shall be bound by 
oath or affirmation, to support this 
Constitution; but no religious test shall 
ever be required as a qualification to any 
office or public trust under the United 
States.

Title 28 USC § 1257. State courts; certiorari
(a) Final judgments or decrees rendered by 
the highest court of a State in which a 
decision could be had, may be reviewed by the 
Supreme Court by write of certiorari where 
the validity of a treaty or statute of the 
United States is drawn in question or where 
the validity of a statute of any State is 
drawn in question on the ground of its being 
repugnant to the Constitution, treaties, or 
laws of the United States, or where any 
title, right, privilege, or immunity is

7



specially set up or claimed under the 
Constitution or the treaties of statutes of, 
or any commission held or authority exercised 
under, the United States.
(b) For the purposes of this section, the 
term "highest court of a State" includes the 
District of Columbia Court of Appeals.

Title 28 USC § 2201. Creation of remedy
In a case of actual controversy within its 
jurisdiction, except with respect to Federal 
taxes other than actions brought under 
Section 7428 of the Internal Revenue Code of 
1954 [26 USC § 7428], any court of the United 
States, upon the filing of an appropriate 
pleading, may declare the rights and other 
legal relations of any interested party 
seeking such declaration, whether or not 
further relief is or could be sought. Any 
such declaration shall have the force and

8



effect of a final judgment or decree and 
shall be reviewable as such.

Title 28 USC § 1331. Federal Question
The district courts shall have 

original jurisdiction of all civil actions 
arising under the Constitution, laws, or 
treaties of the United States.

Title 28 USC § 1343. Civil Rights and 
Elective Franchise

(a) The district courts shall have 
original jurisdiction of any civil action 
authorized by law to be commenced by any 
person:

(1) To recover damages for injury to 
his person or property, or because of the 
deprivation of any right or privilege of a 
citizen of the United States, by any act done 
in furtherance of any conspiracy mentioned in

9



section 1985 of Title 42;
(2) To recover damages from any 

person who fails to prevent or to aid in 
preventing any wrongs mentioned in section 
1985 of Title 42 which he had knowledge were 
about to occur and power to prevent;

(3) To redress the deprivation, under 
color of any State law, statute, ordinance, 
regulation, custom or usage, of any right, 
privilege or immunity secured by the 
Constitution of the United States of by any 
Act of Congress providing for equal rights of 
citizens or of all persons within the 
jurisdiction of the United States;

(4) To recover damages or to secure 
equitable or other relief under any Act of 
Congress providing for the protection of 
civil rights, including the right to vote.

10



Title 42 USC § 1981. Equal Rights Under the 
Law

All persons within the jurisdiction of 
the United States shall have the same right 
in every State and Territory to make and 
enforce contracts, to sue, be parties, give 
evidence, and to the full and equal benefit 
of all laws and proceedings for the security 
of persons and property as is enjoyed by 
white citizens, and shall be subject to like 
punishment, pains, penalties, taxes, 
licenses, and exactions of every kind, and to 
no other.

Title 42 USC § 1983. Civil Action for 
Deprivation of Rights

Every person who, under color of any 
statute, ordinance, regulation, custom, or 
usage, of any State or Territory or the 
District of Columbia, subjects, or causes to

11



be subjected, any citizen of the United 
States or other person within the 
jurisdiction thereof to the deprivation of 
any rights, privileges, or immunities secured 
by the Constitution and laws, shall be liable 
to the party injured in an action at law, 
suit in equity, or other proper proceeding 
for redress.

12



STATEMENT OF THE CASE
This case is a novel case and 

unprecedented. It challenges under our 
Constitution and the laws of Congress a 
judicial doctrine created by this Court in a 
judicial construction of a 20th century 
congressional statute, viz., 28 U.S.C. 1257, 
enacted in 1923. A separation of powers 
issue looms and a constitutional law conflict 
exists due to the judicial doctrine known as 
the "Rooker-Feldman Doctrine." It directly 
conflicts with 28 U.S. 1343(a), the 
Thirteenth and Fourteenth Amendments of the 
United States Constitution, Article III, 
Sections One and Two, and Article VI of the 
Constitution.

James N. Fleming filed a federal 
complaint below to challenge directly the 
Rooker-Feldman doctrine as depriving him of 
his federally protected rights and by its

13



application, misapplication, or on its face 
being violative or repugnant to the 
Constitution.

He sought a declaratory judgment under 
28 USC § 2201. The District Court below 
granted the United States government's motion 
to dismiss; the Court of Appeals for the 
District of Columbia Circuit affirmed and 
granted a summary affirmance denying briefs 
or argument before the Court.

The Rooker-Feldman doctrine evolves out 
of this Court's cases of Rooker v. Fidelity 
Trust Co. 263 U.S. 413 (1923); District of 
Columbia Court of Appeals v. Feldman. 460 
U.S. 462 (1983). In summary, this doctrine 
says that no federal court may review a final 
state judgment. (App. 19-22. See Fourth 
Circuit opinion.) This judicial construction 
abridges and conflicts with Congress's grants 
of original jurisdiction such as 28 USC 1343

14



(a) .
Mr. Fleming in the 1980’s was harnessed 

with a final state Virginia libel verdict as 
"a member of the black race" who was critical 
of his white zoning opponent self described 
in the state libel action pleading as "a 
member of the white race." The state lawsuit 
was by its own pleading and on its face, a 
racial lawsuit. (App. 30-34, at 31.)

Rooker-Feldman as a procedural doctrine 
addressing subject matter jurisdiction was 
used to bar Mr. Fleming from vindication of 
his fundamental constitutional rights and 
Thirteenth Amendment prohibitions. The 
inferior federal Courts of Virginia did 
follow repeatedly this doctrine to allow a 
disenfranchisement of the United States 
citizenship of James N. Fleming by allowing a 
state court sanction to impose a badge of 
slavery on Mr. Fleming and to stand

15



uncontested in the federal inferior courts.
A protected class of citizen whose 
fundamental rights by reason thereof were 
conferred upon him as a descendant of a 
slave, Mr. Fleming is absolutely guaranteed 
by the Thirteenth and Fourteenth Amendments 
that the federal inferior courts are duty 
bound, by grants of "original jurisdiction," 
to enforce his constitutional rights against 
state infringements, viz., 28 USC 1343 (a) 
et. seq. The constitutional issue of where 
"jurisdiction" lies is therefore critical.

The "Rooker-Feldman" doctrine by its 
application, misapplication, or on its face, 
has unlawfully taken precedence over the 
congressional grant of "original 
jurisdiction" in violation of, and repugnant 
to the Constitution, Article III, Sections 1 
and 2, and Article VI.

No judicial doctrine can lawfully have

16



the authority to divest Mr. Fleming and his 
class of these sacred rights vested in the 
Constitution nor make nugatory remedies 
passed by Congress to enforce the same. 
National blood spilled by war and conflict 
gave birth to two of the most momentous 
Constitutional enactments since the Founding 
Fathers wrote the Constitution itself, the 
Thirteenth and Fourteenth Amendments.

Under the facts and circumstances of 
this compelling individual case, these 
Amendments must be declared supreme over the 
Rooker-Feldman doctrine as well as the laws 
passed by Congress under those Amendments' 
enabling clauses to gain enforcement. This 
Supreme Court should properly instruct and 
direct the inferior federal Courts to correct 
their omission and their error in following 
the Rooker-Feldman doctrine when they are 
mandated by Congressional grants of "original

17



jurisdiction" to enforce Constitutional law.
Article III, Section 2, compels the 

"Supreme" Court over the "inferior" Courts by 
appellate jurisdiction to declare that 
Rooker-Feldman has no constitutional 
superiority in this specific class of cases 
authorized and enacted by Congress and by the 
power of the Constitution itself. (Article 
VI.)

It is respect to this Court that we who 
similarly took an oath to uphold the 
Constitution are commanded to submit an 
"actual controversy" under the Constitution 
and the laws of Congress which clearly exists 
caused by this Court's reasoning in the 
Rooker-Feldman cases.

The actual controversy is whether the 
constitutional grants of original 
jurisdiction required the federal courts to 
give the petitioner Fleming protection of his

18



fundamental constitutional rights violated by 
the state actors, or should the federal 
courts adhere to the Rooker-Feldman doctrine 
to bar those guarantees and protections? Due 
not only to the facts and circumstances of 
this compelling individual case, the Supreme 
Court has a duty in the exercise of its 
jurisdiction under Article III to correct the 
misapplication of constitutional law made 
universally by the inferior courts which have 
relied on the doctrine of Rooker-Feldman as 
announced by this Court to wrongly deny Mr. 
Fleming his federal remedies and, thereby, 
failing to protect his federally protected 
constitutional rights. If Mr. Fleming by 
this case is not protected, then no minority 
American is protected from a final state 
judgment which by its very sanction violates 
the Thirteenth or Fourteenth Amendments.

Fundamental Constitutional rights and

19



their protections are at hand, for Mr.
Fleming and his class, before the "Supreme" 
Court, as opposed to lower holdings of 
"inferior" courts, viz., reference Article 
III, Sections 1 and 2. The federal inferior 
Courts have consistently held that the 
Rooker-Feldman doctrine bars all of Mr. 
Fleming's federal remedies to vindicate his 
Constitutional and fundamental rights after a 
final state judgment violated his Thirteenth 
and Fourteenth Amendment rights. Mr. Fleming 
argued below that he has become the Dred 
Scott of the 20th century.

The Rooker-Feldman doctrine displaces 
constitutional law as found in Jones v.
Alfred H. Maver Co.. 392 U.S. 409 (1968) 
which clarified the breadth and power of the 
Thirteenth and Fourteenth Amendments to this 
nation. The Thirteenth Amendment to be 
enforced, of course, does not require state

20



action. Id.
The Rooker-Feldman doctrine was 

nevertheless used to even defeat Mr.
Fleming's Thirteenth Amendment federal action 
as well, when no state court ever weighed 
that ominous constitutional issue which one 
United States Circuit Judge in denying 
injunctive relief to stay the execution of 
the state judgment against Fleming held: "It 
is claimed this is a badge of slavery, which 
of course, it is." (App. 24.) Simply 
stated, Mr. Fleming has no constitutional 
rights due to the universal application of 
the Rooker-Feldman doctrine by federal 
inferior courts and he has wrongly been 
deprived of the very forum the Constitution 
and Congress envisioned for him to go to in 
order to vindicate those very rights.

Factually, Mr. Fleming expressed his 
critical opinion against his white zoning

21



adversary in the 1970's on a matter of public 
concern involving complicated local zoning 
laws in Albemarle County, Virginia. For his 
opinion titled "RACISM" (App. 26-29) , the 
private white individual, whose name is 
mentioned in Mr. Fleming's published article, 
as not wanting to see any black person within 
his sight, Professor Moore, openly declared 
himself to the world in the state pleading 
for his action of libel against Mr. Fleming, 
that he, as "a member of the white race," had 
been "insulted, mortified, held up to 
ridicule, humiliated, and aggrieved" by Mr. 
Fleming, who Professor Moore noted in the 
state pleading was "a member of the black 
race." (App. 30-34, at 31.)

The state case was brought as a racial 
lawsuit to punish Mr. Fleming for his 
critical words as was once inflicted under 
the Virginia slave code to negroes who were

22



deemed to be punishable for critizing whites 
through their menacing language or gestures. 
Fleming exercised his free speech on a public 
matter, being Mr. Fleming's housing 
development, which stood to make Mr. Fleming 
quite wealthy in a white neighborhood.

Professor Moore opposed, with a 
predominantly white power structure, Mr. 
Fleming's housing project which professed to 
be open to all persons of every race or 
financial makeup. Professor Moore fought Mr. 
Fleming's housing development even after it 
had been forcibly approved by a Consent Order 
of a United States District Court, United 
States District Court for the Western 
District of Virginia, Civil Action #75-11, 
Fleming v. County of Albemarle.

Mr. Fleming had alleged and proved 
racial discrimination in the governmental 
disapproval of his housing development which

23



disapproval was supported by a power bloc of 
white opponents, including Professor Moore, 
whose house next to the development was a 
miniature replica of Thomas Jefferson's home, 
Monticello. Moore insisted on a 100 ft. tree 
buffer which the local government adopted 
thereby preparing to confiscate acres of Mr. 
Fleming's land so Moore would not have to see 
the development. This gave rise to Mr. 
Fleming's opinion that Moore, unlike 
Jefferson, did not want to see any black 
people within his sight, viz., the article 
"RACISM" discussing the fight between the 
"haves" and the "have nots." (App. 27.)

Mr. Fleming took up pen and exercised 
the same right white citizens had exercised 
since the earliest days of Virginia as a 
state constitutional privilege, to write or 
speak "any pure expression of opinion not 
amounting to fighting words however ill

24



founded without inhibition by actions for
libel and slander." Chaves v. Johnson,
230 Va. 112, 119, 335 S.E. 2d 97, 101-102 
(1985).

It was this very case opinion, reciting 
Thomas Jefferson's first Inaugural Address of 
1801, that Mr. Fleming used at the last 
procedural stage of his state proceeding to 
reverse Moore's libel judgment based on the 
article "RACISM." Fleming sought to have his 
case conformed to the Chaves decision.
It involved two white architects one publicly 
criticizing the other. The Virginia Supreme 
Court refused Mr. Fleming his request.
His First Amendment rights were thus denied.

This gave reason for Mr. Fleming to 
raise his Fourteenth and Thirteenth Amendment 
federal claims for the first time in federal 
court notwithstanding the state motion for 
judgment on its face and the final state

25



judgment were, in and of themselves, 
violative of those Amendments and his First 
Amendment rights.

After the state judgments were final, 
Fleming v. Moore. sub, nom, The Gazette v. 
Harris. 229 Va. 1, 43, 325 S.E. 2d 713, 
Fleming II (1985); See also Fleming v. Moore 
221 Va. 884, 275 S.E. 2d 632 at 635 (1981), 
Fleming I, Mr. Fleming launched his federal 
collateral attack that this state sanction by- 
judicial judgment violated his Thirteenth and 
Fourteenth Amendment rights. The case was 
summarily dismissed by the Virginia federal 
courts citing the Rooker-Feldman doctrine.
The Fourth Circuit concurred. A writ for 
certiorari was denied by this Court.

The final state judgment has continuing 
and prospective unconstitutional effect, 
silencing Mr. Fleming and taking his free 
expression from him and imposing badges and

26



incidents of slavery upon him. Mr. Moore, 
with the assistance of the state, severely 
punished Mr. Fleming for his menacing gesture 
as a "Negro" with the assistance of state 
action and state judicial sanction. The 
judiciary thereby adopted incidents, relics, 
and badges of slavery by harnessing Mr. 
Fleming with one of the largest state civil 
libel judgments ever awarded in Virginia's 
judicial history, exceeding a quarter-million 
dollars because Fleming, "a member of the 
black race," had insulted Moore, "a member of 
the white race." Fleming argues if any black 
citizen reads of public record Fleming v. 
Moore 221 Va. 884 (1981), his opinion 
"RACISM" is published there as a warning to 
all black Virginia citizens, that this is the 
price to be paid for openly criticizing a 
white person on issues of public concern.

The result is reminiscent of the Old

27



Slave Code of Virginia that no Negro could 
make a menacing gesture to a white person. 
(Virginia General Assembly 1847-48 Enactment, 
"Offenses by Negroes," § 14 (11) (12).) The
menacing Negro would be taken to the public 
square after being tried by a magistrate or 
Judge and administered not more than 39 
stripes at any one time as punishment.

At Mr. Fleming's state trials in the 
1970's and 1980's, all black jurors were 
first peremptorily struck by Mr. Moore's 
counsel. This was objected to as 
unconstitutional at that time and which 
practice is now held by recent decisions of 
this Court to be unconstitutional. (Batson 
v. Kentucky 476 U.S. 79 (1986); Edmonson v. 
Leesville Concrete Co. 500 U.S. 614, 111 S. 
Ct. 2077 (1991).) Mr. Fleming was harnessed 
with one of the largest libel verdicts in the 
history of Virginia handed down by an all­

28



white jury. He thus got his 39 stripes and 
then some.

Mr. Fleming, ahead of his time, argued 
the jury issue in one of his applications for 
writ of certiorari to this Court, record # 
85-1532, wherein the NAACP also filed an 
amicus brief arguing that Moore's striking of 
all black jurors violated Mr. Fleming's 
constitutional right to equal protection of 
the laws. His argument was made to no avail. 
The writ was denied by this Court which in 
1991 changed its mind.

Finally, at the conclusion of the state 
action and the repeated failed attempts to 
seek federal jurisdiction denied by reason of 
the Rooker-Feldman doctrine, Fleming directly 
attacked the Rooker-Feldman doctrine itself. 
He named the United States of America and its 
judicial employees in the Western United 
States District Courts of Virginia and the

29



United States Court of Appeals for the Fourth 
Circuit as party defendants, seeking both 
declaratory and injunctive relief and damages 
for reimbursement of his expenses and costs, 
restoration of his rights, and attorney fees 
for those judicial employees' willful and 
wrongful application of the Rooker-Feldman 
doctrine to bar what Congress had otherwise 
authorized, civil actions by citizens to 
vindicate their constitutional rights from 
state action infringements.

Each of the inferior federal courts 
here listed saw Fleming's federal cases 
dismissed by reason of the Rooker-Feldman 
doctrine. (Fleming v. Moore, et al., Slip 
Opinion No. 87-6619 (4th Cir. 1989); Fleming 
V. Moore. 780 F.2d 438 (4th Cir. 1985); 
Fleming v. Moore, No. 85-2168, cert, den., 55. 
U.S.L.W. 3258 (1986); Fleming v. Moore. No. 
85-1532, cert. den. 54 U.S.L.W. 1697 (1986);

30



Fleming v. Moore, No. 84-1740 (1986), cert, 
den. 53 U.S.L.W. (1985); Fleming v. Moore,
No. 84-382, cert. den. 53 U.S.L.W. 3325 
(1984); (See also Judge Sporkin's recital of 
Mr. Fleming's efforts, App. pp. 10-12, 15.)

Fleming now directly attacks Rooker- 
Feldman as having been unconstitutionally and 
impermissibly applied or misapplied by 
inferior federal tribunals, and argues that 
the misapplication or application directly 
conflicts with the Thirteenth and Fourteenth 
Amendments, 28 USC § 1343 (a) granting 
"original" jurisdiction to the District 
Courts to hear the very federal claims 
Fleming brought by federal complaints, and 
with Article III, Sections 1 and 2, and with 
Article VI. In relying on the Rooker-Feldman 
doctrine, Fleming was denied by the very 
Courts and judicial officers empowered and 
duty bound to protect his federally protected

31



rights being the "inferior" Courts of the 
United States and their federal employees 
sitting in Virginia.

In the alternative, Fleming being 
vested with his citizenship through the 
Fourteenth and Thirteenth Amendments, because 
of the disenfranchisement he has suffered due 
to the Rooker-Feldman doctrine, seeks a 
declaratory judgment also to declare it to be 
in conflict with the Thirteenth and 
Fourteenth Amendments and the laws of 
Congress passed under those amendments to the 
extent that the Rooker-Feldman doctrine as to 
those amendments and 28 USC 1343 (a) is 
repugnant to the Constitution itself, and, 
therefore it is unconstitutional on its face 
as it would be applied by the inferior Courts 
to Thirteenth and Fourteenth Amendment claims 
of Mr. Fleming and his protected class.

Therefore, Rooker-Feldman is

32



unconstitutional in its application and on 
its face, and it presents an actual 
controversy under the Constitution to be 
resolved by the appellate jurisdiction of 
this Court in favor of Mr. Fleming, thereby 
vindicating Mr. Fleming's Thirteenth and 
Fourteenth Amendment federally protected 
rights and of his class.

He urges for himself and for his class 
that recurrences of this disenfranchisement 
will continually occur in this nation without 
the highest federal tribunal, the Supreme 
Court of the United States, deciding by its 
supreme jurisdiction this actual controversy 
and correcting this constitutional conflict 
created by the inferior federal courts which 
relied on the Rooker-Feldman doctrine to bar 
these cases.

In vindicating this impermissible 
unconstitutional infringement on Mr.

33



Fleming’s rights and freedom, the Supreme 
Court of the United States is requested to 
remand this case to the District Court for 
further proceedings consistent with this 
Court's ruling and instructions that the 
lower district courts below did indeed have 
"original jurisdiction" to hear and resolve 
Mr. Fleming's federal complaint. Mr. Fleming 
filed a motion for summary judgment. He also 
asks that this Court vacate the lower 
district court's order granting the 
government's motion to dismiss and enter Mr. 
Fleming's summary judgment motion asserting 
as a matter of constitutional law, that the 
Thirteenth and Fourteenth Amendments and the 
laws of Congress enacted to enforce them are 
the supreme law of the land and are superior 
to the Rooker-Feldman doctrine.

34



Basis for Jurisdiction

of Federal District Court
Jurisdiction of the district court was 

invoked under 28 U.S.C. 2201 and, further, 
under 28 U.S.C. 1331 and 1343(a), this being 
an action for legal and equitable redress 
arising as well under 42 U.S.C. 1981 and 
1983 .

On motions of the defendants, the 
district court summarily dismissed the action 
"for lack of subject matter jurisdiction," 
citing as authority District of Columbia 
Court of Appeals v. Feldman, 460 U.S. 462 
(1983). (App. 7-18.) The Court of Appeals 
for the District of Columbia Circuit 
affirmed, citing the Rooker-Feldman doctrine 
(Rooker v. Fidelity Trust Co., 263 U.S. 413 
(1923) and District of Columbia Court of 
Appeals v. Feldman, supra.) and 28 U.S.C. 
§1257. (App. 3-5.)

35



REASONS FOR ALLOWANCE OF THE WRIT
I

Summary of the Argument

There exists little or no case law on 
this case before you. Article III, Section 1 
and 2 are the beginning point of 
Constitutional law to address Mr. Fleming's 
case.

This nation enacted the Thirteenth and 
Fourteenth Amendments with enabling clauses 
to ensure their enforcement. Congress, 
recognizing that access to federal courts 
might well be required to vindicate federal 
Constitutional rights, enacted statutes 
granting "original jurisdiction" to federal 
courts to enforce these Amendments in our 
district courts. Adherence to "Rooker- 
Feldman" by the lower courts, however, 
presently prevents federal courts from 
utilizing their Congressionally granted

36



A clear constitutional conflict thus 
exists between these Amendments, the laws 
passed to enforce them, and the "Rooker- 
Feldman" doctrine. In such a conflict, the 
Constitution, and constitutionally valid 
Congressional legislation, must prevail. 
"Rooker-Feldman" deprives individuals of a 
protected class of the ability legally to 
obtain vindication of their constitutionally 
protected Thirteenth and Fourteenth Amendment 
rights because it denies them access to 
federal district courts, the appropriate fora 
in which to assert those rights, rendering 
nugatory the protection of the Thirteenth and 
Fourteenth Amendments in states unwilling to 
honor their legal force.

As a descendant of an African-American 
slave, that class of Americans acknowledged 
as citizens by virtue of the passage of the

jurisdiction.

37



Thirteenth and Fourteenth Amendments, Mr. 
Fleming's fundamental rights as an American 
citizen are guaranteed by our Constitution.
We submit that Mr. Fleming and others of his 
class have been denied the protection 
guaranteed by the Thirteenth and Fourteenth 
Amendments, and that as to Fleming this 
denial of Constitutional protection has been 
worked by private actors, and by the state 
judiciary of Virginia, under the sanction of 
state law, as asserted in his Complaint. Mr. 
Fleming's attempts to vindicate his federally 
guaranteed rights, once he had been subjected 
to state deprivation of those federally 
protected rights, was thwarted by his 
inability to press his federal claims in 
federal courts.

If the "Rooker-Feldman" doctrine is a 
"universal" doctrine, barring citizens of any 
race from attacking a final state judgment,

38



as recited by Fleming's former adversaries, 
even when that judgment is violative of 
First, Thirteenth or Fourteenth Amendment 
rights, then this case must be heard to 
resolve the constitutional conflict Fleming 
raises for himself, his class and all 
minority races. If the Virginia or any 
similar state's judicial decision is allowed 
to stand, as it has against Fleming, 
depriving a citizen of the United States 
fundamental rights due to the fiction of the 
"Rooker-Feldman" doctrine, then all 
Thirteenth and Fourteenth Amendment 
protection and guarantees, and the remedies 
provided by laws of Congress, as to any 
member of a minority race, may be ignored 
among the states without fear of federal 
intervention.

The District Court below expressed the 
fear that to take this unprecedented position

39



would result in "No state court decision 
would ever be considered final," and, "It 
would place the judicial system in a 
perpetual-motion cycle". (App. 17.)

Thus the District Court, in that fear, 
below joined every federal court which has to 
date reviewed Mr. Fleming's various federal 
collateral and direct attacks and concluded 
identically to cast that fear aside, "Until 
the Supreme Court of the United States says 
otherwise, the Rooker-Feldman doctrines 
remains the law of the land." (App. 16-17.) 
Rooker-Feldman is not the supreme law of the 
land by reason of Article VI.

Mr. Fleming does not even suggest as 
the District Court below does that every 
state final judgment should come into play if 
the Rooker-Feldman doctrine were struck down, 
rather, he submits only those final state 
judgments come into federal court which would

40



by state judicial sanction impose a badge or 
incident of slavery violative of the 
Thirteenth and Fourteenth Amendments of our 
citizenry or prove to be violative of 
federally protected rights.

In this regard, Congress has made a 
protected class of citizens to achieve racial 
equality so that a state actor and state 
jurist in the Mississippi Delta or the 
boroughs of Chicago or the streets of Los 
Angeles will adhere to the law of the land, 
the Thirteenth and Fourteenth Amendments, and 
the laws of Congress passed to enforce them. 
Otherwise, if they failed to do so, the 
federal tribunals which have original 
jurisdiction to see that the constitutional 
rights of this class are enforced, violate 
their oath and affirmation "...to support 
this Constitution." (Article VI.)

The Rooker-Feldman doctrine is

41



therefore at total odds and conflict with the 
law of this nation and the Constitution 
itself. The Supreme Court of the United 
States must correct this misapprehension of 
the law by taking this case and announcing to 
all inferior federal courts across this 
nation that the misapplication of Rooker- 
Feldman is constitutional error in this type 
of case and so declare the Thirteenth and 
Fourteenth Amendments and 28 USC 1343 (a) 
superior to that doctrine, and in the 
alternative, that the doctrine is repugnant 
to those Amendments and the laws of Congress 
passed to enforce them, and therefore 
unconstitutional when used in that limited 
context or unconstitutional in its 
misapplication to those classes of case.

42



II

The Constitutional Issue Is
Also Strictly One of Jurisdiction

Pursuant to the Thirteenth and 
Fourteenth Amendments and their enabling 
clauses, and Article III, Section 1 of the 
United States Constitution, the United States 
District Courts receive grants of “original 
jurisdiction" from Congress to enforce 
Fleming’s constitutional rights from unlawful 
sanctions coming out of state law, judiciary 
sanctions, police, and even state sovereignty 
and its agents' unconstitutional customs, 
practices, and policy. Only one avenue 
existed for Mr. Fleming to expunge the badge 
of slavery imposed and to right the 
disenfranchisement of his citizenship, and, 
that is in the federal courts as this case so 
well proves. 28 USC 1343 (a) provided this 
avenue by a granting of "original

43



The judicial doctrine ofjurisdiction."
Rooker-Feldman made that grant of 
jurisdiction nugatory in violation of the 
Constitution itself.

Mr. Fleming argues that the flawed 
reasoning of inferior federal courts sitting 
in Virginia to give Rooker-Feldman this 
supremacy over the Constitution itself is no 
less than a misapplication of Constitutional 
law, and defeats the Supremacy Clause of 
Article VI and violates the separation of 
powers by defying Congress's Constitutional 
role.

To follow as the District Court below 
did that by reason that Rooker-Feldman is the 
law of the land to this sort of case, when it 
is not the law of the land, simply and 
impermissibly allows the inferior courts of 
the United States to unlawfully ignore 
Congressional grants of original jurisdiction

44



by refusing to review a final state judgment 
under these facts and circumstances, which 
violates federally protected rights. Federal 
courts thereby unwittingly join state action 
to unlawfully defeat Mr. Fleming's federally 
protected rights under the Thirteenth and 
Fourteenth Amendments, which are clearly 
superior and supreme to the Rooker-Feldman 
doctrine, and to make nugatory the grant of 
jurisdiction to enforce those rights.

Using the Rooker-Feldman reasoning, Mr. 
Fleming submits, could raise the 
unconstitutional specter of private actors 
across this nation, instituting state court 
sanctions secured by final state judgments 
violative of these constitutional Amendments, 
and obtaining thereby in any of the fifty 
states the identical result imposed on Mr. 
Fleming, a badge, relic, or incident of 
slavery.

45



The end result is that the protected 
class of citizenry would under the Rooker- 
Feldman doctrine be without immediate redress 
in the inferior federal courts because of the 
Rooker-Feldman doctrine procedural bar. This 
is a blatant, willful and unconstitutional 
indifference to the Constitution if this 
judicial doctrine can continue to be a bar 
which makes a Congressional grant of original 
jurisdiction entirely meaningless.

Ill
Jurisdiction is Supreme

The Constitution at Article VI states 
"this Constitution, and the Laws of the 
United States which shall be made in 
Pursuance thereof...shall be the supreme Law 
of the Land." In Bell v. Maryland. 378 U.S. 
221 (1964), this Court reviewed Marburv v. 
Madison. 1 Cranch 137, 177-178 (1803), noting

46



that where there are conflicting laws with 
the Constitution, Chief Justice Marshall and 
the Court held "...the Court must determine 
which of these conflicting rules govern the 
case. This is the very essence of judicial 
duty." The District Court below and the 
Circuit Court of Appeals below are both wrong 
that the Rooker-Feldman doctrine is "the law 
of the land." The Thirteenth and Fourteenth 
Amendments and Congressional grants of 
original jurisdiction to enforce those 
Amendments is the supreme law of the land.

Chief Justice Marshall concludes, Id., 
at 180: "Thus the particular phraseology of 
the Constitution of the United States 
confirms and strengthens the principle 
supposed to be essential to all written 
Constitutions, that a law repugnant to the 
Constitution is void; and that courts. as 
well as other departments, are bound by that

47



instrument." The Thirteenth and Fourteenth
Amendments are part and parcel of our 
nation's Constitution. 28 USC 1257 spawning 
the Rooker-Feldman doctrine is not. No 
judicial doctrine can supplant these 
Amendments nor supplant the grant of the 
legislative branch so empowered to give the 
district courts original jurisdiction to 
enforce those very Amendments. The Rooker- 
Feldman doctrine has impermissibly done just 
that and as applied and on its face and, when 
put in conflict with the Constitution, it is 
repugnant and therefore void as to its 
misapplication to Mr. Fleming and his class's 
federally protected rights and the laws 
passed to enforce those rights.

The creation of lower federal courts 
and determination of their jurisdiction has 
been left to Congress, Article III § 1. It 
is for Congress to decide to what extent the

48







custom or usage, of any right, privilege or 
immunity secured by the Constitution of the 
United States of by any Act of Congress 
providing for equal rights of citizens or of 
all persons within the jurisdiction of the 
United States." Mr. Fleming has, therefore, 
a civil case and he seeks legal and equitable 
remedies provided by Congress under 28 USC 
1343 (aj. This grant of jurisdiction and the 
laws passed are the supreme law of the land 
under Article VI.

28 USC 1331 states further that "The 
district courts shall have original 
jurisdiction of all civil actions arising 
under the Constitution, laws, or treaties of 
the United States." Mr. Fleming thus has 
access to the district court to seek damages 
as well. He can also proceed under 28 USC 
2201 for a declaration of those rights.

In Jones v. Mayer 392 U.S. 409 (1968),

51



this Court at 439-440 defined the breadth and
power of the Thirteenth Amendment, "...the 
authors of the Thirteenth Amendment had no 
doubt that its Enabling Clause contemplated 
the sort of positive legislation that was 
embodied in the 1866 Civil Rights Act.
Citing the Civil War Cases. 109 U.S. 3 at 23 
(1883), the Court wrote "Under the Thirteenth 
Amendment, it has to do only with slavery and 
its incidents. Under the Fourteenth 
Amendment, it has the power to counteract and 
render nugatory all State Laws and 
proceedings which have the effect to abridge 
any of the privileges or immunities of 
citizens of the United States... ."

The Court went on to hold that under the 
Thirteenth Amendment legislation, it had the 
power to "eradicate all forms and incidents 
of slavery... direct and primary, operating 
upon the acts of individuals..." Id. One

52



Fourth Circuit Judge held the final state 
judgment against Mr. Fleming was a badge of 
slavery and retreated from striking it down 
writing in his denial of injunctive relief 
his adherence to Rooker-Feldman (App. 23-25), 
"It is claimed that this is a badge of 
slavery, which, of course, it is." (Emphasis 
added.) Yet no federal lower court would 
ever allow Mr. Fleming a trial to strike that 
badge down as unconstitutional under the 
United States Constitution.

28 USC 1257 (reference page 7 herein) 
applies to "final judgments," viz., "...where 
the validity of a treaty or statute of the 
United States is drawn into question or where 
the validity of a statute of any state is 
drawn into question on the ground of its 
being repugnant to the Constitution, 
treaties, or laws of the United States... ." 
As the basis of Rooker-Feldman, its

53



application is entirely and wrongly misplaced 
by the lower federal courts. Mr. Fleming's 
final state judgment in no manner drew into 
question the validity of a state or federal 
statute.

James N. Fleming's case is in many ways 
a clarion call to the disadvantaged of this 
country, many of whom are members of racial 
minorities, whom he aptly called the "have 
nots" in his published article titled 
"RACISM." For any American not of the 
predominant race, James N. Fleming is a 
chilling example of the way in which a 
majority can suppress and punish expression 
which challenges racially inequitable 
treatment. It was done to Fleming by his own 
community with an all-white jury after black 
jurors were struck first by preemptory 
strike, and secured by the sanction of a 
state judiciary.

54



Racially based different and unequal
treatment is the very constitutional affront 
outlawed by the Thirteenth and Fourteenth 
Amendments. The Supreme Court of the United 
States has recognized this basic tenet in 
Bell v. Maryland and Jones v. Mayer, 
previously cited. Yet these decisions were 
not applied by Virginia's federal judiciary 
because, as stated in the United States 
Fourth Circuit opinion, Fleming's Thirteenth 
and Fourteenth Amendment constitutional 
challenges "fly" in the "face" of the 
"Rooker-Feldman" doctrine. The District 
Court below declared Rooker-Feldman "the law 
of the land" until the Supreme Court of the 
United States says otherwise. (App. 16-17.)

Thus, this is the historical moment of 
this "Supreme" Court to say otherwise.
During the Civil Rights movement in the 
1960's, thousands upon thousands of

55



Americans, whites and minorities, risked 
life, limb, and liberty to announce that they 
as Americans would no longer tolerate 
minority racial oppression of fellow 
Americans. From those freedom fighters and 
freedom riders we have inherited changed 
attitudes and laws which have permanently 
altered in definite ways the national racial 
justice of this multi-faceted, multi-lingual, 
and multi-ethnic nation. The Rooker-Feldman 
doctrine as used in this case of Mr.
Fleming's makes a mockery of our 
constitutional system, and its inherent 
constitutionally flawed thinking must be 
corrected to properly direct the inferior 
Courts lest we be lost to yet another 
judicial era similar to the separate but 
equal doctrine. The epoch of this Supreme 
Court is to resoundingly say, "Not again."
The Constitution is your charge and we submit

56



under it, it is your duty to correct the 
unconstitutional result of the James N. 
Fleming case.

Conclusion
If we are to succeed in moving forward 

as a free nation whose citizens live in 
harmony, then a situation such as Mr. 
Fleming's should never again occur. No 
American similarly situated should be barred 
procedurally, as was Mr. Fleming by the lower 
federal courts, from seeking vindication of 
his federally protected rights before an 
authorized federal tribunal because of the 
Rooker-Feldman doctrine.

To ensure that it never recurs, the 
"Rooker-Feldman" doctrine must be declared 
unconstitutional in its application, 
misapplication or on its face as applied to 
those cases such as Mr. Fleming's. Eternal

57



vigilance is the price of liberty. This 
Court can guarantee the liberty of all by its 
application of vigilance to correct this 
unconstitutional result.

Accordingly, we ask for the Petitioner 
that a writ of certiorari to the Judgment of 
the United States Court of Appeals for the 
District of Columbia Circuit will be granted 
for this just cause in the name of the 
Constitution of the United States and for all 
similarly situated American people.

Respectfully submitted,

James N. Fleming 
Petitioner 
By Counsel

J. BENJAMIN DICK

Law Offices of J. Benjamin Dick 
J. Benjamin Dick, Esq.
Lead Counsel
421 Park St., Suite 2
Charlottesville, Virginia 22901

58



(804-977-6607 
COUNSEL OF RECORD
Arthur Kinoy, Esq.
76 North Fullerton Ave. 
Montclair, New Jersey 07042 
201-746-6291
Robert M. Alexander, Esq. 
2011 S. Glebe Rd.
Arlington, Virginia 22204 
703-920-7722

59



APPENDIX



CONTENTS OF APPENDIX
PAGE(S)

United States Court of Appeals for
the District of Columbia Circuit
Order dated 9/14/94 ............. . 1-2

United States Court of Appeals for
the District of Columbia Circuit
Order and Opinion dated 7/27/94........ 3-5

United States Court for the District 
of Columbia Order dated 3/25/94 ....... 6

United States Court for the District
of Columbia Memorandum Opinion
dated 3/25/94...................... 7-18

United States Court of Appeals for 
the Fourth Circuit (Excerpt of Opinion 
dated 1/3/89) .................. . 19-22



United States Court of Appeals for
the Fourth Circuit (Excerpt Opinion
dated 1/22/87)     23-25

James N. Fleming's Article "RACISM".... 26-29

Virginia Motion for Judgment against
James N. Fleming...................... 30-34

PAGE(S)



UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 94-5079 September Term, 1994
USDC CV 93-2002

James N. Fleming, Filed: 9/14/94
Appellant,

v.
United States of America, and in declaratory 
relief for Constitutional Protection and 
Guarantees Under the Thirteenth and 
Fourteenth Amendments, inter alia, all 
Judicial Employees for the United States 
Western District Court of Virginia; and of 
the United States Court of Appeals for the 
Fourth Circuit, Necessary Parties,

Appellee
BEFORE: Mikva, Chief Judge; Wald, Edwards,

Silberman, Buckley, Williams, 
Ginsburg, Sentelle, Henderson, 
Randolph and Rogers, Circuit Judges

O R D E R

Appellant's Suggestion for Rehearing In 
Banc has been circulated to the full Court.
No member of the Court reguested the taking 
of a vote thereon. Upon consideration of the

1



foregoing it is
ORDERED, by the Court in banc, that the 

suggestion is denied.

Per Curiam 
FOR THE COURT:
RON GARVIN, CLERK
BY:

Robert A. Bonner 
Deputy Clerk

Chief Judge Mikva did not participate in this 
matter.

2



UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 94-5079 September Term, 1994
USDC CV 93-2002

James N. Fleming, Filed: 07/27/94
Appellant,

v.
United States of America, et al.

BEFORE: Mikva, Chief Judge; Silberman
and Ginsburg, Circuit Judges

O R D E R
Upon consideration of the motion for 

summary affirmance, the response thereto, and 
the reply, it is

ORDERED that the motion for summary 
affirmance be granted. The district court 
correctly concluded that it lacked 
jurisdiction over appellant's attempt to 
obtain collateral federal review of the 
state-court judgment against him, regardless 
of the constitutional nature of his

3



objections to that judgment. See District of 
Columbia Court of Appeals v. Feldman, 460 
U.S. 462, 486 (1983) (district courts "do not 
have jurisdiction . . . over challenges to 
state-court decisions in particular cases 
arising out of judicial proceedings even it 
those challenges allege that the state 
court's action was unconstitutional"). The 
district court also correctly concluded that 
it lacked jurisdiction to review decisions of 
the United States Court of Appeals for the 
Fourth Circuit. See 28 U.S.C. § 1254 
(providing for Supreme Court review, by way 
of writ of certiorari, of decisions of 
circuit courts of appeals). Finally, 
appellant's claim for compensatory damages is 
clearly barred by sovereign immunity, see 
Clark v. Library of Congress, 750 F.2d 89, 
102-04 & n.31 (D.C. Cir. 1984) (no waiver of 
sovereign immunity for damages claims against

4



United States or federal officials in their 
official capacities), and judicial immunity. 
See Sindram v. Suda. 986 F.2d 1459, 1460-61 
(D.C. Cir. 1993) (per curiam) (judges and 
judicial officers absolutely immune from 
liability for acts taken in judicial 
capacity). The merits of the parties' 
positions are so clear as to warrant summary 
action. See Taxpayers Watchdog, Inc, v. 
Stanley. 819 F.2d 294, 297 (D.C. Cir. 1987)
(per curiam); Walker v. Washington, 627 F.2d 
541, 545 (D.C. Cir.) (per curiam), cert, 
denied, 449 U.S. 994 (1980).

The Clerk is directed to withhold 
issuance of the mandate herein until seven 
days after disposition of any timely petition 
for rehearing. See D.C. Cir. Rule 41.

Per Curiam

5



UNITED STATES COURT
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Civil Action No. 93-2002 
(Stanley Sporkin)

James N. Fleming,
Plaintiff, 
v.

United States of America, et al.
Defendants

ORDER
This matter comes before the Court on 

Defendant's motion to dismiss. Having 
considered the motion, Plaintiff's opposition 
thereto, having heard argument by the 
parties, and for the reasons stated in the 
foregoing memorandum opinion, it is hereby

ORDERED that this matter be dismissed. 
Date: March 25, 1994

Stanley Sporkin
United States District Court

6



UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Civil Action No. 93-2002 
(Stanley Sporkin)

James N. Fleming,
Plaintiff, 
v.

United States of America, et al.
Defendants

MEMORANDUM OPINION AND ORDER
Plaintiff James N. Fleming is a citizen 

of Virginia. In this class action complaint, 
he seeks declaratory, injunctive, and 
monetary relief from the Unites States 
arising from the alleged violation of his 
constitutional rights by the United States 
District Court for the Western District of 
Virginia and the United States Court of 
Appeals for the Fourth Circuit. The gist of 
Fleming's complaint is that the application

7



of the "Rooker-Feldman" doctrine1, which 
holds that a United States District Court has 
no authority to collaterally review a final 
judgment of a state supreme court in a civil 
case, is unconstitutional when applied to a 
black litigant.

This matter comes before the Court on 
Defendants' motion to dismiss. The motion 
will be granted.
Background

In mid-1970's, Mr. Fleming, a Virginia 
developer, was involved in a real estate 
development dispute in his hometown of 
Charlottesville. As part of the ongoing 
conflict, Mr. Fleming placed an advertisement 
in the University of Virginia newspaper 
headlined "Racism." The ad stated that one

1 The doctrine gains its name from 
the cases of Rooker v. Fidelity Trust Co.. 
263 U.S. 413 (1923), and District of 

Columbia Court of Appeals v. Feldman,
460 U.S. 462 (1983).

8



W. Bedford Moore III, a white University 
professor, opposed Fleming’s plans to develop 
low-cost housing on racial grounds. Moore 
successfully sued on a libel theory in state 
court in 1977. The jury initially awarded 
Moore $10,000 in compensatory damages and 
$100,000 in punitive damages.

This verdict was reversed by the 
Supreme Court of Virginia because the trial 
judge had improperly instructed the jury.
See Fleming v. rooore, sub nom. Gazette. Inc, 
v. Harris, 275 S.E.2d 632 Va. 1981), cert, 
denied 469 U.S. 966 (1984). The suit was 
tried a second time in 1982 and Fleming lost 
again, this time to the tune of $100,000 in 
compensatory damages and $250,000 in punitive 
damages. The Supreme Court of Virginia heard 
argument on this second verdict and reversed 
in part and remanded, finding that the amount 
of the award bore no relationship to the loss

9



actually sustained by the plaintiff. Fleming 
v. Moore, sub nom. Gazette. Inc, v. Harris. 
325 S.E. 2d 713 (1985), cert, denied. 472 
U.S. 1032 (1985). On remand, the trial court 
entered a remittitur that reduced the award 
by one-third. Judgment was entered against 
the plaintiff for $233,333.34. Complaint 
Appendix J, pp. 181-185.

The Supreme Court of Virginia refused 
to consider Fleming's further appeals.
Fleming followed the appropriate procedures 
in challenging the Virginia Supreme Court's 
refusal to hear his appeal by filing a 
petition for certiorari with the United 
States Supreme Court. The petition was 
denied. Fleming v. Moore, sub nom. Lewis v. 
Prot Packet Corp.. 473 U.S. 905 (1985).

Mr. Fleming was unwilling to abide by 
the U.S. Supreme Court's refusal to hear his 
appeal. He proceeded to file a Section 1983

10



complaint in the Western District of Virginia 
against Moore for an injunction to stop 
enforcement of the judgment, The Federal 
District Court dismissed the complaint on the 
basis that Fleming's "sole remedy in the 
federal courts is by appeal to the United 
States Supreme Court." Fleming v. Moore. C/A 
No. 84—0042-C, slip op. at 1 (W.D. Va. March 
29, 1985). Fleming appealed this dismissal 
to the 4th Circuit. The District Judge's 
dismissal was upheld by the Court of Appeals 
which explained that the "appropriate 
procedure" for attacking the judgement of 
Virginia's Supreme Court is a petition to the 
Supreme Court of the United States for 
certiorari. Fleming v. Moore. 780 F.2d 438, 
440 (4th Cir. 1985). Fleming's attempt to 
obtain review of this decision in the U.S. 
Supreme Court was denied. Fleming v. Moore. 
475 U.S. 1123 (1986).

11



In the meantime, Fleming had requested 
that the Virginia Supreme Court review the 
judgment against him based on intervening 
developments in Virginia state law. The 
Virginia Supreme Court declined to review the 
matter and Fleming again filed a petition for 
certiorari in the U.S. Supreme Court. The 
petition was denied, Fleming v. Moore, 479 
U.S. 890 (1986), as was Fleming's petition 
for rehearing. Fleming v. Moore. 479 U.S. 
1012 (1986).

Fleming then filed another suit in 
Federal Court, this time against Moore, his 
attorneys and the justices of the Virginia 
Supreme Court who had ruled against him on 
various appeals. The suit was brought under 
42 U.S.C. §§ 1981, 1983, 1985(3), 1986 and 
1988, alleging a deprivation of rights under 
the Thirteenth Amendment, the Equal 
Protection Clause of the Fourteenth

12



Amendment, and the First Amendment. Fleming 
claimed that the Virginia Supreme Court was 
punishing him as a black person for 
criticizing a white man. He asked the court 
to permanently enjoin enforcement of the 
libel judgment and to award him $1,000,000 in 
compensatory and punitive damages.

The District Court rejected all of 
Fleming's claims for lack of subject matter 
jurisdiction. This decision was appealed to 
the Fourth Circuit Court of Appeals. In a 
per curiam unpublished opinion, the Fourth 
Circuit affirmed, citing the Rooker-Feldman 
doctrine:

Even if we were to assume 
arguendo. in our opinion, that the 
Virginia Supreme Court was in error in 
upholding the libel judgment against 
Fleming, we would be without 
jurisdiction to correct the mistake.

13



Neither the district court nor this 
Court could grant relief to Fleming on 
any of his claims without deciding that 
the Virginia Supreme Court wrongly 
decided the merits of Fleming's state 
appeal. In effect, Fleming asks us to 
sit in appellate review of a state's 
highest court. This we may not do.

In a line of cases stretching over 
the past 65 years, the Supreme Court 
has emphasized that federal district 
courts and federal courts of appeals 
have no authority to review a final 
judgment of a state court that has 
acted in its judicial capacity. See 
District of Columbia Court of Appeals 
v. Feldman. 460 U.S. 462, 482 (1983); 
Rooker v. Fidelity Trust Co.. 263 U.S. 
413, 415, 416 (1923). Only the United 
States Supreme Court has that power.

14



Feldman, 460 U.S. at 482; 28 U.S.C.
§1257.

Fleming v. Moore, CA-87-6619 (Slip op. at 5) 
(4th Cir. 1989). Fleming petitioned the 
United States Supreme Court for certiorari, 
which was denied. Fleming v. Moore. 493 U.S. 
816 (1989). Fleming asked for rehearing, 
which was denied. Fleming v. Moore. 493 U.S. 
985 (1989) .

Unable to obtain relief in the state 
courts of the jurisdiction in which he 
resides, or in the federal courts where he 
resides, or in the Supreme Court of the 
United States, Fleming now brings his 
grievance to the Federal court system in the 
District of Columbia. Fleming challenges the 
invocation of the Rooker-Feldman doctrine by 
the Federal District Court for the Western 
District of Virginia, and the Fourth Circuit 
Court of Appeals. Fleming claims the Rooker-

15



Feldman doctrine, as applied to him and a 
class of all similarly-situated black 
plaintiffs, violates his Thirteenth and 
Fourteenth Amendment protection because it 
prevents him from obtaining access to federal 
court. Fleming asserts that this Court is 
somehow vested with the authority to review 
the decision of the Fourth Circuit Court of 
Appeals and grant a monetary award, to be 
paid by the government of the United States.

Decision
No matter how the Plaintiff strives to 

describe his suit, this case is nothing more 
than another attempt by plaintiff and his 
lawyers to collaterally attack in federal 
court an adverse state libel judgment. The 
explanation for why such a collateral attack 
must fail does not require repeating. Until 
the Supreme Court of the United States says

16



otherwise, the Rooker-Feldman doctrine 
remains the law of the land. This Court does 
not have jurisdiction to review the decision 
of a state supreme court. Neither does this 
Court have jurisdiction to review a decision 
by the Fourth Circuit Court of Appeals. This 
case must be dismissed for lack of subject 
matter jurisdiction.

By filing a complaint in this Court 
against federal judges who have done nothing 
more than their duty by applying the law as 
the U.S. Supreme Court has declared it, 
Fleming has instituted a meritless action. 
There is no precedent for such a lawsuit. 
Rightfully so. The rule urged on this court 
by Mr. Fleming would make a mockery of the 
judicial system of this land. It would place 
the judicial system in a perpetual-motion 
cycle. No state court judgment would ever be 
considered final. Having lost in state

17



court, a litigant could immediately sue again 
in federal court. Then, after losing in 
federal court (as Mr. Fleming lost in the 
Western District of Virginia and the 4th 
Circuit), the litigant could sue in another 
district. This cannot be the law.

Defendant's motion will be granted and 
the complaint will be dismissed. An 
appropriate order accompanies this opinion. 
Date: March 25, 1994

Stanley Sporkin
United States District Court

18



UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NO. 87-6619

JAMES W. FLEMING,
Plaintiff-Appellant,

versus
W. BEDFORD MOORE; E. GERALD TREMBLAY; LLOYD 
T. SMITH; JOHN K. TAGGART. Ill; MELVIN E. 
GIBSON, JR.; THOMAS K. ALBRO; HARRY LEE 
CARRICO, Chief Justice of the Supreme Court 
of Virginia; GEORGE MOFFETT COCHRAN, Justice 
of the Supreme Court of Virginia; RICHARD 
HARDING POFF, Justice of the Supreme Court of 
Virginia; ROSCOE BOLAR STEPHENSON, JR., 
Justice of the Supreme Court of Virginia; 
ALEXANDER MARKS HARMAN, JR., Senior Justice 
of the Supreme Court of Virginia; THOMAS

19



CHRISTIAN GORDON, JR., Retired Justice of the 
Supreme Court of Virginia; WILLIAM CARRINGTON 
THOMPSON, Retired Justice of the Supreme 
Court of Virginia,

Defendants-Appellees

Appeal from the United States District Court 
for the Western District of Virginia, at 
Richmond. Robert R. Merhige, Jr., Senior 
District Judge. (CA-87-4-C).

Argued: October J, 1988
Decided: January 3, 1989

Before HALL, MURNAGHAN, AND CHAPMAN, Circuit 
Judges.
(Excerpts)
Even if we were to assume arguendo. in our 
opinion, that the Virginia Supreme Court was 
in error in upholding the libel judgment

20



against Fleming, we would be without 
jurisdiction to correct the mistake. Neither 
the district court nor this Court could grant 
relief to Fleming on any of his claims 
without deciding that the Virginia Supreme 
Court wrongly decided the merits of Fleming's 
state appeal. In effect, Fleming asks us to 
sit in appellate review of a state's highest 
court. This we may not do.

In a line of cases stretching over the 
past 65 years, the Supreme Court has 
emphasized that federal district courts and 
federal courts of appeal have no authority to 
review a final judgment of a state court that 
has acted in its judicial capacity. (The 
U.S. Fourth Circuit citing, the Rooker- 
Feldman doctrine and 28 U.S.C. § 1257, Id.)

Numerous circuits, including this one, 
have refused to allow §1983 plaintiffs to 
obtain judicial review of state court

21



judgments in lower federal courts. {The D.S. 
Fourth Circuit citing numerous circuits.)

The Thirteenth Amendment and equal 
protection arguments raised by Fleming 
present a harder question...[Such] an 
argument lacks merit...over those claims if 
they are "inextricably intertwined" with the 
state court decision. (The U.S. Fourth 
Circuit citing Feldman. 460 U.S. at 482-84, 
note 16.)

22



UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 87-6619

FILED:
JAN. 22, 1987 
U.S. Court of 
Appeals 
Fourth Circuit

JAMES W. FLEMING,
Plaintiff-Appellant,

versus
W. BEDFORD MOORE, III,

Defendant-Appellee. 
Appearances: S. W. Tucker, Esquire

B. Benjamin Dick, Esquire, 
for Appellant.

Thomas E. Albro, Esquire,

23



submitted a memorandum via
telephone, for Appellee.

O R D E R

H. E. Widener, Jr.
United States Circuit Judge (Excerpt)

Fleming now says that the judgment of 
the state court was in violation of the 
Thirteenth Amendment to the Constitution 
because it is claimed it gives effect to an 
1840 Virginia statute, reenacted in 1860, 
making it a crime for a black man to use 
provoking language to a white man. It is 
claimed that this is a badge of slavery, 
which, of course, it is. (Emphasis added.)
... The case is indistinguishable from Rooker 
v. Fidelity Trust Co., 263 U.S. 413 (1923), 
in which the court described a similar 
attempt as being an exercise of appellate

24



jurisdiction, p. 416. The reasoning of 
Rooker has been more recently affirmed in 
D.C. Court of Appeals v. Feldman. 460 U.S.
462 (1983), where the court stated that the 
District of Columbia District Court was 
without authority to review final 
determinations of the District of Columbia 
Court of Appeals in judicial proceedings and 
that review of such proceedings could be 
obtained only in the Supreme Court. The case 
cited Rooker for its authority, p. 476.

25



[PX-1]
The Cavalier Daily, University of Virginia, 
Friday, January 16, 1976

R A C I S M
I have endeavored to realize the 

opportunity to provide housing and pleasant 
surroundings for working people— the sort of 
people who made this the great country that 
it is.

I do not expect any Farmington members 
to buy my houses. The tenured position- 
holders who live off the public dole at the 
expense of the working people are already 
well-housed, and could not be expected to 
live in a racially-integrated neighborhood, 
anyhow.

There is a great deal of irony in the 
fact that here in Mr. Jefferson's country 200

26



years after his vision of situating his 
beloved Monticello upon the hill-top 
overlooking the developing community we have 
a replica of Monticello upon the hill 
overlooking my property which is occupied by 
a man who wants to deprive working people of 
the same opportunities that Mr. Jefferson 
sought for them. Mr. Jefferson even located 
his slaves' quarters down the hill from his 
house, but Bedford Moore, the occupant of 
little Monticello does not want any black 
people within his sight.

There is a great conflict waging 
between the haves and the have-nots. 
Obviously we have created too much financial 
security for the tenured segment of the 
economic community whose greed is repeatedly 
shown by their expression of "I've got mine 
-—  too bad about you".

I am a lover of liberty and freedom of

27



opportunity. I cannot stand by and see the 
have-nots oppressed by the no-growth people 
who are living off of our work. I know that 
this Country did not achieve the highest 
living standard in the world by no-growth or 
by oppression of the working man, and yet to 
day the opportunity to improve one's living 
standard is being violently opposed by the 
same people who oppose my proposed 
neighborhood.

Pollution of the reservoir is being 
used as the current excuse to foster no­
growth. The solution, of course, is to 
remove the guaranteed incomes of these greedy 
people and put them in the position of seeing 
the world through the eyes of one seeking the 
opportunity to improve his or her living 
standard. Only then would they admit that 
the pollution excuse is a sham.

I will develop Evergreen, and a lot of

28



people will benefit from it.
Signed: JAMES N. FLEMING

Advertisement 
---------— — —-- 0PInI0N---- — -----

29



V I R G I N I A :
IN THE CIRCUIT COURT OF ALBEMARLE COUNTY
W. BEDFORD MOORE, III, )

)Plaintiff, )
)v. ) At Law No. 976-L
)JAMES N. FLEMING, ) [Filed 3 Jan.
)Defendant. ) 1977]

[PX 2]
MOTION FOR JUDGMENT

To the Honorable David F. Berry, Judge of 
Said Court:

Comes now the plaintiff, W. Bedford 
Moore, III, by counsel, and respectfully 
moves this Court for judgment against the 
defendant, James N. Fleming, and in support 
of his action states the following:

1. At all times mentioned herein, W. 
Bedford Moore, III, has been a private 
citizen residing at "Shack Mountain" in a 
racially integrated area of Albemarle County,

30



Virginia. Plaintiff is a member of the white 
race and is a professor at the University of 
Virginia.

2. At all times mentioned herein,
James N. Fleming has been a real estate 
developer engaged in the development of a 
proposed residential subdivision known as 
"Evergreen" which abuts the "Shack Mountain" 
property owned by the plaintiff. James N. 
Fleming is a member of the black race.

3. From time to time since the latter 
part of 1974, plaintiff has exercised his 
constitutional rights as a citizen to raise 
issues before governmental agencies of the 
County of Albemarle concerning the 
environmental impact of "Evergreen" on the 
Albemarle-Charlottesville Reservoir and the 
surrounding area, including "Shack Mountain." 
At no time have any of plaintiff's efforts in 
this regard been motivated by concerns

31



relating to race or to the defendant 
personally.

4. On January 15 and 16, 1976, 
defendant wrongfully, willfully, maliciously 
and injuriously published a certain false, 
scandalous, malicious, insulting and 
defamatory libel of and concerning plaintiff, 
purporting to have been written by defendant, 
in a certain daily newspaper of general 
circulation known as "The Cavalier Daily", 
published and circulated in the County of 
Albemarle and the surrounding area, having a 
circulation of approximately 15,000 copies. 
This false, scandalous, defamatory, insulting 
and libelous matter was printed in the form 
of an advertisement entitled "RACISM" a copy 
of which is attached hereto as Exhibit "A" 
and prayed to be read as a part of this 
pleading. This libelous matter was 
communicated, conveyed, and made known by the

32



defendant to the plaintiff and divers other 
persons in Albemarle County and the 
surrounding area.

5. These false, scandalous, malicious, 
defamatory and insulting words are, from 
their usual construction and common 
acceptance, insults and tend to violence and 
breach of the peace.

WHEREFORE, on account of said libel, 
the plaintiff has been greatly insulted, 
mortified, held up to ridicule, humiliated, 
aggrieved, and has sustained and is entitled 
to recover general and punitive damages, and 
plaintiff demands recovery from the defendant 
in the sum of FIVE HUNDRED THOUSAND DOLLARS 
($500,000.00) for general damages, and the 
sum of FIVE HUNDRED THOUSAND DOLLARS 
($500,000.00) for punitive damages, together 
with his attorneys' fees and the costs of 
this action.

33



Trial by jury is demanded.

W. BEDFORD MOORE, III 
By counsel

34