Opinion
January 1, 1988
The opinions contained herein do not constitute the official position of the New York State Bar Association unless and until adopted by the House of Delegates.
REPORT ON THE ABSTENTION DOCTRINE: THE CONSEQUENCES OF FEDERAL COURT DEFERENCE TO STATE COURT PROCEEDINGS by THE COMMITTEE ON FEDERAL COURTS OF THE NEW YORK STATE BAR ASSOCIATION I. INTRODUCTION Expanded use of the judicially created abstention doctrines requiring federal courts to defer to state court proceedings has led to a perception by some observers that abstention prejudices plaintiffs' federal rights. Some lawyers have expressed concern that the federal courts are deferring to state courts in too many cases. These lawyers are particularly concerned that the expanded use of abstention threatens to deprive plaintiffs, particularly indigent plaintiffs, of an effective forum for hearing these issues. Other lawyers believe that there is no basis for such concern. Rather, they believe that abstention is mandated by principles of federalism.Related issues were raised in Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987), in which the United States Supreme Court decided that the federal courts may not enjoin application of Texas state appellate procedures in a case in which the Texas trial court had entered a judgment of billions of dollars.
A Subcommittee of the Committee on Federal Courts of the New York State Bar Association was formed to explore whether the perceptions and concerns raised by the use of abstention were accurate.
A. Restricting Federal Jurisdiction
Problems of federal jurisdiction recently have taken on great practical importance. More litigants seem to be trying to enter the federal courthouse gate. One judicial response has been to raise the requirements for admission. For example, the Supreme Court has restrictively applied its test for standing and has modified its test for determining when to imply a private right of action. At the same time, the Supreme Court has made it more difficult for litigants who were properly admitted to stay in court. The Court has created and expanded various abstention doctrines pursuant to which the federal courts must defer to state court proceedings. The restrictive Supreme Court approach is premised on valid federalism and separation of powers concerns. Some, however, have criticized the Court for taking part in the "currently trendy drive toward efficiency" at the expense of insuring vindication of federal rights. See Stempel, A Distorted Mirror: The Supreme Court's Shimmering View of Summary Judgment, Directed Verdict, and the Adjudication Process, 49 Ohio L.J. 95, 193 (1988).
There has been a reassessment during the last twenty years about the focus of standing. In the Warren Court, standing simply insured the requisite adversity to sharpen the issues for proper judicial determination. Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968). The role of separation of powers was to insure that the court was engaged in judicial, rather than political, business. The Burger/Rehnquist Court conception of standing doctrine, in contrast, is "built on a single basic idea — the idea of separation of powers . . . [and] the proper — and properly limited — role of the federal courts in a democratic society." Allen v. Wright, 468 U.S. 737, 752, 104 S.Ct. 3315, 3325, 82 L.Ed.2d 556 (1984).
Similarly, in recent cases, the Court has carefully considered the scope of its power in relation to Congress, and, not surprisingly, has been more reluctant to imply causes of action under the Constitution. Often, citing the role of Congress, the Court has found "special factors counseling hesitation." For example, in Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983), the Court found that Bivens did not authorize damages actions for enlisted men for alleged acts of race discrimination because of "special factors" presented by the nature of military service and the availability of administrative relief.
Relying on Chappell, the Court in United States v. Stanley, ___ U.S. ___, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987), held that a serviceman who voluntarily participated in an army study and simultaneously was secretly exposed to LSD did not have a Bivens remedy for injuries allegedly due to exposure to LSD because the injuries "arose out of activity incident to service."
After 1975, the Supreme Court appeared to become more restrictive in implying a private right of action under federal statutes. See, e.g., Piper v. Chris-Craft Industries, Inc, 430 U.S. 1, 97 S.Ct. 926, 51 L.Ed. 2d 124 (1977) (no private right of action under section 14(e) of the Securities Exchange Act). In 1979, the Court restrictively modified its test for implying a private right of action when it elevated the factor of legislative intent to preeminent status, over factors such as whether the plaintiff was in the intended protected class and whether implying a private right to sue would promote the legislative goals. Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). Accordingly, the inquiry is essentially whether Congress intended to create a private right of action, obviously a more difficult test to meet. See, e.g., California v. Sierra Club, 451 U.S. 287, 101 S.Ct. 1775, 68 L.Ed. 2d 101 (1981) (no private right of action under § 10 of the Rivers and Harbors Appropriations Act); Touche Ross Co. v. Redington, 442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979) (no private right of action under § 17(a) of the Securities Act of 1934); Middlesex County Sewerage Authority v. National Sea Clammers Ass'n, 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981) (no private right of action under Federal Water Pollution Control Act); Thompson v. Thompson, ___ U.S. ___, 108 S.Ct. 513, 98 L.Ed.2d 512 (1988) (no private right of action under Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A).
The Court has contracted federal jurisdiction in other ways. In Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984), the plaintiffs alleged that conditions at a state mental hospital violated their rights under various federal constitutional and statutory provisions, and under various state statutory provisions. The Supreme Court held that the Eleventh Amendment barred a federal court from providing a remedy against state officials for violating state law.
The Supreme Court recognized that applying the Eleventh Amendment to the pendent claims may result in the federal claims being litigated in state courts, or bifurcation of claims (with the attendant preclusion problems). The Court was not troubled for two reasons. First, there are many instances in which, under the abstention doctrines, an issue is split off and referred to state court. Second, "considerations of policy cannot override the constitutional limitation on the authority of the federal judiciary to adjudicate suits against a state. That a litigant's choice of forum is reduced 'has long been understood to be a part of the tension inherent in our system of federalism.'"
B. Purpose of Report and Methodology
Chief Justice John Marshall once wrote that the federal courts have "no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the Constitution." Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404, 5 L.Ed. 257 (1821). Despite the mandatory sounding language, many exceptions to this seemingly basic proposition have evolved. The purpose of this report is to explore whether one of these exceptions, the abstention doctrines, has led to loss of federal rights or undue delay. The report is also designed to educate the bench and the bar about the practical impact of abstention on the litigants who seek to vindicate their federal rights in federal court.
To obtain data about the practical impact of abstention, a questionnaire was developed (attached as exhibit A). The questionnaires were mailed to plaintiffs' attorneys in reported cases in which the United States Court of Appeals for the Second Circuit ordered abstention since 1971, the year in which the Supreme Court decided its landmark abstention case, Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Follow-up interviews were conducted with many of the attorneys.
It was not possible to track down attorneys for all the plaintiffs. However, 39 questionnaires were mailed out, and responses were received with respect to about half the cases. Publicly available information was researched to supplement the information received from the attorneys.
While this study cannot in any sense be described as scientific, the cases for which information was obtained appear to represent a reasonable cross-section of the range of abstention cases and issues. Accordingly, the Committee believes that certain conclusions may validly be drawn from what was learned and recommendations made.
Part II will survey the leading Supreme Court abstention cases. The purpose of the section is to set forth the basic principles and policies underlying the doctrines, to detail emerging trends, and to suggest the practical problem areas.
Part III will discuss abstention in the Second Circuit and the results of the empirical study. Because the Committee was concerned chiefly with the types of abstention that may lead to loss of federal claims, this part of the report focuses on cases in which federal claims were asserted. Specifically, the report measures whether the data collected confirms or refutes the concerns about the practical problems raised by the expanding use of abstention. Part IV will present our conclusions and recommendations.
II. THE ABSTENTION DOCTRINES
State courts and federal courts have concurrent jurisdiction over most cases. This parallel system of courts has created the climate for the creation of the various abstention doctrines. The abstention doctrines will be invoked in cases in which the federal court has proper subject matter jurisdiction, but in which, for one or more reasons, the federal court will defer to state court consideration of the issues presented. The various abstention doctrines are an important, and increasingly significant, exception to the general rule that federal courts should exercise the jurisdiction given them.
There are four basic types of abstention: 1) Pullman abstention; 2) Burford abstention; 3) Colorado River abstention; and 4) Younger abstention. While the policies and purposes to be served by the various forms of abstention are different, they all have the same effect: deference by the federal court to litigation in the state court.
A. Pullman abstention
The first abstention doctrine was created by the Supreme Court in Railroad Commission of Texas v. Pullman, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). Plaintiffs were black railroad employees who argued that an order of the Railroad Commission discriminated against them in violation of the United States Constitution and state statutory law. The Supreme Court found that the state law was uncertain and that a favorable ruling on state law for the plaintiffs may obviate the need for the federal courts to decide the constitutional question. Accordingly, the Court ruled that the federal case should be stayed so the parties could get a definitive ruling from the state court on the state law issue. The Pullman doctrine is thus predicated on the twin aims of avoiding premature constitutional adjudication and federalism.
In the paradigm Pullman case:
1) plaintiff alleges constitutional violations and pendent state claims;
2) there is no parallel state proceeding; and
3) the court abstains to obtain a definitive ruling by the state court on ambiguous state law issues to avoid the need to decide a constitutional issue.
One peculiar characteristic of Pullman abstention is that there is no parallel state proceeding; rather the plaintiff is directed to begin an action in a state court on the state law claims. At that point the plaintiff may choose to litigate both claims in the state court, or to litigate only the state issue in state court, reserving the right to return to the federal court on the constitutional issue if the plaintiff is unsuccessful in state court. England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964).
Pullman abstention is generally invoked in cases brought under § 1983 challenging state action as unconstitutional in which pendent state claims are joined. See, e.g., Harrison v. NAACP, 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152 (1959).
Several difficult problems arise when Pullman abstention is ordered:
1) Abstention will be ordered if state law is "unclear," otherwise remand to state court would simply be a waste of time. See, e.g., Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971) (no abstention because state law was not ambiguous; state law in issue clearly gave Chief of Police the authority to act as alleged; accordingly, only the question whether the state law was constitutional remained). Unfortunately, it is not clear when state law is "unclear" enough for Pullman abstention.
2) The federal courts will consider whether an adequate state remedy is available to the plaintiff and whether a single state proceeding is likely to resolve the dispute. See, e.g., Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965) (no abstention because case involved state statute that could only be clarified in a series of lawsuits); Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964) (same). The meaning of adequate state remedy, however, is also unclear.
3) Abstention will not be ordered if there are special reasons for prompt federal intervention. See, e.g., Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970) ("emergency situation presented", i.e., if state regulation concerning packing requirements was enforced, crop of cantaloupes would be lost). The latest case on this issue is Houston v. Hill, ___ U.S. ___, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987).
4) Generally the federal court will stay the proceeding, but the court may order dismissal without prejudice to remove obstacles to state court jurisdiction. Harris County Commissioners v. Moore, 420 U.S. 77, 95 S.Ct. 870, 43 L.Ed.2d 32 (1975).
5) A question the Supreme Court has not faced directly is whether to give preclusive effect to the state court's fact findings if the case returns to federal courts. Cf. Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980).
6) An alternative to Pullman abstention is to obtain an advisory opinion on state law issues from the state's highest court. The Supreme Court has encouraged the use of state certification procedures providing for such advisory opinions. See Virginia v. American Booksellers Association, ___ U.S. ___, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988) (Virginia Supreme Court should be given the first opportunity to interpret a state statute prohibiting the display of sexually explicit material to juveniles).
B. Burford abstention
Burford abstention generally is invoked in non-federal question cases. The effect of Burford abstention is similar to Pullman abstention in that the plaintiff is being ordered to initiate a state court action. The reason for the abstention is different.
Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943), involved a dispute over the apportionment of oil drilling rights in Texas. The plaintiff sought an injunction against an order of a state official depriving it of certain drilling rights. No real issues of federal law were implicated. The Supreme Court found that the federal court should defer to the state court. The Texas legislature had provided that all cases involving drilling rights were to be handled by one state court in order to prevent inconsistencies and confusion. Intervention by the federal courts created a danger to the success of state policies. Accordingly, "a sound respect for the independence of state action requires the federal equity court to stay its hand."
Indeed, the proper disposition when Burford abstention is ordered is to dismiss with prejudice. Because in the paradigm case no federal issue is implicated, there is no need for the district court to retain jurisdiction. If any federal issue arises, review may be obtained in the Supreme Court.
In the paradigm Burford case:
1) plaintiff alleges state law claims;
2) important state regulatory issues are implicated and state courts are a part of the regulatory process; and
3) the federal court will abstain out of considerations of comity and respect for the paramount state interest.
The essence of Burford abstention is federalism. Burford abstention, however, is rarely invoked because the federal courts seldom find sufficiently important state interests implicated that would be impaired by federal court intervention.
C. Younger abstention
Younger abstention is widely invoked in cases in which a federal plaintiff seeks an injunction against related state court proceedings. Generally, the Anti-Injunction Act, 28 U.S.C. § 2283, prohibits a federal court from enjoining state proceedings. Three statutory exceptions exist, the relevant one being when Congress expressly permits an injunction. In Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972), the Supreme Court held that Congress intended § 1983 actions to be exceptions to the Anti-Injunction Act. Thus, the federal court has the constitutional and statutory power to enjoin state criminal or civil proceedings.
In Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), however, the Supreme Court held that, notwithstanding the Anti-Injunction Act, federal courts ordinarily should not enjoin state criminal proceedings. Rather, absent a showing of prosecutorial bad faith or harassment, a federal court cannot enjoin a pending state prosecution even though ground that the statute on which the prosecution is based may be unconstitutional.
There are several policies served by Younger abstention. First, courts of equity should stay their hands when an adequate remedy at law exists, and the party will not suffer irreparable harm. Second, the doctrine serves to prevent a multiplicity of suits when a single action will adequately protect the rights asserted. Third, the doctrine promotes the "vital" consideration of comity: "a proper respect for state functions" or "Our Federalism" requires federal courts to refuse to intervene in state proceedings.
In the paradigm Younger case:
1) there is a pending state criminal proceeding;
2) plaintiff brings an action in federal court under § 1983 alleging that the state criminal statute is unconstitutional;
3) plaintiff has a full and fair opportunity to challenge the constitutionality of the statute in the state proceeding;
4) plaintiff seeks equitable relief restraining the state proceeding; and,
5) the federal court abstains out of principles of comity and federalism to avoid interfering with state proceedings.
Numerous questions and issues have been considered by the Supreme Court since Younger was decided:
1) Younger has been extended dramatically to bar injunctions of civil proceedings when important state interests are implicated and adequate relief is available in the state court. Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987) (federal court may not enjoin application of state appeals rule and enforcement of state judgment in order to protect the functioning of the state judicial system); Ohio Civil Rights Commission v. Dayton Christian Schools, 477 U.S. 619, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986) ( Younger abstention appropriate pending outcome of state civil rights commission proceeding); Middlesex County Ethics Committee v. Garden State Bar Ass'n, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) (abstention is appropriate to vindicate "important state policies").
2) Younger applies to other forms of relief, such as declaratory relief. Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971) ( Younger applies to claims for declaratory relief); Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971) ( Younger applies to claims seeking suppression of evidence prosecutor seeks to admit in state court proceeding).
3) A court should not dismiss when abstaining under Younger. Rather, the federal court must stay the proceeding when the plaintiff alleges claims for monetary relief that cannot be redressed in the state court proceeding. Deakins v. Monaghan, ___ U.S. ___, 108 S.Ct. 523, 98 L.Ed.2d 529 (1988).
Younger abstention is perhaps most troubling because it has proved to be extremely malleable. For example, the recent extension of Younger to civil cases in Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987), shows that the test for avoiding Younger abstention will be very difficult to meet. While Pennzoil v. Texaco may be sui generis, Younger abstention was very routinely applied.
Indeed, extending Younger to the civil arena potentially raises the most serious problems. Underlying state criminal cases are generally resolved in a relatively short time. Accordingly, the plaintiff will be able to return to federal court sooner than ordinarily will be the case when the underlying state case is civil in nature. Moreover, recent expansion of preclusion doctrine (res judicata and collateral estoppel) suggests that even if the plaintiffs return to federal court, there may not be much left to litigate. See Migra v. Warren City School Dist. Board of Education, 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984); Kremer v. Chemical Construct. Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982); Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980).
D. Colorado River abstention
The final type of abstention serves quite different — and somewhat less lofty — purposes than the first three. Instead of promoting federalism or postponing difficult constitutional questions, Colorado River abstention "rest[s] on considerations of wise judicial administration." Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). Not surprisingly, the doctrine had its origins in the busy lower federal courts. The doctrine was invoked when parallel state cases were proceeding to conserve scarce judicial resources and to clear dockets. See Mottolese v. Kaufman, 176 F.2d 301 (2d Cir. 1949).
Colorado River involved a dispute over water rights. An action was brought by the United States in federal court, but the United States was a defendant in parallel state actions involving the same water rights. The Supreme Court held that none of the other abstention doctrines permitted a federal court to abstain. The federal courts have a "virtually unflagging obligation" to exercise the jurisdiction given them. "[In] the absence of weightier considerations of constitutional adjudication and state-federal relations" dismissal of concurrent federal actions is appropriate only in "exceptional circumstances" more limited than those in traditional abstention cases.
The court then listed factors the courts should consider when deciding whether exceptional circumstances exist: whether the state court already had jurisdiction over a particular res; the inconvenience of the federal forum; the avoidance of piecemeal litigation; and the order of obtaining jurisdiction.
Applying these factors to the case before it, the Court found that a federal statute evinced a strong policy against piecemeal litigation in that it permitted the United States to be a defendant to water rights cases. Analysis of the other factors also pointed to abstention. Accordingly, it was proper for the district court to have dismissed the federal action.
Another illustrative Colorado River abstention case, Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983), refines the test. Moses H. Cone involved a construction dispute. The hospital sued the contractor seeking a declaratory judgment that the construction company's claims for the costs of some delays in the building project were without merit. The contract provided that all disputes should be arbitrated. The state court granted an ex parte TRO, which soon expired, restraining the contractor from seeking an order compelling arbitration. The construction company filed a federal action seeking an order compelling arbitration, under the Federal Arbitration Act, when it learned of the state court action. The district court granted the defendant hospital's motion to stay the federal action pending the outcome of the state action. The court of appeals reversed and ordered the district court to enter an order compelling arbitration, and the Supreme Court affirmed.
The Court added another factor to the Colorado River abstention test: whether federal or state law controls the issue presented. In Moses H. Cone, federal law applied to the issue of arbitrability. Analyzing the Colorado River abstention factors, the Court found that the Federal Arbitration Act showed a Congressional intent to create piecemeal litigation when necessary to secure the enforcement of agreements to arbitrate; that it was irrelevant that the state action was first filed because the federal action was further along; and finally, that the state court action might not adequately protect the construction company's federal rights.
In the paradigm Colorado River abstention case:
1) There is a pending state proceeding;
2) a federal case involving the same or functionally similar claims and parties;
3) no constitutional or federalism problems are presented; and,
4) abstention is ordered out of considerations of wise judicial administration.
A serious question presented by Colorado River abstention is the problem of res judicata and exclusive federal jurisdiction. In Will v. Calvert Fire Insurance Co., 437 U.S. 655, 98 S.Ct. 2552, 57 L.Ed.2d 504 (1978), the Court refused to grant mandamus in a case in which the district court invoked Colorado River abstention in a securities case. There was a pending state contract case that involved the same factual questions raised in the federal securities action. If the federal plaintiff loses the state court breach of contract action, will the state court judgment preclude the litigation of the federal securities claim?
One would argue that the state defendant should raise related claims as compulsory counterclaims in the first proceeding, and that res judicata or claim preclusion should apply to bar a subsequent action. In Will, however, the defendant could not raise the securities claims in the state court action because such claims are exclusively federal.
In Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985), the Supreme Court held that plaintiffs who litigated and lost state unfair competition claims in state court may be precluded from bring their exclusively federal claims in a second federal action. Thus, the state defendant/federal plaintiff in Will may also be precluded. The state court plaintiff/federal defendant may argue that defensive claim or issue preclusion should be applied. On the other hand, the state defendant in Will is in a worse position than the plaintiffs in Marrese because it did not have a choice of forum. It was brought into the state court, while the Marrese plaintiffs initiated the state and federal actions. The Second Circuit has opined that preclusion probably would not apply under these circumstances. See Andrea Theatres, Inc. v. Theatre Confections, Inc., 787 F.2d 59 (2d Cir. 1986).
One issue that regularly crops up is whether the federal court, when invoking Colorado River abstention should stay or dismiss the federal action. Although the Colorado River Court affirmed a dismissal, and the Moses H. Cone court equated a stay with a dismissal, stay orders are generally less disastrous for plaintiffs, because of potential statute of limitations problems. Accordingly, most courts will grant a stay rather than a dismissal. For example, in Board of Education of Valley View v. Bosworth, 713 F.2d 1316 (7th Cir. 1983), the court agreed that Colorado River abstention was appropriate in an action by a school board alleging due process violations for failure to distribute tax revenues to local entities. However, it also found that the district court should not have dismissed the action, but rather stayed it because of limitations problems.
The Supreme Court has become quite adept at guarding the federal courthouse door. Unfortunately, the Court's cases do not always provide a comprehensive or comprehensible roadmap on this complex subject. Nevertheless, as discussed in the following section, the Second Circuit has vigorously applied the abstention doctrines.
III. ABSTENTION IN THE SECOND CIRCUIT
A. Doctrinal Developments
The Second Circuit has always been a strong proponent of abstention. Indeed, what has come to be known as Colorado River abstention had its antecedents in a doctrine developed much earlier in the Second Circuit. See Mottolese v. Kaufman, 176 F.2d 301 (2d Cir. 1949) (ordering abstention when there is a pending state proceeding to conserve scarce judicial resources).
More recently, the Second Circuit has injected new life into Burford abstention. In Law Enforcement Insurance Co. v. Corcoran, 807 F.2d 38 (2d Cir. 1986), cert. denied, ___ U.S. ___, 107 S.Ct. 1896, 95 L.Ed.2d 503 (1987), plaintiff asserted a claim against a defunct insurance company that was under the control of a "rehabilitator" appointed by a state court at the request of the state department of insurance. Finding that the state courts were "active partners" in the regulatory process, the court affirmed dismissal of the complaint: "The structure of the New York system serves the state's strong interest in centralizing claims against an insolvent insurer into a single forum where they can be efficiently and easily and consistently disposed of".
The principles of abstention announced in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) are routinely applied in the Second Circuit when state court criminal proceedings are involved. E.g., Davis v. Lansing, 851 F.2d 72 (1988) (dismissal on abstention grounds of New York State criminal defendant's attempt to terminate state criminal proceeding over constitutional issue of defendant's right to exercise peremptory jury challenges on basis of race).
See also, e.g., McCune v. Frank, 521 F.2d 1152 (2d Cir. 1975) (held that Younger abstention was appropriate after administrative proceedings concerning the personal appearance of an officer had been brought by the Nassau County Police Department); Schachter v. Whalen, 445 F.Supp. 1376 (S.D.N.Y.) (Tenney, J.), aff'd per curiam on other grounds, 581 F.2d 35 (2d Cir. 1978) (holding that Younger abstention was proper where there was an ongoing investigation by the New York State Board for Professional Medical Conduct of physician who allegedly had been improperly prescribing laetrile for patients. Notably, the Board had authorized an investigation and had merely, as a first step in this investigation, served a subpoena on the physician); Friedman v. Beame, 558 F.2d 1107, 1110-11 (2d Cir. 1977) (indicating the Second Circuit's view (as of the time of that decision) that the Supreme Court had not yet decided whether Younger should apply to a pending administrative hearing); Sreter v. Hynes, 419 F.Supp. 546 (E.D.N.Y. 1976) (Pratt, J.) (held that Younger barred a Section 1983 action where a special prosecutor appointed to investigate nursing homes subpoenaed records from the plaintiff owners of a nursing home); McDonald v. Metro-North Commuter R.R. Div., 565 F.Supp. 37 (S.D.N.Y. 1983) (Weinfeld, J.) (held that Younger applied to bar a federal action in the course of an ongoing disciplinary proceeding against a Metro-North employee where administrative charges were filed, but before they were heard); Lang v. Berger, 427 F.Supp. 204 (S.D.N.Y. 1977) (Weinfeld, J.) (held abstention appropriate during an administrative proceeding to determine a physician's fitness to take part in Medicaid reimbursement programs, relying on McCune); Youth Intern. Party v. McGuire, 572 F.Supp. 1159 (S.D.N.Y. 1983) (held abstention was appropriate, relying on Middlesex County, in the context of an administrative proceeding with respect to vending ordinances, noting that there was the opportunity to raise constitutional claims in the administrative proceedings).
In addition, the Second Circuit has extended abstention to dismiss federal actions bearing upon non-criminal proceedings, including those in which federal civil rights claims are raised under 42 U.S.C. § 1983. The effect of this is a judicial limitation of the availability of a federal forum for civil rights plaintiffs with actionable claims under 42 U.S.C. § 1983. This presents a tension between the federal forum expressly accorded by statute and the judicially-crafted policies expressed in the various abstention doctrines.
A number of cases in the Second Circuit illustrate this tension. For example, Christ the King Regional High School v. Culvert, 815 F.2d 219 (2d Cir. 1987), cert. denied, ___ U.S. ___, 108 S.Ct. 102, 98 L.Ed.2d 63 (1987) ( "Culvert"), involved a claim by a church-affiliated high school that the exercise of jurisdiction over it by the New York State Labor Relations Board ("SLRB"), arising from a lay faculty association's charges of unfair labor practices, violated the Establishment and Free Exercise Clauses of the Constitution. The district court, on motion for summary judgment, dismissed the school's complaint on preemption grounds. The Court of Appeals for the Second Circuit affirmed. In so doing, the Second Circuit, relying on Ohio Civil Rights Commission v. Dayton Christian Schools, 477 U.S. 619, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986), applied the Younger principles of "federalism and comity" to the case before it involving state administrative proceedings. Accordingly, the court held that the district court should have abstained, rather than decide the case on the merits.
In deciding Culvert, the Second Circuit applied Dayton Christian Schools' three part approach: (1) whether there is an ongoing state proceeding, so found in the SLRB proceeding; (2) whether an important state interest is involved, so found in the State's "compelling interest in regulating the duty to bargain collectively"; and (3) whether the federal plaintiff has an adequate opportunity for judicial review of his constitutional claims during or after the state proceeding, so found in the availability of New York's CPLR art. 78 proceeding subsequent to the SLRB proceeding.
Culvert demonstrates the facility with which a federal court can now decline to hear a case otherwise properly before it, relegating a plaintiff to state court remedies. The above three-part test is highly malleable: (1) many forms of "state action", may be characterized as an "ongoing state proceeding"; (2) virtually any state interest can be described as "important," see, e.g., Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987) (state has important interest in enforcing private judgment); and (3) reliance on the mere existence of Article 78 or similar review presumes, prospectively, the ability of state courts to adequately remedy violations of federal law. Furthermore, the mere existence of such review is cold comfort to a plaintiff challenging present state interference with federal constitutional rights.
A similar result was reached in University Club v. City of New York, 842 F.2d 37 (2d Cir. 1988). There, private clubs brought § 1983 claims alleging that public accommodation anti-discrimination legislation was being unconstitutionally applied to the clubs, subjecting them to deprivation of their constitutional rights of freedom of association, privacy, due process and equal protection.
The Second Circuit, as it did in Culvert, held that the district court should have applied the Dayton Christian Schools three part test and abstained. The court found that there was an ongoing state administrative proceeding (an enforcement proceeding by the New York City Commission on Human Rights), that an important state interest was involved ("elimination of prohibited sex discrimination"), and that an adequate opportunity for judicial review of constitutional claims existed, via an Article 78 proceeding, or possibly in the course of the enforcement proceeding itself.
After Culvert and University Club, it is clear that Younger abstention may override the statutorily-created federal forum ( 42 U.S.C. § 1988) for § 1983 cases whenever an ongoing state administrative proceeding exists.
B. The practical effects of abstention
In its empirical examination of post-Younger abstention cases which have reached the Court of Appeals for the Second Circuit, the Committee focused particularly on whether abstention had the practical effect of frustrating or unduly delaying the adjudication of federal claims.
The abstention doctrines and related noninterference rules rest on the underlying strong presumption that relegating a litigant to a state court proceeding, and having federal claims decided there initially, will not entail any unacceptable injury to federally protectable interests. See, e.g., Collins, The Right to Avoid Trial: Justifying Federal Court Intervention into Ongoing State Court Proceedings, 66 N.C. L. Rev. 49, 51-52 (1987).
This strong presumption may be dispelled, however, if the very process of abstention — including satellite litigation as to the appropriate forum — itself serves to frustrate or unduly delay the adjudication of federal claims. The Committee's inquiry as to whether abstention had this undesirable practical effect in specific cases, which included review of reported decisions and interviews with litigants' counsel, suggests that there have been differential impacts with respect to three broad and overlapping categories of cases:
(i) Cases in which federal claims were asserted in the context of a civil dispute of a classwide or institutional nature;
(ii) Cases in which federal claims were brought in the context of criminal or disciplinary proceedings; and
(iii) Cases in which federal claims were brought to gain a tactical advantage in pending state court proceedings.
Illustrative cases in each of the above categories are discussed below.
1. Civil disputes of a classwide or institutional nature.
The first of the above categories — cases involving federal claims asserted in a civil dispute of a classwide or institutional nature — appears to present the greatest potential for problems stemming from abstention.
This potential for problems is illustrated by the eleven years of federal and state litigation to date in the dispute addressed in Pineman v. Oechslin, 637 F.2d 601 (2d Cir. 1981). In Pineman, state employees filed a federal action in 1977, challenging the constitutionality of state statutory amendments which "rais[ed] the retirement eligibility ages for female [state] employees so that they equaled the ages for male employees," and "reduced benefits for female employees." In 1980, after extensive proceedings, the district court granted summary judgment for plaintiffs, holding that the statutory amendments impaired the state's contractual obligations, in violation of the contract clause of the United States Constitution.
In 1981, the Second Circuit, relying on Pullman and Burford, vacated and remanded that judgment, holding that abstention was appropriate to afford state courts the opportunity to adjudicate a state law aspect of plaintiffs' claim. However, the Second Circuit directed the district court to retain jurisdiction pending the Connecticut courts' determination of the state law question.
Accordingly, from 1981 to 1985, plaintiffs unsuccessfully litigated the state law issue in the Connecticut trial and appellate courts. See Pineman v. Oechslin, 195 Conn. 405, 488 A.2d 803 (1985).
In 1985 plaintiffs returned to the federal courts, which eventually dismissed their constitutional claims on the merits, a dismissal from which plaintiffs are currently seeking certiorari to the United States Supreme Court. Pineman v. Fallon, 662 F.Supp. 1311 (D.Conn. 1987), aff'd., 842 F.2d 598 (2d Cir. 1988), petition for cert. filed (June, 1988).
The prolonged and serpentine history of the Pineman case strongly suggests that — particularly in cases involving federal claims asserted in a civil dispute of a classwide or institutional nature — the federal courts should carefully weigh the risks of impeding and unduly delaying the adjudication of federal claims against the objectives which might be achieved by abstention.
Mendez v. Heller, 530 F.2d 457 (2d Cir. 1976), although decided on justiciability grounds rather than a specific abstention doctrine, further illustrates the potential for delay in federal claims adjudication which may be imposed by nonintervention doctrines. In Mendez, plaintiff wished to obtain a New York divorce, although she did not satisfy the applicable New York two-year durational residency requirement. Proceeding on the assumption that a divorce complaint would be rejected on jurisdictional grounds by the state courts, plaintiff filed a civil rights suit in the Eastern District of New York in 1974, individually and on behalf of all other persons similarly situated. The suit named as defendants various state judicial officers and officials, and challenged the constitutionality of the New York durational residency requirement for divorce actions. A three-judge federal court dismissed the suit for want of a justiciable controversy. Appeal was taken to the United States Supreme Court, which directed that a timely appeal be taken to the Second Circuit. That court affirmed the dismissal of the complaint in 1976, determining that none of the state-official defendants was properly named, and that plaintiff was required initially to present her claim to the New York courts.
Approximately two years transpired between the commencement of federal litigation in Mendez and the Second Circuit decision requiring a state forum. In the interim, the United States Supreme Court upheld the constitutionality of an Iowa durational residency statute ( Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975)), and the plaintiff in Mendez accordingly determined not to pursue a state court constitutional challenge to the New York statute.
In brief, like Pineman, Mendez suggests that, particularly in the context of class or institutional litigation, the federal courts should carefully consider the risk that abstention may serve to frustrate or unduly delay the adjudication of federal claims.
On the other hand, there may be instances where federal court intervention, at least in the presence of ongoing state court proceedings, may delay a prompt adjudication of federal claims in state court. For example, Cannady v. Valentin, 768 F.2d 501 (2d Cir. 1985), which involved claims that homeless families with children had been denied "lawful emergency housing" by state and city officials in violation of numerous federal and state constitutional and statutory provisions, was first presented to the federal courts in a very different posture from the foregoing cases, from the perspective of the practical effects of abstention.
Unlike Pineman and Mendez, in Cannady the federal courts were presented with a situation in which (a) there was a prior pending state litigation brought on behalf of a proposed class similar to the federal court proposed class; (b) the prior pending state court litigation involved many of the same federal and state claims subsequently raised in the federal action; (c) certain local governmental officials were defendants in both actions; and (d) interim equitable relief had been granted to plaintiffs in the state court action three months prior to the commencement of federal litigation.
In this situation, the Second Circuit, relying on Colorado River and Burford, affirmed the district court's decision staying federal litigation pending the resolution of the prior, parallel state court action. The Second Circuit stated in this connection that "we fear that intervention by a federal court might only delay a prompt resolution of this dispute" ( 768 F.2d at 503). The litigation of abstention questions in Cannady had no apparent dilatory effect on the adjudication of federal claims. As of early 1988, although the state court action remained pending, the preliminary injunctive relief granted therein remained in effect. See McCain v. Koch, 136 A.D.2d 473, 523 N.Y.S.2d 112 (1st Dep't 1988).
Although abstention apparently has not impeded the resolution of federal claims in Cannady, it obviously did so in Pineman and Mendez. Moreover, interviews with counsel for plaintiffs in institutional and classwide litigation confirmed that it is their perception that abstention is a significant bar to the timely and effective adjudication of federal claims. Such counsel noted two principal ways in which they view state courts as potentially ineffective for the litigation of federal claims.
First, unlike the federal courts, where class action litigation has become routine, New York state courts are perceived by some lawyers as being hostile to class actions, ill-equipped to manage them, and unfamiliar with their operation. In particular, state court class actions against governmental agencies are considered inappropriate. Rather, counsel reported that a single-plaintiff declaratory judgment action is deemed sufficient by state courts, because the agency will be presumed to comply with the court's decision on a classwide basis.
Counsel pointed out that a problem arises in this situation when the agency does not do so. In that event, no persons similarly situated may receive the benefits of a state plaintiff's favorable determination, without separate, costly resort to the courts — of particular concern in cases involving small amounts of money.
The second potential source of frustration of federal rights reported by counsel is the prospect of undue delay in the state court system in complex cases. In a flagrant example, one respondent reported a delay of seven years between the affirmance of dismissal by the Second Circuit on abstention grounds, and the denial of the federal claim by a state court-appointed referee. See Levy v. Lewis, 635 F.2d 960 (2d Cir. 1980).
In Levy, a federal class action was brought alleging that the termination of retirement benefits of former employees of an insurance company by the New York Superintendent of Insurance, acting as liquidator of the company, violated federal and state law. The Second Circuit, relying on Burford, Younger, and Colorado River, ordered abstention as to the claims for benefits. According to counsel, almost eight years later, those benefits claims have yet to be resolved. In the meantime, three of the five named claimants have died.
The above outcomes and concerns expressed by counsel further suggest that, particularly in classwide and institutional litigation, the federal courts should carefully consider whether abstention will impede the just resolution of federal claims.
2. Federal claims brought in the context of criminal or disciplinary proceedings.
Abstention issues have also repeatedly arisen in cases in which federal claims were brought in the context of state criminal or disciplinary proceedings. However, in general, interviews with counsel and review of reported decisions indicate that abstention in this category of cases does not appear to present as great a risk of frustration or undue delay in adjudication of federal claims, as does abstention in classwide or institutional civil disputes.
For example, in Davis v. Lansing, 851 F.2d 72 (1988), the Second Circuit recently affirmed, on abstention grounds, the dismissal of a state criminal defendant's federal habeas corpus petition, where the state defendant was currently on trial in state court. The Second Circuit rejected the suggestion that "a federal court exert control over his state trial," and pointed out that "he can raise any constitutional claims on direct appeal in the state courts if he is convicted."
In the context of disciplinary proceedings, see, e.g., Erdmann v. Stevens, 458 F.2d 1205 (2d Cir. 1972), cert. denied, 409 U.S. 889, 93 S.Ct. 126, 34 L.Ed.2d 147 (1972). In Erdmann, in late September, 1971, an attorney brought a federal action to enjoin the conduct of disciplinary proceedings against him by members of the Appellate Division of the New York State Supreme Court, contending that the proceedings violated his federal constitutional rights and 42 U.S.C. § 1983. Following the district court's dismissal of the action, the Second Circuit affirmed on abstention grounds, relying on Younger v. Harris. The Second Circuit's decision was rendered on April 12, 1972, less than seven months after federal litigation commenced. In subsequent state court litigation, the New York Court of Appeals ultimately dismissed the disciplinary proceedings on non-federal grounds. Justices of the Appellate Division, First Department v. Erdmann, 33 N.Y.2d 559, 347 N.Y.S.2d 441, 301 N.E.2d 426 (1973), rev'g, 39 A.D.2d 223, 333 N.Y.S.2d 863 (3d Dep't 1972).
See also, Anonymous v. Association of the Bar of the City of New York, 515 F.2d 427 (2d Cir. 1975), cert. denied, 423 U.S. 863, 96 S.Ct. 122, 46 L.Ed.2d 92 (1975); Powers v. Coe, 728 F.2d 97 (2d Cir. 1984), dismissal after remand aff'd sub nom. Powers v. McGuigin, 769 F.2d 72 (2d Cir. 1985); United States ex rel. Goodman v. Kehl, 456 F.2d 863 (2d Cir. 1972).
3. Federal claims brought to gain a tactical advantage in pending state court proceedings.
Similarly, where federal cases have been brought at least in part to gain a tactical advantage in pending state proceedings, abstention in such cases does not appear to present as great a risk of frustration or undue delay in adjudication of federal claims, as does abstention in classwide or institutional civil disputes. See, for example, Powers v. Coe, 728 F.2d 97 (2d Cir. 1984), dismissal after remand aff'd sub nom. Powers v. McGuigan, 769 F.2d 72 (2d Cir. 1985).
In Powers, the state criminal trial of a former state official charged with obstruction of justice was scheduled to begin on March 15, 1983. On March 14, 1983, one day before that criminal trial was to commence, he filed a § 1983 action in federal court against state prosecutors, challenging their conduct of grand jury proceedings leading to the prosecution, and seeking an injunction against his criminal trial. The federal district court, relying on Younger, denied the injunction motion, and the trial proceeded on schedule. Three weeks later, the former state official pleaded guilty to certain of the state charges, and his § 1983 action was ultimately dismissed on the merits.
See also, Erdmann v. Stevens, 458 F.2d 1205 (2d Cir. 1972), cert. denied, 409 U.S. 889, 93 S.Ct. 126, 34 L.Ed.2d 147 (1972); Anonymous v. Association of the Bar of the City of New York, 515 F.2d 427 (2d Cir. 1975), cert. denied, 423 U.S. 863, 96 S.Ct. 122, 46 L.Ed.2d 92 (1975).
IV. Conclusions and Recommendations
In sum, the Committee's examination of the Second Circuit's post- Younger abstention cases suggests that:
(a) The risk that abstention will have the practical effect of frustrating or unduly delaying the adjudication of federal claims appears to be greatest in cases involving federal claims arising from administrative proceedings and asserted in civil disputes of a classwide or institutional nature.
(b) Particularly in those cases, the federal courts should carefully weigh such risks against the objectives which might be achieved by abstention.
(c) Federal courts should also assess whether abstention might actually result in more rather than less litigation, of longer duration, and whether piecemeal litigation might be engendered.
Accordingly, the Committee specifically recommends the following:
1. Federal courts should pay greater attention to the Supreme Court's command that abstention be invoked only under "exceptional circumstances," particularly in civil and administrative cases.
2. When there is a need to resolve a novel, unclear issue of state law, federal courts should consider using the New York certification procedures, rather than abstaining, because the certification procedure is less likely to cause undue delay, and the federal court maintains primary jurisdiction over the case.
3. When deciding whether abstention should be invoked, the district court should hold a hearing at which the following issues should be carefully considered, in addition to traditional abstention criteria:
a) the anticipated duration of the state court proceeding;
b) whether any delay seriously prejudices the federal rights involved;
c) the degree of preclusive effect of the state court determination on the federal claims;
d) the impact of a state forum on litigants' ability to maintain class litigation where appropriate;
e) the probable familiarity of state courts with the federal law in question; and
f) other factors which may be present in the particular case, bearing on whether the state courts are as competent at deciding federal questions and related facts in the first instance as are the federal courts.
4. An abstaining federal court should generally stay, rather than dismiss, the federal action in order to insure that the federal courthouse door remains open and fully accessible to the federal plaintiff.
5. In appropriate cases, the abstaining federal court should consider granting interim equitable relief to insure the protection of federal rights while the issues are resolved in the state court proceeding.
Committee on Federal Courts,
New York State Bar Association
Subcommittee on Abstention
Georgene M. Vairo, Chair
Alan J. Russo
Andrew P. Saulitis
Daniel W. White
August 30, 1988