Attorney General of Guam v. Torres

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE ATTORNEY GENERAL OF GUAM, 
Plaintiff-Appellant/
Cross-Appellee, Nos. 03-15823
v. 03-15999
JESUS Q. TORRES, * in his official  D.C. No.
capacity as Executive Manager of CV-03-00008
Guam Airport Authority, OPINION
Defendant-Appellee/
Cross-Appellee.

Appeal from the United States District Court
for the District of Guam
John S. Unpingco, District Judge, Presiding
Argued and Submitted
May 11, 2005—Honolulu, Hawaii
Filed August 16, 2005
Before: Dorothy W. Nelson, Consuelo M. Callahan, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Callahan
*Jesus Q. Torres is substituted for his predecessor, William R. Thomp-
son, as Executive Manager of the Guam Airport Authority. Fed. R. App.
P. 43(c)(2).
10745
10748 ATTORNEY GENERAL OF GUAM v. TORRES
COUNSEL
Plaintiff-appellant-cross-appellee was represented by Robert
M. Weisberg, Assistant Attorney General of Guam, at oral
argument, and by Robert M. Weisberg and J. Basil O’Mallan
III, Deputy Attorney General of Guam on the briefs, all of
Hagatna, Guam.
Defendant-appellee-cross-appellant was represented by Ran-
dall Todd Thomspon of Mair, Mair, Spade & Thomspon of
Hagatna, Guam.
OPINION
CALLAHAN, Circuit Judge:
The Attorney General of Guam filed this action in the
United States District Court of Guam seeking a declaration
that, under the 1998 Amendment to the Guam Organic Act,
48 U.S.C. § 1421g(d), his authority as the “Chief Legal Offi-
cer” of Guam preempted prior Guam law and prohibited the
Guam International Airport Authority (“GIAA”) from retain-
ing its own legal counsel to conduct civil litigation. The dis-
trict court, noting the existence of a parallel action in the
Guam superior court, dismissed the action on three separate
grounds: abstention under Younger v. Harris, 401 U.S. 37
(1971), abstention under Burford v. Sun Oil Co., 319 U.S. 315
 ATTORNEY GENERAL OF GUAM v. TORRES 10749
(1943), and because the action was unsuitable for relief under
the Declaratory Judgment Act, 28 U.S.C. § 2201. We affirm
the district court’s dismissal of the action as appropriate under
Younger abstention. We also affirm the district court’s dis-
missal under the Declaratory Judgment Act because appellant
waived his challenge to this dismissal.1
A. Background
On March 3, 2003, appellant filed a complaint in the dis-
trict court for injunctive and declaratory relief. He alleged that
the United States Congress, when it amended the Guam
Organic Act in 1998, provided that the Attorney General of
Guam “shall be the Chief Legal Officer of the Government of
Guam,” and that this language preempted prior Guam law and
denied GIAA the authority to retain its own legal counsel,
instead of appellant, to conduct civil actions.2
Prior to the 1998 Amendment, pursuant to 12 GUAM CODE
ANN. § 1108 and 5 GUAM CODE ANN. § 30109, GIAA was
authorized to retain outside counsel and to use its own legal
counsel in civil actions.3 In 2003, after the current Attorney
1
As we may affirm the district court on any one of the three separate
grounds it advanced for dismissing appellant’s action, we need not review
the district court’s dismissal under Burford.
2
In relevant part, 48 U.S.C. § 1421g(d) reads:
(1) The Attorney General of Guam shall be the Chief Legal Offi-
cer of the Government of Guam. At such time as the Office of
the Attorney General of Guam shall next become vacant, the
Attorney General of Guam shall be appointed by the Governor of
Guam with the advice and consent of the legislature, and shall
serve at the pleasure of the Governor of Guam.
3
12 GUAM CODE ANN. § 1108 provides, in pertinent part:
(a) The [GIAA] Board may also appoint a treasurer, a controller,
and an attorney, all of whom shall serve at the pleasure of the
Board. Their duties and compensation shall be fixed by the
Board.
10750 ATTORNEY GENERAL OF GUAM v. TORRES
General of Guam was sworn in, he adopted the position that
the 1998 Amendment preempted prior laws that allowed
GIAA and other entities to retain independent counsel.
On February 13, 2003, GIAA sent a letter to appellant. The
letter (1) asserted that GIAA had statutory authority to retain
private counsel, (2) noted pending civil actions concerning a
construction contract at the airport, (3) asked for temporary
legal assistance from appellant, and (4) suggested that the
contested contract be immediately awarded to one of the com-
peting contractors. Appellant attached a copy of this letter to
his complaint. GIAA requested that the letter be sealed as a
confidential communication. On March 28, 2003, the district
court determined that the letter was privileged as an attorney
...
(c) The Attorney, who must have been admitted to the practice
of law in Guam, shall advise the Board and the Executive Direc-
tor on all legal matters to which the Authority is a party or in
which the Authority is legally interested, and may represent the
Authority in connection with legal matters before the Legislature,
boards and other agencies of the Territory or of the United States.
The Attorney for the Authority shall represent the Authority in
litigation concerning the affairs of the Authority.
45 GUAM CODE ANN. § 30109(c) states that the Attorney General of Guam
shall, inter alia,
[c]onduct on behalf of the government of Guam all civil actions
in which the government is an interested party; provided that
those branches, departments or agencies which are authorized to
employ their own legal counsel may use them instead of the
Attorney General.
Also, the Compiler of Law comment to subsection (c) of 5 GUAM CODE
ANN. § 30109 notes that subsection (c) “has been amended by PL 18-04:5,
to conform to the other laws which give to specific agencies the authority
to hire their own lawyers, who may undertake litigation without the super-
vision of the Attorney General.” 5 GUAM CODE ANN. § 30109 comment.
These agencies include GIAA. Id.
ATTORNEY GENERAL OF GUAM v. TORRES 10751
client communication and ordered the filing of a redacted ver-
sion of the letter.4
Meanwhile, on March 7, 2003, four days after appellant
filed his action in the district court, GIAA filed a petition for
a writ of mandamus in the Superior Court of Guam asking
that court to direct the Attorney General to approve a legal
services contract between GIAA and a private law firm. The
local action involved identical issues to those raised in the dis-
trict court.
B. The District Court’s Dismissal of the Action
GIAA filed three motions to dismiss before the district
court: (1) for failure to name the proper defendant and join an
indispensable party; (2) for lack of subject-matter jurisdiction;
and (3) for unsuitability of declaratory relief. The district
court’s April 1, 2003 order addressed all three motions. The
court agreed with GIAA that the proper defendant was
GIAA’s Board of Directors, and not the Executive Manager
of GIAA, but held that pursuant to Federal Rules of Civil Pro-
cedure 15(a) and 19(a), appellant could amend his complaint
to name the Board.5
The motion to dismiss for lack of subject-matter jurisdic-
tion was double-barreled. GIAA first argued that the case
should be dismissed for lack of a federal question. The district
court distinguished the case relied upon by GIAA, Republican
Party of Guam v. Gutierrez, 277 F.3d 1086 (9th Cir. 2002),
and held that there was federal-question jurisdiction.6
4
Our affirmance of the dismissal of appellant’s action renders moot his
challenge on appeal to the March 28, 2003 ruling.
5
The court noted, however, that amendment was not necessary as it was
dismissing the complaint on other grounds.
6
The district judge explained:
plaintiff contends that unlike the Republican Party case, this case
is not merely an “intra-government power struggle.” Rather, this
10752 ATTORNEY GENERAL OF GUAM v. TORRES
GIAA’s second argument was that even if a federal ques-
tion were present, dismissal was warranted under the doctrine
of federal abstention. The district judge accepted the chal-
lenge and boldly ventured into the briar patch of abstention,
commenting that although the parties only discussed absten-
tion under Younger, he would also analyze abstention under
Burford.
The judge observed, citing H.C. ex rel. Gordon v. Koppel,
203 F.3d 610, 613 (9th Cir. 2000), that absent extraordinary
circumstances, Younger abstention is required if the state pro-
ceedings are (1) ongoing, (2) implicate important state inter-
ests, and (3) provide the plaintiff an adequate opportunity to
litigate federal claims. He noted that the case must be dis-
missed under Koppel if the Younger doctrine applied. The
court found Younger abstention proper, explaining that the
action in the Superior Court of Guam had progressed further
than the federal action, which had only addressed procedural
and jurisdictional motions.7
The district court proceeded to address abstention under
action involves a legal interpretation of the Organic Act, a federal
law.
The Court concurs with the plaintiff. As stated by the Supreme
Court in Franchise Tax Bd.[, 463 U.S. 1, 8-9 (1983),] and by the
Ninth Circuit in Republican Party, here the vindication of a right
under local law necessarily turns on construction of the Organic
Act — a federal law. The Attorney General of Guam must seek
to restrain an action of a local official relying on his authority
created by local law which allegedly conflicts with the authority
provided to the Attorney General under the Organic Act.
GIAA did not challenge the existence of subject-matter jurisdiction on
appeal. We find the district court’s determination of federal-question juris-
diction to be sound.
7
The court noted that in Hicks v. Miranda, 422 U.S. 332 (1975), the
Supreme Court stated: “the test is not who made it first to the courthouse
but whether ‘any proceedings of substance on the merits have taken place
in the federal court.’ ” Id. at 349.
 ATTORNEY GENERAL OF GUAM v. TORRES 10753
Burford, noted that this doctrine allows federal courts to
decline to rule on an essentially local issue arising out of a
complicated state regulatory scheme, and dismissed the case.
The court also dismissed the action as unsuitable for declara-
tory relief, observing that the Declaratory Judgment Act, 28
U.S.C. § 2201, is deliberately cast in terms of permissive,
rather than mandatory, authority. Citing our statement con-
cerning Burford abstention in Gov’t. Employees Insurance
Co. v. Dizol, 133 F.3d 1220, 1225 (9th Cir. 1998) (en banc),
the district court declined to exercise its discretionary jurisdic-
tion under the Act because there was an ongoing parallel
action in the Superior Court of Guam.
On April 28, 2003, appellant properly invoked our appel-
late jurisdiction under 28 U.S.C. § 1291 by filing a timely
notice of appeal from the district court’s dismissal of his
action. GIAA filed a cross-appeal.8
Thereafter, the superior court issued a final judgment in
favor of GIAA. Appellant appealed to the Supreme Court of
Guam, which issued an opinion on February 8, 2005. A.B.
Won Pat Guam Int’l Airport Auth. v. Moylan, 2005 WL
291577 (Guam Feb. 8, 2005). The Supreme Court of Guam
held that appellant’s common law powers and duties could be
adjusted by the Guam Legislature and that “Title 12 GCA
§ 1108(a) and (c) and Title 5 GCA § 30109 are valid exercises
of the Legislature’s power to remove the common law power
of the Attorney General to act as legal counsel to represent the
interests of GIAA, and do not violate the Organic Act.” Id. at
*18. Appellant filed a petition for certiorari to the United
States Supreme Court from the opinion of the Supreme Court
of Guam.
8
The only issue raised by GIAA on its cross-appeal was whether the dis-
trict court abused its discretion in provisionally allowing appellant to
amend his action to sue the real party in interest, GIAA’s Board. As we
affirm the district court’s dismissal of appellant’s action, we do not con-
sider GIAA’s objections to the provisional allowance of an amendment.
10754 ATTORNEY GENERAL OF GUAM v. TORRES
C. Standards of Review
[1] In Green v. City of Tucson, we confirmed that a district
court’s grant of abstention under Younger is reviewed de
novo. 255 F.3d 1086, 1093 (9th Cir. 2001) (en banc); see also
Gilbertson v. Albright, 381 F.3d 965, 968 (9th Cir. 2004) (en
banc). Our review of a district court’s decision to decline an
action under the Declaratory Judgment Act “is deferential,
under the abuse of discretion standard.” Dizol, 133 F.3d at
1223.
D. The Younger Abstention Doctrine
In Green, we reiterated that:
Absent “extraordinary circumstances,” Younger
abstention is proper when the following three condi-
tions have been met:
(1) There are ongoing state judicial proceedings;
(2) The proceedings implicate important state
interests; and
(3) The state proceedings provide the plaintiff with
an adequate opportunity to raise the federal claims.
4255 F.3d at 1091. Here, there is really no question that there
were ongoing local judicial proceedings and that those pro-
ceedings provided appellant with an adequate opportunity to
raise his federal claims. Nor is there any serious doubt that the
proceedings implicated important local concerns. Appellant’s
intent in filing his action for declaratory relief was to void
local statutes and actions taken by Guam’s agencies in reli-
ance on those statutes.9 Furthermore, there is no question that
9
Appellant’s argument that there is no “direct interference” was defused
by our opinion in Gilbertson. 381 F.3d at 977-78 (rejecting “direct inter-
ference” as a condition or threshold element of Younger abstention).
ATTORNEY GENERAL OF GUAM v. TORRES 10755
if the criteria for abstention under Younger were met, the dis-
trict court must dismiss the action.10 Koppel, 203 F.3d at 613.
[2] Thus, the district court’s dismissal of appellant’s action
under the Younger abstention doctrine must be affirmed
unless the proceedings in Guam’s courts were insufficient to
trigger the application of the doctrine. The relevant question
is whether proceedings in Guam’s courts may be treated as
“state judicial proceedings” and accordingly, in this case, trig-
gered the application of Younger abstention. We conclude that
the policies underlying the doctrine, statutory law, and this
court’s prior decisions support an affirmative response.
1. Purposes Underlying Younger Abstention
Justice Black, when first enunciating the Younger absten-
tion doctrine, explained the reasons behind the approach as
follows:
One is the basic doctrine of equity jurisprudence that
courts of equity should not act . . . when the moving
party has an adequate remedy at law and will not
suffer irreparable injury if denied equitable relief.
The doctrine may originally have grown out of cir-
cumstances peculiar to the English judicial system
and not applicable in this country, but its fundamen-
tal purpose of restraining equity jurisdiction within
narrow limits is equally important under our Consti-
tution, in order to prevent erosion of the role of the
jury and avoid a duplication of legal proceedings and
legal sanctions where a single suit would be ade-
quate to protect the rights asserted. This underlying
reason . . . is reinforced by an even more vital con-
10
In Gilbertson, we held that in an action of law, as opposed to an action
for injunctive or declaratory relief, a stay rather than dismissal is appropri-
ate under Younger. 381 F.3d at 981. Appellant’s action, however, is for
injunctive and declaratory relief.
10756 ATTORNEY GENERAL OF GUAM v. TORRES
sideration, the notion of “comity,” that is, a proper
respect for state functions, a recognition of the fact
that the entire country is made up of a Union of sep-
arate 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 per-
form their separate functions in their separate ways.
Younger, 401 U.S. at 43-44.
[3] The subsequent evolution of the Younger abstention
doctrine has confirmed that it is based on considerations of
equity and comity.11 Although Justice Black addressed “state
functions,” his reference to “circumstances peculiar to the
English judicial system,” and the need to “avoid a duplication
of legal proceedings and legal sanctions where a single suit
would be adequate to protect the rights asserted” reveals that
the principle of comity was not solely dependent on the sover-
eignty of the local court.12 Id. Another critical concern appears
to be whether the local court provides the plaintiff with an
adequate opportunity to litigate his or her federal claims.
[4] The D.C. Circuit has determined that the District of
Columbia’s lack of statehood does not bar the application of
11
See New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S.
350, 364 (1989) (stating that Younger abstention is based partly on “tradi-
tional principles of equity” and also on the “even more vital consider-
ation” of comity); see also Ohio Civil Rights Comm’n v. Dayton Christian
Sch., Inc., 477 U.S. 619, 626-27 (1986) (reiterating that Younger absten-
tion is based on equitable principles and concerns of comity and federal-
ism).
12
Indeed, the Supreme Court has extended Younger abstention to defer
to state bar disciplinary proceedings, Middlesex County Ethics Comm. v.
Garden State Bar Ass’n, 457 U.S. 423, 433-34 (1982), and to state admin-
istrative proceedings, Ohio Civil Rights Comm’n, 477 U.S. at 628. In these
cases, the Court’s focus appears to have been on whether the administra-
tive proceedings would be reviewable in a state court that could consider
federal constitutional issues.
ATTORNEY GENERAL OF GUAM v. TORRES 10757
Younger abstention to proceedings in its local courts. JMM
Corp. v. Dist. of Columbia, 378 F.3d 1117 (D.C. Cir. 2004).
It first noted that the equitable principles underlying the Youn-
ger abstention doctrine applied in full measure to the District
of Columbia. Id. at 1121. The court then concluded that all the
comity concerns underlying the doctrine “apply with equal
force to the District of Columbia,” stating:
Federal court interference with District enforcement
proceedings may prevent the District from effectuat-
ing its substantive policies and disrupt its efforts to
protect interests it regards as important. It will cer-
tainly result in duplicative legal proceedings and
may be interpreted to reflect negatively on the Dis-
trict’s ability to enforce constitutional principles. But
just as with a state, there is no reason to presume that
the courts of the District cannot be trusted to ade-
quately protect federal constitutional rights. To the
contrary, “Congress has created a trial and appellate
court system of general jurisdiction for the District
separate from the United States courts (of which we
are a part) and intended to serve the District in much
the same manner as the court systems of the various
states.” Madley, 278 F.3d at 1308.
Id. at 1123.
[5] The application of the policies underlying the Younger
abstention doctrine to Guam produces the same result. First,
in light of the pending action in Guam’s superior court, main-
taining the federal action would have been duplicative. Sec-
ond, there was no doubt that the local action provided
appellant with an adequate remedy. This was confirmed by
the Guam Supreme Court’s recent opinion and appellant’s
petition for certiorari to the United States Supreme Court
seeking review of that opinion.13 Third, the district court’s
13
Appellant’s petition for certiorari contains the following explanation
of jurisdiction:
10758 ATTORNEY GENERAL OF GUAM v. TORRES
retention of appellant’s action for declaratory relief would
have interfered with Guam “effectuating its substantive poli-
cies and [would have] disrupt[ed] its efforts to protect inter-
ests it regards as important.” JMM Corp., 378 F.3d at 1123.
Prior to the 1998 Amendment to the Guam Organic Act,
GIAA was authorized to retain independent counsel. The dis-
trict court action would have interfered with the branches of
Guam’s government working out the impacts of the 1998
Amendment. Finally, the district court’s retention of appel-
lant’s case might “reflect negatively” on Guam’s ability to
enforce federal laws. Id. Thus, although we recognize that
Guam is not a state,14 we conclude that Guam’s courts may be
treated as state courts for the purpose of applying the Younger
abstention doctrine.
[6] Our determination is consistent with the First Circuit’s
decision in Maymo-Melendez v. Alvarez-Ramirez, 364 F.3d 27
(1st Cir. 2004). The First Circuit held in Melendez that the
Younger abstention doctrine was triggered by local proceed-
ings in Puerto Rico. Thus, the First Circuit implicitly equated
Puerto Rico with a “state” for purposes of Younger abstention.
The judgment sought to be reviewed was entered by the Supreme
Court of Guam on February 8, 2005. This Court has jurisdiction
to grant this Petition pursuant to 28 U.S.C.1257(a) as applied to
the Territory of Guam by 48 U.S.C. 1424-2. Prior to October 30,
2004, a petition for writ of certiorari from a final judgment of the
Supreme Court of Guam would have been filed in the Ninth Cir-
cuit U.S. Court of Appeals. Section 22B of the Organic Act of
Guam, 48 U.S.C. 1424-2, was amended by Section 2 of Public
Law 108-378, 118 Stat. 2206, 2208 (Oct. 30, 2004), which termi-
nated the Ninth Circuit[’s] review by certiorari of decisions of the
Supreme Court of Guam. While this Court has always been the
court of last resort, it is now the only federal court with jurisdic-
tion to review decisions from local Territorial courts of Guam
interpreting questions arising under federal law.
14
Guam v. Guerrero, 290 F.3d 1210, 1214, 1216-17 (9th Cir. 2002).
ATTORNEY GENERAL OF GUAM v. TORRES 10759
2. Statutory Law
[7] As it did for the District of Columbia, Congress has also
enacted legislation concerning Guam that supports treating
Guam’s courts as if they were state courts. Title 48 U.S.C.
§ 1424-2 states:
The relations between the courts established by the
Constitution or laws of the United States and the
local courts of Guam with respect to appeals, certio-
rari, removal of causes, the issuance of writs of
habeas corpus, and other matters or proceedings
shall be governed by the laws of the United States
pertaining to the relations between the courts of the
United States, including the Supreme Court of the
United States, and the courts of the several States in
such matters and proceedings.
[8] If this statute does not authorize deference to Guam’s
courts under the Younger abstention doctrine, it clearly
encourages such deference. The statute provides that the rela-
tions between federal courts and Guam’s courts should be
similar to those between federal and state courts, and absten-
tion appears to fall within the “other matters or proceedings”
governed by that relationship. Accordingly, we read 48
U.S.C. § 1424-2 as supporting and encouraging our holding.
3. Ninth Circuit Precedents
[9] Finally, deference to Guam’s courts under the Younger
abstention doctrine is consistent with our prior cases. As long
ago as 1988, we recognized that “Congress has specifically
required that relations between the federal courts and Guam’s
local courts be the same as those between the federal and state
courts.” Guam v. Yang, 850 F.2d 507, 510 (9th Cir. 1988) (en
banc) overruled on other grounds by U.S. v. Keys, 133 F.3d
1282 (9th Cir. 1998) (en banc). In Western Systems, Inc. v.
Ulloa, 958 F.2d 864 (9th Cir. 1992), this court, while affirm-
10760 ATTORNEY GENERAL OF GUAM v. TORRES
ing an injunction against further proceedings in Guam’s
courts pursuant to the Anti-Injunction Act, 28 U.S.C. § 2283,
cited 48 U.S.C. § 1424-2 and observed that “Guam is not a
state. However, the principles of federalism which underlie
federal-state judicial relations apply equally to federal-
Guamanian relations.” Id. at 868 n.5.
[10] Also, in EIE Guam Corp. v. Long Term Credit Bank
of Japan, Ltd., 322 F.3d 635 (9th Cir. 2003), one of the issues
was whether the matter could be removed from the Guam
Superior Court to the United States District Court of Guam
pursuant to 28 U.S.C. § 1441(d). This statute provides that a
“civil action brought in a State court against a foreign state
. . . may be removed . . . to the district court of the United
States for the district and division embracing the place where
such action is pending.” 28 U.S.C. § 1441(d). We held, citing
48 U.S.C. § 1424-2, that the territorial courts in Guam qualify
as “state” courts for the purpose of 28 U.S.C. § 1441(d). Id.
at 642.
[11] Most recently, following the creation of the Guam
Supreme Court, we held that we “apply a deferential standard
of review to [the] Guam Supreme Court concerning local
law” and also “must take into account Congress’ clear intent
to allow the Guam Supreme Court to develop Guam’s com-
mon law.” Haeuser v. Dep’t of Law, 368 F.3d 1091, 1097 (9th
Cir. 2004).
[12] We conclude that, consistent with the policies underly-
ing the Younger abstention doctrine, Congress’s enactment of
48 U.S.C. § 1424-2, and the trend of our opinions, the district
court properly deferred to the proceedings in Guam’s courts
under the Younger abstention doctrine.
ATTORNEY GENERAL OF GUAM v. TORRES 10761
E. Appellant’s Waiver of Objections to Dismissal Under
the Declaratory Judgment Act
The district court also dismissed appellant’s action under
the Declaratory Judgment Act, 28 U.S.C. § 2201, as unsuit-
able for declaratory relief. Appellant’s opening brief to this
court, however, fails to address this independent ground for
dismissal. As appellant does not allege any intervening
change in the law that might excuse his failure to raise this
issue, we hold that he has waived his right to challenge the
dismissal of his action on this ground. See United States v.
Bird, 359 F.3d 1185, 1189 n.1 (9th Cir. 2004) (“Under the law
of this circuit, we decline to consider an issue which was not
presented to the district court in a proper motion, or raised as
an issue in appellant’s opening brief.”); see also Int’l Union
of Bricklayers & Allied Craftsman Local Union No. 20 v.
Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir. 1985)
(“[W]e will not ordinarily consider matters on appeal that are
not specifically and distinctly raised and argued in the appel-
lant’s opening brief.”).15
F. Conclusion
The district court dismissed appellant’s action on three sep-
arate grounds, and we must affirm the dismissal if any one of
the three grounds is sound. We have reviewed de novo the
district court’s dismissal of the action on the basis of Younger
abstention and determined that deference to Guam’s courts
under that doctrine is appropriate. We also affirm the district
court’s dismissal under the Declaratory Judgment Act because
appellant waived his right to challenge this dismissal. In light
15
We have indicated that we may review an issue that is raised for first
time on appeal “(1) to prevent a miscarriage of justice; (2) when a change
in law raises a new issue while an appeal is pending; and (3) when the
issue is purely one of law.” Park Sch. of Bus., Inc. v. Symington, 51 F.3d
1480, 1488 (9th Cir. 1995). None of these three exceptions are present
here.
10762 ATTORNEY GENERAL OF GUAM v. TORRES
of these determinations, we need not, and do not, consider the
merits of the district court’s dismissal under the Burford
abstention doctrine.
AFFIRMED.