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Sunday, September 22, 2019

Minding the abstention gaps

I am trying to make heads or tales of this Third Circuit decision, which reveals some problems and holes in abstention.

A family court awarded custody of Malhan's children to Myronova, his ex-wife, ordered him to pay child and spousal support, and to give his ex rental income from their jointly owned properties. Malhan eventually received joint custody (and more than half of residential time) and the court ordered Myronova to return some money. But the court postponed a request to reduce child-support obligations until final judgment (which has not issued), although the children spend more time with Malhan and he earns less money than is ex. At one point Malhan stopped paying child support (in erroneous reliance on a comment by the judge), causing the court to garnish his wages. Malhan sued in federal court, challenging (among other things) the disclosure and administrative levy of his bank accounts, the garnishing of his wages (which order was vacated), and the refusal to allow the plaintiff to claim certain offsets and counterclaims in the state proceedings.

This type of case has been identified as the paradigm Rooker-Feldman case: A party claiming constitutional injury by the custody and similar orders of a state family court. And the district court dismissed the action on that ground. But the Third Circuit reversed, holding that the plaintiff was not a state-court loser because there was no "judgment" from the state court, no order that was final as a formal or practical matter over which SCOTUS might have jurisduction under § 1257. The state proceedings are ongoing--motions are pending, discovery has not closed, no trial is scheduled, and the court has declined to give Malhan relief until that final judgment.

There is a circuit split was to whether Rooker-Feldman applies to interlocutory state-court orders. The Third Circuit adopted the textual argument to say no. RF is based on § 1257 giving SCOTUS exclusive jurisdiction to review state-court judgments; a district court thus lacks jurisdiction to review a challenge to a state-court judgment, which should instead be appealed through the state system and then to SCOTUS. On that view, RF does not apply to state-court orders that could not be appealed to SCOTUS, such as non-final orders.

The argument for RF barring challenges to interlocutory orders relies on the policies underlying RF that federal district courts should not interfere with state-court proceedings or be a forum for obtaining review and relief from state-court decisions. That policy is as offended by an attempt to circumvent state appellate procedure on an interlocutory order as on a final order. One could identify a textual component, tying it to § 1331 granting district court "original" jurisdiction, leaving them without power to, in practice, exercise appellate jurisdiction over a state-court order, even an interlocutory order.

The court rejected an alternate argument that the three claims were barred by Younger. None of the three claims fit the third Younger category of involving "certain orders uniquely in furtherance of the state courts' ability to perform their judicial functions." Count 2 challenged the administrative rules for collecting non-final money judgments; Count 5 challenged orders that are more like final monetary judgments and less like orders (such as contempt or appeal bonds) in furtherance of other judicial orders and thus enabling judicial functions. And the garnishment orders in Count 6 are threatened but not pending, thus federal jurisdiction would not interfere with state-court adjudication of those issues. The Younger analysis probably is correct, although the analysis as to Count 2 seems strained and the analysis and the analysis as to Count 6 suggests the challenge is moot, although the court strains to explain why it is not.

But the case produces a large abstention gap. An ordinary state-court interlocutory order in private civil litigation, one that is not akin to a contempt or appeals-bond order (orders that SCOTUS identified as enabling the state court to operate, as opposed to resolving the particular case), can be challenged in a § 1983 action. But Younger and RF together should mean that state courts must be allowed to decide the cases before them, without interference from federal district courts, subject to eventual review through the state system and to SCOTUS under § 1257. This case may allow substantial number of such cases into federal court.

Posted by Howard Wasserman on September 22, 2019 at 07:25 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink

Comments

I wrote a memo once arguing that Rooker-Feldman should apply to state court decisions that were on appeal, but I didn't find a circuit split on that, only some district court decisions on my side, one affirmed by the 4th in an unpublished opinion that didn't comment on the issue. I checked recently and things hadn't changed. Do you know of a circuit split on Rooker-Feldman and interlocutory orders?

Posted by: Asher Steinberg | Sep 23, 2019 2:39:17 PM

The link seems to have been recently down, but I believe this is a copy:
https://cases.justia.com/federal/appellate-courts/ca3/18-3373/18-3373-2019-09-18.pdf?ts=1568824207

Posted by: Orin Kerr | Sep 23, 2019 2:25:52 AM

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