Yang v. Tsui ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
8-3-2005
Yang v. Tsui
Precedential or Non-Precedential: Precedential
Docket No. 03-4714
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-4714
TSAI-YI YANG
Appellant
v.
FU-CHIANG TSUI
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 03-cv-01613)
District Judge: Honorable Thomas M. Hardiman
Argued September 30, 2004
Before: ROTH, BARRY, and CHERTOFF*, Circuit Judges.
(Filed: August 3, 2005)
Walter A. Angelini, Esquire (Argued)
Angelini & Angelini
3067 Pennsylvania Avenue
Weirton, WV 26062
Counsel for Appellant
Andrew D. Glasgow, Esquire (Argued)
Dean E. Collins, Esquire
345 Fourth Avenue, 10 th Floor
Standard Life Building
Pittsburgh, PA 15222
Counsel for Appellee
OPINION OF THE COURT
________________
* Judge Chertoff heard oral argument in this case but
resigned prior to the time the opinion was filed. The opinion
is filed by a quorum of the panel. 28 U.S.C. § 46(d).
2
ROTH, Circuit Judge:
Tsai-Yi Yang filed a Petition pursuant to the
Convention on the Civil Aspects of International Child
Abduction, done at The Hague on October 25, 1980 (Hague
Convention), and the International Child Abduction Remedies
Act, 42 U.S.C. § 11601, et seq. (2004) (ICARA), its
implementing statute, in the U.S. District Court for the
Western District of Pennsylvania. Citing Younger v. Harris,
401 U.S. 37 (1971), the District Court abstained from
consideration of the Petition and denied as moot Yang’s
motion to stay state court custody proceedings. Yang filed a
timely appeal. For the reasons that follow, we will reverse the
District Court’s decision to abstain and will remand the case
for proceedings consistent with this opinion.
I. Background
3
The undisputed facts are that Tsai-Yi Yang and Fu-
Chiang Tsui are the mother and father, respectively, of a
daughter. Yang is a resident of British Columbia, Canada,
and Tsui is a resident of Pittsburgh, Pennsylvania. A dispute
as to the custody of the child led each party to file for custody,
resulting in an award of custody to Tsui in Pennsylvania and
an award of custody to Yang in British Columbia. After
unsuccessfully attempting to secure a voluntary return of the
child, Yang filed this Petition with the District Court.
II. Jurisdiction and Standard of Review
The District Court had jurisdiction pursuant to ICARA,
42 U.S.C. § 11603. At the time Yang’s Petition was filed in
the District Court, the child was located in Pittsburgh,
Pennsylvania. We have appellate jurisdiction over the appeal
from the District Court’s final order pursuant to 28 U.S.C. §
1291.
4
We exercise plenary review over the legal
determination of whether the requirements for Younger
abstention have been met and, if so, we review the District
Court's decision to abstain for abuse of discretion. O'Neill v.
City of Phila., 32 F.3d 785, 790 (3d Cir. 1994). In reviewing
the District Court’s denial of the motion to stay, we exercise
plenary review over the District Court's legal conclusions.
Shire U.S. Inc. v. Barr Labs., Inc., 329 F.3d 348, 352 (3d Cir.
2003).
III. Discussion
A. The Hague Convention
The Hague Convention is a multilateral treaty on
parental kidnapping to which the United States and Canada
are signatories. The Hague Convention’s goal is to “protect
children internationally from the harmful effects of their
wrongful removal or retention and to establish procedures to
5
ensure their prompt return to the State of their habitual
residence, as well as to secure protection for rights of access.”
Hague Convention, Preamble, 19 I.L.M. 1501, 1501 (1980).
Article 16 provides that “until it has been determined that the
child is not to be returned under the Convention,” the state to
which the child has been removed “shall not decide on the
merits of rights of custody.” Hague Convention, art. 16, 19
I.L.M. at 1503. Article 17 provides that “[t]he sole fact that a
decision relating to custody has been given in or is entitled to
recognition in the [country to which the child has been taken]
shall not be a ground for refusing to return a child under this
Convention . . .” Id., art. 17, 19 I.L.M. at 1503.
ICARA, 42 U.S.C. §§ 11601 et seq., implements the
Hague Convention in the United States. ICARA vests state
and federal courts with concurrent jurisdiction over claims
under the Convention. 42 U.S.C. § 11603(a). ICARA further
6
provides “[t]he court in which an action is brought under
subsection (b) of this section shall decide the case in
accordance with the Convention.” 42 U.S.C. § 11603(d).
B. Younger Abstention
Although the general rule is that the pendency of a
state court proceeding is not a reason for a federal court to
decline to exercise jurisdiction established by Congress,
McClellan v. Carland, 217 U.S. 268, 281-82 (1910), an
exception to that rule is Younger abstention. Younger, 401
U.S. 37 (1971), established a principle of abstention when
federal adjudication would disrupt an ongoing state criminal
proceeding. This principle has been extended to civil
proceedings and state administrative proceedings. Moore v.
Sims, 442 U.S. 415 (1979), Williams v. Red Bank Board of
Education, 662 F.2d 1008, 1017 (3d Cir. 1981) (overruled on
other grounds as recognized in Schall v. Joyce, 885 F.2d 101,
7
108 (3d Cir. 1989). Three requirements must be met before
Younger abstention is appropriate: (1) there must be an
ongoing state judicial proceeding to which the federal
plaintiff is a party and with which the federal proceeding will
interfere, (2) the state proceedings must implicate important
state interests, and (3) the state proceedings must afford an
adequate opportunity to raise the claims. FOCUS v.
Allegheny County Court of Common Pleas, 75 F.3d 834, 843
(3d Cir. 1996).1
1
We note that the Second, Seventh, and Ninth Circuit
Courts of Appeals have developed Younger criteria that vary
from those in this Court. The Second Circuit has explicitly
stated that it considers “whether the state action concerns the
central sovereign functions of state government . . ..” Philip
Morris, Inc. v. Blumenthal, 123 F.3d 103, 106 (2d Cir. 1997).
We do not undertake such a consideration. The Seventh and
Ninth Circuits have held that the Younger doctrine applies only
when “the federal plaintiff ha(s) engaged in conduct actually or
arguably in violation of state law, thereby exposing himself to
an enforcement proceeding in state court.” Bouvagnet v.
Bouvagnet, No 01-3928, 2002 U.S. App. LEXIS 17661 at *15
8
The issue whether a District Court should abstain from
a Hague Convention Petition when a state court custody
proceeding is pending is an issue of first impression in this
Court.2 Courts in several other circuits, however, have
previously addressed this issue. Although the federal courts
applying abstention doctrines to Hague Convention Petitions
have reached different results as to whether to exercise
(7th Cir. July 26, 2002),(withdrawn 2002 U.S. App. LEXIS
17954) (internal quotations omitted). See also Green v. City of
Tuscon, 255 F.3d 1086, 1093-94 (9th Cir. 2001) (en banc)
(finding that Younger “ordinarily. . . although not always”
applies when the state proceeding is an enforcement action
against the federal plaintiff) (overruled in part on other grounds
in Gilbertson v. Albright, 381 F.3d 965, 968-69 (9 th Cir. 2004)
(en banc)). We have no such restriction.
2
There are cases in the Third Circuit in which a Hague
Convention Petition has been adjudicated by a District Court,
where a state proceeding is ongoing but where abstention was
never raised. See, e.g., Feder v. Evans-Feder, 63 F.3d 217 (3d
Cir. 1995), In re Application of Sasson v. Sasson, 327 F. Supp.
2d 489 (D.N.J. 2004).
9
abstention, there is a pattern in their analyses. In a situation
where there is a state court custody proceeding and a petition
is filed in federal court under the Hague Convention, but the
Hague Convention has not been raised, or raised but not
litigated, in the state court, the federal court has generally
found that abstention is not appropriate. See Gaudin v.
Remis, No. 03-15687, 2005 WL 1661593 (9th Cir., July 18,
2005), Holder v. Holder, 305 F.3d 854 (9th Cir. 2002);
Silverman v. Silverman, 267 F.3d 788 (8th Cir. 2001); Lops
v. Lops, 140 F.3d 927 (11th Cir. 1998); Hazbun Escaf v.
Rodriguez, 191 F. Supp. 2d 685 (E.D.Va. 2002). But see
Bouvagnet v. Bouvagnet, 2001 WL 1263497 (N.D.Ill. 2001).3
3
The Seventh Circuit Court of Appeals issued an
opinion in Bouvagnet, finding that abstention was not
appropriate, but withdrew that opinion due to the parties settling
out of court. Bouvagnet v. Bouvagnet, 45 Fed. Appx. 535 (7th
Cir. 2002).
10
Where the Hague Convention Petition has been raised and
litigated in the state court, abstention by the federal court has
generally been found to be appropriate. See Copeland v.
Copeland, 134 F.3d 362, 1998 WL 45445 (4th Cir. 1998)
(table), Cerit v. Cerit, 188 F. Supp. 2d 1239 (D. Haw. 2002).
C. Application of Younger to the Instant Case
The first question in applying the Younger abstention
doctrine to a Petition raising Hague Convention claims in
federal court is whether the federal proceeding will interfere
with an ongoing state proceeding. It is clear that if the state
proceeding is one in which the petitioner has raised, litigated
and been given a ruling on the Hague Convention claims, any
subsequent ruling by the federal court on these same issues
would constitute interference. It seems equally clear that, if
the state court in a custody proceeding does not have a Hague
Convention claim before it, an adjudication of such a claim by
11
the federal court would not constitute interference.
The difference in subject matter between a custody
determination and an
adjudication of a Hague Convention Petition is the reason for
finding no interference if the Hague Convention issues have
not been presented in state court. Custody litigation in state
court revolves around findings regarding the best interest of
the child, relying on the domestic relations law of the state
court. An adjudication of a Hague Convention Petition
focuses on findings of where the child was habitually located
and whether one parent wrongfully removed or retained the
child.4 Hague Convention, art. 3, 19 I.L.M. at 1501. These
4
In addition, as Tsui argues, if one year has elapsed
since a child was wrongfully removed or retained when a
Petition is filed, a court must also determine whether the child
is “settled in its new environment.” Hague Convention, art. 12,
19 I.L.M. at 1502. However, Yang in this case is raising a claim
for wrongful retention, not removal, which puts Yang’s Petition
12
are distinct determinations and the statutory language of the
Hague Convention and ICARA explicitly provides that these
determinations do not need to be made by the same court,
“[t]he Convention and this chapter empower courts in the
United States to determine only rights under the Convention
and not the merits of any underlying child custody claims.”
42 U.S.C. § 11601(b)(4).
The Hague Convention proceedings can in fact be held
in either state or federal court. ICARA vests concurrent
jurisdiction over Hague Convention Petitions in both court
systems. 42 U.S.C. § 11603(a). Thus, a state court custody
proceeding can include consideration of a Hague Convention
inside the one year period (the Petition was filed on October 23,
2003 and, based on the letter of permission for the child to
travel, the earliest possible date of retention is October 25, 2002
and the more logical date is December 11, 2002, when Tsui filed
for custody). Thus, the “well-settled” determination would not
be relevant in this case.
13
Petition. But the petitioner is free to choose between state or
federal court. More significantly to the case before us, the
Hague Convention provides that any state court custody
litigation be stayed pending the outcome of the Hague
Convention litigation. Hague Convention, art. 16, 19 I.L.M.
at 1503. Although ICARA does not contain a similar express
provision, the purpose of the Hague Convention is to provide
for a reasoned determination of where jurisdiction over a
custody dispute is properly placed. Therefore, it is consistent
with this purpose that it is the custody determination, not the
Hague Convention Petition, that should be held in abeyance if
proceedings are going forward in both state and federal
courts.
In the instant case, however, the District Court ruled
that it was the state court custody proceeding, not the Hague
Convention Petition, that should go forward. In doing so, the
14
court found that “the parties are engaged in ongoing judicial
proceedings” and, thus, without further discussion, found that
the first prong of Younger was satisfied. It appears that the
District Court did not apply the full analysis of the first prong
of Younger, whether a federal proceeding would interfere
with those ongoing state proceedings, particularly in light of
the language and purpose of the Hague Convention. The
parties agree that Yang has not raised the Hague Convention
in state court. In addition, the state court has entered an
interim custody order in favor of Tsui but has held no
hearings and made no findings with regard to the Hague
Convention. Thus, the District Court’s adjudication of the
Hague Convention Petition would have been consistent with
the statutory provisions and would not have interfered with
the state court proceedings. In fact, given that Yang has
obtained an order of custody from the Canadian courts and
15
Tsui has obtained a custody order from the Pennsylvania
courts, it would seem appropriate to have a federal court
adjudication, pursuant to the Hague Convention, of whether
Canada or Pennsylvania is the habitual residence of the child
and thus the location of the court which should properly
decide the custody issue.
The second prong of Younger is that the state court
proceedings must implicate important state interests. In
analyzing this prong, the District Court found that “it is well-
settled that family law is an important state interest, and
federal courts should defer to state primacy . . . not only out
of comity but also because the state is often more expert than
are [federal courts] at understanding the implications of each
decision in its practiced field.” (internal quotations omitted).
Thus, without further discussion, the District Court found that
the second prong of Younger was satisfied. Although the
16
District Court is correct that domestic relations are
traditionally the domain of state courts, the District Court
neglected to consider that Yang’s Petition was not one for
custody, but rather one for return of a child under the Hague
Convention and ICARA, which is a federal statutory matter.
See Hazbun Escaf, 191 F. Supp. 2d at 693 (finding wrongful
retention determination, as distinct from custody, is not an
important state interest). It would make the Hague
Convention and ICARA meaningless if a federal court
abstained in a Hague Convention Petition because child
custody was being disputed in state court. ICARA explicitly
provides the federal courts with jurisdiction to determine
jurisdiction over custody disputes under the Hague
Convention. If the District Court’s analysis were to be
accepted, ICARA would be a hollow statute.
The third prong of Younger is whether the state
17
proceedings afford an adequate opportunity to raise federal
claims. The District Court found that “because Congress gave
state and federal courts concurrent original jurisdiction under
[ICARA], Petitioner has had adequate opportunity to raise
this Petition before the Court of Common Pleas.” Yang
chose, however, not to do so, and the language of ICARA
does not require her to raise the Hague Convention issue in
state court. Indeed, we conclude that it would not be
appropriate to apply Younger abstention to deprive a
petitioner of a specific grant of jurisdiction in federal court,
which she has in fact elected to exercise.
D. Motion to Stay
As discussed above, the District Court erred in
dismissing Yang’s Petition because the requirements of
18
abstention were not met.5 As a result, Yang’s Petition should
have been considered by the District Court. Thus, the District
Court’s dismissal as moot of Yang’s Motion to Stay was also
in error.
IV. Conclusion
For the reasons discussed, above, abstention is not
5
Although the District Court did not address Colorado
River abstention, because some Hague Convention cases do
address Colorado River abstention, because Tsui raised
Colorado River abstention in his brief, and for reasons of
judicial efficiency, it is useful to note those requirements here.
The threshold question in this analysis is whether there is a
parallel state proceeding. Colorado River Water Conservation
District v. United States, 424 U.S. 800, 96 S. Ct. 1236, 47 L. Ed.
2d 483 (1976). Parallel cases involve the same parties and
"substantially identical" claims, raising "nearly identical
allegations and issues." Timoney v. Upper Merion Twp., 66
Fed. Appx. 403, 405 (3d Cir. 2003). The analysis of parallel
proceedings is very similar to the first prong of the Younger test
and, as in the analysis under Younger, the claims being
adjudicated and the issues being analyzed by the state and
federal courts in this case would be different. Thus, Colorado
River abstention is not appropriate here.
19
appropriate in the instant case because Yang has not raised
her Hague Convention claim in state court, because a Hague
Convention Petition and a custody determination are distinct
issues, and because the statutory provisions of ICARA and the
Hague Convention require a federal court to hear a Hague
Convention Petition in this circumstance. Thus, the District
Court’s decision to abstain under Younger and dismissal of
Yang’s Motion to Stay were both in error.
Accordingly, the judgment is reversed and the case
remanded to the District Court for consideration of Yang’s
Petition under the Hague Convention.
20