United States v. Water Resources Control Board

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-15145

Plaintiff-Appellant,

D.C. No.

v. 2:19-cv-00547-

DAD-EPG

STATE WATER RESOURCES CONTROL

BOARD; E. JOAQUIN ESQUIVEL,

Board Chair, OPINION

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of California

Lawrence J. O’Neill, District Judge, Presiding *

Argued and Submitted January 13, 2021

San Francisco, California

Filed February 24, 2021

Before: CARLOS T. BEA and MILAN D. SMITH, JR.,

Circuit Judges, and JANE A. RESTANI, ** Judge.

Opinion by Judge Milan D. Smith, Jr.

*

Then-Chief Judge O’Neill issued the order on appeal. Judge

O’Neill assumed senior status on February 2, 2020. The case is now

assigned to the Honorable Dale A. Drozd, United States District Judge

for the Eastern District of California.

**

The Honorable Jane A. Restani, Judge for the United States Court

of International Trade, sitting by designation.

2 UNITED STATES V. STATE WATER RESOURCES CONTROL BD.

SUMMARY ***

Colorado River Stay / Pullman Abstention

The panel reversed the district court’s order granting a

partial stay under Colorado River Water Conservation

District v. United States, 424 U.S. 800 (1976), of three state

law claims, in an action brought by the United States

alleging that the California State Water Resources Board

violated various provisions of the California Environmental

Quality Control Act; and remanded to allow the United

States’ claims to proceed, subject to regular issues of

justiciability.

The United States simultaneously filed separate suits

against the Board in state and federal court. The United

States informed each court of the existence of the other suit,

and noted that the federal district court was its preferred

forum. The Board asked the district court to abstain from

hearing the federal case or stay the case pursuant to

Colorado River. The district court denied abstention under

a number of doctrines, and issued a partial Colorado River

stay.

The panel held that it had jurisdiction over the appeal

pursuant to the exception to the finality rule under Cohen v.

Beneficial Loan Corp., 337 U.S. 541 (1949).

The panel held that the district court abused its discretion

in granting a partial Colorado River stay. Specifically, the

***

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

UNITED STATES V. STATE WATER RESOURCES CONTROL BD. 3

panel held that partial stays pursuant to Colorado River were

permissible only in very limited circumstances, namely

when there was strong evidence of forum shopping. Because

there was little evidence of forum shopping here, the district

court erred.

The Board argued that Pullman abstention provided an

alternative ground to uphold the district court’s stay.

Pullman requires that a federal court abstain from deciding

the federal question while it awaits the state court’s decision

on the state law claims. The district court did not stay the

federal constitutional claim here, and declined to abstain

pursuant to Pullman. The panel held that it could not affirm

on the basis of Pullman abstention because it would

impermissibly enlarge the rights the Board obtained in the

district court judgment. Namely, the Board, which did not

cross-appeal, cannot ask this court to affirm on Pullman

grounds because this court would necessarily have to stay

the intergovernmental immunity claim, which the district

court allowed to proceed.

COUNSEL

Kenneth A. Klukowski (argued), John L. Smeltzer, Romney

Philpott, Erika Norman, and Daniel Halainen, Attorneys;

Eric Grant, Deputy Assistant Attorney General; Jonathan D.

Brightbill, Principal Deputy Assistant Attorney General;

Jeffrey Bossert Clark, Assistant Attorney General;

Environment and Natural Resources Division, United States

Department of Justice, Washington, D.C.; Michael Gheleta

and Amy Aufdemberge, Attorneys, Office of the Solicitor,

United States Department of the Interior, Washington, D.C.;

for Plaintiff-Appellant.

4 UNITED STATES V. STATE WATER RESOURCES CONTROL BD.

Dylan Johnson (argued), Deputy Attorney General, Office

of the Attorney General, San Diego, California; Mark W.

Poole and Tamara T. Zakim, Deputy Attorneys General;

Annadel A. Almendras and Michael P. Cayaban,

Supervising Deputy Attorneys General; Robert W. Byrne,

Senior Assistant Attorney General; Xavier Becerra,

Attorney General; Office of the Attorney General, Oakland,

California; for Defendants-Appellees.

OPINION

M. SMITH, Circuit Judge:

The United States simultaneously brought suits in the

United States District Court for the Eastern District of

California and the Superior Court of the State of California

for the County of Sacramento. The United States pleaded

three identical causes of action under California state

administrative law in both suits, and later added a federal

constitutional claim to its federal suit. The federal district

court stayed the three state law claims pursuant to Colorado

River Water Conservation District v. United States, 424 U.S.

800 (1976), and allowed the federal constitutional claim to

proceed.

Our precedent does not allow a partial stay pursuant to

Colorado River, except in rare circumstances. Such

circumstances do not exist here. Accordingly, we reverse

the decision of the district court granting a partial stay, and

remand for further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

The California State Water Resources Control Board

(the Board) is a state agency that administers water rights

UNITED STATES V. STATE WATER RESOURCES CONTROL BD. 5

and water quality laws. See Cal. Water Code § 13001. As a

part of its responsibilities, the Board manages the San

Francisco Bay/Sacramento-San Joaquin Delta Estuary (the

Bay-Delta). Included in the Bay-Delta system is the New

Melones Dam, which is operated by the United States

Bureau of Reclamation. The Bureau of Reclamation must

comply with California law in operating the dam. See

43 U.S.C. § 383; California v. United States, 438 U.S. 645,

678–79 (1978).

The Board first adopted a water quality control plan for

the Bay-Delta in 1978. In December 2018, after completing

a nine-year process, the Board approved an Amended Plan.

The Amended Plan made a number of changes to the

management of the Bay-Delta, including altering flow

objectives and salinity levels. The United States claims that

these changes adversely affect operation of the New

Melones Dam.

On March 28, 2019, the United States simultaneously

filed separate suits against the Board in state and federal

court. 1 In federal district court, the United States asserted

jurisdiction pursuant to 28 U.S.C. § 1345. Section 1345

allows the United States to bring suits in federal court

consisting entirely of state law claims. See United States v.

California, 328 F.2d 729, 734 (9th Cir. 1964); Barrett v.

United States, 853 F.2d 124, 130 (2d Cir. 1988).

In the federal court action, the United States initially

alleged the same three causes of action as pleaded in the state

court action. The United States claimed that the Board

1

The United States also added Board Chair E. Joaquin Esquivel as

a defendant in the federal suit. We refer to the Board and Esquivel

collectively as the Board.

6 UNITED STATES V. STATE WATER RESOURCES CONTROL BD.

violated various provisions of the California Environmental

Quality Control Act (CEQA), an administrative statute that

partially governs the Board’s actions. See Cal. Pub. Res.

Code § 21000 et seq. After the Board moved to dismiss the

federal suit, the United States filed a First Amended

Complaint only in the federal suit. In that amended

complaint, the United States asserted that the Board also

discriminated against the United States under the

intergovernmental immunity doctrine of the federal

Constitution. See generally United States v. California,

921 F.3d 865, 878 (9th Cir. 2019).

In both the state and federal complaints, the United

States informed each court of the existence of the other suit,

and noted that the federal district court was its preferred

forum. To the California Superior Court, the United States

stated that the “action in federal district court preserves [the

United States’] preferred choice of a federal forum to resolve

its claims.” The United States brought the state court suit

“only out of an abundance of caution in the event that, for

any reason, [the United States’] federal suit is not

adjudicated on the merits in federal court and to ensure that

the state statute of limitations was scrupulously complied

with.”

Similarly, the United States informed the federal district

court that it “filed this action in federal district court to

preserve its choice of a federal forum to resolve its claims.”

The United States noted that it “concurrently filed a similar

action in California state court in Sacramento County,

asserting claims under CEQA (but not the Intergovernmental

Immunity doctrine).”

Between December 2018 and April 2019, parties other

than the United States filed eleven additional suits in

California state court asserting CEQA violations based on

UNITED STATES V. STATE WATER RESOURCES CONTROL BD. 7

the Amended Plan. On May 8, 2019, a California state judge

coordinated eleven of the cases, but did not coordinate the

United States’ case, as the United States had previously

moved for a stay in its state court case pending the resolution

of its federal case. On May 24, 2019, the Board asked that

the United States’ case in state court also be coordinated. As

of the date of the district court’s decision in this case, that

state court motion was still pending. 2

The Board asked the district court to abstain from

hearing the case or stay the case pursuant to Colorado River.

The district court denied abstention under a number of

doctrines, including Railroad Commission of Texas v.

Pullman Company, 312 U.S. 496 (1941). See United States

v. State Water Res. Control Bd., 418 F. Supp. 3d 496, 504–

15 (E.D. Cal. 2019).

Next, the district court considered whether it could issue

a Colorado River stay. The district court noted that we have

“not addressed the propriety of issuing a partial Colorado

River stay, but district courts in the Ninth Circuit [have]

found partial stays permissible, ‘where some, but not all, of

a federal plaintiff’s claims are pending in a parallel state

action.’” Id. at 516 (quoting Krieger v. Atheros Comm’cs,

Inc., 776 F. Supp. 2d 1053, 1060–61 (N.D. Cal. 2011)).

Based on this precedent from other district courts, the district

court examined the CEQA and intergovernmental immunity

claims separately for the purposes of conducting a Colorado

2

The Board asks that we take judicial notice of subsequent events

in state court. See Dkt. No. 26. When we decide a Colorado River

appeal, we “examine the district court’s decision based on the state of

affairs at the time of that decision.” R.R. St. & Co. Inc. v. Transp. Ins.

Co., 656 F.3d 966, 974 (9th Cir. 2011). “[W]e consider only ‘the then-

available facts.’” Id. (citation omitted). Adhering to our precedent

regarding the scope of review, we deny the Board’s motion.

8 UNITED STATES V. STATE WATER RESOURCES CONTROL BD.

River analysis. The district court decided that the Colorado

River factors weighed against staying the intergovernmental

immunity claim, but that those factors weighed in favor of

staying the CEQA claims. See id. at 516–19. The district

court ultimately stayed the CEQA claims “until further

notice,” but allowed the intergovernmental immunity claim

to proceed, subject to further briefing on ripeness and

standing. Id. at 519–24.

The United States appealed the Colorado River stay.

The Board did not cross-appeal the district court’s decision

to deny abstention pursuant to Pullman.

II. JURISDICTION AND STANDARD OF REVIEW

Ordinarily, we have “jurisdiction to review a Colorado

River stay order pursuant to 28 U.S.C. § 1291.” Seneca Ins.

Co., Inc. v. Strange Land, Inc., 862 F.3d 835, 840 (9th Cir.

2017) (citing Moses H. Cone Mem’l Hosp. v. Mercury

Constr. Corp., 460 U.S. 1, 9–13 (1983)). In Moses H. Cone,

the Supreme Court determined that a Colorado River stay

was a final appealable order pursuant to § 1291 because “a

stay of the federal suit pending resolution of the state suit

meant that there would be no further litigation in the federal

forum.” Moses H. Cone, 460 U.S. at 10. The question of

whether a partial Colorado River stay is a final order

pursuant to § 1291 might be a distinct question. With a

partial stay, there is still “further litigation in the federal

forum.” Id. The federal district court would still have to

adjudicate the non-stayed claims. Thus, it is unclear whether

we would have jurisdiction pursuant to the normal finality

rules of § 1291.

However, the Supreme Court alternatively held that even

if the district court “order were not final for appealability

purposes, it would nevertheless be appealable within the

UNITED STATES V. STATE WATER RESOURCES CONTROL BD. 9

exception to the finality rule under Cohen v. Beneficial Loan

Corp., 337 U.S. 541 (1949).” Moses H. Cone, 460 U.S.

at 11. Pursuant to Cohen, “the order must conclusively

determine the disputed question, resolve an important issue

completely separate from the merits of the action, and be

effectively unreviewable on appeal from a final judgment.”

Id. at 11–12 (citation and internal quotation marks omitted).

As in Moses H. Cone, the district court order in this case

meets those three criteria. First, the district court’s order

“conclusively determine[d] the . . . question” of whether a

Colorado River stay was appropriate. Id. at 11. Second, the

Colorado River stay “issue [is] completely separate from the

merits of the action.” Id. Finally, the “order would be

entirely unreviewable if not appealed now” because “[o]nce

the state court decide[s] the” CEQA claims, “the federal

court would be bound to honor that determination as res

judicata.” Id. at 12. Therefore, we have jurisdiction over

this appeal.

“Whether the facts of a particular case conform to the

requirements for a Colorado River stay or dismissal is a

question of law which we review de novo.” Seneca Ins.,

862 F.3d at 840 (citation and internal quotation marks

omitted). “If we conclude that the Colorado River

requirements have been met, we then review for abuse of

discretion the district court’s decision to stay or dismiss the

action.” Id. “[T]his standard is stricter than the flexible

abuse of discretion standard used in other areas of law

because discretion must be exercised within the narrow and

specific limits prescribed by the [Colorado River] doctrine.”

R.R. St. & Co. Inc. v. Transp. Ins. Co., 656 F.3d 966, 973

(9th Cir. 2011) (citation and internal quotation marks

omitted).

10 UNITED STATES V. STATE WATER RESOURCES CONTROL BD.

III. Colorado River Stay

Colorado River is not an abstention doctrine, though it

shares the qualities of one. See Nakash v. Marciano,

882 F.2d 1411, 1415 n.5 (9th Cir. 1989). Pursuant to

Colorado River, in rare cases, “there are principles unrelated

to considerations of proper constitutional adjudication and

regard for federal-state relations which govern in situations

involving the contemporaneous exercise of concurrent

jurisdictions, either by federal courts or by state and federal

courts.” Colo. River, 424 U.S. at 817. In the interest of

“[w]ise judicial administration, giving regard to

conservation of judicial resources and comprehensive

disposition of litigation,” a district court can dismiss or stay 3

“a federal suit due to the presence of a concurrent state

proceeding.” Id. at 817–18. Because of “the virtually

unflagging obligation of the federal courts to exercise the

jurisdiction given [to] them,” id. at 817, “[o]nly the clearest

of justifications will warrant [a] dismissal” or stay, id. at 819.

The instances in which a court can stay an action pursuant to

Colorado River “are considerably more limited than the

circumstances appropriate for abstention. The former

circumstances, though exceptional, do nevertheless exist.”

Id. at 818.

3

Although Colorado River involved dismissal of a federal suit, see

Colo. River, 424 U.S. at 821, we “generally require a stay rather than a

dismissal,” R.R. Street, 656 F.3d at 978 n.8. That is because “[a] stay

‘ensures that the federal forum will remain open if for some unexpected

reason the state forum . . . turn[s] out to be inadequate.’” Montanore

Minerals Corp. v. Bakie, 867 F.3d 1160, 1166 (9th Cir. 2017), as

amended on denial of reh’g and reh’g en banc (Oct. 18, 2017) (quoting

Attwood v. Mendocino Coast Dist. Hosp., 886 F.2d 241, 243 (9th Cir

1989)).

UNITED STATES V. STATE WATER RESOURCES CONTROL BD. 11

The court’s “task in [such] cases . . . is not to find some

substantial reason for the exercise of federal jurisdiction by

the district court; rather, the task is to ascertain whether there

exist ‘exceptional’ circumstances, the ‘clearest of

justifications,’ that can suffice under Colorado River to

justify the surrender of that jurisdiction.” Moses H. Cone,

460 U.S. at 25. “If there is any substantial doubt as to”

whether “the parallel state-court litigation will be an

adequate vehicle for the complete and prompt resolution of

the issues between the parties . . . it would be a serious abuse

of discretion to grant the stay or dismissal at all.” Id. at 28.

Building on Supreme Court precedent, we have listed

eight factors to be considered in determining whether a

Colorado River stay is appropriate:

(1) which court first assumed jurisdiction

over any property at stake; (2) the

inconvenience of the federal forum; (3) the

desire to avoid piecemeal litigation; (4) the

order in which the forums obtained

jurisdiction; (5) whether federal law or state

law provides the rule of decision on the

merits; (6) whether the state court

proceedings can adequately protect the rights

of the federal litigants; (7) the desire to avoid

forum shopping; and (8) whether the state

court proceedings will resolve all issues

before the federal court.

R.R. St., 656 F.3d at 978–79 (citation omitted).

The factors are not a “mechanical checklist.” Moses H.

Cone, 460 U.S. at 16. We apply the factors “in a pragmatic,

flexible manner with a view to the realities of the case at

hand.” Id. at 21. “The weight to be given to any one factor

12 UNITED STATES V. STATE WATER RESOURCES CONTROL BD.

may vary greatly from case to case, depending on the

particular setting of the case.” Id. at 16. “Some factors may

not apply in some cases,” Montanore Minerals Corp. v.

Bakie, 867 F.3d 1160, 1166 (9th Cir. 2017), as amended on

denial of reh’g and reh’g en banc (Oct. 18, 2017), and, in

some cases, a single factor may decide whether a stay is

permissible, see, e.g., Intel Corp. v. Advanced Micro

Devices, Inc., 12 F.3d 908, 913 (9th Cir. 1993); Moses H.

Cone, 460 U.S. at 19 (“[T]he consideration that was

paramount in Colorado River itself [was] the danger of

piecemeal litigation.”).

In this particular case, the eighth factor—“whether the

state court proceedings will resolve all issues before the

federal court,” R.R. St., 656 F.3d at 979—controls the

outcome. This factor asks about the similarity between the

state and federal suits. “Though exact parallelism . . . is not

required, substantial similarity of claims is necessary before

abstention is available.” Seneca Ins., 862 F.3d at 845

(citation and internal quotation marks omitted). This factor

“is more relevant when it counsels against abstention,

because while . . . insufficient parallelism may preclude

abstention, the alternatives never compel abstention.” Id.

“[T]he existence of a substantial doubt as to whether the state

proceedings will resolve the federal action precludes the

granting of a stay.” Intel Corp., 12 F.3d at 913. Such doubt

is “a significant countervailing consideration that” can be

“dispositive.” Id. Additionally, this factor should be

addressed “as a preliminary matter.” R.R. St., 656 F.3d at

979 n.9 (citation omitted).

Neither we, as the district court noted, nor it appears any

other circuit court has considered the propriety of a partial

Colorado River stay. See State Water Res. Control Bd.,

418 F. Supp. 3d at 516. However, multiple district courts

UNITED STATES V. STATE WATER RESOURCES CONTROL BD. 13

within the Ninth Circuit have issued partial Colorado River

stays. See id. (citing intra-circuit district court cases); see

also Harris v. TD Ameritrade, Inc., No. 17-CV-6033-LTS-

BCM, 2018 WL 1157802, at *6 n.6 (S.D.N.Y. Feb. 14,

2018) (citing out-of-circuit district court cases).

Both the Supreme Court and our court have suggested

that partial stays are inappropriate. In Colorado River itself,

the Supreme Court stated that a court should “giv[e] regard

to conservation of judicial resources and comprehensive

disposition of litigation.” Colo. River, 424 U.S. at 817

(emphasis added). Similarly, in Moses H. Cone, which

clarified the doctrine, the Court noted that “the decision to

invoke Colorado River necessarily contemplates that the

federal court will have nothing further to do in resolving any

substantive part of the case, whether it stays or dismisses.”

Moses H. Cone, 460 U.S. at 28 (emphasis added).

We have repeatedly emphasized that a Colorado River

stay is inappropriate when the state court proceedings will

not resolve the entire case before the federal court. In Intel

Corporation, we noted the Supreme Court’s declaration that

“a district court may enter a Colorado River stay order only

if it has ‘full confidence’ that the parallel state proceeding

will end the litigation.” Intel Corp., 12 F.3d at 913 (quoting

Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S.

271, 277 (1988)) (emphasis added). We further described

how “the requirement of ‘parallel’ state court proceedings

implies that those proceedings are sufficiently similar to the

federal proceedings to provide relief for all of the parties’

claims.” Id. at 913 n.4 (emphasis added). See also id. at 913

n.7 (denying a Colorado River stay because “we find that

there exists a substantial doubt as to whether the state court

proceedings will resolve all of the disputed issues in this

case”).

14 UNITED STATES V. STATE WATER RESOURCES CONTROL BD.

In Holder v. Holder, 305 F.3d 854 (9th Cir. 2002), we

vacated a district court’s decision issuing a Colorado River

stay because “the proceedings [we]re not ‘parallel,’ as

required for a stay under Colorado River, nor w[ould] an

adjudication . . . on the merits resolve all necessary issues.”

Id. at 868 (citations omitted) (emphasis added). We have

repeated similar language in other cases. See Montanore

Minerals, 867 F.3d at 1170; R.R. St., 656 F.3d at 983; Smith

v. Cent. Ariz. Water Conservation Dist., 418 F.3d 1028, 1033

(9th Cir. 2005).

Here, the United States’ suits in state and federal court

contain the same three CEQA causes of action. These claims

mainly relate to how the Board analyzed various items of

evidence in arriving at its conclusions in the Amended Plan,

and how the Board described details about the Amended

Plan, in light of this analysis. For example, the United States

alleges that “[t]he Board fails to adequately analyze the

impacts of the reservoir controls it imposes on the New

Melones Project by including them as modeling assumptions

in its impacts analysis.” The United States makes the exact

same allegation in its state complaint.

The amended federal complaint additionally contains the

intergovernmental immunity cause of action. The United

States claims that, “[b]y imposing on [the Bureau of]

Reclamation, in its operation of a federal reclamation project

authorized by Congress, a more stringent salinity

requirement . . . , the Board Amendments discriminate

against the Federal Government.” The United States alleges

that such purported discrimination “violates the Supremacy

Clause of the United States Constitution.”

We recognize that the situation in Holder is not exactly

analogous to the situation in this case. Holder involved a

divorce and custody dispute. Holder, 305 F.3d at 861. The

UNITED STATES V. STATE WATER RESOURCES CONTROL BD. 15

husband initiated divorce and custody proceedings in state

court. Id. After the husband and wife came to a mediated

agreement on child custody in state court, the husband filed

a federal suit, asserting that the wife violated the Hague

Convention on the Civil Aspects of International Child

Abduction (Hague Convention). Id. at 862. The federal

district court stayed the case while the state court

proceedings were on appeal. Id.

We held that the Hague Convention question was distinct

from the divorce and custody proceedings in state court. Id.

at 868–69. We additionally noted that: (1) the husband

chose to file his Hague Convention claim in federal court,

see id. at 869; and (2) the state court likely did not have

jurisdiction over the Hague Convention claim anyway, see

id. at 869 n.5. For these reasons, we vacated the district

court’s stay. Id. at 873. Similarly, in Intel Corporation, we

reversed a Colorado River stay where there were no

overlapping claims. See Intel Corp., 12 F.3d at 911–13.

Thus, in both Holder and Intel Corporation, the state and

federal suits had distinct claims.

In contrast, here, three of the four claims in the federal

suit are identical to the claims in the state action. In such a

situation, district courts within our circuit have issued partial

stays. For example, in In re Countrywide Financial

Corporation Derivative Litigation, 542 F. Supp. 2d 1160

(C.D. Cal. 2008), both the state and federal cases contained

substantially similar causes of action involving breach of

fiduciary duties. Id. at 1170. In the federal case, the

plaintiffs additionally pleaded federal securities violations.

Id. at 1167. The district court overruled the plaintiffs’

objection that a partial Colorado River stay was not

permissible. Though citing our language in Holder and Intel

Corporation, the district court declared that the plaintiffs

16 UNITED STATES V. STATE WATER RESOURCES CONTROL BD.

were “excerpting from [these] cases out of context” and that

“[t]hese cases say nothing about the staying of a claim that

can be fully resolved in state court.” Id. at 1171.

Additionally, the Countrywide court relied on the fact that

the federal courts have exclusive jurisdiction over the federal

securities claims that distinguished the plaintiffs’ federal suit

from the state suit. See id. at 1172.

Similarly, in Krieger, upon which the district court in

this case also relied, a district court granted a partial

Colorado River stay. See Krieger, 776 F. Supp. 2d at 1060–

64. Like in Countrywide, the Krieger court stayed state law

claims that overlapped with litigation in Delaware state

court. Id. However, the Krieger court permitted the federal

securities claim to proceed, at least in part because the

Delaware state court had no jurisdiction over the federal law

claim. Id. at 1058–60.

The district courts in Countrywide and Krieger did not

fully consider our repeated admonitions that a Colorado

River stay should be implemented only when the state

proceeding will resolve “all of the parties’ claims.” Intel

Corp., 12 F.3d at 915. We recognize the different posture of

Holder and Intel as compared to Countrywide, Krieger, and

the instant case. However, our continued reliance on that

broad language about the state court proceeding resolving

the entirety of the litigation before the federal court—

language from multiple precedential opinions, see, e.g.,

Colo. River, 424 U.S. at 817; R.R. St., 656 F.3d at 983; Intel

UNITED STATES V. STATE WATER RESOURCES CONTROL BD. 17

Corp., 12 F.3d at 913—means that a partial Colorado River

stay generally is not permissible. 4

A partial stay does not further the basic purpose of the

Colorado River doctrine. The doctrine exists for the

“conservation of judicial resources.” Colo. River, 424 U.S.

at 817 (citation and internal quotation marks omitted). “We

require a parallel suit to ensure ‘comprehensive disposition

of litigation.’ Otherwise, a stay or dismissal will neither

conserve judicial resources nor prevent duplicative

litigation.” R.R. St., 656 F.3d at 982 (quoting Colo. River,

424 U.S. at 817). A partial stay might conserve some

resources, in that the district court would not have to

adjudicate some of the issues. However, even with a partial

stay, a district court would have to resolve a case. The

district court still has to decide procedural and administrative

issues. In contrast, when a full stay is issued pursuant to

Colorado River, all activity in a case ceases. The district

court has nothing to do unless and until that stay is lifted.

The Krieger court did call to attention one concern with

not allowing partial stays. That court noted that if a party

adds an additional claim to its federal suit, the party could

avoid a Colorado River stay. The Krieger court did not want

to “encourage plaintiffs to add [new federal] claims solely

for the purpose of securing a separate federal forum and

avoiding consolidation with previously filed state court

actions.” Krieger, 776 F. Supp. 2d at 1060. In other words,

a party could get around Colorado River and engage in

forum shopping simply by adding a new and different claim

to the federal suit. This concern is heightened when the party

4

If a district court dismisses the additional claim on another basis,

and only claims that overlap with the state proceeding remain, a

Colorado River stay could still issue.

18 UNITED STATES V. STATE WATER RESOURCES CONTROL BD.

could have raised that additional claim in the state litigation,

i.e., where there is concurrent jurisdiction over the claim

added to the federal suit.

Our precedent takes this potential for gamesmanship into

account. Indeed, the seventh factor in our Colorado River

test is “the desire to avoid forum shopping.” R.R. St.,

656 F.3d at 979. “In the Colorado River context, [we have]

held that forum shopping weighs in favor of a stay when the

party opposing the stay seeks to avoid adverse rulings made

by the state court or to gain a tactical advantage from the

application of federal court rules.” Travelers Indem. Co. v.

Madonna, 914 F.2d 1364, 1371 (9th Cir. 1990). “If [the

party] pursued suit in a new forum after facing setbacks in

the original proceeding, this factor may weigh in favor of a

stay.” Montanore Minerals, 867 F.3d at 1169 (citation and

internal quotation marks omitted). However, “[i]t typically

does not constitute forum shopping where a party acted

within his rights in filing a suit in the forum of his choice.”

Seneca Ins., 862 F.3d at 846 (internal quotation marks and

citation omitted); see also Holder, 305 F.3d at 869 (deeming

it important that granting a stay “would deprive [the

husband] of his choice of forum” because the husband chose

to file his Hague Convention claim in federal court).

The court also considers a lapse in time in determining

whether a party has engaged in forum shopping. For

example, when a party waits three-and-a-half years, see

Nakash, 882 F.2d at 1417, or two-and-a-half years, see Am.

Int’l Underwriters, (Philippines), Inc. v. Cont’l Ins. Co.,

843 F.2d 1253, 1259 (9th Cir. 1988), after initially filing in

state court, that can weigh in favor of a stay.

There is a strong presumption that the presence of an

additional claim in the federal suit means that Colorado

River is inapplicable. However, because of the concern over

UNITED STATES V. STATE WATER RESOURCES CONTROL BD. 19

forum shopping, there might be rare circumstances in which

a district court could properly issue a partial Colorado River

stay. If there is clear-cut evidence of forum shopping—

meaning the party filing the federal suit clearly added a new

claim to avoid state court adjudication—then the district

court may analyze the claims separately and decide if a

partial stay is appropriate. When there is concurrent federal

and state court jurisdiction over the additional claim (as

opposed to exclusive federal jurisdiction), there is stronger

evidence of forum shopping, as the plaintiff in the federal

case could have pursued that additional claim in state court. 5

The fact that the United States did not plead its

intergovernmental immunity claim in its initial federal

complaint gives us some pause. The United States filed its

initial complaints on March 28, 2019 in state and federal

court. The United States amended its federal complaint—

adding the intergovernmental immunity claim—on June 19,

5

It might also be appropriate to stay a federal suit with a claim not

included in the state suit where that additional claim replicates the state

claim, but under a federal cause of action. For example, if state and

federal law have overlapping negligence statutes with identical

standards, those state and federal claims would be functionally the same,

i.e., would have “substantial similarity,” Seneca Ins., 862 F.3d at 845,

even if technically pleaded under separate causes of action. We “avoid

engaging in different analyses for related claims in a single action,

because such an approach ‘would increase, not decrease, the likelihood

of piecemeal adjudication or duplicative litigation,’ undermining the

Colorado River doctrine.” Montanore Minerals, 867 F.3d at 1171

(citation omitted). Thus, when the additional claim is highly related to

the overlapping claims, and if the federal plaintiff’s federal suit meets

the other requirements for a Colorado River stay, adjudication of the

state suit would resolve all of the issues in the federal case. See R.R. St.,

656 F.3d at 983. That, however, is not the case here where the

intergovernmental immunity constitutional law claim is not functionally

the same as the CEQA administrative law claims.

20 UNITED STATES V. STATE WATER RESOURCES CONTROL BD.

2019, after the Board filed a motion to dismiss. See State

Water Res. Control Bd., 418 F. Supp. 3d at 503.

Additionally, the United States likely could have brought its

intergovernmental immunity claim in state court, despite the

fact that it arises under the federal Constitution. See Yellow

Freight Sys., Inc. v. Donnelly, 494 U.S. 820, 823 (1990)

(noting that “state courts have inherent authority, and are

thus presumptively competent, to adjudicate claims arising

under the laws of the United States,” unless Congress

“affirmatively divest[s] state courts of their presumptively

concurrent jurisdiction” over federal law claims).

Even with these concerns in mind, however, the United

States’ actions do not constitute the type of forum shopping

necessary to justify a Colorado River stay pursuant to our

precedent. The United States filed its state and federal suits

on the same day. The United States informed both courts of

the other suit. From the beginning, the United States

apprised the California state court of its “preferred choice of

a federal forum to resolve its claims,” including the state law

CEQA claims. We must respect the United States’ choice to

file suit in federal court. See Holder, 305 F.3d at 869.

The United States does not appear to be seeking refuge

in federal court to avoid an impending loss in state court.

Unlike in Nakash, where the federal plaintiff “ha[d] become

dissatisfied with the state court,” Nakash, 882 F.2d at 1417,

the United States has nothing with which to be dissatisfied.

At the time of the district court’s decision, there were no

adverse rulings against the United States in state court. See

State Water Res. Control Bd., 418 F. Supp. 3d at 503.

Additionally, while there was some delay before the United

States added its intergovernmental immunity claim to its

federal suit, that delay of less than three months is far shorter

than the years-long delays in other cases where we affirmed

UNITED STATES V. STATE WATER RESOURCES CONTROL BD. 21

Colorado River stays. See Nakash, 882 F.2d at 1417; Am.

Int’l Underwriters, 843 F.2d at 1259. Thus, any evidence of

forum shopping by the United States does not overcome the

presumption that a partial stay is inappropriate. This case is

not one of those rare circumstances where forum shopping

outweighs a district court’s obligation to “exercise the

jurisdiction given” to it. Colo. River, 424 U.S. at 817.

“Parallelism is necessary but not sufficient to counsel in

favor of” a Colorado River stay. Seneca Ins., 862 F.3d

at 845. That necessary condition is absent here. Without a

showing of forum shopping on the part of the United States,

the district court could not separate the state and federal law

claims for its Colorado River analysis. That the California

Superior Court might also adjudicate some of the United

States’ claims is not reason enough to stay those particular

claims in federal court.

Additionally, the eighth factor is “dispositive” in

concluding that a stay of the entire case is not appropriate.

Intel Corp., 12 F.3d at 913. The state proceeding cannot

resolve the United States’ intergovernmental immunity

claim because the United States has not raised such a claim

in that forum. The district court could not have had “full

confidence that the parallel state proceeding will end the

litigation.” Id. (citation and internal quotation marks

omitted). “Since we find that there exists a substantial doubt

as to whether the state court proceedings will resolve all of

the disputed issues in this case, it is unnecessary for us to

weigh the other factors included in the Colorado River

analysis.” Id. at 913 n.7. The district court abused its

discretion when it granted a Colorado River stay.

The United States presented claims to the federal district

court over which that court has jurisdiction. See 28 U.S.C.

§ 1345. “Generally, as between state and federal courts, the

22 UNITED STATES V. STATE WATER RESOURCES CONTROL BD.

rule is that ‘the pendency of an action in the state court is no

bar to proceedings concerning the same matter in the Federal

court having jurisdiction . . . .’” Colo. River, 424 U.S. at 817

(quoting McClellan v. Carland, 217 U.S. 268, 282 (1910)).

Federal courts have a “virtually unflagging obligation . . . to

exercise the jurisdiction given them.” Id. Colorado River

exempts federal courts from this obligation in “exceptional”

circumstances. Id. at 818. This is not such a circumstance.

The district court must allow the United States’ suit to

proceed with its full panoply of claims. 6

IV. Pullman Abstention

The Board argues that “Pullman abstention provides an

alternative ground to uphold the district court’s stay.” “So

long as the appellee does not seek to ‘enlarge’ the rights it

obtained under the district court judgment, or to ‘lessen’ the

rights the appellant obtained under that judgment, [the]

appellee need not cross-appeal in order to present arguments

supporting the judgment.” Rivero v. City & Cnty. of San

Francisco, 316 F.3d 857, 862 (9th Cir. 2002) (citation

omitted). The appellee may ask this court to affirm based on

any evidence in the record. See Jennings v. Stephens,

574 U.S. 271, 276 (2015).

Pursuant to the Pullman abstention doctrine, “federal

courts have the power to refrain from hearing cases . . . in

which the resolution of a federal constitutional question

6

Assuming that the CEQA litigation continues in state court, we

remind the parties and the district court that “whichever court were to

first reach a judgment on the merits, that judgment would most likely

have conclusive effect on the other court.” Madonna, 914 F.2d at 1369;

see also Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 54 U.S. 280,

293 (2005) (“Disposition of the federal action, once the state-court

adjudication is complete, would be governed by preclusion law.”).

UNITED STATES V. STATE WATER RESOURCES CONTROL BD. 23

might be obviated if the state courts were given the

opportunity to interpret ambiguous state law.” Quackenbush

v. Allstate Ins. Co., 517 U.S. 706, 716–17 (1996) (citing

Pullman, 312 U.S. 496). Thus, Pullman requires that the

federal court abstain from deciding the federal question

while it awaits the state court’s decision on the state law

issues. See, e.g., Columbia Basin Apartment Ass’n v. City of

Pasco, 268 F.3d 791, 806–07 (9th Cir. 2001) (“Because the

relief sought by the Appellants . . . may be available under

Washington law, we conclude that the district court should

not have decided the merits of the federal constitutional

claims presented in this complaint.”).

The district court did not stay the federal constitutional

claim here. The district court only “stay[ed] the CEQA

claims in this case.” State Water Res. Control Bd., 418 F.

Supp. 3d at 519 (footnote omitted). The district court

additionally declined to abstain pursuant to Pullman. See id.

at 512–15.

The Board incorrectly claims that “the relief would be

similar: a stay of the case while the state court resolves the

CEQA claims, followed by a return to federal court to decide

the constitutional claim, if necessary.” If the district court

had abstained pursuant to Pullman, it would not have

allowed the intergovernmental immunity claim to proceed.

The Board, which did not cross-appeal, cannot ask this court

to affirm on Pullman grounds because we would necessarily

have to stay the intergovernmental immunity claim. Such a

ruling would “‘enlarge’ the rights [the Board] obtained under

the district court judgment.” Rivero, 316 F.3d at 862

(citation omitted). Thus, we cannot affirm the district court

on the basis of Pullman abstention.

24 UNITED STATES V. STATE WATER RESOURCES CONTROL BD.

V. CONCLUSION

We hold that the district court abused its discretion in

granting a partial Colorado River stay. Partial stays pursuant

to Colorado River are permissible only in very limited

circumstances, namely when there is strong evidence of

forum shopping. With little evidence of forum shopping

here, the district court erred. On remand, the district court

should allow all of the United States’ claims to proceed,

subject to regular issues of justiciability.

REVERSED AND REMANDED.