Massachusetts Delivery Ass'n v. Coakley

United States Court of Appeals
For the First Circuit

No. 11-1441

MASSACHUSETTS DELIVERY ASSOCIATION,

Plaintiff, Appellant,

v.

MARTHA COAKLEY, in her official capacity
as Attorney General of the Commonwealth of Massachusetts,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Denise J. Casper, U.S. District Judge]

Before

Lynch, Chief Judge,
Stahl and Lipez, Circuit Judges.

David C. Casey, with whom Walter C. Hunter, Carie A. Torrence,
Vanessa K. Hackett, and Littler Mendelson, P.C. were on brief, for
appellant.
Steven A. Pletcher, Lynne D. Lidke, Braden K. Core, and
Scopelitis, Garvin, Light, Hanson & Feary, P.C. for Messenger
Courier Association of America and Air and Expedited Motor Carrier
Association, amici curiae.
Douglas S. Martland, Assistant Attorney General, with whom
Pierce O. Cray, Assistant Attorney General, Kate J. Fitzpatrick,
Assistant Attorney General, and Martha Coakley, Attorney General,
were on brief, for appellee.
Harold L. Lichten, Shannon Liss-Riordan, Michael S. Rabieh,
and Lichten & Liss-Riordan, P.C., for Stephen Reynolds, amicus
curiae.
January 20, 2012
 LYNCH, Chief Judge. The issue on appeal is whether

abstention under Younger v. Harris, 401 U.S. 37 (1971), is proper

in a federal court civil rights suit brought against the

Massachusetts Attorney General by a business trade association,

which is not itself a party to any relevant state litigation, and

where three of its forty-plus members are defendants in ongoing

state civil proceedings brought not by the Attorney General but by

private parties. The district court found that Younger abstention

was appropriate in these circumstances. Mass. Delivery Ass'n v.

Coakley, 797 F. Supp. 2d 164, 176 (D. Mass. 2011). We reverse that

determination and hold that Younger abstention is inappropriate and

the federal courts should exercise jurisdiction. We remand to the

district court for further proceedings consistent with this

opinion.

I.

The suit by the Massachusetts Delivery Association (MDA)

asserts that a state law is pre-empted as to motor carriers under

the Federal Aviation Administration Authorization Act of 1994

(FAAAA), Pub. L. No. 103-305, 108 Stat. 1569 (codified in scattered

sections of 49 U.S.C.), which expressly pre-empts state attempts to

regulate "a price, route, or service of any motor carrier," 49

U.S.C. § 14501(c)(1). The MDA claims that the state law at issue

here is such a regulation and is unconstitutional under the

Supremacy Clause. The challenged state law is a portion of a

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Massachusetts statute, Mass. Gen. Laws ch. 149, § 148B(a)(2), which

requires that an individual performing a service for another be

classified as an employee unless "the service is performed outside

the usual course of the business of the employer." The MDA also

asserts that the state statute imposes an undue burden which

violates the Commerce Clause. We describe these state and federal

statutes before turning to the Younger abstention issue.

A. The Massachusetts Statute Defining Employees

The state law challenged as unconstitutional is part of

a state statutory scheme meant to enhance protections for those

whom the state considers to be "employees," in contrast to

independent contractors. See Somers v. Converged Access, Inc., 911

N.E.2d 739, 749 (Mass. 2009). This provision was initially enacted

in 1990 as "[an act] enhancing the enforcement of labor laws."

1990 Mass. Legis. Serv. 464. Amended in 2004, the law currently

provides:

(a) For the purpose of this chapter and
chapter 151, an individual performing any
service, except as authorized under this
chapter, shall be considered to be an employee
under those chapters unless:

(1) the individual is free from control
and direction in connection with the
performance of the service, both under
his contract for the performance of
service and in fact; and

(2) the service is performed outside
the usual course of the business of the
employer; and,

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 (3) the individual is customarily
engaged in an independently established
trade, occupation, profession or
business of the same nature as that
involved in the service performed.

Mass. Gen. Laws ch. 149, § 148B.1

Subsection (a) provides that individuals performing

services shall be deemed employees, unless all of the requirements

outlined in the three subsections are satisfied. See Somers, 911

N.E.2d at 747 ("The failure of the employer to prove all three

criteria set forth above suffices to establish that the individual

in question is an employee.").

Section 148B governs whether an individual is deemed an

employee for purposes of various wage and employment laws, chapters

62B, 149, 151 and 152 of the Massachusetts General Laws.2 See

Mass. Gen. Laws ch. 149, § 148B(a), (d). The Massachusetts Supreme

1
The 2004 amendment to this statute altered, among other
provisions, the second prong of the test, which is the basis of the
MDA's pre-emption claim. Before this amendment, the second prong
of the test read "and such service is performed either outside the
usual course of the business for which the service is performed or
is performed outside of all places of business of the enterprise."
Mass. Gen. Laws ch. 149, § 148B (2003).
2
Chapter 62B is entitled "Withholding of Taxes on Wages and
Declaration of Estimated Income Tax."
Chapter 149 is entitled "Labor and Industries" and contains
a wide variety of provisions relevant to the employment
relationship, including a requirement that employees be paid weekly
or bi-weekly. See Mass. Gen. Laws ch. 149, § 148.
Chapter 151 is entitled "Minimum Fair Wages," and contains
a variety of provisions establishing minimum wage and overtime pay
requirements. See, e.g., Mass. Gen. Laws ch. 151, §§ 1, 1A.
Chapter 152 is entitled "Workers' Compensation" and
addresses that subject.

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Judicial Court has said that "[a] legislative purpose behind the

independent contractor statute is to protect employees from being

deprived of the benefits enjoyed by employees through their

misclassification as independent contractors." Somers, 911 N.E.2d

at 749.

If an employing entity improperly classifies an employee

as an independent contractor under § 148B,3 a variety of sanctions

are available, including civil and criminal penalties to be

assessed by the state. Mass. Gen. Laws ch. 149, §§ 27C, 148B(d).

But the state is not always involved in disputes about compliance

with § 148B. Independently, employees who allege improper

classification as independent contractors may bring their own

actions for injunctive relief and treble damages, and may bring

such suits as class actions. Mass. Gen. Laws ch. 149, § 150; see

also Somers, 911 N.E.2d at 748. Before bringing suit, such

employees must first file a complaint with the Attorney General;

3
Improper classification under § 148B, of itself, does not
appear to give rise to a cause of action; instead, the statute
seems to require that an improper classification result in a
violation of one of the referenced chapters before an entity may be
sued under § 148B. Only employers who "fail[] to properly classify
an individual as an employee according to this section and in so
doing fail[] to comply, in any respect, with chapter 149 or
[certain sections of] chapter 151, or chapter 62B . . . shall be
subject to all of the criminal and civil remedies" provided by the
statute. Mass. Gen. Laws ch. 149, § 148B(d). Similarly, employers
who "fail[] to properly classify an individual as an employee
according to this section and in so doing violate[] chapter 152
. . . shall be subject to all of the civil remedies" provided by
the statute. Id.

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employees must wait to file suit in court until 90 days after

filing such a complaint, although they may file earlier if the

Attorney General consents in writing. Mass. Gen. Laws ch. 149,

§ 150. When an employee brings suit, he "institute[s] and

prosecute[s] [it] in his own name and on his own behalf, or for

himself and others similarly situated, [as] a civil action." Id.

He does not bring suit in the name of the state. Nor does he have

the range of remedies available to the Attorney General.

The MDA alleges that its members must change their

fundamental business model -- the use of independent contractor

delivery drivers -- to comply with the state statute or risk

penalties. No other state, the MDA alleges, has made unlawful this

use of the historic business model. The Massachusetts law, it

says, would force motor carriers to use only employees as delivery

drivers, which would drive up costs, and adversely affect prices,

routes, and services. Not only is the law expressly pre-empted but

it also imposes an impermissible burden on interstate commerce,

according to the MDA.

B. The FAAAA's Pre-Emption Provision and the Commerce
Clause Issue

For businesses in interstate commerce involving

transportation, Congress, concerned both with the states imposing

undue burdens and with the national interest in uniform rules, has

expressly preempted certain state regulations. See, e.g., 49

U.S.C. § 14501(a)(1) (pre-emption of state regulations relating to

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motor carriers of passengers); id. § 14501(b)(1) (pre-emption of

state regulations relating to freight forwarders and brokers); id.

§ 14501(d)(1) (pre-emption of state regulations relating to pre-

arranged ground transportation); id. § 41713 (pre-emption of state

regulations relating to air carriers).

Congress enacted such a pre-emption provision as part of

the FAAAA:

Except as provided in paragraphs (2) and (3),
a State, political subdivision of a State, or
political authority of 2 or more States may
not enact or enforce a law, regulation, or
other provision having the force and effect of
law related to a price, route, or service of
any motor carrier (other than a carrier
affiliated with a direct air carrier covered
by section 41713(b)(4)) or any motor private
carrier, broker, or freight forwarder with
respect to the transportation of property.

Id. § 14501(c)(1). "Motor carrier" is defined as "a person

providing motor vehicle transportation for compensation." Id.

§ 13102(14).

In enacting this provision, Congress found that state

regulation of intrastate transportation of property had "imposed an

unreasonable burden on interstate commerce," as well as "an

unreasonable cost on the American consumers," and thus "certain

aspects of the State regulatory process should be preempted."

FAAAA § 601(a), 108 Stat. at 1605. The conference report explained

that "preemption legislation is in the public interest as well as

necessary to facilitate interstate commerce. State economic

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regulation of motor carrier operations causes significant

inefficiencies, increased costs, reduction of competition,

inhibition of innovation and technology and curtails the expansion

of markets." H.R. Rep. No. 103-677 (1994) (Conf. Rep.).

This federal pre-emption provision relating to motor

carriers is substantially identical to a provision pre-empting

state regulation of air carriers enacted in 1978, 49 U.S.C.

§ 41713, and the two statutes are often interpreted in pari

materia. See DiFiore v. Am. Airlines, Inc., 646 F.3d 81, 85-86 &

n.4 (1st Cir. 2011), cert. denied, No. 11-221, 2011 WL 3794274

(U.S. Nov. 28, 2011). These pre-emption provisions are "broad but

vague," and have been the subject of considerable litigation. Id.

at 86.

II.

The MDA is a non-profit trade organization formed to

support businesses involved in the delivery service industry. The

MDA has over forty member businesses,4 which are entities that

provide same-day delivery services and often engage delivery

drivers they consider to be independent contractors.

The MDA brought suit against Martha Coakley, the Attorney

General of Massachusetts, in her official capacity, on September 7,

4
Apparently, the MDA has not publicly disclosed a list of
its members, but it represents that it has forty-plus members, and
the Attorney General does not dispute this representation. See
Mass. Delivery Ass'n v. Coakley, 797 F. Supp. 2d 164, 169 (D. Mass.
2011).

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2010. The complaint, as amended, alleges that § 148B(a)(2) would

require delivery companies to classify their drivers as employees,

rather than independent contractors, and that this would have a

variety of dramatic effects on the operations of the delivery

companies' businesses, including driving some out of business and

increasing costs to consumers. The MDA alleges that subsection

(a)(2) of the state law is pre-empted under the FAAAA and the

Supremacy Clause.

In a separate theory of unconstitutionality, the MDA's

complaint also alleges that the relevant portion of the statute

imposes an undue burden on interstate commerce, in violation of the

Commerce Clause. The complaint requests a declaratory judgment

that subsection (a)(2) of the Massachusetts law is pre-empted by

the FAAAA and the Commerce Clause with respect to motor carriers

engaged in interstate commerce, and a permanent injunction

preventing the Attorney General from enforcing that prong in the

future with respect to such motor carriers.

On October 22, 2010, the Attorney General filed a motion

to dismiss the complaint on the basis of Younger abstention. The

crux of the Attorney General's argument was that three businesses

which are MDA members were defendants in ongoing state civil suits

brought by private parties under § 148B,5 and that the MDA was an

5
Those three actions are Reynolds v. City Express, Inc.,
SUCV 2010-02655 (Suffolk Cnty. Super. Ct., filed July 1, 2010);
Okeke v. Dynamex Operations E., Inc., MICV 2010-02017 (Middlesex

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"alter ego" of these defendants. The MDA, it is alleged,

impermissibly sought to open a "second front" on the pre-emption

question, and as a result Younger abstention was required.

The parties agree that there is no state litigation

against the MDA on this issue and that the three state suits are

the only ongoing state proceedings involving any of the MDA's

members. One of the MDA's four board members (and its vice

president) is the president and director of City Express, an entity

which is one of the state-court defendants.

The MDA opposed the motion, raising a variety of

independent arguments as to why Younger abstention was

inapplicable. The first several arguments, which revolve around

the postures and the parties in this and in the state suits, are

that (1) Younger does not apply where the state suits are civil

actions brought by private parties, (2) the relief sought by the

MDA would not substantially interfere with the ongoing state

proceedings, (3) the MDA is not a party to any ongoing state

proceedings, and is not sufficiently closely related to any such

Cnty. Super. Ct., filed May 26, 2010); Reynolds v. World Courier
Ground, Inc., NOCV 2010-00914 (Norfolk Cnty. Super. Ct., filed May
14, 2010). There are also a variety of other state suits against
motor carriers that are not MDA members which have been brought
under § 148B. See, e.g., Oliveira v. Advanced Delivery Sys., Inc.,
27 Mass. L. Rep. 402, 2010 WL 4071360 (Mass. Super. Ct. July 16,
2010); Derochers v. Staples, Inc., 28 Mass. L. Rep. 261, 2010 WL
6576214 (Mass. Super. Ct. June 8, 2010); Fucci v. E. Connection
Operating, Inc., No. 2008-2659, 2009 Mass. Super. LEXIS 421 (Mass.
Super. Ct. Sept. 21, 2009).

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party to be treated as the same for Younger purposes, and (4) the

MDA is neither required to nor would it have any opportunity to

raise its pre-emption challenge in the state suits. In addition,

the MDA makes other arguments: (5) the Commonwealth's interest in

the state suits is insufficient to justify Younger abstention, (6)

because it is "readily apparent" that § 148B is pre-empted, an

exception to Younger applies, and (7) the penalties imposed for

violations of § 148B provide another exception to Younger.

The district court granted the Attorney General's motion

to dismiss on Younger grounds. Mass. Delivery Ass'n, 797 F. Supp.

2d at 176. The MDA appealed.

III.

Our review of whether the conditions for Younger

abstention are met is de novo.6 Rio Grande Cmty. Health Ctr., Inc.

v. Rullan, 397 F.3d 56, 68 (1st Cir. 2005). The issues raised here

are pure issues of law, which also invoke de novo review. R.I.

6
The district court noted that there is some dispute among
the district courts in this circuit as to whether a Younger motion
to dismiss is properly viewed as a Rule 12(b)(1) motion to dismiss
for lack of subject-matter jurisdiction, or a Rule 12(b)(6) motion
to dismiss for failure to state a claim. Mass. Delivery Ass'n, 797
F. Supp. 2d at 168 n.2. A primary difference between the two is
that, under Rule 12(b)(1), the district court may weigh the
evidence and make factual determinations, if necessary, to
determine whether it has jurisdiction to hear the case.
Torres-Negrón v. J & N Records, LLC, 504 F.3d 151, 163 (1st Cir.
2007). Here, however, the district court did not engage in any
weighing of the evidence, but rather based its decision on the
undisputed facts, namely the complaint and certain public
documents. Mass. Delivery Ass'n, 797 F. Supp. 2d at 168 n.2. As
a result, we need not resolve this question here.

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Hospitality Ass'n v. City of Providence, No. 11-1415, 2011 WL

6004385, at *3 (1st Cir. Dec. 2, 2011) (to be published in F.3d).

A. Overview of Younger Abstention

The normal rule is that the federal courts must exercise

their jurisdiction and decide cases brought before them. See,

e.g., Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996)

("We have often acknowledged that federal courts have a strict duty

to exercise the jurisdiction that is conferred upon them by

Congress."). There are limited exceptions to that rule; one is the

Younger doctrine. See generally id. at 716-17 (describing the

various types of abstention, including Younger abstention). The

doctrine is judicially created and takes its name from Younger v.

Harris, a case involving an underlying state criminal prosecution

against a defendant who then filed suit in federal court to attack

the state statute on which his criminal prosecution was brought.

401 U.S. at 38-39.

The Younger doctrine reflects a "longstanding public

policy against federal court interference with state court

proceedings," and is based on two conceptual foundations. Id. at

43. First, it is based on a notion that "courts of equity should

not act, and particularly should not act to restrain a criminal

prosecution, when the moving party has an adequate remedy at law

and will not suffer irreparable injury if denied relief." Id. at

43-44. This concern applies to injunctive relief and also, at

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least typically, to requests for declaratory relief, where the same

parties are involved and the federal plaintiff is a state-court

party. See Samuels v. Mackell, 401 U.S. 66, 73 (1971) ("Ordinarily

. . . the practical effect of the two forms of relief will be

virtually identical . . . ."); Rio Grande, 397 F.3d at 70-71.

Second, and more importantly, Younger rests upon basic notions of

federalism and comity, and also on a related desire to prevent

unnecessary duplication of legal proceedings. Younger, 401 U.S. at

44.

Younger abstention has extended far beyond its original

roots of non-interference with state criminal prosecutions. In

Middlesex County Ethics Committee v. Garden State Bar Ass'n, 457

U.S. 423, 432 (1982), the Court set forth three general guidelines,

which we have since described in a series of cases: Younger applies

"when the requested relief would interfere (1) with an ongoing

state judicial proceeding; (2) that implicates an important state

interest; and (3) that provides an adequate opportunity for the

federal plaintiff to advance his federal constitutional challenge."

Rossi v. Gemma, 489 F.3d 26, 34-35 (1st Cir. 2007).

The question of whether "interference" exists is a

"threshold issue." Id. at 35; see also Rio Grande, 397 F.3d at 70

("Younger applies only when the relief asked of the federal court

'interfere[s]' with the state proceedings." (alteration in

original) (quoting Quackenbush, 517 U.S. at 716)); Green v. City of

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Tucson, 255 F.3d 1086, 1093-94 (9th Cir. 2001) (en banc)

(explaining that Younger requires not only that the three

guidelines be satisfied, but also that "the federal relief sought

would interfere in some manner in the state court litigation"),

limited by Gilbertson v. Albright, 381 F.3d 965 (9th Cir. 2004) (en

banc).

The first prong, that there must be an "ongoing state

judicial proceeding," in actuality involves assessment of a complex

of issues. The proceeding must be "judicial in nature," as opposed

to, for instance, legislative proceedings. New Orleans Pub. Serv.,

Inc. v. Council of New Orleans (NOPSI), 491 U.S. 350, 370 (1989).

Even then, Younger does not extend to all judicial proceedings.

While the doctrine originated in the context of ongoing criminal

proceedings, see Younger, 401 U.S. at 38-39, it has been extended

by the Court to only two types of civil proceedings: (1)

enforcement actions to which the state is a party, Huffman v.

Pursue, Ltd., 420 U.S. 592, 604 (1975) (explaining that a

state-initiated nuisance proceeding "is more akin to a criminal

prosecution than are most civil cases"), and (2) civil actions

involving "administration of a State's judicial system," Juidice v.

Vail, 430 U.S. 327, 335 (1977), such as a court's contempt

proceedings, id., and the ability to enforce a valid state-court

judgment, Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 13 (1987).

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 Moreover, the state judicial proceeding must be

"ongoing," which involves an assessment of which suits were filed

when, and how far along those suits have progressed. See Hicks v.

Miranda, 422 U.S. 332, 349 (1975) (holding that even where a

federal suit is filed first, if the state suit is brought before

"any proceedings of substance on the merits have taken place in the

federal court, the principles of Younger v. Harris should apply in

full force").

Importantly, Younger does not typically apply where the

federal-court plaintiff is not itself a party to the state-court

proceedings. The Supreme Court made this clear in Doran v. Salem

Inn, Inc., 422 U.S. 922, 928-29 (1975), where it held that while

two corporations (who were not state-court defendants) had similar

interests and were somewhat related to a third corporation which

was a state-court defendant, the two were not barred by Younger

from bringing suit.

The second prong requires that the state-court

proceedings "implicate important state interests." Middlesex

Cnty., 457 U.S. at 432. This too may involve subsidiary inquiries,

which we need not explore here. The third prong requires that

there be "an adequate opportunity in the state proceedings to

raise" the federal issue. Id.

Even if all these requirements are met, and they have not

been here, abstention is still not proper in certain "extraordinary

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circumstances" or "unusual situations." Younger, 401 U.S. at

53-54. The Supreme Court has indicated that a "facially conclusive

claim" of pre-emption is "[p]erhaps" such an exception to the

Younger doctrine. NOPSI, 491 U.S. at 367. We have held that such

a facially conclusive claim is a valid exception. Colonial Life &

Accident Ins. Co. v. Medley, 572 F.3d 22, 26 (1st Cir. 2009)

(citing Chaulk Servs., Inc. v. Mass. Comm'n Against Discrimination,

70 F.3d 1361, 1370 (1st Cir. 1995)), cert. denied, 130 S. Ct. 1059

(2010). We need not get into this branch of the analysis here.

B. Application of Younger

We conclude that Younger does not permit the state

Attorney General to succeed in this attempt to preclude federal

court examination of the constitutionality of a state statute. The

MDA has a right to pursue its suit in federal court.

The Attorney General pushes the Younger doctrine further

than the Supreme Court or this court has ever extended it. While

it is not an absolute that because the MDA is not a party to the

state-court proceedings it may not be subjected to Younger, it

would be an unjustified extension of Younger to treat the MDA as if

it were such a party. At the very least, such an extension of

Younger cannot be justified because there is no interference. Our

holding is also consistent with the caselaw of the other circuits.

To the extent the circuits have permitted non-parties to state

proceedings to nevertheless be subject to Younger under some

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circumstances, those circumstances are not present here. For

related reasons specified below, federal court adjudication of this

suit would not interfere with the ongoing state proceedings. We

need not address the other arguments the MDA makes.

1. Younger's Application to Non-Parties to the State-
Court Proceedings

The Attorney General's argument is based on the premise

that the MDA and any of its individual members should be treated,

for Younger purposes, as standing in each other's shoes.

Distinct parties are typically treated separately for

purposes of Younger abstention. This is illustrated by Steffel v.

Thompson, 415 U.S. 452 (1974). There, the Court held that when two

protesters were warned to discontinue handbilling or they would be

arrested, and one continued and was arrested and prosecuted, and

the other was not arrested but could fear prosecution, the latter

could maintain a federal suit and was not barred by Younger. The

Court explained that "[t]he pending prosecution of petitioner's

handbilling companion does not affect petitioner's action for

declaratory relief." Id. at 471 n.19. This conclusion accords

with the Court's statement about "our 'deep-rooted historic

tradition that everyone should have his own day in court,'"

Richards v. Jefferson County, Alabama, 517 U.S. 793, 798 (1996)

(quoting 18 Wright & Miller, Federal Practice and Procedure,

§ 4449, at 417 (1981)), and the principle that federal court

abstention from the exercise of otherwise-proper jurisdiction

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"remains 'the exception, not the rule,'" NOPSI, 491 U.S. at 359

(quoting Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 236 (1984)).

The Supreme Court has addressed in two cases whether

distinct but very closely related parties should be treated the

same for purposes of Younger abstention, but those cases do not

lead us to extend Younger to the circumstances presented here. See

Hicks v. Miranda, 422 U.S. 332 (1975); Doran v. Salem Inn, Inc.,

422 U.S. 922 (1975).

In Hicks, two employees of an adult business were

prosecuted for showing an obscene movie, and several of the obscene

tapes were seized from the business. 422 U.S. at 335-36. The

Court found that the business whose employees were criminally

prosecuted was barred from bringing suit by Younger, as the federal

suit would have interfered with the state criminal prosecution,

id. at 348, but its reasons do not establish the principle the

Attorney General advances. It is true the Court stated the

business "had a substantial stake in the state proceedings, so much

so that they sought federal relief, demanding that the state

statute be declared void and their films be returned to them.

Obviously, their interests and those of their employees were

intertwined; and, as we have pointed out, the federal action sought

to interfere with the pending state prosecution." Id. at 348-49.

Even if this were dicta, as it may be for the reasons we describe,

such dicta is given weight. See, e.g., SEC v. Rocklage, 470 F.3d

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1, 7 n.3 (1st Cir. 2006) ("Even dicta in Supreme Court opinions is

looked on with great deference."). Immediately after this

discussion, the Court identified an independent ground for finding

the business subject to Younger: that the state had, subsequent to

the filing of the federal suit, initiated criminal proceedings

against the business, and that in such circumstances Younger should

apply, as no "proceedings of substance on the merits [had] taken

place in the federal court." Hicks, 422 U.S. at 349.

Hicks must be understood in the context of Doran, which

was decided six days later. There, three corporations operated

topless bars, only one of which was criminally prosecuted under a

new ordinance. 422 U.S. at 924-25. The Court found that the

corporation which the state criminally prosecuted could not bring

suit due to Younger. Id. at 929. More significantly for our

purposes, the Court found that the other two corporations, who had

similar, perhaps even identical interests, could bring suit and

Younger did not apply. Id. at 931. The Court explained:

While there plainly may be some circumstances
in which legally distinct parties are so
closely related that they should all be
subject to the Younger considerations which
govern any one of them, this is not such a
case; -- while respondents are represented by
common counsel, and have similar business
activities and problems, they are apparently
unrelated in terms of ownership, control, and
management. We thus think that each of the
respondents should be placed in the position
required by our cases as if that respondent
stood alone.

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Id. at 928-29.

As a second reason not to engage in Younger abstention,

the Doran Court explained that neither declaratory nor injunctive

relief could interfere "with enforcement of contested statutes or

ordinances except with respect to the particular federal

plaintiffs, and the State is free to prosecute others who may

violate the statute." Id. at 931.

Doran makes clear that an alignment of interests among

similar but distinct parties is not per se enough, even when the

state proceeding is a criminal prosecution and so the state's

interest in non-interference is at its height. If two businesses

were not barred from pursuing a federal suit despite having

interests and representation in common with a state-court criminal

defendant, as was the case in Doran, it is difficult to see how an

industry association with some interests in common with a few of

its members who are state-court civil defendants would be barred by

Younger from pursuing its own federal suit. Doran explained that

the parties must be "so closely related" to justify treating them

the same before they may all "be subject to the Younger

considerations which govern any one of them." Id. at 928.

There is no doubt that the MDA is legally distinct from

its members, each complying with the formalities established by

state law. The MDA and each of its members have their own

interests, which may at times be similar to those of some or all of

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the members, but which may not be the same. Some members may have

interests distinct from or even adverse to other members. It is

likely that the MDA is responsive to a majority of its members,

when there are different views. And here, not even a majority is

involved in the state-court suits against three members. Only a

small fraction -- three out of over forty -- of its members are

involved in the state court proceedings where § 148B is at issue.

Those of its members who are not involved in such proceedings have

an interest in a determination of whether § 148B is pre-empted, and

the complaint so alleges. The complaint alleges that because "many

MDA members engage independent contractor delivery drivers or

contract with entities that engage independent contractor delivery

drivers, they arguably violate the Statute and this places them in

peril of an enforcement action and civil actions by private

parties."

Under these circumstances, neither Hicks nor Doran,

justifies treating the MDA the same as its members who are state-

court defendants for Younger purposes. Hicks involved (1) a close

employer-employee relationship between the federal-court plaintiff

and state-court defendant, (2) a particular piece of property at

issue in both proceedings, and (3) a federal action that "sought to

interfere with the pending state prosecution." 422 U.S. at 348-49.

Here, none of those circumstances is present: there is no such

-22-
relationship, no particular piece of property at issue, and, as is

explained below, no risk of interference.

Some circuits applying Hicks have found Younger

applicable to non-parties where the federal-court plaintiff's right

was "derivative" of the right of a state-court defendant, finding

the interests of the parties to be "intertwined" in such

circumstances. See Citizens for a Strong Ohio v. Marsh, 123 F.

App'x 630, 635 (6th Cir. 2005) ("Younger abstention may also be

appropriate for non-parties to the state action when '[s]uccess on

the merits . . . is entirely derivative' of the rights of the state

action parties." (alterations in original) (quoting Spargo v. N.Y.

State Comm'n on Judicial Conduct, 351 F.3d 65, 83 (2d Cir. 2003));

D.L. v. Unified Sch. Dist. No. 497, 392 F.3d 1223, 1230 (10th Cir.

2004) ("[W]hen in essence only one claim is at stake and the

legally distinct party to the federal proceeding is merely an alter

ego of a party in state court, Younger applies."); Spargo, 351 F.3d

at 83 (Younger applies where the federal-court plaintiff's claim is

"entirely derivative of whatever rights that" the state-court

defendant may have (internal quotation mark omitted)); Stivers v.

Minnesota, 575 F.2d 200, 203 (8th Cir. 1978) (Younger applies to

non-party where "[t]he only [federal-court] standing . . .

demonstrated . . . arises from the alleged impact" of the

challenged action on the state-court defendants).

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 We need not comment on whether we agree these cases were

properly decided, as even assuming they were, their rationale does

not apply here. As explained above, the MDA members who are not

state court defendants -- the vast majority of MDA's members --

have an interest in determining the constitutionality of the state

law. The MDA itself has a distinct interest in challenging the

Ordinance.7 As a result, the MDA's basis for bringing suit is not

entirely derived from those of its members who are state-court

defendants, and this line of cases does not justify applying

Younger here.

Doran also does not extend to the circumstances present

here. There, the Court stated that there "may be some

circumstances" where parties are "so closely related" in terms of

"ownership, control, and management" to be treated the same for

Younger purposes. 422 U.S. at 928-29. The MDA and its members,

who are state-court defendants, on the facts present here are not

"so closely related" to justify treating them the same under

Younger: only a small fraction of MDA members are state-court

7
It is well-accepted in the standing context that
organizations may have interests of their own, separate and apart
from the interests of their members. See, e.g., Havens Realty
Corp. v. Coleman, 455 U.S. 363, 378-79 (1982); NAACP v. Button, 371
U.S. 415, 428 (1963); 13A Wright & Miller, Federal Practice and
Procedure § 3531.9.5 (3d ed. 2011) ("[A]n organization can assert
standing to protect against injury to its own organizational
interests," separate and apart from an organization's ability to
"borrow . . . the standing that could be established by individual
members.").

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defendants, and the Attorney General makes no claim of any

substantial ownership, management, or control between the state-

court defendants and the MDA.

Indeed, those circuits to have applied Doran to non-

defendants have only found organizations to be sufficiently closely

related if the degree of ownership, management or control is

substantial and involves at least a majority interest. See Cedar

Rapids Cellular Tel., L.P., v. Miller, 280 F.3d 874, 882 (8th Cir.

2002) (applying Younger to a non-party in whom a state-court

defendant had "a controlling interest"); Warmus v. Melahn, 62 F.3d

252, 256 (8th Cir. 1995) (applying Younger where the non-party

individual was the "beneficial owner, officer and director" of the

state-court defendant corporation), vacated on other grounds, 517

U.S. 1241 (1996).

Not all circuits agree with even that formulation. See

Bickham v. Lashof, 620 F.2d 1238, 1244 (7th Cir. 1980) (finding the

interests of a corporation, which was the state-court defendant,

and "its sole shareholder" to be insufficiently intertwined to

justify applying Younger to the shareholder).

We need not decide whether we agree with the first line

of cases because no such ownership or control relationship is

present here.8

8
The Attorney General attempts to characterize the MDA as
the "alter ego" of its three individual members, borrowing the
phrase from other legal doctrines. It is questionable whether it

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 Further, the one circuit which has addressed a more

analogous situation has held that Younger does not apply in such

circumstances. See Citizens for a Better Env't, Inc. v. Nassau

County, 488 F.2d 1353, 1360-61 (2d Cir. 1973) (holding that Younger

does not bar an organization's challenge to anti-solicitation

ordinances notwithstanding pending proceedings against its members

because the organization's interests lie in the future

applicability of the ordinances).

Significantly, the circuits are in accord that the

application of Younger to non-parties is proper only in certain

limited, exceptional circumstances. See Spargo, 351 F.3d at 84

("[T]his case presents one of the narrow circumstances in which

Younger may properly extend to bar claims of third-parties who are

not directly involved in the pending state action."); Green, 255

is appropriate to lift this concept from other areas of law, where
it serves different purposes, and use it in abstention cases. Even
if the alter ego concept were easily transferable to abstention, it
would not be met here. The MDA has not assumed the on-going
expectations of a predecessor employer, and the question here is
not the labor law question of whether in consequence the MDA has
assumed obligations to employees. See NLRB v. Hosp. San Rafael,
Inc., 42 F.3d 45, 50 (1st Cir. 1994) (describing the labor law
alter ego doctrine, whereby an employer will be treated
interchangeably with its predecessor for purposes of applying labor
laws, typically when the new employer is "created by the owners of
the first for the purpose of evading labor law responsibilities").
Nor would the MDA be considered an alter ego of its members for
purposes of piercing the corporate veil, which typically requires,
among other elements, "pervasive control" over, In re Ontos, Inc.,
478 F.3d 427, 432 (1st Cir. 2007), or "complete domination" of,
Goya Foods, Inc. v. Unanue, 233 F.3d 38, 43 (1st Cir. 2000), the
supposed alter ego by other entities. The traditional legal
definitions and uses of the alter ego doctrine do not apply here.

-26-
F.3d at 1100 (explaining that Younger applies to non-parties in

"quite limited circumstances"); Harmon v. City of Kansas City, Mo.,

197 F.3d 321, 325-26 (8th Cir. 1999) (Younger may apply to

non-parties in "extraordinary circumstances"); United States v.

Composite State Bd. of Med. Exam'rs, 656 F.2d 131, 137 (5th Cir.

Unit B 1981) ("[A]bstention bars prospective relief to a person not

a party to the state action only in the extraordinary situation in

which the interests of the state defendant and the federal

plaintiff are so 'intertwined' as to be considered identical.");

Robinson v. Stovall, 646 F.2d 1087, 1090 (5th Cir. Unit A 1981)

("Except in extraordinary circumstances, a civil rights plaintiff's

ability to sue to vindicate his rights in federal court is not

affected by the simultaneous pendency of a state prosecution

against someone else . . . .").

In sum, neither the Supreme Court nor the other circuits

have extended Younger abstention to these facts.9 Nor do the

rationales provided by the Court in Hicks and Doran justify the

9
Our precedent does not support extending Younger to these
facts. Casa Marie, Inc. v. Superior Court of Puerto Rico, 988 F.2d
252 (1st Cir. 1993), is factually distinguishable because the
nonintervenors, who were not parties to the state-court action,
were seeking to enjoin enforcement of a valid state-court judgment.
Id. at 268. The court made clear that "[t]he nonintervenors, not
having been joined in the neighbors' Superior Court complaint,
probably could have chosen to press their federal claims in federal
court prior to the entry of the judgment and contempt decree,
subject only to the less imposing obstacle of Colorado River
abstention." Id. at 268 n.19 (emphasis added). Here, there is no
state-court judgment whose enforcement might be interfered with by
the federal suit.

-27-
application of Younger here. There is no indication that the Court

would extend Younger's application to non-parties to such

circumstances,10 and such a result would go beyond the outer limits

to which the other circuits have extended Younger. What is

conclusive is that in these circumstances the Younger interference

requirement has not been met.

2. Lack of Interference

It is also clear on these facts that there is no real

risk of interference with the three ongoing private civil actions

in the state courts. Younger abstention is based, in large

measure, on the "seriousness of federal judicial interference with"

ongoing state-court proceedings. Huffman, 420 U.S. at 603; accord

Maymó-Meléndez v. Álvarez-Ramírez, 364 F.3d 27, 31 (1st Cir. 2004)

("Younger is . . . built around the principle that . . . federal

courts should refrain from issuing injunctions that interfere with

ongoing state-court litigation . . . ."). As a result, where

"neither declaratory nor injunctive relief can directly interfere"

with the ongoing state proceedings, there is no basis for Younger

abstention. Doran, 422 U.S. at 931; accord Rio Grande, 397 F.3d at

70 ("Younger applies only when the relief asked of the federal

10
In the context of res judicata, the Court has recently
cautioned against lumping together distinct parties for purposes of
claim and issue preclusion, rejecting the "virtual representation"
doctrine. Taylor v. Sturgell, 553 U.S. 880, 885 (2008). The Court
made clear that non-parties are bound only in certain "limited
circumstances." Id. at 898 (quoting Martin v. Wilks, 490 U.S. 755,
762 n.2 (1989)).

-28-
court 'interfere[s]' with the state proceedings." (alteration in

original) (quoting Quackenbush, 517 U.S. at 716)); Green, 255 F.3d

at 1096 ("The Supreme Court has . . . confirmed that 'interference'

with ongoing state judicial proceedings is a necessary condition

for Younger abstention."). Interference is "usually expressed as

a proceeding that either enjoins the state proceeding or has the

'practical effect' of doing so." Rio Grande, 397 F.3d at 70.

Nothing in the MDA's requested relief would interfere

with the three state-court proceedings involving its members. The

prospective injunctive relief sought pertains solely to the

Attorney General, and would only preclude the Commonwealth, not

private parties, from bringing suit under § 148B(a)(2) with respect

to motor carriers engaged in interstate commerce.11

The declaratory relief sought would also not cause any

interference with the state-court proceedings. It is true that the

MDA seeks a general declaration that subsection (a)(2) is pre-

empted with respect to motor carriers engaged in interstate

commerce. The Supreme Court has made clear that is not a basis to

invoke Younger. In Steffel and in Doran, the outcomes of the

federal suits would create judicial precedent which might or might

11
If the Attorney General brought such an action in
contravention of the injunction, then the usual proceedings
provided for when a party has violated an injunction would be
available in the district court. Additionally, the defendant may
be able to raise the injunction as a defense in the state court
action.

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not coincide with the determinations made by the state courts as to

other parties under the same state statutes. That did not warrant

Younger abstention.

Indeed, the Court in NOPSI made clear that even though

"the federal court's disposition of such a case may well affect, or

for practical purposes pre-empt, a future -- or, as in the present

circumstances, even a pending -- state-court action," such an

effect was insufficient to give rise to Younger abstention. 491

U.S. at 373; see also Rio Grande, 397 F.3d at 71 ("[T]he mere

possibility of inconsistent results in the future is insufficient

to justify Younger abstention."); Green, 255 F.3d at 1097

(explaining that "the 'mere potential for conflict in the results

of adjudications,' is not the kind of 'interference' that merits

federal court abstention" (quoting Colo. River Water Conservation

Dist. v. United States, 424 U.S. 800, 816 (1976))).

Beyond that, there is another reason there is no

interference here. As a practical matter, the "[s]tate courts are

not bound by the dictates of the lower federal courts, although

they are free to rely on the opinions of such courts when

adjudicating federal claims." Evans v. Thompson, 518 F.3d 1, 8

(1st Cir. 2008) (citing Lockhart v. Fretwell, 506 U.S. 364, 376

(1993) (Thomas, J., concurring)); accord Steffel, 415 U.S. at 482

n.3 (Rhenquist, J., concurring) (explaining that a federal

declaratory judgment "would not be accorded the stare decisis

-30-
effect in state court that it would have in a subsequent proceeding

within the same federal jurisdiction. Although the state court

would not be compelled to follow the federal holding, the opinion

might, of course, be viewed as highly persuasive."); Magouirk v.

Phillips, 144 F.3d 348, 361 (5th Cir. 1998) ("[T]he Louisiana state

courts are not bound by Fifth Circuit precedent when making a

determination of federal law."); Bromley v. Crisp, 561 F.2d 1351,

1354 (10th Cir. 1977) (en banc) (holding that state courts "may

express their differing views on the retroactivity problem or

similar federal questions until we are all guided by a binding

decision of the Supreme Court"); United States ex rel. Lawrence v.

Woods, 432 F.2d 1072, 1076 (7th Cir. 1970) ("[B]ecause lower

federal courts exercise no appellate jurisdiction over state

tribunals, decisions of lower federal courts are not conclusive on

state courts."); Owsley v. Peyton, 352 F.2d 804, 805 (4th Cir.

1965) ("Though state courts may for policy reasons follow the

decisions of the Court of Appeals whose circuit includes their

state, they are not obliged to do so." (citation omitted)).12

12
Nothing in the Federal Declaratory Judgment Act changes
this: the Act simply provides that, where there is an "actual
controversy within [a federal court's] jurisdiction," the court may
"declare the rights and other legal relations of any interested
party seeking such declaration," and that "[a]ny such declaration
shall have the force and effect of a final judgment or decree and
shall be reviewable as such." 28 U.S.C. § 2201(a). The Act does
not contain any provisions indicating that declaratory judgments
are authoritative vis-à-vis nonparties to the litigation. In fact,
the Act indicates it may only declare the rights of "interested
part[ies] seeking [the] declaration." Id. The Supreme Court, in

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 As a matter of state law, Massachusetts state courts do

not regard the pronouncements of lower federal courts as binding.

ACE Prop. & Cas. Ins. Co. v. Comm'r of Revenue, 770 N.E.2d 980, 986

n.8 (Mass. 2002) ("Although we are not bound by decisions of

Federal courts (other than the United States Supreme Court) on

matters of federal law, 'we give respectful consideration to such

lower Federal court decisions as seem persuasive.'" (citation

omitted) (quoting Commonwealth v. Hill, 385 N.E.2d 253, 255 (Mass.

1979))); Commonwealth v. Montanez, 447 N.E.2d 660, 661 (Mass. 1983)

("Though we always treat their decisions with deference, we are not

bound by decisions of Federal courts except the decisions of the

United States Supreme Court on questions of Federal law."). Thus,

should the district court issue a declaratory judgment on remand

finding the state statute pre-empted, that judgment would not be

binding on Massachusetts state courts and litigation by private

parties may proceed. That said, a defendant may seek to enforce

the declaratory judgment in federal court should the Attorney

General continue to bring actions under the statute in state court

despite the declaratory judgment.

upholding the constitutionality of this Act, made clear that its
operation is "procedural only," Aetna Life Ins. Co. of Hartford,
Conn. v. Haworth, 300 U.S. 227, 240 (1937), and that declaratory
judgments are only proper "[w]here there is such a concrete case
admitting of an immediate and definitive determination of the legal
rights of the parties," id. at 241.

-32-
 The Attorney General does not argue that a federal

decision could result in collateral estoppel effects that would

amount to interference with the state proceedings. Even if such

collateral estoppel effects were present, they would not suffice to

justify Younger abstention. Rio Grande, 397 F.3d at 71 ("Normal

res judicata effects of federal actions on state actions . . . are

of course not enough to trigger Younger.").

Given this lack of any interference with the state-court

proceedings, Younger abstention is inapplicable.13

13
The district court primarily relied on McKenna v. Powell,
No. 10-017ML, 2010 WL 2474037 (D.R.I. Apr. 28, 2010), aff'd, 631
F.3d 581 (1st Cir. 2011) (per curiam), to find interference. See
Mass. Delivery Ass'n, 797 F. Supp. 2d at 172-73. In McKenna, the
plaintiff, a head of a law firm, brought suit against various Rhode
Island officials in federal court, arguing that a provision of
Rhode Island's workers' compensation law was unconstitutional.
2010 WL 2474037, at *1. Defendants pled Younger as a defense,
arguing that the plaintiff was a party to various state actions,
both in the state courts and before the unemployment agency. Id.
at *2-3. The court found the inference requirement easily met,
because granting the plaintiff relief would vitiate state court and
agency orders that had previously been issued. Id. at *4. Here,
the MDA is not a party in the state-court proceedings, and issuance
of the injunctive or declaratory relief it requests would in no way
vitiate any state-court orders or otherwise interfere with the
state-court proceedings.
Our conclusion here is also not in tension with our
decision in Rio Grande which held that there was no interference
with parallel state proceedings brought by the federal plaintiffs
as to other issues. 397 F.3d at 71. In discussing why a plaintiff
with pending state-court proceedings was not subject to Younger, we
noted that "interference also clearly exists where the plaintiff is
seeking a declaratory judgment that a prosecution, or the statue
serving as its basis, is illegal or unconstitutional." Id. at 70.
Because the plaintiff was not subject to state prosecution, that
condition was not met. The attempt to transpose the language
regarding interference as to the plaintiff in Rio Grande to the
particular context present here thus fails.

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 IV.

The district court erred as a matter of law in dismissing

the suit based on Younger abstention. We reverse the judgment of

the district court and remand for further proceedings consistent

with this opinion.

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