Mandatory arbitration is on the rise due to recent rulings pushing this docket clearing measure, despite the resultant surrender of the right to trial by jury imposed on the unwitting employee. What weapons are left in our arsenal to fight the dragon of mandatory arbitration after Circuit City?. Here is one of limited - but crucial - utility.

The Rooker-Feldman doctrine bars lower federal courts "from . . . considering issues actually presented to and decided by a state court . . ." Allstate Ins. Co. v. West Va. State Bar, 233 F. 3d 813, 816 (4th Cir. 2000). See also Allstate v. West Va. State Bar, 998 F. Supp. 690, 693 (S.D. W. Va. 1998) (Haden, C.J.) (applying Rooker-Feldman). The doctrine applies not only to final state court decisions on the merits, but also to non-final decisions. Allstate, 233 F. 3d at 816 (Rooker-Feldman applied even though the West Virginia Supreme Court of Appeals had not issued final decision on state bar committee's decision); Richardson v. District of Columbia Court of Appeals, 83 F. 3d 1513, 1515 (D.C. Cir. 1996), cert. denied, 523 U.S. 1077 (1998); Campbell v. Greisberger, 80 F. 3d 703, 707 (2d Cir. 1996); Charchenko v. City of Stilwater, 47 F. 3d 981, 983 (8th Cir. 1995); Hale v. Harney, 786 F. 2d 688, 691 (5th Cir. 1986).

In a recent case arising under the West Virginia Human Rights Act, Brown & Root v. Breckenridge, 211 F. 3d 194 (4th Cir. 2000), the Fourth Circuit affirmed the District Court's dismissal of the employer's effort to compel arbitration. The Fourth Circuit agreed with the District Court's view that, where an employer "took it's best shot on it's motion to compel arbitration in the state courts," and lost it could not seek review of the decision in federal court -Rooker-Feldman prohibits such de facto "appeals." 211 F. 3d 194, 202.

The 4th Circuit also recently held that the Rooker-Feldman doctrine "applies not only to issues actually decided by state courts, but also to constitutional claims that are inextricably intertwined with questions ruled upon by the state court." Alder v. James, 2000 U. S. App. LEXIS 31774 (4th Cir. 2000). The 4th Circuit noted that:

"The Rooker-Feldman doctrine is rooted in principles of comity and federalism. (citations omitted). It also rests on statutory interpretation of congressional grants of jurisdiction. Under 28 U.S.C.A. § 1257(a) (West 1993), a decision of a state's highest Court 'may be reviewed by the Supreme Court by writ of certiorari.' Section 1257(a), coupled with the limited original jurisdiction of Federal Courts (citations omitted) mandates the Rooker-Feldman bar." Id., at 5-6.

The federal court plaintiff in Alder argued that the state court had not considered or ruled upon the claim which he brought to the federal court. Noting that the federal court complaint requested the same relief that the state trial court refused to grant - and citing Brown & Root v. Breckenridge - the Alder Court rejected this argument.

The Court in Alder noted that the state court order did not specifically address the due process claim which the federal court Plaintiff sought to pursue. However, the Court found this to be insignificant under Rooker-Feldman because the claims which he sought to bring in federal court were inextricably intertwined with the state court judgement:

"A federal claim is inextricable intertwined with the state court judgement if the federal claim succeeds only to the extent that the state court wrongly decided the issued before it." Pennzoil Company v. Texaco, Inc., 481 U.S. 1, 25, 95 L. Ed. 2d 1, 107 S. Ct. 1519 (1987) (Marshall, J. concurring).

As the Alder Court noted, quoting from Breckenridge, "the independence of state courts would surely be compromised if every adverse decision in state court merely rang the opening bell for federal litigation of the same issues." Id., at 11, quoting Brown & Root v. Breckenridge, 211 F. 3d at 198.

In a recent case handled by your author the employer - the defendant in our state court age discrimination claim - filed a separate federal civil action - suing their former employee, the state court plaintiff. The employer asked the federal court to stay the state court proceedings and mandate arbitration pursuant to an employee handbook provision. The federal court dismissed the employer's case based solely on Rooker-Feldman - the issue had been presented to the state court and it had refused to require arbitration - point, set , match.

In other words, in the refrain familiar to many parents and children, "If your mother said no, the answer is no." If state court said no, the answer is no.