United States v. Water Resources Control Board

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-15145
Plaintiff-Appellant,
D.C. No.
v. 2:19-cv-00547-
DAD-EPG
STATE WATER RESOURCES CONTROL
BOARD; E. JOAQUIN ESQUIVEL,
Board Chair, OPINION
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding *
Argued and Submitted January 13, 2021
San Francisco, California
Filed February 24, 2021
Before: CARLOS T. BEA and MILAN D. SMITH, JR.,
Circuit Judges, and JANE A. RESTANI, ** Judge.
Opinion by Judge Milan D. Smith, Jr.
*
Then-Chief Judge O’Neill issued the order on appeal. Judge
O’Neill assumed senior status on February 2, 2020. The case is now
assigned to the Honorable Dale A. Drozd, United States District Judge
for the Eastern District of California.
**
The Honorable Jane A. Restani, Judge for the United States Court
of International Trade, sitting by designation.
2 UNITED STATES V. STATE WATER RESOURCES CONTROL BD.
SUMMARY ***
Colorado River Stay / Pullman Abstention
The panel reversed the district court’s order granting a
partial stay under Colorado River Water Conservation
District v. United States, 424 U.S. 800 (1976), of three state
law claims, in an action brought by the United States
alleging that the California State Water Resources Board
violated various provisions of the California Environmental
Quality Control Act; and remanded to allow the United
States’ claims to proceed, subject to regular issues of
justiciability.
The United States simultaneously filed separate suits
against the Board in state and federal court. The United
States informed each court of the existence of the other suit,
and noted that the federal district court was its preferred
forum. The Board asked the district court to abstain from
hearing the federal case or stay the case pursuant to
Colorado River. The district court denied abstention under
a number of doctrines, and issued a partial Colorado River
stay.
The panel held that it had jurisdiction over the appeal
pursuant to the exception to the finality rule under Cohen v.
Beneficial Loan Corp., 337 U.S. 541 (1949).
The panel held that the district court abused its discretion
in granting a partial Colorado River stay. Specifically, the
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. STATE WATER RESOURCES CONTROL BD. 3
panel held that partial stays pursuant to Colorado River were
permissible only in very limited circumstances, namely
when there was strong evidence of forum shopping. Because
there was little evidence of forum shopping here, the district
court erred.
The Board argued that Pullman abstention provided an
alternative ground to uphold the district court’s stay.
Pullman requires that a federal court abstain from deciding
the federal question while it awaits the state court’s decision
on the state law claims. The district court did not stay the
federal constitutional claim here, and declined to abstain
pursuant to Pullman. The panel held that it could not affirm
on the basis of Pullman abstention because it would
impermissibly enlarge the rights the Board obtained in the
district court judgment. Namely, the Board, which did not
cross-appeal, cannot ask this court to affirm on Pullman
grounds because this court would necessarily have to stay
the intergovernmental immunity claim, which the district
court allowed to proceed.
COUNSEL
Kenneth A. Klukowski (argued), John L. Smeltzer, Romney
Philpott, Erika Norman, and Daniel Halainen, Attorneys;
Eric Grant, Deputy Assistant Attorney General; Jonathan D.
Brightbill, Principal Deputy Assistant Attorney General;
Jeffrey Bossert Clark, Assistant Attorney General;
Environment and Natural Resources Division, United States
Department of Justice, Washington, D.C.; Michael Gheleta
and Amy Aufdemberge, Attorneys, Office of the Solicitor,
United States Department of the Interior, Washington, D.C.;
for Plaintiff-Appellant.
4 UNITED STATES V. STATE WATER RESOURCES CONTROL BD.
Dylan Johnson (argued), Deputy Attorney General, Office
of the Attorney General, San Diego, California; Mark W.
Poole and Tamara T. Zakim, Deputy Attorneys General;
Annadel A. Almendras and Michael P. Cayaban,
Supervising Deputy Attorneys General; Robert W. Byrne,
Senior Assistant Attorney General; Xavier Becerra,
Attorney General; Office of the Attorney General, Oakland,
California; for Defendants-Appellees.
OPINION
M. SMITH, Circuit Judge:
The United States simultaneously brought suits in the
United States District Court for the Eastern District of
California and the Superior Court of the State of California
for the County of Sacramento. The United States pleaded
three identical causes of action under California state
administrative law in both suits, and later added a federal
constitutional claim to its federal suit. The federal district
court stayed the three state law claims pursuant to Colorado
River Water Conservation District v. United States, 424 U.S.
800 (1976), and allowed the federal constitutional claim to
proceed.
Our precedent does not allow a partial stay pursuant to
Colorado River, except in rare circumstances. Such
circumstances do not exist here. Accordingly, we reverse
the decision of the district court granting a partial stay, and
remand for further proceedings consistent with this opinion.
I. FACTUAL AND PROCEDURAL BACKGROUND
The California State Water Resources Control Board
(the Board) is a state agency that administers water rights
UNITED STATES V. STATE WATER RESOURCES CONTROL BD. 5
and water quality laws. See Cal. Water Code § 13001. As a
part of its responsibilities, the Board manages the San
Francisco Bay/Sacramento-San Joaquin Delta Estuary (the
Bay-Delta). Included in the Bay-Delta system is the New
Melones Dam, which is operated by the United States
Bureau of Reclamation. The Bureau of Reclamation must
comply with California law in operating the dam. See
43 U.S.C. § 383; California v. United States, 438 U.S. 645,
678–79 (1978).
The Board first adopted a water quality control plan for
the Bay-Delta in 1978. In December 2018, after completing
a nine-year process, the Board approved an Amended Plan.
The Amended Plan made a number of changes to the
management of the Bay-Delta, including altering flow
objectives and salinity levels. The United States claims that
these changes adversely affect operation of the New
Melones Dam.
On March 28, 2019, the United States simultaneously
filed separate suits against the Board in state and federal
court. 1 In federal district court, the United States asserted
jurisdiction pursuant to 28 U.S.C. § 1345. Section 1345
allows the United States to bring suits in federal court
consisting entirely of state law claims. See United States v.
California, 328 F.2d 729, 734 (9th Cir. 1964); Barrett v.
United States, 853 F.2d 124, 130 (2d Cir. 1988).
In the federal court action, the United States initially
alleged the same three causes of action as pleaded in the state
court action. The United States claimed that the Board
1
The United States also added Board Chair E. Joaquin Esquivel as
a defendant in the federal suit. We refer to the Board and Esquivel
collectively as the Board.
6 UNITED STATES V. STATE WATER RESOURCES CONTROL BD.
violated various provisions of the California Environmental
Quality Control Act (CEQA), an administrative statute that
partially governs the Board’s actions. See Cal. Pub. Res.
Code § 21000 et seq. After the Board moved to dismiss the
federal suit, the United States filed a First Amended
Complaint only in the federal suit. In that amended
complaint, the United States asserted that the Board also
discriminated against the United States under the
intergovernmental immunity doctrine of the federal
Constitution. See generally United States v. California,
921 F.3d 865, 878 (9th Cir. 2019).
In both the state and federal complaints, the United
States informed each court of the existence of the other suit,
and noted that the federal district court was its preferred
forum. To the California Superior Court, the United States
stated that the “action in federal district court preserves [the
United States’] preferred choice of a federal forum to resolve
its claims.” The United States brought the state court suit
“only out of an abundance of caution in the event that, for
any reason, [the United States’] federal suit is not
adjudicated on the merits in federal court and to ensure that
the state statute of limitations was scrupulously complied
with.”
Similarly, the United States informed the federal district
court that it “filed this action in federal district court to
preserve its choice of a federal forum to resolve its claims.”
The United States noted that it “concurrently filed a similar
action in California state court in Sacramento County,
asserting claims under CEQA (but not the Intergovernmental
Immunity doctrine).”
Between December 2018 and April 2019, parties other
than the United States filed eleven additional suits in
California state court asserting CEQA violations based on
UNITED STATES V. STATE WATER RESOURCES CONTROL BD. 7
the Amended Plan. On May 8, 2019, a California state judge
coordinated eleven of the cases, but did not coordinate the
United States’ case, as the United States had previously
moved for a stay in its state court case pending the resolution
of its federal case. On May 24, 2019, the Board asked that
the United States’ case in state court also be coordinated. As
of the date of the district court’s decision in this case, that
state court motion was still pending. 2
The Board asked the district court to abstain from
hearing the case or stay the case pursuant to Colorado River.
The district court denied abstention under a number of
doctrines, including Railroad Commission of Texas v.
Pullman Company, 312 U.S. 496 (1941). See United States
v. State Water Res. Control Bd., 418 F. Supp. 3d 496, 504–
15 (E.D. Cal. 2019).
Next, the district court considered whether it could issue
a Colorado River stay. The district court noted that we have
“not addressed the propriety of issuing a partial Colorado
River stay, but district courts in the Ninth Circuit [have]
found partial stays permissible, ‘where some, but not all, of
a federal plaintiff’s claims are pending in a parallel state
action.’” Id. at 516 (quoting Krieger v. Atheros Comm’cs,
Inc., 776 F. Supp. 2d 1053, 1060–61 (N.D. Cal. 2011)).
Based on this precedent from other district courts, the district
court examined the CEQA and intergovernmental immunity
claims separately for the purposes of conducting a Colorado
2
The Board asks that we take judicial notice of subsequent events
in state court. See Dkt. No. 26. When we decide a Colorado River
appeal, we “examine the district court’s decision based on the state of
affairs at the time of that decision.” R.R. St. & Co. Inc. v. Transp. Ins.
Co., 656 F.3d 966, 974 (9th Cir. 2011). “[W]e consider only ‘the then-
available facts.’” Id. (citation omitted). Adhering to our precedent
regarding the scope of review, we deny the Board’s motion.
8 UNITED STATES V. STATE WATER RESOURCES CONTROL BD.
River analysis. The district court decided that the Colorado
River factors weighed against staying the intergovernmental
immunity claim, but that those factors weighed in favor of
staying the CEQA claims. See id. at 516–19. The district
court ultimately stayed the CEQA claims “until further
notice,” but allowed the intergovernmental immunity claim
to proceed, subject to further briefing on ripeness and
standing. Id. at 519–24.
The United States appealed the Colorado River stay.
The Board did not cross-appeal the district court’s decision
to deny abstention pursuant to Pullman.
II. JURISDICTION AND STANDARD OF REVIEW
Ordinarily, we have “jurisdiction to review a Colorado
River stay order pursuant to 28 U.S.C. § 1291.” Seneca Ins.
Co., Inc. v. Strange Land, Inc., 862 F.3d 835, 840 (9th Cir.
2017) (citing Moses H. Cone Mem’l Hosp. v. Mercury
Constr. Corp., 460 U.S. 1, 9–13 (1983)). In Moses H. Cone,
the Supreme Court determined that a Colorado River stay
was a final appealable order pursuant to § 1291 because “a
stay of the federal suit pending resolution of the state suit
meant that there would be no further litigation in the federal
forum.” Moses H. Cone, 460 U.S. at 10. The question of
whether a partial Colorado River stay is a final order
pursuant to § 1291 might be a distinct question. With a
partial stay, there is still “further litigation in the federal
forum.” Id. The federal district court would still have to
adjudicate the non-stayed claims. Thus, it is unclear whether
we would have jurisdiction pursuant to the normal finality
rules of § 1291.
However, the Supreme Court alternatively held that even
if the district court “order were not final for appealability
purposes, it would nevertheless be appealable within the
UNITED STATES V. STATE WATER RESOURCES CONTROL BD. 9
exception to the finality rule under Cohen v. Beneficial Loan
Corp., 337 U.S. 541 (1949).” Moses H. Cone, 460 U.S.
at 11. Pursuant to Cohen, “the order must conclusively
determine the disputed question, resolve an important issue
completely separate from the merits of the action, and be
effectively unreviewable on appeal from a final judgment.”
Id. at 11–12 (citation and internal quotation marks omitted).
As in Moses H. Cone, the district court order in this case
meets those three criteria. First, the district court’s order
“conclusively determine[d] the . . . question” of whether a
Colorado River stay was appropriate. Id. at 11. Second, the
Colorado River stay “issue [is] completely separate from the
merits of the action.” Id. Finally, the “order would be
entirely unreviewable if not appealed now” because “[o]nce
the state court decide[s] the” CEQA claims, “the federal
court would be bound to honor that determination as res
judicata.” Id. at 12. Therefore, we have jurisdiction over
this appeal.
“Whether the facts of a particular case conform to the
requirements for a Colorado River stay or dismissal is a
question of law which we review de novo.” Seneca Ins.,
862 F.3d at 840 (citation and internal quotation marks
omitted). “If we conclude that the Colorado River
requirements have been met, we then review for abuse of
discretion the district court’s decision to stay or dismiss the
action.” Id. “[T]his standard is stricter than the flexible
abuse of discretion standard used in other areas of law
because discretion must be exercised within the narrow and
specific limits prescribed by the [Colorado River] doctrine.”
R.R. St. & Co. Inc. v. Transp. Ins. Co., 656 F.3d 966, 973
(9th Cir. 2011) (citation and internal quotation marks
omitted).
10 UNITED STATES V. STATE WATER RESOURCES CONTROL BD.
III. Colorado River Stay
Colorado River is not an abstention doctrine, though it
shares the qualities of one. See Nakash v. Marciano,
882 F.2d 1411, 1415 n.5 (9th Cir. 1989). Pursuant to
Colorado River, in rare cases, “there are principles unrelated
to considerations of proper constitutional adjudication and
regard for federal-state relations which govern in situations
involving the contemporaneous exercise of concurrent
jurisdictions, either by federal courts or by state and federal
courts.” Colo. River, 424 U.S. at 817. In the interest of
“[w]ise judicial administration, giving regard to
conservation of judicial resources and comprehensive
disposition of litigation,” a district court can dismiss or stay 3
“a federal suit due to the presence of a concurrent state
proceeding.” Id. at 817–18. Because of “the virtually
unflagging obligation of the federal courts to exercise the
jurisdiction given [to] them,” id. at 817, “[o]nly the clearest
of justifications will warrant [a] dismissal” or stay, id. at 819.
The instances in which a court can stay an action pursuant to
Colorado River “are considerably more limited than the
circumstances appropriate for abstention. The former
circumstances, though exceptional, do nevertheless exist.”
Id. at 818.
3
Although Colorado River involved dismissal of a federal suit, see
Colo. River, 424 U.S. at 821, we “generally require a stay rather than a
dismissal,” R.R. Street, 656 F.3d at 978 n.8. That is because “[a] stay
‘ensures that the federal forum will remain open if for some unexpected
reason the state forum . . . turn[s] out to be inadequate.’” Montanore
Minerals Corp. v. Bakie, 867 F.3d 1160, 1166 (9th Cir. 2017), as
amended on denial of reh’g and reh’g en banc (Oct. 18, 2017) (quoting
Attwood v. Mendocino Coast Dist. Hosp., 886 F.2d 241, 243 (9th Cir
1989)).
UNITED STATES V. STATE WATER RESOURCES CONTROL BD. 11
The court’s “task in [such] cases . . . is not to find some
substantial reason for the exercise of federal jurisdiction by
the district court; rather, the task is to ascertain whether there
exist ‘exceptional’ circumstances, the ‘clearest of
justifications,’ that can suffice under Colorado River to
justify the surrender of that jurisdiction.” Moses H. Cone,
460 U.S. at 25. “If there is any substantial doubt as to”
whether “the parallel state-court litigation will be an
adequate vehicle for the complete and prompt resolution of
the issues between the parties . . . it would be a serious abuse
of discretion to grant the stay or dismissal at all.” Id. at 28.
Building on Supreme Court precedent, we have listed
eight factors to be considered in determining whether a
Colorado River stay is appropriate:
(1) which court first assumed jurisdiction
over any property at stake; (2) the
inconvenience of the federal forum; (3) the
desire to avoid piecemeal litigation; (4) the
order in which the forums obtained
jurisdiction; (5) whether federal law or state
law provides the rule of decision on the
merits; (6) whether the state court
proceedings can adequately protect the rights
of the federal litigants; (7) the desire to avoid
forum shopping; and (8) whether the state
court proceedings will resolve all issues
before the federal court.
R.R. St., 656 F.3d at 978–79 (citation omitted).
The factors are not a “mechanical checklist.” Moses H.
Cone, 460 U.S. at 16. We apply the factors “in a pragmatic,
flexible manner with a view to the realities of the case at
hand.” Id. at 21. “The weight to be given to any one factor
12 UNITED STATES V. STATE WATER RESOURCES CONTROL BD.
may vary greatly from case to case, depending on the
particular setting of the case.” Id. at 16. “Some factors may
not apply in some cases,” Montanore Minerals Corp. v.
Bakie, 867 F.3d 1160, 1166 (9th Cir. 2017), as amended on
denial of reh’g and reh’g en banc (Oct. 18, 2017), and, in
some cases, a single factor may decide whether a stay is
permissible, see, e.g., Intel Corp. v. Advanced Micro
Devices, Inc., 12 F.3d 908, 913 (9th Cir. 1993); Moses H.
Cone, 460 U.S. at 19 (“[T]he consideration that was
paramount in Colorado River itself [was] the danger of
piecemeal litigation.”).
In this particular case, the eighth factor—“whether the
state court proceedings will resolve all issues before the
federal court,” R.R. St., 656 F.3d at 979—controls the
outcome. This factor asks about the similarity between the
state and federal suits. “Though exact parallelism . . . is not
required, substantial similarity of claims is necessary before
abstention is available.” Seneca Ins., 862 F.3d at 845
(citation and internal quotation marks omitted). This factor
“is more relevant when it counsels against abstention,
because while . . . insufficient parallelism may preclude
abstention, the alternatives never compel abstention.” Id.
“[T]he existence of a substantial doubt as to whether the state
proceedings will resolve the federal action precludes the
granting of a stay.” Intel Corp., 12 F.3d at 913. Such doubt
is “a significant countervailing consideration that” can be
“dispositive.” Id. Additionally, this factor should be
addressed “as a preliminary matter.” R.R. St., 656 F.3d at979 n.9 (citation omitted).
Neither we, as the district court noted, nor it appears any
other circuit court has considered the propriety of a partial
Colorado River stay. See State Water Res. Control Bd.,
418 F. Supp. 3d at 516. However, multiple district courts
UNITED STATES V. STATE WATER RESOURCES CONTROL BD. 13
within the Ninth Circuit have issued partial Colorado River
stays. See id. (citing intra-circuit district court cases); see
also Harris v. TD Ameritrade, Inc., No. 17-CV-6033-LTS-
BCM, 2018 WL 1157802, at *6 n.6 (S.D.N.Y. Feb. 14,
2018) (citing out-of-circuit district court cases).
Both the Supreme Court and our court have suggested
that partial stays are inappropriate. In Colorado River itself,
the Supreme Court stated that a court should “giv[e] regard
to conservation of judicial resources and comprehensive
disposition of litigation.” Colo. River, 424 U.S. at 817(emphasis added). Similarly, in Moses H. Cone, which
clarified the doctrine, the Court noted that “the decision to
invoke Colorado River necessarily contemplates that the
federal court will have nothing further to do in resolving any
substantive part of the case, whether it stays or dismisses.”
Moses H. Cone, 460 U.S. at 28 (emphasis added).
We have repeatedly emphasized that a Colorado River
stay is inappropriate when the state court proceedings will
not resolve the entire case before the federal court. In Intel
Corporation, we noted the Supreme Court’s declaration that
“a district court may enter a Colorado River stay order only
if it has ‘full confidence’ that the parallel state proceeding
will end the litigation.” Intel Corp., 12 F.3d at 913 (quoting
Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S.
271, 277 (1988)) (emphasis added). We further described
how “the requirement of ‘parallel’ state court proceedings
implies that those proceedings are sufficiently similar to the
federal proceedings to provide relief for all of the parties’
claims.” Id. at 913 n.4 (emphasis added). See also id. at 913
n.7 (denying a Colorado River stay because “we find that
there exists a substantial doubt as to whether the state court
proceedings will resolve all of the disputed issues in this
case”).
14 UNITED STATES V. STATE WATER RESOURCES CONTROL BD.
In Holder v. Holder, 305 F.3d 854 (9th Cir. 2002), we
vacated a district court’s decision issuing a Colorado River
stay because “the proceedings [we]re not ‘parallel,’ as
required for a stay under Colorado River, nor w[ould] an
adjudication . . . on the merits resolve all necessary issues.”
Id. at 868 (citations omitted) (emphasis added). We have
repeated similar language in other cases. See Montanore
Minerals, 867 F.3d at 1170; R.R. St., 656 F.3d at 983; Smith
v. Cent. Ariz. Water Conservation Dist., 418 F.3d 1028, 1033
(9th Cir. 2005).
Here, the United States’ suits in state and federal court
contain the same three CEQA causes of action. These claims
mainly relate to how the Board analyzed various items of
evidence in arriving at its conclusions in the Amended Plan,
and how the Board described details about the Amended
Plan, in light of this analysis. For example, the United States
alleges that “[t]he Board fails to adequately analyze the
impacts of the reservoir controls it imposes on the New
Melones Project by including them as modeling assumptions
in its impacts analysis.” The United States makes the exact
same allegation in its state complaint.
The amended federal complaint additionally contains the
intergovernmental immunity cause of action. The United
States claims that, “[b]y imposing on [the Bureau of]
Reclamation, in its operation of a federal reclamation project
authorized by Congress, a more stringent salinity
requirement . . . , the Board Amendments discriminate
against the Federal Government.” The United States alleges
that such purported discrimination “violates the Supremacy
Clause of the United States Constitution.”
We recognize that the situation in Holder is not exactly
analogous to the situation in this case. Holder involved a
divorce and custody dispute. Holder, 305 F.3d at 861. The
UNITED STATES V. STATE WATER RESOURCES CONTROL BD. 15
husband initiated divorce and custody proceedings in state
court. Id. After the husband and wife came to a mediated
agreement on child custody in state court, the husband filed
a federal suit, asserting that the wife violated the Hague
Convention on the Civil Aspects of International Child
Abduction (Hague Convention). Id. at 862. The federal
district court stayed the case while the state court
proceedings were on appeal. Id.We held that the Hague Convention question was distinct
from the divorce and custody proceedings in state court. Id.at 868–69. We additionally noted that: (1) the husband
chose to file his Hague Convention claim in federal court,
see id. at 869; and (2) the state court likely did not have
jurisdiction over the Hague Convention claim anyway, see
id. at 869 n.5. For these reasons, we vacated the district
court’s stay. Id. at 873. Similarly, in Intel Corporation, we
reversed a Colorado River stay where there were no
overlapping claims. See Intel Corp., 12 F.3d at 911–13.
Thus, in both Holder and Intel Corporation, the state and
federal suits had distinct claims.
In contrast, here, three of the four claims in the federal
suit are identical to the claims in the state action. In such a
situation, district courts within our circuit have issued partial
stays. For example, in In re Countrywide Financial
Corporation Derivative Litigation, 542 F. Supp. 2d 1160(C.D. Cal. 2008), both the state and federal cases contained
substantially similar causes of action involving breach of
fiduciary duties. Id. at 1170. In the federal case, the
plaintiffs additionally pleaded federal securities violations.
Id. at 1167. The district court overruled the plaintiffs’
objection that a partial Colorado River stay was not
permissible. Though citing our language in Holder and Intel
Corporation, the district court declared that the plaintiffs
16 UNITED STATES V. STATE WATER RESOURCES CONTROL BD.
were “excerpting from [these] cases out of context” and that
“[t]hese cases say nothing about the staying of a claim that
can be fully resolved in state court.” Id. at 1171.
Additionally, the Countrywide court relied on the fact that
the federal courts have exclusive jurisdiction over the federal
securities claims that distinguished the plaintiffs’ federal suit
from the state suit. See id. at 1172.
Similarly, in Krieger, upon which the district court in
this case also relied, a district court granted a partial
Colorado River stay. See Krieger, 776 F. Supp. 2d at 1060–
64. Like in Countrywide, the Krieger court stayed state law
claims that overlapped with litigation in Delaware state
court. Id. However, the Krieger court permitted the federal
securities claim to proceed, at least in part because the
Delaware state court had no jurisdiction over the federal law
claim. Id. at 1058–60.
The district courts in Countrywide and Krieger did not
fully consider our repeated admonitions that a Colorado
River stay should be implemented only when the state
proceeding will resolve “all of the parties’ claims.” Intel
Corp., 12 F.3d at 915. We recognize the different posture of
Holder and Intel as compared to Countrywide, Krieger, and
the instant case. However, our continued reliance on that
broad language about the state court proceeding resolving
the entirety of the litigation before the federal court—
language from multiple precedential opinions, see, e.g.,
Colo. River, 424 U.S. at 817; R.R. St., 656 F.3d at 983; Intel
UNITED STATES V. STATE WATER RESOURCES CONTROL BD. 17
Corp., 12 F.3d at 913—means that a partial Colorado River
stay generally is not permissible. 4
A partial stay does not further the basic purpose of the
Colorado River doctrine. The doctrine exists for the
“conservation of judicial resources.” Colo. River, 424 U.S.
at 817 (citation and internal quotation marks omitted). “We
require a parallel suit to ensure ‘comprehensive disposition
of litigation.’ Otherwise, a stay or dismissal will neither
conserve judicial resources nor prevent duplicative
litigation.” R.R. St., 656 F.3d at 982 (quoting Colo. River,
424 U.S. at 817). A partial stay might conserve some
resources, in that the district court would not have to
adjudicate some of the issues. However, even with a partial
stay, a district court would have to resolve a case. The
district court still has to decide procedural and administrative
issues. In contrast, when a full stay is issued pursuant to
Colorado River, all activity in a case ceases. The district
court has nothing to do unless and until that stay is lifted.
The Krieger court did call to attention one concern with
not allowing partial stays. That court noted that if a party
adds an additional claim to its federal suit, the party could
avoid a Colorado River stay. The Krieger court did not want
to “encourage plaintiffs to add [new federal] claims solely
for the purpose of securing a separate federal forum and
avoiding consolidation with previously filed state court
actions.” Krieger, 776 F. Supp. 2d at 1060. In other words,
a party could get around Colorado River and engage in
forum shopping simply by adding a new and different claim
to the federal suit. This concern is heightened when the party
4
If a district court dismisses the additional claim on another basis,
and only claims that overlap with the state proceeding remain, a
Colorado River stay could still issue.
18 UNITED STATES V. STATE WATER RESOURCES CONTROL BD.
could have raised that additional claim in the state litigation,
i.e., where there is concurrent jurisdiction over the claim
added to the federal suit.
Our precedent takes this potential for gamesmanship into
account. Indeed, the seventh factor in our Colorado River
test is “the desire to avoid forum shopping.” R.R. St.,
656 F.3d at 979. “In the Colorado River context, [we have]
held that forum shopping weighs in favor of a stay when the
party opposing the stay seeks to avoid adverse rulings made
by the state court or to gain a tactical advantage from the
application of federal court rules.” Travelers Indem. Co. v.
Madonna, 914 F.2d 1364, 1371 (9th Cir. 1990). “If [the
party] pursued suit in a new forum after facing setbacks in
the original proceeding, this factor may weigh in favor of a
stay.” Montanore Minerals, 867 F.3d at 1169 (citation and
internal quotation marks omitted). However, “[i]t typically
does not constitute forum shopping where a party acted
within his rights in filing a suit in the forum of his choice.”
Seneca Ins., 862 F.3d at 846 (internal quotation marks and
citation omitted); see also Holder, 305 F.3d at 869 (deeming
it important that granting a stay “would deprive [the
husband] of his choice of forum” because the husband chose
to file his Hague Convention claim in federal court).
The court also considers a lapse in time in determining
whether a party has engaged in forum shopping. For
example, when a party waits three-and-a-half years, see
Nakash, 882 F.2d at 1417, or two-and-a-half years, see Am.
Int’l Underwriters, (Philippines), Inc. v. Cont’l Ins. Co.,
843 F.2d 1253, 1259 (9th Cir. 1988), after initially filing in
state court, that can weigh in favor of a stay.
There is a strong presumption that the presence of an
additional claim in the federal suit means that Colorado
River is inapplicable. However, because of the concern over
UNITED STATES V. STATE WATER RESOURCES CONTROL BD. 19
forum shopping, there might be rare circumstances in which
a district court could properly issue a partial Colorado River
stay. If there is clear-cut evidence of forum shopping—
meaning the party filing the federal suit clearly added a new
claim to avoid state court adjudication—then the district
court may analyze the claims separately and decide if a
partial stay is appropriate. When there is concurrent federal
and state court jurisdiction over the additional claim (as
opposed to exclusive federal jurisdiction), there is stronger
evidence of forum shopping, as the plaintiff in the federal
case could have pursued that additional claim in state court. 5
The fact that the United States did not plead its
intergovernmental immunity claim in its initial federal
complaint gives us some pause. The United States filed its
initial complaints on March 28, 2019 in state and federal
court. The United States amended its federal complaint—
adding the intergovernmental immunity claim—on June 19,
5
It might also be appropriate to stay a federal suit with a claim not
included in the state suit where that additional claim replicates the state
claim, but under a federal cause of action. For example, if state and
federal law have overlapping negligence statutes with identical
standards, those state and federal claims would be functionally the same,
i.e., would have “substantial similarity,” Seneca Ins., 862 F.3d at 845,
even if technically pleaded under separate causes of action. We “avoid
engaging in different analyses for related claims in a single action,
because such an approach ‘would increase, not decrease, the likelihood
of piecemeal adjudication or duplicative litigation,’ undermining the
Colorado River doctrine.” Montanore Minerals, 867 F.3d at 1171
(citation omitted). Thus, when the additional claim is highly related to
the overlapping claims, and if the federal plaintiff’s federal suit meets
the other requirements for a Colorado River stay, adjudication of the
state suit would resolve all of the issues in the federal case. See R.R. St.,
656 F.3d at 983. That, however, is not the case here where the
intergovernmental immunity constitutional law claim is not functionally
the same as the CEQA administrative law claims.
20 UNITED STATES V. STATE WATER RESOURCES CONTROL BD.
2019, after the Board filed a motion to dismiss. See State
Water Res. Control Bd., 418 F. Supp. 3d at 503.
Additionally, the United States likely could have brought its
intergovernmental immunity claim in state court, despite the
fact that it arises under the federal Constitution. See Yellow
Freight Sys., Inc. v. Donnelly, 494 U.S. 820, 823 (1990)
(noting that “state courts have inherent authority, and are
thus presumptively competent, to adjudicate claims arising
under the laws of the United States,” unless Congress
“affirmatively divest[s] state courts of their presumptively
concurrent jurisdiction” over federal law claims).
Even with these concerns in mind, however, the United
States’ actions do not constitute the type of forum shopping
necessary to justify a Colorado River stay pursuant to our
precedent. The United States filed its state and federal suits
on the same day. The United States informed both courts of
the other suit. From the beginning, the United States
apprised the California state court of its “preferred choice of
a federal forum to resolve its claims,” including the state law
CEQA claims. We must respect the United States’ choice to
file suit in federal court. See Holder, 305 F.3d at 869.
The United States does not appear to be seeking refuge
in federal court to avoid an impending loss in state court.
Unlike in Nakash, where the federal plaintiff “ha[d] become
dissatisfied with the state court,” Nakash, 882 F.2d at 1417,
the United States has nothing with which to be dissatisfied.
At the time of the district court’s decision, there were no
adverse rulings against the United States in state court. See
State Water Res. Control Bd., 418 F. Supp. 3d at 503.
Additionally, while there was some delay before the United
States added its intergovernmental immunity claim to its
federal suit, that delay of less than three months is far shorter
than the years-long delays in other cases where we affirmed
UNITED STATES V. STATE WATER RESOURCES CONTROL BD. 21
Colorado River stays. See Nakash, 882 F.2d at 1417; Am.
Int’l Underwriters, 843 F.2d at 1259. Thus, any evidence of
forum shopping by the United States does not overcome the
presumption that a partial stay is inappropriate. This case is
not one of those rare circumstances where forum shopping
outweighs a district court’s obligation to “exercise the
jurisdiction given” to it. Colo. River, 424 U.S. at 817.
“Parallelism is necessary but not sufficient to counsel in
favor of” a Colorado River stay. Seneca Ins., 862 F.3d
at 845. That necessary condition is absent here. Without a
showing of forum shopping on the part of the United States,
the district court could not separate the state and federal law
claims for its Colorado River analysis. That the California
Superior Court might also adjudicate some of the United
States’ claims is not reason enough to stay those particular
claims in federal court.
Additionally, the eighth factor is “dispositive” in
concluding that a stay of the entire case is not appropriate.
Intel Corp., 12 F.3d at 913. The state proceeding cannot
resolve the United States’ intergovernmental immunity
claim because the United States has not raised such a claim
in that forum. The district court could not have had “full
confidence that the parallel state proceeding will end the
litigation.” Id. (citation and internal quotation marks
omitted). “Since we find that there exists a substantial doubt
as to whether the state court proceedings will resolve all of
the disputed issues in this case, it is unnecessary for us to
weigh the other factors included in the Colorado River
analysis.” Id. at 913 n.7. The district court abused its
discretion when it granted a Colorado River stay.
The United States presented claims to the federal district
court over which that court has jurisdiction. See 28 U.S.C.
§ 1345. “Generally, as between state and federal courts, the
22 UNITED STATES V. STATE WATER RESOURCES CONTROL BD.
rule is that ‘the pendency of an action in the state court is no
bar to proceedings concerning the same matter in the Federal
court having jurisdiction . . . .’” Colo. River, 424 U.S. at 817(quoting McClellan v. Carland, 217 U.S. 268, 282 (1910)).
Federal courts have a “virtually unflagging obligation . . . to
exercise the jurisdiction given them.” Id. Colorado River
exempts federal courts from this obligation in “exceptional”
circumstances. Id. at 818. This is not such a circumstance.
The district court must allow the United States’ suit to
proceed with its full panoply of claims. 6
IV. Pullman Abstention
The Board argues that “Pullman abstention provides an
alternative ground to uphold the district court’s stay.” “So
long as the appellee does not seek to ‘enlarge’ the rights it
obtained under the district court judgment, or to ‘lessen’ the
rights the appellant obtained under that judgment, [the]
appellee need not cross-appeal in order to present arguments
supporting the judgment.” Rivero v. City & Cnty. of San
Francisco, 316 F.3d 857, 862 (9th Cir. 2002) (citation
omitted). The appellee may ask this court to affirm based on
any evidence in the record. See Jennings v. Stephens,
574 U.S. 271, 276 (2015).
Pursuant to the Pullman abstention doctrine, “federal
courts have the power to refrain from hearing cases . . . in
which the resolution of a federal constitutional question
6
Assuming that the CEQA litigation continues in state court, we
remind the parties and the district court that “whichever court were to
first reach a judgment on the merits, that judgment would most likely
have conclusive effect on the other court.” Madonna, 914 F.2d at 1369;
see also Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 54 U.S. 280,
293 (2005) (“Disposition of the federal action, once the state-court
adjudication is complete, would be governed by preclusion law.”).
UNITED STATES V. STATE WATER RESOURCES CONTROL BD. 23
might be obviated if the state courts were given the
opportunity to interpret ambiguous state law.” Quackenbush
v. Allstate Ins. Co., 517 U.S. 706, 716–17 (1996) (citing
Pullman, 312 U.S. 496). Thus, Pullman requires that the
federal court abstain from deciding the federal question
while it awaits the state court’s decision on the state law
issues. See, e.g., Columbia Basin Apartment Ass’n v. City of
Pasco, 268 F.3d 791, 806–07 (9th Cir. 2001) (“Because the
relief sought by the Appellants . . . may be available under
Washington law, we conclude that the district court should
not have decided the merits of the federal constitutional
claims presented in this complaint.”).
The district court did not stay the federal constitutional
claim here. The district court only “stay[ed] the CEQA
claims in this case.” State Water Res. Control Bd., 418 F.
Supp. 3d at 519 (footnote omitted). The district court
additionally declined to abstain pursuant to Pullman. See id.
at 512–15.
The Board incorrectly claims that “the relief would be
similar: a stay of the case while the state court resolves the
CEQA claims, followed by a return to federal court to decide
the constitutional claim, if necessary.” If the district court
had abstained pursuant to Pullman, it would not have
allowed the intergovernmental immunity claim to proceed.
The Board, which did not cross-appeal, cannot ask this court
to affirm on Pullman grounds because we would necessarily
have to stay the intergovernmental immunity claim. Such a
ruling would “‘enlarge’ the rights [the Board] obtained under
the district court judgment.” Rivero, 316 F.3d at 862(citation omitted). Thus, we cannot affirm the district court
on the basis of Pullman abstention.
24 UNITED STATES V. STATE WATER RESOURCES CONTROL BD.
V. CONCLUSION
We hold that the district court abused its discretion in
granting a partial Colorado River stay. Partial stays pursuant
to Colorado River are permissible only in very limited
circumstances, namely when there is strong evidence of
forum shopping. With little evidence of forum shopping
here, the district court erred. On remand, the district court
should allow all of the United States’ claims to proceed,
subject to regular issues of justiciability.
REVERSED AND REMANDED.