Denial of En Banc Review Leaves in Place an Expanded Rooker-Feldman Bar for § 1983 Challenges to State “Non-Merits” Dismissals in Capital Litigation

1. Introduction

In Simpson v. Quick, Kendrick Simpson, an Oklahoma death-row prisoner facing an imminent execution date, sought federal relief under 42 U.S.C. § 1983 after the Oklahoma Court of Criminal Appeals (OCCA) declined to hear his state-law challenge to Oklahoma’s execution statute on ripeness grounds. Simpson’s federal theory was not that the execution statute itself violated the U.S. Constitution, but that Oklahoma’s adjudicatory rules—as applied by OCCA to treat his challenge as perpetually “unripe” before execution and “moot” after—denied him federal constitutional rights (procedural due process, access to courts, and equal protection).

The district court dismissed for lack of jurisdiction under the Rooker-Feldman doctrine and also referenced Eleventh Amendment immunity. A Tenth Circuit panel affirmed (the panel decision is referenced but not reproduced in the order). Simpson petitioned for panel rehearing or rehearing en banc. The court denied both; Judges Rossman and Federico dissented from the denial of en banc rehearing (Judge Federico joining Judge Rossman’s dissental).

The central question highlighted by the dissentals is consequential and framed as unsettled after Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280 (2005): whether Rooker-Feldman can be triggered by a state-court decision that is not “on the merits” (here, a ripeness dismissal).

2. Summary of the Opinion (Order and Dissentals)

The court’s per curiam order denies panel rehearing and rehearing en banc under Fed. R. App. P. 40(c), with the mandate to issue forthwith. Two judges would have granted rehearing en banc.

Judge Rossman’s dissental argues the circuit should have taken the case en banc because it presents an exceptionally important, unresolved doctrinal question: whether, after Exxon Mobil Corp. v. Saudi Basic Industries Corp., Rooker-Feldman may apply when the relevant state-court decision did not reach the merits.

Judge Federico’s dissental stresses the stakes (execution scheduled within a week), contends the panel’s ruling improperly expands Rooker-Feldman, and argues Simpson’s claims should not be jurisdictionally barred—particularly because Supreme Court precedent in Reed v. Goertz, 598 U.S. 230 (2023), and Skinner v. Switzer, 562 U.S. 521 (2011), recognizes § 1983 pathways to challenge the constitutionality of state rules governing adjudication, even where state-court decisions themselves are not directly reviewable by lower federal courts. Judge Federico also argues the case fits the Ex parte Young exception to Eleventh Amendment immunity.

3. Analysis

A. Precedents Cited

  • Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280 (2005)
    The dissentals treat Exxon as the modern “confining” decision that narrowed Rooker-Feldman to cases where state-court losers complain of injuries “caused by” state-court judgments and invite federal district court “review and rejection” of those judgments. Judge Rossman frames the open problem: whether a state decision not “on the merits” (a ripeness dismissal) can satisfy Exxon’s causation and “review/rejection” requirements.
  • Verizon Md., Inc. v. Pub. Serv. Comm'n of Md., 535 U.S. 635, 644 n.3 (2002)
    Cited for the jurisdictional structure: direct review of state high-court judgments lies only in the U.S. Supreme Court (28 U.S.C. § 1257), which underwrites the limited role of Rooker-Feldman.
  • Campbell v. City of Spencer, 682 F.3d 1278 (10th Cir. 2012)
    Used as the Tenth Circuit’s post-Exxon articulation: Rooker-Feldman requires that an element of the federal claim be that the state court “wrongfully entered its judgment,” and a claim is not barred merely because federal relief is inconsistent with a state outcome. The dissentals invoke Campbell to argue that Simpson’s target is not “the adverse decision” itself but the allegedly unconstitutional state rule that prevented merits review.
  • Skinner v. Switzer, 562 U.S. 521 (2011)
    Central to Judge Federico’s reasoning: the Supreme Court distinguished between challenging a state-court judgment (barred) and challenging the constitutionality of a statute/rule “governing the decision” (not barred). The dissental analogizes Simpson’s challenge to the “rule governing the decision” (ripeness/justiciability treatment of the execution statute).
  • Reed v. Goertz, 598 U.S. 230 (2023)
    Reinforces Skinner and is cited for two propositions in the dissental: (1) Rooker-Feldman does not bar a § 1983 challenge that targets as unconstitutional the governing state rule rather than the state-court decision; and (2) the Ex parte Young exception can apply to forward-looking injunctive relief against state officials.
  • Gutierrez v. Saenz, 606 U.S. 305 (2025)
    Cited as part of a trilogy of recent Supreme Court engagements with postconviction DNA litigation (with Skinner and Reed) to illustrate the Supreme Court’s willingness to allow § 1983 litigation of governing rules without treating Rooker-Feldman as a jurisdictional bar.
  • Mayotte v. U.S. Bank Nat'l Ass'n, 880 F.3d 1169 (10th Cir. 2018)
    Cited for the critical distinction between Rooker-Feldman (jurisdictional) and preclusion (merits/claim- or issue-preclusive effect). The dissentals suggest that even if OCCA’s jurisdictional dismissal has preclusive consequences, that is a different analysis than Rooker-Feldman.
  • Graff v. Aberdeen Enterprizes, II, Inc., 65 F.4th 500 (10th Cir. 2023) and Kiowa Indian Tribe of Okla. v. Hoover, 150 F.3d 1163 (10th Cir. 1998)
    Cited for the proposition that Rooker-Feldman does not bar challenges to post-judgment enforcement procedures—supporting the dissentals’ broader theme that federal courts may hear certain challenges “around” a state judgment without impermissibly reviewing it.
  • Merrill Lynch Business Financial Services, Inc. v. Nudell, 363 F.3d 1072 (10th Cir. 2004) and Pittsburg Cnty. Rural Water Dist. No. 7 v. City of McAlester, 358 F.3d 694 (10th Cir. 2004)
    Judge Federico treats Merrill Lynch as important because it suggests Rooker-Feldman is inapplicable where the state court did not decide the merits (“actually decided” reasoning), even though the case predates Exxon and employed an “inextricably intertwined” framework later deemphasized after Exxon. The dissental’s point is institutional: if there is uncertainty about Merrill Lynch’s continuing force post-Exxon, that uncertainty itself warranted en banc review.
  • Mo's Express, LLC v. Sopkin, 441 F.3d 1229 (10th Cir. 2006)
    Cited as discussing “actually decided by a state court” language associated with pre-Exxon Rooker-Feldman formulations, relevant to whether non-merits dismissals should trigger the doctrine.
  • Underwood v. Harpe, No. PR-2024-637 (Okla. Crim. App. Sept. 17, 2024)
    This is the state-court ripeness decision at the heart of the dispute. OCCA stated: “Unless and until lethal injection is held unconstitutional by a court or is otherwise unavailable, there has been no harm.” The dissentals treat this as a non-merits gatekeeping ruling that—if insulated from federal scrutiny—could prevent any forum from considering the underlying constitutional concerns.
  • Littlejohn v. Quick, No. 24-6203 (10th Cir. Sept. 25, 2024)
    Discussed to distinguish prior Tenth Circuit procedural handling of a stay request that did not resolve the Rooker-Feldman merits question (and lacked full briefing).
  • Rhoades v. Martinez, No. 21-70007, 2021 WL 4434711 (5th Cir. 2021)
    The dissentals criticize the panel’s reliance on this unpublished Fifth Circuit disposition, noting it used pre-Exxon “inextricably intertwined” reasoning and rested on a defendant-identity distinction (state judge vs. prosecutor) not present in Simpson’s case. The dissentals argue it is difficult to reconcile Rhoades with Supreme Court guidance in Skinner and Reed.
  • T. M. v. Univ. of Md. Med. Sys., No. 25-197 (U.S. Jan. 14, 2026)
    Referenced to show that the Supreme Court may revisit (and, as characterized in the dissental, potentially overrule) aspects of Rooker-Feldman. This is used to underscore the risk of expanding Rooker-Feldman at the circuit level while its foundations are under active Supreme Court consideration.

B. Legal Reasoning

Although the operative merits reasoning sits in the referenced (but not reproduced) panel decision, the dissentals make clear what is at stake doctrinally: whether Simpson’s § 1983 suit is best characterized as (i) an impermissible de facto appeal of OCCA’s ripeness dismissal (triggering Rooker-Feldman), or (ii) a permissible independent federal claim targeting as unconstitutional the state rule “governing the decision” that prevents any merits adjudication.

The dissentals’ reasoning proceeds in several steps:

  1. Identify the proper object of the federal suit. Simpson’s complaint is framed as challenging the constitutionality of the state adjudicatory approach that allegedly makes the execution statute uniquely unchallengeable: “Before execution, the case is unripe. After execution, the case is moot.”
  2. Apply the post-Exxon “injury caused by” lens. Under Exxon Mobil Corp. v. Saudi Basic Industries Corp., Rooker-Feldman is confined to injuries caused by state-court judgments and requests for district court review/rejection of those judgments. The dissentals argue Simpson’s injury is caused by the allegedly unconstitutional state rule of justiciability (as applied), not by the correctness of the OCCA judgment as such.
  3. Use Skinner v. Switzer and Reed v. Goertz as the template. The dissentals treat those cases as controlling analogies: federal courts may hear § 1983 actions challenging the constitutionality of statutes or “rule[s] governing the decision,” even if the plaintiff lost in state court under those rules.
  4. Separate jurisdiction from preclusion. Even if the state ripeness dismissal has preclusive effect (or should), the dissentals stress that preclusion is not Rooker-Feldman (citing Exxon Mobil Corp. v. Saudi Basic Industries Corp. and Mayotte v. U.S. Bank Nat'l Ass'n).
  5. Address sovereign immunity as non-dispositive. Judge Federico argues that Eleventh Amendment immunity should not bar the suit as framed because the requested relief is prospective and aimed at preventing enforcement of an allegedly unconstitutional state-law “source of law” through state officials, fitting the Ex parte Young exception (citing Reed v. Goertz).

C. Impact

Because the en banc court denied rehearing, the panel’s affirmance remains the law of the circuit for similarly situated litigants—at least to the extent the panel opinion is published or otherwise treated as precedential within circuit practice (the order itself is published, but the controlling merits reasoning is in the earlier panel disposition referenced by the order). The dissentals nevertheless illuminate several forward-looking consequences:

  • Potential expansion of Rooker-Feldman to “non-merits” state dispositions. If ripeness (or other justiciability) dismissals can trigger Rooker-Feldman, litigants may be jurisdictionally barred from bringing federal constitutional challenges to state gatekeeping doctrines that prevent merits review.
  • Incentives and asymmetries in forum availability. The dissentals imply a structural concern: if a state court can avoid merits review via justiciability and federal courts then treat that dismissal as unreviewable under Rooker-Feldman, certain claims may be effectively “forum-proof.”
  • Heightened significance in capital litigation. With execution timelines, secrecy provisions, and rapidly shifting protocol determinations (as alleged), a rule that bars federal review of challenges to adjudicatory access can have irreversible consequences.
  • Possible Supreme Court intervention. The dissentals expressly invite Supreme Court review, emphasizing both the immediacy of the execution and the doctrinal tension with Skinner v. Switzer and Reed v. Goertz, as well as the Court’s ongoing engagement with Rooker-Feldman signaled by T. M. v. Univ. of Md. Med. Sys..

4. Complex Concepts Simplified

  • Rooker-Feldman doctrine: A jurisdictional rule preventing lower federal courts (district courts and courts of appeals) from acting like appellate courts reviewing state-court judgments. Under Exxon Mobil Corp. v. Saudi Basic Industries Corp., it is narrow and focuses on whether the plaintiff’s injury is caused by the state judgment and whether the federal suit seeks review and rejection of that judgment.
  • “On the merits” vs. “non-merits” dismissals: A merits decision decides whether the claim is legally right or wrong. A non-merits decision (like ripeness) says the court will not decide yet (or at all) because procedural prerequisites are not met.
  • Ripeness / mootness: Ripeness asks whether a dispute is sufficiently developed to be decided now. Mootness asks whether there is still a live dispute to decide. Simpson’s argument is that the state framework makes his challenge unripe before execution and moot after—so it is never heard.
  • 42 U.S.C. § 1983: A federal statute allowing suits against state actors for violations of federal constitutional or statutory rights.
  • Eleventh Amendment immunity and Ex parte Young: States and state agencies are generally immune from suit in federal court, but Ex parte Young allows suits for prospective injunctive relief against state officials to stop ongoing or future violations of federal law.
  • En banc rehearing and “dissental”: En banc rehearing means the full active circuit considers a case rather than the three-judge panel. A “dissental” is a dissent from the denial of rehearing en banc, used to signal perceived errors or issues of exceptional importance.

5. Conclusion

The Feb. 6, 2026 order in Simpson v. Quick is procedurally brief but substantively weighty because it leaves standing a panel affirmance that, according to two dissenting judges, extends Rooker-Feldman to bar a § 1983 challenge where the state court did not reach the merits and instead dismissed on ripeness grounds. The dissentals contend this approach conflicts with the Supreme Court’s post-Exxon Mobil Corp. v. Saudi Basic Industries Corp. narrowing of Rooker-Feldman and with Skinner v. Switzer and Reed v. Goertz, which permit federal challenges to the constitutionality of the rules governing state adjudication. The broader significance is institutional: whether federal courts can hear constitutional challenges to state gatekeeping doctrines that allegedly foreclose any forum, especially where the underlying stakes—here, an imminent execution—are irreversible.