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
Ask Donna
What actually matters in this document.
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.