The opinion
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0038p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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PATRICK J. DEVLIN,
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Plaintiff-Appellant,
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No. 09-1376
v.
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Defendants-Appellees. -
RICHARD S. KALM, et al.,
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Appeal from the United States District Court
for the Eastern District of Michigan at Ann Arbor.
No. 08-13421—John Corbett O’Meara, District Judge.
Argued: December 1, 2009
Decided and Filed: February 12, 2010
Before: GUY, ROGERS, and GRIFFIN, Circuit Judges.
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COUNSEL
ARGUED: Patrick J. Devlin, PATRICK J. DEVLIN, P.C., Grand Rapids, Michigan, for
Appellant. Ann M. Sherman, Jason D. Hawkins, OFFICE OF THE MICHIGAN
ATTORNEY GENERAL, Lansing, Michigan, for Appellees. ON BRIEF: Patrick J.
Devlin, PATRICK J. DEVLIN, P.C., Grand Rapids, Michigan, for Appellant. Ann M.
Sherman, Barbara A. Schmidt, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellees.
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OPINION
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ROGERS, Circuit Judge. Plaintiff Patrick J. Devlin appeals the district court’s
decision to dismiss his 42 U.S.C. § 1983 complaint under Younger v. Harris, 401 U.S. 37
(1971). The procedural posture of this case does not warrant the application of Younger.
On remand, however, the district court may consider other possible bases for dismissal or
stay.
1
No. 09-1376 Devlin v. Kalm, et al. Page 2
While employed at the Michigan Gaming Control Board (MGCB), Devlin filed two
citizen suits in state court seeking to compel enforcement of the state’s liquor licensing laws
and the MGCB’s employee qualification rules. After newspapers quoted Devlin in articles
about these citizen suits, the MGCB terminated Devlin’s employment. Devlin filed the
1
present federal suit against various state officials, and, later on the same date, Devlin
grieved his termination in the Michigan Civil Services Commission (MCSC).2 In his
MCSC grievance, Devlin alleges that his termination violated state civil service rules,
and he seeks reinstatement and back pay, or front pay from his termination date to his
planned retirement. The MCSC stayed these proceedings on Devlin’s motion. In his
federal suit, Devlin alleges that his termination violated his rights under the First
Amendment, the Due Process Clause, and state law, and he seeks injunctive and
monetary relief.3 Defendants moved to dismiss Devlin’s federal suit based on Younger,
and the district court dismissed the case on that basis.
Under Younger, “absent extraordinary circumstances federal courts should not
enjoin pending state criminal prosecutions.” New Orleans Pub. Serv., Inc. v. Council
of New Orleans, 491 U.S. 350, 364 (1989). The Supreme Court has extended Younger
to bar federal courts from interfering in some state civil suits and administrative
proceedings. Id. at 369-72; Ohio Civil Rights Comm’n v. Dayton Christian Schs., Inc.,
477 U.S. 619, 627 & n.2 (1986); Middlesex County Ethics Comm. v. Garden State Bar
Ass’n, 457 U.S. 423, 432 (1982). However, Younger cases generally have a common
procedural posture:
In the typical Younger case, the federal plaintiff is a defendant in ongoing
or threatened state court proceedings seeking to enjoin continuation of
1
Defendants are Richard S. Kalm (Executive Director, MGCB), Frederick J. Cleland (Deputy
Director for Licensing, MGCB), Eric T. Bush (Administrative Manager, MGCB), Dale E. Beachnau
(Human Resources Administrator, Michigan Department of Treasury), Michael Davis (Labor Relations
Representative, Michigan Department of Treasury), Dominick P. Alagna (Casino Employee Licensing
Manager, MGCB), and Janet M. McClelland (Acting State Personnel Director, MGCB).
2
The MCSC is the state body charged with “mak[ing] rules and regulations covering all personnel
transactions, and regulat[ing] all conditions of employment in the classified [state civil] service.” Mich.
Const. art. XI, § 5.
3
The district court sua sponte declined to exercise supplemental jurisdiction over Devlin’s state
law claim.
No. 09-1376 Devlin v. Kalm, et al. Page 3
those state proceedings. Moreover, the basis for the federal relief
claimed is generally available to the would-be federal plaintiff as a
defense in the state proceedings.
Crawley v. Hamilton County Comm’rs, 744 F.2d 28, 30 (6th Cir. 1984). Therefore,
Younger does not apply when “the federal plaintiffs are also plaintiffs in the state court
action” and “the plaintiffs are not attempting to use the federal courts to shield them
from state court enforcement efforts.” Id. (emphasis in original). Accordingly, Younger
does not prevent the federal court from ruling on Devlin’s claims in the present suit
because Devlin is the plaintiff in both the federal and state proceedings, and Devlin does
not seek to enjoin the state proceedings or otherwise use the federal court to shield him
from state enforcement efforts.
This approach follows the Supreme Court’s statement in Ohio Civil Rights
Commission that applying Younger to a state administrative proceeding was consistent
with the absence of an administrative exhaustion requirement because the ongoing state
proceedings in that case were “coercive rather than remedial.” 477 U.S. at 627 n.2.
Other circuits have accordingly limited Younger in § 1983 claims to cases where there
are “coercive” state proceedings. See, e.g., Guillemard-Ginorio v. Contreras-Gomez,
585 F.3d 508, 522 (1st Cir. 2009) (stating that “post-hoc remedial proceedings initiated
by the [federal] plaintiffs [after a state agency’s adverse decision] are not the type [of
proceeding] to which deference under Younger applies. Rather, proceedings must be
coercive, and in most-cases, state-initiated, in order to warrant abstention.”); Brown ex
rel. Brown v. Day, 555 F.3d 882, 889 (10th Cir. 2009) (holding that Younger does not
bar a Medicaid beneficiary’s federal suit challenging termination of benefits, though that
beneficiary also filed a state action on the same ground, because “[t]he state did not
compel [the federal plaintiff] to participate in the [state] proceedings” and “[the federal
plaintiff] seeks not to enjoin the state proceedings, but to secure relief from the state’s
allegedly unlawful conduct by recovering her Medicaid benefits”); Marks v. Stinson, 19
F.3d 873, 885 (3d Cir. 1994) (quoting Crawley and noting that “[a] federal plaintiff may
pursue parallel actions in the state and federal courts so long as the plaintiff does not
seek relief in the federal court that would interfere with the state judicial process”).
No. 09-1376 Devlin v. Kalm, et al. Page 4
Defendants argue that abstention is appropriate under Middlesex County Ethics
Committee, 457 U.S. at 423, and Fieger v. Thomas, 74 F.3d 740 (6th Cir. 1996). In both
cases, an attorney who suffered an adverse decision from the state’s lawyer disciplinary
body filed a federal suit seeking to enjoin the state proceedings and alleging that those
proceedings violated his federal constitutional rights. Middlesex County, 457 U.S. at
428-29; Fieger, 74 F.3d at 741. In both cases, the federal court declined under Younger
to rule on the constitutional claims due to the ongoing state proceedings. Middlesex
County, 457 U.S. at 431-37; Fieger, 74 F.3d at 750. These cases do not preclude the
federal court from ruling in this case on Devlin’s claims because the MCSC proceedings
differ from the lawyer disciplinary proceedings at issue in Middlesex County and Fieger.
Those lawyer disciplinary proceedings were initiated by the state to redress a wrong
allegedly committed by the federal plaintiff, whereas the MCSC proceedings at issue
here were initiated by Devlin, the federal plaintiff, to redress a wrong allegedly
committed by the state. Moreover, unlike the federal plaintiffs in Middlesex County and
Fieger, Devlin does not seek to enjoin the MCSC proceedings, but rather seeks
consistent forms of relief in federal and state proceedings. Accordingly, Younger does
not bar the present federal suit. The judgment of the district court is vacated and the case
is remanded.
Our decision today takes no position on whether Devlin’s case should be
dismissed or stayed on other theories, such as abstention under Burford v. Sun Oil Co.,
319 U.S. 315 (1943), or Colorado River Water Conservation District v. United States,
424 U.S. 800 (1976). We also decline to rule on Defendant McClelland’s alternative
motion to dismiss for failure to state a claim upon which relief can be granted because
the district court did not comment on this motion. See Mount Clemens v. EPA, 917 F.2d
908, 916 n.2 (6th Cir. 1990).