Avoyelles Pblsh Co v. Ieyoub

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 00-30627
____________________
AVOYELLES PUBLISHING CO; RANDY DECUIR
Plaintiffs - Appellants
v.
RICHARD IEYOUB; MICHAEL J JOHNSON; MCKINLEY KELLER
Defendants - Appellees
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
U.S.D.C. No.00-CV-486
_________________________________________________________________
February 12, 2001
Before KING, Chief Judge, PARKER, Circuit Judge, and KAZEN,*
District Judge.
KING, Chief Judge:**
Plaintiffs-Appellants Avoyelles Publishing Company and Randy
Decuir appeal the district court’s judgment, which held that the
*
District Judge for the Southern District of Texas,
sitting by designation.
**
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
district court lacked federal subject-matter jurisdiction based
on the Rooker-Feldman doctrine.1
Because there has been no final judgment entered in state
court, we REVERSE the district court’s judgment based on the
Rooker-Feldman doctrine denying Plaintiffs-Appellants’ motion for
an injunction and consolidated trial on the merits. For the same
reason, we REVERSE the sua sponte dismissal of Plaintiffs-
Appellants’ declaratory judgment action targeting the civil
damages provision of Louisiana’s Electronic Surveillance Act, LA.
REV. STAT. ANN. § 15:1301-1316 (West 1993). Finally, because
there has been no final judgment, nor an identity of parties or
cause of action, we VACATE the district court’s judgment,
granting a motion to dismiss the declaratory judgment action
targeting the criminal provisions of the Act on Rooker-Feldman
1
Because of this jurisdictional holding, the district
court denied Plaintiffs-Appellants’ motion for a preliminary
injunction and consolidated trial on the merits. The Plaintiffs-
Appellants had sought to enjoin Defendants-Appellees Michael
Johnson and McKinley Keller from proceeding in state court with a
civil damages action under Louisiana’s Electronic Surveillance
Act. See LA. REV. STAT. ANN. § 15:1301-1316. Also, because of this
jurisdictional finding, the district court, sua sponte, dismissed
Plaintiffs-Appellants’ declaratory judgment action, which
requested the court to find the civil damages provisions of the
Act unconstitutional as applied to Plaintiffs-Appellants, under
the First and Fourteenth Amendments of the United States
Constitution. Finally, the district court granted Defendant-
Appellee Attorney General Richard Ieyoub’s motion to dismiss
Plaintiffs-Appellants’ declaratory judgment action, which
requested the court to find the criminal penalty provisions of
the Act unconstitutional as applied to Plaintiffs-Appellants,
under the First and Fourteenth Amendments of the United States
Constitution.
2
doctrine grounds. However, because we find that Plaintiffs-
Appellants named the wrong defendant, Attorney General Ieyoub, in
their declaratory judgment action targeting the criminal
provisions of the Act, we AFFIRM the grant of the motion to
dismiss that action on the basis that there is no Article III
standing for their claim.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs-Appellants Avoyelles Publishing Company, owner of
the Avoyelles Journal, together with Randy Decuir, editor of the
Avoyelles Journal (Avoyelles Publishing Company and Randy Decuir
being herein collectively called “Avoyelles-Decuir”), oversee a
weekly newspaper printed and circulated in Avoyelles Parish,
Louisiana. Defendant-Appellee Michael Johnson is a former
District Judge for Avoyelles Parish. Defendant-Appellee McKinley
Keller is an Avoyelles Parish Police Juror. Defendant-Appellee
Richard Ieyoub is the Attorney General of Louisiana.2
On November 6, 1996, Carol Aymond, Jr., a lawyer and former
candidate for judge in Avoyelles Parish, called a public press
conference at which a reporter from the Avoyelles Journal was in
attendance. At that press conference, Aymond played a recording
of alleged conversations between Johnson and Keller and provided
2
The facts, herein, were stipulated to and included in
the district court’s opinion.
3
a typed transcript of the taped conversations.3 Aymond
represented to those in attendance that the tape had been made
legally. On November 7 and 8, 1996, the Alexandria Daily Town
Talk, owned by Central Newspapers, Inc. (“CNI”), printed articles
on the press conference in which portions of the taped
conversations were quoted. On November 10, 1996, the Avoyelles
Journal reported on the press conference and quoted similar
portions of the tape printed by the Alexandria Daily Town Talk.
The Avoyelles Journal also printed a column entitled “Alphonse
Sez” wherein the author commented on the contents of the taped
conversations.
Because of the publication of the conversations, Johnson and
Keller brought felony criminal complaints against Aymond, and on
November 25, 1996, Aymond was arrested for allegedly violating
§ 15:1303 of the Electronic Surveillance Act (the “Act”).4 The
3
The conversations involved alleged vote buying in
Avoyelles Parish.
4
Section 15:1303 provides in relevant part:
A. Except as otherwise specifically provided in this
Chapter, it shall be unlawful for any person to:
(1) Willfully intercept, endeavor to intercept, or
procure any other person to intercept or endeavor to
intercept, any wire or oral communication;
(2) Willfully use, endeavor to use, or procure any other
person to use or endeavor to use, any electronic,
mechanical, or other device to intercept any oral
communication when:
(a) Such device is affixed to, or otherwise transmits a
signal through, a wire, cable, or other like connection
used in wire communication; or
(b) Such device transmits communications by radio or
4
Avoyelles Parish District Attorney recused himself from handling
the criminal prosecution of Aymond and transferred the charges to
Attorney General Ieyoub.5
On December 2, 1996, Johnson and Keller brought a civil
suit against Aymond, Avoyelles Publishing, Decuir, John Doe (the
author of the “Alphonse Sez” column), and CNI in state district
court for violating § 15:1303 of the Act. Avoyelles-Decuir
claimed in answer to the state court civil suit that the Act
interferes with the transmission of such communication;
(3) Willfully disclose, or endeavor to disclose, to any
other person the contents of any wire or oral
communication, knowing or having reason to know that the
information was obtained through the interception of a
wire or oral communication in violation of this
Subsection; or
(4) Willfully use, or endeavor to use, the contents of
any wire or oral communication, knowing or having reason
to know that the information was obtained through the
interception of a wire or oral communication in
violation of this Subsection.
B. Any person who violates the provisions of this
Section shall be fined not more than ten thousand
dollars and imprisoned for not less than two years nor
more than ten years at hard labor, without benefit of
probation, parole, or suspension of sentence.
LA. REV. STAT. ANN. § 15:1303 (West 1993).
5
Pursuant to Article IV, § 8 of the Louisiana
Constitution, the Attorney General is granted the authority to
intervene in a civil action or proceeding and, upon written
request of a district attorney, to advise and assist in a
criminal case. LA. CONST. art. IV, § 8. In a motion for recusal
signed by Eddie Knoll, District Attorney for Avoyelles Parish,
Knoll requested “that because of the possibility of a conflict of
interest and in order to avoid even the slightest appearance of
impropriety, his office be recused from investigation and/or
prosecution of the above captioned case.” The motion was granted
on May 7, 1997.
5
would be unconstitutional under the First Amendment if
statutorily construed to apply to the publication of the
newspaper articles. Ieyoub was notified, as required by state
law, of the possible constitutional challenge to the Act and
initially chose not to participate.
In a state court proceeding, the district court addressed
the Act when ruling on Exceptions filed by Aymond and CNI. The
state district court denied Aymond’s Exception of No Cause of
Action, but granted CNI’s Exception of No Cause of Action.
Johnson and Keller appealed the state district court’s grant of
CNI’s Exception to the Louisiana Third Circuit Court of Appeal
(“Third Circuit”), which reversed the trial court on April 1,
1998. The Third Circuit held that the constitutionality of the
Act was not properly before the state district court, and thus,
it was error to decide upon it. See Johnson v. Aymond, 97-1466
(La. App. 3 Cir. 4/1/98), 709 So. 2d 1072, 1075, writ denied,
98-1181 (La. 6/19/98), 720 So. 2d 1214. CNI applied for writ to
the Louisiana Supreme Court, which denied the applications on
June 19, 1998. See Johnson v. Aymond, 720 So. 2d 1214 (La.
1998). Avoyelles-Decuir were not parties to the Exceptions, the
appeal, or the applications for writ.
In state district court, Avoyelles-Decuir filed motions for
summary judgment, which were granted without written reasons,
but which referred to the written reasons issued on CNI’s
Exception. Johnson and Keller appealed the grant of summary
6
judgment directly to the Louisiana Supreme Court. The Louisiana
Supreme Court subsequently transferred the matter again to the
Third Circuit, finding an “independent review of the record
reveals that the trial court’s judgment never rendered the Act
unconstitutional.” After this transfer, the Third Circuit then
reversed the grant of summary judgment in favor of Avoyelles-
Decuir and, in an opinion of December 23, 1998, reasoned that
the Act did not violate the First Amendment. The Third Circuit
concluded that a literal reading of the Act did not exempt media
entities from the prohibition on electronic surveillance and
dissemination and did not violate “the federal []or state
constitutional guarantee of freedom of the press.”
Avoyelles-Decuir filed an application for writ to the
Louisiana Supreme Court seeking review of the Third Circuit’s
opinion. CNI also filed an application for writ, although it
was not a party to the appeal. The Louisiana Supreme Court
denied both applications for writ. CNI then filed for writ to
the United States Supreme Court seeking review of the Third
Circuit’s opinion. The writ to the United States Supreme Court
was denied.
On March 10, 2000, Avoyelles-Decuir filed suit in federal
court seeking preliminary and permanent injunctions6 and a
6
The parties have stipulated that both Johnson and Keller
are public figures in Avoyelles Parish. Further, the parties
have stipulated that Johnson and Keller will file criminal
charges against Avoyelles-Decuir in state court and sue
7
consolidated trial on the merits, a declaratory judgment,
damages, and attorneys’ fees against Johnson and Keller, and
seeking declaratory relief and attorneys’ fees against Ieyoub as
Attorney General.7 Specifically, Avoyelles-Decuir sought
injunctive and declaratory relief against Johnson and Keller,
enjoining them from proceeding with their state civil damages
suit and also attempting to prevent future civil damages actions
under the Act should Avoyelles-Decuir decide to republish the
information. As to Ieyoub, Avoyelles-Decuir sought a
declaration that the criminal penalties under the Act could not
be applied constitutionally to members of the press who reported
on information that may have been obtained in violation of the
Act. After a hearing on the abstention and jurisdictional
issues, the district court held that the court lacked
jurisdiction to review the case under the Rooker-Feldman
doctrine.8
Avoyelles-Decuir timely appeal.
II. STANDARD OF REVIEW
Avoyelles-Decuir for damages again in state court if Avoyelles-
Decuir republish the information or attempt to introduce the
recordings and/or transcripts in state court proceedings.
7
In federal district court, CNI successfully moved to
intervene as a plaintiff, but did not appeal to this court.
8
The precise holdings of the district court are described
in note 1 supra.
8
We review questions of federal subject-matter jurisdiction
de novo. See Delgado v. Shell Oil Co., 231 F.3d 165, 175 (5th
Cir. 2000). Similarly, we review a district court’s grant of a
motion to dismiss for lack of subject-matter jurisdiction de
novo. See Cardoso v. Reno, 216 F.3d 512, 514 (5th Cir. 2000);
Rodriguez v. Tex. Comm’n on the Arts, 199 F.3d 279, 280 (5th
Cir. 2000).
III. JURISDICTION
At the outset, we emphasize the important role abstention
plays in our federal system. “[W]e have recognized that the
authority of a federal court to abstain from exercising its
jurisdiction extends to all cases in which the court has
discretion to grant or deny relief.” Quackenbush v. Allstate
Ins. Co., 517 U.S. 706, 718 (1996). Numerous abstention
doctrines have been developed to effectuate a proper federal-
state balance in resolving litigation in both federal and state
courts. See, e.g., Younger v. Harris, 401 U.S. 37, 43 (1971);
Samuels v. Mackell, 401 U.S. 66, 72 (1971); see also Steffel v.
Thompson, 415 U.S. 452, 462 (1974); Huffman v. Pursue, Ltd., 420
U.S. 592, 604 (1975); Hicks v. Miranda, 422 U.S. 332, 349
(1975); Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975);
Juidice v. Vail, 430 U.S. 327, 336-37 (1977); Wooley v. Maynard,
430 U.S. 705, 711-12 (1977); Moore v. Sims, 442 U.S. 415, 423
9
(1979); Pennzoil Co. v. Texaco, 481 U.S. 1, 10 (1987); New
Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491
U.S. 350, 367-68 (1989).
Of course, despite the availability of abstention, federal
courts have a concomitant responsibility to exercise the
jurisdiction granted to them by Congress. See Quackenbush, 517
U.S. at 716 (“[F]ederal courts have a strict duty to exercise
the jurisdiction that is conferred upon them by Congress.”); see
also Colo. River Water Conservation Dist. v. United States, 424
U.S. 800, 817 (1976) (recognizing “the virtually unflagging
obligation of the federal courts to exercise the jurisdiction
given them”). Because the district court’s holding was based on
the Rooker-Feldman doctrine, this case presents a question of
jurisdiction, not abstention.9 Our holding, therefore,
necessarily does not address the propriety of other possible
abstention doctrines available to the district court.
9
The Supreme Court recently referred to the Rooker-
Feldman doctrine as the “Court’s Rooker/Feldman abstention
doctrine,” thus perhaps blurring the distinction between
jurisdictional doctrines and abstention doctrines. See Johnson
v. De Grandy, 512 U.S. 997, 1005 (1994). Analytically, however,
it is generally understood that the Rooker-Feldman doctrine bars
a federal district court’s jurisdiction to review a case,
precluding even a consideration of available abstention
doctrines. See Pennzoil v. Texaco, 481 U.S. 1, 10 (1987)
(finding that lower court should have abstained from deciding the
issue before the court; however, in recognizing the propriety of
federal abstention, the Court also implicitly recognized that the
Rooker-Feldman doctrine did not bar the district court’s federal
jurisdiction to decide those abstention questions).
10
The narrow question before this court is whether the
Rooker-Feldman doctrine, as applied in the Fifth Circuit, is
applicable to the facts of the case. More precisely, the
question is whether the district court had subject-matter
jurisdiction to deny Avoyelles-Decuir’s motion for an injunction
and to grant Ieyoub’s motion to dismiss the declaratory judgment
action. Because our answer turns on the particular development
of the Rooker-Feldman doctrine in this circuit, and the finality
of the state court decision in this case, we address each point
in turn.
A. The Rooker-Feldman Doctrine
The Rooker-Feldman doctrine takes its name from two Supreme
Court cases, Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923),
and District of Columbia Court of Appeals v. Feldman, 460 U.S.
462 (1983). The doctrine provides that “federal district courts
lack jurisdiction to entertain collateral attacks on state
judgments.” United States v. Shepherd, 23 F.3d 923, 924 (5th
Cir. 1994). The justification for this jurisdictional bar is
found by negative implication in 28 U.S.C. § 1257, which
provides that “[f]inal 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[.]” 28
U.S.C. § 1257 (1993). Because no parallel provision exists
similarly granting appellate jurisdiction over state court
11
decisions by federal district courts, courts have reasoned “that
‘federal district courts, as courts of original jurisdiction,
lack appellate jurisdiction to review, modify, or nullify final
orders of state courts.’” Weekly v. Morrow, 204 F.3d 613, 615
(5th Cir. 2000) (quoting Liedtke v. State Bar of Tex., 18 F.3d
315, 317 (5th Cir. 1994)).10
Application of this doctrine is clarified by examining the
Feldman case. In Feldman, a District of Columbia bar applicant
was denied bar admission because he had not graduated from an
accredited law school. See Feldman, 460 U.S. at 465. Feldman
appealed to the D.C. Court of Appeals for a waiver of the
accreditation requirement and was denied. Feldman then sought
relief in federal court, challenging the adverse decision of his
application and bringing general constitutional challenges to
the bar rules. See id. at 468. In determining jurisdiction,
the Supreme Court distinguished between “Feldman’s broad-based
challenges to the constitutionality of the bar’s rules and his
challenges to the constitutionality of his individual
disciplinary proceedings.” Musslewhite v. State Bar of Tex., 32
F.3d 942, 945 (5th Cir. 1994) (interpreting Feldman in the
context of Fifth Circuit Rooker-Feldman jurisprudence).
10
This doctrine also arises from the negative inference in
28 U.S.C. § 1331, which establishes that a district court has
“original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.” 28 U.S.C.
§ 1331 (1993).
12
The Supreme Court found that federal courts do have
subject-matter jurisdiction to review “general constitutional
attacks,” see id. at 946,11 but do not have subject-matter
jurisdiction over “challenges to state-court decisions in
particular cases arising out of judicial proceedings even if
those challenges allege that the state court’s action was
unconstitutional.” Feldman, 460 U.S. at 496.
Courts have expanded this jurisdictional limitation to
include general constitutional challenges that are “inextricably
intertwined” with the state court judgment. See Musslewhite, 32
F.3d at 946 (“[T]he Feldman distinction meant that a general
constitutional attack that is nonetheless ‘inextricably
intertwined’ with a state court judgment [] cannot be properly
heard in federal court.”); see also Shepherd, 23 F.3d at 924
(“If the district court is confronted with issues that are
‘inextricably intertwined’ with a state judgment, the court is
‘in essence being called upon to review the state-court
decision,’ and the originality of the district court’s
jurisdiction precludes such a review.” (citations omitted)).
Despite general agreement about the basic rule of Rooker-
Feldman, the doctrine has developed differently among the
11
The Supreme Court’s precise language in the context of
state bar rules was: “United States district courts, therefore,
have subject-matter jurisdiction over general challenges to state
bar rules, promulgated by state courts in non-judicial
proceedings, which do not require review of a final state-court
judgment in a particular case.” Feldman, 460 U.S. at 486.
13
circuits.12 Recent scholarly commentary has examined these
differences and the interplay between the Rooker-Feldman
doctrine and other traditional forms of preclusion.13
We are bound, however, by the existing Fifth Circuit
precedent that has interpreted Rooker-Feldman in a manner
consistent with the requirements of the full faith and credit
requirement. See Davis v. Bayless, 70 F.3d 367, 376 (5th Cir.
1995) (“[O]ur Circuit has not allowed the Rooker-Feldman
doctrine to bar an action in federal court when that same action
would be allowed in the state court of the rendering state.”);
see also Am. Airlines, Inc. v. Dep’t of Transp., 202 F.3d 788,
801 n.9 (5th Cir. 2000) (“[W]e have not applied the Rooker-
Feldman jurisdictional bar in cases where we have found it
inappropriate to require a federal court to give full faith and
12
See, e.g., H.C. v. Koppel, 203 F.3d 610, 612 (9th Cir.
2000); Kiowa Indian Tribe v. Hoover, 150 F.3d 1163, 1169-71 (10th
Cir. 1998); Richardson v. D.C. Court of Appeals, 83 F.3d 1513,
1515 (D.C. Cir. 1996); Charchenko v. City of Stillwater, 47 F.3d
981, 983 (8th Cir. 1995); GASH Assocs. v. Village of Rosemont,
995 F.2d 726, 728 (7th Cir. 1993).
13
See, e.g., Thomas D. Rowe, Jr., Rooker-Feldman: Worth
Only the Power to Blow It Up?, 74 NOTRE DAME L. REV. 1081 (1999);
Suzanna Sherry, Judicial Federalism in the Trenches: The Rooker-
Feldman Doctrine in Action, 74 NOTRE DAME L. REV. 1085 (1999);
Barry Friedman & James Gaylord, Rooker-Feldman, From the Ground
Up, 74 NOTRE DAME L. REV. 1129 (1999); Susan Bandes, The Rooker-
Feldman Doctrine: Evaluating Its Jurisdictional Status, 74 NOTRE
DAME L. REV. 1175 (1999); Jack M. Beermann, Comments on Rooker-
Feldman or Let State Law Be Our Guide, 74 NOTRE DAME L. REV. 1209
(1999); Howard M. Erichson, Interjurisdictional Preclusion, 96
MICH. L. REV. 945 (1998); Gary Thompson, The Rooker-Feldman
Doctrine and the Subject Matter Jurisdiction of Federal District
Courts, 42 RUTGERS L. REV. 859 (1990).
14
credit to a state court judgment.”). For example, in Gauthier
v. Continental Diving Services. Inc., this court “decline[d] to
apply Rooker-Feldman in a way that would require a federal court
to give greater deference to a state court judgment than a court
of the state in which the judgment was rendered would give it.”
831 F.2d 559, 561 (5th Cir. 1987). This court found:
Rooker-Feldman casts in jurisdictional terms a rule that is
very close if not identical to the more familiar principle
that a federal court must give full faith and credit to a
state court judgment. To satisfy the full faith and credit
requirement, a federal court must give the same deference
to a state court judgment that a court of the rendering
state would give it.
Id. (citations omitted); see also Davis, 70 F.3d at 376. Our
determination of the Rooker-Feldman issue, thus, turns on the
preclusive effect Louisiana courts would give to the Third
Circuit’s reversal of summary judgment in favor of Johnson and
Keller, a decision that also decided the constitutionality of
the Act. As will be demonstrated, Louisiana’s res judicata law
comports with this circuit’s existing jurisprudence, requiring a
final state court judgment before the Rooker-Feldman doctrine
bars federal jurisdiction.
B. Final Judgments Under Louisiana’s Res Judicata Law
The question whether Avoyelles-Decuir would be barred from
litigating their claims in Louisiana state court is determined
by analyzing Louisiana’s res judicata law. Louisiana’s res
judicata statute, LA. REV. STAT. ANN. § 13:4231, provides:
15
Except as otherwise provided by law, a valid and final
judgment is conclusive between the same parties, except on
appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all
causes of action existing at the time of final judgment
arising out of the transaction or occurrence that is the
subject matter of the litigation are extinguished and
merged in the judgment.
(2) If the judgment is in favor of the defendant, all
causes of action existing at the time of final judgment
arising out of the transaction or occurrence that is the
subject matter of the litigation are extinguished and the
judgment bars a subsequent action on those causes of
action.
(3) A judgment in favor of either the plaintiff or the
defendant is conclusive, in any subsequent action between
them, with respect to any issue actually litigated and
determined if its determination was essential to that
judgment.
LA. REV. STAT. ANN. § 13:4231 (West 1993). As a Louisiana court
recently explained, res judicata is broadly construed:
La. R.S. 13:4231 embraces the broad usage of the phrase
“res judicata” to include both claim preclusion (res
judicata) and issue preclusion (collateral estoppel).
Under claim preclusion, a final judgment on the merits
precludes the parties from relitigating matters that were
or could have been raised in that action. Under issue
preclusion or collateral estoppel, however, once a court
decides an issue of fact or law necessary to its judgment,
that decision precludes relitigation of the same issue in a
different cause of action between the same parties.
Hudson v. City of Bossier, 33,620 (La. App. 2 Cir. 8/25/00), 766
So. 2d 738, 743, writ denied, (La. 11/27/00). Therefore,
“[a]fter a final judgment, res judicata bars relitigation of any
subject matter arising from the same transaction or occurrence
of a previous suit. . . . A judgment determining the merits of a
case is a final judgment.” Tate v. Prewitt, 33,895 (La. App. 2
Cir. 9/27/00), 769 So. 2d 800, 803, reh’g denied, (10/26/00).
16
“Once a final judgment acquires the authority of the thing
adjudged, no court has jurisdiction to change the judgment.”
Id. at 804.14
Further, the res judicata doctrine requires “the existence
of three ‘identities’ between the previous and subsequent suits:
(1) the thing demanded must be the same; (2) the cause of action
must be the same; and (3) the same parties must be appearing in
the same capacity.” Gilbreath v. Gilbreath, 32,292 (La. App. 2
Cir. 9/22/99), 743 So. 2d 300, 303; see also Thurston v.
Thurston, 31895 (La. App. 2 Cir. 8/20/99), 740 So. 2d 268, 269-
70 (recognizing the three identities and finding that “[t]he
doctrine of res judicata is strictly construed. Any doubt
regarding compliance with its requirements is to be resolved in
favor of maintaining the plaintiff’s action.”).
14
The 1990 comments to Louisiana’s res judicata statute,
LA. REV. STAT. ANN. § 13:4231, provide guidance about the
definition of a valid final judgment. Under the heading “Valid
and Final,” the Comment explains:
To have any preclusive effect a judgment must be valid, that
is, it must have been rendered by a court with jurisdiction
over subject matter and over parties, and proper notice must
have been given. The judgment must also be a final
judgment, that is, a judgment that disposes of the merits in
whole or in part. The use of the phrase “final judgment”
also means that the preclusive effect of a judgment attaches
once a final judgment has been signed by the trial court and
would bar any action filed thereafter unless the judgment is
reversed on appeal.
LA. REV. STAT. ANN. § 13:4231 cmt. D.
17
Two important principles are distilled from the above
review of Louisiana law. First, in order for the doctrine of
res judicata to apply, there must be a final judgment. See
State v. Shaddinger, 97-439 (La. App. 5 Cir. 10/28/97), 702 So.
2d 965, 970 (“The principle of res judicata is applicable only
where a final judgment has been rendered.”), writ denied, 97-
2989 (La. 2/6/98), 709 So. 2d 743; G.B.F. v. Keys, 29,006 (La.
App. 2 Cir. 1/22/97), 687 So. 2d 632, 634 (“In order to plead
res judicata, it is necessary that there be a final judgment.”),
writ denied, 97-0385 (La. 3/21/97), 691 So. 2d 94. Second,
there must be an identity of parties and cause of action between
the suits.
1. The District Court’s Denial of Avoyelles-Decuir’s Motion for
an Injunction and Consolidated Trial on the Merits on Rooker-
Feldman Grounds
In the instant case, the district court determined that the
Third Circuit’s reversal of the grant of summary judgment to
Avoyelles-Decuir was a judgment that barred federal district
court review of Avoyelles-Decuir’s motion for an injunction and
consolidated trial on the merits. While we agree with the
principle that such federal intervention in ongoing state
proceedings implicates serious concerns of federalism, we
disagree with the district court’s application of the Rooker-
Feldman doctrine. See H.C. v. Koppel, 203 F.3d 610, 612 (9th
18
Cir. 2000) (“Because we are not asked to review the merits of a
final state judgment, but rather to enjoin ongoing state
proceedings, we conclude that principles of abstention rather
than Rooker-Feldman govern this case.”).
From our review of Louisiana law, this reversal of a grant
of summary judgment is not a final judgment implicating res
judicata and, thus, under the law of this circuit, not a final
judgment implicating the Rooker-Feldman doctrine. See Lee v.
Allied Chem. Co., 337 So. 2d 525, 525 (La. 1976) (stating in a
denial of a writ of certiorari, “Since the court of appeal
reversed a summary judgment and remanded[,] the judgment is not
final and will not be reviewed at this time”); Lorio v. Safeco
Ins. Co., 318 So. 2d 54, 54 (La. 1975) (similarly denying writ
and stating, “Since the matter was remanded for trial upon
reversal of summary judgment, . . . the judgment is not final”).
The parties in oral argument before the district court also
appear to have conceded that the Third Circuit’s decision was
not a final judgment,15 and the district court found “[i]t is
15
At the April 20, 2000 federal district court proceeding,
the district court asked Special Assistant Attorney General
Michael Skinner: “And you would agree that we don’t have a
situation where the state has rendered a final judgment?” To
which Skinner responded: “I believe that’s correct, your honor.”
In similar fashion, John Baker, attorney for Avoyelles-Decuir,
argued to the court: “[Y]our honor has already indicated, and Mr.
Skinner agreed with you, that there was no final judgment for
purposes of state court at this point, and that knocks out
Rooker-Feldman.”
Further, if the Third Circuit’s opinion was a final judgment
with res judicata effect, CNI would have been barred from raising
19
true, as the plaintiffs argue, that no final judgment has been
reached in the state court matter.”
While our holding on the Rooker-Feldman doctrine turns on
the above analysis of Louisiana law, we note that this
requirement of a final state judgment has been a consistent
requirement in this circuit’s federal Rooker-Feldman
jurisprudence. As is evidenced by the purpose and language of
Feldman and subsequent cases, the Rooker-Feldman doctrine in
this circuit has always been triggered by some state court final
judgment. Feldman, itself, involved a final judicial decision
of the highest court of a jurisdiction, see 460 U.S. at 486,
thus tracking § 1257's requirement of “[f]inal judgments or
decrees rendered by the highest court of a State in which a
decision could be had.” 28 U.S.C. § 1257. This circuit has
also followed the rule that there must be some final judgment of
some state court before the Rooker-Feldman doctrine bars federal
jurisdiction. See Weekly v. Morrow, 204 F.3d 613, 615 (5th Cir.
2000) (finding Rooker-Feldman to bar federal district court
review after appellant appealed state judgment at each level of
Louisiana state court system and then to the United States
Supreme Court); Reitnauer v. Tex. Exotic Feline Found. Inc., 152
F.3d 341, 344 (5th Cir. 1998) (finding district court violated
the issues again in state court. At the time of briefing for
this appeal, there was a scheduled state court hearing planned
for May 5, 2000 on the constitutional issues, which apparently
were not barred by Louisiana res judicata law.
20
the Rooker-Feldman doctrine by sitting in appellate review of
the state court judgment); Davis v. Bayless, 70 F.3d 367, 376
(5th Cir. 1995) (finding judicial order authorizing receivers to
take possession of receivership property not to be a final
judgment under Texas law and thus to preclude application of the
Rooker-Feldman doctrine); Liedtke v. State Bar of Tex., 18 F.3d
315, 317 (5th Cir. 1994) (finding state court default judgment
disbarring lawyer, which was not timely and properly appealed in
state court, barred federal review under the Rooker-Feldman
doctrine); Phinizy v. Alabama, 847 F.2d 282, 283 (5th Cir. 1988)
(disallowing under the Rooker-Feldman doctrine a federal
challenge to an Alabama probate court’s judgment that had been
appealed several times through state and federal courts).16 We
16
Despite the pattern of requiring a final judgment in
this circuit, the level of the required state court judgment has
not been conclusively established. For example, on one occasion,
this court has interpreted the Rooker-Feldman doctrine to apply
only to final state court judgments as rendered by the highest
court of a state in which a decision could be had. See In re
Meyerland, 960 F.2d 512, 516 (5th Cir. 1992) (“Under the Rooker-
Feldman line of cases, federal statute defines ‘final state court
judgments’ as those ‘rendered by the highest court of a state in
which a decision could be had.’” (quoting 28 U.S.C. § 1257(a)).
In contrast, in a pre-Meyerland case, this court held that the
Rooker-Feldman doctrine barred federal review of a state court
divorce decree that had been entered and was being appealed. See
Hale v. Harney, 786 F.2d 688, 691 (5th Cir. 1986) (“We hold no
warrant to review even final judgments of state courts, let alone
those which may never take final effect because they remain
subject to revision in the state appellate system.”). Hale did
not involve a decision of the state’s highest court, as it
invoked Rooker-Feldman on the basis of a state trial court
divorce decree that was final (subject to appeal). Hale has been
cited for the holding that the Fifth Circuit does not require a
final judgment for purposes of Rooker-Feldman. While Hale stands
21
note that other circuits have differed on what stage of state
judgment precludes federal jurisdiction in Rooker-Feldman
cases.17
Therefore, under this analysis, at a minimum there must be
some state court final judgment before the Rooker-Feldman
doctrine properly precludes federal jurisdiction. Because the
for the proposition that the Rooker-Feldman doctrine can be
invoked before a final judgment of the highest state court, it
does not resolve the question whether the Rooker-Feldman doctrine
applies even before a final judgment of a state court.
We need not definitively resolve this conflict today,
because following both Meyerland and Hale, this circuit has
always required that there be at least some final state court
judgment from some state court, a requirement that is lacking in
the instant case.
17
For example, some circuits have invoked Rooker-Feldman
without a final judgment on the merits. See Richardson v. D.C.
Court of Appeals, 83 F.3d 1513, 1515 (D.C. Cir. 1996) (finding
that Rooker-Feldman applies to state court’s interlocutory
judgments); Charchenko v. City of Stillwater, 47 F.3d 981, 983
n.1 (8th Cir. 1995) (holding that the Rooker-Feldman doctrine is
broader than claim and issue preclusion because it does not rely
on final judgments). Other circuits have required that a final
judgment issue before Rooker-Feldman can be applied. See United
States v. Owen, 54 F.3d 271, 274 (6th Cir. 1995). In a recent
First Circuit case, the court keyed its Rooker-Feldman final
judgment analysis to whether, under § 1257, the Supreme Court
could grant certiorari. See Hill v. Town of Conway, 193 F.3d 33,
40 (1999). The court focused on the language in § 1257 granting
Supreme Court review of “final judgments or decrees rendered by
the highest court of a State in which a decision could be had.”
Id. (quoting 28 U.S.C. § 1257). The court then found that when a
state supreme court (the highest court) exercises its discretion
to decline to review a judgment of a lower state court, then
since the judgment of that lower state court is reviewable by the
United States Supreme Court on certiorari, the Rooker-Feldman
doctrine bars collateral review in federal district court. See
id. The Hill case gives credence to the Meyerland interpretation
of Rooker-Feldman. See In re Meyerland, 960 F.2d at 516
(focusing on the “highest court of a state” language in § 1257);
see also supra note 16.
22
reversal of summary judgment is not such a final judgment under
Louisiana law, the Rooker-Feldman doctrine is not applicable.
After a reversal of summary judgment, the state trial court is
now charged with determining the merits of the cause of action.
While we recognize that the trial court may well come to the
same conclusion as the Third Circuit in regard to its
constitutionality, it is not compelled to do so.18 In any event,
18
While the Third Circuit’s reversal of summary judgment
and determination of the constitutional issues may provide “the
law of the case,” the law of the case does not have res judicata
effect. See Keller v. Thompson, 134 So. 2d 395, 398 (La. Ct.
App. 1962) (recognizing the general rule that the law of the case
should control subsequent decisions, but also that the law of the
case is not a final judgment and therefore not res judicata and
thus not conclusively binding). Under the law of the case
doctrine in Louisiana, courts will generally defer to legal
determinations such as the one made by the Third Circuit. Avenue
Plaza, L.L.C. v. Falgoust, 96-0173 (La. 7/2/96), 676 So. 2d 1077,
1080. However, the decision to defer to these legal
determinations is not equivalent to res judicata. See Keller,
134 So. 2d at 398; see also Marsh Eng’g v. Parker, 96-1434 (La.
9/27/96), 680 So. 2d 637, 637 n.3 (Lemmon, J., concurring) (“The
‘law of the case’ doctrine may apply as to [the litigated] issue
in the intermediate court on an appeal after the district court
on remand renders a judgment deciding the entirety of the merits.
However, while an appellate court has the power to revisit an
issue when the ‘law of the case’ doctrine applies, no court has
the power to change a judgment that has become res judicata.”).
As this court recognized in Loumar, Inc. v. Smith, while the two
concepts are similar, the law of the case doctrine is a pragmatic
and not a mandatory consideration:
The law of the case doctrine is closely related to the
principle of res judicata. The latter prevents collateral
attack on the result of a completed lawsuit between the same
parties; the former prevents collateral attacks against the
court’s rulings during the pendency of a lawsuit. . . . Res
judicata, however, is categoric and requires that respect be
accorded the prior judgment, while the law of the case
doctrine is merely a “rule of practice, based upon sound
policy that when an issue is once litigated and decided,
23
there will be no final judgment with res judicata effect until
the trial court determines the issue.19 This judgment, of
course, will be reviewed through the proper state appellate
process, and the Third Circuit is within its discretion to
reverse itself on the constitutional issues. Accordingly, the
that should be the end of the matter.”
698 F.2d 759, 762 (5th Cir. 1983) (citing United States v. U.S.
Smelting Ref. & Mining Co., 339 U.S. 186, 198 (1950)); see also
Pegues v. Morehouse Parish Sch. Bd., 706 F.2d 735, 738 (5th Cir.
1983). In the instant case, not only has the state district
court not ruled on the constitutionality of the statute, but the
constitutional issues were never briefed or argued by Avoyelles-
Decuir in any of the state court litigation. Thus, the Third
Circuit could well hear the argument and reverse itself on
appeal. We decline to extend the Rooker-Feldman doctrine to bar
federal jurisdiction when law of the case doctrine applies, as it
has the potential to create conflict with the law in this circuit
and has not been briefed by the parties. Abstention doctrines
serve well enough to resolve the issues without modifying our
Rooker-Feldman jurisprudence.
19
Supporting the ongoing nature of the proceedings, the
Third Circuit recently denied an application for a writ by Aymond
(not a party in the federal case) recognizing:
[T]he ruling of the trial court as to the constitutionality
of the Louisiana Electronic Surveillance Act, La. R. S.
15:1301 et seq., as applied to the facts of this case can be
reviewed following the trial on the merits. Therefore, at
this point in the litigation, we decline to exercise this
court’s supervisory jurisdiction to review the trial court’s
ruling.
With respect to the trial court’s declaring the
foregoing statutory scheme unconstitutional insofar as
criminal proceedings are concerned, we find that the trial
court was without authority to decide this issue as the only
matter before the trial court at this time is the civil
proceeding; consequently, this portion of the trial court’s
ruling is obiter dictum.
Johnson v. Aymond, No. CW-00-00786 (La. App. 3 Cir. 7/7/00)
(unpublished denial of writ).
24
lack of a final judgment precludes application of the Rooker-
Feldman doctrine, and the district court erred in applying it.
2. The District Court’s Grant of Defendants-Appellees’ Motion to
Dismiss the Declaratory Judgment Actions
Because the district court granted Ieyoub’s motion to
dismiss on Rooker-Feldman grounds, we address that
jurisdictional bar first. The Rooker-Feldman doctrine, however,
does not end our analysis as to the district court’s subject-
matter jurisdiction. On appeal, Ieyoub also raises an Eleventh
Amendment argument, stating that because the Attorney General
has no direct authority to bring criminal charges against
Avoyelles-Decuir, the declaratory judgment action is barred as a
suit against the state. However, because we find that this lack
of authority negates Avoyelles-Decuir’s Article III standing to
bring the declaratory judgment action, we do not reach the
Eleventh Amendment issue.
a. Rooker-Feldman and the Declaratory Judgment Action Targeting
the Criminal Provisions of the Act
Under Louisiana’s res judicata law, Avoyelles-Decuir’s
general declaratory challenge to the criminal penalties
provision of the Act does not constitute a relitigation of the
Third Circuit’s reversal of summary judgment in the civil suit.
In addition to the lack of a final judgment, which under the law
of this circuit, precludes application of the Rooker-Feldman
25
doctrine, under Louisiana law, the requirements of “identity of
the parties” and “identity of the cause of action” are not met.
As to identity of the parties, the Third Circuit’s reversal
of summary judgment involved only the civil suit brought by
Johnson and Keller. No criminal charges have been brought
against Avoyelles-Decuir, and at no point was Ieyoub a party to
the state litigation. Therefore, neither Ieyoub nor any other
state official charged with enforcing the Act can rely on the
res judicata effect of the state court’s reversal of summary
judgment on a civil damages action. See Burkhalter v. Palmer,
2000-0491 (La. App. 4 Cir. 4/26/00), 764 So. 2d 85, 87, reh’g
denied, (7/17/00) (finding that res judicata did not apply
without identity of parties); see also FOCUS v. Allegheny County
Court of Common Pleas, 75 F.3d 834, 841 (3d Cir. 1996) (finding
that third parties not involved in state action are not barred
by Rooker-Feldman); United States v. Owens, 54 F.3d 271, 274
(6th Cir. 1995) (finding that Rooker-Feldman applies only to
parties who participated in the state litigation).
In addition, a declaratory judgment action challenging
threatened criminal penalties may provide a different “cause of
action” than what was decided by the Third Circuit. The
litigation would be based on a new complaint and based on a
challenge to the criminal portions of the Act not at issue in
Johnson and Keller’s lawsuit. Accordingly, res judicata, and
thus under the jurisprudence of this circuit, Rooker-Feldman,
26
would not apply to prevent state or federal courts from hearing
Avoyelles-Decuir’s declaratory judgment action against the
criminal application of the Act.20
b. The Eleventh Amendment and the Declaratory Judgment Action
Targeting the Criminal Provisions of the Act
As stated, Ieyoub first raised the Eleventh Amendment issue
on appeal.21 Ieyoub argues that the Eleventh Amendment, as
interpreted by the Supreme Court, bars suits against the state.
See U.S. CONST. amend. XI; Edelman v. Jordan, 415 U.S. 651, 663
(1974); Ex Parte Young, 209 U.S. 123, 153 (1908); Hans v.
Louisiana, 134 U.S. 1, 13-15 (1890). In this case, because
Ieyoub, as Attorney General, does not have specific enforcement
power in criminal matters, and thus does not have enforcement
20
We recognize that the district court’s sua sponte
dismissal of the declaratory judgment targeting the civil
penalties provision of the Act presents a difficult question
whether this declaratory challenge is a relitigation of the civil
damages action brought by Johnson and Keller. It has been
stipulated in the record that Avoyelles-Decuir will be sued again
by Johnson and Keller if the recorded information is republished,
and thus there exists threatened action of new civil litigation
potentially not resolved by the Third Circuit’s decision.
However, a federal court’s declaration that the civil provisions
of the Act are unconstitutional would implicate the
constitutional judgment of the Third Circuit and would raise
legitimate questions of federal review of state court opinions.
At this point in the litigation, without a final judgment entered
in state court, we need not parse the “inextricably intertwined”
nature of these claims.
21
This court may reach the Eleventh Amendment question in
this posture. See Calderon v. Ashmus, 523 U.S. 740, 745 n.2
(1998) (recognizing that the Eleventh Amendment issue can be
raised at any stage of the proceedings).
27
power to prosecute Avoyelles-Decuir, Ieyoub argues that the
declaratory judgment action is, in essence, a suit against the
state. See Young, 209 U.S. at 153 (“[I]t is plain that such
officer must have some connection with the enforcement of the
act, or else it is merely making him a party as a representative
of the state, and thereby attempting to make the state a
party.”).
Ieyoub’s argument is based on the delegation of statutory
powers in Louisiana. Under Article IV, § 8 of the Louisiana
Constitution, the Attorney General is granted authority to
prosecute only “upon the written request of a district attorney,
to advise and assist in the prosecution of a criminal case . . .
[or] for cause, when authorized by the court which would have
original jurisdiction and subject to judicial review.” L A.
CONST. art. IV, § 8. The true authority and responsibility to
prosecute criminal matters in Louisiana lies with the local
district attorney, pursuant to Article V, § 26(B) of the
Louisiana Constitution, which states: “Except as otherwise
provided by this constitution, a district attorney, or his
designated assistant, shall have charge of every criminal
prosecution by the state in his district.” LA. CONST. art. V,
§ 26(B), see also Guidry v. Roberts, 331 So. 2d 44, 52-53 (La.
App. 1 Cir. 1976), aff’d in part & rev’d in part on other
grounds, 335 So. 2d 438 (La. 1976) (“It is clear that a district
attorney has the sole authority to determine when and against
28
whom a criminal charge shall be instituted subject only to the
power vested in the attorney general to supercede that authority
upon a showing of cause.”). As Ieyoub correctly argues, in
order for his prosecutorial power to be invoked, the district
attorney must first recuse himself and request the Attorney
General’s assistance. See Fox v. Reed, CIV.A.No. 99-3094, 2000
WL 288379, at *5 (E.D. La. Mar. 16, 2000) (“Under Louisiana law,
the Attorney General may not bring a criminal prosecution solely
on his authority. The Louisiana Constitution vests that
authority in the first instance in local district attorneys.”).
In the instant case, Ieyoub is the named defendant,
presumably because the district attorney recused himself from
the criminal prosecution of Aymond. Avoyelles-Decuir are
correct that Ieyoub has specific authority to prosecute Aymond
and has more than a “general enforcement power” and, thus, more
than “some connection” in the prosecution of Aymond.22 The
difficulty, as is apparent, is that there is simply no guarantee
that the district attorney in any future prosecution would
recuse himself from the matter.23
22
We acknowledge Avoyelles-Decuir’s concern that Ieyoub’s
office has conducted a grand jury investigation into the matter,
an investigation that has resulted in subpoenas issued to
reporters who work for Avoyelles Publishing. This investigation,
however, was targeted toward Aymond.
23
We also acknowledge Avoyelles-Decuir’s argument that any
subsequent prosecution will be based on the original recording
and would thus implicate the same issues for the district
attorney in regard to his recusal. However likely this
29
Thus, in arguing that the Attorney General lacks the
criminal authority to prosecute Avoyelles-Decuir, Ieyoub
highlights a more fundamental jurisdictional problem in this
case: namely that Avoyelles-Decuir, in framing their declaratory
action against Ieyoub, have failed to establish that they have
Article III standing for this claim. See Sierra Club, Lone Star
Chapter v. Cedar Point Oil Co., 73 F.3d 546, 555 n.22 (5th Cir.
1996) (“Standing is a jurisdictional requirement, and may always
be addressed for the first time on appeal.”). Constitutional
standing, as a requirement of Article III justiciability, is a
threshold inquiry. See Calderon v. Ashmus, 523 U.S. 740, 745
(1998) (declining to decide the Eleventh Amendment issue on
which the Court granted certiorari because, “in keeping with our
precedents, [we] have decided that we must first address whether
this action for a declaratory judgment is the sort of ‘Article
III’ ‘case or controversy’ to which federal courts are
limited”); United States v. Hays, 515 U.S. 737, 742 (1995)
(“[W]e are required to address the issue [of standing] even if
the courts below have not passed on it, and even if the parties
fail to raise the issue before us. The federal courts are under
an independent obligation to examine their own jurisdiction, and
eventuality may be, it may also be the case that a subsequent
district attorney could be in office who would not have the same
conflict of interest as Eddie Knoll and, thus, would not recuse
himself. We refuse to base our decision on factual scenarios
that may not occur.
30
standing ‘is perhaps the most important of [the jurisdictional]
doctrines’” (quoting FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231
(1990))). Following Calderon, we first address the standing
issue. See 523 U.S. at 745.
c. Article III Standing and the Declaratory Judgment Action
Targeting the Criminal Provisions of the Act
A brief review of our standing jurisprudence demonstrates
Avoyelles-Decuir’s error in naming Ieyoub as the defendant in
their declaratory judgment action. The Supreme Court has
recognized three requirements of Article III standing:
It is by now well settled that “the irreducible
constitutional minimum of standing contains three elements.
First, the plaintiff must have suffered an ‘injury in
fact’-- an invasion of a legally protected interest that is
(a) concrete and particularized, and (b) actual or
imminent, not conjectural or hypothetical. Second, there
must be a causal connection between the injury and the
conduct complained of. . . . Third, it must be likely, as
opposed to merely speculative, that the injury will be
redressed by a favorable decision.”
Hays, 515 U.S. at 742-43 (footnote, citations, and internal
quotation omitted) (quoting Lujan v. Defenders of Wildlife, 504
U.S. 555, 560-61 (1992)).
The difficulty in Avoyelles-Decuir’s standing lies in the
second element of the standing analysis, that there is no causal
connection between the “injury” and the “conduct complained of.”
Because Avoyelles-Decuir chose to name Ieyoub and not the
district attorney charged with enforcing criminal penalties
under the Act, the declaratory judgment action fails to link
31
Ieyoub to the injury. In order to establish a “causal
connection,” there must be causation between the challenged
conduct of the defendant and the claimed injury. See Lujan, 504
U.S. at 560; see also Simon v. Eastern Ky. Welfare Rights Org.,
426 U.S. 26, 41-42 (1976).
In the instant action, defendant Ieyoub is statutorily
prevented from enforcing the Act that would cause the injury.
Thus, in this particular factual situation, the lack of
connection undermines Article III standing. See S. Pac. Transp.
v. Brown, 651 F.2d 613, 615 (9th Cir. 1980) (holding that
plaintiffs lacked standing for suit against Attorney General
when the district attorneys, and not the Attorney General, were
statutorily charged with enforcing the laws); Shell Oil Co. v.
Noel, 608 F.2d 208, 212-13 (1st Cir. 1979) (finding no Article
III case or controversy in declaratory judgment action against
Attorney General and Governor where there was no showing that
defendants had the authority to enforce the act in question and
there was no threat to enforce act); see also 1st Westco Corp.
v. Preate, 6 F.3d 108, 114-15 (3d Cir. 1993).
Because Avoyelles-Decuir fail to demonstrate the causal
connection prong of our standing requirement, we do not address
the redressability element of the proposed declaratory judgment
action. Further, because our standing analysis makes
unnecessary a further discussion of the Eleventh Amendment, we
32
do not address the issue.
IV. CONCLUSION
For the foregoing reasons, we REVERSE the district court’s
judgment except insofar as it dismissed the declaratory judgment
action targeting the criminal provisions of the Act, such
dismissal being AFFIRMED. We do not foreclose the use of any
other appropriate abstention doctrine. We REMAND for further
proceedings consistent with this opinion. Each party shall bear
its own costs.
33