# Opposition Brief — Moore v. City of Asheville

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_0951%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2005
- **Citation:** 546 U.S. 819

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_0951%3A2. Public record. Not legal advice.