PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 18-3373
SURENDER MALHAN, for himself and as parent of E.M.
and V.M.,
Appellant
v.
SECRETARY UNITED STATES DEPARTMENT OF
STATE; ATTORNEY GENERAL NEW JERSEY; STATE OF
NEW JERSEY; ELIZABETH CONNOLLY, in her official
capacity as acting Commissioner of Office of Child Support
Services; NATASHA JOHNSON, in her official capacity as
Director Division of Family Development; JOHN DOES 1-
10; OFFICE OF CHILD SUPPORT SERVICES
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-16-cv-08495)
District Judge: Honorable Claire C. Cecchi
Argued on April 3, 2019
Before: CHAGARES and HARDIMAN, Circuit Judges, and
GOLDBERG,* District Judge.
(Filed September 18, 2019)
Paul A. Clark [Argued]
Suite 1N
10 Huron Avenue
Jersey City, NJ 07306
Attorney for Appellant
Melissa H. Raksa
Ragner E. Jaeger [Argued]
Office of Attorney General of New Jersey
Department of Health & Human Services
25 Market Street
Richard J. Hughes Justice Complex
Trenton, NJ 08625
Attorneys for Appellees
OPINION OF THE COURT
HARDIMAN, Circuit Judge.
This case arises out of a family law dispute that began
in 2011 and remains pending in Hudson County, New Jersey.
*
Honorable Mitchell S. Goldberg, District Judge,
United States District Court for the Eastern District of
Pennsylvania, sitting by designation.
2
Over the past eight years, the family court has required
Appellant Surender Malhan to pay some $300,000 in child and
spousal support to his putative ex-wife, Alina Myronova. The
crux of Malhan’s complaint is that New Jersey officials
violated his federal rights when they failed to reduce his
support obligations after he was awarded custody of their two
children and Myronova obtained a job that pays more than his
own. The District Court dismissed Malhan’s second amended
complaint, holding that it lacked jurisdiction under the Rooker-
Feldman doctrine. And to the extent it had jurisdiction, the
District Court declined to exercise it under Younger v. Harris,
401 U.S. 37 (1971). In our view, Malhan is entitled to federal
court review of some of his claims. So we will affirm in part,
reverse in part, and remand for further proceedings.
I
In February 2011, Myronova sued Malhan for divorce
in Hudson County, New Jersey.1 The family court awarded
Myronova full custody of the couple’s two minor children and
ordered Malhan to pay $6,000 per month for child and spousal
support. Malhan also had to give Myronova rental income from
their jointly owned properties, which the court earmarked for
mortgage payments.
1
The family court case is Myronova v. Malhan, No. FM-
07-001952-14. We view the facts in the light most favorable to
Malhan because the District Court accepted his pleaded facts
as true and treated the State’s motion to dismiss as a facial
attack on jurisdiction. See Schuchardt v. President of the United
States, 839 F.3d 336, 343 (3d Cir. 2016); Malhan v. Tillerson,
2018 WL 2427121, at *1–2 (D.N.J. May 30, 2018).
3
After suffering these setbacks, Malhan received some
favorable rulings from the family court. In 2012, he was
awarded joint custody of the children, which increased their
proportion of overnight stays with Malhan from zero to more
than half. The year after, the court found Myronova owed
Malhan about $44,000, half of which was rental income
Myronova had embezzled for personal use rather than pay the
mortgage. The other half was spousal support the court ordered
her to return because she had been living with her boyfriend.
Soon after he obtained these favorable rulings, Malhan
sought a reduction in his child support obligations. But the
court decided to postpone any reduction until a final judgment
of divorce, which still has not issued. And in the years since,
the gap between what Malhan must pay and what he should
pay has only widened. See N.J. Rule of Court 5:6A, Appendix
IX-A, Considerations in the Use of Child Support Guidelines 2
(2018); App. 28–30. By 2016, Myronova’s annual income had
increased from zero to more than $100,000—well over
Malhan’s income of about $60,000.
Despite this reversal in their economic fortunes, Malhan
still must pay Myronova $3,000 per month in child support—
an amount the court refuses to recalculate even after
acknowledging it is unusual “for a parent who is not the parent
of primary residence” to receive child support. App. 56 ¶ 179.
Relying on that comment, Malhan briefly stopped paying child
support. Because the comment was not an order lifting his
obligations, however, Malhan fell into arrears, and the court
ordered his wages garnished.
Unable to find relief in family court, Malhan filed a six-
count complaint in federal court. The three counts most
4
relevant to this appeal seek declaratory or injunctive relief
against New Jersey officials for violating federal law:
• Count 2 challenges the disclosure of Malhan’s bank
records and the administrative levy of his bank account.
It alleges violations of 42 U.S.C. § 669a, a provision of
the Child Support Enforcement Amendments of 1984
(CSEA) to Title IV-D of the Social Security Act. See
Pub. L. No. 98-378, 98 Stat. 1305; App. 42–49.
• Count 5 claims Defendants are violating Malhan’s right
to due process of law by refusing to permit
counterclaims and offsets to his child and spousal
support debt. See App. 54–55.
• Count 6 alleges that the garnishment of Malhan’s wages
violates the CSEA and § 303 of the Consumer Credit
Protection Act, 15 U.S.C. § 1673. See App. 55–64. The
family court’s garnishment order was in place until
March 2018. The court then vacated its order in
response to the U.S. Department of Labor, which said
the garnishment violated § 1673(c). See App. 75–76.2
2
New Jersey claims “[t]he only challenged conduct on
the part of the State Defendants is the OCSS [Office of Child
Support Services] levy, which is moot.” N.J. Br. 10 (citing App.
18–19). That is incorrect. Count 2 challenges the alleged
disclosure of bank records (and the agency levy). See App. 42–
49. Count 5 contests the debt from the child support and
spousal support orders. See App. 54–55. Count 6 challenges
the family court’s (now vacated) garnishment order. See App.
55–63.
5
The District Court dismissed Counts 2, 5, and 6 on two
independent grounds. First, the Court held it lacked subject
matter jurisdiction under the Rooker-Feldman doctrine, which
bars district court review of state court judgments. See Malhan
v. Tillerson, 2018 WL 2427121, at *6–8 (D.N.J. May 30, 2018).
It reasoned “(1) the Family Court has made a determination as
to Plaintiff’s parenting situation, as well as Plaintiff’s child
support obligations; (2) Plaintiff is complaining of these
findings; (3) the Family Court made its findings before
Plaintiff filed this matter; and (4) Plaintiff is asking this Court
to overturn the Family Court’s findings.” Id. at *6 (applying
Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615
F.3d 159, 166 (3d Cir. 2010)). Second, the Court invoked
Younger abstention to decline jurisdiction. See id. at *6–8. It
did so because Malhan’s suit implicated “important state
interests” and the New Jersey family court offered an
“adequate opportunity to raise federal claims.” Id. at *7.
Malhan filed this timely appeal.3
And the State points to nothing in the record that
suggests the levy is moot. Its only citation is to the District
Court opinion, which noted that the family court had vacated
its garnishment order. Malhan, for his part, certifies that OCSS
levied his bank account as recently as February 2018. App. 72
¶ 17. He attaches a scan of OCSS’s own “Notice of Levy” as
support. App. 73–74.
3
Malhan did not appeal the dismissal of Counts 1 or 4.
The District Court also dismissed Count 3, which alleged
violations of three CSEA/Title IV-D provisions. Analyzing
6
II
A
We first address the District Court’s holding that it
lacked jurisdiction under Rooker-Feldman. That doctrine
only one of the provisions, the Court held that the CSEA does
not provide a private right of action.
That methodology was error. “Only by manageably
breaking down the complaint into specific allegations can the
District Court proceed to determine whether any specific claim
asserts an individual federal right.” Blessing v. Freestone, 520
U.S. 329, 346 (1997) (examining child support under Title
IV-D). The requisite degree of specificity is “whether the
‘provision in question’ was designed to benefit the plaintiff.”
Id. at 342 (quoting Golden State Transit Corp. v. City of Los
Angeles, 493 U.S. 103, 106 (1989)); see also, e.g., Cuvillier v.
Taylor, 503 F.3d 397, 404–05 (5th Cir. 2007) (analyzing 42
U.S.C. §§ 651, 652, and 654(4)(B), (13)). And normally, “this
defect is best addressed by sending the case back for the
District Court to construe the complaint in the first instance.”
Blessing, 520 U.S. at 346.
But instead of challenging the Court’s holding, Malhan
argues that the Declaratory Judgment Act entitles him to relief.
See Malhan Br. 30–34 (discussing 28 U.S.C. § 2201). “[T]he
Declaratory Judgment Act is procedural only,” Aetna Life Ins.
Co. of Hartford v. Haworth, 300 U.S. 227, 240 (1937), and
“presupposes the existence of a judicially remediable right,”
Schilling v. Rogers, 363 U.S. 666, 677 (1960). It creates a
remedy, not rights. See State Auto Ins. Companies v. Summy,
234 F.3d 131, 133 (3d Cir. 2000). We will affirm the dismissal
of Count 3 for that reason.
7
conflicts with the familiar maxim that federal courts have a
“virtually unflagging” duty to exercise jurisdiction conferred
by Congress. Colorado River Water Conservation Dist. v.
United States, 424 U.S. 800, 817 (1976). At the same time,
federal district courts are not amenable to appeals from
disappointed state court litigants. A litigant seeking to appeal a
state court judgment must seek review in the United States
Supreme Court under 28 U.S.C. § 1257. Id. As the Court has
explained:
Rooker and Feldman exhibit the limited
circumstances in which [the] Court’s appellate
jurisdiction over state-court judgments, 28
U.S.C. § 1257, precludes a United States district
court from exercising subject-matter jurisdiction
in an action it would otherwise be empowered to
adjudicate under a congressional grant of
authority, e.g., § 1330 (suits against foreign
states), § 1331 (federal question), and § 1332
(diversity).
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280,
291 (2005) (emphasis added).
Although those “limited circumstances” arose only
twice in the Supreme Court—in Rooker and Feldman
themselves—lower courts applied the doctrine liberally for
some time. See, e.g., id. at 283; Thomas D. Rowe Jr. & Edward
L. Baskauskas, “Inextricably Intertwined” Explicable at Last?
Rooker-Feldman Analysis after the Supreme Court’s Exxon
Mobil Decision, 1 Fed. Cts. L. Rev. 367, 370–71 (2006). That
changed in 2005 when the Court decided Exxon. There, the
Court reversed our expansive interpretation of Rooker-
Feldman and “confined” the doctrine “to cases of the kind from
8
which [it] acquired its name: [1] cases brought by state-court
losers [2] complaining of injuries caused by state-court
judgments [3] rendered before the district court proceedings
commenced and [4] inviting district court review and rejection
of those judgments.” 544 U.S. at 284; accord, e.g., Geness v.
Cox, 902 F.3d 344, 360 (3d Cir. 2018).
Given these elements, the problem with the District
Court’s application of Rooker-Feldman is readily apparent:
Malhan does not “complain[ ] of injuries caused by [a] state-
court judgment.” Exxon, 544 U.S. at 284 (emphasis added). In
fact, as the District Court implied in its order denying
reconsideration, there is no judgment at all because Malhan is
complaining of “findings” and “determinations” of the family
court. App. 4. But does Rooker-Feldman apply to the family
court’s interlocutory orders?
The answer is less than clear. Before Exxon, we thought
Rooker-Feldman barred review of interlocutory state court
orders that “resolved, at least for the moment, the dispute
between the parties which forms the basis of the federal
complaint.” Port Auth. Police Benev. Ass’n, Inc. v. Port Auth.
of N.Y. & N.J. Police Dep’t, 973 F.2d 169, 178 (3d Cir. 1992).
Since Exxon, we have not addressed whether Port Authority
remains good law. See, e.g., Argen v. Kessler, 2018 WL
4676046, at *6–7 & n.10 (D.N.J. Sept. 28, 2018). And the
decisions of our panels and district courts have been
inconsistent. Compare, e.g., Shawe v. Pincus, 265 F. Supp. 3d
480, 489 (D. Del. 2017) (citing Port Authority and collecting
four non-precedential opinions applying Rooker-Feldman to
interlocutory orders after Exxon), and Mayeres v. BAC Home
Loans, 2011 WL 2945833, at *4 (Bankr. D.N.J. July 21, 2011)
(citing Port Authority and stating “the suggestion that Rooker-
Feldman does not apply to interlocutory orders is at odds with
9
Third Circuit precedent”), and Raphael Graybill, Comment,
The Rook That Would Be King, 32 Yale J. on Reg. 591, 596–
600 (2015), with Argen, 2018 WL 4676046, at *7 (declining to
apply the doctrine to interlocutory orders), and RegScan, Inc.
v. Brewer, 2005 WL 874662, at *3 (E.D. Pa. Apr. 13, 2005)
(same).
Exxon itself offers conflicting guidance. On the one
hand, “judgment” might include non-final orders like
preliminary injunctions. That reading would follow the Federal
Rules of Civil Procedure. See Fed. R. Civ. P. 54(a)
(“‘Judgment’ as used in these rules includes a decree and any
order from which an appeal lies.”). On the other hand, Exxon
described Rooker and Feldman as cases in which “the losing
party in state court filed suit in federal court after the state
proceedings ended.” 544 U.S. at 291 (emphasis added); accord
Skinner v. Switzer, 562 U.S. 521, 531 (2011). That language
suggests that Rooker-Feldman applies only to final state court
judgments. And the Court’s holding that Rooker-Feldman “is
confined to cases of the kind from which the doctrine acquired
its name,” 544 U.S. at 284, invites disagreement about the
scope of Rooker and Feldman.
Fortunately, six of our sister circuits have reconciled
Exxon’s different readings by holding that interlocutory orders
are “judgments” only when they are effectively final. The
foundational case in this “practical finality” approach is the
First Circuit’s Federacion de Maestros de Puerto Rico v. Junta
de Relaciones del Trabajo de Puerto Rico, 410 F.3d 17 (1st Cir.
2005). Five courts of appeals have cited Federacion with
approval. See Robins v. Ritchie, 631 F.3d 919, 927 (8th Cir.
2011); Nicholson v. Shafe, 558 F.3d 1266, 1274–76, 1279 (11th
Cir. 2009); Guttman v. Khalsa, 446 F.3d 1027, 1032 & n.2
(10th Cir. 2006); Hoblock v. Albany Cty. Bd. of Elections, 422
10
F.3d 77, 89 (2d Cir. 2005); Mothershed v. Justices of Supreme
Court, 410 F.3d 602, 604 n.1 (9th Cir. 2005), as amended on
denial of reh’g, 2005 WL 1692466 (9th Cir. July 21, 2005).
Federacion outlines three situations in which there is a
Rooker-Feldman “judgment.” The first is when “the highest
state court in which review is available has affirmed the
judgment below and nothing is left to be resolved.”
Federacion, 410 F.3d at 24. Then the judgment is a “[f]inal
judgment[ ] or decree [ ] rendered by the highest court of a
State in which a decision could be had” under § 1257. Id.
(quoting 28 U.S.C. § 1257(a)). The Supreme Court has
exclusive jurisdiction in those cases, and “the state proceedings
[have] ended” under Exxon. 544 U.S. at 291; see Federacion,
410 F.3d at 24.
The second situation is when “the state action has
reached a point where neither party seeks further action.”
Federacion, 410 F.3d at 24. An example is when a lower state
court “issues a judgment and the losing party allows the time
for appeal to expire.” Id. Or “the lower state court does not
issue a judgment but merely an interlocutory order (e.g., a
discovery order determining whether certain documents were
privileged), and the parties then voluntarily terminate the
litigation.” Id. at n.10. In this situation, unlike the first, usually
there is not “an appealable ‘final judgment or decree rendered
by the highest court of a State in which a decision could be had’
under § 1257.” Id. at 24 (alterations omitted) (quoting 28
U.S.C. § 1257(a)). But under these circumstances there is a
Rooker-Feldman “judgment” because the state proceeding has
“ended.”
Lastly, there is a judgment when a state proceeding has
“finally resolved all the federal questions in the litigation,”
11
even though “state law or purely factual questions (whether
great or small) remain to be litigated.” Id. at 25. The First
Circuit based this scenario on the Supreme Court’s second
footnote in Exxon. That footnote states Rooker-Feldman would
have applied to a hypothetical suit raised in ASARCO Inc. v.
Kadish, 490 U.S. 605 (1989).
The hypothetical claimed the ASARCO petitioners
should have attacked the state court decision in “a new action
in federal district court” rather than an appeal in the Supreme
Court. Exxon, 544 U.S. at 287 n.2. The Court disagreed. It
reasoned that it had exclusive appellate jurisdiction over the
state court order under “exceptions to the finality requirement
that were set out in Cox Broadcasting Corp. v. Cohn, 420 U.S.
469 (1975).” ASARCO, 490 U.S. at 612, 622–23; 16B Charles
Alan Wright & Arthur R. Miller et al., Federal Practice and
Procedure: Jurisdiction § 4010 (3d ed. Apr. 2019 update)
(discussing the exceptions at length). Because the Court had
§ 1257 jurisdiction, Rooker-Feldman would bar that district
court suit.
The First Circuit thus concluded that when a state court
order is “final” under Cox, it is also final under Rooker-
Feldman. See Federacion, 410 F.3d at 26–27. So under the
practical finality approach, there is a “judgment” if the
challenged order is final under Cox or the state case has ended.
We adopt this approach and hold that Rooker-Feldman does
not apply when state proceedings have neither ended nor led to
orders reviewable by the United States Supreme Court.
B
New Jersey cites several not precedential opinions in
which we have applied Rooker-Feldman broadly even after
12
Exxon. See N.J. Br. 12 (citing Tauro v. Baer, 395 F. App’x 875,
876–77 (3d Cir. 2010) (per curiam), and McKnight v. Baker,
244 F. App’x 442, 444–45 (3d Cir. 2007)); see also, e.g.,
Mikhail v. Kahn, 572 F. App’x 68, 70 n.2 (3d Cir. 2014) (per
curiam) (interlocutory family court orders).
But those opinions contradict Exxon’s language and
Rooker-Feldman’s rationale. Exxon demands that the doctrine
occupy a “narrow ground” bounded by “ended” state
proceedings like Rooker, Feldman, and ASARCO. 544 U.S. at
284–87 & n.2, 291. The mere “pendency of an action in the
state court is no bar to proceedings concerning the same matter
in the Federal court having jurisdiction.” Id. at 292 (quoting
McClellan v. Carland, 217 U.S. 268, 282 (1910)). And that is
because “the ‘exclusive jurisdiction’ notion underlying Rooker
and Feldman” is distinct from doctrines like preclusion,
“comity, abstention, and exhaustion.” Richard H. Fallon, Jr.,
John F. Manning, Daniel J. Meltzer & David L. Shapiro, Hart
& Weschler’s the Federal Courts and the Federal System 1410
(7th ed. 2015); see Lance v. Dennis, 546 U.S. 459, 466 (2006)
(per curiam) (distinguishing preclusion); Exxon, 544 U.S. at
292 (distinguishing comity and abstention). That jurisdictional
notion is, once again, that “Rooker and Feldman exhibit the
limited circumstances in which [the] Court’s appellate
jurisdiction over state-court judgments, 28 U.S.C. § 1257,
precludes a United States district court from exercising
subject-matter jurisdiction in an action it would otherwise be
empowered to adjudicate.” Exxon, 544 U.S. at 291.
There is more evidence that our not precedential
opinions took Rooker-Feldman too far. In two cases following
Exxon, the Supreme Court again limited the doctrine. See
Skinner, 562 U.S. at 532 (holding that while “a state-court
decision is not reviewable by lower federal courts, [ ] a statute
13
or rule governing the decision may be challenged in a federal
action”); Lance, 546 U.S. at 466 (holding that the doctrine
“does not bar actions by nonparties to the earlier state-court
judgment simply because, for purposes of preclusion law, they
could be considered in privity with a party to the judgment”).
And the Court has “warned” lower courts to stop extending the
doctrine “far beyond the contours of the Rooker and Feldman
cases.” Lance, 546 U.S. at 464 (quoting Exxon, 544 U.S. at
283); see Skinner, 562 U.S. at 532. For beyond those contours,
the doctrine “overrid[es] Congress’ conferral of federal-court
jurisdiction concurrent with jurisdiction exercised by state
courts, and supersed[es] the ordinary application of preclusion
law pursuant to 28 U.S.C. § 1738 [the Full Faith and Credit
Act].” Lance, 546 U.S. at 464 (quoting Exxon, 544 U.S. at
283).
At the same time, Exxon bars us from construing
Rooker-Feldman too narrowly. Exxon stressed Rooker-
Feldman may apply when “the losing party in state court file[s]
suit in federal court after the state proceedings [have] ended.”
544 U.S. at 291 (emphasis added); accord Skinner, 562 U.S. at
531. The Court could have—but has not—said that an “ended”
proceeding is simply one in which the Court has § 1257
jurisdiction. By declining that simpler explanation, the Court
has presumably meant to ensure that lower courts do not
review any proceedings that have ended even when the
Supreme Court itself lacks jurisdiction. See, e.g., Nicholson,
558 F.3d at 1277 n.11. An example would be a case that misses
its state’s independent and adequate appeal deadline. See
Federacion, 410 F.3d at 24.
Our holding thus ensures we do not review state court
proceedings that have “ended,” even when the Supreme Court
lacks jurisdiction. That satisfies Exxon. And it limits the
14
interlocutory orders that count as “judgments” to those over
which the Court has § 1257 jurisdiction. That respects Rooker-
Feldman’s jurisdictional basis.
Applying these principles, we hold that none of the
interlocutory orders in Malhan’s state case are “judgments.”
For one, they are not “final judgments or decrees rendered by
the [New Jersey Supreme Court].” 28 U.S.C. § 1257(a). Nor
have they “finally resolved all the federal questions in the
litigation” or else satisfied practical finality under Cox.
Federacion, 410 F.3d at 25; see Cox, 420 U.S. at 477–85.
Malhan has had several motions pending since 2016, discovery
is incomplete, no trial is scheduled, and the family court has
made clear (so far) that Malhan’s support obligations will not
change until a final divorce decree is entered. See App. 31; N.J.
Br. 6–7. His state court proceedings are far from “ended.”
Exxon, 544 U.S. at 291; see, e.g., Federacion, 410 F.3d at 24
& n.10. So Rooker-Feldman did not deprive the District Court
of jurisdiction.
III
A
Having established that the District Court had
jurisdiction over Malhan’s federal claims, we consider whether
the Court erred by abstaining from exercising that jurisdiction.
To promote comity between the national and state
governments, Younger requires federal courts to abstain from
deciding cases that would interfere with certain ongoing state
proceedings. See Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69,
77–78 (2013); Younger, 401 U.S. 37.
15
In deciding to abstain, the District Court considered
three factors announced by the Supreme Court in Middlesex
County Ethics Committee v. Garden State Bar Association, 457
U.S. 423 (1982): whether “(1) there are ongoing state
proceedings that are judicial in nature; (2) the state proceedings
implicate important state interests; and (3) the state
proceedings afford an adequate opportunity to raise federal
claims.” Malhan, 2018 WL 2427121, at *6 (quoting Schall v.
Joyce, 885 F.2d 101, 106 (3d Cir. 1989)).
But much has transpired since Middlesex was decided
almost forty years ago. In Sprint, the Supreme Court
underscored that Younger abstention conflicts with federal
courts’ “virtually unflagging” obligation to exercise their
jurisdiction. 571 U.S. at 77 (quoting Colorado River, 424 U.S.
at 817). And just as Exxon and its progeny limited Rooker-
Feldman’s scope, Sprint narrowed Younger’s domain. The
Court explained—and we have stressed several times since—
that the “three Middlesex conditions” are no longer the test for
Younger abstention. Sprint, 571 U.S. at 81; e.g., Hamilton v.
Bromley, 862 F.3d 329, 337 (3d Cir. 2017).
Instead, Younger applies to only “three exceptional
categories” of proceedings: (1) “ongoing state criminal
prosecutions”; (2) “certain ‘civil enforcement proceedings’”;
and (3) “pending ‘civil proceedings involving certain orders
uniquely in furtherance of the state courts’ ability to perform
their judicial functions.’” Sprint, 571 U.S. at 78–79 (alteration
omitted) (quoting New Orleans Pub. Serv., Inc. v. Council of
City of New Orleans (NOPSI), 491 U.S. 350, 368 (1989)). Only
after a court finds that a proceeding fits one of those
descriptions should it consider Middlesex’s “additional
16
factors.”4 Id. at 81–82. Otherwise, “[d]ivorced from their
quasi-criminal context, the three Middlesex conditions would
extend Younger to virtually all parallel state and federal
proceedings.” Id. at 81. So we must ask whether Counts 2, 5,
and 6 challenge “exceptional” proceedings under Sprint.5
4
We take this opportunity to note that Sprint abrogates
Anthony v. Council, 316 F.3d 412 (3d Cir. 2003). That case
involved a challenge to New Jersey family court contempt
proceedings. See id. at 415–16. Plaintiffs, who had been jailed
for civil contempt after failing to pay child support, sought
declaratory and injunctive relief against future detention. See
id. To decide whether declaratory and injunctive relief was
appropriate, we applied only the Middlesex factors. See id. at
418–23. And we reasoned that “[i]n New Jersey, child support
orders and the mechanisms for monitoring, enforcing and
modifying them comprise a unique system in continual
operation.” Id. at 420. We viewed the system “as a whole,
rather than as individual, discrete hearings.” Id. at 420–21.
Sprint’s “exceptional categories” do not include
“system[s] in continual operation.” True, “the federal court’s
disposition of [ ] a case may well affect, or for practical
purposes pre-empt, a future—or . . . even a pending—state-
court action.” NOPSI, 491 U.S. at 373. But “[a]bstention is not
in order simply because a pending state-court proceeding
involves the same subject matter.” Sprint, 571 U.S. at 72.
5
Despite all this, New Jersey continues to press only the
Middlesex conditions. See N.J. Br. 14–16. It does not even cite
Sprint in its brief. This approach defies several controlling
precedents identified in Malhan’s opening brief and a district
court reprimand for making the same mistake before. See
17
B
Sprint’s first two categories do not apply here. None of
Malhan’s counts involve criminal prosecution. Nor do any
challenge a civil enforcement proceeding “‘akin to a criminal
prosecution’ in ‘important respects.’” Sprint, 571 U.S. at 79
(quoting Huffman v. Pursue, Ltd., 420 U.S. 592, 604 (1975));
see Gonzalez v. Waterfront Comm’n of N.Y. Harbor, 755 F.3d
176, 182 (3d Cir. 2014); ACRA Turf Club, LLC v. Zanzuccki,
748 F.3d 127, 138 (3d Cir. 2014). Malhan’s wife, not the State,
began the family court case. The case has not sought to
sanction Malhan for wrongdoing, enforce a parallel criminal
statute, or impose a quasi-criminal investigation. Rather, it has
sought only to distribute assets equitably in the interests of
Malhan’s children and putative ex-wife.
So we ask whether Counts 2, 5, or 6 “involv[e] certain
orders uniquely in furtherance of the state courts’ ability to
perform their judicial functions.” Sprint, 571 U.S. at 78
(alteration omitted) (quoting NOPSI, 491 U.S. at 368). Orders
of that type are very much “unique[ ].” See id. at 79 (citing only
Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 13 (1987) (bond
pending appeal) and Juidice v. Vail, 430 U.S. 327, 336 & n.12
(1977) (civil contempt order)).
Count 2 involves the administrative collection of non-
final money judgments. See App. 42–49. It does not challenge
how a court protects the status quo pending appeal as in
Pennzoil, where the bond money was collateral in lieu of
immediate execution. Nor does it challenge a process, such as
Edelglass v. New Jersey, 2015 WL 225810, at *11 n.3 (D.N.J.
Jan. 16, 2015), aff’d sub nom. Allen v. DeBello, 861 F.3d 433
(3d Cir. 2017).
18
civil contempt, that is separate from the merits and that ends
when the defendant complies. In fact, Count 2 does not
challenge any judicial order at all. It challenges “executive
action[s]” (bank levies) that have a layer of family court
review—which means abstention is “plainly inappropriate
under NOPSI.” ACRA Turf Club, 748 F.3d at 141 n.12; see
NOPSI, 491 U.S. at 368–70. In short, Count 2’s agency actions
further family court enforcement—but not uniquely so. They
are only a tool for collecting non-final money judgments in
disputes between private parties.
Count 5 perhaps attacks judicial orders, or at least the
debt that has resulted from them. See App. 53–54. But those
orders (or that debt) are not “uniquely in furtherance” of
judicial functions. They are rather like the money judgments
themselves in Pennzoil and Juidice. See Pennzoil, 481 U.S. at
6; Juidice, 430 U.S. at 329–30. They do not ensure that family
courts can perform their functions—they are merely the output
of those functions. Cf., e.g., Boerschig v. Trans-Pecos Pipeline,
LLC, 872 F.3d 701, 703–04, 705 n.2 (5th Cir. 2017) (declining
to abstain from review of eminent domain proceedings).
As for Count 6, we need not decide whether family
court garnishment orders are “unique[ ].” Sprint, 571 U.S. at
78 (quoting NOPSI, 491 U.S. at 368).6 That Malhan’s
6
Although the State had ceased garnishing Malhan’s
wages at the time of the District Court’s decision, Count 6 is
not moot. The garnishment order lasted less than nine months
(July 2017 to March 2018), see App. 56 ¶ 181–83, 72 ¶ 16—
which is well below the two-year threshold for mootness set by
the Supreme Court. Kingdomware Technologies, Inc. v. United
States, 136 S. Ct. 1969, 1976 (2016); accord United Steel
19
garnishment proceeding is merely threatened—not “pending,”
id.—makes abstention “clearly erroneous.” Miller v. Mitchell,
598 F.3d 139, 146 (3d Cir. 2010) (quoting Ankenbrandt v.
Richards, 504 U.S. 689, 705 (1992)). State proceedings are
pending only if they “are initiated ‘before any proceedings of
substance on the merits have taken place in the federal court.’”
Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 238 (1984)
(quoting Hicks v. Miranda, 422 U.S. 332, 349 (1975)); accord
17B Wright et al., supra, § 4253.
This rule limits Younger even in criminal cases. In
Wooley v. Maynard, for example, New Hampshire had thrice
prosecuted and convicted Maynard for obscuring the state’s
motto (“Live Free or Die”) on his license plates. See 430 U.S.
705, 707–08 (1977). After his third conviction but before
another prosecution, Maynard and his wife sought and received
a federal injunction against future prosecutions for the same
offense. See id. at 709. On Supreme Court review, the state
argued Younger applied. See id. at 710–11. The Court
disagreed. It reasoned that the Maynards faced “a genuine
Paper & Forestry Rubber Mfg. Allied Indus. & Serv. Workers
Int’l Union v. Gov’t of Virgin Islands, 842 F.3d 201, 208 (3d
Cir. 2016). Also, Malhan alleges that the family court has
repeatedly refused to recalculate his child support obligations.
See App. 71 ¶ 13. That debt creates “a reasonable expectation”
of future garnishment, United States v. Sanchez-Gomez, 138 S.
Ct. 1532, 1540 (2018) (quoting Turner v. Rogers, 564 U.S. 431,
440 (2011)), even if Malhan has not “demonstrated [its]
probability,” Honig v. Doe, 484 U.S. 305, 320 n.6 (1988). So
the District Court had jurisdiction over Count 6 under 28
U.S.C. § 1331. And we have jurisdiction under 28 U.S.C.
§ 1291.
20
threat of prosecution,” and that their suit was “in no way
‘designed to annul the results of a state trial.’” Id. at 710–11
(quoting Huffman, 420 U.S. at 609). “[T]he relief sought [was]
wholly prospective.” Id. at 711; see also Steffel v. Thompson,
415 U.S. 452, 462 (1974) (allowing declaratory relief because
“[w]hen no state proceeding is pending . . . considerations of
equity, comity, and federalism have little vitality”).
In civil cases, the “pending” requirement naturally has
at least equal force. Bearing this out are the Court’s only two
examples of “pending ‘civil proceedings involving certain
[unique] orders.’” Sprint, 571 U.S. at 78 (quoting NOPSI, 491
U.S. at 368). In Juidice v. Vail, the Court required abstention.
430 U.S. at 338. But it did so only because the state courts had
issued contempt orders “at the time [the federal] lawsuit was
commenced.” Id. at 331–32. So “unlike . . . the plaintiff in
Steffel v. Thompson,” the Juidice plaintiffs faced “a pending,
and not merely a threatened, proceeding.” Id. at 333.
Similarly, in Pennzoil v. Texaco, a Texas jury returned a
multi-billion-dollar verdict against Texaco. See 481 U.S. at 4.
Just hours before the state court entered judgment, Texaco sued
in federal district court, claiming for the first time that the state
proceedings had violated federal law. See id. at 6 & n.5. Texaco
asked the court to enjoin both the judgment itself and the state’s
requirement that the firm post a cash bond before appeal. See
id. at 6–7. But at that point, the district court faced a state jury
verdict and the impending entry of a state court judgment. So
whether the judgment or verdict “initiated” the state bond
proceedings, the court had little or no time to precede them
with its own “proceedings of substance on the merits.” Hawaii
Hous. Auth., 467 U.S. at 238. Indeed, seven days passed before
the court issued even a temporary restraining order. Compare
Pennzoil, 481 U.S. at 6 & n.5 (state judgment entered
21
December 10, 1985), with Texaco, Inc. v. Pennzoil Co., 626 F.
Supp. 250, 251 (S.D.N.Y. 1986) (temporary restraining order
issued December 17, 1985), and Hawaii Hous. Auth., 467 U.S.
at 238 (declining to decide whether a temporary restraining
order is “a substantial federal court action”). Unsurprisingly,
then, the Supreme Court stressed that the state proceedings had
been “pending.” Pennzoil, 481 U.S. at 17; accord id. at 11, 14.
And it mandated abstention.
Malhan’s proceedings are nothing like those in Juidice
or Pennzoil. The family court vacated its garnishment order last
year and has not issued another. See App. 72. No factfinder has
returned a verdict. No judgment waits to be entered. So Malhan
faces only threatened garnishment. And like the plaintiffs in
Wooley and Steffel, he can seek “wholly prospective” relief.
Wooley, 430 U.S. at 711. That relief, as pled in Count 6, is that
the District Court:
a. Declare under the Declaratory Judgment Act
that garnishment of a custodial parent[’]s
wages is prohibited under CSEA [the Child
Support Enforcement Amendments of 1984];
b. [ ] Preliminarily and permanently enjoin
State Defendants from garnishing Malhan’s
salary so long as he is a custodial parent;
[and]
c. In the alternative, grant declaratory and
injunctive relief to Malhan that State
Defendants may not garnish payments which
are not “earnings” nor garnish payments
above what is permitted by the Consumer
22
Credit Protection Act and 45 CFR Section
303.100(e).
App. 63–64. On those terms, Malhan is not trying to “annul the
results” of a past garnishment. Wooley, 430 U.S. at 711
(quoting Huffman, 420 U.S. at 609). So he may present Count 6
in District Court.7
* * *
The District Court had federal question jurisdiction and
should have fulfilled its “virtually unflagging” obligation to
exercise that jurisdiction. We will reverse its application of
Rooker-Feldman and Younger to Counts 2, 5, and 6 and
7
New Jersey also argues in passing that we should
abstain from review under Colorado River, 424 U.S. 800. See
N.J. Br. 16–17. Colorado River abstention allows a court, in
certain “exceptional circumstances,” to abstain from hearing a
case to avoid piecemeal litigation. Moses H. Cone Mem’l
Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 19 (1983).
Colorado River applies only when the parties and
claims in the state suit are “‘identical,’ or at least ‘effectively
the same’” as those in the federal suit. Kelly v. Maxum
Specialty Ins. Grp., 868 F.3d 274, 285 (3d Cir. 2017) (quoting
Trent v. Dial Med. of Fla., Inc., 33 F.3d 217, 223–24 (3d Cir.
1994), superseded by statute on other grounds as recognized
in Nat’l City Mortg. Co. v. Stephen, 647 F.3d 78, 83 (3d Cir.
2011)). Here, we have different parties (New Jersey, not
Malhan’s wife) and different claims (violations of federal law,
not child support obligations).
23
remand for proceedings on the merits. We will affirm the
Court’s dismissal of Counts 1, 3 and 4.
24