Jonathan R. v. Jim Justice

USCA4 Appeal: 21-1868 Doc: 69 Filed: 07/20/2022 Pg: 1 of 45

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 21-1868

JONATHAN R., minor, by Next Friend, Sarah Dixon; ANASTASIA M., minor, by
Next Friend, Cheryl Ord; SERENA S., minor, by Next Friend, Sarah Dixon; THEO
S., minor, by Next Friend, L. Scott Briscoe; GARRETT M., minor, by Next Friend,
L. Scott Briscoe; GRETCHEN C., minor, by Next Friend, Cathy L. Greiner;
DENNIS R., minor, by Next Friend, Debbie Stone; CHRIS K., CALVIN K., and
CAROLINA K., minors, by Next Friend, Katherine Huffman; KARTER W., minor,
by Next Friend, L. Scott Briscoe; ACE L., minor, by Next Friend, Isabelle
Santillion; and individually and on behalf of all others similarly situated,

Plaintiffs - Appellants,

v.

JIM JUSTICE, in his official capacity as the Governor of West Virginia; BILL
CROUCH, in his official capacity as the Cabinet Secretary of the West Virginia
Department of Health and Human Resources; JEREMIAH SAMPLES, in his
official capacity as the Deputy Secretary of the Department of Health and Human
Resources; LINDA WATTS, in her official capacity as the Commissioner of the
Bureau for Children and Families; WEST VIRGINIA DEPARTMENT OF
HEALTH AND HUMAN RESOURCES,

Defendants - Appellees.

-------------------------------

WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS AND URBAN
AFFAIRS; NATIONAL ASSOCIATION OF COUNSEL FOR CHILDREN;
CHILDREN’S ADVOCACY INSTITUTE; ADVOKIDS; YOUTH LAW
CENTER; NATIONAL CENTER FOR YOUTH LAW; MOUNTAIN STATE
JUSTICE; NATIONAL CENTER ON ADOPTION AND PERMANENCY;
CHILD AND DISABILITY NON-GOVERNMENTAL ORGANIZATIONS,

Amici Supporting Appellants.
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Appeal from the United States District Court for the Southern District of West Virginia, at
Huntington. Thomas E Johnston, Chief District Judge. (3:19-cv-00710)

Argued: March 9, 2022 Decided: July 20, 2022

Before HARRIS and RUSHING, Circuit Judges, and FLOYD, Senior Circuit Judge.

Affirmed in part, reversed in part, and remanded by published opinion. Senior Judge Floyd
wrote the opinion, in which Judge Harris joined. Judge Rushing wrote a separate opinion
dissenting in part and concurring in the judgment.

ARGUED: Marcia Robinson Lowry, A BETTER CHILDHOOD, New York, New York,
for Appellants. Philip Peisch, BROWN & PEISCH PLLC, Washington, D.C., for
Appellees. ON BRIEF: Richard W. Walters, J. Alexander Meade, SHAFFER &
SHAFFER, PLLC, Charleston, West Virginia, for Appellants. Steven R. Compton,
OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West
Virginia; Caroline M. Brown, Julia M. Siegenberg, Kendra Doty, BROWN & PEISCH
PLLC, Washington, D.C., for Appellees. Tobias S. Loss-Eaton, Mark P. Guerrera,
SIDLEY AUSTIN LLP, Washington, D.C., for Amici Washington Lawyers’ Committee
for Civil Rights and Urban Affairs, National Association of Counsel for Children,
Children’s Advocacy Institute, Advokids, Youth Law Center, National Center for Youth
Law, Mountain State Justice, and the National Center for Adoption and Permanency.
Jonathan M. Smith, Kaitlin Banner, Marja Plater, WASHINGTON LAWYERS’
COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS, Washington, D.C., for
Amicus Washington Lawyers’ Committee for Civil Rights and Urban Affairs. Amy C.
Harfield, Children’s Advocacy Institute, UNIVERSITY OF SAN DIEGO SCHOOL OF
LAW, San Diego, California, for Amicus Children’s Advocacy Institute. Lydia C. Milnes,
MOUNTAIN STATE JUSTICE, INC., Morgantown, West Virginia, for Amicus Mountain
State Justice. J. Michael Showalter, James D. Cromley, SCHIFF HARDIN LLP, Chicago,
Illinois, for Amici Child and Disability Non-Governmental Organizations.

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FLOYD, Senior Circuit Judge:

This case brought on behalf of thousands of West Virginia’s foster children

challenges the State’s administration of child welfare services. Plaintiffs describe an

ineptly structured program, beleaguered city employees trying their best to provide

necessities while plagued with unmanageable caseloads, staff shortages, and budgetary

constraints, and the resultant tragedies for West Virginia’s children relegated to entire

childhoods in foster-care drift. But this appeal is not about any of that. Invoking Younger

v. Harris, 401 U.S. 37 (1971), the court below abstained from hearing the case in deference

to parallel state-court proceedings. Because West Virginia courts retain jurisdiction over

foster children until they leave state custody, the court reasoned, any federal intervention

into that process would undermine our fundamental notions of comity and federalism and

reflect negatively upon the state court’s ability to enforce constitutional principles.

We reverse. In this case, principles of federalism not only do not preclude federal

intervention, they compel it. Plaintiffs bring federal claims, and federal courts “are obliged

to decide” them in all but “exceptional” circumstances. Sprint Commc’ns, Inc. v. Jacobs,

571 U.S. 69, 72, 73 (2013) (citation omitted). And this case presents none of those

circumstances.

But our decision is based on more than mere syllogism. Younger’s narrow scope

safeguards Plaintiffs’ rights, bestowed on them by Congress in the Judiciary Act of March

3, 1875, to present their claims to a federal tribunal. 28 U.S.C. § 1331. Plaintiffs allege

that a federal class action is the most—if not the only—effective way to achieve the kind

of systemic relief they seek. And history builds out those allegations. For years, West

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Virginia’s response to any foster-care orders entered as part of the individual state hearings

seems to have been to shuffle its money and staff around until the orders run out,

entrenching rather than excising structural failures. See In re Carlita B., 408 S.E.2d 365,

375 (W. Va. 1991) (lamenting, as far back as 1991, the foster children “left to languish in

a limbo-like state during a time most crucial to their human development”); State v.

Michael M., 504 S.E.2d 177, 186 (W. Va. 1998) (reiterating the court’s “frustration over

any unwarranted delays caused by the” State (emphasis omitted)); In re Brandon H.S., 629

S.E.2d 783, 786, 789–90 (W. Va. 2006) (still deploring the State’s inability to “solv[e] the

staffing crisis”). Forcing Plaintiffs to once more litigate their claims piecemeal would get

federalism exactly backwards.

I.

A.

West Virginia entrusts to its Department of Health and Human Resources (DHHR

or the Department) the care of all children in the custody of the State. W. Va. Code Ann.

§ 49-4-113(a)–(b). Roughly 90% of those children come to the Department by way of

traditional abuse-and-neglect proceedings following parental maltreatment. J.A. 210–11,

13. But 10% are adjudicated into its custody through juvenile delinquency and status-

offense hearings, the state courts possessing authority to place children in the Department’s

care when they require a middle ground between in-home supervision and full-fledged

imprisonment. See W. Va. Code Ann. §§ 49-4-706(a)(3), 49-4-708(a)(4).

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But regardless of how a child becomes a ward of the Department, the State bears

the same responsibility to “determine the safety of the child, the continuing necessity for

and appropriateness of the placement, the extent of compliance with the case plan, and the

extent of progress which has been made toward alleviating or mitigating the causes

necessitating placement in foster care.” Id. § 49-4-110(a); see also id. §§ 49-4-406(a), (b),

(d)(2)(4), 49-4-712(a), 49-4-714(f). That is, as far as the State is concerned, all children

within the Department’s guardianship are “foster children” and the Department must mete

out appropriate care to them all. See Resp. Br. 4 & n.1 (citing DHHR, Foster Care Policy

(Aug. 2021), https://dhhr.wv.gov/bcf/policy/Documents/Foster%20Care%20Policy%20

August%202021%20%281%29.pdf).

But the buck does not stop with the Department; state circuit courts conduct

“quarterly status reviews” to ensure the Department places children “in the least restrictive

setting available” and generally acts in their “best interests.” W. Va. Code Ann. §§ 49-4-

110(a), 49-4-404(a), 49-4-604(a)(2), 49-4-714(b). Broadly speaking, the courts “examine

the proposed case plan,” “determine if the department has made reasonable efforts to

finalize the permanency plan,” approve out-of-state placements, and review “[t]he

appropriateness of the current educational setting” and any “[s]ervices required to meet the

child’s needs.” Id. §§ 49-4-108, 49-4-408(b), 49-4-608(b), (d)–(e).

To sum up, the Department maintains responsibility for planning and delivering the

care, the circuit courts for supervising it.

However effective this arrangement appears on paper, Plaintiffs assert the

Department has made a mockery of it in practice. Rather than take children away from

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abuse and neglect, Plaintiffs charge, the Department only compounds it. It houses children

in inadequate and outright dangerous environments, deprives them of badly-needed social

and mental-health services, and, when all else fails—which it often does in West

Virginia—simply institutionalizes the children for years, segregating them from the outside

world at the time socialization matters most.

Take just two of the named Plaintiffs. Jonathan, fifteen at the time of filing, had

suffered repeated physical, sexual, and emotional abuse at the hands of his biological

parents. When he became suicidal and aggressive, they voluntarily gave him up for

adoption. And though the Department was aware of the circumstances, it did nothing to

vet their decision—or the adoptive parents who soon committed Jonathan to a psychiatric

hospital. When Jonathan returned from the hospital, so did the abuse, prompting several

calls from mandatory school reporters. Still, the Department did not intervene. Only when

Jonathan was locked away in the psychiatric hospital for the second time—now, on his

adoptive parents’ accusations that he had sexual contact with another child—did the

Department step in. But it made no effort to place Jonathan in a foster home, simply

parking him at an out-of-state facility in Georgia. After Georgia came Nashville and its

mandatory treatment for adjudicated juvenile sex offenders, never mind that no one had

investigated the adoptive parents’ claims or that the State had never even charged Jonathan

with a crime. And after three years, the Department sloughed him off to yet another

facility, for a total of seven years behind closed and locked institutional doors. Finally, the

Department delivered Jonathan to his biological grandmother. But it offered no social or

financial services or any other meaningful support that would aid in her care for the post-

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traumatic-stress, attention-deficit, and reactive-attachment disorders Jonathan had

developed along the way. See J.A. 90–93.

Anastasia, eleven when Plaintiffs filed the complaint, first entered foster care at four

years of age. The Department placed her in a foster home with five other children but

removed her shortly after upon allegations of abuse. Anastasia spent the next six months

shuttled between seven different placements, only to be returned to her original foster

mother—who promptly deposited her in a psychiatric hospital. After some months,

Anastasia returned to her foster home, but at age ten was caught shoplifting with her foster

sister. The Department immediately took custody of both girls, placed Anastasia in a

succession of emergency shelters, and, when Anastasia sprayed Lysol on a staff member,

handed her over to the police to be charged with assault. The result: three months at a

juvenile detention center that Anastasia spent sleeping on a bare mattress on a cement floor

among adolescents aged fifteen and older. Abruptly, the charges were then dropped, and

Anastasia was shipped off to an out-of-state facility for children with psychiatric issues.

She resides there still, even as the facility has made several less-than laudable appearances

in the news, including when its admissions coordinator was charged with sexual assault of

a suicidal, fourteen-year-old patient. Anastasia suffers from several psychological

disorders. See id. at 93–95.

These stories are shocking and yet, according to Plaintiffs, shockingly common

among West Virginia’s foster children. The Department, of course, does not bear

responsibility for it all. Plaintiffs observe West Virginia is the fourth poorest state in the

Nation. Id. at 78. In 2017, its rate of child deaths related to abuse and neglect was more

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than double the national average. Id. at 77. And since 2017, the State has had the highest

rate of foster-care entries for youths between fourteen and seventeen years of age (1.4% as

compared to the 0.3% national average). Id. at 78. But the crux of Plaintiffs’ complaint is

that the Department has failed to do anything meaningful to stave off this crisis. For years,

it has been leaving almost a quarter of its positions unstaffed, has failed to recruit anywhere

near enough foster-care families, and has not bothered to educate the families it had,

turning instead to institutionalization to manage the case load. Id. at 77–79 (reporting that

71% of youth between ages twelve and seventeen have been institutionalized, with 327

children sent out of state). And while these problems undeniably trickle down to each

child’s individual case, Plaintiffs insist they can only be remedied through systematic,

structural change. Plaintiffs accordingly bring this class action, seeking to represent the

nearly 7,000 foster children in the Department’s care.

For their one General Class, Plaintiffs seek, among others: increases in staffing so

that caseloads do not exceed fifteen children per case worker, development of detailed

plans for recruiting foster homes, and prompt submissions of individualized case plans to

the appropriate state court. See id. at 174–77. Plaintiffs also propose three subclasses, to

reflect foster populations they believe require more nuanced reform: a Kinship Subclass

for children placed with relatives who lack resources and general know-how of raising

children with developmental difficulties, an ADA Subclass for children with physical and

mental disabilities, and an Aging-Out Subclass for children approaching adulthood and in

need of special transition planning. Id. at 177–78. Plaintiffs also request a neutral monitor

to oversee the Department’s compliance with district-court orders. Id. at 179.

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To be clear, Plaintiffs do not challenge any state statutes or any state-court

judgments. They object only to Department practices that have allegedly resulted in severe

delays, inadequate care, and outright abuse on grounds that they violate the Due Process

Clause, the First Amendment “right to familial association,” the Adoption Assistance and

Child Welfare Act, 42 U.S.C. § 670 et seq., the Americans with Disabilities Act, 42 U.S.C.

§ 12132, and the Rehabilitation Act, 29 U.S.C. §§ 705(20), 794. J.A. 165–74.

B.

Plaintiffs filed their complaint on September 30, 2019, and West Virginia moved to

dismiss on November 26 of that same year. The State urged two procedural grounds: lack

of subject-matter jurisdiction under Rooker-Feldman 1 and Younger abstention, both on the

theory that Plaintiffs impermissibly “seek federal review and ongoing oversight over” West

Virginia’s courts’ quarterly foster-care hearings. Jonathan R. v. Justice, No. 3:19-CV-

00710, 2021 WL 3195020, at *5 (S.D. W. Va. July 28, 2021); J.A. 256. West Virginia also

argued that, substantively, all five of Plaintiffs’ counts failed to state a claim. Jonathan R.,

2021 WL 3195020, at *5. Soon after West Virginia filed its motion, COVID-19 arrived in

the United States. By the time the district court picked the motion back up in July 2021,

six of the named Plaintiffs had left foster care, and West Virginia had filed additional

motions to dismiss their claims as moot.

1
Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia Court of
Appeals v. Feldman, 460 U.S. 462 (1983), prohibit federal district courts from sitting in
actual or constructive appeal of state-court judgments. See infra Part IV.
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The district court sided with West Virginia. Starting with mootness, the court found

“no dispute that these six Plaintiffs are no longer in the [Department’s] custody” and so

concluded they “lack a legally cognizable interest in the outcome of this case.” Id. at *5–

6 (cleaned up) (quoting Incumaa v. Ozmint, 507 F.3d 281, 286 (4th Cir. 2007)). Plaintiffs

asked the court to consider the capable-of-repetition-yet-evading-review exception, but on

court’s view, the marginal probability that the six Plaintiffs would reenter foster care was

not enough to qualify the claims as such. Id. at *6–7. The court also rejected the special

class-action exception whereby eventual class certification may “relate back” to the filing

of the complaint. Id. at *8. That exception concerns only “inherently transitory” claims,

the court reasoned, but “Plaintiffs have failed to show that these children have been moved

so quickly in and out of [Department] custody that their claims are effectively

unreviewable.” Id. (quoting Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 75

(2013)). The court thus dismissed the six Plaintiffs’ claims as moot.

Because six other Plaintiffs remained, the court then turned to West Virginia’s

Younger contentions. It found this case to resemble Moore v. Sims, 442 U.S. 415 (1979),

where the Supreme Court abstained from resolving a foster-care dispute over parental

rights. See id. at *9. Like Moore, this case concerns “state civil proceedings that are akin

to criminal prosecutions,” the court explained. Id. (quoting Sprint, 571 U.S. at 78). And

beyond the mere similarity in form, the district court found traditional justifications for

abstention—risk of interfering with state-court decisions, substantial state interest, and

adequate opportunity to present those same challenges in the state proceedings, see

Middlesex Cnty. Ethics Comm’n v. Garden State Bar Ass’n, 457 U.S. 423, 431 (1982)—

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compelled it to follow Moore’s course. The court thus granted West Virginia’s motion to

dismiss, without reaching the State’s arguments about Rooker-Feldman or failure to state

a claim and without ruling on class certification.

Plaintiffs now appeal both rulings; the State defends the district court’s judgment

and once more presses Rooker-Feldman in alternative. We think Plaintiffs have the better

of the argument on all three grounds. We reverse and remand so that the district court can

consider West Virginia’s substantive arguments for dismissal and, if appropriate,

Plaintiffs’ motion for class certification.

II.

Like the district court, we begin with mootness. The parties relegate this issue to

the backburner, believing the case can go on so long as some named Plaintiffs continue to

have a personal stake in the dispute. But since the district court’s ruling, two more named

Plaintiffs have aged out of foster care. And without them, no Plaintiff can represent either

the Kinship or the Aging Out Subclass. So if we affirm the district court’s reasoning, Rule

23(a) will preclude certification of those Subclasses. See E. Tex. Motor Freight Sys. Inc.

v. Rodriguez, 431 U.S. 395, 403 (1977) (explaining that a named plaintiff must belong to

the class); Fed. R. Civ. P. 23(c)(5) (explaining that the subclasses “are each treated as a

class” and must meet the same certification requirements). True, the Plaintiffs’ dismissal

would not necessarily end the suit—their counsel could supplement the complaint—but it

would needlessly slow the resolution of their essential and urgent claims, perhaps several

times over. So we think it more prudent to resolve mootness up front. Because “the

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relevant jurisdictional facts are not in dispute,” we consider the issue de novo. Porter v.

Clarke, 852 F.3d 358, 363 (4th Cir. 2017).

Mootness doctrine is grounded in Article III’s “case-or-controversy limitation on

federal judicial authority,” Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC),

Inc., 528 U.S. 167, 180 (2000), which requires a cognizable interest in the outcome of the

action to bring suit. But its demands extend past the filing of the complaint, insisting on

“an actual controversy . . . at all stages of review.” Arizonans for Official English v.

Arizona, 520 U.S. 43, 67 (1997) (quoting Preiser v. Newkirk, 422 U.S. 395, 401 (1975)).

Still, the doctrine is “flexible,” recognizing several settled exceptions. U.S. Parole

Comm’n v. Geraghty, 445 U.S. 388, 400 (1980). Plaintiffs invoke two of them: the general

“capable of repetition yet evading review” and the class-action specific “relation back.”

Plaintiffs cannot succeed on the first, for it applies only when “there is a reasonable

expectation that the same complaining party will be subject to the same action again.”

Spencer v. Kemna, 523 U.S. 1, 17 (1998) (cleaned up) (quoting Lewis v. Cont’l Bank Corp.,

494 U.S. 472, 481 (1990)). Plaintiffs posit there is about a 7.5% chance one of the adopted

children will return to state custody. Reply Br. 25 n.10. But even if accurate, 7.5% simply

does not convey a sense of “reasonable expectation.” Spencer, 523 U.S. at 17. Not to

mention that the now-adult Plaintiffs can never reenter foster care again. The district court

appropriately declined to apply this first exception.

It was wrong, however, to reject the second. Where a named plaintiff’s individual

claim becomes moot before the district court has an opportunity to certify the class, the

certification may “relate back” to the filing of the complaint if other class members “will

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continue to be subject to the challenged conduct and the claims raised are . . . inherently

transitory.” Genesis, 569 U.S. at 76 (cleaned up) (citation omitted).

The State objects Plaintiffs’ claims are not so transitory: Plaintiffs themselves

complain that children languish in foster care for years. But that misapprehends the

exception. As the Court explained in Gerstein v. Pugh, what matters most is that the

lifespan of state guardianship “cannot be ascertained at the outset,” that “[i]t is by no means

certain that any given individual, named as plaintiff, would be in . . . custody long enough

for a district judge to certify the class.” 420 U.S. 103, 110 n.11 (1975). Circuit courts, too,

find “the essence of the exception” in the “uncertainty about whether a claim will remain

alive.” Olson v. Brown, 594 F.3d 577, 582 (7th Cir. 2010) (finding Indiana prisoners

eligible for conditional release fairly within the exception); see also Unan v. Lyon, 853

F.3d 279, 287 (6th Cir. 2017) (Medicaid recipients); Thorpe v. D.C., 916 F. Supp. 2d 65,

67 (D.D.C. 2013) (nursing-home residents). And courts find the exception particularly

fitting when defendants create “a significant possibility that any single named plaintiff

would be [dismissed] prior to certification.” Olson, 594 F.3d at 582 (quoting Zurak v.

Regan, 550 F.2d 86, 92 (2d Cir. 1977)); see also Unan, 853 U.S. at 287. As well as when

the court may “safely assume that [counsel] has other clients with a continuing live interest

in the case.” Gerstein, 420 U.S. at 110 n.11.

All of these principles apply with full force here. Foster-care placements are

exceedingly unpredictable. Even if some children will spend a long-enough period in the

system, requiring Plaintiffs to predict which child will asks too much. And as in Gerstein,

“the constant existence of a class of persons suffering the deprivation is certain” on the

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facts alleged. Id. Finally, as with the prisoners in Olson, “[t]he duration of” Plaintiffs’

claims remains largely “at the discretion of the” State. 594 F.3d at 583. Just like Indiana

was able to move its prisoners to a different facility, West Virginia can push through

adoption and family reunification. But unlike prison transfers (presumably to better-

equipped facilities), unsuitable adoptions or premature reunification with parents

unprepared to take on the responsibility can devastate entire childhoods. We decline to

create such perverse incentives for the States.

The State leans heavily on 31 Foster Children v. Bush, 329 F.3d 1255 (11th Cir.

2003), and J.B. ex rel. Hart v. Valdez, 186 F.3d 1280 (10th Cir. 1999), as holding similar

foster-care claims moot. But 31 Foster Children never considered relation back. 329 F.3d

at 1263. And J.B. declined to certify the class. 186 F.3d at 1290. Nor does this case

involve a dilatory plaintiff, which might dictate a different outcome. E.g., Espenscheid v.

DirectSat USA, LLC, 688 F.3d 872, 874 (7th Cir. 2012). We find nothing abnormal in

waiting several months to move for class certification—especially in light of the pandemic.

Cf. Rensel v. Centra Tech, Inc., 2 F.4th 1359, 1366 n.3 (11th Cir. 2021) (noting that

“between 2000 and 2018, the median time from the filing of the initial complaint to the

class certification decision” in certain complex class actions spanned “two-and-a-half

years”); Thomas E. Willging et al., An Empirical Analysis of Rule 23 to Address the

Rulemaking Challenges, 71 N.Y.U. L. Rev. 74, 103 (1996) (reporting that in 75% of class

actions surveyed, “the time from the filing of the complaint to the filing of a motion to

certify ranged from more than 6.5 to more than 16.3 months”).

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We hold Plaintiffs’ claims fit comfortably within Gerstein’s inherently transitory

exception. If, on remand, the district court decides to certify the class, the certification will

“relate back to the filing of the complaint,” preserving Plaintiffs’ class claims. Genesis,

569 U.S. at 76 (cleaned up) (citation omitted). 2

III.

The parties’ main disagreement centers on abstention. Younger, the pathmaking

case here, required federal courts to stay their hand when criminal prosecution was pending

in state court. 401 U.S. at 41. In keeping with “the basic doctrine of equity jurisprudence,”

Younger reasoned federal injunctions improper “when the moving party has an adequate

2
Our dissenting colleague suggests we have improperly employed the “inherently
transitory” exception because it applies only where “no plaintiff possesse[s] a personal
stake in the suit long enough for litigation to run its course.” See infra p. 44 (emphasis
added) (quoting Genesis, 569 U.S. at 76). While that is certainly one circumstance where
the exception applies, it is not the only one. As we explain, Gerstein allowed relation back
where it was “by no means certain that any given individual, named as plaintiff,” would
suffer a deprivation “long enough for a district judge to certify the class.” 420 U.S. at 110
n.11. Genesis, for its part, reaffirms Gerstein and itself notes the exception may be
appropriate where a deprivation “likely would end prior to the resolution” of plaintiffs’
claims, so long as “it is ‘certain that other persons similarly situated’ will continue to be
subject to the challenged conduct.” 569 U.S. at 76 (emphasis added) (quoting County of
Riverside v. McLaughlin, 500 U.S. 44, 52 (1991)). True, Genesis rejected the exception in
the end, but it did so only because “respondent’s complaint” in that case “requested
statutory damages” and not “injunctive relief”—a claim that “cannot evade review.” Id. at
77. We accordingly read Genesis to continue to apply Gerstein’s “inherently transitory”
exception as it has always been understood, allowing relation back whenever the “nature
of the challenged conduct” creates a significant probability that “a named plaintiff’s
individual claim [will] become[ ] moot before the district court has an opportunity to rule
on the certification motion,” Genesis, 569 U.S. at 75–76—even where it “cannot be
ascertained at the outset” which individual plaintiff would need to drop out, Gerstein, 420
U.S. at 110 n.11. The mere fact that some named plaintiffs remain three years into this
litigation, then, does not defeat the exception.
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remedy at law and will not suffer irreparable injury.” Id. at 43–44. But “an even more

vital consideration” prompting abstention was “the notion of ‘comity,’ that is, a proper

respect for state functions” and a corresponding recognition that our Nation “will fare best

if the States and their institutions are left free to perform their separate functions in their

separate ways.” Id. at 44. In the years following Younger, the Court has extended the

doctrine to certain civil proceedings where federal interference is “likely to be every bit as

great as” in criminal ones. Huffman v. Pursue, Ltd., 420 U.S. 592, 604 (1975). At the

same time, the Court stayed resolute that “[a]bstention is not in order simply because a

pending state-court proceeding involves the same subject matter.” Sprint, 571 U.S. at

72. “Congress, and not the Judiciary, defines the scope of federal jurisdiction within the

constitutionally permissible bounds.” New Orleans Pub. Serv., Inc. v. Council of New

Orleans, 491 U.S. 350, 359 (1989) (NOPSI). And federal courts have “no more right to

decline the exercise of jurisdiction which is given, than to usurp that which is not

given.” Cohens v. Virginia, 19 U.S. 264, 404 (1821).

West Virginia and the district court both view this case as falling on the abstention

side of the scale because state circuit courts “retain[ ] exclusive jurisdiction over the setting

in which the child is placed and over any subsequent requests for modification to that

placement” through the individual periodic hearings. Resp. Br. 25 (cleaned up) (citations

omitted). Any federal relief, they alert, would interfere with those hearings and, worse,

would demand near-constant supervision of state courts.

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Reviewing de novo, see VonRosenberg v. Lawrence, 781 F.3d 731, 734 (4th Cir.

2015), we cannot agree. 3 Whether we look to their form or their function, the quarterly

state-court hearings are simply not “of the sort entitled to Younger treatment.” Sprint, 571

U.S. at 79 (cleaned up) (citation omitted). They do not fit any historical precedent applying

the doctrine. And abstaining here would forward none of the comity interests our federalist

system holds dear. But more than that, we see no reason to dismiss the case en masse

before the district court has even had the opportunity to sketch out potential contours of

relief. If Plaintiffs succeed on the merits, the court can draw careful lines so as not to

interfere with individual state-court decisions. But for now, we reverse.

A.

In Younger’s formative years, the Court entertained a variety of arguments about

when federal courts should abstain, probing the bounds of the doctrine and the wisdom of

discarding the jurisdiction Congress prescribed. It considered the type of state proceeding

and the magnitude of state interest and sifted through functional arguments like whether

plaintiffs had a genuine opportunity to raise the same claims before the state court—all

3
Both parties suggest we review the district court’s decision for abuse of discretion. But
Plaintiffs do not challenge the court’s exercise of discretion, they argue this case does not
“satisf[y] the basic requirements of abstention.” E.g., VonRosenberg, 781 F.3d at 734.
That is to say, Plaintiffs question whether the district court had authority to abstain—a legal
inquiry courts always conduct “de novo.” Cedar Shake & Shingle Bureau v. City of Los
Angeles, 997 F.2d 620, 622 (9th Cir. 1993); see also Rio Grande Cmty. Health Ctr., Inc. v.
Rullan, 397 F.3d 56, 68 (1st Cir. 2005) (explaining that the court’s “review of whether
[Younger conditions] have been met is de novo”); see generally Sprint, 571 U.S. 584
(applying Younger without deference to the courts below).
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with an eye toward understanding precisely when a federal disposition would “unduly

interfere with the legitimate activities of the States.” Younger, 401 U.S. at 44.

Cases like Huffman, Juidice, and Middlesex, exemplify this early era. In Huffman,

the Court debated whether to extend Younger past the criminal context to civil matters “in

aid of and closely related to criminal statutes” such as a civil enforcement proceeding to

abate the showing of obscene movies. 420 U.S. at 604. The Court’s majority found

abstention appropriate because federal injunctions in such quasi-criminal cases would

disrupt “the very interests which underlie [state] criminal laws.” Id. at 605. Building on

those deliberations, Juidice v. Vail then applied Younger’s principles to federal challenges

of state contempt orders because the contempt process is how the State “vindicates the

regular operation of its judicial system”—another critical state interest. 430 U.S. 327, 335–

36 (1977). In Middlesex, too, the Court found the State retained an “extremely important

interest in maintaining and assuring the professional conduct of the attorneys it licenses”

and, perhaps even more importantly, that the federal plaintiff could easily have “raise[d]

his federal constitutional challenge” “in the state disciplinary proceedings” but chose not

to. 457 U.S. at 434–35. Fundamental “principles of comity and federalism” thus called

out for abstention. Id. at 436; see also Moore, 442 U.S. at 423; Trainor v. Hernandez, 431

U.S. 434, 444 (1977); Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 10–16 (1987) (all working

through similar considerations).

But by 2013, the lay of the land had been established. Having surveyed dozens of

cases, the Court could now map out Younger’s heartland: “criminal prosecutions,” “civil

enforcement proceedings,” and “civil proceedings involving certain orders uniquely in

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furtherance of the state courts’ ability to perform their judicial functions.” Sprint, 571 U.S.

at 78 (cleaned up) (citations omitted). Unanimously, the Court held those three categories

“define Younger’s scope,” for capping abstention to those “exceptional circumstances”

appropriately harmonized the comity interest Younger originally espoused with the federal

courts’ “obligation” to adjudicate federal questions. Id. at 77–78 (citation omitted). 4

Sprint thus recast the earlier cases. Rather than establish anew in each case whether

federal proceedings threaten important state interests or may interfere with state

proceedings or whether litigants could have easily raised their federal claims in those state

proceedings—the so-called Middlesex factors—Sprint directs courts to a rule of thumb: if

the case falls into one of the three settled categories, courts should go on to determine if

federal involvement will in fact put comity at risk, but if the case does not, courts need go

no further, they can properly entertain their federal-question jurisdiction without worrying

about stepping on state toes. See id. at 81 (describing the early Younger jurisprudence as

providing “additional factors” courts consider); Oglala Sioux Tribe v. Fleming, 904 F.3d

603, 610 (8th Cir. 2018) (announcing, after Sprint, that Younger “counsels federal-court

abstention when there is a pending state proceeding of a certain type” and assessing

whether “South Dakota’s temporary custody proceedings are civil enforcement

proceedings to which Younger principles apply” (citation omitted)).

4
Sprint itself concerned a lawsuit over a local telecommunications carrier’s authority to
charge for calls made via the Internet under the 1996 Telecommunications Act. See 571
U.S. at 73–74. Holding up the suit against the categories it had just identified, the Court
found it did not fit them and reversed the lower courts’ decision to abstain. Id. at 79–81.
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Applying this heuristic here, we conclude the quarterly state hearings do not require

the district court to stand aside. West Virginia concedes the hearings are not criminal trials,

but argues they are close enough so that we can shelve them alongside other civil

enforcement proceedings. Sprint has characterized civil enforcement proceedings as cases

“brought by the State in its sovereign capacity” following an “investigation” and upon “the

filing of a formal complaint or charges.” 571 U.S. at 79–80 (citations omitted). And West

Virginia suggests that describes this case because children do not enter foster care unless

courts find their parents abusive or neglectful or find the children themselves delinquent—

either way, a process that requires investigation and a formal complaint by the State. As

proof, the State points to Moore, which declined to hear a constitutional challenge to

several Texas Family Code provisions undergirding the state court’s decision to strip

parents of custody. See 442 U.S. at 418–19.

We easily reject this comparison as to the children who have suffered abuse and

neglect. Moore concerned the other side of the foster-care process: parental rights. No

surprise, then, that the Court equated the initial child-removal proceeding with the public-

nuisance adjudication in Huffman. Id. at 423; see also Sprint, 571 U.S. at 79 (explaining

that “decisions applying Younger to instances of civil enforcement have generally

concerned state proceedings” “initiated to sanction the federal plaintiff, i.e., the party

challenging the state action, for some wrongful act”). By contrast, the ongoing individual

hearings here serve to protect the children who would be plaintiffs in federal court. That

is why they proceed in a “conciliatory” manner, engaging, in addition to State

representatives, “parents, relatives, foster parents, shelter care facility personnel and

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others.” Tinsley v. McKay, 156 F. Supp. 3d 1024, 1034 (D. Ariz. 2015) (discussing

analogous foster-care hearings); see W. Va. Code Ann. § 49-4-110 (mandating

participation of “the multidisciplinary treatment team”). It would turn decades of Supreme-

Court jurisprudence—and logic—on its head to put these foster children in the shoes of the

abusive parents in Moore, 442 U.S. at 423, the obscene-theater director in Huffman, 420

U.S. at 604–05, or the asset-concealing fraudsters in Trainor, 431 U.S. at 444.

We also have our doubts that Moore applies to claims involving the roughly 10% of

children who arrive to state custody through the delinquency and status-offender

proceedings, but both parties acknowledge the issue is not properly before us: The district

court declined to resolve it because it lacked “[s]ufficient information” to determine if any

named Plaintiffs were in those 10%, which is to say, the court could not determine if this

constitutes a live issue in the case. Jonathan R., 2021 WL 3195020, at *10 n.5. We leave

that factfinding to the district court on remand. 5 We note, however, that West Virginia

treats all foster children the same, whether they end up in foster care “as a result of a

juvenile proceeding or as a result of a child abuse and neglect proceeding.” W. Va. Code

Ann. § 49-4-110; see also id. § 49-4-103 (no child may “be deemed a criminal by reason

of the adjudication [under this chapter], nor may the adjudication be deemed a conviction”).

So the operative “pending” state court proceedings likely do not encompass the initial

(settled) orders adjudicating children into state custody. See Tinsley, 156 F. Supp. 3d at

5
All the more so because this question closely intertwines with class certification and may
resolve itself if the district court concludes no named Plaintiff can adequately represent
children who enter the system as part of delinquency proceedings and Plaintiffs choose to
go ahead with the Class as is rather than amend their complaint.
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1033–34. And in any event, the exercise of federal jurisdiction here would not threaten

any of our comity obligations. See infra Part III.B.

West Virginia alternatively proffers the third category, which Sprint defined as

orders “uniquely in furtherance of the state courts’ ability to perform their judicial

functions.” 571 U.S. at 78 (citation omitted). But it still misses the mark. As discussed,

the Court first introduced this category in Juidice, declining to review a state contempt

order so as not to intervene with a process that “lies at the core of the administration of a

State’s judicial system” and ensures the courts’ “orders and judgments are not rendered

nugatory.” 430 U.S. at 335, 336 n.12. Neither Sprint nor Juidice defined this category

further, and the Court has invoked it just one other time, in Pennzoil, 481 U.S. at 12–14, to

reject a federal challenge to the constitutionality of Texas’s appeal-bond provisions.

Pennzoil, the Court explained, was like Juidice in that it “involve[d] challenges to the

processes by which the State compels compliance with the judgments of its courts.” Id. at

13–14. And enjoining that process would not only “interfere with the execution of state

judgments, but . . . do so on grounds that challenge the very process by which those

judgments were obtained.” Id. at 14.

The foster-care periodic hearings, of course, are nothing of the sort. The state

court’s usual rulings during these hearings involve approving foster-care plans, ordering

payments for medical or mental-health services, affirming out-of-state transfers, and

generally ensuring the children’s placements continue to be in their best interest. See W.

Va. Code Ann. §§ 49-4-108, 49-4-110, 49-4-404. Nothing about that implicates “the

administration” of West Virginia’s judiciary. Juidice, 430 U.S. at 335. To be sure, West

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Virginia’s courts have the authority to hold the Department in contempt when it fails to

abide those rulings. But this lawsuit does not challenge that authority—it does not

challenge any state-court order at all. It asks instead to enjoin the Department’s actions. 6

And settled jurisprudence teaches Younger does not “require[ ] abstention in deference to

a state judicial proceeding reviewing legislative or executive action.” NOPSI, 491 U.S. at

368; accord Rio Grande Cmty. Health Ctr., Inc. v. Rullan, 397 F.3d 56, 70 (1st Cir. 2005)

(holding abstention improper where the state and federal lawsuits challenged “the Secretary

of Health’s failure to implement a [payment system], as federal law requires”).

Determined, West Virginia insists the “90-day status hearings further ‘the state

courts’ ability to perform their judicial function’ of overseeing compliance with their initial

orders in the abuse-and-neglect case”—that is, the original dispositions regarding

children’s placements. Resp. Br. 33–34. Note the general tenor of this argument. West

Virginia points to no specific pending contempt orders this suit would undermine; it argues

only that federal jurisdiction here would undermine the state courts’ “ability” to issue them.

But if that sufficed to cram state-court proceedings into Younger’s third category, we would

6
Plaintiffs’ proposed relief includes requests to “[r]equire DHHR [to] ensure” that children
are “placed in the least-restrictive, most-family like settings possible” or that children
belonging to the ADA Subclass “receive foster care services in the most integrated setting
appropriate to the child’s needs.” J.A. 177–78. We take Plaintiffs at their word, as
requesting the district court to direct such relief at the Department only. The Department,
for example, may need to increase the number of less-restrictive placements available or
train existing caregivers to provide care for children with disabilities, as the district court
sees fit. But such relief would not impact the determinations of state circuit courts with
respect to any particular children, except to the extent that the state court may have more
family-like placements to choose from if the Department changes its policies. See W. Va.
Code Ann. § 49-4-404 (“the court shall review the proposed service plan to determine if
implementation of the plan is in the child’s best interests” (emphasis added)).
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be hard pressed to find an order that would not do. Certainly, the same rationale would

apply to any partial summary judgment. Or even a mine-run discovery dispute. A party

resisting federal litigation would always be able to claim that future state orders might be

necessary to “oversee[ ] compliance” with initial ones and that any parallel federal

litigation might inhibit state authority to do so. Fortunately, we do not run our judicial

system on maybes and what-ifs. We presume court orders will be obeyed. And only in

the rare cases they are not—where a State’s power to ensure “compliance with the

judgments of its courts,” Pennzoil, 481 U.S. at 13–14, or “vindicate[ ] the regular operation

of its judicial system,” Juidice, 430 U.S. at 335, is in jeopardy—do we abstain. That

explains why, in Younger’s entire history, the Court has invoked this category just twice.

At day’s end, siding with West Virginia, at least when it comes to the 90% of

children who enter foster care through the abuse-and-neglect process, would mean

expanding the bounds of either the civil-enforcement or the judicial-process categories—

exactly what Sprint said we may not do. The district court was wrong to abstain.

B.

West Virginia falls back on five out-of-circuit cases that have abstained from foster-

care challenges, urging us to avoid a split. But those concerns are misplaced. Oglala, 904

F.3d at 606, fit neatly into the quasi-criminal category: It was brought by parents whose

children were taken into state custody and challenged in federal court the very decision to

take them away. Quite reasonably, the Eighth Circuit saw “no meaningful distinction

between the custody proceedings in Moore” and the case before it. Id. at 610. And the

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other cases, 31 Foster Child., 329 F.3d at 1274–82, J.B., 186 F.3d at 1291–92, Joseph A.

ex rel. Corrine Wolfe v. Ingram, 275 F.3d 1253, 1268–69 (10th Cir. 2002), and Ashley W.

v. Holcomb, 34 F.4th 588, 591–94 (7th Cir. 2022), relied on the Middlesex factors alone,

without determining whether the state periodic hearings were the type of proceedings

Younger has traditionally applied to. 7

After Sprint, we believe it is enough that the quarterly foster-care hearings lie

outside the three “exceptional categories” the Court identified—Younger abstention is “the

exception, not the rule.” 571 U.S. at 79, 82 (quoting Hawaii Hous. Auth. v. Midkiff, 467

U.S. 229, 236 (1984)). But we would decline to abstain just the same even if we looked

beyond that categorical analysis. Federal orders going to the Department simply do not

interfere with how the courts conduct individual periodic hearings (Middlesex factor I).

And on the flip side, the individual periodic hearings do not afford an adequate opportunity

for Plaintiffs to press their systemic claims (factor III). So abstention is not warranted even

assuming West Virginia has a particular state interest in the administration of its foster

system (factor II)—an assumption that may not be altogether warranted in light of the

substantial federal foster-care funds West Virginia accepts.

7
31 Foster Child., J.B., and Joseph A. were all decided before Sprint, understandably
delving straight into the Middlesex factors. Ashley, decided this very term, summarily
concluded Moore applies to all “state-initiated child-welfare litigation.” 34 F.4th at 591–
92 (citing Brunken v. Lance, 807 F.2d 1325 (7th Cir. 1986); Milchtein v. Chisholm, 880
F.3d 895 (7th Cir. 2018)). We are not persuaded, for the reasons already discussed, and
the Seventh Circuit evinces no authority for such a sweeping proposition. Quite the
contrary, both cases Ashley cites follow directly from Moore, with parents seeking to
overturn a State’s adverse custody determination in federal court. See Brunken, 807 F.2d
at 1330 (stressing “the context of the instant case—a hearing to determine the custody of a
child”); Milchtein, 880 F.3d at 899 (abstaining from “the sort of arguments the Milchteins
seek to present”).
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1.

Younger’s main concern has always been whether federal jurisdiction will “unduly

interfere” with pending state proceedings. Younger, 401 U.S. at 44. Most plaintiffs run

afoul of Younger by asking federal courts to void the basis for an unfavorable state

decision—usually, a statute that allowed the suit against them in the state court. Huffman

provides a prototypical example. Recall that the case concerned a state judgment closing

an adult theater for playing obscene movies in violation of an Ohio nuisance statute. 420

U.S. at 596–98. “Rather than appealing that judgment within the Ohio court system,” the

theater owner filed suit in the district court alleging the nuisance statute “constitute[d] an

overly broad prior restraint on First Amendment rights.” Id. at 598–99. The district court

agreed, permanently enjoining a “portion of the state court’s judgment.” Id. at 599.

Plaintiffs took a similar tack in Trainor, where a state court allowed the Illinois Department

of Public Aid to freeze their assets upon allegations of fraudulent concealment. 431 U.S.

at 435–36. They “never filed an answer either to the [writ of] attachment or to the

underlying complaint,” instead asking a district court to declare unconstitutional the statute

supplying the basis for the writ. Id. at 437. The district court “ordered the clerk of the

court and the Sheriff” to return the property. Id. at 439; see also Moore, 442 U.S. at 422–

23 (faulting the district court for granting “a temporary restraining order addressed to the

Montgomery County Juvenile Court” as well as “a preliminary injunction enjoining the

Department and other defendants from filing or prosecuting any state suit”).

It is easy to see how federal adjudication in such cases directly interferes with the

pending state proceeding. In the best case, the State confronts “a choice of engaging in

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duplicative litigation, thereby risking a temporary federal injunction, or of interrupting its

enforcement proceedings pending decision of the federal court at some unknown time in

the future.” Trainor, 431 U.S. at 445. In the worst, federal courts abruptly and

“permanently” end “legitimate activities of the States.” Huffman, 420 U.S. at 599, 601

(citation omitted).

West Virginia’s foster-care proceedings differ in both form and function. Plaintiffs

do not suggest they were harmed in any way by the state-court hearings. They acknowledge

the state courts are doing everything in their power to create a safe foster-care environment

and instead find fault in the Department’s failure to give the courts enough to work with:

enough in-state institutional placements, enough foster homes, enough case workers to file

the plans on time. None of this is to ignore the role West Virginia’s courts play in the

administration of foster care—the State has set up a “coordinated” child welfare system for

a reason, see W. Va. Code Ann. § 49-1-401(a)(1). But it is to recognize the Department

and the courts “both” have their own statutory obligations in administering care. State ex

rel. S.C. v. Chafin, 444 S.E.2d 62, 70 (W. Va. 1994). While the courts must approve the

case plan, the Department must “develop” it. W. Va. Code Ann. § 49-4-408(a). While the

courts must finally accept medical and social services, the Department must “establish”

them. Id. §§ 49-2-101; 49-4-408(с). While the courts must confirm placements, the

Department must “visit,” “inspect,” and “certif[y]” each foster home and actually

“place[ ]” children for adoption. Id. §§ 49-2-106; 49-2-107, 49-4-608(b). And so on.

Unlike the plaintiffs in Huffman, or Trainor, or Moore, then, Plaintiffs here do not

seek to pause—much less to end—any state proceedings. They ask the district court to

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bring the inner workings of the executive branch in compliance with federal law. So the

state quarterly hearings will proceed as they always have, albeit with more placement and

services options if Plaintiffs succeed. Nor will this lawsuit “stop the state court from

proceeding independently against” the Department if it, too, finds the Department’s

practices deficient. Rio Grande, 397 F.3d at 71. It is true, of course, that the district court

might find a violation where the state court would not. But “[n]ormal res judicata effects

of federal actions” do not “trigger Younger.” Id. (discussing NOPSI, 491 U.S. at 373).

Otherwise, the Younger doctrine would overrun the usual rule that “the pendency of an

action in a state court is no bar to proceedings concerning the same matter in the Federal

court having jurisdiction.” Sprint, 571 U.S. at 73 (cleaned up) (quoting Colo. River Water

Conservation Dist. v. United States, 424 U.S. 800, 817 (1976)). But nothing here risks the

kind of interference Younger seeks to forestall: an interruption, an injunction, an end to the

pending state proceedings.

Even so, West Virginia protests, the federal relief Plaintiffs seek—particularly the

appointment of the monitor—will occasion “an ongoing federal audit of” the state periodic

hearings, à la O’Shea v. Littleton, 414 U.S. 488 (1974). See Resp. Br. 49. But O’Shea

does not resemble this case in any way that matters. There, plaintiffs complained that

various judicial and prosecutorial officials colluded to curtail their civil rights, and the only

two defendants before the Supreme Court were a magistrate and a county circuit judge.

414 U.S. at 500. So right from the start we observe that any relief in O’Shea would

necessarily run against the courts. But even setting that difference aside, what troubled the

Court most in O’Shea was “how compliance might be enforced if the beneficiaries of the

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injunction were to charge that it had been disobeyed.” Id. at 501. Plaintiffs complained

that officials set bond in criminal cases without regard to the facts of individual cases and

as punishment and that state courts imposed higher sentences on African American

citizens. Id. at 492. And the only way the Court believed it could change those practices

was by “controlling or preventing the occurrence of specific events that might take place

in the course of future state criminal trials”—which would require both an “interruption of

state proceedings” and “an ongoing federal audit of” them. Id. at 500. None of that is true

here. The district court can offer meaningful relief solely by monitoring executive action.

This case instead resembles Gerstein, which challenged Florida’s practice of

detaining defendants before trial on a prosecutor’s information alone, without judicial

determination of probable cause. 420 U.S. at 105–06. As the Court explained, any

injunction in that case would not be “addressed to a state proceeding and therefore would

not interfere with the criminal prosecutions themselves.” Moore 442 U.S. at 431

(discussing Gerstein, 420 U.S. at 108 n.9). And so it is here.

But above all, halting the litigation on this record would be premature. Should the

district court determine that certain specific relief would overstep Younger’s bounds, it can

always reject it to secure our comity interests. See O’Shea, 414 U.S. at 510 (Douglas, J.,

dissenting) (proposing courts “cross the bridge of remedies only when the precise contours

of the problem have been established after a trial”); Ashley, 34 F.4th at 592 (instructing

lower courts to “figure out which, if any, of [plaintiffs’ foster-care] requests should be

submitted to the [state] court under Younger and which remain for federal adjudication”);

Joseph A., 275 F.3d at 1274 (declining to categorically abstain and remanding “so that the

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district court may determine whether any of the [consent decree’s] provisions may be

enforced in light of Younger”). West Virginia’s approach, by contrast, would deny all

foster children all resort to federal courts. Unlike criminal defendants, whose claims are

litigated and done with, and who can then ask for postconviction review in federal courts,

see Huffman, 420 U.S. at 606–07, foster children are always within the jurisdiction of state

courts—until they are not, because they have left foster care and their cases have become

moot. We cannot endorse such a limitless theory of abstention. See Sprint, 571 U.S. at 72

(warning that federal courts may not abstain merely “because a pending state-court

proceeding involves the same subject matter”).

2.

Another practical question courts often ask is whether plaintiffs’ federal claims

“could have been raised in the pending state proceedings,” for denying state courts an

opportunity to adjudicate federal questions is simply another way of questioning the courts’

competency to resolve them. Moore, 442 U.S. at 425, 430. West Virginia takes that

question literally, requiring abstention anytime “state procedures” allow plaintiffs to bring

the claim and allow state courts to enter appropriate relief. Resp. Br. 42. And because

“West Virginia’s circuit courts have general jurisdiction” as well as “authority to issue

injunctive relief,” the State concludes Plaintiffs had an “adequate opportunity” to raise their

federal claims before state courts. Id. (quoting Jonathan R., 2021 WL 3195020, at *13).

We think that reads Moore right out of its context. As explained, the federal

plaintiffs there wished a singular outcome: to avert an unfavorable custody ruling in the

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Texas courts. And yet, instead of answering Texas’s charge in the state court, they filed

their own suit in federal court, asking to halt the state proceedings as violative of the

Constitution. 442 U.S. at 422. So when the Supreme Court observed the plaintiffs faced

“no procedural barriers” in raising their constitutional arguments in the pending state

proceedings, it was speaking of arguments that naturally presented themselves in the course

of that litigation. Id. at 430. The state court easily could have decided the statute’s validity

first and, if the statute passed muster, gone on to apply it in the plaintiffs’ case—all in the

same proceeding. Id. at 431. What is more, no injunction was “necessary to obtain the

release of the children, for they had already been placed in the custody of their parents,”

meaning the Texas court had adequate time to mull over the constitutional issues. Id.

But here, the individual periodic hearings zero in on the immediate circumstances

in front of the court: is the foster home safe? Have the medical expenses been paid? Is the

child being taught the skills that will enable her to successfully enter adulthood? All of

these the state courts must resolve “promptly,” acting within the existing parameters of the

foster-care system. Carlita B., 408 S.E.2d at 374. After all, when no foster placements are

available, the courts must approve a residential facility; they cannot pause to ponder the

constitutionality of their absence. By definition, then, Plaintiffs would have to raise their

constitutional and statutory claims outside the “normal course of the pending judicial

proceeding,” much like the pretrial detainees in Gerstein, where the Court declined to

abstain. See Moore, 442 U.S. at 431 (distinguishing Gerstein, 420 U.S. at 108 n.9); accord

Huffman, 420 U.S. at 602–03 (“the relevant principles of equity, comity, and federalism

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have little force in the absence of a pending state proceeding” (cleaned up) (citation

omitted)). 8

West Virginia argues for a more expansive interpretation of “pending” state-court

proceedings. Though each individual hearing focuses on the minutia of the moment, the

State reasons, the hearings are continuing and repeating. That iterative nature makes it so

the state courts can enact large systemic changes in between the individual hearings and

then react to them in later ones. That may be true, but even a broad take on “pending” can

only carry West Virginia so far. Even Moore cautioned that abstention may not be

appropriate where confining plaintiffs to state courts would in practice “den[y them] an

opportunity to be heard that was theirs in theory.” 442 U.S. at 431.

Forcing Plaintiffs to litigate their claims in the state foster-care proceedings would

amount to just such an empty promise, for at least four reasons. But before we go through

those reasons, we must be clear on one thing: Plaintiffs assert wide-reaching, intertwined,

and “systemic” failures that cannot be remedied through piecemeal orders. See J.A. 79–

8
The same can be said about Pennzoil, the case the district court invoked for the
proposition that “a federal court should assume that state procedures will afford an
adequate remedy” “when a litigant has not attempted to present his federal claims in related
state-court proceedings.” Jonathan R., 2021 WL 3195020, at *13 (quoting Pennzoil, 481
U.S. at 15). Pennzoil was simply responding to the facts before it. The plaintiff there
“argue[d]” that “no Texas court could have heard [its] constitutional claims within the
limited time available” for it to post the bond pending appeal. 481 U.S. at 15. But the state
court plainly “could suspend the bond requirement,” allowing the plaintiff to challenge the
bond’s constitutionality. Id. at 16 n.15 (citing Tex. R. Civ. P. 364). In light of that statutory
authority, the Court reasoned, the plaintiff would have to have demonstrated it attempted
to “secure the relief sought” in the Texas courts and was denied. Id. at 14. Because the
plaintiff had not, he could not prove state-court inadequacy. Id. at 16 (concluding the
plaintiff’s submission “that the Texas courts were incapable of hearing its constitutional
claims [was] plainly insufficient”). But nothing in Pennzoil precludes plaintiffs from
demonstrating a state forum’s inadequacy in other ways, as Plaintiffs have done here.
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81, 165. Reforming foster care case-by-case would be like patching up holes in a sinking

ship by tearing off the floorboards. So when we assess the adequacy of the state

proceedings, we must measure them against those plausible allegations. See Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 555 (2007) (the complaint need only “raise a right to relief

above the speculative level”); Sofer v. State of N.C. Hertford Police Dep’t, 935 F.2d 1287,

at *2 (4th Cir. 1991) (the “basis for Younger abstention” must be “clear from the face of

the complaint”) (unpublished table decision).

Having set that ground rule, the first-order problem presents itself: an individual

foster child is unlikely to have standing to ask for systemic changes not tied directly to her

own maltreatment. See, e.g., Brandon H.S., 629 S.E.2d at 788 (wrestling with the

Department’s argument that “extensive staffing directives [were] unrelated to” the case

immediately before the court).

And on the flip side of standing, there is mootness. As we saw in this very case,

West Virginia stands ready and waiting to request dismissal of any plaintiff who leaves

foster care. But how is systemic reform to be achieved under such circumstances? Without

a class action to fall back on, individual cases will be mooted out long before a state court

issues any orders, let alone before the Department institutes appropriate changes to comply

with them. West Virginia suggests litigation could still proceed if the court wishes to hold

the Department in contempt. But that says nothing about the opportunity “plaintiffs” have

(or do not) to raise their claims. Moore, 442 U.S. at 430 (emphasis added).

And if individual foster children can somehow master these standing and mootness

hurdles, it is far from clear they could mount sufficient evidence to secure systemic relief.

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The periodic hearings proceed under seal, see W. Va. R. of Proc. for Child Abuse and

Neglect Proc. 6(a), and acting alone, a foster child can hardly appreciate the universe of

interrelated deficiencies that may plague the system. Suing as a class, however, Plaintiffs

can share their insider knowledge and identify the most productive structural changes to

pursue.

Beyond these procedural difficulties lie the more mundane, monetary concerns.

Shoring up sufficient evidence to demonstrate the need for systemic relief requires a lot of

capital—capital most foster children neither have nor can hope to amass through litigation

that seeks only declaratory and injunctive relief. As the Court has many times expressed,

where such “individual suits” are not “economically feasible,” “aggrieved persons may be

without any effective redress unless they may employ the class-action device” to

“allocate[e the] costs among all members of the class.” See Deposit Guar. Nat’l Bank v.

Roper, 445 U.S. 326, 338 n.9, 339 (1980).

All of this means that Plaintiffs’ only real choice is between a federal and a state

class (or some other collective) action, not between a federal class action and the individual

periodic hearings. But the Younger doctrine aspires to minimize interference with pending

state proceedings, not to select the most appropriate forum for plaintiffs’ claims. Plaintiffs’

right “to choose a Federal court where there is a choice cannot be properly denied.” Willcox

v. Consol. Gas Co., 212 U.S. 19, 40 (1909) (citations omitted); accord LaShawn A. by

Moore v. Kelly, 990 F.2d 1319, 1322–23 (D.C. Cir. 1993) (questioning “the need or

wisdom of extending Younger to all constitutional claims that might be adjudicated in state

as well as federal courts” (citation omitted)). And indeed, the choice of federal tribunal is

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not irrational here—the federal government arguably has just as much at stake as West

Virginia, having invested significant federal sums into the State’s foster-care system. See

42 U.S.C. §§ 671, 672 (setting out detailed eligibility criteria states must abide to receive

federal funds, like personnel standards and time frames for case-plan submissions); M.D.

v. Perry, 799 F. Supp. 2d 712, 725 (S.D. Tex. 2011) (reasoning that a State’s “voluntary

submission to such federal oversight greatly lessens the force of any complaints regarding

unwarranted federal intrusion on state sovereignty”). 9

3.

Our conclusions about interference and adequacy rest on more than theory and

supposition; the cases West Virginia itself relies on bear them out. At the outset, we note

West Virginia can only muster seven state decisions from 1991 to the present that have

purportedly ordered the Department to change its ways. That sparsity alone signals the

difficulty of bringing structural challenges during the periodic individual hearings—and a

concomitant lack of interference with state proceedings when federal courts take up the

task. But a closer look at each of those cases reveals that none, in fact, comes close to

offering the kind of systemic relief Plaintiffs ask for here.

Three of West Virginia’s cases do not contemplate revision of any Department

policies or practices at all, adjudicating only the case-specific arguments the parties brought

9
And because Plaintiffs challenge only executive action, their suit also does not undercut
the State’s authority to interpret its own laws. See Moore, 442 U.S. at 429–30 (citing “the
needless obstruction to the domestic policy of the states by forestalling state action in
construing and applying its own statutes” as a leading reason for abstention (citation
omitted)); Pennzoil, 481 U.S. at 11 (same); Trainor, 431 U.S. at 445 (same).
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before the court. See State ex rel. Aaron M. v. W. Va. Dep’t of Health & Hum. Res., 571

S.E.2d 142, 144 (W. Va. 2001) (directing the Department to pay for a particular child’s

mental-health treatment); In re Jonathan G., 482 S.E.2d 893, 908 (W. Va. 1996) (replacing

the Department—in just the one case—with an outside entity because the Department

refused to obey the “court’s repeated directive to develop and follow a case plan for the

purpose of reunifying” the family), modified on other grounds by State ex rel. C.H. v.

Faircloth, 815 S.E.2d 540 (W. Va. 2018); State v. Michael M., 504 S.E.2d 177, 185 (W.

Va. 1998) (finding “an adoptive home,” rather than foster care, to constitute “the preferred

permanent out-of-home placement”). If anything, these cases only highlight the state

courts’ reluctance to order deep structural changes within the Department. Jonathan G.

gave the court a perfect opening to hold the Department in contempt and order reform, yet

it did not follow through; it simply replaced the Department with an outside organization.

And Michael M., though it determined the children’s “best interests” required adoption,

stopped short of actually ordering the Department to do anything to ensure that outcome.

See 504 S.E.2d at 186 (directing the Department only to “include within its report to this

Court a report on the status of all children legally free for adoption”).

As for Carlita B., the only systemic problem the court addressed in that case was

the “long procedural delays” in the state courts themselves. 408 S.E.2d at 375.

Correspondingly, the court limited its relief to instructing “the Administrative Director of

this Court . . . to work with the clerks of the circuit court to develop systems to monitor the

status and progress of child neglect and abuse cases in the courts.” Id. at 376. At no point

did Carlita B. contemplate Department changes, not even after observing that the plaintiff-

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caseworker relationship deteriorated to the point of physical confrontation and that the

State failed to meet its “obligation to consider changing assigned workers.” Id. at 379.

Instead, “recogniz[ing] that the steady erosion of child protective services resources has

created an enormous unmet need,” the court expressed its “hope the Legislature and [the

Department] will address this crisis.” Id. at 379–80.

That leaves Brandon H.S. and S.C., the only two cases that took a stab at correcting

the executive’s shortcomings. Brandon H.S. ordered the Department to fill its staffing

vacancies. 629 S.E.2d at 786–87. And S.C. directed it to develop uniform procedures for

preparing case plans and reporting those plans to the circuit courts. 444 S.E.2d at 74. But

even these cases do not support West Virginia in the way it claims, for they both limit relief

to the circumstances immediately before the court. Brandon H.S. justified its staffing

orders on grounds that “the unfilled positions played a part in the delayed assignment of

Brandon’s case to a Child Protective Services worker.” 629 S.E.2d at 789 (emphasis

added). And S.C. directed a committee to “develop a uniform reporting format” “[a]s a

result of the circumstances of S.C.’s case.” 444 S.E.2d at 74 (emphasis added). That the

courts saw the need to so limit the remedies only underscores the standing difficulties

discussed above. More important still, neither plaintiff asked for Department reform; it

was the court that deemed it necessary after observing the problem repeat itself over several

cases—which validates our concerns (again discussed above) over how individual child

plaintiffs are to collect sufficient evidence to justify wide-ranging relief. 10

10
West Virginia offers one other, sealed case, In re E.B., Aug 28 and Sept. 4, 2019 Show
Cause Hearing Order, No. CC-02-2019-JA-53 (W. Va. Cir. Ct., Berkeley Cnty. Sept. 6,
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In short, though West Virginia correctly observes that state circuit courts have the

authority to order injunctive relief against the Department, not one case it cites has acted

upon that authority to order the kind of systemic changes Plaintiffs seek here.

Unsurprisingly, against that backdrop, “the overwhelming majority of cases have

rejected Younger abstention in similar lawsuits challenging foster care systems, both at the

circuit and district court level.” Perry, 799 F. Supp. 2d at 723 (collecting cases); see, e.g.,

Kelly, 990 F.2d at 1320–21; L.H. v. Jamieson, 643 F.2d 1351, 1352 (9th Cir. 1981); Tinsley,

156 F. Supp. 3d at 1041; Dwayne B. v. Granholm, No. 06-13548, 2007 WL 1140920, at

*5–7 (E.D. Mich. Apr. 17, 2007); Kenny A. ex rel. Winn v. Perdue, 218 F.R.D. 277, 286

(N.D. Ga. 2003); People United for Child., Inc. v. City of New York, 108 F. Supp. 2d 275,

291 (S.D.N.Y. 2000); Charlie H. v. Whitman, 83 F. Supp. 2d 476, 514 (D.N.J. 2000);

Marisol A. by Forbes v. Giuliani, 929 F. Supp. 662, 688–89 (S.D.N.Y. 1996).

The animating principles behind all of these cases are rather straightforward:

individual periodic hearings cannot provide “an appropriate forum for [a] multi-faceted

class-action challenge” because they are “intended merely to reassess periodically the

disposition of the child.” Kelly, 990 F.2d at 1323. And federal reform of systemic

deficiencies in the executive branch simply does not asperse the “competency” of state

courts to conduct periodic individual foster-care hearings or to independently correct any

structural problems state courts themselves identify. L.H., 643 F.2d at 1354. And if any

particular request of Plaintiffs’ threatens to do so, the district court can always decline to

2019), but it fails to persuade us still. Like Brandon H.S. and S.C., the court in E.B. offered
narrow injunctive relieve tied to the factual circumstances of the individual case.
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order it. Joseph A., 275 F.3d at 1274. Because all of these principles find sure footing in

our facts, as well, we reverse. 11

IV.

All that remains is West Virginia’s argument under the Rooker-Feldman doctrine,

which strips federal courts of subject-matter jurisdiction when “state-court losers

complain[ ] of injuries caused by state-court judgments” in district courts. Exxon Mobil

Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). Because the district court

believed it must abstain under Younger, it never reached Rooker-Feldman, and the “general

rule” would dictate we “not consider an issue not passed upon below.” Singleton v. Wulff,

428 U.S. 106, 120 (1976). But even the most generous analysis of the State’s contentions

cannot be squared with this Court or the Supreme Court’s precedent, an analysis we would

in any event conduct de novo, see Hulsey v. Cisa, 947 F.3d 246, 249 (4th Cir. 2020). So

to avoid further procedural delays, and to settle any lingering questions over what kind of

claims pose a Rooker-Feldman issue, we think it desirable to resolve this issue today.

West Virginia posits Plaintiffs’ claims here are “ ‘inextricably intertwined’ with an

existing state court decision” and that Rooker-Feldman bars federal jurisdiction in such

circumstances “as long as the claim could have been brought in the state court action.”

11
As discussed, we leave it to the district court to decide the claims of children who enter
the foster system as part of the delinquency and status-offence proceedings. But even if
their claims can be made to fit one of the Sprint categories, West Virginia will still need to
persuade the district court that federal relief would effect a greater intrusion on those
children’s periodic hearings and that those children have a better opportunity to present
systemic grievances during their individual hearings.
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Resp. Br. 51 (first citing D.C. Court of Appeals v. Feldman, 460 U.S. 462, 482–84 n.16

(1983); then citing Guess v. Bd. of Med. Exam’rs of N.C., 967 F.2d 998, 1002–03 (4th Cir.

1992)). The rub for West Virginia is that Exxon, decided in 2005, “significantly altered

this circuit’s interpretation of the Rooker-Feldman doctrine.” Davani v. Va. Dep’t of

Transp., 434 F.3d 712, 713 (4th Cir. 2006). We no longer ask whether a federal plaintiff

“is attempting to litigate claims he either litigated or could have litigated before the state

court.” Id. at 718. And we take “Feldman’s ‘inextricably intertwined’ language” to

“merely state[ ] a conclusion,” “not create an additional legal test.” Id. at 719. That is, “if

the state-court loser seeks redress in the federal district court for the injury caused by the

state-court decision, his federal claim is, by definition, ‘inextricably intertwined’ with the

state-court decision.” Id. But where the federal complaint presents an “independent

claim,” even “one that denies a legal conclusion that a state court has reached in a case to

which he was a party, then there is jurisdiction and state law determines whether the

defendant prevails under principles of preclusion.” Exxon, 544 U.S. at 293 (cleaned up)

(citation omitted). This axiom, which our Court has reiterated many times over since

Exxon, entirely forecloses West Virginia’s legal theory. See Thana v. Bd. of License

Comm’rs for Charles Cnty., 827 F.3d 314, 319–22 (4th Cir. 2016) (observing that “since

Exxon, we have never, in a published opinion, held that a district court lacked subject matter

jurisdiction under the Rooker-Feldman doctrine,” an observation that remains true today).

Indeed, we have contemplated that Exxon goes even further, “restrict[ing] the

doctrine to cases whose procedural postures mirrored those in the Rooker and Feldman

cases themselves,” where “the losing party in state court filed suit in federal court after the

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state proceedings ended . . . seeking review and rejection of that judgment.” Id. at 320

(quoting Exxon, 544 U.S. at 291). Plaintiffs’ complaint plainly does not fit that mold.

“First and foremost,” Plaintiffs do not complain “of an injury caused by a state-court

judgment” but by the Department. Hulsey, 947 F.3d at 250; see supra p. 22 n.5. But “state

administrative and executive actions are not covered by the doctrine,” Thana, 827 F.3d at

320—even where “ ‘ratified, acquiesced in, or left unpunished by’ a state-court decision,”

Hulsey, 947 F.3d at 250 (quoting Hoblock v. Albany Cnty. Bd. of Elections, 422 F.3d 77,

88 (2d Cir. 2005)). Nor is this “a case in which ‘the process for appealing a state court

judgment to the Supreme Court . . . has been sidetracked by an action filed in district court

specifically to review that state court judgment.’ ” Id. at 251 (quoting Thana, 827 F.3d at

320). Finally, Plaintiffs’ suit does not “invite district court review and rejection of a state-

court judgment.” Id. (cleaned up) (quoting Exxon, 544 U.S. at 284). As already articulated

in the Younger context above, even if Plaintiffs succeed in reforming Department practices,

they would at most affect future state-court decisions. But see Manning v. Caldwell for

Roanoke, 930 F.3d 264, 270 n.4 (4th Cir. 2019) (Rooker-Feldman had no force where

“Plaintiffs d[id] not challenge their specific interdiction orders” but “only the Virginia

scheme’s application to them in the future”); Jones v. McBride, No. 21-6218, 2022 WL

670873, at *1 (4th Cir. Mar. 7, 2022) (“the Rooker-Feldman doctrine applies to state court

decisions, not ongoing state court proceedings” (footnote omitted) (citing Hulsey, 947 F.3d

at 250)).

Tellingly, West Virginia does not engage with any of that binding precedent, aside

from a superficial citation to Hulsey. But as Exxon reminds us, the Rooker-Feldman

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doctrine “merely recognizes that 28 U.S.C. § 1331 is a grant of original jurisdiction” that

“does not authorize district courts to exercise appellate jurisdiction over state-court

judgments.” 544 U.S. at 292 (quoting Verizon Md. Inc. v. Pub. Serv. Comm’n of Md., 535

U.S. 635, 644 n.3 (2002)). And federal courts should not employ it to “supersed[e] the

ordinary application of preclusion law.” Id. at 283. Nor, for that matter, should litigants

be permitted to turn it into a backdoor to comity and abstention principles. West Virginia

in essence argues Plaintiffs should have brought their constitutional objections before the

state court. But we have already considered and rejected these same contentions under

Younger. And we staunchly decline to (re)consider them here, dressed in Rooker-Feldman

clothing.

V.

For the foregoing reasons, the judgment of the district court is

AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED.

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RUSHING, Circuit Judge, dissenting in part, and concurring in the judgment:

I agree with the majority’s conclusion in Part III–A that, because this case does not

“fall[] into one of the three settled categories” specified in Sprint Communications, Inc. v.

Jacobs, 571 U.S. 69 (2013), “[t]he district court was wrong to abstain.” Supra, at 19, 24.

In Sprint, the Supreme Court clarified that Younger abstention extends to “three

exceptional categories” of cases, “but no further.” 571 U.S. at 79, 82. Those categories

are: (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.” Id. at 78 (internal quotation marks

and ellipsis omitted). If a parallel state proceeding belongs to one of these categories, the

court should go on to consider the so-called Middlesex factors in evaluating whether to

abstain. See id. at 81. But if—as here—the state proceeding “does not fall within any of

the three exceptional categories” described in Sprint, it “therefore does not trigger Younger

abstention.” Id. at 79.

Having determined that the state proceedings here do not belong to any of Sprint’s

three categories, we “need go no further,” as the majority aptly puts it. Supra, at 19. Yet

the majority does go further—fifteen pages further. See supra, at 25–39. Across this span,

the majority theorizes how it would resolve this case “even if” Sprint were not the law.

Supra, at 25. I do not join this extended dictum.

Nor do I think it “prudent” to resolve mootness at this juncture. Supra, at 11. “The

parties,” as the majority points out, “relegate[d] this issue to the backburner.” Supra, at

11. Indeed, at oral argument, Plaintiffs stated that, if this Court reversed on Younger

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grounds, they were “not sure” the mootness issue mattered because they can supplement

their complaint on remand. Oral Arg. at 14:31–15:03. The majority finds the parties’

proposed resolution inefficient. I would follow the parties’ lead. Indeed, because Plaintiffs

can supplement the complaint on remand to avoid mootness, any discussion of exceptions

to the mootness doctrine is unnecessary.

Nevertheless, considering the issue, the majority is right that the “capable of

repetition yet evading review” exception is inapplicable because Plaintiffs have not shown

“‘a reasonable expectation’” that they will be “‘subject to the same action again.’” Supra,

at 12 (quoting Spencer v. Kemna, 523 U.S. 1, 17 (1998)). It errs, however, in determining

that the “relation back” exception applies because Plaintiffs’ claims are “inherently

transitory.” Supra, at 12–13 (internal quotation marks omitted).

The Supreme Court has clarified that the “‘inherently transitory’ rationale was

developed to address circumstances in which the challenged conduct was effectively

unreviewable, because no plaintiff possessed a personal stake in the suit long enough for

litigation to run its course.” Genesis Healthcare Corp. v. Symcyzk, 569 U.S. 66, 76 (2013).

Indeed, the doctrine is available only when the claims raised are “‘so inherently transitory

that the trial court will not have even enough time to rule on a motion for class certification

before the proposed representative’s individual interest expires.’” Id. (quoting Cnty. of

Riverside v. McLaughlin, 500 U.S. 44, 52 (1991)). Given that these proceedings have been

pending for nearly three years and multiple Plaintiffs remain, I cannot say that no plaintiff

will possess a personal stake in the litigation long enough for the district court to rule on

class certification. And the complaint’s allegations regarding the length of time Plaintiffs

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have resided in the foster system undermine any suggestion that the challenged conduct is

fleeting. Consequently, this case falls outside the bounds of the “relation back” exception

to mootness. I respectfully dissent from the majority’s opinion concluding otherwise.

45