Opposition Brief — Moore v. City of Asheville

6

Circuit acknowledged Thomas, but found it

“unpersuasive” as it was constructed entirely upon a

distinction drawn between the decisions of

administrative agencies and state courts. This

distinction was plainly “immaterial,” especially in light

ofthe Supreme Court's decision in New Orleans Public

Serv., Inc. v. Council of the City of New Orleans, 491 US.

350, 369, n. 4 (1989) (hereafter NOPSI), which had been

issued two years after Thomas. Majors, 149 F.3d at 713.

In 1994, the Third Circuit also considered and

expressly rejected Thomas, relying instead upon the

Supreme Court's reasoning in Huffman. In O’Neill, the

administrative proceeding at issue had become final

because the losing parties did not request state court

judicial review, but circumvented the state court by

filing a federal lawsuit. The O’Nei!!l court held that

Younger precluded this federal court challenge to a

state administrative determination. O’Neill, 32 F.3d at

791.

Like the instant case, O’Neill involved a challenge to

the constitutionality of actions taken by a city in the

enforcement of a city ordinance. Because the litigants

paid their tickets without appealing to state court,

Younger barred their later federal court challenge to the

constitutionality of the city’s actions. The O’Neill Court

rejected the holding of Thomas, finding no meaningful

distinction between litigants who chose not to appeal

state agency decisions and those who abandon

available appeals of state court decisions. The Court

stated, “We have been given no reason why a litigant

in a state administrative proceeding should be

permitted to forego state-court judicial review of the

agency’s decision in order to apply for relief in federal

court.” Id. at 790-1.

O’Neill further undermined Thomas by pointing out

that the Eighth Circuit had also disregarded Thomas in

Pomeroy. Id., citing Pomeroy, supra. There the Eighth

Circuit did not expressly mention Thomas, whic». had

been decided three years earlier, but it clearly rejected

the Thomas reasoning. Like O'Neill, the Pomeroy court

held that Younger abstention barred a federal court

lawsuit challenging the constitutionality of a state

administrative determination, where the litigant chose .

not to pursue an available avenue for judicial review in

the state courts. Pomeroy, 898 F.2d at 1317-18, see

McCartney, 896 F.2d at 1144 (8th Cir. 1990) (“Since

Huffman, courts have consistently held that a party

cannot avoid Younger by choosing not to pursue

available state appellate remedies.”)

More recently, the First Circuit rejected the Thomas

decision, calling it a minority view that had been

rejected by other circuits. Maymo, 364 F.3d at 35, n. 9.

The First Circuit aligned itself with the Third, Seventh

and Eighth Circuits in the O’Neill, Majors and

McCartney decisions, seeing no reason for “an

automatic right to detour into federal court because

unhappy with an initial answer” from a state agency.

Id. at 35.

The Ninth Circuit has also disagreed with Thomas,

although that opinion was later withdrawn. Nevada

Entertainment Industries v. City of Henderson, 8 F.3d 1348

(9th Cir. 1993), withdrawn and reh’g granted by, 21 F.3d

895 (9th Cir. 1994), later decided by, 26 F.3d 131 (9th Cir.

1994) (affirming the district court’s dismissal of

plaintiff's claim on other grounds, and dismissing the

city’s challenge of the district court’s refusal to abstain

as moot), cert. denied, 513 U.S. 1078 (1995). In the

withdrawn opinion, the Ninth Circuit found that

Younger barred an _ action challenging the

constitutionality of a zoning ordinance. The federal

plaintiff had failed to appeal a city zoning decision to

the state court, opting to wait until that decision

became final, then filing a federal court lawsuit. The

Ninth Circuit applied Younger, based upon a careful

review of Supreme Court decisions, stating: “It is

consistent with both Younger and Patsy for a federal

court to abstain from intervening where an

administrative proceeding has been initiated by the

state to enforce state law even if those proceedings

have concluded, where adequate state judicial review -

was available to the federal plaintiff.” Id. at 1351-52

(discussing Younger and Patsy v. Board of Regents of State

of Fla., 457 U.S. 496 (1982)).

Numerous lower courts have added to the lopsided

weight of authority against Thomas. See, e.g. Phillips v.

Virginia Bd. of Medicine, 749 F. Supp. 715, 728 (E.D. Va.

1990) (noting that the Supreme Court's NOPSI decision

directly contradicted Thomas and finds the effort in

Thomas to distinguish Huffman “unconvincing” ); Harper

v. Public Service Commission of West Virginia, 291 F.

Supp. 2d 443, 458 (S.D.W.Va. 2003), rev’d on other

grounds, 396 F.3d 348 (4th Cir. 2005) (agreeing that

Thomas is “unpersuasive and distinguishable”); Murphy

v. City of Manchester, 70 F. Supp. 2d 62, 68 (D. N.H.

1999) (rejecting Thomas and holding that failure to

appeal an administrative decision meant that state

proceedings were pending for purposes of the Younger

doctrine); Bongiorno v. Lalomia, 851 F. Supp. 606, 613 (D.

N.J. 1994) (noting Thomas, but then applying Younger to

a final decision of a state administrative proceeding

because there was a right to appeal to the state court);

Fore Way Express, Inc. v. State of Wisconsin, 660 F. Supp.

310, 313 (E.D. Wis. 1987) (distinguishing Thomas);

Communication Telesystems Internat’! v. California Public

Utilities Comm'n, 14 F. Supp. 2d 1165, 1169 (N.D. Cal.

1998) (distinguishing Thomas); and Moore v. City of

Asheville, 290 F. Supp. 2d 664, 667 (W.D.N.C. 2003)

affirmed and remanded, 396 F.3d 385 (4th Cir. 2005) (the

instant case).

The only other case cited by Petitioner, PUCO, does

not offer Thomas any real support. The Sixth Circuit's

reasoning on this issue in PUCO had no legs of its own,

but rested entirely upon the rubric of Thomas. As

Thomas has been roundly rejected, so too must PUCO

fall. Further, the PUCO Court had an additional basis

for declining to abstain: federal preemption. 926 F.2d

at 573.

The holding of PUCO has further been called into

question by a recent Sixth Circuit en banc ruling. Tesmer

v. Granholm, 333 F.3d 683 (6th Cir. 2003), rev’d on other

grounds, Kowalski v. Tesmer, __ U.S. __, 125 S. Ct. 564

(2004). The Tesmer court's analysis was solidly based

upon this Court’s ruling in Huffman. Although Tesmer

involved the application of Younger to court

proceedings instead of administrative proceedings, the

reasoning was clear: the determining factor was

whether the federal plaintiff had exhausted his avenues

of appeal, not whether the state proceeding was final.

10

The court equated the plaintiff's choice not to appeal

the unfavorable administrative outcome to a failure to

exhaust his remedies. His federal court lawsuit was

therefore barred. In no uncertain terms, the Tesmer

court found that the state proceeding remained

pending for Younger purposes “until a litigant has

exhausted his state appellate remedies,” even in cases

“where a litigant has abandoned pursuit of state court

relief.” Id. at 689.

Petitioner not only claims this case results in an

inter-circuit conflict, he also attempts to contrive an

intra-circuit conflict. The petition cites one Fourth

Circuit decision as conflicting with the decision below.

Pet. 12 - 13. The weakness of this argument is self-

evident: the supposedly conflicting decision is an

unpublished summary disposition. Sofer v. State of

North Carolina Hertford Police Dept., 935 F.2d 1287 (4th

Cir. 1991) (unpublished). In accordance with the

Fourth Circuit Rules, unpublished dispositions like

Sofer need not recite all of the relevant facts. 4th Cir. R.

36(b). Citation of unpublished dispositions is

disfavored in the Fourth Circuit because these cases do

not have precedential value. Id., R. 36(c). Therefore, the

unpublished opinion in Sofer cannot create an intra-

circuit conflict with the published decision of the

esteemed panel here. Pet. App. 42a.

The petition relies in a puzzling way on Wooley v.

Maynard, 430 U.S. 705 (1977), a decision that does not

fit the facts of this case. Pet. 21-23. As the court below

correctly pointed out, the complaint here sought

damages and a declaration that the City had violated

Petitioner’s constitutional rights. Wooley applies only

11

to cases seeking “wholly prospective” relief. Id. at 711.

Petitioner’s reliance on Wooley is not apt.?

Precious little is required to attain total harmony in

the circuits about the application of Younger to appeals

from the decisions of administrative agencies, in

accordance with this Court's decisions in Huffman,

Dayton Christian Schools and NOPSI. Five circuits have

forged the judicial consensus reflected in the decision

below. This prevailing majority view is now fully

evolved in accordance with this Court's rulings. The

now-outmoded minority view pressed by Petitioner is

extant, if at all, in only two circuits, by reason of

decisions issued eighteen and fourteen years ago.

Based upon the impressive array of authority against

Thomas, the Fifth Circuit will no doubt soon correct its

course by reconsidering this obsolete ruling. The Sixth

Circuit has already realigned its position through its en

banc ruling in Tesmer.

Surely many other petitions before this Court pose

more pressing and important issues. This Court's

scarce resources should be devoted to cases presenting

direct, vital and intolerable conflicts.

2 Petitioner’s effort to recast the complaint to his liking cannot

morph it into an important issue of federal law. If Petitioner were

correct in saying that his complaint sought “wholly prospective

relief” under Wooley and the Fourth Circuit erred in finding

otherwise, then this case would be fact-bound. Id. at 711. In other

words, if the petition is grounded on a claim that the Fourth

Circuit erred on the facts - which it plainly did not - this error

would be inconsequential and certiorari should be denied. No

troublesome questions or conflicting precedents are posed in

connection with the Wooley exception to Younger.

12

Il. THE DECISION BELOW IS_ PLAINLY

CORRECT.

The Fourth Circuit decision stands upon the firm

foundation of this Court’s Younger abstention

jurisprudence. This Court’s decisions in Huffman and

Dayton Christian Schools serve as beacons that clearly

guided this decision. Judges Niemeyer, Luttig and

King painstakingly analyzed this Court’s precedents

and carefully applied them to the facts of the case. The

result is a decision that is not only faithful to this

Court’s rulings, but also reflects the clear consensus

forged in the circuits. In stark contrast, the Thomas

decision urged by the petition continues to founder on

the shoals of unpersuasive reasoning and immaterial

distinctions.

The Younger doctrine is driven by the self-imposed

rule of judicial restraint known as comity. Strong

policies counsel against the exercise of jurisdiction

where comity would be offended. Dayton Christian

Schools, 477 U.S. at 626. This Court has charted a safe

course away from these shoals by enumerating the core

Younger concerns to be considered: (1) whether the

federal action was duplicative, (2) whether the action

would cast a direct aspersion on the capabilities and

good faith of state appellate courts, (3) whether the

action would disrupt the state’s efforts to protect its

important interests, and (4) whether the action was

designed to annul the results of the state proceeding.

Huffman, 420 U.S. at 608-9.

These core concerns are not the only directions

provided by this Court. In a long series of cases

13

following Younger, this Court delineated unambiguous

guideposts defining when and how Younger should be

applied. Huffman, supra. (civil nuisance proceedings);

Juidice v. Vai', 430 US. 327 (1977) (civil contempt

proceedings); Trainor v. Hernandez, 431 U.S. 434 (1977)

(attachment proceedings); Moore v. Sims, 442 US. 415

(1979) (child custody proceedings); and Middlesex

County Ethics v. Garden State Bar Ass’n, 457 U.S. 423

(1982) (bar disciplinarv proceedings). In particular, this

Court held that Younger applied to state administrative

proceedings, like the City’s noise ordinance process

here. Dayton Christian Schools, 477 U.S. at 628.

The Fourth Circuit did not take a new direction,

stray off course or blaze a new trail here. It simply

followed the course clearly charted by this Court and

mirrored in the decisions of its sister circuits. The

Fourth Circuit’s decision is commendably thorough in

its analysis, and did not miss one jot in explaining how

this Court’s rulings were considered and applied.

However, there is not much here that is new or

commands special attention from the Supreme Court.

The outcomes in these cases are predictable,

sensible and practical and are solidly based upon both

Supreme Court precedents and the judicial consensus

in the circuits. If a defendant to a _ coercive

administrative proceeding abandons an available

avenue of appeal, Younger will bar a federal action that

seeks effectively to annul the results of that

administrative proceeding. There is no genuine split of

authority, no divergence from this Court’s precedents

and no need for this Court to review this case.

14

III. PETITIONER VASTLY OVERSTATES THE

IMPORTANCE OF THIS CASE.

This case applies only to one narrowly confined

category of litigants: those who wish to short-circuit

administrative proceedings and state-court judicial

review by making federal cases out of their claims. Pet.

App. 19a. It affects only those who have abandoned an

available avenue of appeal in state courts because they

prefer a federal court forum. Pet. App. 3a. Opening

federal venues for forum-shoppers is hardly a top

priority for the administration of justice. And this

Court need not shield those who choose to default on

their rights from the consequences of their inaction.

This case simply does not merit further review.

Petitioner’s challenge to the City’s actions in

enforcing its noise ordinance belonged in the state

judicial system. If Petitioner was unhappy with the

City’s final decision, he was entitled to judicial review

in state court. After all, the state court is primarily

responsible for reviewing and overseeing state

agencies.

3 Petitioner seems to argue that the city noise ordinance

overrides this Court’s Younger decisions and controls which court

system is empowered to judicially review the city’s decisions. Pet.

15, 19, 26. It is axiomatic that a local ordinance issued by a city

council cannot change Younger doctrine. No city council can, by

its own authority, take away from the state court the ability to

correct constitutionally infirm city decisions and give this power

instead to a federal court. Nor can a city council, expand, contract

or alter the proper scope of the exercise of jurisdiction by a federal

court.

15

In its concluding paragraph, the petition asks this

~ Court to “grant review to protect the rights of federal

plaintiffs to have their constitutional rights protected

by the federal court.” Pet. 27. This request suggests that

Petitioner may assume that he has a right to vindicate

his federal claims in a federal forum. However, this

Court has repeatedly - and again very recently -

explained that this assumption is not well founded. San

Remo Hotel, L.P. v. City and County of San Francisco, ___

U.S.__, 2005 WL 1421451, at *1 June 20, 2005) (state

proceedings can “deprive plaintiffs of the ‘right’ to

have their federal claims relitigated in federal court,”

even when the plaintiff “would have preferred not to

litigate in state court”).

Furthermore, state courts have the solemn

responsibility, equally with the federal courts, to

guard, enforce, and protect every right granted or

secured by the U.S. Constitution. Steffel v. Thompson,

415 US. 452, 460-61 (1974). For the vigilant party who

pursues every available remedy, Younger abstention

does not impair their constitutional rights. After all,

the state courts that oversee these administrative

determinations have inherent authority and are

competent to adjudicate claims arising under the laws

of the United States. Tafflin v. Levitt, 493 U.S. 455

(1990); See The Federalist, No. 82.

Petitioner did not need to file a federal lawsuit to

protect or vindicate his constitutional rights because he

could have exhausted his administrative remedies, and

then, if still unsatisfied, obtained judicial review in

state court. By choosing not to pursue his appeal, he

abandoned those rights. The mere fact that Petitioner

16

wanted a second bite at the apple - and wanted to

chew it in federal court - does not mean that this is

guaranteed by “Our Federalism.”

CONCLUSION

The petition for certiorari should be denied.

Respectfully submitted,

Sharon Tracey Barrett

Counsel of Record

Cindy M. Rice

PATLA, STRAUS,

ROBINSON & MOORE, P.A.

29 North Market Street

Post Office Box 7625

Asheville, North Carolina 28801

(828) 255-7641

Robert W. Oast, Jr.

Curtis W. Euler

CITY ATTORNEY'S OFFICE

Post Office Box 7148

Asheville, North Carolina 28802

(828) 259-5610

Attorneys for Respondent

JUNE 27, 2005

FILED

SEP 2 1 2005

O OFFICE OF THE CLERK

No. 04-1593 SUPREME COUT, U.S.

IN THE

Supreme Court of the United States

+

CARROLL MOORE,

Petitioner.

Vv.

CITY OF ASHEVILLE, NORTH CAROLINA,

Respondent.

———Qn Petition for Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

REPLY BRIEF OF PETITIONERS IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

Mathew D. Staver

(Counsel of record)

Enk W. Stanley

Anita L. Staver

Rena M. Lindevaldsen

Mary E. McAlister

LIBERTY COUNSEL

210 East Palmetto Avenue

Longwood, FL 32750

(407) 875-2100

Attorneys for Petitioner

i

TABLE OF CONTENTS

TABLE OF CONTENTS

TABLE OF AUTHORITIES

ARGUMENT

THE CIRCUIT COURTS ARE SPLIT ON

THE APPLICABILITY OF YOUNGER

ABSTENTION WHEN A _ STATE

PROCEEDING HAS BECOME FINAL

I.

THE ISSUE PRESENTED IN THE

PETITION IS ONE OF GREAT PUBLIC

IMPORTANCE THAT THE DISTRICT

COURT INCORRECTLY DECIDED

CONCLUSION

i

TABLE OF AUTHORITIES

CASES

Allegheny Corp v. Haase,

896 F.2d 1046 (7th Cir. 1990)

Allegheny Corp. v. McCartney,

896 F.2d 1138 (8th Cir.1990)

Allegheny Corp. v. Pomeroy,

898 F.2d 1314 (8th Cir. 1990)

Bonner v. Pritchard,

661 F.2d 1206 (11th Cir. 1981)

Colorado River Water Conservation Dist. v. U.S.,

424 U.S. 800 (1976)

Concerned Citizens of Vicksburg v. Sills,

567 F.2d 646 (5th Cir. 1978)

Geotes v. Mississippi Bd. of Veterinary Medicine,

986 F. Supp. 1028 (S.D. Miss. 1997)

Giles v. City of Prattville,

556 F. Supp. 612 (M.D. Ala. 1983)

Hawaii Housing Authority v. Midkiff,

467 U.S. 229 (1984)

Huffman v. Pursue,

420 U.S. 592 (1975)

Kercado-Melendez v. Aponte-Roque,

829 F.2d 255 (1st Cir. 1987)

Louisiana Debating and Literary Ass'n. v. City of New

Orleans,

42 F.3d 1483 (Sth Cir. 1995)

Majors v. Engelbrecht,

149 F.3d 709 (7th Cir. 1998)

Maymo-Melendez v. Alvarez-Ramirez,

364 F.3d 27 (ist Cir. 2004)

New Orleans Public Service, Inc. v. Council of the City of

New Orleans,

491 U.S. 350 (1989)

Norfolk & Western Railway Co. v. Public Utilities

Comm'n. of Ohio,

926 F.2d 567 (6th Cir. 1991)

O'Neill v. City of Philadelphia,

32 F.3d 785 (3d Cir. 1994)

Patsy v. Board of Regents,

457 U.S. 496 (1982)

Sofer v. State,

935 F.2d 1287,

1991 WL 107545 (4th Cir. 1991)

Steffel v. Thompson,

415 U.S. 452

Tesmer v. Granholm,

333 F.3d 683 (6th Cir. 2003)(en banc)........ 5,6

Thomas v. Texas State Board of Medical Examiners,

807 F.2d 453 (Sth Cir. 1987)

THE CIRCUIT COURTS ARE SPLIT ON THE

APPLICABILITY OF YOUNGER ABSTENTION

WHEN A STATE PROCEEDING HAS BECOME

FINAL.

Respondent does not deny the existence of a Circuit split

on the issue presented by this Petition. Respondent’s

argument is limited to the contention that the Circuit split is

not worthy of resolution because the cases supporting

Petitioner are, according to Respondent, stale and the cases

opposing Petitioner have developed a consensus among

themselves. Respondent also contends that the Circuit split is

not worthy of resolution because the Circuits opposing

Petitioner have criticized the reasoning of the Circuits

supporting Petitioner’s arguments in this case. Respondent

also states that Petitioner has missed Circuit court cases that

state the majority position. All Respondent has done is to

highlight the existence of the Circuit split that exists on the

issue presented in the Petition and also highlighted the fact

that the split actually exists and needs resolution.

This Court candidly stated thatthe issue presented by this

case has never been squarely addressed. See New Orleans

Public Service, Inc. v. Council of the City of New Orleans,

491 U.S. 350, 369 n.4 (1989). However, the issue has been

addressed squarely by several lower courts, with divergent

results.

As Respondent has acknowledged, the Fifth and Sixth

Circuits (and the Eleventh Circuit by importation of the

Fifth’s precedent) clearly hold that when state proceedings

2

have become final, Younger abstention is not appropriate

even though state judicial remedies were available to a

plaintiff. See Thomas v. Texas State Board of Medical

Examiners, 807 F.2d 453 (Sth Cir. 1987); Concerned Citizens

of Vicksburg v. Sills, 567 F.2d 646 (5th Cir. 1978)'; Norfolk

& Western Railway Co. v. Public Utilities Comm'n. of Ohio

(“PUCO”), 926 F.2d 567 (6th Cir. 1991).

In contrast, other Circuit courts have held that a plaintiff

is required to exhaust all judicial remedies in order to bring

suit in federal court, and that if some state remedy is available

to the plaintiff, Younger abstention is appropriate even if the

state proceedings are final. See O’Neiil v. City of

Philadelphia, 32 F.3d 785 (3d Cir. 1994); Allegheny Corp v.

Haase, 896 F.2d 1046 (7th Cir. 1990); Allegheny Corp. v.

Pomeroy, 898 F.2d 1314 (8th Cir. 1990).

Petitioner did not ignore cases as the Respondent

suggests. The First Circuit case of Maymo-Melendez v.

Alvarez-Ramirez, 364 F.3d 27 (1st Cir. 2004) is inapposite. In

that case, Maymo brought a federal lawsuit to challenge the

suspension of his horse training license. At the time of the

filing of the federal lawsuit, Maymo’s license had been

suspended by the Racing Administrator under one case. /d. at

30. Maymo filed the federal lawsuit and, two days later,

petitioned the Racing Board for review of the Racing

Administrator’s suspension. /d. The Racing Administrator

returned the petition for review because of the federal court

' Because the Sills case was decided prior to 1981, it is binding

precedent in the Eleventh Circuit. See Bonner v. Pritchard, 661

F.2d 1206 (11th Cir. 1981). The Eleventh Circuit has no precedent

to the contrary of Sills. Sills remains the rule in that Circuit.

Therefore, the Circuit split in this case encompasses the Eleventh

Circuit together with the Fifth and Sixth Circuits.

3

litigation. Maymo also had another case pending where the

Racing Board had suspended his license for five years.

Maymo sought review of that action in the state court. The

state court affirmed the suspension and Maymo filed a petition

for reconsideration. Jd. at 32. Maymo then filed a second

federal lawsuit while his petition for reconsideration was

pending. Jd. The First Circuit held that abstention under

Younger was appropriate because both state cases were

pending at the time of both federal lawsuits. In the first case,

Maymo had petitioned the Racing Board to review the

Administrator’s decision to suspend his license. In the second

case, Maymo had an ongoing state appeal petition for

reconsideration pending. |

The First Circuit distinguished a previous case entitled -

Kecado-Melendez v. Aponte-Roque, 829 F.2d 255 (ist Cir.

1987). In that case, Kercado was terminated from her teaching

position. Jd. at 257-58. The order said it would take effect ten

days after receipt unless Kercado chose to appeal to the Board

of Appeals for the Public Education System. Jd. Kercado

instead filed a federal lawsuit. The First Circuit held

abstention under Younger was inappropriate.

In reconciling Kercado and Maymo, the First Circuit

stated, “There is a spectrum stretching from Huffman [v.

Pursue, 420 U.S. 592 (1975)] to Patsy [v. Board of Regents,

457 U.S. 496 (1982)] and Kercado-Melendez may be in the

middle; but Maymo’s situation is clearly at the Huffman end.

Factually, Maymo is distinguishable from the present case.

In Maymo, the state cases were pending at the time of the

federal lawsuits. One was pending before the Racing Board

and one was pending before the state court of appeals. In the

present case, Petitioner’s state administrative proceedings

were final and there were no pending state court proceedings.

Factually, Maymo is inapposite from the present case.

4

Further, Majors v. Engelbrecht, 149 F.3d 709 (7th Cir.

1998), is also inapposite. In that case, a hospital had

suspended Majors’ nursing license. In mid-November, 1995,

the State Board of Nursing set a hearing on the revocation of

the license for December 18, 1995. Jd. at 711. A few days

after the hearing was set, Majors filed a federal lawsuit

seeking to enjoin the revocation of lis license. /d. In the midst

of the federal case, the State Board revoked Majors’ license

and Majors filed a petition in state court asking the state court

to reinstate his license. /d. at 712. The Seventh Circuit

abstained under the principle that the state case was clearly

ongoing at the time of the federal lawsuit. /d. at 713.

Majors is clearly inapposite because the administrative

proceeding was not final and a state court review proceeding

was filed in the midst of the federal lawsuit.

Respondent contends that Petitioner also neglected to

mention the case of Allegheny Corp. v. McCartney, 896 F.2d

1138 (8th Cir. 1990). However, Petitioner did mention the

Eighth Circuit case of Allegheny Corp. v. Pomeroy, 898 F.2d

1314 (8th Cir. 1990), which was a companion case decided

the same day as McCartney. The rule announced in Pomeroy

was the same rule announced and applied in McCartney. The

Eighth Circuit’s position on the issue presented in this case is

clear and stands in opposition to the Fifth, Sixth and Eleventh

Circuit’s position.

Contrary to Respondent’s argument, the Fifth and Sixth

Circuit decisions are not stale. The Fifth and Sixth Circuit

cases are considered settled law in those circuits. The

precedents have not become stale. The Fifth Circuit’s decision

in Thomas relied upon the previous case of Concerned

Citizens of Vicksburg v. Sills, 567 F.2d 646 (Sth Cir. 1978).

Sills has been cited with approval in the Fifth Circuit. See

Louisiana Debating and Literary Ass'n. v. City of New

5

Orleans, 42 F.3d 1483 (Sth Cir. 1995); Giles v. City of

Prattville, 556 F. Supp. 612 (M.D. Ala. 1983). Further,

Thomas has been cited with approval in the Fifth Circuit. See

Geotes v. Mississippi Bd. of Veterinary Medicine, 986 F.

Supp. 1028 (S.D. Miss. 1997). Neither Thomas nor Sills have

been overruled or questioned by the Fifth Circuit. Far from

being stale, the two cases have become settled precedent in

the Fifth Circuit.

Additionally, the Sixth Circuit’s precedent is not stale.

The PUCO case has not been overruled and continues as good

precedent in the Sixth Circuit. Contrary to Respondent’s

argument, the PUCO case has not been called into question

by Tesmer v. Granholm, 333 F.3d 683 (6th Cir. 2003)(en

banc). Tesmer is inapposite. In Tesmer, three indigent

defendants in state criminal proceedings and two attorneys

regularly appointed as defendant’s counsel filed suit against

a Michigan statute that prohibited the appointment of counsel

for an indigent defendant on appeal if the defendant pled

guilty or nolo contendere. Jd. at 686. The Sixth Circuit held

abstention was appropriate as to one of the criminal

defendants because, even though his application for leave to

appeal was denied, under Michigan’s procedural rules, he had

a certain time period to file for leave to appeal with the

Michigan Supreme Court. Jd at 689. Instead of filing with the

Michigan Supreme Court, the defendant filed the federal

lawsuit. The. Sixth Circuit held that abstention was

appropriate because, by seeking injunctive relief, the

defendant was attempting to obtain federal review of state

proceedings before the state proceedings were fully decided.

Id.

The Tesmer case never even cited PUCO in its discussion

whether the state court cases were ongoing. Further, PUCO

addressed the question of when a state administrative

6

proceeding had become fimil, but no state court action had

_ been instituted to review the administrative proceeding. That

is a different case than Tesmer where state court proceedings

were clearly pending at the time of the federal lawsuit.

Tesmer in no way Calls into question the Sixth Circuit’s

decision in PUCO and PUCO has in no way been overruled

or called into question by the Sixth Circuit.

The bare fact that the Circuits in opposition to the Fifth,

Sixth and Eleventh Circuits have developed a consensus

among themselves is irrelevant to the existence of the Circuit

split that still exists and needs resolution by this Court.

Simply because some of the Circuits have criticized the

reasoning of other Circuits does not mean that a split does not

exist. In fact, criticism of the Fifth and Sixth Circuit’s

decisions in Thomas, Sills, and PUCO highlights that the

Circuit Courts are in disagreement as to the application of

Younger abstention when state administrative proceedings are

final and no state court action is instituted to review those

proceedings, but a federal lawsuit is filed. The Fifth and Sixth

Circuits (and the Eleventh by importation of the Fifth’s

precedent in Si/ls) have remained impervious to the criticism

leveled by some of the Circuits who stand in opposition to the

rules in those cases.

Respondent also argue that the Fourth Circuit’s decision

in Sofer v. State, 935 F.2d 1287, 1991 WL 107545 (4th Cir.

1991), should be disregarded because it is an unpublished

decision of no precedential value in the Fourth Circuit. This

is not true under the Fourth Circuit’s rules for citation of

unpublished decisions. While citation to an unpublished

decision is normally disfavored, the Local Rules of the Fourth

Circuit state:

If counsel believes, neveriGiess: that an unpublished

disposition of this Court has precedential value in

7

relation to a material issue in a case and that there is

no published opinion that would serve as well, such

disposition may be cited if counsel serves a copy

thereof on all other parties in the case and on the

Court.

Fourth Circuit Local Rule 36(c). In the present case, the

Sofer decision has precedential value for the abstention issue

and there is no other published decision-in the Fourth Circuit

that serves as well to highlight the internal inconsistency in

the Fourth Circuit on this issue. The Sofer decision may be

cited in the Fourth Circuit as precedent and thus should be

considered by this Court in deciding whether to accept this

Petition. Sofer stands in direct conflict with the present case

in the Fourth Circuit. The two cannot be reconciled. Thus, the

Fourth Circuit is even at odds with itself over the issue

presented in the Petition.

Petitioner has not overblown the conflict in the Circuits

on this issue. The Fifth, Sixth and Eleventh Circuits (and one

decision in the Fourth Circuit) stand in direct opposition to

the Third and Eighth Circuits which are in agreement with the

Fourth Circuit (in this case) on the issue presented in this

Petition. Respondent has done nothing but to highlight the

split that is evident in the lower courts on the issue presented

in this case.

Il.

THE ISSUE PRESENTED IN THE PETITION IS

ONE OF GREAT PUBLIC IMPORTANCE

THAT THE DISTRICT COURT

INCORRECTLY DECIDED.

Respondent contends that this case is unimportant because

it applies to “one narrowly confined category of litigants.” See