UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: August 28, 1973.
SAMUEL T. ROY, JUSTICE OF THE PEACE, EDWARD DUD-ZINSKI, JUSTICE OF THE PEACE, BLANDON WITHERS, JUSTICE OF THE PEACE, INDIVIDUALLY, AND AS REPRESENTATIVES OF ALL OTHER PERSONS SIMILARLY SITUATED, APPELLANTS,
BENJAMIN R. JONES, CHIEF JUSTICE OF THE SUPREME COURT OF PENNSYLVANIA, AND THE ASSOCIATE JUSTICES OF THE SUPREME COURT OF PENNSYLVANIA, AND THE JUDICIAL INQUIRY AND REVIEW BOARD OF PENNSYLVANIA, APPELLEES
APPEAL FROM THE ORDER OF THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF PENNSYLVANIA AT No. 71-1211.
Kalodner, Aldisert and Adams, Circuit Judges. Aldisert, Circuit Judge, concurring.
Opinion OF THE COURT
ADAMS, Circuit Judge.
Appellants are justices of the peace who were elected, and commissioned by the Governor of Pennsylvania, for a six-year term of office expiring on the first Monday of January, 1974. On May 19, 1971, they were temporarily suspended from office by the Supreme Court of Pennsylvania acting upon the recommendation of the Judicial Inquiry and Review Board.*fn1 The apparent cause for the temporary suspensions was an alleged violation by appellants of Rule 2 (a) of The Rules of Conduct, Office Standards and Civil Procedure for Justices of the Peace, which prohibits justices of the peace from, inter alia, being employed by the Commonwealth or a political subdivision or holding office in a political party or political organization.*fn2
On June 1, 1971, appellants, together with the Squires and Constables Association of Pennsylvania and other suspended justices of the peace, petitioned the Pennsylvania Supreme Court to revoke the suspension orders of May 19, 1971. This petition was denied by order of court dated July 14, 1971. Later, on August 23, 1971, the same group applied to Justice Brennan of the United States Supreme Court for a stay of the May 19th suspension orders pending the filing of a petition for a writ of certiorari with the United States Supreme Court. Justice Brennan denied the application for a stay on September 19, 1971, and no petition for a writ of certiorari was ever filed seeking appellate review of the Pennsylvania Supreme Court's May 19th orders and its refusal to revoke its suspension orders.
Instead, appellants commenced this original action in the district court on December 30, 1971, alleging that their suspensions were effected without notice and without a hearing in violation of both the Commonwealth's "Rules of Procedure Governing the Judicial Inquiry and Review Board" and the United States Constitution.*fn3 They urged the district court (1) to enjoin enforcement of the Pennsylvania Supreme Court's suspension order, and (2) to enjoin the Judicial Inquiry and Review Board from conducting hearings and making further recommendations to the Pennsylvania Supreme Court.*fn4 In an opinion and order dated June 16, 1972, the district court, based on "abstention" principles, granted the defendants' motion to dismiss the suit. 349 F. Supp. 315.
Although we affirm the judgment of the district court, we do so on a ground other than that relied upon by the district court.*fn5
It is clear from a recitation of the facts of this case that the appellants have sought, through the vehicle of a section 1983 suit for injunctive relief, to have a lower federal court engage in what essentially constitutes relitigation of issues already decided by Pennsylvania's highest court. Having failed to pursue the only available course for federal review of the state court's determination -- a writ of certiorari from the Supreme Court of the United States -- the appellants are now barred by the principles of res judicata from obtaining such review in the lower federal courts.*fn6
Guided by the decision in Angel v. Bullington, 330 U.S. 183, 91 L. Ed. 832, 67 S. Ct. 657 (1947), the federal courts have held that litigants may not seek to have redetermined, by original actions in federal district courts, issues already settled in a prior state-court adjudication.*fn7 Illustrative of the prevailing view, and similar to the present case, is Coogan v. Cincinnati Bar Assoc.*fn8
Coogan, an attorney, was indefinitely suspended as a result of a recommendation of the Board of Commissioners on Grievances and Discipline and the Cincinnati Bar Association. The Supreme Court of Ohio approved the findings and recommendations of the Board, and issued the suspension order. Coogan failed to seek certiorari from the United States Supreme Court for review of the Ohio court's action. Instead, he brought an original action under the Civil Rights Act*fn9 in the federal district court, seeking to enjoin enforcement of the suspension. He claimed that his suspension contravened certain constitutional guarantees.
The district court dismissed the action and the Sixth Circuit affirmed. In so doing, it offered a succinct statement of the relevant principles:
"Coogan had an adequate remedy for review of his suspension by petitioning the Supreme Court of the United States for a writ of certiorari. He chose not to resort to that remedy.
"The Civil Rights Act was not designed to be used as a substitute for the right of appeal, or to collaterally attack a final judgment of the highest court of a state and relitigate the issues which it decided.
"The final judgment of the Supreme Court is conclusive and Coogan is precluded by the doctrine of res judicata from relitigating not only the issues which were actually involved in the disbarment proceeding, but also the issues which he might have presented."*fn10
As noted above, on June 1, 1971, appellants petitioned the Supreme Court of Pennsylvania to revoke the suspension orders of May 19, 1971. In addition to contentions based upon state law, the petition contains specific arguments that the suspension order violated the appellants' federal constitutional rights. In denying the petition, Pennsylvania's highest court necessarily rendered a decision rejecting on the merits the very federal claims asserted by appellants in their complaint filed in the district court. Having been content to forego the prescribed avenue for securing federal review -- application for a writ of certiorari -- the appellants are now barred from bringing what is, effectively, a collateral attack upon the state court's judgment. Accordingly, the district court's dismissal of this action must be affirmed.*fn11
The district court based its decision on "abstention" principles. There are several legal doctrines that have, at times, been employed under the "abstention" rubric.*fn12 Thus, the classical abstention principle, or Pullman doctrine,*fn13 and the equitable concepts embodied in the Younger rule*fn14 address different, though similar, concerns. Whichever abstention doctrine is applicable, however, its invocation serves as an impediment to a decision on the merits.
In the present case, the district court stated that "plaintiffs have not suffered or are likely to suffer irreparable injury." As indicated earlier,*fn15 a hearing before the Judicial Inquiry and Review Board has been scheduled. To the extent that this hearing may be considered a continuing proceeding, the philosophy underlying Younger would counsel that the federal court stay its hand. Of course, if there were no continuing procedure,*fn16 the doctrine of Younger has no application.*fn17
Moreover, the Supreme Court of Pennsylvania having already construed the statute in question, Pullman abstention would not be apposite.
Our attention has been invited to England v. Louisiana State Board of Medical Examiners,*fn18 which provides an interesting comparison with the present case. In approaching England, it must be noted that the plaintiffs here chose to bring their action originally in state court. And, although England lends philosophical support to the result reached by us here, it embodies somewhat different legal issues and rests upon somewhat different doctrinal under-pinnings.
In England, a group of chiropractors brought suit in the first instance in the federal court, seeking an injunction and a declaration that, as applied to them, the Louisiana Medical Practice Act violated the fourteenth amendment. The district court invoked the doctrine of abstention, as set forth in Pullman, supra, on the ground that a state court might effectively end the controversy by determining that chiropractors were not governed by the state statute. Having thus been remitted to the state courts, the chiropractors there "submitted for decision, and briefed and argued"*fn19 both their state and federal claims. These were rejected by the state courts. Thereafter, the chiropractors returned to the district court and sought to raise the same federal claims that had been turned down in the state court. The district court dismissed the federal action, holding that:
"Since the [state] courts have passed on all issues raised, including the claims of deprivation under the Federal Constitution, this court, having no power to review those proceedings, must dismiss the complaint. The proper remedy was by appeal to the Supreme Court of the United States."*fn20
On appeal, the Supreme Court held that a litigant may avoid the result reached by the district court by "reserving" his federal contentions during the course of the state litigation.
It is apparent that the procedures outlined in England were engrafted onto the law of abstention to insure that implementation of the Pullman doctrine not run afoul of Congressional mandate. In Willcox v. Consolidated Gas Co., 212 U.S. 19, 53 L. Ed. 382, 29 S. Ct. 192 (1909), the Supreme Court stated unequivocally that "the right of a party plaintiff to choose a federal court where there is a choice cannot be properly denied."*fn21 Recalling its earlier pronouncement, and mindful of the fact that remitting to state courts litigants who have properly invoked the statutory jurisdiction of the federal courts might be deemed an "abdication" of legislated responsibility,*fn22 the Court in England fashioned the procedure for "reservation" of federal jurisdiction. The litigant who finds himself ordered into the state court against his will specifically " reserves" presentation of his federal claims to the federal court pending state determination of his state-law claims. Upon resolution of the state questions, he is admitted back into federal court for disposition of any federal issues that remain.*fn23 Thus, where Pullman abstention is ordered, there is avoided
"any conclusion that a litigant who has properly invoked the jurisdiction of a Federal District Court to consider federal constitutional claims can be compelled, without his consent and through no fault of his own, to accept a state court's determination of those claims."*fn24
Inasmuch as the genesis of England was the perceived need to insulate the Pullman doctrine from the taint of "abdication," its application in a case where no Pullman problem is present is questionable. The power to "reserve" federal claims when proceeding in a state court can arise only when a plaintiff is before the state tribunal because the federal court has refused, on abstention grounds, to proceed with his case.*fn25 The plaintiffs here elected to proceed first in the state courts, and thus never had the opportunity to "reserve" their federal claims. Having selected the state forum of their own accord, they must abide by their choice.
The judgment of the district court will be affirmed.
ALDISERT, Circuit Judge, Concurring.
I concur in the result reached by the majority, but I do not join in the opinion. The district court dismissed the complaint on abstention principles. The majority affirms on res judicata, what they describe as "a ground other than that relied upon by the district court." I am not persuaded that the abstention doctrine, relied upon by the district court, is divorced from res judicata.
Abstention is a judicially developed doctrine limiting district court action under certain circumstances. I perceive it to be a shorthand expression encompassing several aspects of federal restraint. (1) In a Pullman-type abstention,*fn1 the Court stays its hand and retains jurisdiction until the state court acts. (2) In a Burford-type abstention,*fn2 the Court dismisses the complaint and flatly declares that the subject matter is for state court determination. (3) An England-type abstention envisions two stages.*fn3 Where the case is filed in federal court before a state court decision, a Pullman-type abstention comes into being, the federal court staying its hand until the state court acts. If, after the state proceedings terminate, the plaintiff returns, the federal court must make a factual determination. It must decide whether the federal questions were presented to the state court. If they were, and were not reserved, then, on the theory of res judicata, the court may properly dismiss the federal action. It is this second stage which gives the label "England-type" to this category of abstention; the first stage is purely and simply a Pullman-type abstention.
In the case before us, we had only the second stage. The appellants came to the federal court after the state court proceedings. There was thus no need for a first stage Pullman-type abstention. Call it England-type abstention or garden variety res judicata,*fn4 it is the same to me.
I do not believe it is necessary to cut terminology so fine as to suggest that England only applies where the filing of the federal action precedes the state action. I find no magic in the "right to return" expression in the opinion. The essence of the doctrine is as stated by Mr. Justice Brennan: "We see no reason why a party, after unreservedly litigating his federal claims in the state courts although not required to do so, should be allowed to ignore the adverse state decision and start all over again in the District Court." 375 U.S. at 419. See Commonwealth ex rel. Specter v. Levin, 359 F. Supp. 12 (E.D. Pa., three-judge court, 1973).
Abstention takes even other forms. Professor Charles Alan Wright lists the Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971), sextet as one of "The Abstention Doctrines."*fn5 The editors of Hart and Wechsler's the Federal Courts and the Federal System, 2d Ed., prefer a general category of "Judicially Developed Limitations on Entertaining Actions Against State Officers"*fn6 in which they include "B. Abstention: The Pullman Doctrine"*fn7 and "C. Equitable Restraint: The Doctrine of Douglas v. City of Jeanette."*fn8 It is under "equitable restraint" rather than "abstention" that they place Younger.*fn9 Mechanical dependence upon labels leads to difficulties. The separate nomenclature used by America's foremost federal court commentators emphasizes the importance of the conceptual and factual under-pinnings of a case rather than reliance upon a neat label attached to its holding.
Although the majority's discussion of Younger appears to be dictum, I find it necessary to add these observations. Younger held that federal courts will not entertain an action to restrain an ongoing state proceeding if the federal plaintiff has the opportunity of asserting his constitutional contentions in a single state action. I perceive nothing in this notion that limits the application of the conceptual basis of Younger to criminal cases. In Berryhill v. Gibson, 411 U.S. 564, 93 S. Ct. 1689, 36 L. Ed. 2d 488, 41 U.S.L.W. 4576 (1973), the Supreme Court had an uncluttered opportunity to say that the rationale of Younger was inapplicable to civil actions. But this, the court did not do.
I have found Lynch v. Snepp, 472 F.2d 769, 773 (4th Cir. 1973), to be the most scholarly discussion of this point. There, the Fourth Circuit, speaking through Judge Craven, applied Younger to a state civil action arising from a school disturbance:
These general notions of comity, equity, and federalism, applied since the early days of our Union of States and most recently restated in Younger and its companion cases, occupy a highly important place in our history and our future. Their application should never be made to turn on such labels as "civil" or "criminal" but rather upon an analysis of the competing interests in each case. Palaio v. McAuliffe, 466 F.2d 1230, 1232-1233 (5th Cir. 1972); Cousins v. Wigoda, 463 F.2d 603 (7th Cir.) application for stay denied, 409 U.S. 1201, 92 S. Ct. 2610, 34 L. Ed. 2d 15 (1972) (Rehnquist, Circuit Justice).
A fair reading of the district court's opinion in the case before us discloses that Judge Scalera approached the problem much the same as Judge Craven in Snepp. Judge Scalera emphasized the "irreparable injury" test, citing De Vita v. Sills, 422 F.2d 1172 (3d Cir. 1970); Younger said that irreparable injury must be "both immediate and great." 401 U.S. at 46. Snepp reversed the grant of a preliminary injunction because plaintiffs "failed to show great and immediate irreparable injury [and] that their rights would not be protected in the state proceedings. . . ." 472 F.2d at 776.
The fundamental equitable concepts of Younger must never be subordinated. Thus, one piece of the Younger factual complex must not become the subject of controlling emphasis to the exclusion of the important legal principles constituting the rationale of the case. An example of this is the suggestion that the root premises of Younger do not lie where there is no ongoing state proceeding. While the contemporaneity of the state action may indeed be extremely important, this is but one factor, and this one factor must not be considered in vacuo.
Younger is a jurisprudential brew of many interdependent principles and traditions, which Judge Craven described as "general notions of comity, equity, and federalism applied since the early days of our Union of States." And I find it difficult if not impossible, to lift one particular ingredient from the brew and then isolate it. And if I could, I dare say it would be impossible to divest it from the flavor of the other ingredients. Thus, if the presence of an ongoing state proceeding is critical, so is the necessity of proving entitlement to an immediate injunction. So understood, there is a delightful Catch-22 quality about it all:
Plaintiff: Aha, you can't apply Younger, because there is no ongoing state proceeding.
Defendant: Aha to you, sir. If there is no ongoing state proceeding, then why do you need an injunction? What's there to enjoin?
On balance, while I agree that perhaps the neatest way of affirming the district court is via the England-res judicata route, I am also prepared to affirm Judge Scalera on the strength of his "irreparable harm" discussion.