Gresham Park Community Organization (GPCO) and three officers of the organization sued under 42 U.S.C. § 1983 to enjoin enforcement of a state court injunction prohibiting them from picketing defendant-appellee Gary Howell's liquor store. The district court held that the abstention doctrine compelled dismissal of the suit. GPCO and the three officers appeal. We affirm.

GPCO was formed ostensibly for the purpose of improving the Gresham Park area. The catalyst for forming the organization was the opening of a new liquor store, Southeast Package Store Number Two, by Gary Howell. GPCO, opposed to another liquor store in the community, picketed the business. On August 31, 1979, Gary Howell sued GPCO, its three officers,1 and Gresham Bottle Shop,2 a competing liquor store, in the Superior Court of Dekalb County, Georgia, seeking damages and an injunction against further unlawful interference with his business. Howell's complaint alleged that appellants were picketing the "entrance to his store, interfering with ingress and egress thereto by potential customers, ... shouting ... that the Plaintiff's store is under a (boycott) ..., and ... approaching, following, harassing, and otherwise attempting to prohibit potential customers from entering the (store)," the purpose being to force the closing of his business.

On August 31, 1979, Superior Court Judge Curtis Tillman issued a temporary restraining order enjoining the state defendants from picketing or otherwise illegally interfering with Howell's business. On September 12, 1979, the court held a hearing on GPCO's motion to dissolve the temporary restraining order (TRO). GPCO maintained that the TRO infringed upon its right to freedom of speech under the United States Constitution. The court denied the motion to dissolve the TRO pending an additional hearing scheduled for September 25. On September 24, Judge Tillman certified for immediate appellate review GPCO's appeal from his interlocutory order denying dissolution of the TRO.3 GPCO filed in the Georgia Court of Appeals an application for leave to appeal and petition for review wherein it again argued that the TRO violated its constitutional rights. On October 11, the application was denied. We presume that the Court of Appeals did so because it had no jurisdiction to review a case involving the constitutionality of a Georgia statute or involving extraordinary relief; such appellate jurisdiction is vested exclusively in the Georgia Supreme Court. Ga.Code § 2-3104. GPCO failed, however, to pursue its appeal in the Georgia Supreme Court.

On October 19 the state court, pursuant to a motion by GPCO, set November 15 as the date for a hearing on preliminary and permanent injunctive relief and "continued the TRO."4

On November 14 GPCO instituted an action in federal court under 42 U.S.C. § 1983 against Howell and Judge Tillman, maintaining that the TRO violated its first amendment rights. GPCO asked that the court:

(A) Declare the Notice and Order (TRO) ... issued by Judge Tillman to be violative of plaintiffs' First and Fourteenth Amendment rights;

(B) Enjoin Judge Tillman and defendant Howell from enforcing the Notice and Order.

With respect to Howell's damage claim, GPCO asked the court to:

(D)(1) Declare plaintiffs' activities to be protected by the First Amendment;

(2) Enjoin (Howell) from proceeding with the damage action in the state Court proceeding; or,

(3) In the alternative, retain jurisdiction, and enjoin the enforcement of any judgment granted to defendant Howell against the plaintiffs herein in the state Court action because of plaintiffs' protected First Amendment activities.

GPCO also asked for $20,000 in damages from Howell. GPCO further moved for a TRO enjoining enforcement of the state TRO and enjoining Howell from requesting and Judge Tillman from issuing a permanent injunction in the state proceeding.

On November 15, in the state court proceedings, GPCO moved for leave of court to file a late answer5 which inter alia "(served) notice on the Court that they desire to reserve all First Amendment ... Claims for litigation in federal Court." The state court refused to allow the late filing. It held a hearing in which GPCO as well as Howell participated. On November 20, Superior Court Judge Henley, then presiding, issued an order permanently enjoining GPCO, under Ga.Code § 54-805,6 from using force, intimidation, or threats thereof in picketing Howell's store for the purpose of interfering with his business and further enjoining picketing within 250 feet of Howell's property line. The court found that these limitations did not violate GPCO's first amendment rights. The court also made a finding of fact that, in addition to unlawfully interfering with Howell's business, GPCO's picketing "constituted a traffic hazard as well as a danger to the picketers themselves." GPCO has not appealed this permanent injunction to the Georgia Supreme Court, whose decision, if adverse, GPCO could have sought review in the United States Supreme Court. As of July 1980, Howell's state suit for damages was still pending.

Subsequently, with leave of court, GPCO amended its § 1983 complaint. GPCO replaced paragraph (B), quoted supra, with a prayer to "(e)njoin Judge Clyde W. Henley, (Sheriff of Dekalb County) Jarvis, and ... Howell from enforcing the permanent injunction issued in the state court action." GPCO also asked the federal court to declare Ga.Code §§ 54-801 to 805 violative of the first amendment both facially and as applied to GPCO.

On November 27, the federal district court denied GPCO's motion for a TRO on the grounds that GPCO had not satisfied the criteria for a grant of extraordinary relief.7 The court, however, deemed abstention inappropriate on the grounds that Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971) had not been extended to "an exclusively private dispute to which the state has never been a party in either the state or federal proceedings."

On December 21, after a hearing, the court announced it would enter an order dismissing the case on the ground of abstention. The order was issued January 17, 1980.

GPCO has appealed this ruling, raising the following issues:

1) Whether abstention was appropriate.

2) If abstention was inappropriate, whether the state adjudication is res judicata as to the constitutional issues.

3) If res judicata is also inapplicable, whether the injunction enjoining GPCO's picketing deprived GPCO of its constitutional rights.

4) Whether either side is entitled to attorney fees if it prevails on this appeal.I.

We affirm on the ground of Younger abstention. Under this doctrine, a federal court declines to exercise jurisdiction that it possesses primarily because of concerns of federalism. Henry v. First National Bank of Clarksdale, 595 F.2d 291, 300 (5th Cir. 1979). Abstention is not the equivalent of res judicata, which is an exercise of jurisdiction, nor the equivalent of lack of jurisdiction. In the case law, however, the line of demarcation between the three concepts has not been clearly drawn. Thus, to establish our power to abstain, we examine two jurisdictional issues8 which, although not briefed by either party, we reach sua sponte. Marshall v. Gibson's Products, Inc. of Plano, 584 F.2d 668 (5th Cir. 1978) (appellate court has a duty sua sponte to determine whether the district court lacked jurisdiction).9 Also, to clarify the grounds upon which we decide this case, we discuss res judicata, in addition to abstention.

The first jurisdictional issue turns on whether we consider GPCO's suit an appeal from a state court judgment or a separate suit based on the constitutional deprivations effectuated by the judgment. Under Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S. Ct. 149, 68 L. Ed. 362 (1923), district courts have no jurisdiction to review state court decisions. The district court, however, would have jurisdiction if we accept the second characterization.10

In Rooker, the federal plaintiffs sued in district court praying that a state supreme court judgment be declared null and void on constitutional grounds.11 The United States Supreme Court held without a full discussion that lower federal courts have no jurisdiction to review state court judgments. To decide whether the district court had jurisdiction to entertain GPCO's suit, we must determine the current scope and validity of Rooker.

Numerous courts have interpreted Rooker as establishing a broad rule that federal district courts have no jurisdiction to entertain a claim made by the losing party in state court that would in effect nullify or modify the state court decision. Brown v. Chastain, 416 F.2d 1012 (5th Cir. 1969)12 so interprets Rooker, holding that "independent equitable proceedings to prevent the enforcement of a judgment are considered a direct attack upon it," and, under Rooker, district courts have no jurisdiction to perform such a review of state decisions.13

Brown's test, based upon its interpretation of Rooker whether the relief prayed for would in effect modify or nullify the state court judgment is consistent with a line of the Fifth Circuit cases. See, e. g., Reynolds v. State of Georgia, 640 F.2d 702 (5th Cir. 1981); Warriner v. Fink, 307 F.2d 933 (5th Cir. 1962); Manufacturers Record Publishing Co. v. Lauer, 268 F.2d 187 (5th Cir. 1959).14

Under Brown, the district court here would have no jurisdiction over GPCO's suit to enjoin the enforcement of the state court order. However, the law in this area is confused by, inter alia, a conflict between the Brown line of cases, on the one hand, and, on the other, Supreme Court decisions which, in situations identical in relevant ways, have found abstention proper, thus implicitly holding that there is federal court jurisdiction. See, e. g., Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S. Ct. 1200, 43 L. Ed. 2d 482 (1975) (abstention proper where plaintiff essentially sought to enjoin enforcement of state trial court injunction); Juidice v. Vail, 430 U.S. 327, 97 S. Ct. 1211, 51 L. Ed. 2d 376 (1977) (abstention proper where plaintiffs sought to enjoin enforcement of state court contempt order). It is true that Huffman and Juidice do not discuss jurisdiction in light of Rooker and thus are not express authority for the proposition that district courts have jurisdiction to enjoin enforcement of state court judgments. However, as noted, to abstain is implicitly to assert that the Court has power to hear the case and would hear the case if the Younger exceptions existed15 but, due primarily to concerns of comity, declines to exercise that power.16 In Mitchum v. Foster, 407 U.S. 225, 231, 92 S. Ct. 2151, 2156, 32 L. Ed. 2d 705 (1971), the Supreme Court adopted similar reasoning, indicating that prohibiting district courts from issuing injunctions under 28 U.S.C. § 2283 in situations where Younger (or the later cases, Huffman or Juidice17 would apply is an effective overruling of Younger.18 This court has no power to overrule Supreme Court precedent.

The Brown line of cases also conflicts with Fifth Circuit cases, which, in situations where Brown would apply, hold that the state court decision is res judicata for purposes of the federal suit. Billingsley v. Seibels, 556 F.2d 276 (5th Cir. 1977); Cornwell v. Ferguson, 545 F.2d 1022 (5th Cir. 1977); Jennings v. Caddo Parish School Board, 531 F.2d 1331 (5th Cir. 1976); Cheramie v. Tucker, 493 F.2d 586 (5th Cir. 1974). See also Allen v. McCurry, 449 U.S. 90, 101 S. Ct. 411, 66 L. Ed. 2d 308 (1980); Preiser v. Rodriguez, 411 U.S. 475, 497, 93 S. Ct. 1827, 1840, 36 L. Ed. 2d 439 (1973). A holding that relitigation is barred by res judicata is a holding on the merits. The above cases do not discuss why they reach the merits or why Rooker does not apply; thus they are not in express conflict with Brown. But, under the Mitchum reasoning, a holding that Brown is correct would conflict with the above cases, for a court cannot rule on the merits without jurisdiction.19

The Brown rule is further cast in doubt by Henry v. First National Bank of Clarksdale, 444 F.2d 1300 (5th Cir. 1971) (Henry I ) and Henry v. First National Bank of Clarksdale, 595 F.2d 291 (5th Cir. 1979) (Henry II ). In Henry I a group of white merchants had sued in state court to enjoin a boycott of their stores by several civil rights groups and to recover damages for the boycott's effects. The state defendants instituted a § 1983 action in federal court20 seeking to enjoin further prosecution of the state court suit due to its chilling effect on their first amendment rights. On appeal, we held that the state action required for federal court jurisdiction under 28 U.S.C. § 1343(3) would not exist until there is a final state court judgment allegedly infringing the plaintiffs' constitutional rights.

Subsequently, the state court enjoined the state defendants from continuing the boycott and awarded damages to the state plaintiffs. The state defendants again sought relief in federal court, praying for an injunction against enforcement of the state court injunction and damage award. Henry II held that the district court had jurisdiction to entertain this suit, because the state court judgment was immediately enforceable.

Neither Henry opinion discusses Rooker; however, they implicitly conflict with Brown's interpretation of Rooker. Under the Henry opinions, federal district courts in situations such as the one before us have no jurisdiction until a state court judgment is entered; under Brown, district courts have no jurisdiction to modify the effect of a state court judgment. If Brown is correct, then Henry I should have held the district court to be forever without power to hear the case and Henry II should have remanded for dismissal for lack of jurisdiction.

The Brown rule also implicitly conflicts with cases following Mitchum v. Foster, 407 U.S. 225, 92 S. Ct. 2151, 32 L. Ed. 2d 705 (1972) in which the Supreme Court held that § 1983 suits are an exception to 28 U.S.C. § 2283, which provides:

A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.

Under Mitchum, in a § 1983 claim § 2283 does not bar a federal injunction against enforcement of a state court judgment. See, e. g., Huffman 420 U.S. at 600 n.15, 95 S. Ct. at 1206 n.15; Henry II at 300. If Brown precluded such federal injunctions due to lack of jurisdiction, these decisions would be largely meaningless: they would be holding § 2283 not to preclude federal injunctive relief in cases where invariably the Brown rule would preclude jurisdiction.

We hence are confronted with conflicting precedent: the Brown cases on the one hand; the abstention, res judicata, Mitchum, and Henry cases on the other. Although ordinarily a panel must follow a decision of this court, Brown's conflict with numerous Supreme Court cases and with the weight of Fifth Circuit authority compels us to reject Brown. With respect to Rooker, unless it can be given a narrower interpretation than accorded it by Brown, Rooker also would conflict with the above cases, including Supreme Court decisions which would have overruled Rooker sub silentio.

There are two ways to read Rooker so that it does not conflict with the cases discussed supra. First, Rooker could have turned upon the fact that the federal plaintiffs prayed for the state court judgment to be declared null and void (as violative of the Constitution). See Tang v. Appellate Division of New York Supreme Court, 487 F.2d 138, 145-46 (2d Cir. 1973) (Oakes, J., dissenting). Developments in the Law Section 1983 and Federalism, 90 Harv.L.Rev. 1133, 1334 n.14 (1977). If, instead, the plaintiffs had prayed for an injunction enjoining enforcement of the judgment, then under this theory, Rooker would not have relied on the district court's lack of appellate jurisdiction. The difference, obviously, is that in the former situation, but not the latter, the district court was asked to vacate the state judgment, an exclusively appellate act.

If this was the theory underlying Rooker, then Rooker was overruled by Fed.R.Civ.P. 8, enacted in 1938, under which complaints should be read liberally to do substantial justice. Conley v. Gibson, 355 U.S. 41, 48, 78 S. Ct. 99, 103, 2 L. Ed. 2d 80 (1957); Joe Regueira, Inc. v. American Distilling Co., Inc., 642 F.2d 826 (5th Cir. 1981); Spalitta v. National American Bank of New Orleans, 444 F.2d 291, 293 n.2 (5th Cir. 1971). Where a party asks a federal court to declare a state court judgment null and void, we should consider this as praying for an injunction enjoining its enforcement.21

Rooker also can be read as if it assumed without so holding that the district court could not exercise original jurisdiction over the claim due to a lack of both state action22 and diversity of citizenship.23 In such a situation, the only jurisdiction the federal plaintiffs could be attempting to invoke would be appellate jurisdiction over state courts. That district and circuit courts do not have such jurisdiction may be the extent of the Rooker holding. Under this interpretation of Rooker, the decision is inapposite where the federal court would have original jurisdiction, for in such case the district court's lack of appellate jurisdiction would be irrelevant.

Regardless of which way Rooker is read, the current rule is clear. First, as noted, the precise language of the complaint is not crucial, since we construe complaints liberally. Fed.R.Civ.P. 8; Conley; Regueira; Spalitta. Second, if the district court has original jurisdiction, the fact that it does not have appellate jurisdiction over state court decisions (which is clear with or without Rooker24) is irrelevant. It is to this issue, whether the district court had original jurisdiction, that we now turn.

Here the question of original jurisdiction turns on whether Howell's obtaining the state court preliminary injunction25 was sufficient to give the district court jurisdiction under 28 U.S.C. § 1343(3) which provides:

The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:

(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States; ...

The language of § 1343(3) is similar to that of § 1983 providing a cause of action for deprivations of a constitutional right under color of state law. Despite minor differences, the two sections should be construed identically. Examining Board of Engineers, Architects & Surveyors v. Flores de Otero, 426 U.S. 572, 582, 96 S. Ct. 2264, 2271, 49 L. Ed. 2d 65 (1975) (section 1343(3) was enacted "simply to enforce the substantive rights created by (§ 1983)"); Lynch v. Household Finance Corp., 405 U.S. 538, 543 n.7, 92 S. Ct. 1113, 1118, n.7, 31 L. Ed. 2d 424 (1971) ("despite the different wording of (§ 1983 and § 1343(3)), ... both sections are construed identically"). We thus interpret § 1343(3) under precedent which expressly discusses only § 1983.26

Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 98 S. Ct. 1729, 56 L. Ed. 2d 185 (1978) outlines the § 1983 requirements. A plaintiff must prove a deprivation of a "right secured by the Constitution and the laws of the United States" and that the deprivation was under color of state law. Flagg at 155, 98 S. Ct. at 1733. To satisfy the first requirement, the plaintiff must show that the defendant's action constituted state action (assuming that the constitutional right at issue is one protected only against government infringement). Id. at 156, 98 S.Ct. at 1733. Flagg emphasized that the two requirements are different: a defendant's actions under color of state law do not necessarily constitute state action.27

On the state action issue, GPCO argued to the district court that because defendants Judge Henley and Sheriff Jarvis are agents of the state, the state action requirement is met. As to Howell, GPCO maintained that acts of a private party are attributable to the state when he acts in conjunction with a state agent. Flagg compels us to reject this argument. Flagg disapproved the notion that any party who has lost in state court can claim state action. Accord, Dahl v. Akin, 630 F.2d 277, 280 (5th Cir. 1980). Although a state judge was not a defendant in Flagg, we would render this aspect of Flagg meaningless if we held that the federal plaintiff can create state action by adding the state judge as a defendant. See Dennis v. Sparks, 101 S. Ct. 183, 186 (1980) (same holding with respect to color of state law). Because there are no allegations that the judge did anything but render an arguably incorrect decision or that the sheriff did anything at all,28 the presence of the judge and sheriff as defendants is irrelevant to our consideration of state action.

Although state court judgments do not always create state action, they do in some circumstances.29 Henry II so held on facts similar to those before us, relying on Shelley v. Kraemer, 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161 (1948) (state action found in state supreme court enforcement of racially restrictive covenants) and New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964) (discussed infra). In Henry II, as noted supra, the state trial court issued a permanent injunction, pursuant to a state statute, enjoining certain civil rights groups from boycotting specified merchants; the trial court also found the civil rights groups liable for damages. The organizations appealed and moved for a stay pending appeal; the motion applied to both parts of the judgment since they could not afford the required supersedeas bond. The stay was denied by the Mississippi Chancery Court and the Mississippi Supreme Court. The organizations then filed a § 1983 action in federal court and obtained a preliminary injunction staying enforcement of both parts of the state court judgment pending appeal of it.30 This court affirmed the preliminary injunction, finding that the "immediately enforceable state judgment" created state action under § 1983.31

Under Georgia law, the state preliminary injunction in the case before us was immediately enforceable in the absence of a court order to the contrary.32 Ga. Code § 55-202. Unlike Henry II, the Georgia Supreme Court had not denied GPCO a stay, but such a denial is not required under Henry II.33

As noted supra, an immediately enforceable judgment alone is not sufficient to create state action (see also Hanna v. Home Insurance Co., 281 F.2d 298 (5th Cir. 1960)), yet Henry II does not articulate any further reasons. However, the existence of common elements in Henry II and New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), cited by Henry II, provides sufficient guidance. In Sullivan, the state court applied state common law in finding an advertisement libelous per se.34 On certiorari, the Supreme Court found state action in the state court application of the common law.35 Under Henry II and Sullivan, it appears that where a state court makes a ruling arguably infringing upon first amendment rights and the ruling is based on a state-created prohibitory rule, be it common law or statutory, the suit loses its private nature. This is the key factor in Henry II, not the state supreme court denial of the stay or the fact that the state court order was final, rather than interlocutory. Because the same factor is present here, we find state action.36

Henry II held on similar facts that there was jurisdiction under § 1343(3), thus implicitly finding color of state law. However, Henry II 's failure to discuss color of state law expressly raises a question whether Henry II considered it a separate element as required by Flagg. Alone this omission would not be sufficient to undermine Henry II 's precedential value,37 but a recent case, Dahl v. Akin, 630 F.2d 277, 282 n.4 (5th Cir. 1980), directly questions Henry II.

In Dahl, Akin, Dahl's daughter, made false, ex parte representations concerning his competency which resulted in her being appointed Dahl's guardian and in his institutionalization. Dahl subsequently sued his daughter under § 1983 for deprivation of liberty and property without due process of law; the essence of the complaint was that Akin initiated legal proceedings in bad faith. We held that because the complaint alleged a violation of procedural due process and court procedure is so peculiarly within the province of the state, there was state action. However, we then held that Akin had not acted under color of state law because state law did not compel her actions, nor did she have any authority or pretense of authority to so act. Under such a rule, a party who loses in state court could only maintain a § 1983 action against a prevailing private party in the rare instance where the latter is compelled to bring suit or is not acting as a private party, i. e., has authority or pretense of authority. Dahl recognized that such a rule conflicted with Henry II, but questioned Henry II's validity. Dahl at 282 n.4. However, despite the apparent conflict, Dahl and Henry II can be harmonized if read narrowly.38

In Dahl, the federal defendant, Akin, was, as noted, essentially sued for "initiating lawsuits in bad faith." Dahl at 281. Can such conduct be characterized as acting "with knowledge of and pursuant to" state law, which under Flagg and Adickes v. Kress & Co., 398 U.S. 144, 161 n.23, 90 S. Ct. at 1610 n.23 (1970) is a minimal requirement to satisfy the under color of state law test in a case such as ours?39 Flagg 436 U.S. at 156, 98 S. Ct. at 1733, quoted from Adickes, 398 U.S. at 161 n.23, 90 S. Ct. at 1610 n.23. Henry II meets this test; in obtaining the injunction, the state court plaintiffs clearly acted with "knowledge of and pursuant to" the state statute forbidding the boycott. One could argue that Akin acted "with knowledge of and pursuant to" the state statutes establishing the procedure for petitioning the courts. However, there is a crucial distinction between Dahl and Henry II. In Dahl, the allegedly unlawful act was Akin's use of a valid state statute; in Henry II, the unlawful act was the use of a prohibitory state statute given an allegedly unconstitutional construction by the courts. The connection between the defendant's acts and the state is much clearer in the latter situation. That such a distinction could have significance was intimated in Adickes. There the Court reserved the question whether a private party's use of a neutral, valid state trespass statute for discriminatory purposes could be "under color of state law," Adickes, 398 U.S. at 161 n.23, 90 S. Ct. at 1610,40 at the same time, the Court held that if the private defendant acted pursuant to a prohibitory state custom having the force of law, which was allegedly unconstitutionally discriminatory, the defendant acted under color of state law. By reserving one issue and deciding the other, Adickes implicitly recognizes that the distinction we draw could be relied on by future cases which find it valid.

Thus Henry II and Dahl (which has apparently answered, for the Fifth Circuit, the question reserved in Adickes) are distinguishable. As our facts are almost identical to those of Henry II, we are bound by it. Hence, we hold Howell acted under color of state law. In conjunction with our holding that there was state action, we find the jurisdictional requirements of § 1343(3) satisfied. We now consider the issues raised by the parties.

Appellees contend alternatively that the district court was correct in abstaining and that the dismissal also can be affirmed on the ground that the state court injunction bars relitigation of the claims and or issues decided therein. We find that the injunction does not have any preclusive effect but hold that abstention was correct. As the two issues have been confused, see, e. g., Cornwell v. Ferguson, 545 F.2d 1022 (5th Cir. 1977), we discuss both in order to delineate the precise scope of our holding.

Federal law, 28 U.S.C. § 1738,41 mandates that state judgments be given "the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State ... from which they are taken." This statute requires us to examine the preclusive effect of the permanent injunction in Georgia, the rendering state.42

Georgia case law is silent as to the applicability of res judicata or collateral estoppel where the decision which is claimed to be the basis thereof is entered during the pendency of another case. However, the general rule is that a judgment has preclusive effect in all suits pending at the time of decision, regardless of when the pending suit was filed. Chicago, Rock Island & Pacific Railway Co. v. Schendel, 270 U.S. 611, 46 S. Ct. 420, 70 L. Ed. 757 (1926); Hart Steel Co. v. Railroad Supply Co., 244 U.S. 294, 37 S. Ct. 506, 61 L. Ed. 1148 (1917); Bennett v. Commissioner of Internal Revenue, 113 F.2d 837 (5th Cir. 1940); Murphy v. Landsburg, 490 F.2d 319 (3d Cir. 1973) (applying Pennsylvania law); 1B Moore's Federal Practice P 0.405(1) (1980); Restatement of Judgments § 43 (1942).

For a judgment to have res judicata effect, however, it must be a "final" one. First National Bank of Dublin v. Colonial Fire Underwriters Insurance Co., 160 Ga. 166, 127 S.E. 455 (1925). Dicta in a recent Georgia Supreme Court case, Culwell v. Lomas & Nettleton Co., 242 Ga. 242, 248 S.E.2d 641 (1978), indicates that finality for res judicata purposes is measured by the same standard as finality for appealability purposes.43 Although a permanent injunction is directly appealable, it is not so because it is a final order for appealability purposes, but because of a special statutory provision, Ga.Code § 6-701(a)(3).44 Moreover, § 81A-154(b) makes clear that an order in a pending case which has not been certified is not a final order.45 Thus, because the record indicates that Howell's damage claim in the state court suit is still pending, the permanent injunction is not final for res judicata purposes.

Neither Culwell nor other Georgia cases suggest that the finality requirement is relaxed for purposes of collateral estoppel. See generally United States v. Burch, 294 F.2d 1 (5th Cir. 1961) (requiring finality for collateral estoppel).

That Georgia would not attach preclusive effect to the permanent injunction means that we are not compelled to do so by the full faith and credit clause or § 1738. The next question, however, is whether under those provisions we may give more "credit" to the Georgia order than Georgia would, i. e., can we invoke federal common law principles of res judicata and collateral estoppel if under such law the order would be final?46 We pretermit this question because even if federal principles applied, the permanent injunction would not be considered final. The most liberal federal test for determining finality for preclusion purposes is:

Whether a judgment, not "final" in the sense of 28 U.S.C. § 1291, ought nevertheless be considered "final" in the sense of precluding further litigation of the same issue, turns upon such factors as the nature of the decision (i. e., that it was not avowedly tentative), the adequacy of the hearing, and the opportunity for review. "Finality" in the context here relevant may mean little more than that the litigation of a particular issue has reached such a stage that a court sees no really good reason for permitting it to be litigated again.

Miller Brewing Co. v. Jos. Schlitz Brewing Co., 605 F.2d 990, 996 (7th Cir. 1979), quoting Lummus Co. v. Commonwealth Oil Refining Co., 297 F.2d 80, 89 (2d Cir. 1961).47 Here the injunction was appealable and GPCO makes no showing that the November 15 hearing was inadequate; thus, two of the Lummus factors for determining finality are satisfied. The key factor, however, is the "nature of the decision," i. e., whether "litigation of a particular issue has reached such a stage that a court sees no really good reason for permitting it to be litigated again." Lummus at 89. An order in a pending case should only be considered final for purposes of preclusion where it is substantially certain that subsequent proceedings will not affect it: for example, when summary judgment is granted on one of several discrete claims. Id. Here, the injunction is intimately related to issues to be litigated in the damage action; the damage claim litigation easily could lead to a modification or a vacating of the injunction. Hence, even under Lummus the injunction would not be considered final.

Therefore, the permanent injunction issued by the state court has no preclusive effect in the case before us.48B. Abstention

The district court found that, under Younger, abstention was appropriate.49 Simply stated, Younger held that a "federal district court ought not enjoin a pending50 state criminal prosecution absent exceptional circumstances such as a prosecution brought in bad faith or for harassment, a prosecution under a statute flagrantly unconstitutional in all respects or (possibly other) extraordinary circumstances." Henry II at 300. The rationale for the decision was recently summarized by this court:

This doctrine rests on the traditional reluctance of federal courts of equity to intervene in state criminal prosecutions51 and on the considerations of comity and federalism that must guide relations between state and federal courts. (Younger) explained the principle of comity as "a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways." (Younger 401 U.S.) at 44 (91 S.Ct. at 750).

Henry II at 300. Clearly, Howell's state suit is not a criminal prosecution; however, case law interpreting Younger has extended it beyond criminal prosecutions to certain civil actions. Whether Younger is applicable to the civil action before us is the critical issue raised on appeal.

In Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S. Ct. 1200, 43 L. Ed. 2d 482 (1975), the Court held Younger applicable to the plaintiff's suit for a federal court injunction enjoining enforcement of a state court injunction under a civil nuisance statute and for a declaratory judgment that the statute was unconstitutional. The state, which instituted the state court action, instead could have brought a criminal proceeding against the defendants. The Court analyzed separately the two aspects of Younger comity, on the one hand, and, on the other, the traditional reluctance of courts of equity to interfere with a criminal prosecution to determine if Younger should be extended to the case before the Court. The Court found applicable the "more vital" of the two aspects, comity52: federal interference would offend notions of comity by preventing

the state not only from effectuating its substantive policies, but also from continuing to perform the separate function of providing a forum competent to vindicate any constitutional objections interposed against those policies. Such interference also results in duplicative legal proceedings, and can readily be interpreted "as reflecting negatively upon the state court's ability to enforce constitutional principles."

Huffman at 604, 95 S. Ct. at 1208.

With regard to the aspect of Younger concerning criminal prosecutions, the Court held that the state proceeding

is more akin to a criminal prosecution than are most civil cases. The State is a party to the Court of Common Pleas proceeding, and the proceeding is both in aid of and closely related to criminal statutes which prohibit the dissemination of obscene materials. Thus, an offense to the State's interest in the nuisance litigation is likely to be every bit as great as it would be were this a criminal proceeding.

Id.

Huffman signaled an important change in Younger analysis: the replacement of the criminal versus civil issue by an inquiry as to whether the state had a strong interest in the suit similar to its interest in a criminal prosecution. In Trainor v. Hernandez, 431 U.S. 434, 97 S. Ct. 1911, 52 L. Ed. 2d 486 (1977), the Court approved abstention where the state sued a welfare recipient for money allegedly fraudulently obtained. Again, the Court held federal intervention would offend Younger notions of comity. Moreover, the object of the suit was "to vindicate important state policies such as safeguarding the fiscal integrity of (its public assistance programs). The state authorities also had the option of vindicating these policies through criminal prosecutions." Trainor at 444, 97 S. Ct. at 1918.

In Juidice v. Vail, 430 U.S. 327, 97 S. Ct. 1211, 51 L. Ed. 2d 376 (1977), the Court held abstention proper where the federal plaintiffs sought to enjoin state justices from using the allegedly unconstitutional New York law to impose contempt sanctions in the course of purely private suits. The Court not only found that federal intervention would conflict with principles of comity, but that the state proceeding involved the "State's (important) interest in the contempt process, through which it vindicates the regular operation of its judicial system." Juidice at 335, 97 S. Ct. at 1217.

In Moore v. Sims, 442 U.S. 415, 99 S. Ct. 2371, 60 L. Ed. 2d 994 (1979), the federal plaintiffs, husband and wife, sought a declaration that the Texas law under which the state was seeking in state court temporary custody of plaintiffs' allegedly abused child was unconstitutional. The Court, recognizing that Huffman had extended Younger to cases where "important state interests are involved," noted that the state "was a party to the state proceedings, and the temporary removal of a child in a child-abuse context is, like the public nuisance statute involved in Huffman, in aid of and closely related to criminal statutes." Thus, Younger was applied.

Either express or implied in each of the cited Supreme Court cases is a reservation of the question whether Younger should apply to all civil litigation. Juidice 430 U.S. at 336 n.13, 97 S. Ct. at 1217 n.13; Huffman 420 U.S. at 607, 95 S.Ct. at 1209; Trainor at 431 U.S. 444 n.8, 97 S. Ct. at 1918 n.8. Although each emphasizes that the notions of comity which would apply to all civil litigation are the more important part of Younger, the cases have yet to say that is sufficient where the state proceeding does not involve a "strong state interest." With respect to this requirement of a strong state interest, in each of the cases with the exception of Juidice, which has been narrowly limited,53 the state sued civilly in aid of a criminal statute. Thus despite the broad language concerning strong state interests, the Supreme Court has not generally extended Younger to civil suits unrelated to criminal law54 in which the state has a strong interest.55

Nor have Fifth Circuit cases extended Younger beyond the scope of these decisions. Palaio v. McAuliffe, 466 F.2d 1230 (5th Cir. 1972) has broad language to the effect that the labels "civil" and "criminal" are not important, but its holding is narrow and almost identical to Huffman: where the state proceeding involves state enforcement of civil obscenity laws in aid of state criminal law, Younger applies.

In Duke v. State of Texas, 477 F.2d 244 (5th Cir. 1973), the County Attorney obtained a preliminary injunction enjoining two scheduled speakers from speaking at North Texas State University. The speakers then sued in federal court to enjoin enforcement of the state injunction. This court held abstention appropriate, finding crucial the fact that the statute pursuant to which the County Attorney obtained the injunction authorized either criminal or civil proceeding. This signified to the court that the state was essentially enforcing its criminal laws and Younger should apply.

The most recent Fifth Circuit discussion of Younger occurred in Henry II where the facts were similar to those before us.56 After being denied a stay pending appeal by both the Mississippi Chancery Court and the Mississippi Supreme Court, the federal plaintiffs asked the district court to enjoin enforcement of the state order pending appeal. Henry II summarized the Supreme Court cases:

In each instance where the Court has applied Younger principles to civil litigation, a state or a state official was engaged in advancing important state interests in the state courts, and intervention by the federal courts would have seriously impaired the pursuit of those interests.

This court then noted the state was not a party in the suit before it. Moreover, we held that the only state interest involved was Mississippi's "interest in providing and supervising state forums for the orderly resolution of private conflicts." Henry II at 301. This interest would not be disturbed by the relief granted by the federal court which enjoined only enforcement of the order pending appeal.

In light of the above case law, the "vital concerns" of comity described in Huffman are clearly present in the case before us: federal interference would prevent Georgia from "effectuating its substantive policies" and from providing a forum for constitutional issues; such interference would also reflect negatively upon Georgia's capacity to resolve constitutional issues and would result in duplicative proceedings. Huffman, 420 U.S. at 604, 95 S. Ct. at 1208. We must, however, decide if the second component of Younger, which as noted has not been extended beyond the existence of a strong state interest in the state suit similar to the state's interest in a criminal prosecution, is also present. If the facts in this case are similar enough to Henry II, that decision would control and compel us to hold that Georgia's only interest in Howell's state suit is in providing appellate review of its trial courts' decisions. Henry II at 301. If this interest were sufficient to invoke Younger, which Henry II does not decide, then Younger would be extended to virtually all civil litigation. Thus if Henry II controls, we would have to decide whether to take this dramatic step extending Younger.57

There is, however, an important factor which distinguishes our case from Henry II. Howell's suit was in aid of state criminal law: Ga.Code § 54-9921 expressly makes violation of § 54-805 a misdemeanor. We recognize that Mississippi had criminal statutes prohibiting picketing and boycotts. See Miss.Code Ann. §§ 75-21-1 et seq.;58 § 97-23-83; § 97-23-85. Henry II, however, does not mention these statutes. Thus, Henry II is not authority with respect to their relevance to the abstention issue. In light of the Supreme Court's emphasis on the state suit's relation to criminal prosecutions, we can infer from Henry II 's failure to even mention these statutes that the issue of their relevance was not raised or considered.

The existence of Ga.Code § 54-9921 makes the case before us sufficiently like the cases discussed supra in which abstention was held appropriate to be controlled by them. It is true, as Henry II notes, that the case law approving abstention involves state suits brought by the state.59 However, we find no reason for limiting Younger to state initiated state suits. Cf. Moore v. Sims, 442 U.S. 415, 423 n.8, 99 S. Ct. 2371, 2377 n.8, 60 L. Ed. 2d 994 (1979) (that state is a party to the state suit alone is insufficient to make Younger applicable). The crucial element in the cases surveyed supra was the existence of a state interest in a civil suit in aid of criminal law.60 The state interest is not necessarily less where a private party enforces the civil claim, nor is the suit any less in aid of criminal law. In the case at bar, the relation between the civil and criminal statutes is direct. Moreover, we find unpersuasive any suggestion that Georgia's "delegation" of the civil suit to a private party implies a lesser state interest: on the contrary, granting private parties who have a strong self-interest in stopping unlawful behavior the right to sue on their own behalf appears to indicate a greater state interest in eliminating behavior elsewhere made criminal. We thus find the second Younger component satisfied. As the other Younger requirements are also present, we hold Younger abstention was appropriate.

Howell asks this court, if it rules in his favor, to award him attorney's fees under 42 U.S.C. § 1988 which provides in relevant part:

in any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.

Assuming arguendo that a defendant is a "prevailing party" within the meaning of § 1988 if the federal court dismisses the plaintiff's claim on the grounds of abstention, we nevertheless deny Howell attorney's fees. For a defendant to be entitled to attorney's fees, the plaintiff's claim would have to be "frivolous, unreasonable, or groundless, or ... plaintiff continued to litigate after it clearly became so." Church of Scientology of California v. Cazares, 638 F.2d 1272, 1290 (5th Cir. 1981). See also Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 98 S. Ct. 694, 54 L. Ed. 2d 648 (1978) (same issue in a Title VII suit). With regard to attorney's fees on appeal,61 the abstention issue is not so clear-cut as to render GPCO's appeal frivolous, unreasonable, or groundless. With regard to attorney's fees at the district court level, we hold that as a matter of law GPCO's constitutional claim also is not frivolous.62 Thus, Howell's prayer for attorney's fees at both levels is denied.

Accordingly, we AFFIRM.