Petition for Writ of Certiorari — Jim Justice, Governor of West Virginia, et al., Petitioners v. Jonathan R., Minor, By Next Friend Sarah Dixon, et al.

Supreme Court briefSep 12, 2022

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Text

No. ______

In the Supreme Court of the United States

JIM JUSTICE, ET AL.,

Petitioners,

V.

JONATHAN R., MINOR, BY NEXT

FRIEND SARAH DIXON, ET AL.,

Respondents.

——————

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

PATRICK MORRISEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

lindsay.s.see@wvago.gov

(304) 558-2021

LINDSAY S. SEE

Solicitor General

Counsel of Record

MICHAEL R. WILLIAMS

Senior Deputy Solicitor

General

GRANT A. NEWMAN*

Special Counsel

MAX A. SCHREIBER**

Fellow

Counsel for Petitioners

QUESTIONS PRESENTED

West Virginia courts continuously oversee the

placement and well-being of the State’s foster children.

These courts are the key decision-makers when it comes

to foster children’s treatment and care, following strict

criteria written into state law. So when suit was brought

against West Virginia state officials and a state agency for

purportedly mishandling that treatment and care, the suit

necessarily implicated related state-court proceedings.

The district court recognized as much and thus abstained.

In contrast, the Fourth Circuit concluded that the suit

must remain in federal court. It believed that a state

foster-care proceeding is not the sort of case that can ever

trigger abstention and that the plaintiffs might struggle to

obtain class-wide relief in state court. Now, the plaintiffs

can pursue systemic relief in federal court that could both

fundamentally upset the ways West Virginia courts

administer the State’s child welfare laws and indefinitely

require the federal court to superintend the State’s entire

child welfare system.

The questions presented are:

1. Must federal courts abstain from interfering with

state-court child welfare proceedings under Younger

v. Harris, 401 U.S. 37 (1971)?

2. May federal courts refuse to abstain because plaintiffs

seek class-wide relief?

II

PARTIES TO THE PROCEEDING

Petitioners who were defendants in the district court

and defendants-appellees in the court of appeals are Jim

Justice, in his official capacity as the Governor of West

Virginia; Bill Crouch, in his official capacity as the Cabinet

Secretary of the West Virginia Department of Health and

Human Resources; Jeremiah Samples, in his official

capacity as the Deputy Secretary of the Department of

Health and Human Resources; Linda Watts, in her official

capacity as the Commissioner of the Bureau for Children

and Families; and the West Virginia Department of

Health and Human Resources.

Respondents who were plaintiffs in the district court

and plaintiffs-appellants in the court of appeals are

Jonathan R., minor, by Next Friend, Sarah Dixon;

Anastasia M., minor, by Next Friend, Cheryl Ord; Serena

S., minor, by Next Friend, Sarah Dixon; Theo S., minor,

by Next Friend, L. Scott Briscoe; Garrett M., minor, by

Next Friend, L. Scott Briscoe; Gretchen C., minor, by

Next Friend, Cathy L. Greiner; Dennis R., minor, by Next

Friend, Debbie Stone; Chris K., Calvin K., and Carolina

K., minors, by Next Friend, Katherine Huffman; Karter

W., minor, by Next Friend, L. Scott Briscoe; Ace L.,

minor, by Next Friend, Isabelle Santillion; and

individually and on behalf of all others similarly situated.

III

STATEMENT OF RELATED PROCEEDINGS

This case arises from the following proceedings:

Jonathan R., et al. v. Jim Justice, et al., No. 3:19-cv00710 (S.D. W. Va.) (memorandum opinion and order

granting defendants’ motions to dismiss issued July 28,

2021);

Jonathan R., minor, by next friend Sarah Dixon, et al.,

v. Jim Justice, et al., No. 21-1868 (4th Cir.) (opinion

affirming in part, reversing in part, and remanding issued

July 20, 2022; motion to stay mandate denied August 15,

2022; mandate issued August 23, 2022).

There are no other directly related proceedings.

IV

TABLE OF CONTENTS

Page

Questions Presented ............................................................ I

Introduction .......................................................................... 1

Opinions Below ..................................................................... 3

Jurisdiction............................................................................ 4

Statutory Provisions Involved ............................................ 4

Statement .............................................................................. 4

Reasons For Granting The Petition ................................. 14

I.

The Court Should Resolve Whether

Younger Abstention Applies To State Child

Welfare Proceedings ................................................... 14

The decision below intensifies an open and

acknowledged circuit split................................... 15

The split implicates profoundly important

matters of federalism .......................................... 19

II. The Court Should Resolve Whether Federal

Courts May Refuse To Abstain Under Younger

Because Plaintiffs Seek Class-Wide Relief .............. 23

The decision below deepens another

circuit split ............................................................ 24

The split raises serious questions about

class actions and the role of federal courts

in overseeing state institutions........................... 26

III. The Decision Below Is Wrong—But The Right

Vehicle For Review ..................................................... 30

Conclusion ........................................................................... 33

V

TABLE OF APPENDICES

Appendix A — Court of appeals opinion

(July 20, 2022) .......................................... 1a

Appendix B — District court opinion

(July 28, 2021) ........................................ 48a

Appendix C — Relevant statutes

W. VA. CODE § 49-4-102 ........................ 82a

W. VA. CODE § 49-4-108 ........................ 83a

W. VA. CODE § 49-4-110 ........................ 85a

W. VA. CODE § 49-4-113 ........................ 87a

W. VA. CODE § 49-4-116 ........................ 88a

W. VA. CODE § 49-4-203 ........................ 90a

W. VA. CODE § 49-4-303 ........................ 91a

W. VA. CODE § 49-4-404 ........................ 93a

W. VA. CODE § 49-4-405 ........................ 95a

W. VA. CODE § 49-4-601 ........................ 98a

W. VA. CODE § 49-4-602 ...................... 104a

W. VA. CODE § 49-4-604 ...................... 109a

W. VA. CODE § 49-4-606 ...................... 119a

W. VA. CODE § 49-4-608 ...................... 121a

W. VA. CODE § 49-4-610 ...................... 126a

VI

TABLE OF AUTHORITIES

Page(s)

Cases

31 Foster Children v. Bush,

329 F.3d 1255 (11th Cir. 2003) ............................... 17, 24

A.A. v. Buckner,

No. 2:21-cv-367

(M.D. Ala. May 20, 2021) ............................................. 29

Alden v. Maine,

527 U.S. 706 (1999) ....................................................... 19

Ankenbrandt v. Richards,

504 U.S. 689 (1992) ....................................................... 21

Ashley W. v. Holcomb,

34 F.4th 588 (7th Cir. 2022) ......................................... 16

Baffert v. Cal. Horse Racing Bd.,

332 F.3d 613 (9th Cir. 2003) ......................................... 14

Bice v. Louisiana Public Defense Board,

677 F.3d 712 (5th Cir. 2012) ......................................... 26

Boyd v. Mich. Sup. Ct.,

No. 95-1180,

1995 WL 538693 (6th Cir. Sept. 8, 1995) .................... 25

Brown v. Plata,

563 U.S. 493 (2011) ................................................. 27, 30

Brunken v. Lance,

807 F.2d 1325 (7th Cir. 1986) ....................................... 16

Bryan C. v. Lambrew,

No. 1:21-cv-00005 (D. Me. Jan. 6, 2021) ..................... 29

VII

TABLE OF AUTHORITIES

(continued)

Page(s)

Carson P. ex rel. Foreman v. Heineman,

240 F.R.D. 456 (D. Neb. 2007)..................................... 25

Courthouse News Serv. v. Planet,

750 F.3d 776 (9th Cir. 2014) ......................................... 29

Deposit Guar. Nat’l Bank v. Roper,

445 U.S. 326 (1980) ....................................................... 27

DeShaney v. Winnebago Cnty. Dep’t of

Soc. Servs.,

489 U.S. 189 (1989) ....................................................... 31

DeSpain v. Johnston,

731 F.2d 1171 (5th Cir. 1984) ....................................... 17

Doe v. Univ. of Ky.,

860 F.3d 365 (6th Cir. 2017) ......................................... 31

Elisa W. v. New York,

No. 1:15-cv-05273

(S.D.N.Y. July 8, 2015) ................................................. 29

E.T. v. Cantil-Sakauye,

682 F.3d 1121 (9th Cir. 2012) ....................................... 16

Ex parte Burrus,

136 U.S. 586 (1890) ....................................................... 21

Falco v. Just. of the Matrimonial Parts of

Sup. Ct. of Suffolk Cnty.,

805 F.3d 425 (2d Cir. 2015) .......................................... 32

G.K. v. Sununu,

No. 1:21-cv-00004 (D.N.H. Jan. 5, 2021) .................... 29

VIII

TABLE OF AUTHORITIES

(continued)

Page(s)

H.C. ex rel. Gordon v. Koppel,

203 F.3d 610 (9th Cir. 2000) ......................................... 16

Hernandez v. Finley,

471 F. Supp. 516 (N.D. Ill. 1978) ................................. 26

Horne v. Flores,

557 U.S. 433 (2009) ....................................................... 29

Huffman v. Pursue, Ltd.,

420 U.S. 592 (1975) ............................................. 4, 20, 21

Huynh Thi Anh v. Levi,

586 F.2d 625 (6th Cir. 1978) ......................................... 17

In re B.C.,

755 S.E.2d 664 (W. Va. 2014) ......................................... 3

In re Betty J.W.,

371 S.E.2d 326 (W. Va. 1988) ....................................... 22

In re Carlita B.,

408 S.E.2d 365 (W. Va. 1991) ..................................... 6, 7

In re J.L.,

763 S.E.2d 654 (W. Va. 2014) ......................................... 7

J.B. ex rel. Hart v. Valdez,

186 F.3d 1280 (10th Cir. 1999) ..................................... 17

J.B. v. Woodard,

997 F.3d 714 (7th Cir. 2021) ......................................... 20

IX

TABLE OF AUTHORITIES

(continued)

Page(s)

Jeremiah M. v. Crumb,

No. 3:22-cv-00129

(D. Alaska May 19, 2022) ............................................. 29

Joseph A. ex rel. Corrine Wolfe v. Ingram,

275 F.3d 1253 (10th Cir. 2002) ......................... 17, 24, 28

Juidice v. Vail,

430 U.S. 327 (1977) ................................................... 4, 20

Kirschner v. Klemons,

225 F.3d 227 (2d Cir. 2000) .......................................... 25

LaShawn A. v. Kelly,

990 F.2d 1319 (D.C. Cir. 1993) ........................ 17, 18, 25

Lazaridis v. Wehmer,

591 F.3d 666 (3d Cir. 2010) .......................................... 16

L.H. v. Jamieson,

643 F.2d 1351 (9th Cir. 1981) ....................................... 18

Lowell v. Vermont Dep’t of Child. & Fams.,

835 F. App’x 637 (2d Cir. 2020) ................................... 16

Malachowski v. City of Keene,

787 F.2d 704 (1st Cir. 1986) ......................................... 17

M.D. v. Perry,

799 F. Supp. 2d 712 (S.D. Tex. 2011) .................... 25, 26

Middlesex Cnty. Ethics Comm. v. Garden

State Bar Ass’n,

457 U.S. 423 (1982) ......................................... 4, 5, 11, 16

Milchtein v. Chisholm,

880 F.3d 895 (7th Cir. 2018) ......................................... 16

X

TABLE OF AUTHORITIES

(continued)

Page(s)

Missouri v. Jenkins,

515 U.S. 70 (1995) ......................................................... 30

Moore v. Sims,

442 U.S. 415 (1979) ............... 1, 2, 4, 5, 6, 8, 9, 11, 13, 14,

18, 20, 21, 26

New Orleans Pub. Serv., Inc. v. Council of

City of New Orleans,

491 U.S. 350 (1989) ............................................... 4, 5, 16

Nicole K. v. Stigdon,

990 F.3d 534 (7th Cir. 2021) ......................................... 16

Oglala Sioux Tribe v. Fleming,

904 F.3d 603 (8th Cir. 2018) ......................................... 16

Ohio C.R. Comm’n v. Dayton Christian

Sch., Inc.,

477 U.S. 619 (1986) ......................................................... 4

Ohio ex rel. Popovici v. Agler,

280 U.S. 379 (1930) ....................................................... 21

O’Shea v. Littleton,

414 U.S. 488 (1974) .......................... 11, 13, 17, 28, 29, 31

Parker v. Turner,

626 F.2d 1 (6th Cir. 1980)............................................. 17

Pennzoil Co. v. Texaco Inc.,

481 U.S. 1 (1987) ........................................... 4, 23, 32, 33

Pompey v. Broward Cnty.,

95 F.3d 1543 (11th Cir. 1996) ....................................... 24

XI

TABLE OF AUTHORITIES

(continued)

Page(s)

Robinson v. Thomas,

855 F.3d 278 (4th Cir. 2017) ......................................... 21

Rose v. Rose,

481 U.S. 619 (1987) ....................................................... 21

Santosky v. Kramer,

455 U.S. 745 (1982) .................................................. 21-22

Shady Grove Orthopedic Assocs., P.A. v.

Allstate Ins. Co.,

559 U.S. 393 (2010) ....................................................... 27

Sprint Commc’ns, Inc. v. Jacobs,

571 U.S. 69 (2013) ............................ 1, 5, 6, 12, 16, 31, 32

State v. Allah Jamaal W.,

543 S.E.2d 282 (W. Va. 2000) ....................................... 10

State v. Chafin,

444 S.E.2d 62 (W. Va. 1994) ........................................... 8

State v. Dyer,

836 S.E.2d 472 (W. Va. 2019) ......................................... 8

State ex rel. Daniel M. v. DHHR,

516 S.E.2d 30 (W. Va. 1999) ........................................... 9

State ex rel. Silver v. Wilkes,

584 S.E.2d 548 (W. Va. 2003) ......................................... 8

State v. Michael M.,

504 S.E.2d 177 (W. Va. 1998) ......................................... 8

State v. Pancake,

544 S.E.2d 403 (W. Va. 2001) ......................................... 8

XII

TABLE OF AUTHORITIES

(continued)

Page(s)

State v. Peterman,

260 S.E.2d 728 (W. Va. 1979) ......................................... 9

Tafflin v. Levitt,

493 U.S. 455 (1990) ................................................. 19, 21

Tinsley v. McKay,

156 F. Supp. 3d 1024 (D. Ariz. 2015)..................... 18, 25

Trainor v. Hernandez,

431 U.S. 434 (1977) ................................................... 4, 20

United States v. Hardesty,

958 F.2d 910 (9th Cir. 1992) ......................................... 18

United States v. Morrison,

529 U.S. 598 (2000) ....................................................... 21

Wal-Mart Stores, Inc. v. Dukes,

564 U.S. 338 (2011) ....................................................... 27

Wattie-Bey v. Att’y Gen.,

424 F. App’x 95 (3d Cir. 2011) ..................................... 16

Wyatt B. v. Brown,

No. 6:19-cv-00556 (D. Or. Apr. 16, 2019) .................... 30

Younger v. Harris,

401 U.S. 37 (1971) ................... 1, 2, 4, 5, 6, 11, 12, 13, 14,

15, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 28, 30, 31, 32

Zimmermann v. Gregoire,

18 F. App’x 599 (9th Cir. 2001) .................................... 16

XIII

TABLE OF AUTHORITIES

(continued)

Page(s)

Constitutional Provision

W. Va. Const. art. 8, § 6 ....................................................... 8

Statutes

28 U.S.C. § 1254 .................................................................... 4

W. VA. CODE § 49-2-101 ....................................................... 6

W. VA. CODE § 49-4-102 ................................................. 9, 31

W. VA. CODE § 49-4-105 ....................................................... 7

W. VA. CODE § 49-4-110 ................................... 7, 8, 9, 31, 32

W. VA. CODE § 49-4-402 ................................................. 9, 31

W. VA. CODE § 49-4-404 ................................................... 7, 8

W. VA. CODE § 49-4-405 ............................................... 7, 8, 9

W. VA. CODE § 49-4-406 ....................................................... 8

W. VA. CODE § 49-4-501 ................................................. 9, 31

W. VA. CODE § 49-4-601 ......................................... 6, 7, 9, 32

W. VA. CODE § 49-4-602 ....................................................... 7

W. VA. CODE § 49-4-604 ................................................... 7, 8

W. VA. CODE § 49-4-606 ....................................................... 7

W. VA. CODE § 49-4-608 ....................................... 7, 8, 31, 33

W. VA. CODE § 49-4-701 ..................................... 6, 7, 8, 9, 32

W. VA. CODE § 49-4-714 ................................................... 6, 8

XIV

TABLE OF AUTHORITIES

(continued)

Page(s)

Rules

W. Va. R. P. Child Abuse and Neglect

Proceedings 6 .................................................................. 7

W. Va. R. P. Child Abuse and Neglect

Proceedings 36 ................................................................ 7

Other Authorities

David Marcus,

Groups and Rights in Institutional

Reform Litigation,

97 NOTRE DAME L. REV. 619 (2022) ........................... 15

JOHN MARTINEZ,

LOCAL GOVERNMENT LAW (2022 supp.) .................... 30

Meredith Johnson Harbach,

Is the Family A Federal Question?,

66 WASH. & LEE L. REV. 131 (2009) ........................... 22

INTRODUCTION

Everyone agrees that federal courts must abstain from

interfering with certain state proceedings. See Younger

v. Harris, 401 U.S. 37 (1971). And though Younger

involved a pending state criminal prosecution, the Court

has never limited Younger abstention to that narrow

context.

The doctrine now extends to state civil

enforcement proceedings and other civil matters that

advance state courts’ abilities to perform their judicial

functions. See Sprint Commc’ns, Inc. v. Jacobs, 571 U.S.

69, 73 (2013).

Not long after deciding Younger, the Court brought

state child welfare litigation within its scope in Moore v.

Sims, 442 U.S. 415 (1979). And three decades later the

Court confirmed that Moore is as correct as ever. See

Sprint, 571 U.S. at 79 (citing Moore with approval). Most

of the courts of appeals have thus held that federal courts

must abstain when federal plaintiffs’ claims interfere with

ongoing child welfare proceedings. Not may or might or

should—must.

Not all courts, though, have applied Moore’s message

this way. When this suit was brought on behalf of a group

of West Virginia foster children challenging the State’s

child welfare system, the federal district court did what it

should have: It abstained under Younger and dismissed

the case. See App.48a-81a. But when the Fourth Circuit

looked at West Virginia’s comprehensive child welfare

regime, it reversed and held that federal courts—not the

State’s courts—should decide whether relief is warranted

for the deficiencies Respondents allege. The Fourth

Circuit believed that West Virginia’s child welfare

proceedings are not the sort of actions Younger

addressed; it also thought that Respondents’ request for

class-wide relief created a special need for a federal forum.

2

The decision below drips with antipathy towards state

courts and the State of West Virginia generally. See, e.g.,

App.7a (“[W]hen all else fails—which it often does in West

Virginia ….”). Starting from that vantage point, there is

little surprise that it got Younger abstention so wrong. It

also exacerbated circuit splits on two important issues. In

both, the Fourth Circuit now sits in the minority.

First, most circuits abstain in cases that implicate state

child welfare proceedings. But even in the face of Moore

(and the strong circuit consensus that tracks it), the

Fourth Circuit joined two other circuits in refusing to do

so. Along the way, it infringed the dual sovereignty

central to our constitutional system. It ignored West

Virginia’s deep interest in the welfare of its children—an

interest that the continuous judicial proceedings

concerning every foster child in the State reflects. And it

escalated confusion around Moore’s continued vitality.

Second, courts are split on how to apply Younger to

class complaints.

Some circuits—the Fourth now

included—find a state forum inadequate for Younger

purposes if the plaintiff seeks class-wide relief in the

federal suit and it is not obvious that the plaintiff could

seek that relief in the state forum. But other circuits are

satisfied so long as the plaintiff could seek individual relief

in state court. This difference matters, as the first

approach may allow procedural class-certification rules to

determine a party’s substantive rights to relief in federal

court. Congress never meant for the rules to do that.

More concerning, refusing to abstain because the plaintiff

wants class-wide relief invites a degree of federal

oversight over state courts that this Court has rejected

before—and should again here.

Splits aside, this case involves one of the most

important and urgent duties the States shoulder:

3

guaranteeing the welfare of our children. West Virginia

pursued its role as “ultimate protector of the rights of [its]

minors,” In re B.C., 755 S.E.2d 664, 671 (W. Va. 2014), by

building a state-court-directed process to ensure children

receive the care and attention they deserve. The decision

below takes that system, at least in part, out of the state

courts’ hands. The Court should grant review to return

West Virginia’s children and families to firmer ground,

knowing that their state officials and courts are

responsible for disputes over how this process succeeds.

This case is also the right vehicle to tackle these issues.

It turns on clean questions of law, not case-specific

discretionary factors.

Its issues need no further

percolation; all the relevant circuits have weighed in on

the first question, and the split on the second is well

defined. And the decision below exemplifies the worst

problems in the minority sides of both splits. The Fourth

Circuit ignored the complexities of West Virginia’s child

welfare system.

It disregarded state procedural

protections for parents and children alike. It minimized

the State’s interest in the subject matter. It brushed aside

interference with the same ongoing state-court

proceedings it considered incapable of delivering relief. In

short, it made no bones about its disdain for state-led

systems and courts.

The Court should take this

opportunity to insist that federal courts give their state

counterparts the equal respect that federalism demands.

OPINIONS BELOW

The Fourth Circuit’s opinion (App.1a-47a) is reported

at 41 F.4th 316. The district court’s opinion (App.48a-81a)

is unreported but available at 2021 WL 3195020.

4

JURISDICTION

The Fourth Circuit entered judgment on July 20, 2022.

Petitioners timely filed this petition for certiorari on

September 12, 2022. This Court has jurisdiction under 28

U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

Relevant West Virginia Code provisions appear at

App.82a-131a.

STATEMENT

1. When the Court in Younger reversed the

injunction of a California criminal prosecution in 1971, it

seemed likely that this brand of abstention would reach

other contexts, too. The wait was not long. The Court

started by expanding the protection to three kinds of civil

proceedings that directly involve the State—public

nuisance judgments, Huffman v. Pursue, Ltd., 420 U.S.

592 (1975); judicial contempt proceedings, Juidice v. Vail,

430 U.S. 327 (1977); and state welfare payment recovery

actions, Trainor v. Hernandez, 431 U.S. 434 (1977). Child

abuse and neglect proceedings were not far behind.

Moore v. Sims, 442 U.S. 415 (1979). Then the Court

covered state bar disciplinary proceedings, Middlesex

Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S.

423 (1982), and sex discrimination actions, Ohio C.R.

Comm’n v. Dayton Christian Sch., Inc., 477 U.S. 619

(1986). And after that, the Court reached a civil action

between two private parties. See Pennzoil Co. v. Texaco

Inc., 481 U.S. 1 (1987) (judgments pending appeal). Only

when faced with an “essentially legislative act”—a city

council’s decision to issue a rate order—did the Court

decline to expand Younger abstention further. New

5

Orleans Pub. Serv., Inc. v. Council of City of New

Orleans, 491 U.S. 350 (1989) (NOPSI).

Every time the Court applied Younger to a new type of

state proceeding, the doctrine’s scope became a little

clearer. Most relevant here, for example, Moore stressed

that “important state interests” like “the informed

evolution of state policy by state tribunals” are often found

in certain key civil proceedings—including child welfare

actions. 442 U.S. at 423 (citing Trainor, 431 U.S. at 445).

So “unless state law clearly bars” presentation of

constitutional claims in the forum, federal courts must

abstain. Id. at 425-26, 432. The Court strengthened this

principle in Middlesex, confirming that state proceedings

must be ongoing to trigger abstention. 457 U.S. at 432.

And NOPSI clarified that Younger extends to state

proceedings that are “judicial in nature.” 491 U.S. at 36970.

The Court’s 2013 decision in Sprint Communications,

Inc. v. Jacobs synthesized this string of rulings into a rule:

Although “federal courts are obliged to decide cases

within the scope of federal jurisdiction,” “exceptional

circumstances” require abstaining from three categories

of proceedings, so long as they satisfy Middlesex’s three

“additional factors.” 571 U.S. at 72, 78, 81-82 (emphasis

in original). Those categories are “ongoing state criminal

prosecutions,” “civil enforcement proceedings” that are

“akin to criminal prosecutions,” and civil proceedings

“that implicate a State’s interest in enforcing the orders

and judgments of its courts.” Id. at 72-73, 78 (cleaned up).

As for the additional factors, the state proceedings must

be ongoing, “implicate important state interests,” and

“afford an adequate opportunity … to raise constitutional

challenges.” Middlesex, 457 U.S. at 432; accord Sprint,

571 U.S. at 81.

6

2. West Virginia’s child welfare system addresses the

kind of critical state interests that Younger and Sprint

said—and Moore confirmed—belong to state courts. And

indeed, West Virginia law gives its courts significant

authority over that system. Circuit court judges across

West Virginia’s 55 counties decide whether a child will

enter state custody and then make the key decisions as

long as he or she remains there. App.72a-75a. West

Virginia’s Department of Health and Human Resources

(DHHR) provides for these children, but they are ordered

into DHHR’s care “by courts” and courts alone. W. VA.

CODE § 49-2-101(a).

Courts typically order children into DHHR custody

through one of two proceedings.

One is an abuse-and-neglect hearing. W. VA. CODE

§ 49-4-601. The children involved in these hearings

comprise the customary foster care population and include

90 percent of the children in DHHR’s care. App.5a. West

Virginia treats these “abuse and neglect cases” as “among

the highest priority for the courts’ attention.” In re

Carlita B., 408 S.E.2d 365, 375-76 (W. Va. 1991).

The other is a juvenile-justice hearing. Circuit courts

conduct a juvenile-delinquency or juvenile-status-offense

proceeding either while a charge is pending against a

minor or after an adjudication. W. VA. CODE § 49-4-701, et

seq. These proceedings turn on factors like the child’s best

interest and the public safety. See id. § 49-4-714. They

give the State a middle ground between returning child

offenders to their parents and placing them in a state

detention facility.

3. Whichever process is involved (and sometimes,

both are), West Virginia courts comprehensively oversee

foster care. State courts direct a child’s placement and

7

then monitor the child’s safety and well-being, W. VA.

CODE § 49-4-110(a), as part of a “systematic review,”

Carlita B., 408 S.E.2d at 376. Foster children and juvenile

justice children are served by DHHR’s Child Protective

Services and Youth Services caseworkers, respectively.

But once the State initiates a child welfare proceeding, the

child remains under the state court’s continuous

jurisdiction until he or she is no longer in state custody.

See W. VA. CODE §§ 49-4-601, et seq., 49-4-701, et seq.; see

also, e.g., In re J.L., 763 S.E.2d 654, 660 (W. Va. 2014)

(stressing state courts’ “continuing jurisdiction” over

abuse-and-neglect matters).

Abuse-and-neglect proceedings start, continue, and

end with the state circuit court. The circuit court first

decides whether to grant temporary custody of a child to

DHHR, then conducts preliminary and adjudicatory

hearings to develop the record and decide whether the

child is, in fact, being abused or neglected. W. VA.

CODE §§ 49-4-105, 49-4-601. To be sure, the court works

with others, including DHHR, court-appointed counsel,

and the parties themselves. Id. §§ 49-4-405, 49-4-601(c),

(f). But every central decision belongs to the circuit court.

The court determines whether the child is abused or

neglected, whether removal from the home is in the child’s

best interests, where the child should be placed if

necessary, whether family visitation should be allowed,

what services the child and family will receive, and what

permanency plan to pursue. Id. §§ 49-4-108, 49-4-110, 494-404, 49-4-601(i), 49-4-602(b), 49-4-604(c), 49-4-608(e).

Ultimately, the circuit court keeps “exclusive jurisdiction

to determine the permanent placement of a [foster] child.”

W. Va. R. P. Child Abuse and Neglect Proceedings 36(e);

see also id. at R. 6; W. VA. CODE § 49-4-606.

8

The framework is generally the same for children who

enter the system through juvenile-justice proceedings,

except that the hearings are adversarial against the child

instead of the parents. See generally W. VA. CODE § 49-4701, et seq.

In short, while “both” DHHR and the circuit court

work to ensure a foster child’s care, the court decides

where children will be placed and what services they will

receive while in state custody. State v. Chafin, 444 S.E.2d

62, 70 (W. Va. 1994); W. VA. CODE §§ 49-4-604, 49-4-714.

And ongoing state-court jurisdiction is not an empty

promise. So long as a child is in state custody, the circuit

court holds quarterly post-adjudication hearings—every

90 days—and issues new orders concerning the child’s

care. Id. §§ 49-4-110, 49-4-405, 49-4-406. Here again,

these orders reach all manner of questions, including

placement, State v. Michael M., 504 S.E.2d 177, 184-86 (W.

Va. 1998); visitation, id. at 186-87; placement in an out-ofstate facility, W. VA. CODE § 49-4-608(d); modification of

the child’s case plan, see, e.g., State v. Dyer, 836 S.E.2d

472, 522 n.29 (W. Va. 2019); compliance with the case plan,

W. VA. CODE § 49-4-404; and transition to independent

living, id. § 49-4–608(c).

Further, the child’s representative can raise federal

claims, constitutional or otherwise. The circuit courts that

hear child welfare cases in West Virginia are courts of

“general jurisdiction.” W. Va. Const. art. 8, § 6; State v.

Pancake, 544 S.E.2d 403, 404 (W. Va. 2001) (citing W. VA.

CODE § 49-6-1, et seq.). They thus have “power to

determine all controversies that can possibly be made the

subject of civil actions,” including federal constitutional

claims like Respondents’ here. State ex rel. Silver v.

Wilkes, 584 S.E.2d 548, 552 (W. Va. 2003); compare with

Moore, 442 U.S. at 425 & n.9 (emphasizing that the state

9

forum could hear federal claims as part of abstention

rationale).

And should parties to a child welfare

proceeding be unhappy with the circuit court’s resolution,

they can appeal any final ruling to the Supreme Court of

Appeals of West Virginia. W. VA. CODE § 49-4-102.

DHHR too—if it disagrees with a circuit court’s child

welfare order, it “cannot ignore or refuse to comply” with

it. State ex rel. Daniel M. v. DHHR, 516 S.E.2d 30, 34 (W.

Va. 1999). It must appeal. Id.

Finally, these child welfare proceedings—including

the ongoing post-adjudication hearings—mirror many

elements of a criminal trial. See W. VA. CODE §§ 49-4-110,

49-4-601 (applying procedural rights to “any proceeding

under this article”). With the State serving as the moving

party, each county’s prosecuting attorney represents

DHHR and participates with any multidisciplinary

treatment team advising the court. Id. §§ 49-4-402, 49-4501; compare with Moore, 442 U.S. at 419 (noting that

state proceeding was “precipitated” by local authorities

supervised by relevant state agency). The court takes

evidence and finds facts using formal rules of evidence. Id.

§§ 49-4-601(k), 49-4-701(k). Defendants have the right to

cross-examine witnesses, and both parents and children

have the right to be heard. Id. §§ 49-4-405, 49-4-601, 49-4701. The circuit court appoints counsel for the child and

any parent or custodian involved. Id. §§ 49-4-601, 49-4701. Finally, adjudicatory proceedings have evidentiary

burdens elevated beyond the ordinary civil standard, with

abuse-and-neglect hearings requiring “clear and

convincing evidence,” id. § 49-4-601, and delinquency

hearings using the “constitutionally imposed burden to

prove the juvenile’s guilt beyond a reasonable doubt,”

State v. Peterman, 260 S.E.2d 728, 728 (W. Va. 1979).

Beyond that, juvenile-delinquency proceedings are

10

criminal proceedings. See, e.g., State v. Allah Jamaal W.,

543 S.E.2d 282, 284 (W. Va. 2000).

4. Respondents, next friends of 12 children who were

in West Virginia’s foster care system at the time, filed a

class action suit in federal court seeking broad

institutional and system-wide changes to West Virginia’s

child welfare system. App.4a. They named as defendants

DHHR and various executive state officers. And they

defined the putative class to include all children who had

entered or would enter the State’s custody through either

entry point, currently or in the future. App.49a-50a.

The complaint alleged many problems with the State’s

child welfare system and argued that DHHR failed to

adequately prevent or address them. The allegations

included lack of staffing, poorly trained foster-care

families leading to a lack of stability, and reliance on

institutionalized

facilities

(including

out-of-state

placements). App.9a. Respondents invoked substantive

due process, “the right to familial association,” the Social

Security Act, the Americans with Disabilities Act, and the

Rehabilitation Act. App.9a-10a.

Much of Respondents’ requested relief would dictate

how West Virginia’s circuit courts administer child

welfare proceedings. Among other things, the plaintiffs

ask for specific directives on where children can be placed,

including in residential care or with “kin” who have not

been certified as foster families; they also seek specific

staffing ratios, new requirements for services for disabled

children, new standards for handling children over the age

of 14, and a federally appointed monitor to oversee the

whole enterprise. App.53a-54a.

11

Given the relief sought, Petitioners moved to dismiss

based on Younger and other abstention and jurisdictional

grounds.

5. The district court granted Petitioners’ motion in

July 2021, holding that Younger required it to abstain.

In the district court’s view, the State’s foster care

proceedings “easily” fell into a “hybrid” of two categories

of proceedings that the Court has confirmed warrant

Younger abstention: “state civil proceedings that are akin

to criminal prosecutions” and “civil proceedings involving

certain orders ... uniquely in furtherance of the state

courts’ ability to perform their judicial function.”

App.67a-68a (quoting Sprint, 571 U.S. at 78). West

Virginia’s child welfare proceedings resemble stateinitiated civil enforcement actions, as in Moore, 442 U.S.

at 415, and are core judicial proceedings that make

interference inappropriate, as in O’Shea v. Littleton, 414

U.S. 488 (1974). App.68a.

The district court also held that West Virginia’s child

welfare proceedings satisfy the three Middlesex factors

that further counsel for abstention. App.70a-80a. First,

Respondents’ required relief would interfere with West

Virginia’s ongoing child welfare proceedings. App.70a78a. The district court detailed how “heavily involved”

West Virginia’s state courts are at all stages of the

process. App.72a-76a. State courts (not DHHR officials)

are responsible for the key decisions relating to every

individual foster child’s placement and services. Granting

Respondents’ requested relief would thus “[r]emov[e]”

the state courts’ “discretion” and replace it with “federal

court review over [their] decisions.” App.77a. Second, the

court held that West Virginia’s child welfare proceedings

implicate important state interests—a point no party

disputed. App.78a. Third, it held that Respondents had

12

adequate opportunity to raise their claims in the statecourt proceedings themselves. App.78a-80a. West

Virginia’s courts are “capable of hearing” Respondents’

federal claims. App.79a. Respondents had just never

given them “an opportunity to consider” them. App.79a.

Holding that the State’s child welfare proceedings

satisfied every requirement for Younger abstention and

triggered none of its exceptions, the district court

dismissed the case. App.81a.

6. In July 2022, the Fourth Circuit issued a decision

affirming in part and reversing in part the district court’s

order, and remanding the case. Judge Rushing wrote

separately to dissent in part from the opinion and concur

in the judgment.

After dispensing with a concern over mootness, the

Fourth Circuit moved to Younger. It started by treating

the quarterly post-adjudication state-court hearings as

the only relevant ongoing proceedings, even though they

are part of a unified case beginning with the petition to

remove a child from the home. App.17a, 21a. The court

then held that these quarterly hearings did not fall within

any of the three Younger categories laid out in Sprint.

The proceedings were not criminal because West Virginia

conceded as much. App.21a. They were not akin to

criminal prosecutions because they “proceed in a

‘conciliatory’ manner.” App.21a-22a. And they were not

the right kind of civil proceedings because “[n]othing

about [them] implicates ‘the administration’ of West

Virginia’s judiciary.” App.24a. In the Fourth Circuit’s

view, the possibility that the federal action would

undermine state courts’ ability to issue contempt orders

did not trigger the next phase of the abstention analysis,

either. App.24a-25a.

13

Although it recognized that other circuits had decided

differently, App.25a-26a & n.7, the Fourth Circuit found

that no “historical precedent” supported West Virginia’s

argument, App.18a. It thought Moore, for example,

addressed only the parental-rights side of the process.

App.21a. The Fourth Circuit deemed hearings on

parental rights distinct from any continuing hearings on

the status of the child—so even though these latter

hearings are part of the same case, they could not trigger

abstention. App.21a-22a. In sum, the court believed that

the suit did “not challenge” West Virginia courts’

“authority” over foster proceedings. App.24a.

Two judges on the panel opined further that the other

factors justifying abstention would be missing even if the

proceedings had fit into a Younger category. They

believed that “halting the litigation on th[e] record would

be premature” because it was not yet clear what relief the

plaintiffs would obtain. App.31a. They also thought the

plaintiffs were complaining about DHHR’s conduct, not

the courts’—even though they recognized that the “buck”

stops with the courts. App.6a, 28a-29a. And the panel

majority felt that the suit did not ask the district court to

unduly involve itself in state judicial administration

because, unlike in O’Shea, the federal court’s final order in

the case would not issue against judges directly. App.30a.

These issues aside, the two-judge majority also fretted

that—even if the plaintiffs could obtain all requested relief

in their individual cases—the state proceedings would not

give them the tools to effect “systemic” change (read:

class-wide relief) across the entire foster-care system.

App.31a-36a; contrast Moore, 442 U.S. at 426 (reversing a

refusal to abstain premised on the idea that a challenge to

the “entire statutory scheme” for protecting children

should be heard in federal court). These judges concluded

14

that it would be unfair to ask Respondents to “litigate

their claims piecemeal.”

App.5a.

They thought

Respondents’ “only real choice” for relief was a class

action. App.36a.

The majority then catalogued prior cases in which it

thought that West Virginia’s courts should have ordered

more relief to children; it supposed that those cases reflect

“state courts’ reluctance to order deep structural changes

within [DHHR].” App.38a. So with this precedent in

hand, any court in the Fourth Circuit may now declare a

state forum inadequate for Younger purposes if it

disagrees with the results of prior cases addressing

similar issues. But see, e.g., Baffert v. Cal. Horse Racing

Bd., 332 F.3d 613, 621 (9th Cir. 2003) (explaining that a

party’s lack of prior success in state court “does not render

the forum inadequate”).

Following the opinion, Petitioners moved for the

Fourth Circuit to stay the mandate. The court denied the

motion on August 15, 2022. This Petition followed.

REASONS FOR GRANTING THE PETITION

I.

The Court Should Resolve Whether Younger

Abstention Applies To State Child Welfare

Proceedings.

The decision below deepens a circuit split over

abstention from state child welfare proceedings—one side

holds that federal courts must abstain and the other holds

that they cannot. This issue should have been settled

years ago when the Court decided Moore. But instead the

confusion has grown broad and deep in the ensuing 43

years.

One thing has not changed since Moore: the

importance of the issue. Child welfare proceedings matter

15

to us all. So does the degree to which federal courts can

dictate how States and their courts address the critical

questions that arise throughout the hundreds of those

proceedings that take place every day nationwide. These

are matters of federalism, comity, and primacy at the

heart of our constitutional order.

The decision below intensifies an open and

acknowledged circuit split.

1. Every circuit except the Federal Circuit has now

considered whether Younger applies to child welfare

proceedings—and they are firmly split over the answer.

On one side are decisions like the one here: Three circuits

have held that abstaining from state-court child welfare

proceedings is not an option. On the other side, ten

circuits have said that federal courts must abstain. Those

courts are on the same page on the issues that count—

respect for state courts, noninterference with legitimate

state functions, protection of strong state interests, and all

the rest. They also sit above district courts that have

declined to abstain despite contrary precedent from their

own circuit courts. See App.40a; see also David Marcus,

Groups and Rights in Institutional Reform Litigation, 97

NOTRE DAME L. REV. 619, 672 (2022) (“Younger motions

have left a mess of contradictory decisions for foster care

reform litigation.”). So the confusion runs even deeper

than the lopsided circuit count shows. This is both the

time and the case for the Court to intervene.

2. Take first the ten circuits that have held that

Younger requires federal courts to abstain from

interfering with state-court child welfare proceedings.

The Seventh Circuit is the most emphatic. In a string

of three recent decisions, it discussed several reasons why

federal courts must yield to state courts. Those reasons

16

range from the State’s strong interest in their children’s

welfare, to principles of federalism and comity, to the

opportunity to raise a particular challenge in the statecourt proceedings, to the adequacy of the state system

itself to address claims like these. See Ashley W. v.

Holcomb, 34 F.4th 588, 593-94 (7th Cir. 2022); Nicole K. v.

Stigdon, 990 F.3d 534, 538 (7th Cir. 2021); Milchtein v.

Chisholm, 880 F.3d 895, 899 (7th Cir. 2018); accord

Brunken v. Lance, 807 F.2d 1325, 1330-31 (7th Cir. 1986)

(requiring abstention from child custody proceedings).

Also in the last five years, the Second and Eighth

Circuits issued similar rulings. The Second Circuit’s case

addressed state abuse-and-neglect investigations and

proceedings. Lowell v. Vermont Dep’t of Child. & Fams.,

835 F. App’x 637 (2d Cir. 2020). The Eighth’s concerned

temporary custody proceedings. Oglala Sioux Tribe v.

Fleming, 904 F.3d 603, 610 (8th Cir. 2018). Because these

proceedings fell within the Sprint categories and satisfied

the Middlesex factors, both circuits held that abstention

was required. See Lowell, 835 F. App’x at 639-40; Oglala,

904 F.3d at 607-13 (8th Cir. 2018).

Over the course of the two prior decades—between this

Court’s NOPSI and Sprint decisions—four other circuits

looked at similar state proceedings and held the same.

The Third and Ninth Circuits required abstaining from

pending state proceedings that involved areas of state

interest and concern that also afforded sufficient

opportunity to adjudicate the claims plaintiffs would have

preferred to litigate in federal court. See Wattie-Bey v.

Att’y Gen.’s Off., 424 F. App’x 95, 97 (3d Cir. 2011);

Lazaridis v. Wehmer, 591 F.3d 666, 670-71 (3d Cir. 2010);

Zimmermann v. Gregoire, 18 F. App’x 599, 601 (9th Cir.

2001); H.C. ex rel. Gordon v. Koppel, 203 F.3d 610, 613 (9th

Cir. 2000); cf. E.T. v. Cantil-Sakauye, 682 F.3d 1121, 1124

17

(9th Cir. 2012) (relying on Younger principles to find

O’Shea abstention appropriate in challenge to size of

foster-children’s attorneys’ caseloads).

In the same period, the Tenth and Eleventh Circuits

likewise mandated abstention for state child welfare

proceedings. Their rulings upheld the States’ important

interests in these areas. They also worried that the

requested relief would give federal courts an

impermissible degree of control over state proceedings

contrary to Younger’s letter and purpose. See J.B. ex rel.

Hart v. Valdez, 186 F.3d 1280, 1291, 1293 (10th Cir. 1999);

Joseph A. ex rel. Corrine Wolfe v. Ingram, 275 F.3d 1253,

1268, 1271-72 (10th Cir. 2002); 31 Foster Children v. Bush,

329 F.3d 1255, 1274-82 (11th Cir. 2003).

And decades before, the First, Fifth, and Sixth Circuits

had planted the flag that abstention from state child

welfare proceedings is required. Their reasons should

sound familiar by now: The States’ interests were strong,

the subject matter fell within the States’ wheelhouses, and

state courts were capable of addressing the claims. See

Malachowski v. City of Keene, 787 F.2d 704, 708-09 (1st

Cir. 1986); DeSpain v. Johnston, 731 F.2d 1171, 1179-81

(5th Cir. 1984); Parker v. Turner, 626 F.2d 1, 4, 6, 8-10 (6th

Cir. 1980); Huynh Thi Anh v. Levi, 586 F.2d 625, 633 (6th

Cir. 1978).

3. Three circuits looked at state child welfare

proceedings and Younger and went a different way. In

LaShawn A. v. Kelly, the D.C. Circuit called the D.C.

Superior Court’s Family Division a “questionable vehicle

for adjudicating” claims from a class of foster children

challenging Family Division proceedings. 990 F.2d 1319,

1323 (D.C. Cir. 1993). Charging the Division with refusal

and general inability to hear these claims, the D.C. Circuit

reasoned that there was no “adequate forum” for claims

18

seeking “broad-based injunctive relief based on federal

law.” Id. at 1323-24. Thus, held the court, abstention was

not an option.

Three years earlier over in the Ninth Circuit, that

court began what would become an intra-circuit split. In

L.H. v. Jamieson, the court reversed an abstention

finding in a case involving juvenile plaintiffs who sought

more funding for the various state-care facilities where

they lived. 643 F.2d 1351 (9th Cir. 1981). Their request

fell outside the realm of what the plaintiffs could raise as

either a claim or defense in an ongoing state proceeding,

convincing the court that Younger did not apply. Id. at

1354. And because the older case prevails when two cases

from the Ninth Circuit conflict, United States v. Hardesty,

958 F.2d 910, 914 (9th Cir. 1992), the circuit’s more recent

attempts at course-direction only add to district courts’

confusion. See, e.g., Tinsley v. McKay, 156 F. Supp. 3d

1024, 1036 (D. Ariz. 2015) (relying on L.H.’s rejection of an

argument based on “inherent interference” with state

child welfare proceedings).

Then, of course, there is the Fourth Circuit’s decision

here forbidding Younger abstention. Intent, it seems, on

amplifying the circuit split, the court tried to distinguish

many of the decisions above, including Moore and the

recent decisions from the Seventh, Eighth, Tenth, and

Eleventh Circuits. See App.25a-26a. It leaned instead on

a so-called “overwhelming majority” of largely districtcourt “cases [that] have rejected Younger abstention in

similar lawsuits challenging foster care systems”—

showing that even circuits on the other side of the divide

have not been wholly successful putting the confusion

around this issue to rest. App.39a-40a (citing L.H., 643

F.2d at 1352 and quoting M.D. v. Perry, 799 F. Supp. 2d

712, 723 (S.D. Tex. 2011)).

19

* * * *

With all the relevant circuits now weighing in, the

circuit split is deep and fresh. There is no way out of it

without the Court’s intervention.

The split implicates profoundly important

matters of federalism.

The circuits in the majority did more than get Younger

right. They also advanced the currents of federalism and

comity that flow through it and the cases applying it.

Abstention respects the States by staying out of their

legitimate functions. It recognizes that state courts are

just as competent as federal ones to resolve claims of all

kinds. It honors the role state courts play in shaping state

law, especially when it comes to the traditional state zone

of domestic relations. All these markers are missing from

the decision below (and its Ninth and D.C. Circuit

counterparts). The Court should take up this case and

reverse to solidify the principled federalism of the

majority approach.

1. Federalism and comity animate Younger. For the

States, parsing responsibilities among sovereigns

properly is no small thing. Our system of government

recognizes that States retain “residuary and inviolable

sovereignty,” Alden v. Maine, 527 U.S. 706, 715 (1999)

(quoting THE FEDERALIST NO. 39, at 245), “subject only

to limitations imposed by the Supremacy Clause,” Tafflin

v. Levitt, 493 U.S. 455, 458 (1990). Younger brings that

doctrine to life. It emphasizes “sensitivity” to the States’

interests rather than “undu[e] interfere[nce]” in their

“legitimate activities.” Younger, 401 U.S. at 44.

The Court acted on the same consideration when it

expanded Younger abstention to the civil realm.

20

“[C]entral” to Younger—and “even more vital” than

noninterference with “state criminal proceedings”—is

federalism and its “notion of comity.” Huffman, 420 U.S.

at 600-01. Younger allows a suite of abstention-related

benefits to run their natural course. It lets States

“effectuat[e] [their] substantive policies” and “vindicate

any constitutional objections interposed against” them.

Id. at 604. It avoids “duplicative legal proceedings” and

the waste, frustration, and confusion left in their wake. Id.

And it discredits the lie that state courts cannot “enforce

constitutional principles.” Id.

These concepts are important. The result of abstention

is “proper respect for state functions” by leaving the

“States and their institutions … free to perform [them] in

their separate ways.” Juidice, 430 U.S. at 334 (quoting

Huffman, 420 U.S. at 601). Abstention cases’ “common

thread,” then, is “that they all implicate … underlying

principles of equity, comity, and federalism foundational

to our federal constitutional structure.” J.B. v. Woodard,

997 F.3d 714, 722 (7th Cir. 2021).

2. Clarifying Younger’s proper reach also respects

the importance of noninterference with “the operation of

state courts.” Trainor, 431 U.S. at 441. Federal courts

must treat state courts as equals with their federal

siblings.

Yet despite the Court’s “repeated[] and

emphatic[] reject[ion]” of the idea that “state courts [are]

not competent to adjudicate federal constitutional claims,”

Moore, 442 U.S. at 430, some lower federal courts believe

it anyway. In fact, it happened here—the Fourth Circuit

speculated that West Virginia’s courts are too “reluctan[t]

to order deep structural changes.” App.38a. That belief

is wrong. Dual sovereignty means that “state courts have

inherent authority, and are thus presumptively

21

competent, to adjudicate claims arising under the laws of

the United States.” Tafflin, 493 U.S. at 458.

3. Any law student passingly familiar with Erie

knows another reason to insist that lower courts get

abstention right: “State courts are the principal expositors

of state law.” Moore, 442 U.S. at 429-30; see Schlesinger,

420 U.S. at 755-56. When federal courts interfere with

state-court actions—particularly, as here, “far ranging”

“constitutional challenge[s]”—that intervention halts “the

informed evolution of state policy by state

tribunals.” Moore, 442 U.S. at 429-30. It is especially

dangerous when federal courts draw conclusions about

state-law systems as complex as those here. See

Robinson v. Thomas, 855 F.3d 278, 285 (4th Cir. 2017)

(reasoning, in applying Younger, that a State’s interest in

interpreting its own laws is “strengthened” when those

laws reflect “a complex web” of legal developments).

What is more, it is hard to name an area of the law on

which States have a tighter traditional grip than domestic

relations. The Court has “consistently recognized” that

“the whole subject … belongs to the laws of the States,”

Rose v. Rose, 481 U.S. 619, 625 (1987) (cleaned up), and to

“state regulation,” United States v. Morrison, 529 U.S.

598, 615-16 (2000). From the “century and a half” old

domestic-relations exception to federal jurisdiction,

Ankenbrandt v. Richards, 504 U.S. 689, 694-95 (1992), to

the Court’s general refusal to hear most matters involving

divorce and alimony, Ohio ex rel. Popovici v. Agler, 280

U.S. 379, 383 (1930), and child custody, Ex parte Burrus,

136 U.S. 586, 594 (1890), one thing is clear: Family

matters belong in state court. See Moore, 442 U.S. at 435.

So “[i]f ever there were an area” for Justice Holmes’s

“admonition … that ‘a page of history is worth a volume of

logic,’” “domestic relations” is it. Santosky v. Kramer, 455

22

U.S. 745, 770 (1982) (Rehnquist, J., dissenting) (footnote

omitted).

In line with that state court-federal court divide, “[t]he

federal courts generally have applied Younger abstention

in a variety of cases implicating underlying state-court

domestic relations” issues. Meredith Johnson Harbach, Is

the Family A Federal Question?, 66 WASH. & LEE L. REV.

131, 150 n.76 (2009) (collecting authorities). Yet the court

below was unwilling to recognize the heightened state

interests here. It thought that because the federal

government provides some funding to foster care

programs, it “arguably has just as much at stake as West

Virginia.” See, e.g., App.36a. Whether the Fourth Circuit

was right goes to federalism’s core.

4. State sovereignty, state-court competence, and

state primacy over domestic relations are all vital

interests—important enough to justify this Court’s

attention. But at bottom, this case also strikes at another

one of every State’s most critical interests: the well-being

of children. Though the court below mocked West

Virginia, e.g., App.7a (“when all else fails—which it often

does in West Virginia”), the State carries a deep and

abiding interest for its children. The State “is the ultimate

protector of the rights of minors” and has “a substantial

interest in providing for their health, safety, and welfare.”

In re Betty J.W., 371 S.E.2d 326, 329 (W. Va. 1988). The

decision below creates uncertainty over how the State’s

child welfare system will be administered—and who will

administer it. If left standing, it will erase previously longsettled expectations that state courts will and should take

the lead.

The Court should grant review to rectify this unsettling

decision. In this case and those like it, federal courts must

abstain.

23

II.

The Court Should Resolve Whether Federal

Courts May Refuse To Abstain Under Younger

Because Plaintiffs Seek Class-Wide Relief.

Two members of the panel refused to stop at ordering

the district court not to abstain from child welfare cases

generally. They also held that Younger was unavailable

because West Virginia’s child welfare proceedings

purportedly did not give the plaintiffs an adequate

opportunity to litigate their claims, and those claims did

not interfere with ongoing state actions. The majority

reasoned that the plaintiffs were pursuing “systemic,”

class-wide relief, and the State failed to show that similar

collective relief was available in state court. App.34a-36a.

This holding ignores that without “unambiguous authority

to the contrary” federal courts must “assume that state

procedures will afford an adequate remedy”—particularly

where, as here, “a litigant has not attempted to present his

federal claims in related state-court proceedings.”

Pennzoil, 481 U.S. at 15.

The holding also deepens another circuit split, this time

on whether a request for class relief is relevant to Younger

at all. Like the first, this split does substantial harm.

Courts that factor class relief into their analysis allow

procedural rules to warp substantive rights. Worse still,

favoring a federal forum in class cases invites the sort of

intrusive litigation and far-flung judicial oversight that

this Court has said—more than once—does not belong in

federal courts. The Court should intervene on this issue

as well to ensure that federal courts do not act as indefinite

overseers of critical state systems.

24

The decision below deepens another circuit

split.

The Fourth Circuit jumped into a second crystallized

circuit split on a straightforward issue: May federal

courts decline to abstain under Younger whenever a

litigant wants—but might not get—class-wide relief in the

state forum?

1. The Tenth and Eleventh Circuits stand on one side

of the split.

In Joseph A., the Tenth Circuit considered an

institutional-reform challenge to New Mexico’s fostercare system. 275 F.3d at 1253. Much like the plaintiffs

here, those plaintiffs argued that the State’s “Children’s

Court” was “not authorized to hear class actions and other

representative suits.” Id. at 1274. The court took that fact

as true but found it irrelevant. It sufficed that “no case …

hold[s] that a party is entitled to avoid the effects of []

Younger … where relief is available to individual litigants

in ongoing state proceedings but not to represented

parties in a class action.” Id.

Similarly, in 31 Foster Children, the Eleventh Circuit

described an earlier case in which it abstained from

deciding claims that plaintiffs “could have brought” in

“individual criminal trials, even though it [was] obvious

that the broad-sweeping remedy” they wanted “was

unavailable there.” 329 F.3d at 1281 n.12 (citing Luckey v.

Miller, 976 F.2d 673, 676, 679 (11th Cir. 1992)). That

circuit has also doubled down on the idea that state forums

are adequate if members of a potential federal class could

“raise[] their claims during their” individual state-court

proceedings. Pompey v. Broward Cnty., 95 F.3d 1543,

1551 (11th Cir. 1996).

25

These decisions track the notion that Younger “does

not require that all the procedures for the interposition of

the federal defense be as advantageous in the state court

as in the federal action.” Kirschner v. Klemons, 225 F.3d

227, 235 (2d Cir. 2000); accord Boyd v. Mich. Sup. Ct., No.

95-1180, 1995 WL 538693, at *2-3 (6th Cir. Sept. 8, 1995)

(affirming Younger abstention despite argument that

“state court relief for a single plaintiff cannot vindicate the

rights of the affected ‘class’”); Carson P. ex rel. Foreman

v. Heineman, 240 F.R.D. 456, 531 (D. Neb. 2007)

(existence of class relief irrelevant to Younger analysis).

2. On the other side of the divide are the D.C. Circuit

and, now, the Fourth. Turning again to LaShawn A.,

there the D.C. Circuit found that the Family Division of

the District’s judiciary was not “an appropriate forum for

[a] multi-faceted class-action challenge to the [District’s]

administration of its entire foster-care system.” 990 F.2d

at 1323. The court leaned heavily on the D.C. Superior

Court’s refusal in another case to hear claims that

stretched beyond the disposition of a single child. Id.

Building in part on LaShawn A., the Fourth Circuit

went further—holding that any ability to bring a claim in

systemic fashion that does not include everything a

federal class action permits renders the state forum

inadequate. See App.34a-36a, 39a-40a; see also, e.g.,

Tinsley, 156 F. Supp. 3d at 1040-41 (“[I]t does not appear

Plaintiffs could raise their classwide claims or pursue the

systemic reforms they seek within the framework of the

periodic review hearings in the juvenile courts.”); Perry,

799 F. Supp. 2d at 721-22 (“[T]here is no indication that

[plaintiffs] could seek or obtain [in state court] the type of

wide-ranging injunctive and declaratory relief that they

desire [as a class].”).

26

3. Finally, the Fifth Circuit seems to take a half-loaf

position. In Bice v. Louisiana Public Defense Board, that

court rejected the argument that “[r]elief sought on behalf

of an uncertified class should be considered in the

Younger abstention analysis.” 677 F.3d 712, 720 (5th Cir.

2012) (emphasis added). It deliberately left open the

possibility, though, that a state court’s lack of a class-wide

remedy might make it inadequate in cases where a class

has been certified. See id. at 720 n.8 (distinguishing a

district court opinion finding state forums inadequate to

address “systemic concerns” because “a class had already

been certified before the court decided whether to abstain

under Younger”); but see, e.g., Hernandez v. Finley, 471

F. Supp. 516, 521 (N.D. Ill. 1978) (explaining that district

courts should reach Younger abstention “first and only

determine class certification if dismissal based on

abstention is not proper”).

Again one thing is plain: The circuits do not agree.

The split raises serious questions about

class actions and the role of federal courts

in overseeing state institutions.

Usually the “breadth of a challenge to a complex state

statutory scheme” “militate[s] in favor of abstention.”

Moore, 442 U.S. at 427 (emphasis in original). Moore thus

rejected the argument that a suit belonged in federal court

because it challenged a State’s entire child custody

system. Id. at 426. The Fourth Circuit flipped that

standard, finding that the “wide-reaching, intertwined, …

‘systemic,’” and class-wide nature of the relief plaintiffs

seek counseled against abstention. App.34a. That

inversion creates two problems that justify the Court’s

attention.

27

1. The first: The Fourth Circuit’s decision elevates

the ability to pursue a class action to a substantive-right

status it has never enjoyed before. A litigant’s right “to

employ Rule 23 is a procedural right only, ancillary to the

litigation of substantive claims.” Deposit Guar. Nat’l

Bank v. Roper, 445 U.S. 326, 332 (1980). Thus, the classaction rule “leaves the parties’ legal rights and duties

intact and the rules of decision unchanged.” Shady Grove

Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393,

408 (2010) (opinion of Scalia, J.). By allowing the existence

(or non-existence) of this procedural right in state court to

determine whether plaintiffs must be allowed to pursue

their claims in a federal forum, the Fourth Circuit rewrote

the parties’ legal rights. That was wrong. See Wal-Mart

Stores, Inc. v. Dukes, 564 U.S. 338, 367 (2011) (rejecting

an attempt to the use class-action rule to change a

defendant’s defenses); cf. Roper, 445 U.S. at 355 (Powell,

J., dissenting) (“[T]he Court’s concern for compensation

of putative class members,” which led it to tweak the

mootness standard, was “at worst inconsistent with the

command of the Rules Enabling Act.”).

The decision below shows how things go awry when

courts elevate the class-action rule to the level of

substantive right—especially before any court has

decided that a class should be certified in the first place.

For example, the Fourth Circuit found that class relief

must be available to help individual plaintiffs overcome

problems like standing and mootness. See App.34a-35a.

But no authority holds that a class must be in the offing

any time an individual plaintiff might otherwise struggle

to mount a case. Cf. Brown v. Plata, 563 U.S. 493, 552

(2011) (Scalia, J., dissenting) (finding that no “procedural

principle justifies certifying a class of plaintiffs so they

may assert a claim of systemic unconstitutionality”).

Standing and mootness, after all, are not arbitrary

28

“hurdles” thrown in a plaintiff’s way, but constitutional

requirements grounded in Article III. App.34a.

Likewise, the decision below speculates that an

individual plaintiff may face problems summoning enough

evidence to support relief without help from a class.

App.34a-35a. But here again, no case suggests that the

challenges of building a case should justify twisting legal

doctrines to make it easier. A plaintiff wanting to take on

a big case will often have to bear big responsibilities.

Abstention is concerned with whether the plaintiff can

raise his or her claims in the state forum, not whether

raising them in federal court is easier.

And all in all, the Fourth Circuit confused Rule

23(b)(3)’s superiority analysis with the adequacy aspect of

Younger. See, e.g., App.35a-36a (relying on authority

describing some of the reasons why class actions can be

superior in explaining why West Virginia courts are

purportedly inadequate). It must be said for a third

time—no authority supports that approach.

2. The second problem: The Fourth Circuit greenlit

the sort of institutional oversight of state institutions by

federal courts that this Court repudiated in O’Shea. That

case precluded “an ongoing federal audit of state …

proceedings.” O’Shea, 414 U.S. at 500. It took particular

issue with federal proceedings that could impair statecourt administration—permitting those suits “would

indirectly accomplish the kind of interference that

Younger … and related cases sought to prevent.” Id. As

the Tenth Circuit has explained, “O’Shea and its progeny

suggest[] that federal court oversight of state court

operations, even if not framed as direct review of state

court judgments, may nevertheless be problematic for

Younger purposes.” Joseph A., 275 F.3d at 1271. And

O’Shea works hand-in-hand with more recent decisions

29

warning about the “sensitive federalism concerns”

inherent in “institutional reform litigation”; concerns that

are “heightened” when that litigation “has the effect of

dictating state or local budget priorities.” Horne v.

Flores, 557 U.S. 433, 448 (2009).

The “systemic” relief the plaintiffs seek here would

require pervasive institutional oversight in every sense. It

would involve “intensive, context-specific legal inquiry” to

determine whether DHHR submits the right plans, makes

the right placements, offers the right services, and keeps

the right children in state custody for the right amount of

time. Courthouse News Serv. v. Planet, 750 F.3d 776, 791

(9th Cir. 2014). State courts, with continuing state-law

jurisdiction over child welfare cases, would be relegated to

something approaching an “assistant manager” role.

Each of their judgments would be subject to direct

federal-court review—precisely the interference O’Shea

and the many cases like it rejected.

The district court realized that it didn’t take a seer to

predict this result. The relief at stake—including a federal

“monitor” to “implement and oversee” the court’s order—

is “highly problematic” because it would “interfere

extensively with ongoing state court proceedings” as

“articulated in O’Shea.” App.75a-78a. The potential for

indefinite federal oversight of state child welfare systems

through watered down abstention standards is not

confined to West Virginia, either. Quite the opposite.

Most of the States have faced or are currently facing

similar broad-ranging institutional reform suits in this

area. See, e.g., A.A. v. Buckner, No. 2:21-cv-367 (M.D. Ala.

May 20, 2021); Jeremiah M. v. Crumb, No. 3:22-cv-00129

(D. Alaska May 19, 2022); Bryan C. v. Lambrew, No. 1:21cv-00005 (D. Me. Jan. 6, 2021); G.K. v. Sununu, No. 1:21cv-00004 (D.N.H. Jan. 5, 2021); Elisa W. v. New York, No.

30

1:15-cv-05273 (S.D.N.Y. July 8, 2015); Wyatt B. v. Brown,

No. 6:19-cv-00556 (D. Or. Apr. 16, 2019).

Finally, the Fourth Circuit’s new amenability to

system-wide litigation challenging state-wide systems is

not limited to the child welfare context. The decision

below gives all future institutional-reform plaintiffs who

might otherwise face a Younger problem a simple way out:

plead a claim for class relief. Justices have condemned

federal courts’ attempts to “direct[] or manage[] the

reconstruction of entire institutions and bureaucracies”

before. Missouri v. Jenkins, 515 U.S. 70, 126 (1995)

(Thomas, J., concurring). State courts are at least “the

legatees of a considerable tradition of state judicial

supervision over the activities and affairs of local

government.” JOHN MARTINEZ, LOCAL GOVERNMENT

LAW § 29:8 (2022 supp.). The same cannot be said about

federal courts. But with a new get-out-of-abstention-free

card in hand, institutional-reform plaintiffs can more

aggressively seek broad forms of relief and federal

monitoring against state-related targets. The Fourth

Circuit’s “decision not only affirms the structural

injunction but vastly expands its use.” Brown, 563 U.S. at

555 (Scalia, J., dissenting).

The Court should grant certiorari to address these

important concerns. A State’s decision not to mirror Rule

23 in all state forums should not allow federal courts to

abstain.

III.

The Decision Below Is Wrong—But The Right

Vehicle For Review.

The Fourth Circuit should have required abstention.

State courts can vindicate federal rights. Federal courts

can too, but only with “sensitivity to [] legitimate [state]

interests” and without “unduly interfer[ing] with

31

legitimate [state] activities.” Younger, 401 U.S. at 44. The

decision below shows no sensitivity—the court hardened

itself to West Virginia’s legitimate interests.

A. The Fourth Circuit should not have limited its

Younger analysis to the quarterly post-adjudication

hearing phase of West Virginia’s child welfare

proceedings. App.21a-23a. Those hearings are part of a

single, unified case in which state courts make and

continuously assess decisions regarding placement,

reunification, and permanency. W. VA. CODE §§ 49-4-102,

49-4-110. By divorcing the hearings from everything that

comes before, the court below ignored the full context it

needed to determine whether federal oversight is

“antipathetic to established principles of comity.” O’Shea,

414 U.S. at 501.

Anyway, the Fourth Circuit was wrong in thinking

that the quarterly hearings do not qualify as civil

enforcement. A state actor “routinely [is] a party” in civil

enforcement “and often initiates the action.” Sprint, 571

U.S. at 79. So too here. See W. VA. CODE §§ 49-4-402, 494-501.

Yet the court dismissed the hearings as

“conciliatory,” App.21a-22a, contrasting the intent to

“sanction” that Sprint highlighted, 571 U.S. at 79-80.

True, these hearings are rooted in rehabilitation and care,

not punishment. But so are the State’s indisputably

criminal juvenile-justice proceedings. And make no

mistake: Real liberty—including “institutionalization,”

termination of parental rights, “or other similar

restraint[s]”—is at stake. DeShaney v. Winnebago Cnty.

Dep’t of Soc. Servs., 489 U.S. 189, 200 (1989); W. VA. CODE

§§ 49-4-110, 49-4-608. The court below also ignored that

abuse-and-neglect proceedings use the cardinal “due

process protections for a criminal trial.” Doe v. Univ. of

Ky., 860 F.3d 365, 370 (6th Cir. 2017). Children and

32

parents alike have rights to counsel, to be heard, to crossexamine, to the rules of evidence, and to elevated burdens

of proof. W. VA. CODE §§ 49-4-110, 49-4-601, 49-4-701. The

Fourth Circuit should have recognized these marks of

proceedings “akin to a criminal prosecution.” Sprint, 571

U.S. at 79 (cleaned up).

B. The Fourth Circuit also misapplied Younger’s

third category, which covers orders “uniquely in

furtherance of the state courts’ ability to perform their

judicial functions.” Sprint, 571 U.S. at 78. It held that

letting the federal case proceed would not interfere with

the state courts’ power to issue initial orders concerning

foster children’s placement and care. App.25a. That

conclusion is wrong on the law. For one, its presumption

that “court orders will be obeyed,” App.25a, means that

the federal court’s orders will almost certainly conflict

with competing state orders from the quarterly

proceedings, which monitor “compliance” with the case

plan and constitute “judgment[s] of [the] court.”

Pennzoil, 481 U.S. at 13-14; W. VA. CODE § 49-4-110. The

quarterly proceedings are also “integral to” West Virginia

“court[s’] ability to” administer the child welfare system,

a core “judicial function” in domestic affairs. See Falco v.

Just. of the Matrimonial Parts of Sup. Ct. of Suffolk

Cnty., 805 F.3d 425, 428 (2d Cir. 2015) (recognizing the

third Younger category applied to a court order, after a

custody dispute, regarding payment for a child guardian).

Letting federal jurisdiction override the status hearings

would thus undermine the system from start to finish.

C. And the Fourth Circuit was wrong in believing that

the plaintiffs’ requested relief would only “enjoin the

Department’s actions.” App.24a (emphasis in original).

Even if relief were directed solely to DHHR, what

happens when a state court believes that foster care is “in

33

accordance with federal standards,” App.52a, but the

federal court disagrees? Who decides whether a child

needs out-of-state or institutionalized care—the state

court tasked to do so by statute, W. VA. CODE § 49-4-608,

or the federal court Respondents ask to limit this very

possibility? App.7a-9a, 50a. Refusing abstention is

virtually certain to render some West Virginia state-court

judgments “nugatory.” Pennzoil, 481 U.S. at 14 n.12.

D. Perhaps the only good news here is that this case

is a clean vehicle to rectify these issues. The doctrines at

stake are straightforward and legal. Factual disputes do

not cloud the issues; the features of West Virginia’s statecourt-directed child welfare system are set by statute.

The decision below took a firm—but misguided—position

on the legal questions, consciously putting itself at odds

with other courts of appeals. Nor is this a request for casespecific error-correction. As noted above, using federal

jurisdiction to force system-wide change to state child

welfare regimes is no one-off. The Fourth Circuit’s

approach conflicts with decisions of this Court, other

federal courts, and basic constitutional norms. The Court

should intervene and set it right.

CONCLUSION

The Court should grant the Petition.

34

Respectfully submitted.

PATRICK MORRISEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

lindsay.s.see@wvago.gov

(304) 558-2021

LINDSAY S. SEE

Solicitor General

Counsel of Record

MICHAEL R. WILLIAMS

Senior Deputy Solicitor

General

GRANT A. NEWMAN*

Special Counsel

MAX A. SCHREIBER**

Fellow

*admitted in Michigan;

practicing under supervision of

West Virginia attorneys

**admitted in Indiana;

practicing under supervision of

West Virginia attorneys

Counsel for Petitioners

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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