ABSTENTION DOCTRINE

All the abstention doctrines refer to circumstances in which federal courts, having jurisdiction over a case under a congressional enactment, nonetheless may defer to state tribunals as decision makers. Federal courts may not abstain simply because they believe that particular cases, on their facts, would more appropriately be heard in state courts; they have a general obligation to exercise jurisdiction in cases Congress has placed before them. Abstention is justified only in exceptional circumstances, and then only when it falls within a particular abstention doctrine.

There are several abstention doctrines; they differ in their consequences and in their requirements. Colorado River Water Conservation District v. United States (1976) suggests a general doctrine that federal courts have power to defer in favor of ongoing state proceedings raising the same or closely related issues. This type of deference to ongoing proceedings often is not identified as abstention at all, and courts have not spelled out its requirements other than general discretion.

When a federal court does defer under this doctrine, it stays federal proceedings pending completion of the state proceedings. If the state does not proceed expeditiously, or if issues remain for decision, the federal court can reenter the case. When it does not abstain and both state and federal forums exercise their concurrent jurisdiction over a dispute, the judgment that controls is the first to become final. Federal courts deferring in favor of ongoing state proceedings avoid this wasteful race to judgment, but the price paid is that the federal plaintiff may lose the federal forum she has chosen and to which federal law entitles her.

In reconciling the competing interests, federal courts are much more likely to defer to prior state proceedings, in which the state plaintiff has won the race to the courthouse, than they are when the federal suit was first filed.

Deference, even to previously commenced state proceedings involving the same parties as the federal suit, is by no means automatic; it is discretionary—justified by the court's inherent power to control its docket in the interests of efficiency and fairness—and the Supreme Court has said that it is to be invoked sparingly. In Colorado River Water Conservation District v. United States the Court stated that the inherent problems in duplicative proceedings are not sufficient to justify deference to the state courts because of "the virtually unflagging obligation of the federal courts to exercise the jurisdiction given them."

This doctrine permitting deference serves as a backdrop to other doctrines that the Supreme Court more consistently calls "abstention." The most important of these today is the doctrine of younger v. harris (1971). The doctrine started as a principle against enjoining state criminal prosecutions, but it has grown enormously. It has been expanded to bar not only suits for federal injunction but also suits for federal declaratory judgment concerning the constitutionality of an enactment involved in a pending prosecution; and today some believe it goes so far as to bar a federal damage action against state officials that might decide issues that would interfere with a state prosecution. Moreover, the doctrine has grown to protect state civil proceedings as well as criminal ones. Most remarkably, as the Court held in Hicks v. Miranda (1975), the doctrine now allows abstention even if the federal action is first filed, so long as the state commences prosecution "before any proceedings of substance on the merits" have occurred in federal court. That rule effectively deters federal suit; a federal plaintiff who wins the race to the courthouse may simply provoke his own criminal prosecution. These developments together have turned Younger into a doctrine that permits federal courts to dismiss federal constitutional challenges to state criminal prosecution (or quasi-criminal) enactments whenever a state criminal prosecution (or other enforcement proceeding) provides a forum for the federal constitutional issue. The state forum in theory must be an adequate one, but courts applying the doctrine often overlook this aspect of the inquiry.

Courts abstaining under the Younger doctrine generally dismiss the federal suit rather than retaining jurisdiction. Federal plaintiffs who are left to defend state proceedings generally cannot return to federal court for adjudication of the federal or any other issues, and the state court's decision on the constitutional issue and others may control future litigation through collateral estoppel. Litigants do, of course, retain the possibility of Supreme Court review of the federal issues they raise in state court, but the chances that the Supreme Court will hear such cases are slim.

The Younger doctrine therefore often deprives the federal plaintiff of any federal forum—prior, concurrent, or subsequent to the state proceeding against him—for his civil rights action against state officials. This contradicts the apparent purpose of section 1983, title 42, united states code and its jurisdictional counterpart (section 1343, Title 28) that such a forum be available. Some of those convicted in state criminal prosecutions may later raise federal issues in federal habeas corpus proceedings, but access to habeas corpus is itself increasingly limited. (See stone v. powell; wainright v. sykes.)

The Younger doctrine does have exceptions. If the federal court finds state courts inadequate on the facts of the particular case (because of what the Court in Younger termed "bad faith, harassment, or any other unusual circumstance that would call for equitable relief"), it will exercise its jurisdiction. But this approach turns around the usual rule that it takes exceptional circumstances to decline jurisdiction, not to justify its exercise. To avoid this conflict with the usual rules allowing Congress, not the courts, to determine the appropriate cases for federal jurisdiction, Younger abstention should be cut back, at least by limiting it to cases in which state proceedings began before the federal one. Such an approach would assimilate Younger abstention to the general doctrine of deference to ongoing state proceedings, discussed above.

In the meantime the expanded version of the Younger doctrine has largely displaced what had been the key form of abstention, formulated in railroad commission of texas v. pullman company (1941). Pullman abstention applies to cases involving federal constitutional challenges to state law. It allows (but does not require) federal judges to refrain from deciding highly uncertain questions of state law when resolution of the questions may avoid or affect the federal constitutional issue.

Pullman today is the only abstention doctrine in which deference to state courts is limited to state law issues. When the federal court abstains under the Pullman doctrine, it holds the case while the parties seek declaratory relief on the state law issues in state court. Unless the parties voluntarily submit federal along with state issues to the state court, they have a right to return to federal court after the state adjudication is completed, for decision of the federal issues and for federal factfinding. In this respect Pullman abstention is a narrower intrusion on federal court jurisdiction than the Younger doctrine is, although the cost of shuttling back and forth from state to federal court dissuades many federal plaintiffs from retaining their federal forum. Pullman also differs from Younger because the federal plaintiff generally initiates the proceedings in state court, and they are declaratory judgment proceedings rather than criminal prosecutions or civil enforcement proceedings.

As Younger has expanded to include some civil enforcement proceedings and to allow abstention in favor of later-filed state proceedings, it has reduced the area for Pullman abstention. Both doctrines typically apply to constitutional litigation against state officials. In many cases where Pullman abstention could be at issue, Younger is operative because a state enforcement proceeding against the federal plaintiff is a possibility as long as the federal plaintiff has violated the law she challenges. If, however, the federal plaintiff has not violated the enactment she challenges, Younger abstention cannot apply, for the state is unable to bring a prosecution or civil enforcement proceeding against her and thereby displace the federal forum. Pullman, therefore, is the applicable doctrine for pre-violation suits and for challenges to state enactments that do not involve state enforcement proceedings. Many of those cases, however, will be dismissed before abstention is considered; where the plaintiff has not violated the enactment she complains of, she may have trouble showing that her controversy is justiciable. (See ripeness.)

While Pullman abstention has therefore become less and less important, a new area has recently been created for a Pullman -like abstention. pennhurst state school v. halderman (1984), restricting federal courts' pendent jurisdiction, requires federal litigants in suits against state governments to use state courts to pursue any related state causes of action they do not wish to forfeit. Pennhurst thus creates the equivalent of a mandatory Pullman abstention category—where state courts must be given certain state law questions to adjudicate even while a federal court exercises jurisdiction over the rest of the case. This new category is not, however, dependent upon uncertainty in state law.

Another abstention doctrine, administrative abstention, was first articulated in Burford v. Sun Oil Company (1943). The Burford doctrine allows a federal court with jurisdiction of a case to dismiss in favor of state court adjudication, ongoing or not. Like Younger abstention, Burford abstention displaces federal jurisdiction; if abstention is ordered, state courts adjudicate all issues, subject only to Supreme Court review. The Court has never clearly explained which cases are eligible for administrative abstention. The doctrine is typically employed when a state administrative process has dealt with a controversy in the first instance and the litigant then asks a federal district court to exercise either its federal question or diversity jurisdiction to review that administrative interpretation. The federal court's ability to abstain under this doctrine may be limited to situations in which state statutes concentrate judicial review of the administrative process in a particular state court so that it becomes "an integral part of the regulatory process," as the Court said in Alabama Public Service Commission v. Southern Railway (1951), or to situations involving complex factual issues. There is no requirement that legal issues, state or federal, be unclear for this abstention to be ordered, or that the case contain any federal issues.

Burford abstention does not apply when state administrative remedies have been skipped altogether and the litigant has sued first in federal court. The only issue then is whether state administrative remedies must be exhausted. There is no overlap between Burford and the Younger or Pullman abstention doctrines, because exhaustion of administrative remedies has not been required in suits under section 1983, which today includes all constitutional litigation. The Court recently affirmed this exception to the exhaustion requirement in Patsy v. Board of Regents (1982). If the Court were to modify the section 1983 exception to the exhaustion requirement, retreat from the Burford doctrine would seem to follow. Otherwise, Burford would mandate state judicial review after deference to state administrative proceedings, so federal jurisdiction would be altogether unavailable in section 1983 cases whenever an administrative agency was available.

A final minor category of abstention, which seems to have been limited to eminent domain cases involving unclear state issues, is reflected in Louisiana Light & Power Company v. Thibodaux (1959). In contexts other than eminent domain, abstention is not proper simply to clarify difficult state law issues. (In states that provide for certification, however, a federal court without more can certify difficult state issues to the state supreme court.)

All these theories of abstention are judge-made rules, without any statutory authority; they avoid jurisdiction in cases where Congress has given it. By contrast, Congress itself has provided for deference to state processes in narrow categories of cases, most notably cases involving in-junctions against state rate orders and tax collections. And in the Anti-Injunction Act, Congress has generally prohibited federal injunctions against state proceedings. This prohibition is limited by explicit statutory exceptions, however, and by some judge-made exceptions, and since the area outside the prohibition also is limited, by the judge-made abstention doctrines, the statute apparently has little effect.

Martha A. Field
(1986)

Bibliography

Field, Martha A. 1974 Abstention in Constitutional Cases: The Scope of the Pullman Abstention Doctrine. University of Pennsylvania Law Review 122:1071–1087.

——1981 The Uncertain Nature of Federal Jurisdiction. William & Mary Law Review 22:683–724.

Fiss, Owen 1977 Dombrowksi. Yale Law Journal 86:1103–1164.

Laycock, Douglas 1977 Federal Interference with State Prosecutions: The Need for Prospective Relief. Supreme Court Review 1977:193–238.