Massachusetts Delivery Associa v. Coakley

Filing

OPINION issued by Sandra L. Lynch, Chief Appellate Judge; Norman H. Stahl, Appellate Judge and Kermit V. Lipez, Appellate Judge. Published. [11-1441]

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Date Filed: 01/20/2012

Entry ID: 5612159

United States Court of Appeals
For the First Circuit
No. 11-1441
MASSACHUSETTS DELIVERY ASSOCIATION,
Plaintiff, Appellant,
v.
MARTHA COAKLEY, in her official capacity
as Attorney General of the Commonwealth of Massachusetts,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Denise J. Casper, U.S. District Judge]

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

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

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LYNCH, Chief Judge.

Date Filed: 01/20/2012

Entry ID: 5612159

The issue on appeal is whether

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

a

federal

court

civil

rights

suit

brought

against

the

Massachusetts Attorney General by a business trade association,
which is not itself a party to any relevant state litigation, and
where three of its forty-plus members are defendants in ongoing
state civil proceedings brought not by the Attorney General but by
private parties.

The district court found that Younger abstention

was appropriate in these circumstances.

Mass. Delivery Ass'n v.

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

We reverse that

determination and hold that Younger abstention is inappropriate and
the federal courts should exercise jurisdiction.
district

court

for

further

proceedings

We remand to the

consistent

with

this

opinion.
I.
The suit by the Massachusetts Delivery Association (MDA)
asserts that a state law is pre-empted as to motor carriers under
the Federal Aviation Administration Authorization Act of 1994
(FAAAA), Pub. L. No. 103-305, 108 Stat. 1569 (codified in scattered
sections of 49 U.S.C.), which expressly pre-empts state attempts to
regulate "a price, route, or service of any motor carrier," 49
U.S.C. § 14501(c)(1).
here is

such

a

Supremacy Clause.

The MDA claims that the state law at issue

regulation

and

is

unconstitutional

under

the

The challenged state law is a portion of a

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Massachusetts statute, Mass. Gen. Laws ch. 149, § 148B(a)(2), which
requires that an individual performing a service for another be
classified as an employee unless "the service is performed outside
the usual course of the business of the employer."

The MDA also

asserts that the state statute imposes an undue burden which
violates the Commerce Clause.

We describe these state and federal

statutes before turning to the Younger abstention issue.
A.

The Massachusetts Statute Defining Employees
The state law challenged as unconstitutional is part of

a state statutory scheme meant to enhance protections for those
whom

the

state

considers

to

be

"employees,"

in

contrast

to

independent contractors. See Somers v. Converged Access, Inc., 911
N.E.2d 739, 749 (Mass. 2009). This provision was initially enacted
in 1990 as "[an act] enhancing the enforcement of labor laws."
1990 Mass. Legis. Serv. 464.

Amended in 2004, the law currently

provides:
(a) For the purpose of this chapter and
chapter 151, an individual performing any
service, except as authorized under this
chapter, shall be considered to be an employee
under those chapters unless:
(1) the individual is free from control
and direction in connection with the
performance of the service, both under
his contract for the performance of
service and in fact; and
(2) the service is performed outside
the usual course of the business of the
employer; and,

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(3) the individual is customarily
engaged in an independently established
trade,
occupation,
profession
or
business of the same nature as that
involved in the service performed.
Mass. Gen. Laws ch. 149, § 148B.1
Subsection

(a)

provides

that

individuals

performing

services shall be deemed employees, unless all of the requirements
outlined in the three subsections are satisfied.

See Somers, 911

N.E.2d at 747 ("The failure of the employer to prove all three
criteria set forth above suffices to establish that the individual
in question is an employee.").
Section 148B governs whether an individual is deemed an
employee for purposes of various wage and employment laws, chapters
62B, 149, 151 and 152 of the Massachusetts General Laws.2

See

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

1

The 2004 amendment to this statute altered, among other
provisions, the second prong of the test, which is the basis of the
MDA's pre-emption claim. Before this amendment, the second prong
of the test read "and such service is performed either outside the
usual course of the business for which the service is performed or
is performed outside of all places of business of the enterprise."
Mass. Gen. Laws ch. 149, § 148B (2003).
2

Chapter 62B is entitled "Withholding of Taxes on Wages and
Declaration of Estimated Income Tax."
Chapter 149 is entitled "Labor and Industries" and contains
a wide variety of provisions relevant to the employment
relationship, including a requirement that employees be paid weekly
or bi-weekly. See Mass. Gen. Laws ch. 149, § 148.
Chapter 151 is entitled "Minimum Fair Wages," and contains
a variety of provisions establishing minimum wage and overtime pay
requirements. See, e.g., Mass. Gen. Laws ch. 151, §§ 1, 1A.
Chapter 152 is entitled "Workers' Compensation" and
addresses that subject.
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Judicial Court has said that "[a] legislative purpose behind the
independent contractor statute is to protect employees from being
deprived

of

the

benefits

enjoyed

by

employees

misclassification as independent contractors."

through

their

Somers, 911 N.E.2d

at 749.
If an employing entity improperly classifies an employee
as an independent contractor under § 148B,3 a variety of sanctions
are

available,

including

assessed by the state.

civil

and

criminal

penalties

to

be

Mass. Gen. Laws ch. 149, §§ 27C, 148B(d).

But the state is not always involved in disputes about compliance
with

§

148B.

Independently,

employees

who

allege

improper

classification as independent contractors may bring their own
actions for injunctive relief and treble damages, and may bring
such suits as class actions.

Mass. Gen. Laws ch. 149, § 150; see

also Somers, 911 N.E.2d at 748.

Before bringing suit, such

employees must first file a complaint with the Attorney General;

3

Improper classification under § 148B, of itself, does not
appear to give rise to a cause of action; instead, the statute
seems to require that an improper classification result in a
violation of one of the referenced chapters before an entity may be
sued under § 148B. Only employers who "fail[] to properly classify
an individual as an employee according to this section and in so
doing fail[] to comply, in any respect, with chapter 149 or
[certain sections of] chapter 151, or chapter 62B . . . shall be
subject to all of the criminal and civil remedies" provided by the
statute. Mass. Gen. Laws ch. 149, § 148B(d). Similarly, employers
who "fail[] to properly classify an individual as an employee
according to this section and in so doing violate[] chapter 152
. . . shall be subject to all of the civil remedies" provided by
the statute. Id.
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employees must wait to file suit in court until 90 days after
filing such a complaint, although they may file earlier if the
Attorney General consents in writing.
§

150.

When

an

employee

brings

Mass. Gen. Laws ch. 149,

suit,

he

"institute[s]

and

prosecute[s] [it] in his own name and on his own behalf, or for
himself and others similarly situated, [as] a civil action."
He does not bring suit in the name of the state.

Id.

Nor does he have

the range of remedies available to the Attorney General.
The MDA alleges that its members must change their
fundamental business model -- the use of independent contractor
delivery drivers -- to comply with the state statute or risk
penalties. No other state, the MDA alleges, has made unlawful this
use of the historic business model.

The Massachusetts law, it

says, would force motor carriers to use only employees as delivery
drivers, which would drive up costs, and adversely affect prices,
routes, and services. Not only is the law expressly pre-empted but
it also imposes an impermissible burden on interstate commerce,
according to the MDA.
B.

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

businesses

in

interstate

commerce

involving

transportation, Congress, concerned both with the states imposing
undue burdens and with the national interest in uniform rules, has
expressly preempted certain state regulations.

See, e.g., 49

U.S.C. § 14501(a)(1) (pre-emption of state regulations relating to
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motor carriers of passengers); id. § 14501(b)(1) (pre-emption of
state regulations relating to freight forwarders and brokers); id.
§ 14501(d)(1) (pre-emption of state regulations relating to prearranged ground transportation); id. § 41713 (pre-emption of state
regulations relating to air carriers).
Congress enacted such a pre-emption provision as part of
the FAAAA:
Except as provided in paragraphs (2) and (3),
a State, political subdivision of a State, or
political authority of 2 or more States may
not enact or enforce a law, regulation, or
other provision having the force and effect of
law related to a price, route, or service of
any motor carrier (other than a carrier
affiliated with a direct air carrier covered
by section 41713(b)(4)) or any motor private
carrier, broker, or freight forwarder with
respect to the transportation of property.
Id. § 14501(c)(1).

"Motor carrier" is defined as "a person

providing motor vehicle transportation for compensation."

Id.

§ 13102(14).
In enacting this provision, Congress found that state
regulation of intrastate transportation of property had "imposed an
unreasonable

burden

on

interstate

commerce,"

as

well

as

"an

unreasonable cost on the American consumers," and thus "certain
aspects of the State regulatory process should be preempted."
FAAAA § 601(a), 108 Stat. at 1605. The conference report explained
that "preemption legislation is in the public interest as well as
necessary

to

facilitate

interstate

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commerce.

State

economic

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regulation

of

motor

inefficiencies,

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carrier

increased

Date Filed: 01/20/2012

operations

costs,

causes

reduction

of

Entry ID: 5612159

significant
competition,

inhibition of innovation and technology and curtails the expansion
of markets."

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

This federal pre-emption provision relating to motor
carriers is substantially identical to a provision pre-empting
state regulation

of

air

carriers

enacted in

1978,

49

U.S.C.

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

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

n.4 (1st Cir. 2011), cert. denied, No. 11-221, 2011 WL 3794274
(U.S. Nov. 28, 2011).

These pre-emption provisions are "broad but

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

Id.

at 86.
II.
The MDA is a non-profit trade organization formed to
support businesses involved in the delivery service industry.

The

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

same-day

delivery

services

and

often

engage

delivery

drivers they consider to be independent contractors.
The MDA brought suit against Martha Coakley, the Attorney
General of Massachusetts, in her official capacity, on September 7,

4

Apparently, the MDA has not publicly disclosed a list of
its members, but it represents that it has forty-plus members, and
the Attorney General does not dispute this representation. See
Mass. Delivery Ass'n v. Coakley, 797 F. Supp. 2d 164, 169 (D. Mass.
2011).
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The complaint, as amended, alleges that § 148B(a)(2) would

require delivery companies to classify their drivers as employees,
rather than independent contractors, and that this would have a
variety of dramatic effects on the operations of the delivery
companies' businesses, including driving some out of business and
increasing costs to consumers.

The MDA alleges that subsection

(a)(2) of the state law is pre-empted under the FAAAA and the
Supremacy Clause.
In a separate theory of unconstitutionality, the MDA's
complaint also alleges that the relevant portion of the statute
imposes an undue burden on interstate commerce, in violation of the
Commerce Clause.

The complaint requests a declaratory judgment

that subsection (a)(2) of the Massachusetts law is pre-empted by
the FAAAA and the Commerce Clause with respect to motor carriers
engaged

in

interstate

commerce,

and

a

permanent

injunction

preventing the Attorney General from enforcing that prong in the
future with respect to such motor carriers.
On October 22, 2010, the Attorney General filed a motion
to dismiss the complaint on the basis of Younger abstention.

The

crux of the Attorney General's argument was that three businesses
which are MDA members were defendants in ongoing state civil suits
brought by private parties under § 148B,5 and that the MDA was an

5

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

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ego"

of

these

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defendants.

Date Filed: 01/20/2012

The

MDA,

it

is

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alleged,

impermissibly sought to open a "second front" on the pre-emption
question, and as a result Younger abstention was required.
The parties agree that there is no state litigation
against the MDA on this issue and that the three state suits are
the only ongoing state proceedings involving any of the MDA's
members.

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

president) is the president and director of City Express, an entity
which is one of the state-court defendants.
The
independent
inapplicable.

MDA

opposed

arguments

as

the
to

motion,
why

raising

Younger

a

variety

abstention

of
was

The first several arguments, which revolve around

the postures and the parties in this and in the state suits, are
that (1) Younger does not apply where the state suits are civil
actions brought by private parties, (2) the relief sought by the
MDA would not substantially interfere with the ongoing state
proceedings, (3) the MDA is not a party to any ongoing state
proceedings, and is not sufficiently closely related to any such

Cnty. Super. Ct., filed May 26, 2010); Reynolds v. World Courier
Ground, Inc., NOCV 2010-00914 (Norfolk Cnty. Super. Ct., filed May
14, 2010). There are also a variety of other state suits against
motor carriers that are not MDA members which have been brought
under § 148B. See, e.g., Oliveira v. Advanced Delivery Sys., Inc.,
27 Mass. L. Rep. 402, 2010 WL 4071360 (Mass. Super. Ct. July 16,
2010); Derochers v. Staples, Inc., 28 Mass. L. Rep. 261, 2010 WL
6576214 (Mass. Super. Ct. June 8, 2010); Fucci v. E. Connection
Operating, Inc., No. 2008-2659, 2009 Mass. Super. LEXIS 421 (Mass.
Super. Ct. Sept. 21, 2009).
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party to be treated as the same for Younger purposes, and (4) the
MDA is neither required to nor would it have any opportunity to
raise its pre-emption challenge in the state suits.

In addition,

the MDA makes other arguments: (5) the Commonwealth's interest in
the state suits is insufficient to justify Younger abstention, (6)
because it is "readily apparent" that § 148B is pre-empted, an
exception to Younger applies, and (7) the penalties imposed for
violations of § 148B provide another exception to Younger.
The district court granted the Attorney General's motion
to dismiss on Younger grounds.
2d at 176.

Mass. Delivery Ass'n, 797 F. Supp.

The MDA appealed.
III.
Our

review

of

whether

abstention are met is de novo.6

the

conditions

for

Younger

Rio Grande Cmty. Health Ctr., Inc.

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

The issues raised here

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

6

R.I.

The district court noted that there is some dispute among
the district courts in this circuit as to whether a Younger motion
to dismiss is properly viewed as a Rule 12(b)(1) motion to dismiss
for lack of subject-matter jurisdiction, or a Rule 12(b)(6) motion
to dismiss for failure to state a claim. Mass. Delivery Ass'n, 797
F. Supp. 2d at 168 n.2. A primary difference between the two is
that, under Rule 12(b)(1), the district court may weigh the
evidence and make factual determinations, if necessary, to
determine whether it has jurisdiction to hear the case.
Torres-Negrón v. J & N Records, LLC, 504 F.3d 151, 163 (1st Cir.
2007). Here, however, the district court did not engage in any
weighing of the evidence, but rather based its decision on the
undisputed facts, namely the complaint and certain public
documents. Mass. Delivery Ass'n, 797 F. Supp. 2d at 168 n.2. As
a result, we need not resolve this question here.
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Hospitality Ass'n v. City of Providence, No. 11-1415, 2011 WL
6004385, at *3 (1st Cir. Dec. 2, 2011) (to be published in F.3d).
A.

Overview of Younger Abstention
The normal rule is that the federal courts must exercise

their jurisdiction and decide cases brought before them.

See,

e.g., Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996)
("We have often acknowledged that federal courts have a strict duty
to

exercise

the

jurisdiction

that

is

conferred

upon

them

by

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

See generally id. at 716-17 (describing the

various types of abstention, including Younger abstention).

The

doctrine is judicially created and takes its name from Younger v.
Harris, a case involving an underlying state criminal prosecution
against a defendant who then filed suit in federal court to attack
the state statute on which his criminal prosecution was brought.
401 U.S. at 38-39.
The Younger doctrine reflects a "longstanding public
policy

against

federal

court

interference

with

state

proceedings," and is based on two conceptual foundations.
43.

court
Id. at

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

not act, and particularly should not act to restrain a criminal
prosecution, when the moving party has an adequate remedy at law
and will not suffer irreparable injury if denied relief."
43-44.

Id. at

This concern applies to injunctive relief and also, at

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least typically, to requests for declaratory relief, where the same
parties are involved and the federal plaintiff is a state-court
party. See Samuels v. Mackell, 401 U.S. 66, 73 (1971) ("Ordinarily
. . . the practical effect of the two forms of relief will be
virtually identical . . . ."); Rio Grande, 397 F.3d at 70-71.
Second, and more importantly, Younger rests upon basic notions of
federalism and comity, and also on a related desire to prevent
unnecessary duplication of legal proceedings. Younger, 401 U.S. at
44.
Younger abstention has extended far beyond its original
roots of non-interference with state criminal prosecutions.

In

Middlesex County Ethics Committee v. Garden State Bar Ass'n, 457
U.S. 423, 432 (1982), the Court set forth three general guidelines,
which we have since described in a series of cases: Younger applies
"when the requested relief would interfere (1) with an ongoing
state judicial proceeding; (2) that implicates an important state
interest; and (3) that provides an adequate opportunity for the
federal plaintiff to advance his federal constitutional challenge."
Rossi v. Gemma, 489 F.3d 26, 34-35 (1st Cir. 2007).
The

question

"threshold issue."

of

whether

"interference"

exists

is

a

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

("Younger applies only when the relief asked of the federal court
'interfere[s]'

with

the

state

proceedings."

(alteration

in

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

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Tucson,

255

(explaining

F.3d
that

1086,

Page: 15

1093-94

Younger

requires

Date Filed: 01/20/2012

(9th
not

Cir.
only

Entry ID: 5612159

2001)

(en

banc)

that

the

three

guidelines be satisfied, but also that "the federal relief sought
would interfere in some manner in the state court litigation"),
limited by Gilbertson v. Albright, 381 F.3d 965 (9th Cir. 2004) (en
banc).
The first prong, that there must be an "ongoing state
judicial proceeding," in actuality involves assessment of a complex
of issues. The proceeding must be "judicial in nature," as opposed
to, for instance, legislative proceedings. New Orleans Pub. Serv.,
Inc. v. Council of New Orleans (NOPSI), 491 U.S. 350, 370 (1989).
Even then, Younger does not extend to all judicial proceedings.
While the doctrine originated in the context of ongoing criminal
proceedings, see Younger, 401 U.S. at 38-39, it has been extended
by

the

Court

to

only

two

types

of

civil

proceedings:

(1)

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

Ltd.,

420

U.S.

592,

604

(1975)

(explaining

that

a

state-initiated nuisance proceeding "is more akin to a criminal
prosecution than are most civil cases"), and (2) civil actions
involving "administration of a State's judicial system," Juidice v.
Vail,

430

U.S.

327,

335

(1977),

such

as

a

court's

contempt

proceedings, id., and the ability to enforce a valid state-court
judgment, Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 13 (1987).

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Moreover,

the

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state

Date Filed: 01/20/2012

judicial

proceeding

Entry ID: 5612159

must

be

"ongoing," which involves an assessment of which suits were filed
when, and how far along those suits have progressed.

See Hicks v.

Miranda, 422 U.S. 332, 349 (1975) (holding that even where a
federal suit is filed first, if the state suit is brought before
"any proceedings of substance on the merits have taken place in the
federal court, the principles of Younger v. Harris should apply in
full force").
Importantly, Younger does not typically apply where the
federal-court plaintiff is not itself a party to the state-court
proceedings.

The Supreme Court made this clear in Doran v. Salem

Inn, Inc., 422 U.S. 922, 928-29 (1975), where it held that while
two corporations (who were not state-court defendants) had similar
interests and were somewhat related to a third corporation which
was a state-court defendant, the two were not barred by Younger
from bringing suit.
The
proceedings

second

"implicate

prong

requires

important

state

that

the

interests."

state-court
Middlesex

Cnty., 457 U.S. at 432. This too may involve subsidiary inquiries,
which we need not explore here.

The third prong requires that

there be "an adequate opportunity in the state proceedings to
raise" the federal issue.

Id.

Even if all these requirements are met, and they have not
been here, abstention is still not proper in certain "extraordinary

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circumstances" or "unusual situations."

Entry ID: 5612159

Younger, 401 U.S. at

53-54. The Supreme Court has indicated that a "facially conclusive
claim" of pre-emption is "[p]erhaps" such an exception to the
Younger doctrine.

NOPSI, 491 U.S. at 367.

We have held that such

a facially conclusive claim is a valid exception.

Colonial Life &

Accident Ins. Co. v. Medley, 572 F.3d 22, 26 (1st Cir. 2009)
(citing Chaulk Servs., Inc. v. Mass. Comm'n Against Discrimination,
70 F.3d 1361, 1370 (1st Cir. 1995)), cert. denied, 130 S. Ct. 1059
(2010).
B.

We need not get into this branch of the analysis here.
Application of Younger
We conclude that Younger does not permit the state

Attorney General to succeed in this attempt to preclude federal
court examination of the constitutionality of a state statute. The
MDA has a right to pursue its suit in federal court.
The Attorney General pushes the Younger doctrine further
than the Supreme Court or this court has ever extended it.

While

it is not an absolute that because the MDA is not a party to the
state-court proceedings it may not be subjected to Younger, it
would be an unjustified extension of Younger to treat the MDA as if
it were such a party.

At the very least, such an extension of

Younger cannot be justified because there is no interference.

Our

holding is also consistent with the caselaw of the other circuits.
To the extent the circuits have permitted non-parties to state
proceedings to nevertheless be subject to Younger under some

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circumstances, those circumstances are not present here.

For

related reasons specified below, federal court adjudication of this
suit would not interfere with the ongoing state proceedings.

We

need not address the other arguments the MDA makes.
1.

Younger's Application to Non-Parties to the StateCourt Proceedings

The Attorney General's argument is based on the premise
that the MDA and any of its individual members should be treated,
for Younger purposes, as standing in each other's shoes.
Distinct parties are typically treated separately for
purposes of Younger abstention.
Thompson, 415 U.S. 452 (1974).

This is illustrated by Steffel v.
There, the Court held that when two

protesters were warned to discontinue handbilling or they would be
arrested, and one continued and was arrested and prosecuted, and
the other was not arrested but could fear prosecution, the latter
could maintain a federal suit and was not barred by Younger.

The

Court explained that "[t]he pending prosecution of petitioner's
handbilling companion does not affect petitioner's action for
declaratory relief."
with

the

tradition

Court's

Id. at 471 n.19.

statement

that everyone

about

should

This conclusion accords

"our

have

his

'deep-rooted
own

day

in

historic
court,'"

Richards v. Jefferson County, Alabama, 517 U.S. 793, 798 (1996)
(quoting 18 Wright & Miller, Federal Practice and Procedure,
§ 4449, at 417 (1981)), and the principle that federal court
abstention

from

the

exercise

of
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"remains 'the exception, not the rule,'" NOPSI, 491 U.S. at 359
(quoting Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 236 (1984)).
The Supreme Court has addressed in two cases whether
distinct but very closely related parties should be treated the
same for purposes of Younger abstention, but those cases do not
lead us to extend Younger to the circumstances presented here. See
Hicks v. Miranda, 422 U.S. 332 (1975); Doran v. Salem Inn, Inc.,
422 U.S. 922 (1975).
In

Hicks,

two

employees

of

an

adult

business

were

prosecuted for showing an obscene movie, and several of the obscene
tapes were seized from the business.

422 U.S. at 335-36.

The

Court found that the business whose employees were criminally
prosecuted was barred from bringing suit by Younger, as the federal
suit would have interfered with the state criminal prosecution,
id. at 348, but its reasons do not establish the principle the
Attorney General advances.

It is true the Court stated the

business "had a substantial stake in the state proceedings, so much
so that they sought federal relief, demanding that the state
statute be declared void and their films be returned to them.
Obviously, their interests and those of their employees were
intertwined; and, as we have pointed out, the federal action sought
to interfere with the pending state prosecution."

Id. at 348-49.

Even if this were dicta, as it may be for the reasons we describe,
such dicta is given weight.

See, e.g., SEC v. Rocklage, 470 F.3d

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

on

with

great

deference.").

Immediately

after

this

discussion, the Court identified an independent ground for finding
the business subject to Younger: that the state had, subsequent to
the filing of the federal suit, initiated criminal proceedings
against the business, and that in such circumstances Younger should
apply, as no "proceedings of substance on the merits [had] taken
place in the federal court."

Hicks, 422 U.S. at 349.

Hicks must be understood in the context of Doran, which
was decided six days later.

There, three corporations operated

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

422 U.S. at 924-25.

The Court found that the

corporation which the state criminally prosecuted could not bring
suit due to Younger.

Id. at 929.

More significantly for our

purposes, the Court found that the other two corporations, who had
similar, perhaps even identical interests, could bring suit and
Younger did not apply.

Id. at 931.

The Court explained:

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

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Id. at 928-29.
As a second reason not to engage in Younger abstention,
the Doran Court explained that neither declaratory nor injunctive
relief could interfere "with enforcement of contested statutes or
ordinances

except

with

respect

to

the

particular

federal

plaintiffs, and the State is free to prosecute others who may
violate the statute."

Id. at 931.

Doran makes clear that an alignment of interests among
similar but distinct parties is not per se enough, even when the
state proceeding is a criminal prosecution and so the state's
interest in non-interference is at its height.
were not

barred

from

pursuing

a

federal

If two businesses

suit

despite

having

interests and representation in common with a state-court criminal
defendant, as was the case in Doran, it is difficult to see how an
industry association with some interests in common with a few of
its members who are state-court civil defendants would be barred by
Younger from pursuing its own federal suit.

Doran explained that

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

same

before

they

may

all

"be

subject

considerations which govern any one of them."

to

the

Younger

Id. at 928.

There is no doubt that the MDA is legally distinct from
its members, each complying with the formalities established by
state law.

The MDA and each of its members have their own

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

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the members, but which may not be the same.

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Some members may have

interests distinct from or even adverse to other members.

It is

likely that the MDA is responsive to a majority of its members,
when there are different views.

And here, not even a majority is

involved in the state-court suits against three members.

Only a

small fraction -- three out of over forty -- of its members are
involved in the state court proceedings where § 148B is at issue.
Those of its members who are not involved in such proceedings have
an interest in a determination of whether § 148B is pre-empted, and
the complaint so alleges. The complaint alleges that because "many
MDA members engage independent contractor delivery drivers or
contract with entities that engage independent contractor delivery
drivers, they arguably violate the Statute and this places them in
peril of

an

enforcement action

and

civil

actions

by

private

nor

Doran,

parties."
Under

these

circumstances,

neither

Hicks

justifies treating the MDA the same as its members who are statecourt defendants for Younger purposes.

Hicks involved (1) a close

employer-employee relationship between the federal-court plaintiff
and state-court defendant, (2) a particular piece of property at
issue in both proceedings, and (3) a federal action that "sought to
interfere with the pending state prosecution." 422 U.S. at 348-49.
Here, none of those circumstances is present: there is no such

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relationship, no particular piece of property at issue, and, as is
explained below, no risk of interference.
Some

circuits

applying

Hicks

have

found

Younger

applicable to non-parties where the federal-court plaintiff's right
was "derivative" of the right of a state-court defendant, finding
the

interests

circumstances.

of

the

parties

to

be

"intertwined"

in

such

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

App'x 630, 635 (6th Cir. 2005) ("Younger abstention may also be
appropriate for non-parties to the state action when '[s]uccess on
the merits . . . is entirely derivative' of the rights of the state
action parties." (alterations in original) (quoting Spargo v. N.Y.
State Comm'n on Judicial Conduct, 351 F.3d 65, 83 (2d Cir. 2003));
D.L. v. Unified Sch. Dist. No. 497, 392 F.3d 1223, 1230 (10th Cir.
2004) ("[W]hen in essence only one claim is at stake and the
legally distinct party to the federal proceeding is merely an alter
ego of a party in state court, Younger applies."); Spargo, 351 F.3d
at 83 (Younger applies where the federal-court plaintiff's claim is
"entirely derivative of whatever rights that" the state-court
defendant may have (internal quotation mark omitted)); Stivers v.
Minnesota, 575 F.2d 200, 203 (8th Cir. 1978) (Younger applies to
non-party

where

demonstrated

.

"[t]he
.

.

only

arises

[federal-court]
from

the

standing

.

impact"

of

alleged

challenged action on the state-court defendants).

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.

.

the

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We need not comment on whether we agree these cases were
properly decided, as even assuming they were, their rationale does
not apply here.

As explained above, the MDA members who are not

state court defendants -- the vast majority of MDA's members -have an interest in determining the constitutionality of the state
law.

The MDA itself has a distinct interest in challenging the

Ordinance.7

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

entirely derived from those of its members who are state-court
defendants, and this line of cases does not justify applying
Younger here.
Doran also does not extend to the circumstances present
here.

There,

the

Court

stated

that

there

"may

be

some

circumstances" where parties are "so closely related" in terms of
"ownership, control, and management" to be treated the same for
Younger purposes.

422 U.S. at 928-29.

The MDA and its members,

who are state-court defendants, on the facts present here are not
"so closely related" to justify treating them the same under
Younger: only a small fraction of MDA members are state-court

7

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

and

the

Page: 25

Attorney

Date Filed: 01/20/2012

General

makes

no

Entry ID: 5612159

claim

of

any

substantial ownership, management, or control between the statecourt defendants and the MDA.
Indeed, those circuits to have applied Doran to nondefendants have only found organizations to be sufficiently closely
related if the degree of ownership, management or control is
substantial and involves at least a majority interest.

See Cedar

Rapids Cellular Tel., L.P., v. Miller, 280 F.3d 874, 882 (8th Cir.
2002) (applying Younger to a non-party in whom a state-court
defendant had "a controlling interest"); Warmus v. Melahn, 62 F.3d
252, 256 (8th Cir. 1995) (applying Younger where the non-party
individual was the "beneficial owner, officer and director" of the
state-court defendant corporation), vacated on other grounds, 517
U.S. 1241 (1996).
Not all circuits agree with even that formulation.

See

Bickham v. Lashof, 620 F.2d 1238, 1244 (7th Cir. 1980) (finding the
interests of a corporation, which was the state-court defendant,
and "its sole shareholder" to be insufficiently intertwined to
justify applying Younger to the shareholder).
We need not decide whether we agree with the first line
of cases because no such ownership or control relationship is
present here.8

8

The Attorney General attempts to characterize the MDA as
the "alter ego" of its three individual members, borrowing the
phrase from other legal doctrines. It is questionable whether it
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Further, the one circuit which has addressed a more
analogous situation has held that Younger does not apply in such
circumstances.

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

County, 488 F.2d 1353, 1360-61 (2d Cir. 1973) (holding that Younger
does not bar an organization's challenge to anti-solicitation
ordinances notwithstanding pending proceedings against its members
because

the

organization's

interests

lie

in

the

future

applicability of the ordinances).
Significantly,

the

circuits

are

in

accord

that

the

application of Younger to non-parties is proper only in certain
limited, exceptional circumstances.

See Spargo, 351 F.3d at 84

("[T]his case presents one of the narrow circumstances in which
Younger may properly extend to bar claims of third-parties who are
not directly involved in the pending state action."); Green, 255

is appropriate to lift this concept from other areas of law, where
it serves different purposes, and use it in abstention cases. Even
if the alter ego concept were easily transferable to abstention, it
would not be met here.
The MDA has not assumed the on-going
expectations of a predecessor employer, and the question here is
not the labor law question of whether in consequence the MDA has
assumed obligations to employees. See NLRB v. Hosp. San Rafael,
Inc., 42 F.3d 45, 50 (1st Cir. 1994) (describing the labor law
alter ego doctrine, whereby an employer will be treated
interchangeably with its predecessor for purposes of applying labor
laws, typically when the new employer is "created by the owners of
the first for the purpose of evading labor law responsibilities").
Nor would the MDA be considered an alter ego of its members for
purposes of piercing the corporate veil, which typically requires,
among other elements, "pervasive control" over, In re Ontos, Inc.,
478 F.3d 427, 432 (1st Cir. 2007), or "complete domination" of,
Goya Foods, Inc. v. Unanue, 233 F.3d 38, 43 (1st Cir. 2000), the
supposed alter ego by other entities.
The traditional legal
definitions and uses of the alter ego doctrine do not apply here.
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F.3d at 1100 (explaining that Younger applies to non-parties in
"quite limited circumstances"); Harmon v. City of Kansas City, Mo.,
197

F.3d

321,

325-26

(8th

Cir.

1999)

(Younger

may

apply

to

non-parties in "extraordinary circumstances"); United States v.
Composite State Bd. of Med. Exam'rs, 656 F.2d 131, 137 (5th Cir.
Unit B 1981) ("[A]bstention bars prospective relief to a person not
a party to the state action only in the extraordinary situation in
which

the

interests

of

the

state

defendant

and

the

federal

plaintiff are so 'intertwined' as to be considered identical.");
Robinson v. Stovall, 646 F.2d 1087, 1090 (5th Cir. Unit A 1981)
("Except in extraordinary circumstances, a civil rights plaintiff's
ability to sue to vindicate his rights in federal court is not
affected by the simultaneous pendency of a state prosecution
against someone else . . . .").
In sum, neither the Supreme Court nor the other circuits
have extended Younger abstention to these facts.9

Nor do the

rationales provided by the Court in Hicks and Doran justify the

9

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

extend

Younger's

application

to

non-parties

to

such

circumstances,10 and such a result would go beyond the outer limits
to which the other circuits have extended Younger.

What is

conclusive is that in these circumstances the Younger interference
requirement has not been met.
2.

Lack of Interference

It is also clear on these facts that there is no real
risk of interference with the three ongoing private civil actions
in the state courts.

Younger abstention is based, in large

measure, on the "seriousness of federal judicial interference with"
ongoing state-court proceedings.

Huffman, 420 U.S. at 603; accord

Maymó-Meléndez v. Álvarez-Ramírez, 364 F.3d 27, 31 (1st Cir. 2004)
("Younger is . . . built around the principle that . . . federal
courts should refrain from issuing injunctions that interfere with
ongoing state-court litigation . . . .").

As a result, where

"neither declaratory nor injunctive relief can directly interfere"
with the ongoing state proceedings, there is no basis for Younger
abstention.

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

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

10

In the context of res judicata, the Court has recently
cautioned against lumping together distinct parties for purposes of
claim and issue preclusion, rejecting the "virtual representation"
doctrine. Taylor v. Sturgell, 553 U.S. 880, 885 (2008). The Court
made clear that non-parties are bound only in certain "limited
circumstances." Id. at 898 (quoting Martin v. Wilks, 490 U.S. 755,
762 n.2 (1989)).
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court 'interfere[s]' with the state proceedings." (alteration in
original) (quoting Quackenbush, 517 U.S. at 716)); Green, 255 F.3d
at 1096 ("The Supreme Court has . . . confirmed that 'interference'
with ongoing state judicial proceedings is a necessary condition
for Younger abstention.").

Interference is "usually expressed as

a proceeding that either enjoins the state proceeding or has the
'practical effect' of doing so."

Rio Grande, 397 F.3d at 70.

Nothing in the MDA's requested relief would interfere
with the three state-court proceedings involving its members.

The

prospective

the

injunctive

relief

sought

pertains

solely

to

Attorney General, and would only preclude the Commonwealth, not
private parties, from bringing suit under § 148B(a)(2) with respect
to motor carriers engaged in interstate commerce.11
The declaratory relief sought would also not cause any
interference with the state-court proceedings. It is true that the
MDA seeks a general declaration that subsection (a)(2) is preempted

with

commerce.

respect

to

motor

carriers

engaged

in

interstate

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

invoke Younger. In Steffel and in Doran, the outcomes of the
federal suits would create judicial precedent which might or might

11

If the Attorney General brought such an action in
contravention of the injunction, then the usual proceedings
provided for when a party has violated an injunction would be
available in the district court. Additionally, the defendant may
be able to raise the injunction as a defense in the state court
action.
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not coincide with the determinations made by the state courts as to
other parties under the same state statutes.

That did not warrant

Younger abstention.
Indeed, the Court in NOPSI made clear that even though
"the federal court's disposition of such a case may well affect, or
for practical purposes pre-empt, a future -- or, as in the present
circumstances, even a pending -- state-court action," such an
effect was insufficient to give rise to Younger abstention.

491

U.S. at 373; see also Rio Grande, 397 F.3d at 71 ("[T]he mere
possibility of inconsistent results in the future is insufficient
to

justify

Younger

abstention.");

Green,

255

F.3d

at

1097

(explaining that "the 'mere potential for conflict in the results
of adjudications,' is not the kind of 'interference' that merits
federal court abstention" (quoting Colo. River Water Conservation
Dist. v. United States, 424 U.S. 800, 816 (1976))).
Beyond

that,

interference here.

there

is

another

reason

there

is

no

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

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

are

free

to

rely

on

adjudicating federal claims."

the

opinions

of

such

courts

when

Evans v. Thompson, 518 F.3d 1, 8

(1st Cir. 2008) (citing Lockhart v. Fretwell, 506 U.S. 364, 376
(1993) (Thomas, J., concurring)); accord Steffel, 415 U.S. at 482
n.3

(Rhenquist,

J.,

concurring)

(explaining

that

a

federal

declaratory judgment "would not be accorded the stare decisis

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effect in state court that it would have in a subsequent proceeding
within the same federal jurisdiction.

Although the state court

would not be compelled to follow the federal holding, the opinion
might, of course, be viewed as highly persuasive."); Magouirk v.
Phillips, 144 F.3d 348, 361 (5th Cir. 1998) ("[T]he Louisiana state
courts are not bound by Fifth Circuit precedent when making a
determination of federal law."); Bromley v. Crisp, 561 F.2d 1351,
1354 (10th Cir. 1977) (en banc) (holding that state courts "may
express their differing views on the retroactivity problem or
similar federal questions until we are all guided by a binding
decision of the Supreme Court"); United States ex rel. Lawrence v.
Woods, 432 F.2d 1072, 1076 (7th Cir. 1970) ("[B]ecause lower
federal

courts

exercise

no

appellate

jurisdiction

over

state

tribunals, decisions of lower federal courts are not conclusive on
state courts."); Owsley v. Peyton, 352 F.2d 804, 805 (4th Cir.
1965) ("Though state courts may for policy reasons follow the
decisions of the Court of Appeals whose circuit includes their
state, they are not obliged to do so." (citation omitted)).12

12

Nothing in the Federal Declaratory Judgment Act changes
this: the Act simply provides that, where there is an "actual
controversy within [a federal court's] jurisdiction," the court may
"declare the rights and other legal relations of any interested
party seeking such declaration," and that "[a]ny such declaration
shall have the force and effect of a final judgment or decree and
shall be reviewable as such." 28 U.S.C. § 2201(a). The Act does
not contain any provisions indicating that declaratory judgments
are authoritative vis-à-vis nonparties to the litigation. In fact,
the Act indicates it may only declare the rights of "interested
part[ies] seeking [the] declaration." Id. The Supreme Court, in
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As a matter of state law, Massachusetts state courts do
not regard the pronouncements of lower federal courts as binding.
ACE Prop. & Cas. Ins. Co. v. Comm'r of Revenue, 770 N.E.2d 980, 986
n.8 (Mass. 2002) ("Although we are not bound by decisions of
Federal courts (other than the United States Supreme Court) on
matters of federal law, 'we give respectful consideration to such
lower Federal court decisions as seem persuasive.'" (citation
omitted) (quoting Commonwealth v. Hill, 385 N.E.2d 253, 255 (Mass.
1979))); Commonwealth v. Montanez, 447 N.E.2d 660, 661 (Mass. 1983)
("Though we always treat their decisions with deference, we are not
bound by decisions of Federal courts except the decisions of the
United States Supreme Court on questions of Federal law.").

Thus,

should the district court issue a declaratory judgment on remand
finding the state statute pre-empted, that judgment would not be
binding on Massachusetts state courts and litigation by private
parties may proceed.

That said, a defendant may seek to enforce

the declaratory judgment in federal court should the Attorney
General continue to bring actions under the statute in state court
despite the declaratory judgment.

upholding the constitutionality of this Act, made clear that its
operation is "procedural only," Aetna Life Ins. Co. of Hartford,
Conn. v. Haworth, 300 U.S. 227, 240 (1937), and that declaratory
judgments are only proper "[w]here there is such a concrete case
admitting of an immediate and definitive determination of the legal
rights of the parties," id. at 241.
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The Attorney General does not argue that a federal
decision could result in collateral estoppel effects that would
amount to interference with the state proceedings.

Even if such

collateral estoppel effects were present, they would not suffice to
justify Younger abstention.

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

res judicata effects of federal actions on state actions . . . are
of course not enough to trigger Younger.").
Given this lack of any interference with the state-court
proceedings, Younger abstention is inapplicable.13

13

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

We reverse the judgment of

the district court and remand for further proceedings consistent
with this opinion.

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