Brown Ex Rel. Brown v. Day

FILED
United States Court of Appeals
Tenth Circuit

January 13, 2009
Elisabeth A. Shumaker
PUBLISH Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DENA K. BROWN, by her brother and
next friend, Donald C. Brown,

Plaintiff-Appellant,

v.
No. 06-3387
ROBERT M. DAY, in his official
capacity as Director, Kansas Division
of Health Policy and Finance,

Defendant-Appellee.

Appeal from the United States District Court
for the District of Kansas
(D.C. No. 2:06-CV-2212-KHV-JPO)

Molly M. Wood, Stevens & Brand, L.L.P., Lawrence, Kansas, for the Plaintiff-
Appellant.

Reid Stacey, Kansas Health Policy Authority, Topeka, Kansas, for the Defendant-
Appellee.

Before HENRY, Chief Judge, EBEL and TYMKOVICH, Circuit Judges.

EBEL, Circuit Judge.
 Plaintiff-Appellant Dena Brown sued Defendant-Appellee Robert Day, the

Director of Kansas’s Division of Health Policy and Finance (“HPF”), 1 in federal

court pursuant to 42 U.S.C. § 1983, after Day issued a Final Order terminating

Brown’s Medicaid benefits. Brown alleged that Day’s decision, which purported

to execute newly enacted Kansas law, violates federal Medicaid statutes and

regulations. The federal district court initially granted Brown’s motion for a

preliminary injunction, holding that HPF had acted arbitrarily and capriciously in

terminating Brown’s benefits. Shortly thereafter, Day moved to dismiss, claiming

Younger v. Harris, 401 U.S. 37 (1971), and its progeny compelled the federal

court to abstain from exercising jurisdiction over Brown’s action. The district

court agreed and dismissed the case. Brown appeals from this application of the

Younger abstention doctrine.

There are two main issues presented. This court is asked to determine

whether there is an ongoing proceeding in this case, and whether any ongoing

proceeding in this case is the type entitled to Younger deference. Because we

decide this case on the basis of the type of proceeding at issue, we do not reach

the open question whether the Younger doctrine compels a federal court to

decline jurisdiction over a federal cause of action initiated to challenge a state

administrative agency’s final decision when appeal to state court was possible.

1
The HPF has since been renamed the Kansas Health Policy Authority.

-2-
 The dispositive issue in this case is whether a federal plaintiff’s challenge

to a state administrative agency’s decision to terminate her Medicaid benefits is

the type of proceeding entitled to Younger deference. From the Younger acorn –

a holding barring federal courts from enjoining ongoing state criminal

prosecutions – a judicial oak has grown. Now, federal courts must also decline

jurisdiction over cases brought to enjoin state civil or administrative enforcement

proceedings. As discussed below, however, there appears to be a distinction

between cases where the state proceeding involves the state coercively enforcing

its laws and cases where state proceedings involve the federal plaintiff seeking a

remedy for a past wrong. Those cases where the federal plaintiff has sought a

state remedy are not the type of cases subject to Younger abstention. We must

consider whether Brown’s challenge to the HPF’s decision to terminate her

Medicaid benefits is such a coercive or remedial proceeding. Because we

determine that the proceeding is remedial and not entitled to Younger abstention,

we need not reach the ongoing proceeding issue.

In sum, we conclude that abstaining in this case would extend the Younger

doctrine to remedial cases, in contravention of Congress’s intent in enacting §

1983 and of Supreme Court precedent. We exercise jurisdiction pursuant to 28

U.S.C. § 1291 and reverse.

I. B ACKGROUND

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 Plaintiff-Appellant Dena K. Brown is a developmentally disabled adult.

Although she was forty-six years old at the time this suit was filed on her behalf,

she functions roughly at the level of a three- or four-year-old child. As a result of

her disabilities, Brown resides at a private, not-for-profit residential care facility

run by Starkey, Inc. The services she receives at the facility cost approximately

$5,000 per month. Brown’s monthly income is $864, which she receives in Social

Security benefits because of her disabilities. Until August 2005, Medicaid

payments bridged the gap between Brown’s income and the cost of her care

facility.

Defendant-Appellee Robert M. Day is the Director of the HPF, a division

of Kansas’s Department of Administration. Day’s duties include determining and

implementing policies for medical assistance programs, including Medicaid.

A. The Medicaid Program

Congress established the Medicaid program pursuant to Title XIX of the

Social Security Act of 1965, 42 U.S.C. § 1396 – 1396v. See Houghton ex rel.

Houghton v. Reinertson, 382 F.3d 1162, 1164 (10th Cir. 2004). By means of the

program, Congress invited the states to cooperate with the federal government in

providing health care to persons who cannot afford such care. See Harris v.

McRae, 448 U.S. 297, 301 (1980). If a state opts to participate, it receives

financial assistance from the federal government, on the condition that the state

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operates its Medicaid program in compliance with federal statutory and regulatory

requirements. Kansas has opted to participate in the Medicaid program.

The statutory framework requires all participating states to cover the

“categorically needy”; this class consists primarily of persons who receive cash

assistance from the Social Security Administration. See 42 U.S.C. §

1396a(a)(10)(A)(i). In addition, “at the option of the State,” medically needy

persons may also be covered. Id. § 1396a(a)(10)(A)(ii). This class includes those

persons who are “18 years of age or older and [are] permanently and totally

disabled.” 42 U.S.C. § 1396d(a)(v). Kansas has opted to cover this class. See

Kan. Admin. Reg. 30-6-85(c).

To ensure the Medicaid program serves needy persons, the program

includes income and resource eligibility thresholds. Congress has nevertheless

forbidden the states from employing methodologies for determining an applicant’s

income or resources that would render an individual ineligible for Medicaid

where that individual is eligible for Supplemental Security Income (“SSI”) from

the Social Security Administration. See 42 U.S.C. § 1396a(r)(2)(A)(i). In

determining a person’s eligibility for Medicaid, states must use reasonable

standards that only factor in income and resources which are available to the

recipient and which would affect the person’s eligibility for SSI. Id. §

1396a(a)(17).

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 The applicable regulations state that a resource is not available if the

person has no authority to liquidate it as a property right. 20 C.F.R. §

416.1201(a)(1). The Social Security Administration explained that assets in a

trust are available resources only “[i]f [the beneficiary has] the legal authority to

revoke the trust or direct the use of the trust assets for his/her own support and

maintenance . . . .” Social Security Administration, Program Operating Manual

System (“POMS”) § SI 01120.200(D)(2). The trust’s terms “and/or . . . State

law” determine this issue. Id.

B. Brown’s Eligibility for Medicaid

When Brown’s mother passed away in 2003, Brown became the beneficiary

of a residuary trust. The trust corpus includes approximately $15,000 in cash,

two annuities totaling about $23,000, and the rights to 160 acres of agricultural

land in Kingman County, Kansas (valued at approximately $30,000). Brown’s

brother, Donald, is the trustee. Given Brown’s disabilities, the trust provides the

Trustee with the discretion to make a distribution of trust income or principal for

Brown’s benefit. Brown herself, however, has no legal authority to compel

distribution under the trust. As a result, Kansas did not deem Brown’s trust assets

“available resources” before 2004. Other than the trust, Brown apparently

possesses no other assets that would allow her to pay the difference between her

Social Security benefits and the costs of her residential care facility.

C. HPF Proceedings Regarding Brown’s Medicaid Benefits

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 Kansas amended its applicable law, effective July 1, 2004. After that date,

Kansas deemed trust resources available “to the extent, using the full extent of

discretion, the trustee may make any of the income or principal available to the

applicant or recipient of medical assistance.” Kan. Stat. § 39-709(e)(3). In

accordance with this amendment, HPF notified Brown that after August 31, 2005,

she would no longer receive medical assistance because she was not medically

needy.

Brown challenged this decision by requesting a hearing before HPF. She

sought a hearing because it was not clear at that time whether Kansas’s new law

could be applied retroactively to her. Moreover, during the pendency of her

appeal, she continued to receive benefits. The hearing officer overturned the

decision to terminate Brown’s Medicaid benefits on January 15, 2006, apparently

reasoning that the new Kansas law did not apply to trusts set up prior to its

enactment. 2

However, in a Final Order dated April 26, 2006, Day reinstated HPF’s

original decision to terminate Brown’s benefits. In the order, Day informed

Brown that she had a right to file a petition for state judicial review of the order

and that such a petition must be filed within thirty days. 3 Following up on this

2
This decision is not in the record.
3
This alerted Brown to the applicable portions of Kansas’s Act for Judicial
Review and Civil Enforcement of Agency Actions (“Judicial Review Act”), Kan.
(continued...)

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final decision, on April 30, 2006, HPF wrote Brown to inform her that “[w]e are

closing your medical assistance and food stamp case effective May 31, 2006

because your resources exceed the maximum allowable amount for your

household size.”

D. Brown’s Federal Lawsuit

Just a few days before her benefits were due to terminate, Brown filed suit

in the U.S. District Court for the District of Kansas against Day in his official

capacity as director of HPF. She thus declined to petition the Kansas state courts

for review as provided for under the Kansas Judicial Review Act. See Kan. Stat.

§ 77-613(b). In her federal complaint, Brown claimed, pursuant to 42 U.S.C. §

1983, that HPF violated federal Medicaid law when it determined that the assets

in the trust left to Brown by her mother are “available assets.” As a remedy,

Brown sought a declaratory judgment and an injunction barring HPF from

terminating her Medicaid coverage.

3
(...continued)
Stat. §§ 77-601 – 77-631. Section 77-606 of the Judicial Review Act provides
that the Act “establishes the exclusive means of judicial review of agency action.”
Section 77-613 provides the relevant time-line for judicial review of the result of
Kansas administrative proceedings. That section mandates that “a petition for
judicial review of a final order shall be filed within 30 days after service of the
order.” Id. § 77-613(b). Because HPF served its final decision on Brown by
mail, three days are added to the 30-day window. See id. § 77-613(e). The
parties do not dispute that Brown failed to petition for judicial review in the
Kansas district court within 33 days of the service of HPF’s final decision;
instead, Brown filed her federal suit 29 days after receiving HPF’s decision.

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 The district court granted Brown’s motion for a preliminary injunction on

June 8, 2006. The court “conclude[d] that in terminating plaintiff’s Medicaid

coverage based on K.S.A. § 39-709(e)(3), HPF has acted arbitrarily, capriciously

and in contravention of 42 U.S.C. § 1396a(r)(2)(A)(I).”

About a month after the district court issued this order, Day filed a motion

to dismiss or stay, arguing that the federal court should abstain in light of

Brown’s option to appeal HPF’s decision to the Kansas state courts. Day

reasoned that Brown had turned her back on an ongoing state proceeding when

she failed to pursue judicial review in the Kansas state courts. In addition, Day

attached a document entitled “Petition for Civil Enforcement” that he claimed he

would shortly file in Kansas state court. The Petition claims, in relevant part, that

“Don Brown, as trustee of the Brown Trust, should be liable to the [HPF] under

K.S.A. 39-719a for all Medical Assistance provided to Dena Brown from July 1,

2004 to the present.” The record is silent as to whether Day or the HPF ever filed

this petition.

The district court dismissed the federal case, holding that Younger v. Harris

and its progeny commanded abstention because (1) Brown initiated a federal

action instead of exhausting her state appellate options; (2) the Kansas state court

provided an adequate forum for Brown’s challenge to the HPF decision; and (3)

Kansas has an interest in “[p]rotecting the fiscal integrity of public assistance

programs.”

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 Brown then filed a motion to alter or amend the judgment, challenging the

court’s abstention. In response, the district court explicated more thoroughly its

rationale for concluding that there was an ongoing state proceeding entitled to

Younger deference. The court overruled Brown’s motion to alter or amend the

original judgment. Brown timely appealed the dismissal of her case.

II. D ISCUSSION

The issue presented here is whether a federal district court must abstain

where the federal plaintiff has previously requested a hearing and received a final

order regarding an agency’s decision to terminate benefits. We review de novo a

district court’s decision to abstain pursuant to Younger. Amanatullah v. Colo.

Bd. of Med. Exam’rs, 187 F.3d 1160, 1163 (10th Cir. 1999).

Under Younger and its progeny,

[a] federal court must abstain from exercising jurisdiction when: (1)
there is an ongoing state criminal, civil, or administrative proceeding,
(2) the state court provides an adequate forum to hear the claims raised
in the federal complaint, and (3) the state proceedings “involve
important state interests, matters which traditionally look to state law
for their resolution or implicate separately articulated state policies.”

Id. (quoting Taylor v. Jaquez, 126 F.3d 1294, 1297 (10th Cir. 1997)).

In considering these three conditions, this court “must be sensitive to the

competing tension between protecting federal jurisdiction and honoring principles

of Our Federalism and comity.” Taylor, 126 F.3d at 1296. Critically, this court

must keep in mind that abstention “is the exception, not the rule,” and hence

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should be “rarely . . . invoked, because the federal courts have a virtually

unflagging obligation . . . to exercise the jurisdiction given them.” Ankenbrandt

v. Richards, 504 U.S. 689, 705 (1992) (citation and internal quotations omitted).

Nonetheless, Younger abstention is “non-discretionary . . . absent extraordinary

circumstances,” if the three conditions are indeed satisfied. Amanatullah, 187

F.3d at 1163. 4

The initial prong of the Younger inquiry involves two sub-parts. This court

must determine whether there is an ongoing state proceeding. See id. at 1163-64;

see also Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1242 (10th

Cir. 2001). The court must also decide whether that proceeding is the type of

state proceeding that is due the deference accorded by Younger abstention. See

New Orleans Pub. Serv., Inc. v. Council of the City of New Orleans (“NOPSI”),

491 U.S. 350, 369 (1989) (“Respondents’ case for abstention still requires,

however, that the Council proceeding be the sort of proceeding entitled to

Younger treatment.”). Both of these issues raise questions of first impression for

this court. Because we decide this case based on the type of proceeding, we

4
The Court has clarified that at least two varieties of “extraordinary
circumstances” exist: (1) where the plaintiff makes a showing of bad faith or
harassment by state officials responsible for the prosecution or enforcement
action and (2) where the state law or regulation to be applied “is ‘flagrantly and
patently violative of express constitutional prohibitions.’” Trainor v. Hernandez,
431 U.S. 434, 442 n.7 (1977) (quoting Younger, 401 U.S. at 53-54); see also
Morrow v. Winslow, 94 F.3d 1386, 1392 (10th Cir. 1996).

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decline to decide whether a system for appealing a state administrative order

creates a ongoing proceeding for Younger purposes. We hold that this case is not

the type that warrants abstention. Accordingly, the district court erred in

dismissing the case.

A. The Type of Ongoing Proceeding

As noted above, there are two aspects of the “ongoing proceeding” inquiry,

whether there is an ongoing proceeding and whether it is the type afforded

Younger deference. The Supreme Court, in Ohio Civil Rights Committee v.

Dayton Christian Schools, Inc., 477 U.S. 619 (1986), clarified some of the

occasions when Younger deference was appropriate and some occasions when it

was not. In this vein, the Court distinguished its prior holding in Patsy v. Florida

Board of Regents, 457 U.S. 496 (1982), that a federal discrimination claim could

proceed without exhaustion or deference to the state proceeding. The court

distinguished Patsy on the ground, inter alia, that the Patsy administrative

proceedings were remedial rather than coercive. 5 See Dayton Christian Schs., 477

5
Similarly, in an attempt to cabin the Younger doctrine, the Court has
suggested that Younger abstention is limited to situations where the “civil
proceedings” in question (1) are enforcement proceedings or (2) “involv[e]
certain orders that are uniquely in furtherance of the state courts’ ability to
perform their judicial functions.” NOPSI, 491 U.S. at 368. Although that
analysis also suggests there should not have been Younger abstention in this case,
we will use the dichotomy between remedial and coercive administrative
proceedings set forth in Dayton Christian Schools, 477 U.S. at 627 n.2, as the
touchstone for determining whether the administrative proceeding is the type of
(continued...)

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U.S. at 627 n.2. This court has yet to delineate a test for determining whether a

state proceeding is remedial or coercive. Hence, we turn to the decisions of our

sister circuits.

5
(...continued)
proceeding that merits Younger abstention. We prefer the coercive/remedial
distinction because our sister circuits tend to use that articulation. See Moore v.
City of Asheville, 396 F.3d 385, 388 (4th Cir. 2005); Majors v. Engelbrecht, 149
F.3d 709, 712 (7th Cir. 1998); O’Neill v. City of Philadelphia, 32 F.3d 785, 791
(3d Cir. 1994); cf. Maymo-Melendez v. Alvarez-Ramirez, 364 F.3d 27, 36 (1st
Cir. 2004). Also, the Younger pedigree is rooted in state coercive action (namely
criminal proceedings) that parties were seeking to enjoin in federal court. The
Younger doctrine originated in concerns that federal plaintiffs might stymie state
coercive proceedings by bringing suit in the federal courts. See Younger, 401
U.S. at 46 (relying on “the fundamental policy against federal interference with
state criminal prosecutions”). This same motivating concern made its way into
later Younger decisions expanding the doctrine to state court civil proceedings.
See Moore v. Sims, 442 U.S. 415, 423 (1979) (holding that federal abstention was
required where state civil proceedings centered on a child-abuse statute that was
“in aid of and closely related to criminal statutes” (quotation omitted)); Trainor,
431 U.S. at 444 (holding that federal court erred in not abstaining where state
secured writ of attachment as result of civil fraud proceeding and federal plaintiff
challenged attachment statute; noting that “state authorities also had the option of
vindicating these policies through criminal prosecutions” (quotation omitted));
Huffman v. Pursue, Ltd., 420 U.S. 592, 604 (1975) (“[W]e deal here with a state
proceeding which in important respects is more akin to a criminal prosecution
than are most civil cases.”); cf. NOPSI, 491 U.S. at 367-68 (“Although our
concern for comity and federalism has led us to expand the protection of Younger
beyond state criminal prosecutions, to civil enforcement proceedings, and even to
civil proceedings involving certain orders that are uniquely in furtherance of the
state courts’ ability to perform their judicial functions, it has never been
suggested that Younger requires deference to a state judicial proceeding
reviewing legislative or executive action.” (citations omitted)). The
coercive/remedial distinction is close kin to the distinctions drawn by the Court in
the civil Younger cases.

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 As discussed in depth below, the most compelling test – one crafted by the

First Circuit – asks the court to consider two issues in deciding whether Dayton

Christian Schools or Patsy controls. First, we must query whether the federal

plaintiff initiated the state proceeding of her own volition to right a wrong

inflicted by the state (a remedial proceeding) or whether the state initiated the

proceeding against her, making her participation mandatory (a coercive

proceeding). Second, we must differentiate cases where the federal plaintiff

contends that the state proceeding is unlawful (coercive) from cases where the

federal plaintiff seeks a remedy for some other state-inflicted wrong (remedial).

Even this test is not entirely determinative; below, we also discuss other factors

that may distinguish remedial proceedings from coercive ones.

Here, despite Day’s claim to the contrary, the state court administrative

proceedings were not coercive. Brown initiated the state administrative

proceeding after her benefits were summarily terminated. The state did not

compel her to participate in the proceedings. Moreover, Brown seeks not to

enjoin the state proceedings, but to secure relief from the state’s allegedly

unlawful conduct by recovering her Medicaid benefits. Accordingly, this state

proceeding was not the type of proceeding entitled to Younger deference.

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 B. Dayton Christian Schools’ Modification of Patsy

As noted above, Younger originally sought to prevent federal courts, sitting

in equity, from enjoining state prosecution of criminal defendants. See Younger,

401 U.S. at 46; see also Huffman, 420 U.S. at 602. Through a series of cases, the

Court expanded the Younger abstention doctrine to state civil enforcement cases

(Huffman) and administrative agency proceedings (Dayton Christian Schools).

However, in extending the Younger doctrine to state administrative proceedings,

the Supreme Court had to explain why Patsy (which did not require deferral to

state proceedings) did not apply.

Accordingly, in Dayton Christian Schools, the Court asserted:

The application of the Younger principle to pending state administrative
proceedings is fully consistent with Patsy v. Florida Board of Regents,
which holds that litigants need not exhaust their administrative remedies
prior to bringing a § 1983 suit in federal court. Unlike Patsy, the
administrative proceedings here are coercive rather than remedial, began
before any substantial advancement in the federal action took place, and
involve an important state interest.

477 U.S. at 627 n.2 (emphasis added) (citations omitted).

Seizing on this language, the lower courts have required that federal

plaintiffs “perfect” their § 1983 claims by exhausting state administrative

remedies only where the state administrative proceedings are coercive. See

Moore, 396 F.3d at 388 (“[W]e hold that a defendant to a coercive state

administrative proceeding must exhaust his state administrative and judicial

remedies and may not bypass them in favor of a federal court proceeding . . . .”);

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Majors, 149 F.3d at 712 (“For purposes of Younger abstention, administrative

proceedings are ‘judicial in nature’ when they are coercive – i.e., state

enforcement proceedings.”); O’Neill, 32 F.3d at 791 (“We therefore hold that

state proceedings remain ‘pending,’ within the meaning of Younger abstention, in

cases . . . where a coercive administrative proceeding has been initiated by the

State in a state forum . . .”); id. at 791 n.13 (noting the “critical distinction”

between Dayton Christian Schools and Patsy is the coercive/remedial distinction);

cf. Maymo-Melendez, 364 F.3d at 36 (“Huffman is a reliable guide only where

full-fledged state administrative proceedings of a judicial character and, arguably,

of a coercive nature, are directed against the federal plaintiff.”). 6

The essence of each of these opinions is that a state’s enforcement of its

laws or regulations in an administrative proceeding constitutes a coercive action,

exempt from Patsy and entitled to Younger deference. Other administrative

proceedings fill the “remedial” category and remain subject to Patsy’s holding

that a federal § 1983 plaintiff need not exhaust state administrative remedies.

6
These opinions echo that of Judge Posner: “[Younger’s] central meaning is
that a federal district court may not, save in exceptional circumstances, enjoin, at
the behest of a person who has actually or arguably violated a state statute, a state
court proceeding to enforce the statute against that person.” Alleghany Corp. v.
Haase, 896 F.2d 1046, 1050 (7th Cir. 1990), vacated on other grounds, Dillon v.
Alleghany Corp., 499 U.S. 933 (1991).

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 1. Differentiating Remedial from Coercive Administrative Proceedings

The First Circuit has provided the clearest guidance as to how to decide

whether a state administrative proceeding is coercive or remedial. In Kercado-

Melendez v. Aponte-Roque, 829 F.2d 255 (1st Cir. 1987), the court analyzed a §

1983 action initiated by a Puerto Rican school superintendent claiming that she

had been fired because of her political beliefs. Id. at 257-58. After receiving

notice that she had been fired, Kercado opted not to file an administrative appeal

and, instead, proceeded with her § 1983 action in federal court. The defendant,

the Secretary of Puerto Rico’s Department of Public Instruction, contended that

Kercado’s failure to avail herself of the administrative appeal process required

Younger abstention. Id. at 258.

A divided panel of the First Circuit rejected this argument. In the process,

it highlighted two critical distinctions between Dayton Christian Schools and

Patsy. The panel focused first on the “crucial distinction . . . that in Patsy the

state proceeding was an option available to the federal plaintiff on her own

initiative to redress a wrong inflicted by the state” whereas in “other abstention

cases” the participation of the federal plaintiff in the state administrative

proceeding was “mandatory.” Id. at 260. Second, the panel noted that “[i]n

Dayton Christian Schools and similar cases, the state proceeding is itself the

wrong which the federal plaintiff seeks to correct via injunctive relief under

section 1983.” Id. These two considerations provide a starting point for

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analyzing whether a state proceeding is coercive (and therefore entitled to

Younger deference) or remedial. 7

A third factor emerges from a review of the proceedings at issue in the

cases where our sister circuits have held that state administrative and judicial

proceedings are ongoing proceedings entitled to Younger deference. In these

cases, the federal plaintiff sought to thwart a state administrative proceeding

initiated to punish the federal plaintiff for a bad act. Thus, a common thread

appears to be that if the federal plaintiff has committed an alleged bad act, then

the state proceeding initiated to punish the plaintiff is coercive.

In Maymo-Melendez, the First Circuit held that the district court should

have abstained from hearing a federal claim brought by a horse trainer whose

license had been suspended because he had administered performance-enhancing

drugs to his horses. See 364 F.3d 34-37. The trainer had failed to pursue

administrative remedies available within the Puerto Rican Racing Board. See id.

at 34. Thus, unlike in Kercado-Melendez, in Maymo-Melendez there was an

underlying bad act by the federal plaintiff being punished by Puerto Rico.

Similarly, in Laurel Sand & Gravel, Inc. v. Wilson, the Fourth Circuit held

that abstention was appropriate where the plaintiff had committed an alleged bad

7
Indeed, these considerations echo the Seventh Circuit’s reasoning in
Haase: “Younger is confined to cases in which the federal plaintiff had engaged
in conduct actually or arguably in violation of state law, thereby exposing himself
to an enforcement proceeding in state court . . . .” Haase, 896 F.2d at 1053.

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act. 519 F.3d 156, 166-67 (4th Cir. 2008). The case arose after the Maryland

Department of Environment concluded that Laurel Sand & Gravel (“Laurel”), the

federal plaintiff, had violated Maryland’s Dewatering Act. 519 F.3d at 160-61.

Pursuant to the Act, Maryland had compelled Laurel, a mining company, to

replace a well that had run dry in Laurel’s zone of influence. Id. at 161. In

holding abstention appropriate, the Fourth Circuit relied on its 2005 decision in

Moore. Id. at 165-67 (citing Moore, 396 F.3d at 388). In Moore, a federal

plaintiff sought to challenge the City of Asheville’s noise ordinance, after he had

been cited for violating the ordinance twice (the pertinent bad acts). 396 F.3d at

388. Mr. Moore opted not to appeal either citation to the North Carolina courts.

Id. at 388-89. In essence, of course, Mr. Moore sought to protest his noise

citations – and thereby challenge the state-initiated enforcement proceedings

against him.

In the same vein, the Third Circuit, in O’Neill, upheld abstention where the

federal plaintiffs sought to challenge Philadelphia’s parking ticket procedures in

federal court, but had not exhausted state judicial remedies. 32 F.3d at 787-88.

The plaintiffs had amassed a slew of parking tickets over the years and sought to

avoid paying them. Id. at 788-89. Finally, the apposite Seventh Circuit case

dealt with a decision by the Indiana State Board of Nursing to suspend the license

of a nurse who had allegedly euthanized elderly patients. Majors, 149 F.3d at

711-12. The nurse sought to bar the suspension proceedings. Id.

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 Each of these cases addressed state administrative enforcement

proceedings; that is, each originated with the state’s proactive enforcement of its

laws (horse training regulations, noise ordinances, parking ticket procedures, and

licensing laws for the nursing profession). As such, each federal case arose out of

situation where the federal plaintiff had engaged in misconduct and sought to

block proceedings that would ultimately impose punishment for that misconduct. 8

2. Whether the HPF proceeding (and state judicial review thereof) is
remedial or coercive

Even assuming the unity of the administrative proceeding and the

possibility of a subsequent petition for state court judicial review (a proposition

we decline to establish), the district court properly abstained in the instant case

only if the proceeding before HPF was coercive rather than remedial. In the

district court’s original decision to abstain, it did not address the distinction

8
Of the circuits that have addressed the ongoing-proceeding issue – and
declined jurisdiction on Younger grounds – only the Eighth Circuit’s opinion in
Alleghany Corp. v. McCartney, 896 F.2d 1138 (8th Cir. 1990), involved a non-
coercive administrative proceeding. There, Alleghany applied to Nebraska’s
Director of Insurance for permission to purchase shares of stock in the parent
company of a Nebraska insurance company. See id. at 1140. The Director denied
the application pursuant to the Nebraska Insurance Holding Companies Act. Id.
at 1141. Alleghany then sought to challenge the constitutionality of the Act in
federal court. Id. The federal district court abstained, and the Eighth Circuit
upheld that decision. In so doing, the Alleghany court inexplicably ignored the
import of Patsy; indeed, nowhere in McCartney did the Eighth Circuit even
mention Patsy, let alone distinguish it. Moreover, the Eighth Circuit’s McCartney
decision conflicted with the Seventh Circuit’s conclusion, regarding the same
federal plaintiff’s identical claims (albeit in Wisconsin and Indiana). See Haase,
896 F.2d at 1053.

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between remedial and coercive proceedings. Instead, the court simply cited

Huffman for the proposition that “Younger’s exhaustion requirement is well

established.” Only after Brown sought to have the district court alter or amend its

judgment did the court analyze the issue raised by Patsy. Looking to O’Neill, the

court recognized that “remedial administrative proceedings [are] those brought ‘to

vindicate a wrong which ha[s] been inflicted by the State.” (Citing O’Neill, 32

F.3d at 791 n.13).

Despite this guidance, the court found that the “defendant claimed that

plaintiff was violating state law by collecting Medicaid benefits for which she

was ineligible. . . . Under Kansas law, the termination of benefits to ineligible

recipients is an enforcement mechanism designed to address violations of state

Medicaid law.” As such, the court held the HPF administrative proceeding “was

coercive for purposes of Younger because plaintiff initiated her administrative

hearing as part of the state’s overall law enforcement scheme.” The court

cautioned that it was a “difficult question,” and noted that the court’s conclusion

still left room for some administrative proceedings that would be categorized as

remedial.

The district court thereby implied that Brown had violated Kansas’s

Medicaid eligibility law and that the state had, as a consequence, terminated her

benefits. The administrative proceedings that followed this decision were,

- 21 -
according to the district court, necessarily coercive because they stemmed from

Kansas’s decision to terminate Brown’s benefits.

We disagree with this characterization of the HPF proceedings. The district

court’s standard for distinguishing coercive from remedial proceedings would

divorce Younger abstention from its traditional roots. See Huffman, 420 U.S. at

604 (“[W]e deal here with a state proceeding which in important respects is more

akin to a criminal prosecution than are most civil cases.”). 9 That is, Younger

originated in situations where federal involvement would block a state’s efforts to

enforce its laws. See Kercado-Melendez, 829 F.2d at 260 (“Those cases [Dayton

Christian Schools and similar cases] involved claims by plaintiffs that

constitutional rights would be violated by virtue of the operation of the state

proceedings.”). In those situations, “[c]omity and federalism concerns are at their

highest.” Id.

Here, however, Brown initiated a challenge to Kansas state action by

requesting a hearing before the HPF. Kansas did not mandate that she participate

in any such proceedings. Rather, HPF had summarily terminated her benefits, in

9
Huffman also discounted the federal plaintiff’s concerns about exhausting
state appellate remedies by noting that “where a final decision of a state court has
sustained the validity of a state statute challenged on federal constitutional
grounds, an appeal to this Court lies as a matter of right.” 420 U.S. at 605 (citing
28 U.S.C. § 1257(2)). Of course, federal plaintiffs no longer have such a right to
an appeal because § 1257 now provides the Supreme Court discretion to grant
certiorari. See Supreme Court Case Selections Act, Pub. L. 100-352, 102 Stat.
662 (1988).

- 22 -
accordance with Kansas’s new law. Brown alleged that the application of this

new law to her violates federal law because it contravenes certain terms of the

federal-state Medicaid pact. The state proceedings themselves are not the

challenged state conduct.

Moreover, Brown committed no cognizable bad act that would have

precipitated state coercive proceedings. This critical distinction is highlighted by

HPF’s threat – after Brown had already secured a preliminary injunction from the

federal court – to enforce Kansas’s new eligibility law against Brown by seeking

to recover “all Medical Assistance provided to [Brown] from July 1, 2004 to the

present.” This threatened petition, which HPF claimed it would file in Kansas

state court, was styled a “Petition for Civil Enforcement.” See Kan. Stat. § 77-

624(a) (authorizing a Kansas state agency to “seek enforcement of its rule and

regulation or order by filing a petition for civil enforcement in the district court”).

Aside from being a transparent attempt to secure a dismissal on Younger grounds

and aside from the fact that the record does not reflect that the petition was ever

filed, the threat merely highlights the remedial nature of Brown’s challenge to

HPF’s decision to terminate her benefits.

Because the type of ongoing proceeding at issue would be remedial, not

coercive, we hold that the district court improperly abstained in this case.

III. CONCLUSION

- 23 -
 These legal issues are undoubtedly difficult. Solicitude for state

proceedings counsels one result, the federal courts’ “virtually unflagging” duty to

exercise jurisdiction counsels another. In the § 1983 context, it is especially

useful to remember why the federal courts’ duty to exercise their jurisdiction is so

imperative: Congress specifically created a federal cause of action enforceable in

federal courts. For the above reasons, we conclude that the district court

improperly abstained because even if there were an ongoing proceeding, it would

not be the type subject to Younger abstention. 10 We REVERSE and REMAND

for proceedings consistent with this opinion.

10
Because we decide this case based on the first factor, we need not
consider the final two Amanatullah factors, involving adequacy of the state forum
and extent of the state interest. However, we note that the standard for the third
factor has been eroded of late. That is, this court and others have abridged the
third prong of the Younger inquiry, asking only whether the state interest is
important, see Amanatullah, 187 F.3d at 1164-65, rather than asking whether the
issue “involve[s] important state interests, matters which traditionally look to
state law for their resolution or implicate separately articulated state policies.”
Id. at 1163 (quoting Taylor, 126 F.3d at 1297) (emphasis added).
The district court held that the “third requirement of Younger is met
because important state interests are implicated in this case.” Specifically, the
court noted the state’s interest in “[p]rotecting the fiscal integrity of public
assistance programs” and in “construing state statutes with regard to federal law
challenges to those statutes.” However, the court did not mention the obvious
federal interest in ensuring that Kansas does not enact and enforce laws that
contravene the Medicaid federal-state covenant. Given that Congress created the
Medicaid program as a cooperative federal-state endeavor, it would be peculiar to
hold that a state’s handling of Medicaid issues is a “matter[] which traditionally
look[s] to state law for their resolution or implicate[s] separately articulated state
policies.” See Amanatullah, 187 F.3d at 163 (quotation omitted). Therefore, this
third factor would necessitate a comprehensive analysis were we to reach it.

- 24 -
No. 06-3387, Brown v. Day

TYMKOVICH, J., dissenting.

By filing a claim under 42 U.S.C. § 1983 in federal court, Dena Brown

circumvented ongoing and coercive administrative proceedings in the State of

Kansas. Dissatisfied with the outcome of the administrative process at the agency

level, she could have sought judicial review in Kansas state courts. Instead,

Brown chose to abandon Kansas administrative process altogether, co-opting the

federal court in her undertaking. Younger abstention exists to ensure federal

courts respect their state counterparts by abstaining in deference to ongoing state

judicial proceedings. See Younger v. Harris, 401 U.S. 37, 44 (1971) (“[T]he

National Government, anxious though it may be to vindicate and protect federal

rights and federal interests, always endeavors to do so in ways that will not

unduly interfere with the legitimate activities of the States.”). The doctrine

applies here, and the district court properly abstained from adjudicating Brown’s

lawsuit. We should therefore affirm.

The majority instead reverses the district court’s abstention. Because I

disagree with (1) the majority’s conclusion that the proceedings in question were

remedial rather than coercive, and (2) its failure to continue and find that Brown’s

judicial proceeding was ongoing, I respectfully dissent. Once Brown started

down the path of administrative relief, Younger abstention prevents us from

letting her detour into federal court in these circumstances.
 1. The Coercive-Remedial Distinction

The majority errs in holding that Brown’s administrative proceedings were

remedial rather than coercive. As I understand the distinction, these

proceedings—properly characterized as aimed at enforcing state Medicaid laws

against Brown—were coercive.

Our court has yet to address the coercive-remedial distinction in applying

Younger to administrative proceedings. Does the distinction even apply?

The Supreme Court mentioned the distinction for the first and only time in

a footnote in Ohio Civil Rights Commission v. Dayton Christian Schools, Inc.,

477 U.S. 619, 627 n.2 (1986) (Dayton). There, the Court sought to reconcile the

“application of the Younger principle to pending state administrative proceedings”

with Patsy v. Florida Board of Regents, 457 U.S. 496 (1982), “which holds that

litigants need not exhaust their administrative remedies prior to bringing a § 1983

suit in federal court.” Dayton, 477 U.S. at 627 n.2. The Court noted that,

“[u]nlike Patsy, the administrative proceedings here are coercive rather than

remedial, began before any substantial advancement in the federal action took

place, and involve an important state interest.” Id. (emphasis added).

The Court did not say what it meant by “coercive” and “remedial.” Patsy

dealt with a state’s denial of employment opportunities to a teacher, 457 U.S. at

498, while Dayton dealt with a state’s civil rights commission seeking to enforce

state laws against a school district’s decision to fire a teacher, 477 U.S. at

-2-
621–22. In other words, only in Dayton was the government enforcing state laws.

In Patsy, the state merely acted as an employer choosing not to do something, in

this case promote an employee.

The Dayton Court did not specifically say that Younger could apply only to

coercive administrative proceedings, and the very distinction has been criticized.

See, e.g., Harry T. Edwards, The Changing Notion of “Our Federalism,” 33

Wayne L. Rev. 1015, 1029 n.42 (1987) (“I find the Court’s distinction between

‘coercive’ and ‘remedial’ administrative proceedings to be unpersuasive. If

anything, the purposes behind § 1983 argue more strongly for allowing the federal

plaintiff to avail herself of the federal forum in ‘coercive’ cases.” (citation

omitted)).

The Supreme Court nonetheless must have thought the distinction

important, because otherwise no need for differentiating between coercive and

remedial proceedings exists. The Court could have simply reasoned that because

a federal plaintiff in Dayton had already initiated state administrative

proceedings, the non-exhaustion principle of Patsy and Monroe v. Pape, 365 U.S.

167 (1961), did not apply. See Huffman v. Pursue, Ltd., 420 U.S. 592, 609 n.21

(1975) (making this very point). But the Court went further and distinguished

Patsy along the coercive-remedial criterion. The distinction thus carries some

meaning, and we, like several other circuits have done, must flesh it out. See

Laurel Sand & Gravel, Inc. v. Wilson, 519 F.3d 156, 166 (4th Cir. 2008); Stroman

-3-
Realty, Inc. v. Martinez, 505 F.3d 658, 662 (7th Cir. 2007) (citing Majors v.

Engelbrecht, 149 F.3d 709, 712 (7th Cir. 1998)); Planned Parenthood of Greater

Iowa, Inc. v. Atchison, 126 F.3d 1042, 1047 (8th Cir. 1997); O’Neill v. City of

Philadelphia, 32 F.3d 785, 791 n.13 (3d Cir. 1994); Kercado-Melendez v. Aponte-

Roque, 829 F.2d 255, 260 (1st Cir. 1987).

a. Standard for Adjudicating the Coercive-Remedial Distinction

While I agree with the majority that the distinction must be addressed, I

disagree with the articulated standard.

The Supreme Court’s failure to explain what types of proceedings are

coercive and what types are remedial produced a circuit split on the issue. On the

one hand, the First Circuit looks to who initiated the administrative process. If it

was the federal plaintiff, then the proceedings are remedial; if the state, coercive.

Kercado-Melendez, 829 F.2d at 260 (explaining Patsy and Dayton along the lines

of who initiates the administrative proceedings). The majority finds this approach

attractive.

The Third, Fourth, and Seventh Circuits, on the other hand, all focus on the

underlying nature and substance of the administrative proceedings, asking

whether the proceedings can be characterized as state enforcement proceedings.

If they can, they are coercive, which is to say “judicial in nature”; if not,

remedial. Majors, 149 F.3d at 712 (“For purposes of Younger abstention,

administrative proceedings are ‘judicial in nature’ when they are coercive—i.e.,

-4-
state enforcement proceedings . . . .”); see also Laurel, 519 F.3d at 166 (tying

together the terms “coercive” and “judicial in nature”); O’Neill, 32 F.3d at 791

n.13 (explaining the coercive nature of the proceedings in Dayton as marked by

the state’s motivation “to enforce a violation of state law”).

The district court below found the wiser approach to be one that looks to

the underlying nature and substance of the proceedings rather than to the

initiating party. Brown v. Day, 477 F. Supp. 2d 1110, 1116 (D. Kan. 2007). I

agree. First, the Supreme Court in Dayton likely employed the coercive-remedial

distinction to limit the extension of Younger to those administrative

proceedings—and only those administrative proceedings—that are most like

Younger itself, which was a criminal case. See Moore v. City of Asheville, N.C.,

396 F.3d 385, 393 (4th Cir. 2005) (explaining similarly the Court’s extension of

Younger only to coercive civil proceedings in Huffman, “mindful that the doctrine

was originally applied to protect the state interests represented in criminal

prosecutions”); Patrick J. Smith, Note, The Preemption Dimension of Abstention,

89 Colum. L. Rev. 310, 326–27 (1989) (recognizing the interrelationship between

the enforcement nature of state proceedings and the importance of such

proceedings to the state). By making the distinction turn on the underlying nature

and substance of the administrative proceedings, we can ensure Younger

abstention applies only to proceedings—like criminal prosecutions—of paramount

-5-
importance to the state. The approach that looks to who initiates state

administrative process, on the other hand, does not have this advantage.

Second, focusing primarily on who initiates administrative process fails to

recognize that the labels “remedial” and “coercive” can simply be opposite sides

of the same coin. If a federal plaintiff initiates a state administrative process, the

First Circuit’s approach in Kercado-Melendez would call that process remedial.

But that federal plaintiff surely felt coerced by the challenged state action he or

she is now seeking to remedy. On the flip side, if the government initiates

administrative process against a would-be federal plaintiff, Kercado-Melendez

would label that process coercive. But that would-be federal plaintiff, forced into

the state-initiated administrative proceedings, can also be described as attempting

to remedy governmental coercion through the administrative hearing. Kercado-

Melendez’s interpretation of the coercive-remedial distinction, while easy to

apply, does not explain why it modifies the Younger abstention doctrine.

The question we must therefore ask is whether administrative proceedings

represent state enforcement efforts—regardless of who initiates them. As a

leading treatise on federal court jurisdiction suggests, the inquiry is aimed at

determining who is “effectively the ‘plaintiff’ or the ‘defendant’ before the

agency—that is, whether the administrative proceeding was an enforcement

action.” Richard H. Fallon, Jr. et al., Hart and Wechsler’s The Federal Courts

-6-
and The Federal System 1257 (5th ed. 2003) (emphasis added). The majority’s

approach, instead aligned with Kercado-Melendez, misses the point.

b. Brown’s Proceedings Were Coercive

Considering the underlying substance and nature of Brown’s administrative

proceedings, I agree with the district court that the proceedings represented

Kansas’s efforts at enforcing state Medicaid law against Brown. In the words the

majority uses to describe coercive proceedings, Kansas here was seeking the

“proactive enforcement of its laws.” Majority Op. at 20.

As the district court correctly summarized, “[u]nder Kansas law, the

termination of benefits to ineligible recipients is an enforcement mechanism

designed to address violations of state Medicaid law.” Brown, 477 F. Supp. 2d at

1117. Kansas “has joined the federal government and other states in guarding

against providing healthcare for individuals who have their own resources.” Id.

(quoting Miller v. Dep’t of Soc. & Rehab. Servs., 64 P.3d 395, 399 (Kan. 2003)).

Several statutory provisions reinforce this conclusion. Benefit recipients

have a duty under Kansas law to report changes in eligibility. Kan. Stat. Ann.

§ 39-719b (describing “the duty of the recipient to notify the secretary

immediately,” and the benefits paid in violation of that duty as “recoverable by

the secretary as a debt due to the state” (emphasis added)). Benefits received in

violation of that duty are described as “assistance . . . unlawfully received.” Id.

§ 39-719c. And if failure to report amounts to fraud, the recipient “shall be guilty

-7-
of the crime of theft . . . and he shall be required to remit . . . the amount of any

assistance given him under such fraudulent act.” Id. § 39-720. From the

perspective of the State of Kansas, then, Brown was an unlawful recipient of

Medicaid benefits, and the state was acting in its enforcement role during

Brown’s administrative proceedings.

That Brown was the one to initiate an administrative hearing to challenge

termination of her benefits does not matter. Under Supreme Court precedent,

termination of welfare benefits “involves state action that adjudicates important

rights” and triggers procedural due process rights, such as the right to a hearing.

Goldberg v. Kelly, 397 U.S. 254, 262 (1970). Accordingly, by terminating

Brown’s benefits, the state effectively triggered the resultant administrative

hearing, which it was required to provide. When Brown took advantage of that

hearing, she was no more a “plaintiff” than was the person who used the available

administrative process to challenge parking tickets in O’Neill, 32 F.3d at 787–88.

Like the administrative process in O’Neill, Brown’s administrative proceedings

were thus coercive. And the end result of the relief sought by Brown was equal to

the injunction sought in Moore, 396 F.3d 385—an order preventing Kansas from

enforcing its Medicaid laws, which is nothing other than injunctive-type relief.

Brown’s preemptive federal court action against Kansas functions no differently

than if Kansas had initiated cease-and-desist proceedings against her, which

Brown then sought to stop.

-8-
 Nor do I agree with the majority’s “third factor” that argues coercive

proceedings exist only where a state initiates an administrative proceeding to

punish a federal plaintiff for a “bad act.” The majority cites examples of bad acts

from other coercion cases, including a trainer illegally giving performance-

enhancing drugs to his horses, and a mining company running a well dry in

violation of a state’s environmental statutes. But calling something a “bad act” is

simply another way of saying it “violates state law.” And, as explained above,

violating the law is precisely what Brown was doing when she was receiving

Medicaid benefits to which she was not entitled under Kansas law. An element of

subjective moral culpability seems unimportant to this inquiry. The majority’s

third factor thus weighs in favor of finding the proceedings here were coercive in

nature.

Finally, the majority’s variation of this argument also fails to

persuade—namely, that Brown’s proceedings cannot be considered coercive

unless the State of Kansas, in addition to terminating benefits prospectively, was

actually seeking (instead of just threatening) to recoup benefits received in

violation of state law. But Kansas’s important interest in ensuring that only the

truly needy receive Medicaid assistance does not become any less important when

Kansas uses something less than its full arsenal of enforcement measures to

pursue an unlawful recipient. Moreover, it would be harmful policy, and one

unjustified by Younger abstention principles, to require states in every case to use

-9-
the most coercive measures in enforcing their laws just so they can preserve

abstention arguments.

Because Kansas’s role in the hearing was to enforce Medicaid laws against

an unlawful benefits recipient, the proceedings were coercive.

2. The Ongoing Proceeding Prong

In light of its determination that the proceedings here were remedial, the

majority does not address whether Brown’s state judicial process was ongoing

when she filed her federal complaint. Because in my view the proceedings were

coercive, making a proper Younger abstention determination requires that we also

address whether the proceedings were ongoing. And, in this instance, the

proceedings were indeed ongoing.

After reviewing the briefs and oral argument in this case, one can discern

two well-reasoned (but ultimately unpersuasive) arguments that would support the

opposite conclusion—namely, that the proceedings were not ongoing. Recall that

here, the Kansas Health Policy Authority (HPA) 1 issued a final order, and Brown

chose not to seek judicial review of that order in Kansas state courts. The first

argument is that the issuance of an agency final order represents a point where the

state process temporarily ceases to be ongoing, and the litigant can choose either

1
Although the briefs at times refer to the Kansas Division of Health Policy
and Finance, it appears the HPA took over the administration of Medicaid
programs in Kansas.

- 10 -
to continue in the state system or shift forum by filing a lawsuit in federal court.

The second argument is that because Brown did not raise her federal issue in a

hearing before the HPA, any state-court review of that issue would have been de

novo. The process cannot be ongoing, this second argument goes, if subsequent

review is de novo.

Neither of these reasons flows from the Supreme Court’s explanation of

Younger abstention. Nor does either comport with the clear weight of authority

from other circuits—indeed, the reasons are plainly contradicted by that authority.

I would therefore conclude Brown’s state proceedings were ongoing when she

filed the federal complaint.

a. The Ongoing Proceeding Prong and Right of Judicial Review in

State Courts

Neither the Supreme Court nor our circuit has yet addressed the exact issue

of whether an administrative proceeding should be considered ongoing after an

administrative agency issues a final order that is appealable, but not yet appealed,

to state courts. But the Supreme Court’s treatment of Younger abstention in the

context of civil cases, although not administrative cases, at least strongly suggests

that such administrative proceedings should be considered ongoing. Younger

applies with equal force to criminal, civil, and administrative proceedings. See

Amanatullah v. Colo. Bd. of Med. Exam’rs, 187 F.3d 1160, 1163 (10th Cir. 1999)

- 11 -
(explaining that Younger abstention is proper when “there is an ongoing state

criminal, civil, or administrative proceeding”). The Supreme Court’s explanation

of the doctrine in the context of civil proceedings should thus be followed in the

administrative context, unless good reasons exist for treating Younger abstention

in these two contexts differently.

For Younger abstention in the context of state civil proceedings, the

Supreme Court unambiguously stated that a natural break between trial and

appellate stages of a proceeding does not destroy its ongoing nature. Huffman,

420 U.S. at 608. In Huffman, a civil nuisance lawsuit was brought in Ohio state

court to close a movie theater screening pornographic films. Id. at 598. The

movie theater lost the case in trial court but, instead of appealing the judgment

within the state court system, filed a § 1983 lawsuit challenging Ohio’s public

nuisance statute as a violation of the First Amendment and requested declaratory

and injunctive relief. Id. A three-judge panel of the federal district court reached

the merits and agreed with the movie theater.

The Supreme Court reversed, holding unequivocally that a party seeking

relief in a federal court “must [first] exhaust his state appellate remedies.” Id. at

608. For the purposes of Younger abstention, then, trial and appellate stages of

state court litigation should be treated as one continuous process that a litigant

cannot truncate by filing a federal action halfway through state proceedings.

Otherwise, “all of the evils at which Younger is directed would inhere in federal

- 12 -
intervention prior to completion of state appellate proceedings, just as surely as

they would if such intervention occurred at or before trial.” Id.

The Court identified three such evils. First, “[i]ntervention at the later

stage is if anything more highly duplicative, since an entire trial has already taken

place.” Id. Whether or not state courts have had a chance to address the federal

issue raised in subsequent federal litigation, the possible duplication of

proceedings is a valid concern. The parties have already once assembled for a

full trial in the state system. A second trial in federal court, even if it raises new

issues, is sure to overlap to a significant extent with state proceedings.

Second, the Court in Huffman drew on Younger’s central theme: comity

between federal and state courts. The Court explained a federal court’s

“[i]ntervention . . . [represents] a direct aspersion on the capabilities and good

faith of state appellate courts.” Id. When a federal court steps into the middle of

the state judicial process after trial but before appeal, “it is likely to be even more

disruptive and offensive because the State has already won” below. Id. at

608–09. By prohibiting litigants from sidestepping state appellate process, the

result in Huffman promotes Younger’s central goal.

Third, “[f]ederal post-trial intervention, in a fashion designed to annul the

results of a state trial, also deprives the States of a function which quite

legitimately is left to them, that of overseeing trial court dispositions of [federal]

issues which arise in civil litigation over which they have jurisdiction.” Id. at

- 13 -
609. Federal law is supreme in our constitutional design, and state judges are

bound to enforce it. U.S. Const. art. VI, cl. 2 (“This Constitution, and the Laws

of the United States which shall be made in Pursuance thereof; and all Treaties

made, or which shall be made, under the Authority of the United States, shall be

the supreme Law of the Land; and the Judges in every State shall be bound

thereby, any Thing in the Constitution or Laws of any State to the Contrary

notwithstanding.”); Testa v. Katt, 330 U.S. 386, 393 (1947) (holding that state

courts with jurisdiction to hear federal issues “are not free to refuse enforcement”

of litigants’ rights under federal law). The Huffman Court pointedly refused “to

base a rule on the assumption that state judges will not be faithful to their

constitutional responsibilities.” 420 U.S. at 611.

To protect against Younger’s three evils, the Court effectively introduced a

new requirement into the Younger line of cases, “the exhaustion of state appellate

remedies.” Owen M. Fiss, Dombrowski, 86 Yale L.J. 1103, 1139 (1977). A

litigant who has initiated state judicial proceedings must therefore exhaust any

available state appellate remedies before filing a related federal action. 2 These

2
The Court addressed the apparent tension between the exhaustion
requirement of Huffman and the non-exhaustion principle of Monroe v. Pape, 365
U.S. 167 (1961), as follows. Monroe held only that a federal § 1983 litigant need
not first initiate state proceedings before filing the federal action. Huffman, 420
U.S. at 609 n.21 (citing Monroe, 365 U.S. at 183). Huffman, on the other hand,
speaks to “the deference to be accorded state proceedings which have already
been initiated and which afford a competent tribunal for the resolution of federal
(continued...)

- 14 -
remedies must be actively pursued, for the litigant “may not avoid the standards

of Younger by simply failing to comply with the procedures of perfecting its

appeal within the [state] judicial system.” Huffman, 420 U.S. at 611 n.22.

After Huffman, at least regarding state civil trials, “a necessary concomitant

of Younger” is that state trial and appellate stages are to be viewed as one

ongoing judicial process. Id. at 608. Brown’s case is admittedly different in that

rather than dealing with state civil trial, it concerns state administrative

proceedings, appealable upon their conclusion to state courts. The Supreme Court

expressly left open the question whether the rationale in Huffman would apply to

cases where a § 1983 claimant seeks federal court intervention after completion of

the administrative hearing but before state court review of the agency’s final

order. See New Orleans Pub. Serv., Inc. v. Council of the City of New Orleans,

491 U.S. 350, 369 & n.4 (1989) (NOPSI) (assuming, without deciding, “that the

litigation, from agency through courts, is to be viewed as a unitary process that

2
(...continued)
issues.” Id. (emphasis added). The relevant distinction is whether state
proceedings have been initiated: Monroe says there is no need to initiate state
proceedings, but if a litigant nevertheless chooses to do so, Huffman requires the
litigant to follow the state system all the way through the available appeals.
Huffman, in compliance with Monroe, does not force would-be § 1983 plaintiffs
into the state system, but merely requires a litigant to accord the state system its
due respect by first attempting to remedy an adverse ruling through state appellate
procedures.

- 15 -
should not be disrupted, so that federal intervention is no more permitted at the

conclusion of the administrative stage than during it”).

Notably, one of the concurring opinions in NOPSI raised the possibility that

the rationale of Huffman, as applied to administrative agency proceedings, might

no longer be an open question. Id. at 374–75 (Blackmun, J., concurring in the

judgment). Because the Court since Huffman has extended Younger into

administrative proceedings that are judicial in nature, see Dayton, 477 U.S. at

627; Amanatullah, 187 F.3d at 1163, the “question whether abstention must

continue through the judicial review process” may no longer exist. NOPSI, 491

U.S. at 375 (Blackmun, J., concurring in the judgment). The concurrence clearly

suggested the question was no longer open.

I agree with this assessment of the Younger doctrine. In light of the

Court’s extension of Younger to state administrative proceedings, there is no

principled reason for not applying Huffman to these proceedings, which are also

judicial in nature, and treating them as ongoing through the completion of

available state court judicial review. For a federal court to intervene before a

state court has had a chance to review and possibly correct the challenged

administrative order would give rise to the same concerns Huffman identified.

The intervention would (1) result in some duplicative proceedings, (2) undermine

state courts’ capability of reviewing the challenged administrative decision’s

compliance with federal law, and (3) deprive state courts of their legitimate power

- 16 -
of judicial review. These concerns are no less meaningful in the administrative

context than they are with respect to civil proceedings.

A majority of other circuits agree. Of the six circuit courts to address this

issue, all but one apply the Huffman rationale to administrative proceedings,

demanding a party exhaust available state court judicial review before filing a

lawsuit in federal court. See Laurel, 519 F.3d at 166 (relying on Huffman to

explain that a would-be federal court litigant “must exhaust his state

administrative and judicial remedies and may not bypass them in favor of [a]

federal court proceeding in which he seeks effectively to annul the results of a

state administrative body” (quotation marks omitted)); Maymo-Melendez v.

Alvarez-Ramirez, 364 F.3d 27, 35 (1st Cir. 2004) (noting that after Huffman,

“Younger now has to be read as treating the state process—where the

administrative proceeding is judicial in character—as a continuum from start to

finish. There . . . cannot at any point on the continuum be an automatic right to

detour into federal court because unhappy [sic] with an initial answer.”); Majors,

149 F.3d at 713 & n.3; O’Neill, 32 F.3d at 790–91 & n.13; Alleghany Corp. v.

McCartney, 896 F.2d 1138, 1143–44 (8th Cir. 1990). I would agree with these

authorities.

The Fifth Circuit is alone in rejecting the application of Huffman reasoning

in the context of administrative proceedings. See Thomas v. Tex. State Bd. of

Med. Exam’rs, 807 F.2d 453, 456 (5th Cir. 1987). That court said, without an

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explanation, “The mere availability of state judicial review of state administrative

proceedings does not amount to the pendency of state judicial proceedings within

the meaning of Huffman.” Id. One has to wonder, though, why not? As

explained above and consistent with the other circuits to have addressed this

question, once the Supreme Court has extended Younger to state administrative

proceedings, no principled reason exists against applying the Huffman reasoning

to sequential state appellate proceedings—especially when, like here, the

administrative proceedings themselves were judicial in nature. In Majors, the

Seventh Circuit succinctly identified why the Fifth Circuit’s approach should be

avoided: “Thomas is unpersuasive because it was based on the distinction between

administrative enforcement proceedings and civil enforcement proceedings of the

Huffman variety, a distinction that is immaterial.” 149 F.3d at 713 n.3.

I agree and would not make the doctrine turn on such an immaterial

distinction. Accordingly, I believe that declining to apply Huffman to

administrative proceedings would be erroneous. Like five of our sister circuits, I

would hold that state court judicial review of administrative proceedings

represents an integral part of state administrative process—which Younger says

cannot be cut off at a midpoint in favor of federal court litigation.

b. Brown’s Proceedings Were Ongoing

The State of Kansas clearly affords an opportunity “for judicial review of

[an administrative agency’s] final order.” Kan. Stat. Ann. § 77-613(b). In

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performing its judicial review function, a state court “shall grant relief” if, among

other things, “the agency has erroneously interpreted or applied the law.” Id.

§ 77-621(c)(4). Kansas state courts, therefore, have jurisdiction to review

Brown’s federal claims—namely, her challenge to the HPA’s decision as a

violation of federal Medicaid law.

For a federal court to intervene before Kansas state courts have had a

chance to review the HPA’s final order would cast doubt on the ability of Kansas

courts to correct the agency’s alleged violation of federal law. Moreover, the

intervention would undermine state courts’ legitimate function of reviewing

decisions of Kansas administrative agencies. Finally, the intervention duplicates

to some extent the proceedings before the HPA. For all of these reasons, the

district court was correct to abstain, and I would affirm that decision.

I recognize that my approach to Younger abstention may leave Brown

without a remedy here. The time to appeal her administrative proceedings to

Kansas state courts has long since run. But see Brown v. Day, No. 06-2212, 2006

WL 3087111, at *4 n.7 (D. Kan. Oct. 27, 2006) (“Because Kansas law recognizes

the unique circumstances doctrine, . . . it may be possible for plaintiff to resurrect

her state claim.” (citing In re Appeal of Sumner County, 930 P.2d 1385, 1388

(Kan. 1997)). As the Supreme Court explained, however, a federal litigant “may

not avoid the standards of Younger by simply failing to comply with the

procedures of perfecting its appeal within the [state] judicial system.” Huffman,

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420 U.S. at 611 n.22. Brown therefore had the burden to perfect her state appeal

before filing this § 1983 action. That she failed to do so should not affect our

interpretation of Younger abstention.

c. De Novo Exception

As indicated above, the second major argument against applying Younger

here is that, even if Brown had sought judicial review of the HPA’s final order in

Kansas state courts, the review would have been de novo since the issue presented

could not have been addressed by the agency. Given this posture, the second

argument goes, Brown’s proceedings cannot be considered ongoing.

I disagree with both the premise and the conclusion. Regarding the

premise, I am not persuaded Brown was prevented from raising her federal claim

before the HPA. And as to the conclusion, assuming Brown could not in fact

present the federal claim to the HPA, Younger requires nothing more than an

opportunity to raise that claim during subsequent judicial review of an

administrative decision. The de novo argument does not follow from the Younger

abstention doctrine.

Raising Federal Claims Before the HPA

In the first place, we have no idea whether the HPA would have been

receptive to Brown’s arguments under federal Medicaid law. And “the burden on

this point rests on the federal plaintiff to show that state procedural law barred

presentation of its claims.” Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 14 (1987)

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(quotation marks, brackets, and citation omitted). Brown, however, never raised

her federal arguments in the HPA proceedings. In such a situation, the Supreme

Court instructs we must assume that Brown could have raised these claims before

the HPA—unless unambiguous contrary authority exists. See id. at 15 (“[W]hen a

litigant has not attempted to present his federal claims in related state-court

proceedings, a federal court should assume that state procedures will afford an

adequate remedy, in the absence of unambiguous authority to the contrary.”);

accord O’Neill, 32 F.3d at 792–93. Thus, we must consult Kansas state law to

see whether it unambiguously prevents the HPA from considering federal

Medicaid law during benefit termination proceedings.

In my view, Kansas law does not unambiguously prevent benefit recipients

like Brown from asserting federal claims in proceedings before the HPA. The

relevant jurisdictional statute instructs HPA hearing officers as follows: “The

department of social and rehabilitation services shall not have jurisdiction to

determine the facial validity of a state or federal statute. An administrative law

judge from the office of administrative hearings shall not have jurisdiction to

determine the facial validity of an agency rule and regulation.” Kan. Stat. Ann.

§ 75-3306(h). Brown argues the HPA was thus jurisdictionally prohibited from

considering her federal law claims.

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 But a facial challenge is by no means the only way of raising federal issues.

Brown could have presented an as-applied challenge. Younger does not require

an opportunity to levy a facial challenge.

Furthermore, Kansas case law would not have unambiguously precluded

Brown from raising her federal issues. State case law does exist indicating

Kansas administrative agencies are not empowered to decide constitutional

questions. See, e.g., Bd. of Educ. of Unified Sch. Dist. No. 443 v. Kan. State Bd.

of Educ., 966 P.2d 68, 76 (Kan. 1998). But it would be erroneous to conclude

Brown could not have raised her constitutional claim before the agency. Indeed,

the most recent Kansas Supreme Court case to address this issue concluded “[t]he

rule that a constitutional issue cannot be decided by an administrative agency

does not necessarily preclude [an individual] from raising such an issue in that

forum.” Martin v. Kan. Dep’t of Revenue, 176 P.3d 938, 946 (Kan. 2008).

This ability to raise a constitutional issue in state administrative

proceedings is relevant for a number of reasons. First, one’s ability to raise the

same issues at the administrative level as at the state court level gives weight to

the view that both comprise one unitary proceeding for the purposes of Younger

abstention. Second, it means that if the HPA can be made aware of the federal

issues, it can construe the challenged Kansas statute to avoid the federal question

altogether. Thus, even if not empowered to decide the constitutional issue, the

agency may avoid the entire federal conflict. And third, it cuts against the

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argument that Brown was unambiguously precluded from asserting her federal

claim. All that Younger abstention asks is whether Brown could have raised her

federal claim before the HPA. Whether or not Brown would have succeeded in

challenging the offending Kansas statute as applied to her case is immaterial.

And again, under the jurisdictional prohibition against facial challenges,

that still leaves as-applied challenges and narrowing constructions, either of

which could have adequately resolved Brown’s complaint and obviated the need

for her federal lawsuit. Accordingly, there is no unambiguous authority

suggesting the HPA was prohibited from considering Brown’s federal Medicaid

arguments.

The administrative proceedings support this view. Brown had succeeded in

her initial proceedings before the hearing officer but the agency head later

overturned the result. The initial determination in Brown’s favor rested on

equitable considerations of avoiding retroactivity in applying new Kansas

statutory law to Brown’s preexisting benefits. It is not at all clear why

proceedings that were equitable in nature could not have addressed federal

Medicaid law among all other equitable considerations.

It may be possible that Brown could have raised an as-applied challenge

before the HPA, that the HPA could have construed the offending Kansas statute

narrowly to avoid the federal Medicaid law claim, or that the equitable nature of

HPA proceedings could have taken federal Medicaid law into account. But most

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importantly, the Supreme Court instructs the assumption that in the absence of

unambiguous authority to the contrary, Brown could have raised her federal claim

in one shape or another before the HPA. Pennzoil, 481 U.S. at 15; see also

Dayton, 477 U.S. at 629 (“But even if Ohio law is such that the Commission may

not consider the constitutionality of the statute under which it operates, it would

seem an unusual doctrine . . . to say that the Commission could not construe its

own statutory mandate in the light of federal constitutional principles.”).

The burden is on Brown to demonstrate the contrary, and she failed to do

so. Her sole argument on this score relies on the HPA’s inability to address facial

challenges to state welfare statutes, but this argument says nothing of other means

by which Brown could have raised her federal claims before the HPA.

The De Novo Nature of State Court Review Is Immaterial

Even assuming for purposes of argument that Brown indeed could not raise

her federal claim before the HPA, she could have raised this issue during state-

court judicial review of the agency’s final order. Kan. Stat. Ann. § 77-617(a) (“A

person may obtain judicial review of an issue that was not raised before the

agency, only to the extent that . . . [t]he agency did not have jurisdiction to grant

an adequate remedy based on a determination of the issue . . . .”). And an

opportunity to raise a federal issue during state court judicial review of

administrative proceedings is all Younger requires. See Dayton, 477 U.S. at 629

(holding that adequate opportunity to raise federal issues exists when such claims

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“may be raised in state-court judicial review of the administrative proceeding,”

even if the claims could not have been raised during the administrative

proceeding itself).

The contrary argument essentially relies on the following premise: We

abstain only when a federal issue has been raised somewhere in the course of state

proceedings, not simply when state process itself has been initiated. But this

cannot be correct. In Dayton, the Supreme Court applied Younger abstention

without a federal issue ever being raised in the ongoing state administrative

proceedings. Id. If the focus of Younger abstention looks strictly to a state’s

resolution of a federal issue, then Dayton would make no sense. Why abstain in

favor of an ongoing administrative proceeding that lacks jurisdiction to address

federal issues, requiring a would-be federal litigant to wait until state court

judicial review to raise such issues? Abstention in these situations makes sense

only if we look at the state process as a whole, including any available judicial

review, de novo and otherwise. This must have been what animated the Court in

Dayton and makes perfect sense in light of the Court’s treatment of the trial and

appellate stages as one whole in Huffman.

The opposite conclusion leads to an absurd result where federal court

abstention depends on the availability of state-court judicial review while the

agency is deciding a case, see Dayton, 477 U.S. at 629, only to then ignore the

availability of state court judicial review and deny abstention once the agency has

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decided. A more consistent approach is to treat state court judicial review as an

integral part of state administrative process. Under this approach, federal courts

would abstain during the pendency of the agency’s proceedings and during the

state court’s review of the agency’s order. This would let state courts play a role

assigned them by state legislatures, which is to supervise administrative

adjudications.

Other circuits agree that the de novo exception does not belong in the

Younger abstention doctrine. On facts similar to Brown’s case—where

administrative proceedings had ended but state court judicial review had not been

sought—the First, Third, Fourth, and Eighth Circuits declined to write the de

novo exception into Younger. See Moore, 396 F.3d at 395–96; Maymo-Melendez,

364 F.3d at 36; O’Neill, 32 F.3d at 793; Alleghany Corp. v. Pomeroy, 898 F.2d

1314, 1317–18 (8th Cir. 1990).

The Eighth Circuit in Pomeroy provided a particularly illuminating

discussion of the reasons why Younger abstention does not contain the de novo

exception advanced by the majority here. When a state provides for judicial

review of administrative proceedings in its courts and allows them to consider

certain claims de novo, two important interests are triggered. Pomeroy, 898 F.2d

at 1317–18. First, state courts may interpret the challenged state law in a way

that obviates a federal issue. Id. at 1317 (citing Pennzoil, 481 U.S. at 11).

Second, if in fact state law is incompatible with federal law, “interests of comity

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are advanced, and friction reduced, if the courts of a state, rather than the federal

courts, determine that [federal law] requires the state to alter its practices.” Id. at

1318 (citing Huffman, 420 U.S. at 608–09). Although the court in Pomeroy

articulated both of these interests in terms of complying with federal

constitutional law, the same can be said of federal statutory law. The Supremacy

Clause of the Constitution places state courts under equal duty to decide federal

constitutional as well as statutory cases. U.S. Const. art. VI, cl. 2. For these

reasons, Pomeroy decided against grafting the de novo exception onto the

Younger abstention doctrine.

As Brown’s case comes to us, because she chose not to seek judicial review

of the HPA’s final order in state courts, we have no idea whether the challenged

Kansas welfare statute actually raises an issue under federal Medicaid law. We

thus violate the mutual respect between the federal and state courts by assuming

that Kansas state courts could not interpret Kansas statutory law to avoid a federal

issue. I reject the de novo exception because it invites this precise assumption.

All Younger requires is that federal claims be capable of resolution “somewhere

in the state process.” Maymo-Melendez, 364 F.3d at 36.

* * *

In sum, contrary to the majority’s holding, in my view Brown’s

proceedings were coercive. And though the majority does not address the issue,

the proceedings were also ongoing. Because the Younger elements are satisfied,

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the district court properly abstained, as should we. See Amanatullah, 187 F.3d at

1163 (“Younger abstention is non-discretionary; it must be invoked once the . . .

conditions are met, absent extraordinary circumstances.”).

I therefore respectfully dissent.

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