Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-5-1994

O'Neill v. City of Philadelphia
Precedential or Non-Precedential:

Docket 93-1378




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          UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT

                    ----------

                   No. 93-1378

                    ----------

                 JOHN O'NEILL;
         SAMUEL R. GOODMAN, on behalf
of themselves and all others similarly situated

                        v.

             CITY OF PHILADELPHIA;
        PHILADELPHIA PARKING AUTHORITY;
       OFFICE OF THE DIRECTOR OF FINANCE;
BUREAU OF ADMINISTRATIVE OFFICE OF ADJUDICATION

     City of Philadelphia, Office of The Director of
Finance and Bureau of Administrative Adjudication,

                        Appellants

                    ----------

On Appeal from the United States District Court
   for the Eastern District of Pennsylvania
           (D.C. Civil No. 91-06759)

                    ----------

             Argued October 28, 1993

BEFORE:   ROTH, LEWIS and GARTH, Circuit Judges

                    ----------

          (Opinion filed August 5, 1994)

                    ----------


                 Judith E. Harris
                 Michael F. Eichert (Argued)
                 Office of City Solicitor
                 1600 Arch Street, 8th Floor


                        1
                         Philadelphia, Pennsylvania    19103-1628

                         Attorneys for Appellants City of
                         Philadelphia, Office of The Director
                         of Finance, Bureau of Administrative
                         Administrative Office of Adjudication

                          Andrew F. Mimnaugh
                          1420 Locust Street
                          Suite 15-N
                          Philadelphia, Pennsylvania     19102

                          Vincent J. Ziccardi (Argued)
                          1435 South Broad Street
                          Philadelphia, PA 19147

                          Attorneys for Appellees
                          John O'Neill and Samuel R. Goodman



                             ----------

                        OPINION OF THE COURT

                             ----------



GARTH, Circuit Judge:
          This appeal requires us to determine whether the

federal courts must entertain a constitutional challenge to the
City of Philadelphia's parking ticket procedures -- procedures

that resulted in the imposition of a $45 fine against plaintiff-

appellee John O'Neill, which remains unpaid, and a $173 fine

against plaintiff-appellee Samuel Goodman, which was paid.       We

hold that the district court should have exercised its discretion

to abstain, rather than to decide the constitutionality of

Philadelphia's ticketing procedures.   Thus, we will vacate the

district court's judgment and remand with instructions that the

district court dismiss the plaintiffs' complaint.


                                2
                                I

          John O'Neill ("O'Neill") and Samuel Goodman ("Goodman")

brought suit in federal district court against the City of

Philadelphia, the Philadelphia Parking Authority, the Office of

the Director of Finance, and the Bureau of Administrative Office

of Adjudication (collectively, the "City"), alleging that the

City's reorganization of its system for adjudicating parking

tickets violated their constitutional rights, and the

constitutional rights of similarly situated plaintiffs.   On March

29, 1993, the district court granted summary judgment in favor of

the plaintiffs on their due process claim, vacating the City's

$45 fine against O'Neill, and entering judgment in the amount of

$173 in favor of Goodman.   O'Neill v. City of Philadelphia, 

(E.D. Pa. 1993).

          Although the district court declined the City's

invitation to abstain from exercising jurisdiction over this

action, id at 562 n.8, and despite the City's failure to protest

the district court's abstention determination on appeal, we asked

the parties to submit supplemental briefs addressing the question

of whether the district court properly should have abstained from

entertaining the plaintiffs' claims under the abstention doctrine

announced by the Supreme Court in Younger v. Harris, 

(1971), and its progeny.0

0
          Even though the question of Younger abstention was not
raised by the parties on appeal, we may consider it sua sponte.


                                3
          We conclude that the district court abused its

discretion in refusing to abstain under Younger and in reaching

the merits of O'Neill and Goodman's due process claim.



                               II

                               A.

          Prior to June 1, 1989, the "Traffic Court of

Philadelphia" had original jurisdiction to adjudicate parking

violations committed in the City of Philadelphia.   42 Pa. Cons.



Bellotti v. Baird, 

, 143-44 n.10 (1976); McLaughlin
v. Pernsley, 

, 314 n.5 (3d Cir. 1989); Blake v.
Kline, 

, 727 (3d Cir. 1979). Cf. Winston v. Children
and Youth Servs., 

, 1384-85 (3d Cir. 1991)
(declining to address question of abstention where defendants
failed to preserve the issue for appellate review). But see 

(Garth, J., dissenting) (citing cases holding that
failure to file a cross appeal did not preclude Court of Appeals'
consideration of particular issues).
          In addition, we note somewhat surprisingly that we are
not the first federal Court of Appeals to focus on the Younger
problems that arise when parking tickets are challenged in § 1983
actions. In a case similar to the one before us on appeal, the
Seventh Circuit decided that Younger abstention was appropriate
where the federal claimant had initiated a federal action instead
of contesting his numerous parking violations in the available
state forum. Jacobson v. Village of Northbrook Mun. Corp., 

(7th Cir. 1987). See also Horn v. City of Chicago, 

, 702 n.5 (7th Cir. 1988) (reversing district court's
holding that parking ticket demand notices issued by the City of
Chicago violated the plaintiffs' due process rights and seriously
questioning district court's conclusion that Younger abstention
was not appropriate); Ballard v. Wilson, 

(5th Cir.
1988) (holding that Younger precluded consideration of claims for
injunctive and declaratory relief while state criminal
prosecutions were pending against Ballard on his thirty-six
violations of the City of Houston's overtime parking ordinance);
Friedman v. Beame, 

(2d Cir. 1977) (recognizing, but
refusing to decide, Younger issue in action challenging City of
New York's parking regulations).


                               4
Stat. Ann. §§ 1302 and 1321.   Appeals from the traffic court's

decisions were heard by the Pennsylvania Court of Common Pleas.

           In 1989, the Philadelphia City Council reorganized the

City's system for adjudicating parking tickets by enacting an

ordinance which authorized the Office of the Director of Finance

to assume control over the regulation and disposition of parking

violations in the City of Philadelphia.   12 Phila. City Code

§ 12-2802(1).   Under the new framework, a parking ticket is

affixed to the vehicle, 

and the owner of the

ticketed vehicle is sent a notice by first class mail.   

2805(1).   The person to whom the ticket is issued has fifteen

days to answer it, either admitting the violation by payment of

the fines, costs, and fees, admitting with explanation, or

denying liability and requesting a hearing.   

2806(1).        A

failure to answer or to pay the fine will result in a Bureau of

Administrative Adjudication ("BAA")0 hearing examiner's entering

an order by default sustaining the charges, fixing the

appropriate fine, and assessing appropriate costs and fees.     

2807(3).

           When the violation is contested, and a hearing is

requested, a BAA hearing examiner holds a hearing and determines

whether the charges have been established.    

2807.    Once

the hearing examiner has entered his decision, the violator has


0
           Regulations adopted by the Director of Finance created
the Bureau of Administrative Adjudication for the purpose of
exercising the duties and powers enumerated in chapter 12-2800 of
the Philadelphia City Code, the chapter added by the 1989
ordinance.


                                5
thirty days to file an appeal to the BAA Parking Appeals Panel.

2808.     The BAA's decision, or a default by the ticket

holder, creates a debt owed to the City.    

2808(5).   The

decision of the Parking Appeals Panel can be appealed to the

Pennsylvania Court of Common Pleas, and through the state

judicial system.    2 Pa. Cons. Stat. Ann. § 752.0

          The effect of the 1989 reorganization was to change the

nature of parking violations from summary offenses, which were

criminal in nature, to civil violations.    In practice, a

defendant before the traffic court was entitled to three rights

not available at a BAA hearing: (1) a disposition could not be

made without the personal appearance of the defendant, (2) the

defendant's guilt had to be proved beyond a reasonable doubt, and

(3) the two-year statute of limitations for summary offenses was

in effect.0

          Finally, the new ordinance created a period of dual

jurisdiction during which a person who had received a parking

ticket, citation, or traffic court summons between October 2,



0
          Section 752 provides as follows: "Any person aggrieved
by an adjudication of a local agency who has a direct interest in
such adjudication shall have the right to appeal therefrom to the
court vested with jurisdiction of such appeals by or pursuant to
Title 42 (relating to judiciary and judicial procedure)."
0
          O'Neill and Goodman argue that they were
unconstitutionally deprived of rights which were only available
in traffic court. We know of no constitutional right, however,
to a hearing before a tribunal of one's own choosing, see Crane
v. Hahlo, 

, 147 (1928); Sill v. Pennsylvania State
University, 

, 469 (3d Cir. 1972), or to assert a
defense based upon a given statute of limitations. See Chase
Securities Corp. v. Donaldson, 

(1945).


                                  6
1987 and May 31, 1989, could choose to proceed either in traffic

court or before the BAA.    12 Phila. City Code § 12-2807(8).



                                 B.

          O'Neill and Goodman had received parking tickets both

before and after the effective date of the 1989 ordinance.0

Neither paid their fines.    Neither responded to the summons and

periodic payment-notices which were sent to them.   In particular,

neither answered "Violation Warning Notice[s]" sent in November

1989 by the Office of the Director of Finance explaining that

they could elect to appear before the traffic court or the BAA

for the purpose of contesting their outstanding tickets.    Nor did

they respond to "Order[s] of Default" informing them that their

failure to pay the fines could result in the City's taking

further legal action which might have an adverse effect on their

property rights.0

0
          The plaintiffs' claims relate only to the retrospective
application of the reorganized adjudicatory procedures to the
parking tickets they received prior to June 1, 1989. The tickets
which fall into this category were issued on the following dates:

          Goodman                       O'Neill
          May 16, 1989                  May 1, 1989
          December 7, 1988              October 10, 1988
          December 11, 1987             November 28, 1987
          December 11, 1987
          February 26, 1987
0
          While we need not reach the merits of the plaintiffs'
constitutional claim, we note that at least one other Court of
Appeals has held that individuals who have received, but
purposefully ignored, timely and repeated notices alerting them
of their right to a hearing at which they could contest parking
violations, are in no position to argue that those notices
deprived them of due process. See Saukstelis v. City of Chicago,

(7th Cir. 1991) (holding car owner who ignored ten


                                 7
           On March 4, 1991, Goodman requested a hearing before

the BAA to contest a ticket he had received on February 4, 1991.

The hearing examiner held such a hearing on March 18, 1991, at

which it assumed jurisdiction over the February 4 ticket, and

nine additional tickets for which Goodman was responsible.     Five

of the tickets dated from before June 1, 1989.    Five dated from

after June 1, 1989.

           Goodman objected that the BAA lacked jurisdiction to

determine his liability on the pre-June 1, 1989 tickets, and

that, in any event, he had the right to raise the statute of

limitations as a defense in the BAA proceeding.    The hearing

examiner overruled Goodman's objections and assessed total fines

of $173.00 for the pre-June 1, 1989 tickets, and $74.10 for the

post-June 1, 1989 tickets.   Goodman paid his fines.0

           In April 1991, O'Neill attempted to list for

disposition with the traffic court three pre-June 1, 1989 parking

tickets.   The traffic court informed him that it no longer heard

parking violation cases.   O'Neill then requested a hearing with

the BAA at which he raised the same objections as Goodman.    On

August 30, 1991, the BAA hearing examiner rejected O'Neill's

tickets, follow-up notices, and 21-day warning of eligibility for
booting, could not insist that city violated his due process
rights by putting "Denver Boot" on his car). Saukstelis had been
denied a preliminary injunction, giving rise to the appeal.
Despite that posture of the case, the Seventh Circuit remanded
with instructions "to enter judgment for the City without further
ado." 

0
          Even though Goodman has paid his fines, a possible
refund of those fines constitutes a collateral consequence
sufficient to prevent mootness. Elkin v. Fauver, 

,
53-54 n.4 (3d Cir. 1992); Nakell v. Attorney Gen., 

,
322 (4th Cir. 1994).


                                 8
objections but reduced his liability for the outstanding parking

tickets to $45.00.   O'Neill has not paid his fine.

          On October 30, 1991, O'Neill and Goodman filed a five-

count complaint (later amended) against the City of Philadelphia,

pursuant to 42 U.S.C. § 1983, alleging that the City had violated

their constitutional and state-law rights by denying them a

hearing before the traffic court with respect to the parking

tickets they had received prior to June 1, 1989.0      On October 15,

1992, the district court denied the plaintiffs' motion for class

certification but agreed to consider the action as a test case

for persons similarly situated.       The case was submitted on cross

motions for summary judgment.0
0
          Count One alleged that the City had violated the
plaintiffs' due process rights by denying them the rights which
had been available in traffic court.
          Count Two alleged that the City had violated the
plaintiffs' due process rights, and the Ex Post Facto clause of
the United States Constitution, by failing to obtain the
plaintiffs' consent to its jurisdiction, as required by the City
ordinance, and by applying the laws and regulations governing
hearings under the 1989 ordinance, and not those of the traffic
court.
          Count Three alleged that the City exceeded the
authority granted under Pennsylvania law by unlawfully extending
the BAA's subject matter jurisdiction.
          Count Four alleged that the BAA violated the U.S. and
Pennsylvania Constitutions by holding hearings on parking
violations that were time barred under Pennsylvania law.
          Count Five alleged § 12-2807(4) is an unconstitutional
Bill of Attainder to the extent it subjects the plaintiffs'
vehicles to seizure without a hearing.
0
          The City argues that the district court lacked
jurisdiction to hear the plaintiffs' claims. In particular, the
City argues that because the plaintiffs did not appeal the
hearing examiner's determination to the Parking Appeals Panel,
under 12 Phila. City Code § 12-2808(5), the Finance Director's
Office had not reached a final decision as to the plaintiffs'
liability, and that, therefore, the plaintiffs' federal suit was
premature. We disagree. Section 12-2808(5) explicitly provides


                                  9
          On March 29, 1993, the district court granted the

City's motion for summary judgment as to four of the five

constitutional claims alleged in the plaintiffs' complaint.0 With

respect to the remaining count ("Count Two"), however, the

district court held that the City's failure to allow the

plaintiffs to challenge their pre-June 1, 1989 tickets in traffic

court, as opposed to the BAA, violated the plaintiffs' due

process rights.    Consequently, the district court entered

judgment in favor of Goodman in the amount of $173.00, and

directed the City to vacate its outstanding $45.00 judgment

against O'Neill.

           The district court also ordered the parties to submit

memoranda as to the appropriate terms of relief, and procedure to

be adopted by the BAA, with respect to the 2,713,975 persons

similarly situated to O'Neill and Goodman (i.e., persons who had

undisposed of parking violation summonses issued before June 1,

1989).   Recognizing the potentially heavy financial burden such

relief might place on the City's resources, the district court

stayed this latter portion of its order pending appeal.


that "in the event that no appeal is taken [to the Parking
Appeals Panel], the order of the Parking Hearing Examiner shall
be the final order [of the Finance Director's Office]."
0
          The plaintiffs-appellees have not appealed the district
court's grant of summary judgment against them on the
constitutional claims alleged in Counts One, Four, and Five, nor
its grant of summary judgment with respect to the ex post facto
allegations in Count Two. Because the plaintiffs did not press
for summary judgment on the state claims alleged in Counts Three
and Four of their complaint, the district court deemed them to
have been withdrawn without prejudice. The district court's
judgment is found in its entirety at O'Neill v. City of

(E.D. Pa. 1993).


                                 10
          We have jurisdiction over the City's appeal from the

partial grant of summary judgment in favor of O'Neill and Goodman

pursuant to 28 U.S.C. § 1291.



                                III

          The abstention doctrine first announced by the Supreme

Court in Younger v. Harris, 

(1971), in the context of

a pending state criminal prosecution, has since been extended to

non-criminal state civil proceedings, Huffman v. Pursue, Ltd.,

(1975), and state administrative proceedings,

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

, (1982), in which important state interests are implicated,

so long as the federal claimant has an opportunity to raise any

constitutional claims before the administrative agency or in

state-court judicial review of the agency's determination.   Ohio

Civil Rights Comm'n v. Dayton Christian Sch., Inc., 

,

629 (1986).

          In Middlesex, the Supreme Court delineated three

requirements which must be satisfied before a federal court may

abstain from hearing a case over which it has jurisdiction: (1)

there must be pending or ongoing state proceedings which are

judicial in nature; (2) the state proceedings must implicate

important state interests; and (3) the state proceedings must

afford an adequate opportunity to raise any constitutional




                                11


; Olde Discount Corp. v. Tupman, 

, 211 (3d Cir. 1993).0



                                    A.

            "We exercise plenary review over the legal

determinations of whether the requirements for abstention have

been met.    [Citations omitted.]    Once we determine that the

requirements have been met, we review a district court's decision

to abstain under Younger abstention principles for abuse of

discretion."    Gwynedd Properties, Inc. v. Lower Gwynedd Township,

, 1199 (3d Cir. 1992).



                                    1.

            We need not belabor the question of whether a BAA

proceeding is "judicial in nature."      Clearly, it is.   See

Williams v. Red Bank Bd. of Ed., 

, 1020-21 (3d Cir.

1981).0   The more compelling issue is whether, in the present


0
          Even if these three elements are satisfied, abstention
is not appropriate where the federal claimant makes a showing of
bad faith, harassment, or some other extraordinary circumstance.

. We note that, in the present case,
no such extraordinary circumstances exist.
0
          Under 12 Phila. City Code § 12-2807, hearings must be
conducted "in a fair and appropriate manner." The defendant may
call witnesses, supplement testimony by affidavits, and interpose
legal arguments. While the technical rules of evidence do not
apply, "all relevant evidence of reasonably probative value may
be received." Testimony must be given under oath. A record of
the proceeding must be made. The hearing examiner is authorized
to conduct extensive fact-finding and to compel the production of
any document, paper, or record relevant to the violation charged.
He must issue his decision based on the evidence and arguments
offered.


                                    12
case, there is a "pending" state proceeding inasmuch as O'Neill

and Goodman filed their federal lawsuit in lieu of appealing the

hearing examiner's determination, and in lieu of raising their

constitutional claims in the state forum.

          It is a well-settled that, "[f]or Younger purposes, the

State's trial-and-appeals process is treated as a unitary system,

and for a federal court to disrupt its integrity by intervening

in midprocess would demonstrate a lack of respect for the State

as sovereign."   New Orleans Pub. Serv., Inc. v. Council of City

of New Orleans, 

, 369 (1989) ("NOPSI").    Thus, "a

necessary concomitant of Younger is that a party [wishing to

contest in federal court the judgment of a state judicial

tribunal] must exhaust his state appellate remedies before

seeking relief in the District Court."    

v.

Pursue, Ltd., 

, 608 (1975).


          Under 12 Phila. City Code § 12-2808(2), the Parking
Appeals Panel:

          shall have the power to review the facts and
          the law, and shall have power to affirm the
          determination or to reverse or modify any
          determination appealed from for error of fact
          or law, or to remand for additional
          proceedings, or, in appropriate cases, to
          hear the matter de novo.

          See, e.g., 

(holding state
bar disciplinary proceedings judicial in nature where local
attorney ethics committees act as an arm of the state supreme
court in performing the function of receiving and investigating
complaints and holding hearings). But see New Orleans Pub.
Serv., Inc. v. Council of City of New Orleans, 

(1989) (holding ratemaking proceeding not judicial in nature
because the setting of future utility rates essentially is a
legislative act).


                                13
          In contrast to Huffman, where the federal claimant had

failed to appeal a state trial court judgment against it, here,

O'Neill and Goodman have failed to seek state-court judicial

review of an order entered in a state administrative proceeding.

We are faced, then, with the question left unanswered by the

Supreme Court in NOPSI: whether a state proceeding is "pending,"

and Younger abstention proper, where the adjudicatory process has

become final as a result of the federal claimant's failure to

pursue state-court judicial review of an unfavorable state

administrative 

& n.4 (1989).

          The Courts of Appeals have furnished contradictory

answers to this question.   Compare Thomas v. Texas State Bd. of

Med. Exam., 

, 456 (5th Cir. 1987) (holding "mere

availability of state judicial review of state administrative

proceedings does not amount to the pendency of state judicial

proceedings within the meaning of Younger") with Alleghany Corp.

v. Pomeroy, 

(8th Cir. 1990) (holding district court

should have abstained where Alleghany had filed action in federal

court instead of appealing state administrative decision to North

Dakota state courts).

          We have been given no reason why a litigant in a state

administrative proceeding should be permitted to forego state-

court judicial review of the agency's decision in order to apply

for relief in federal court.    Rather, we find the grounds offered

by the Supreme Court to support its holding in Huffman -- that
state appellate review of a state court judgment must be

exhausted before federal court intervention is permitted -- are

                                 14
equally persuasive when considered with respect to state-court

judicial review of a state administrative determination.0

          First, federal intervention before a state court has

had the opportunity to review an agency's decision is no less an

"aspersion on the capabilities and good-faith of state appellate

courts," and no "less a disruption of the State's efforts to

protect interests which it deems 

,

than the federal intervention with the state judicial appellate

process explicitly condemned in Huffman.   Second, federal


0
          We find no inconsistency between our holding and the
principle that administrative remedies need not be exhausted
prior to bringing a § 1983 action in federal court. Patsy v.
Florida Bd. of Regents, 

(1982). As the Supreme
Court stated in Dayton Christian Schools:

          The application of Younger principles to
          pending state administrative proceedings is
          fully consistent with Patsy . . . , which
          holds that litigants need not exhaust their
          administrative remedies prior to bringing a
          § 1983 suit in federal court. Cf. Huffman v.
          Pursue, Ltd., 

, 607-11 (1975).
          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 

n.2. The critical distinction between Dayton
Christian Schools and Patsy is that Patsy involved a remedial
action brought by the plaintiff to vindicate a wrong which had
been inflicted by the State. In contrast, Dayton Christian
Schools involved an administrative proceedings initiated by the
State, before a state forum, to enforce a violation of state law.
That is, in Dayton Christian Schools, the action taken by the
Ohio Civil Rights Commission was coercive rather than remedial,
just as the action taken by the City of Philadelphia, to enforce
its traffic tickets against O'Neill and Goodman, was coercive
action which the plaintiffs sought to circumvent by filing their
complaint in federal court.


                               15
intervention which would annul the results of an agency

determination would deprive "the States of a function which quite

legitimately is left to them," i.e., the disposition of

constitutional issues which arise in litigation over which they

have jurisdiction.   

          The requirement that litigants pursue state-court

judicial review of state administrative decisions serves two

additional purposes, identified by the Eighth Circuit in Pomeroy,

which go to the very heart of the "comity" concerns upon which

Younger abstention is grounded: (1) "the state courts may

construe state law in a way which renders a constitutional

decision unnecessary," 

at 1317, citing Penzoil Co.

v. Texaco, Inc., 

(1987) (stating that an "important

reason for abstention is to avoid unwarranted determination of

federal constitutional questions"), and (2) "interests of comity

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

rather than the federal courts, determine that the United States

Constitution requires the state to alter its practices." 

.

          We therefore hold that state proceedings remain

"pending," within the meaning of Younger abstention, in cases
such as the one before us, where a coercive administrative

proceeding has been initiated by the State in a state forum,

where adequate state-court judicial review of the administrative

determination is available to the federal claimants, and where

the claimants have chosen not to pursue their state-court



                                   16
judicial remedies, but have instead sought to invalidate the

State's judgment by filing a federal action.



                                 2.

          The second prong of the Middlesex test is whether the

proceedings at issue implicate an important state interest.     This

factor goes to the very core of the raison d'etre of Younger

abstention inasmuch as the Supreme Court's holding in Younger

rested primarily on considerations of "comity," a concept which

encompasses "a proper respect for state 

.

          Accordingly, "when we inquire into the substantiality

of the State's interest in its proceedings we do not look

narrowly to its interest in the outcome of the particular case --

which could arguably be offset by a substantial federal interest

in the opposite outcome.    Rather, what we look to is the

importance of the generic proceedings to the State."    

.

          It would well nigh be impossible to overstate the point

that the federal courts have no interest whatsoever in the

underlying subject matter of this litigation -- the City of

Philadelphia's on-street parking regulations.    In contrast, the

City of Philadelphia has a vital and critical interest in the

functioning of a regulatory system, such as the one at issue

here, which is intimately associated with the physical and

financial workings of the city in general, and of the municipal

government in particular.

                                 17
          Prior Supreme Court decisions have held that the states

have a substantial interest in enforcing criminal laws that bear

a close relationship to criminal proceedings, 

, in regulating attorney conduct, 

, in administering child custody proceedings, Moore v. Sims,

(1979), in preventing sex discrimination against

employees, Dayton Christian 

, and in

regulating intrastate utility rates.   

.0

          We do not believe that we exaggerate the scope of these

decisions in holding that the City of Philadelphia has a

significant and substantial interest in the regulation of on-

street parking, and in the vindication of the system it has

implemented to adjudicate violations of those regulations.0 The
0
          We have held that the states have a substantial
interest in education, Williams v. Red Bank Bd. of 

(3d Cir. 1981) (noting that state's interest in
education is not weakened by the fact that, technically, local
school boards press disciplinary charges against teachers, and
not the State), and in regulating securities transactions. Olde
Discount Corp. v. 

(3d Cir. 1993). See also
Mission Oaks Mobile Home Park v. City of Hollister, 

,
361 (9th Cir. 1993) (finding important state interest in
regulating mobile home parks even though rental rates are
regulated by local ordinance rather than statewide law); Federal
Express Corp. v. Tennessee Pub. Serv. Comm'n, 

, 969
(6th Cir. 1991) (affirming district court's finding important
state interest in regulating intrastate trucking).
0
          The Supreme Court has recognized that "[t]he importance
of the state interest may be demonstrated by the fact that the
noncriminal proceedings has a close relationship to proceedings
criminal in nature." 

. Until May 31,
1989, of course, parking infractions in the City of Philadelphia
were criminal offenses. Simply because parking violations are
the least threatening of all motor vehicle violations -- and are
now civil offenses in the City of Philadelphia -- does not mean
that the State's overriding interest in enforcing its motor
vehicle laws, many of which remain criminal in nature, has had
its importance diluted.


                               18
plaintiffs, in fact, have conceded as much in their supplemental

brief.   See Appellee's Supp. Br. at 1 ("This case involves the

regulation and administration of on-street parking which, of

course, is an important interest to the State of Pennsylvania and

the City of Philadelphia.").



                                3.

          The third prong of our inquiry is whether the claimant

is afforded an adequate opportunity to raise his constitutional

claims in the state forum.   The Supreme Court has held that this

third element is satisfied in the context of a state

administrative proceeding when the federal claimant can assert

his constitutional claims during state-court judicial review of

the administrative determination.    Dayton Christian 

; 

.   Moreover, "when 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."   Penzoil Co.
v. Texaco, 

.

          In the present case, neither O'Neill nor Goodman

attempted to raise his federal claims in the state proceedings.

Accordingly, we would be well-justified in assuming that, had

they done so, they would have been afforded an adequate remedy.0

0
          In Williams v. Red Bank Bd. of Ed., 

(3d
Cir. 1981), we held that a federal claimant is afforded an
opportunity to assert her constitutional claims in the state
forum where an administrative board is authorized to dismiss the


                                19
In any event, it is undisputed that O'Neill and Goodman could

have raised their constitutional arguments before the

administrative review board, again in the state-court appellate

process, to and through the Pennsylvania Supreme Court, and,

ultimately, before the United States Supreme Court.     See 28

U.S.C. § 1257(a).0

                               B.

          In sum, we hold that the three-prong test for Younger

abstention is satisfied in the present case.   The BAA proceeding

was a judicial proceeding which may be deemed "pending" as a

result of O'Neill's and Goodman's failure to take advantage of

the appellate remedies which were available to them.    The

implementation of Philadelphia's procedures for adjudicating

parking tickets implicates important state (and not federal)




charges against the claimant. In this respect, we note that the
BAA Parking Appeals Panel is authorized "to review the facts and
the law, and shall have the power to affirm the [hearing
examiner's] determination or to reverse or modify any
determination appealed from for error of fact or law, or to
remand for additional proceedings, or, in appropriate cases, to
hear the matter de novo." 12 Phila. City Code § 12-2808(2).
0
          28 U.S.C. § 1257 provides in relevant part as follows:

               (a) Final judgments or decrees rendered
          by the highest court of a State in which a
          decision could be had, may be reviewed by the
          Supreme Court by writ of certiorari where
          . . . the validity of a statute of any State
          is drawn in question on the ground of its
          being repugnant to the Constitution,
          treaties, or laws of the United States, or
          where any title, right, privilege, or
          immunity is specially set up or claimed under
          the Constitution . . . .


                               20
interests.    Lastly, O'Neill and Goodman could have asserted their

constitutional claims in the state proceedings.

             Anxious though we may be "to vindicate and protect

federal rights and federal interests," 

,

considerations of comity demand that we remain sensitive to the

legitimate interests of the states.    Since this case does not

involve any of the extraordinary circumstances which would

otherwise make abstention inappropriate, we hold that the

district court abused its discretion in failing to abstain from

hearing O'Neill and Goodman's federal claims in deference to the

overwhelming interest of the City of Philadelphia and the State

of Pennsylvania with respect to their on-street parking

regulations.



                                  IV

             Therefore, we will vacate the district court's judgment

of March 29, 1993, and remand this case to the district court

with instructions to abstain under Younger v. Harris, and to

dismiss the plaintiffs' complaint.

             Costs will be taxed against O'Neill and Goodman.




                                  21
John O'Neill, et al. v. City of Philadelphia, et al.
No. 93-1378



LEWIS, Circuit Judge, dissenting.
          Chief Justice Marshall may well have overstated his

point when, writing for the Court in Cohens v. Virginia, 19 U.S.

(6 Wheat.) 264, 404 (1821), he stated: "We have no more right to

decline the exercise of jurisdiction which is given, than to

usurp that which is not given.   The one or the other would be

treason to the constitution."    Marshall's absolutist view of the

federal courts' duty to exercise the jurisdiction Congress and

the Constitution afford them is frequently quoted, but of course,

it has not been faithfully followed.0   Abstention decisions,

among others, demonstrate that federal courts can and do decline

to hear cases that they have the constitutional and statutory

authority to decide.   But see New Orleans Pub. Serv., Inc. v. New

Orleans, 

, 358 (1989) ("NOPSI") (stating that

"federal courts lack the authority to abstain from the exercise

of jurisdiction that has been conferred", and describing

0
     Professor Shapiro has pointed out that the circumstances of
          Cohens, a case requiring Marshall to assert and defend
          the Supreme Court's authority to review state court
          decisions, might account for the "frightening" tenor
          and content of his pronouncement. David L. Shapiro,
          "Jurisdiction and Discretion," 60 N.Y.U. L. Rev. 543,
          543-44 (1985). He suggests as well that on at least
          one other occasion, in Mason v. Ship Blaireau, 6 U.S.
          (2 Cranch) 240, 264 (1804), Marshall seemed to
          recognize that federal courts did retain a degree of
          discretion not to exercise jurisdiction that
          undoubtedly existed. 

n.12 and accompanying
          text.


                                 22
abstention cases as merely restricting the availability and

timing of certain forms of relief).    Nonetheless, the ideal

behind Marshall's statement in Cohens remains a meaningful one;

even the decisions disproving its accuracy recognize and come to

terms with the significant degree of truth to its directive.     In

Colorado River Water Conservation Dist. v. United States, 

(1976), for example, where the Supreme Court concluded

that federal jurisdiction should not be exercised, it cautioned

that abstention "represents an extraordinary and narrow exception

to the duty of a District Court to adjudicate a controversy

properly before it."    

(quoting County of Allegheny v.

Frank Mashuda Co., 

, 188-89 (1959)).    This

"obligation of the federal courts to exercise the jurisdiction

given them," the Court later emphasized, is "virtually

unflagging."     

see also 

(same);

Deakins v. Monaghan, 

, 203 (1988) (same).      Thus, as

we recently reiterated, "[a]bstention is the exception and not

the rule."   Marks v. Stinson, 

, 881 (3d Cir. 1994);

see also 

(same); Colorado 

(same).    "Abdication of the obligation to decide cases can

be justified under this doctrine only in exceptional

circumstances where the order to the parties to repair to the

State court would clearly serve an important countervailing

interest."   Kentucky West Virginia Gas Co. v. Pennsylvania Public
Utility Comm'n, 

, 1114 (3d Cir. 1986) (quoting

County of 

).



                                  23
           In light of these well-established principles, I

believe that the majority's expansion of the Younger abstention

doctrine is clearly unwarranted.       This area of the law is no

place for inflexible absolutes.    (With all due respect to Chief

Justice Marshall, not even he could convince me that my

colleagues in the majority have committed treason to the

Constitution.)   But at the very least, a federal court's reasons

for abdicating its responsibility to decide cases over which it

has jurisdiction should be quite strong.      In my view, the reasons

supporting the majority's decision that abstention is mandated

here are not nearly adequate.

                                  I.

           The plaintiff-appellees, John O'Neill and Samuel

Goodman, initiated proceedings in Philadelphia's (the City)

Bureau of Administrative Adjudication (BAA) to challenge several

parking tickets they had received.       In response to Goodman's and

O'Neill's requests, the BAA scheduled hearings to review their

tickets.   In addition, however, the BAA decided that at the same

time, it would adjudicate a group of older tickets that the

plaintiffs had received prior to June, 1989.       When the plaintiffs

discovered this, they objected that the BAA did not have the

authority to make rulings on the older tickets.       The BAA hearing

examiners who presided over their cases rejected these

arguments.0

0
     The BAA does not, and legally cannot, initiate hearings to
          review parking tickets. As I discuss below, it is not
          a court of record. It has no authority to issue a
          summons or a warrant, nor can it enter a civil


                                  24
          The City concedes and in fact relies on the point that

in deciding to adjudicate Goodman's and O'Neill's older (pre-

June, 1989) parking tickets, the BAA hearing examiners plainly

failed to follow the local ordinance setting forth the agency's

powers and procedures. See Phila. City Code § 2800 et seq.   A

provision of that ordinance states that if a person elects to

contest a parking ticket he received prior to the date the

ordinance became effective, he must consent to the BAA's

jurisdiction to adjudicate that ticket.   Phila. City Code

          judgment. App. at 404-05. The majority describes the
          administrative proceedings that occurred here as
          "coercive" action taken by the City. Maj. Op. at 15-16
          n.13. In my view, that is not correct. The only
          conceivably coercive, proactive conduct the BAA took in
          this case was directly prohibited by local ordinance.

    The facts of Ohio Civil Rights Comm'n v. Dayton Christian
    Schools, 

(1986), which the majority views as
    describing "coercive" state-initiated action similar to that
    which occurred here, are notably different. In Dayton
    Christian Schools, a state agency acting within its lawful
    authority initiated an administrative action against a
    private school by filing a complaint. 

While
    those administrative proceedings were pending, the school
    filed a § 1983 suit in federal district court. Here, in
    contrast, Goodman and O'Neill initiated the administrative
    process by requesting a hearing. The BAA did not and could
    not require them to do so. It is legally incapable of
    coercing participation by unwilling individuals. The agency
    did act independently and contrary to the plaintiffs' wishes
    when it assumed jurisdiction over their older tickets. As
    the City points out, however, that action was flatly
    prohibited by local ordinance. The City thus describes the
    state action challenged here as an unfortunate and legally
    indefensible (but not unconstitutional) mistake. In
    deciding to adjudicate Goodman's and O'Neill's older
    tickets, therefore, the BAA hearing officers were acting
    contrary to the state's interests and instructions; they
    were not acting in furtherance of the state's valid goals. I
    discuss the legal significance of these facts below. For
    now, I only mean to set them straight.


                               25
§ 2807(8).    The ordinance went into effect on June 1, 1989.     The

plaintiffs did not consent to and, in fact, expressly challenged

the BAA's jurisdiction to adjudicate their older tickets.       Thus,

the BAA hearing examiners acted contrary to law in addressing the

infractions that Goodman and O'Neill had been charged with

committing prior to June, 1989.

             The fact that the hearing examiners overlooked the

clear requirements of an applicable provision of the City Code is

understandable.    Their job is to fairly and efficiently dispose

of challenges to parking tickets, a task that generally does not

require any extensive legal training or research.     While the

record does not provide a comprehensive description of the

educational and professional backgrounds of BAA hearing

examiners, I think we can safely assume that they are not

attorneys.    Dominic Ceremeli -- who, as a Deputy Director of

Finance in charge of BAA operations, supervises the hearing

examiners, acts as an instructor during their training, and

presides over hearings himself when needed -- testified during

his deposition that he is a high school graduate, has some

college education but no degree, and has not attended law school.

Presumably, at least as a general matter, the hearing examiners

serving under Ceremeli do not possess more advanced legal

credentials.

             And given the job that hearing examiners do, they

should not need much specialized training in the law.     The

examiners are not expected to evaluate complex legal arguments.

They determine what happened and decide whether that conduct


                                  26
constituted a parking violation.     Accordingly, in the chapter of

the Parking Hearing Examiner Manual that covers defenses that

ticket recipients might raise, the subject of federal statutory

or constitutional rights never comes up.     Instead, the examiners

learn, for example, that a "Going to the Bathroom" defense should

not succeed; after all, the Manual correctly explains, "This is a

risk all drivers take."   App. at 213.0    I do not mean to

trivialize the important and often difficult work that the BAA

and its hearing examiners do in adjudicating challenges to

parking tickets.   It is clear, however, that nobody in or outside

City government has ever believed that the people who preside

over this administrative process would possess either the

inclination or ability to evaluate the kind of claims that arise

under the federal civil rights statutes.     Quite simply, that is

not the BAA's job.   See BAA "Mission Statement", App. at 174

(describing the BAA's purpose and goals, which include fairness

and efficiency but not the protection of federal rights).

          Goodman and O'Neill could have initiated an

administrative appeal before the Parking Appeals Panel within

thirty days of the date on which the hearing officers entered

final determinations in their cases.      They did not do so. Rather,
0
     The tone and content of the Manual further supports my
          belief that the BAA hearing examiners are not
          attorneys. Otherwise, the Manual would not need to
          inform its readers that "[t]he legal system over
          hundreds of years has developed very complicated rules
          of evidence." App. at 187. Nor, presumably, would it
          contain advice like: "It is important that you listen
          carefully and pay attention"; or, "In addition to
          paying attention, it is important that a Hearing
          Examiner does not lose his temper." App. at 184.


                                27
more than seven months after Goodman's hearing and two months

after O'Neill's, they filed this § 1983 suit in federal district

court, claiming, among other things, that by adjudicating their

older tickets, the City had deprived them of property without due

process of law in violation of their Fourteenth Amendment rights.

Significantly, then, when Goodman and O'Neill initiated their

suit in federal court, the state administrative process was over.

Nothing was pending before the BAA, and any effort the plaintiffs

might have made to return there to revive and pursue their

administrative proceedings would have been rejected as time-

barred.     See City's Supp. Br. at 3 (stating that the plaintiffs

have foregone their opportunity for appellate review, and that

"[i]t is therefore no longer possible for the federal court to

retain jurisdiction while awaiting the outcome of a state

proceeding . . . .").    Thus, there has not been, and there could

not have been, ongoing legal activity at the state level since

prior to the time Goodman and O'Neill brought this case.

            The district court agreed with the plaintiffs that the

City had deprived them of their due process rights and entered

summary judgment in their favor.       The City has appealed that

decision.

                                 II.

            Like the majority, I recognize that the abstention

question this case presents is an open one.       The Supreme Court

has not provided an answer, and the courts of appeals have

reached conflicting results.    Compare Allegheny Corp. v. Pomeroy,

(8th Cir. 1990) (agreeing with the majority) with


                                  28
Thomas v. Texas State Board of Medical Examiners, 

(5th Cir. 1987) (agreeing with me).    The majority concludes that

the district court abused its discretion by failing to abstain

under Younger v. Harris, 

(1971), and the cases

following and extending Younger's rationale.   I disagree.

                                A.

          In 

, the Supreme Court held that absent

extraordinary circumstances, federal courts should abstain from

enjoining ongoing state criminal prosecutions.    The decision

rested on several grounds.   The first was the "basic doctrine of

equity jurisprudence 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 equitable relief."   

.   Clearly, this principle has no relevance

here.   Goodman and O'Neill have never been subject to anything

resembling a criminal prosecution.    Additionally, there is no

ongoing state proceeding to enjoin.    And lastly, because the

plaintiffs cannot return to the BAA administrative process, they

have no means of seeking adequate relief for their alleged

constitutional injury through alternative legal avenues.

           However, as the Court has recognized in extending

Younger abstention beyond the context of criminal prosecutions,
there is more to this doctrine than "the accepted rule that

equity will not enjoin the prosecution of a crime."    Trainor v.
Hernandez, 

, 441 (1977).    The Younger Court also

"voiced a `more vital consideration,' namely, that in a union


                                29
where both the States and the Federal Government are sovereign

entities, there are basic concerns of federalism which counsel

against interference by federal courts, through injunction or

otherwise, with legitimate state functions, particularly with the

operation of state courts."     

(citation

omitted).    These somewhat ill-defined but significant

considerations of comity and federalism are the ones on which the

majority relies in reaching its conclusion.     In my view, however,

this case does not implicate such concerns to the extent

necessary to justify a decision mandating abstention under the

Younger doctrine.

            The most significant and frequently cited reason

federal courts have articulated for abstaining under Younger has

been the importance of not interfering with state proceedings.

See, e.g., Middlesex County Ethics Comm. v. Garden State Bar

Ass'n, 

, 431 (1982) (stating that Younger and its

progeny "espouse a strong policy against interference with

pending state judicial proceedings"); 

(applying Younger abstention to avoid "interrupting [state]

enforcement proceedings pending decision of the federal court"

and the "disruption of suits by the State in its sovereign

capacity").    It is important, we have repeatedly stated, to keep

clear of pending state cases.    E.g., Coruzzi v. New Jersey, 

, 690 (1983) ("The Younger abstention doctrine rests on

the strong federal policy on noninterference with pending state

judicial proceedings.")    For this reason, "[a] federal court may

consider Younger abstention when the requested equitable relief

                                  30
would constitute federal interference in state judicial or quasi-

judicial proceedings."   Marks v. 

(citing

Middlesex County Ethics 

, and Huffman v.

Pursue, Ltd., 

, 599-600 (1975)).   But where such

interference will not occur, "the principles of comity underlying

Younger abstention are not implicated."   

Properties, Inc. v. Lower Gwynedd Township, 

, 1201

(3d Cir. 1992)).   As the Supreme Court put it in Steffel v.

Thompson, 

, 462 (1974), "the relevant principles of

equity, comity, and federalism `have little force in the absence

of a pending state proceeding.'"     In such circumstances, the

Court explained, a federal court can exercise its given

jurisdiction without creating duplicative legal proceedings or

disrupting the state system; nor could a decision allowing the

federal suit to go forward "be interpreted as reflecting

negatively upon the state court's ability to enforce

constitutional principles."   

again, there was no pending state proceeding

when Goodman and O'Neill initiated their federal suit. Therefore,

there was nothing with which the district court could have

interfered by exercising jurisdiction over the case. Indeed, the

court did exercise its jurisdiction in reaching the merits of the

plaintiffs' claims, and no such interference took place.     Because

the BAA process was over, it could not have been disrupted.     Even

had the district court made a conscious and determined effort to

hinder the state from pursuing its important interests or



                                31
demonstrating its ability to recognize and protect federal

rights, it could not have done so.

            "Younger does not require federal plaintiffs to exhaust

their appellate remedies unless the relief being sought from the

federal court involves disruption of the state's judicial

process."   

(emphasis added).   No such

disruption is possible here.    The majority, nonetheless,

concludes that abstention is not only appropriate, but that by

exercising its jurisdiction, the district court committed an

abuse of discretion.

            The Younger doctrine is also said to serve the

interests of comity and federalism by preventing federal courts

from projecting any doubt that state courts can and will protect

federal rights.   See, e.g., 

(basing

decision to abstain on the desire to avoid disrupting state suits

"combined with the negative reflection on the State's ability to

adjudicate federal claims that occurs whenever a federal court

enjoins a pending state proceeding").    According to the majority,

this consideration supports its conclusion that abstention is

required here.    It believes that by exercising jurisdiction over

Goodman and O'Neill's § 1983 suit, the district court did in fact

cast an "aspersion on the capabilities and good-faith" of the

state system.    Maj. Op. at 16 (quoting 

).
At least, the majority reasons, the insult was just as

disparaging here as it would have been if the plaintiffs had

commenced their federal action after losing in the Pennsylvania

Court of Common Pleas.    Once again, I disagree.

                                 32
             Goodman and O'Neill have alleged that the BAA examiners

presiding over their administrative hearings made decisions which

resulted in a violation of their Fourteenth Amendment rights.

Instead of bringing an appeal before other administrative

officials -- who, like the original examiners, are not attorneys

and are not in the business of adjudicating § 1983 cases -- the

plaintiffs went to federal court.      When they did so, they had

never been before a state tribunal, nor had they ever had direct

access to a state tribunal, that was competent to hear their

federal claims.    Unlike judges in state trial courts, the

officials who administer BAA proceedings (at both the hearing and

appellate stages) cannot, as a practical or a legal matter,

decide whether the City should be held liable for a deprivation

of the plaintiffs' constitutional rights.     That is a complicated

question over which Article III judges have disagreed in this

case.   State trial courts have concurrent jurisdiction over

§ 1983 suits, and Pennsylvania's judges are perfectly capable of

handling them.    The BAA, in contrast, is not even a court.    The

officials presiding over its hearings and appeals are not

attorneys.    They do not possess either the training or the

resources to adjudicate § 1983 suits.      Even if those limitations

did not exist, the informal, streamlined procedural rules that

govern BAA proceedings would prevent agency officials from

performing this challenging job adequately.      Is it really such an

insult to the state system to allow individuals allegedly

deprived of constitutional rights at the first stage of such an

administrative process to bring their § 1983 suit in federal


                                  33
court, rather than first to proceed with an administrative appeal

and then to pursue relief through the state courts?

            The majority answers affirmatively.   The aspersion cast

by a failure to abstain here, it states, would be equal in

magnitude to that cast by permitting plaintiffs to go forward

with federal actions after losing in state trial court.      But by

not abstaining here, the district court did not displace a state

court of appeals.   It displaced a BAA parking appeals panel.

Would we actually offend Pennsylvania by allowing § 1983

claimants to prefer a federal district court to the BAA?     Would

the State even defend its agency's legal or practical ability to

handle such a case?    Of course not.   When the plaintiffs suffered

their alleged constitutional injury at their BAA hearings, they

had a choice: they could appeal within the agency or they could

bring suit in federal court.    The decision they made, in my view,

does not disparage the good faith or the abilities of either BAA

administrators or the state courts.     And I believe that

Pennsylvania would agree; the Commonwealth is not so unrealistic

or over-sensitive as the majority's argument might suggest.

            So, in my view, the district court neither interfered

with nor insulted the state system when it exercised its

jurisdiction over this case, and those principal values of comity

and federalism that Younger abstention serves are not

significantly (or, arguably, even remotely) advanced by today's

decision.

            The majority, however, lists several additional comity

concerns.   It points out that if we failed to require abstention

                                 34
under the circumstances of this case, state courts would not be

able to decide the constitutional issues that arise in disputes

over which they have jurisdiction.   State courts would also lose

the opportunity to construe state laws in a way which would make

the resolution of federal constitutional questions unnecessary.

And finally, the majority reasons, it is better to let state

courts determine when the state must alter its practices to

conform to the requirements of the U.S. Constitution; that way,

the "friction" and resentment following federal decisions

announcing such a mandate can be avoided, and the interests of

comity are furthered.

          I agree that if district courts exercise their

jurisdiction over § 1983 suits brought after administrative

decisions subject to eventual state judicial review, state courts

would not get the opportunity to make preliminary determinations

of state and (when necessary) federal law.0   However, if these

comity concerns were sufficient to require the abdication of

federal judicial responsibility to hear § 1983 cases, then we

would require plaintiffs to exhaust their available state

remedies before bringing such suits in federal court.   Of course,

under the Supreme Court's holdings in Patsy v. Florida Board of

Regents, 

(1982), and Monroe v. Pape, 

0
     This case does not involve any difficult and unresolved
          issues of state law that, depending on their
          resolution, might affect or make unnecessary our
          treatment of the federal questions it presents. If it
          did, we might properly abstain under Railroad Comm'n v.
          Pullman Co., 

(1941). The majority does
          not suggest that Pullman abstention would be
          appropriate here.


                               35
(1961), that is not necessary.    Section 1983 plaintiffs may

forego opportunities to seek recourse through state

administrative and judicial processes and elect to bring their

federal claims, in the first instance, in federal court.       When

they do so, as is often the case, state courts do not get the

opportunity to decide the state and federal law questions that

these disputes present.    The very same comity concerns that the

majority relies on here give way to the overriding federal

interest in adjudicating suits alleging a violation of federally

protected rights.    The additional comity concerns the majority

mentions are no more persuasive here than they were in Patsy,

where the Supreme Court looked past them in holding that § 1983

plaintiffs need not exhaust their administrative remedies before

proceeding in federal court. See 

(Powell, J., dissenting) (defending the exhaustion requirement as

promoting the principles of comity recognized in Younger and

criticizing the Court's decision as forsaking such

considerations).

            In Marks v. Stinson, we recognized that "Younger

principles must be applied in a manner consistent with [the]

well-established proposition" set forth in Patsy.    

.    Unlike the plaintiff in Patsy, however, Goodman and

O'Neill had already been through one stage of the state

administrative process when they commenced their suit in federal

court.    The majority believes that once plaintiffs initiate BAA

proceedings, they cannot be permitted to leave the state system

without exhausting their appellate remedies.    I agree that Patsy

                                 36
does not control here.   However, today's decision strikes me as

more about exhaustion than abstention.    In my view, this case is

far closer to Patsy than it is to Huffman v. Pursue, Ltd., 

(1975), and the other cases requiring Younger

abstention.

          In 

, the sheriff and prosecuting attorney

of a county in Ohio brought suit under a public nuisance statute

against the owner of a theater that showed pornographic films.

Following trial, the state court ruled in Ohio's favor.    It

issued a judgment ordering the theater to close for one year and

authorizing the state to seize and sell property used in the

theater's operation.   The next day, rather than filing an appeal,

the theater owner brought suit in federal district court alleging

that Ohio's application of its nuisance law was unconstitutional

and asking for an injunction prohibiting the enforcement of the

state trial court's judgment.

          The Supreme Court held that the district court should

have abstained under Younger.   In reaching that conclusion, it

relied heavily on "the policy of noninterference" with cases that

are pending before state courts.     

.
The theater owner had argued that after the state trial court

entered its judgment, there was no ongoing proceeding to disrupt.

The Supreme Court rejected that position.     

("[A] necessary concomitant of Younger is that a party in

appellee's posture must exhaust state appellate remedies before

seeking relief in the District Court . . . .").     Its reasons for

doing so, which are not applicable here, fully convey the

                                37
differences between Huffman and the case before us.   The Court

stated:
               Virtually all of the evils at which
          Younger is directed would inhere in federal
          intervention prior to completion of state
          appellate proceedings, just as surely as they
          would if such intervention occurred at or
          before trial. Intervention at the later
          stage is if anything more duplicative, since
          an entire trial has already taken place, and
          it is also a direct aspersion on the
          capabilities and good faith of the state
          appellate courts. Nor, in these state-
          initiated nuisance proceedings, is federal
          intervention at the appellate stage any the
          less a disruption of the State's efforts to
          protect interests which it deems important.
          Indeed, it is likely to be even more
          disruptive and offensive because the State
          has already won a nisi prius determination
          that its valid policies are being violated in
          a fashion which justifies judicial abatement.

               Federal 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 constitutional issues which
          arise in civil litigation over which they
          have jurisdiction. We think this
          consideration to be of some importance
          because it is typically a judicial system's
          appellate courts which are by their nature a
          litigant's most appropriate forum for the
          resolution of constitutional contentions.

-09.   Again, virtually none of those

justifications for abstention apply here.   Federal adjudication

of the plaintiffs' § 1983 claims would not be duplicative of the

BAA hearings; the hearing examiners could not and did not address

the constitutional implications of their decisions.   As I have

already explained, displacing a parking appeals panel is entirely



                                38
different than displacing a state appellate court, and the former

does not cast any aspersion on the good faith or abilities of

state institutions.    Unlike Huffman, in this case the district

court did not disrupt a state-initiated proceeding commenced to

protect interests which the state deems important.     Rather, it

was Goodman and O'Neill who initiated the BAA process.      (The

agency, recall, is powerless to do so itself.)     And the state

action giving rise to the plaintiffs' constitutional claims has

not been deemed important to the state but has instead been

characterized as an unfortunate and unlawful mistake committed by

individual administrative officials.    Finally, while state

appellate courts might provide the litigant's "most appropriate

forum for the resolution of constitutional contentions", 

one could hardly say the same thing about a parking appeals

panel.   Such a suggestion, in fact, would reflect a more

insulting view of the state judiciary than any decision declining

to abstain under Younger.

            The majority also states that Dayton Christian 

, is more applicable here than Patsy.     See Maj. Op. at 15-16

n.13.    The federal plaintiff in Patsy, it reasons, initiated a
remedial action to vindicate a wrong which had been inflicted by

the State.   Dayton Christian Schools is different, in the

majority's view, because like the case before us, it involved

coercive administrative proceedings initiated by the State to

enforce a violation of state law.     But Goodman and O'Neill's

§ 1983 suit is remedial -- not, as the majority suggests, purely
defensive.    The plaintiffs claim that the BAA hearing examiners


                                 39
violated their due process rights in deciding to adjudicate their

older tickets, and they have sought relief for that wrong in

federal court.   True, they could have pursued the same remedy

through an administrative appeal and then through the state court

system.   Under the principles of Patsy, however, which I believe

are applicable here, they need not have exhausted their state

administrative and judicial options.   Additionally, unlike the

federal plaintiffs in cases like Huffman, Dayton Christian

Schools, Juidice v. Vail, 

(1977), Trainor v.

Hernandez, 

(1977), Moore v. Sims, 

(1979), and Middlesex County Ethics Comm., 

(1982),

Goodman and O'Neill have never been targets of state-initiated

legal proceedings.   While the majority states that the BAA

process was coercive, the fact is that the BAA cannot adjudicate

tickets unless recipients request a hearing.   Again, the agency

does not have the legal power to initiate its own process, and it

cannot coercively subject anyone to its authority.   Thus, Goodman

and O'Neill have not asked the district court for protection from

the state's independent efforts to enforce its laws through an

administrative proceeding directed against them.   Rather, after

allegedly suffering a constitutional injury at the hands of state

officials presiding over an administrative process that the

plaintiffs initiated for their own benefit, they turned to the

federal district court for relief instead of pursuing

administrative and then judicial appeals within the state system.

In these circumstances, it requires only the smallest extension

of Patsy -- as compared to a far greater and less reasonable

                                40
extrapolation of Huffman, Dayton Christian Schools, and other

decisions requiring Younger abstention -- to permit § 1983

plaintiffs to go forward with their claims in federal court.

           Our prior decision in Kentucky West Virginia Gas Co. v.

Pennsylvania Public Utility Comm'n, 

(3d Cir. 1986),

supports this view.   Kentucky West involved a dispute between two

gas companies and the Pennsylvania Public Utilities Commission

("PUC").   The companies initiated an administrative proceeding

before the PUC seeking approval of a proposed rate increase.      The

PUC denied their request, and the companies challenged that

determination in state court.    Shortly thereafter, they filed

suit in federal district court seeking declaratory and injunctive

relief.    The federal complaint alleged that Pennsylvania's

regulatory scheme and the PUC's decision were either preempted by

federal statute or unconstitutional under the commerce and equal

protection clauses.   The district court dismissed the companies'

suit under Burford and Younger abstention. We reversed, stating:
          "In the typical Younger case, the federal
          plaintiff is a defendant in ongoing or
          threatened state court proceedings seeking to
          enjoin a continuation of those state
          proceedings." Crawley v. Hamilton County
          Comm'rs, 

, 30 (3d Cir. 1984). In
          this case, on the other hand, the federal
          plaintiffs -- [the gas companies] -- are also
          the state plaintiffs. Moreover, they are not
          seeking to enjoin any state judicial
          proceeding; instead, they simply desire to
          litigate what is admittedly a federal
          question in a federal court, having agreed to
          dismiss their pending state appeal if the
          district court assumes jurisdiction over the
          merits of their complaint.




                                 41
               Under the circumstances, then, we
          believe that the balance of state and federal
          interests tips decidedly away from abstention
          under Younger. . . . To deny [the gas
          companies] access to a federal forum simply
          because of their pending state appeal would
          be at odds with a fundamental premise of our
          federal judicial system: that is, "that where
          Congress has granted concurrent jurisdiction,
          a plaintiff is free to bring suit in both the
          state and federal forums for the same cause
          of action." [New Jersey Educ. Ass'n v.
          Burke, 

, 769 (3d Cir. 1978).]

Kentucky 

.     In Marks v. Stinson, we

recently reaffirmed the principles set forth in Kentucky West in
holding that Younger abstention was not appropriate where the

exercise of federal jurisdiction would not interfere with

parallel state proceedings.   

.    The

plaintiffs in this case occupy the same position as the gas

companies in Kentucky West: they have never been defendants in

state administrative or judicial proceedings; rather, after

allegedly suffering a deprivation of their federal rights as a

result of a state administrative decision, they chose to seek

relief in federal court.   Indeed, the argument for abstention was

stronger in Kentucky West and Marks than it is here, as this case

does not raise real concerns of interrupting ongoing litigation

in state courts involving the same subject matter giving rise to

the federal suit.   Our reasons for not abstaining previously,

therefore, seem even more compelling in this case.

          The First Circuit's decision in Kercado-Melendez v.

Aponte-Roque, 

(1st Cir. 1987), also counsels against

a decision mandating abstention.     The plaintiff in that case,

Kercado, worked for the Puerto Rico Department of Public


                                42
Instruction ("DPI") as a school district superintendent.     The

Secretary of the DPI charged Kercado with incompetence and

improper conduct.   After Kercado appeared at an informal DPI

hearing at which the charges against her were addressed, she

received an order dismissing her from her employment.     She had

the option to appeal her termination within the DPI

administrative appeals process but declined to do so.     Instead,

Kercado filed a § 1983 suit in federal court alleging that she

had been fired as a result of her political affiliations in

violation of her First Amendment rights, and further that the

state had deprived her of due process by failing to provide her

with a pre-termination hearing.    On appeal, the Secretary of the

DPI argued "that because Kercado could have appealed the

dismissal to the DPI Board of Appeals, the district court should

have abstained and thereby forced Kercado to litigate her claims

in a Puerto Rico forum."   

.      "In

effect," the court continued, the Secretary was arguing "that

Kercado should not have been permitted to bring a section 1983

suit in federal court because of the availability of an appeal

within the Puerto Rico administrative and judicial apparatus."

takes precisely the same position here.

           The First Circuit rejected the Secretary's argument. It

explained that in Kercado-Melendez, unlike Dayton Christian

Schools,
           the administrative proceeding is remedial
           rather than coercive. The administrative
           appeal process could be triggered only on
           Kercado's initiative if she wished to pursue
           her remedies within the Puerto Rico


                                  43
          administrative framework. Patsy holds that
          she was not required to do so.

(emphasis added).   The administrative process here,

like the ones in Kercado-Melendez and Patsy and unlike the one in

Dayton Christian Schools, could be triggered only on the

plaintiffs' initiative.   The BAA was powerless to bring Goodman

and O'Neill before it, and it was powerless to compel them to

challenge the hearing examiners' decisions before a parking

appeals panel.   Accordingly, I agree with the First Circuit's

conclusion that the principles of Patsy are more applicable than
those of Dayton Christian Schools or other decisions requiring

Younger abstention.   As Kercado-Melendez explains, we should not

fail "to recognize that there is a significant difference between

a civil rights plaintiff who seeks to use the federal courts to

stop or nullify an ongoing state proceeding in which she is a

defendant, and a civil rights plaintiff who has an option to

initiate a state proceeding to remedy a constitutional wrong

perpetrated by a state actor."   

.

                                 B.

          In reaching its conclusion that Younger abstention is

mandated here, the majority seeks to protect and promote

principles of comity and federalism.   I do not agree with its

assessment of the harm those interests would suffer if we

permitted the district court to exercise its jurisdiction.

Additionally, although the majority barely acknowledges this

point, there are other highly significant countervailing



                                 44
interests at stake in suits brought under § 1983 which merit

serious consideration in any discussion of Younger abstention.

The majority's analysis overlooks this second side of the balance

(after overestimating the first).    In doing so, it produces a

result with deeply troubling implications.

          When it enacted § 1 of the Civil Rights Act of 1871

(now codified as 42 U.S.C. § 1983), "Congress intended to "`throw

open the doors of the United States courts' to individuals who

were threatened with, or who had suffered, the deprivation of

constitutional rights, and to provide these individuals immediate

access to the federal courts notwithstanding any provision of

state law to the contrary."   

(citation

omitted) (quoting legislative history).    Thus, as the Court

explained in Mitchum v. Foster, 

, 242 (1972): "The

very purpose of § 1983 was to interpose the federal courts

between the States and the people, as guardians of the people's

federal rights . . . ."   In enacting legislation to make the

federal courts "the primary and powerful reliances" for

vindicating federal rights under § 1983, 

(emphasis in original), Congress was fully aware of and

undeterred by competing concerns of comity and federalism.      As

the Court has stated, "Congress clearly conceived that it was

altering the relationship between the States and the Nation with

respect to the protection of federally created rights."   

.   It did so, nonetheless, to create "a uniquely

federal remedy against incursions under the claimed authority of



                                45
state law upon rights secured by the Constitution and the laws of

the Nation."   

          Today, the majority holds that individuals allegedly

deprived of constitutional rights during the adjudication of

their claims before a state agency cannot pursue a § 1983 claim

in federal court -- even after the administrative process is no

longer pending, and even when they no longer have any recourse

within the state system.0    Under the majority's ruling, the only

federal forum such plaintiffs will ever stand a chance of

reaching is the United States Supreme Court; and for a number of

easily appreciated reasons, that chance is remote.    By so

drastically limiting (if not, for all practical purposes,

foreclosing) access to the federal courts, today's decision runs

directly counter to the purposes Congress sought to achieve in

enacting the civil rights legislation under which the plaintiffs

brought this suit.

          Thus, in concluding that the district court committed

an abuse of discretion by exercising its jurisdiction, the

0
     I agree with the majority's point that the plaintiffs lost
          their opportunity to pursue administrative and then
          judicial appeals in the state system as a result of
          their own conduct. In my view, however, Younger
          abstention is not a device to keep litigants from
          choosing a federal forum when we feel their cases are
          better suited to the state agencies or courts. Rather,
          it is a principle of restraint exercised only where the
          exercise of jurisdiction would inflict overriding harm
          to competing values of comity and federalism.
          Abstention serves to protect state interests and
          maintain a strong, respectful relationship between the
          governments making up the federal system -- not to
          deter prospective plaintiffs from attempting to
          vindicate their federal rights in federal court.

                                  46
majority not only overstates the extent to which comity and

federalism concerns are implicated in this case; in addition, and

of potentially greater significance, its analysis fails to take

into account the vital federal and individual interests at stake

in the adjudication of any case brought under § 1983.

                               III.

          Because I disagree with the majority's conclusion that

the district court abused its discretion by failing to abstain

under Younger, I will comment very briefly on the merits of the

plaintiffs claims.   In my view, there are none.

          First, the City is the only remaining defendant in the

case, and the plaintiffs have not established that the alleged

violation of their constitutional rights occurred as a result of

an official custom, practice, or policy under the standard for

municipal liability set forth in Monell v. Dept. of Social

Services, 

(1978), and the related line of cases.     In

fact, the City adopted an ordinance expressly prohibiting the

decision that gave rise to the plaintiffs' constitutional claims.

The officials who presided over Goodman's and O'Neill's hearings

overlooked that provision of the City Code, but Philadelphia

cannot be held liable for those mistakes.0
0
     The plaintiffs argue that even if the hearing examiners had
          complied with the ordinance and refrained from
          adjudicating their older tickets, the BAA's utilization
          of a "Code 41" mechanism would have required the agency
          to make the same determinations of liability. First,
          even if Code 41 was relevant to resolving the
          substantive issues this case presents, factual disputes
          over this mechanism's effect and existence at the time
          of Goodman's and O'Neill's hearings would preclude a
          grant of summary judgment. Second, and more


                                47
             Second, I believe that the district court erred in

concluding that Goodman and O'Neill were deprived of their

property without due process of law.     The City committed such a

violation, it reasoned, by failing to notify the plaintiffs that

if they failed to appear before the Traffic Court prior to a

certain date, their only recourse would be to the BAA.

             The BAA is an administrative agency that does not even

have the power to enter a civil judgment.     The Traffic Court, in

contrast, rendered decisions determining criminal guilt.

Accordingly, and appropriately, the BAA does not provide ticket

recipients with all of the procedural protections and defenses

that they could have relied upon in the Traffic Court.     However,

nobody has suggested that the process the BAA does provide in

adjudicating ticket challenges fails to meet constitutional

standards.    Goodman and O'Neill only argue, and the district

court only held, that before the City switched the forum in which




             importantly, Code 41 is not important here because the
             BAA did not employ it. Goodman and O'Neill are
             attempting to establish municipal liability based on a
             policy that the City never followed in its dealings
             with them. Their belief that the BAA would have made
             Code 41 determinations, and that when that occurred,
             they would have suffered the same alleged deprivation
             of due process, does not give them a viable claim
             against the City. The official conduct that resulted
             in the constitutional harm the plaintiffs allegedly
             suffered was the hearing examiners' erroneous decisions
             to rule on their older tickets -- not the Code 41
             mechanism. Under justiciability principles and the
             standard for municipal liability in § 1983 cases,
             Goodman and O'Neill cannot pursue a claim based on a
             rule or policy that never affected them.


                                  48
ticket recipients would have to proceed, it was required to

provide notice.

          I would not accept that argument (and, I gather,

neither would the majority).    The City has replaced one

constitutionally adequate process with another.    True, someone

who surely would have escaped criminal liability in Traffic Court

might not prevail at the BAA.    But everyone who participates in

BAA proceedings receives at least the process that is due before

the City takes their property.    The City did not warn Goodman and

O'Neill that they might lose their access to the Traffic Court;

it did, however, provide them with notice of the parking charges

against them and a meaningful opportunity to respond to those

charges before reaching a decision that they would have to pay

their fines.   Given these facts, the plaintiffs have at most

suffered a deprivation of process without due process -- not a

deprivation of property without due process.    That does not

constitute a violation of their Fourteenth Amendment rights.     The

Constitution does not require notice and an opportunity to be

heard before all rule changes that might effect an outcome.     So

long as the new rules are adequate under due process standards --

and, again, no one has suggested that in this case, they are not

-- the Fourteenth Amendment is satisfied.    See Sill v.
Pennsylvania State Univ., 

, 469 (3d Cir. 1972)

(rejecting argument that the University violated students' due

process rights by subjecting them to disciplinary proceedings

before a specially constituted panel that employed its own

procedural rules); Crane v. Hahlo, 

, 147 (1928) ("No

                                 49
one has a vested right in any given mode of procedure; and so

long as a substantial and efficient remedy remains or is provided

due process of law is not denied by a legislative

change."(citations omitted)); see also Maj. Op. at 6-7 n.4.0

          Thus, in my view, while Goodman and O'Neill may have

derived certain advantages from not paying their parking tickets,

see Marion Wink, Women Who Love Men Who Don't Pay Their Parking

Tickets, Cosmopolitan, April 1993, at 136, a viable § 1983 suit

is not among them.   I would therefore reverse the district

court's decision and remand the case so that judgment could be

entered in favor of Philadelphia.




0
     The City makes the additional argument that under Parratt v.
          Taylor, 

(1981), the availability of post-
          deprivation opportunities to challenge the hearing
          examiners' erroneous decisions provided the plaintiffs
          with constitutionally adequate process. Because the
          BAA did provide the plaintiffs with all the process
          that was due prior to rendering its decisions, however,
          Parratt and other cases addressing the sufficiency of
          post-deprivation remedies are irrelevant.


                                50
                                IV.

           Justice Frankfurter believed that "petty cases," even

more than hard cases, are "calculated to make bad law."       United

States v. Rabinowitz, 

, 68 (1950) (Frankfurter, J.,

dissenting).   "The impact of a sordid little case," he explained,

"is apt to obscure the implications of the generalization to

which the case gives rise."    

qualifies as a

petty case.    It is a dispute about a few parking tickets.

Collectively, the plaintiffs' financial stake in the outcome is

$218.00.   The generalization to which today's decision gives

rise, however, is an important and, in my view, misguided one.

           The majority does not and cannot limit its holding to

meritless claims over small stakes.      Highly significant

constitutional questions do arise in the context of

administrative proceedings addressing seemingly minor issues of

purely local concern.    Yick Wo v. Hopkins, 

(1886),

is one example that comes to mind.      The plaintiffs in Yick Wo

challenged a facially innocuous municipal ordinance that

empowered a committee of city officials to determine who could

and could not operate laundry businesses.      The case elicited one

of the Supreme Court's earliest and most significant expositions

of the Fourteenth Amendment's guarantee that no state shall deny

to any person the equal protection of the laws.      Needless to say,

the scope and importance of issues addressed in administrative

proceedings -- and consequently, the significance of the legal

questions that arise from agency decision-making -- has steadily

and dramatically increased during the years since Yick Wo.

                                 51
          Even in cases such as the one before us, where the

underlying constitutional claims are not so gripping, the rule

the majority announces today does not reflect an appropriate

balance between concerns of comity and federalism, on the one

hand, and the values served by the federal courts meeting their

responsibility to decide cases over which they have jurisdiction,

on the other -- especially when that jurisdiction has been

conferred by legislation intended to provide plaintiffs alleging

that they have been deprived of federal rights under color of

state law with direct access to a federal forum.   Thus, in my

view, the majority's treatment of this petty case misapprehends

even the general principles of "Our Federalism" it purports to

defend.

          For these reasons, I respectfully dissent.




                               52