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AMERICAN FEDERATION OF STATE COUNTY AND MUNICIPAL EMPLOYEES and CANDICE CROOKS Plaintiffs-Appellants
vs.
MICHAEL TRISTANO Director of the Illinois Department of Central Management Services and MICHAEL P. LANE Director of the Illinois Department of Corrections Defendants-Appellees
 
Case:
No. 88-3447
 
Location:
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
 
Date:
April 6 1990 Decided
 
Attorneys:
Stephen A. Yokich Cornfield & Feldman Chicago Illinois for
Plaintiffs-Appellants.
Jennifer A. Keller AAG Office of the Attorney General Civil Appeals
Division Chicago Illinois for Defendants-Appellees.
 
Court:
Bauer Chief Judge Cudahy and Kanne Circuit Judges.
 
Author:
The Hon. Justice Kanne
 

This case arises out of the implementation of a drug abuse program by the Illinois Department of Corrections ("IDOC") for its employees in March of 1988. The employees are represented by the American Federation of State County and Municipal Employees ("Union"). The drug program allows for the testing of urine and blood samples when there is "reasonable suspicion " as determined by objective factors that an employee is using drugs. If a test result is positive the employee is entitled to have a second test conducted and to present evidence. If just cause is established discipline is imposed. First offenders face a 30-day suspension mandatory enrollment in a drug program and subsequent random testing. Second offenders are discharged.

In January and February of 1988 the IDOC and the Illinois Department of Central Management Services ("CMS") negotiated with the Union regarding the proposed program. The parties agreed on some aspects of the program but failed to agree on other aspects. At the conclusion of a meeting on February 23 1988 CMS and IDOC declared the parties had reached an impasse and stated that they would implement the proposed drug abuse program. On March 1 1988 the Union filed an unfair labor practice charge with the Illinois State Labor Relations Board. *fn1 At about the same time the Union also filed a grievance against the

IDOC pursuant to the grievance and arbitration procedure contained in the parties' collective bargaining agreement. The grievance contended that the drug program violated the collective bargaining agreement.

The drug abuse program was implemented on March 21 1988. The Union and an individual employee *fn2 ("plaintiffs") filed this suit in district court against the directors of CMS and IDOC ("defendants") on May 19 1988. The complaint contains four counts. Counts I through III are brought pursuant to 42 U.S.C. SEC 1983. Count I alleges that the drug abuse program violates the employees' fourth amendment rights because it provides for unreasonable searches. Count II alleges that the drug testing program invades the employees' right to privacy contained in the United States Constitution. Count III alleges that the program violates rights contained in the due process clause. Each of these counts requests injunctive and monetary relief in addition to fees and costs. Count IV of the complaint sets forth a pendent state law claim.

On July 1 1988 the defendants moved to dismiss the federal complaint on the ground that abstention was appropriate. On September 27 1988 the district court granted the motion and dismissed the case. 695 F. Supp. 410. The court found that abstention was warranted by Younger v. Harris 401 U.S. 37 91 S. Ct. 746 27 L. Ed. 2d 669 (1971) and its progeny.

On October 27 1988 the plaintiffs filed a motion to reconsider and vacate the district court's dismissal order. The district court denied the plaintiffs' motion the same day. The plaintiffs appeal.

Younger the Supreme Court held that federal courts should abstain from enjoining pending state criminal proceedings absent very rare circumstances such as bad faith or harassment. The underlying rationale of the decision is aced primarily on the notion of "comity." That is on "a recognition of the fact that the entire country is made up of a union of separate state governments" whose functions should be accorded respect. Younger 401 U.S. at 4 91 S. Ct. at 750. This concept of "Our Federalism " which played a role in he ratification of the Federal Constitution and is contained therein represents "a system in which there is sensitivity to the legitimate interests of both State and National Governments and in which the National Government anxious though it may be to vindicate and protect federal rights and federal interests always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States." Id. 91 S. Ct. at 750-51.

The Younger principle is an exception to the rule that a federal court normally will not abstain from deciding a case within its jurisdiction. New Orleans Pub. Serv. v. Council of New Orleans 491 U.S. 350 __ 109 S. Ct. 2506 2518 105 L. Ed. 2d 298 (1989); Moore v. Sims 442 U.S. 415 423 99 S. Ct. 2371 2377 n. 8 60 L. Ed. 2d 994 (1977). Younger involved a federal plaintiff who requested an injunction against a state criminal proceeding in which he was a defendant. Because the underlying rationale of Younger is sufficiently broad to encompass other circumstances the Younger principle subsequently has been extended beyond the specific circumstances of that case. In particular the Younger principle has been applied in cases in which (1) the relief sought in federal court was something other than an injunction against the state proceedings and (2) the state proceedings were something other than criminal trials.

The first category in which Younger has been extended concerns the relief sought by the federal plaintiff. In Younger itself the relief sought was an injunction against the state proceeding. On the same day that Younger was decided the Court decided a case in which the federal plaintiffs were seeking a declaratory judgment that the state statute under which they were being prosecuted was unconstitutional. Samuels v. Mackell 401 U.S. 66 91 S. Ct. 764 27 L. Ed. 2d 688 (1971). The Court compared a declaratory judgment with an injunction and said "ordinarily a declaratory judgment will result in precisely the same interference with and disruption of state proceedings that the long-standing policy limiting injunctions was designed to avoid." Id. at 72 91 S. Ct. at 767. The Court concluded that abstention was appropriate when the relief sought is a declaratory judgment which would have virtually the same impact on state proceedings as an injunction. Id. at 73 91 S. Ct. at 768.

In addition Younger abstention has been found to be appropriate by some circuits when the relief sought in federal court was damages. *fn3 Abstention was appropriate in these cases because a damage award would sufficiently disrupt the state proceedings that it would be akin to a declaratory judgment see e.g. Feaster v. Miksch 846 F.2d 21 (6th Cir. 1988); Mann v. Jett 781 F.2d 1448 (9th Cir. 1986); or because the exact claim for damages in federal court was made and denied in state court Brunken v. Lance 807 F.2d 1325 1331 (7th Cir. 1986).

Finally Younger abstention has been found to be appropriate when the relief sought by the federal plaintiff was an injunction against the party that had prevailed in state court to prevent it from executing its judgment prior to an appeal to a state appellate court. Pennzoil Co. v. Texaco Inc. 481 U.S. 1 107 S. Ct. 1519 95 L. Ed. 2d 1 (1987). Again abstention was appropriate because the impact of the requested relief would be virtually the same as an injunction against the proceedings.

The common element of the relief sought in these cases is the impact on and interference with the state proceedings. If the impact is similar to the undue interference of an injunction then the comity and federalism concerns of Younger are implicated.

B.

The second category in which Younger has been extended concerns the type of state proceeding that is being challenged in federal court. As previously indicated in Younger the state proceeding was a criminal trial. Subsequently the Younger principle has been applied when state civil proceedings that involve important state interests are challenged. Huffman v. Pursue Ltd. 420 U.S. 592 95 S. Ct. 1200 43 L. Ed. 2d 482 (1975); Juidice v. Vail 430 U.S. 327 97 S. Ct. 1211 51 L. Ed. 2d 376 (1977); Trainor v. Hernandez 431 U.S. 434 97 S. Ct. 1911 52 L. Ed. 2d 486 (1977); Moore v. Sims 442 U.S. 415 99 S. Ct. 2371 60 L. Ed. 2d 994 (1977). It also has been applied when state administrative and other quasi-judicial proceedings that involve important state interests are challenged. Middlesex Ethics Comm'n v. Garden State Bar Ass'n 457 U.S. 423 102 S. Ct. 2515 73 L. Ed. 2d 116 (1982); Ohio Civil Rights Comm'n v. Dayton Christian Schools Inc. 477 U.S. 619 106 S. Ct. 2718 91 L. Ed. 2d 512 (1986).

The Younger principle has been held applicable to such cases because the state proceedings implicate the comity and federalism concerns expressed in Younger. Indeed a three-part test has emerged from the cases to determine whether the Younger principle should apply when particular state proceedings are challenged. A court can abstain if the impacted state proceedings satisfy the following requirements: (1) the judicial or judicial-in-nature state proceedings are ongoing; (2) the proceedings implicate important state interests; and (3) there is an adequate opportunity in the state proceedings to raise constitutional challenges. See Middle sex Ethics Comm'n 457 U.S. at 432 102 S. Ct. at 2521.

C.

In each of the above categories in which the Younger principle has been extended from the facts of the original case it is apparent that the concerns of comity and federalism underlying Younger are present. When a federal court is deciding whether Younger abstention is appropriate in a particular case it must determine that both the relief sought and the ongoing state proceedings warrant the application of the Younger principle.

In the case now before us we will first examine the relief sought to determine whether disposition by the federal court will unduly interfere with the ongoing state proceedings. The suit in federal court alleges constitutional violations of employees by the drug testing program and requests monetary and injunctive relief based thereon. The pending state unfair labor practice proceeding involves the duty to bargain and other labor law issues. The pending state arbitration proceeding involves an interpretation of the parties' collective bargaining agreement to determine whether the program violated the agreement. It is apparent that the issues in the federal suit are substantially different from the issues in the state proceedings. The relief requested in federal court if granted would not unduly interfere with the state proceedings. Thus the comity and federalism concerns of Younger are not applicable to this case. We hold that the district court erred in dismissing the plaintiffs' claims based on Younger abstention. See Carras v. Williams 807 F.2d 1286 1290 (6th Cir. 1986) ("Because these claims [in federal court] sought neither to interrupt nor to challenge the propriety of the pending Michigan state court suit we hold that the district court erred in abstaining from

them"). *fn4

II.

Our inquiry is not yet complete however because we may affirm a dismissal by the district court on any ground which is supported by the record. See Jacobson v. Village of Northbrook 824 F.2d 567 568 n. 3 (7th Cir. 1987); Martinez v. United Auto. Aerospace & Agricultural Implement Workers 772 F.2d 348 353 (7th Cir. 1985). The defendants now urge us to dismiss the claims for monetary damages and make-whole relief because of the state's eleventh amendment immunity and the inapplicability of SEC. 1983 to state officials acting in their official capacities. The plaintiffs here clearly sued the named state officials in their official capacities under sEC 1983. Indeed the complaint alleges that "defendants Lane and Tristano have authorized and implemented the Drug Abuse Program under the color of their authority as state officials. Under the Supreme Court's decision in Will v. Michigan Dept. of State Police 491 U.S. 58 109 S. Ct. 2304 2311-12 105 L. Ed. 2d 45 (1989) this is precisely the type of allegation when made for damages or retroactive relief *fn5 that is treated as an allegation against the state itself and therefore is not against a "person" as required under SEC 1983. We therefore affirm the dismissal of the claims for monetary and retroactive relief.

III.

For the foregoing reasons we AFFIRM the dismissal of the claims for monetary and retroactive relief and REVERSE and REMAND the dismissal of the other claims.

 
Notes:

*fn1The State Labor Relations Board rendered its decision on the Union's unfair labor practice charge on September 29 1988. Soon thereafter the Union appealed the decision to the Illinois Appellate Court. The appeal was pending when this case was argued.

*fn2 The named plaintiff-appellant Candice Crooks is a worker who was laid off and allegedly was required to take a drug test before returning to work.

*fn3 The Supreme Court has not reached the issue of whether the Younger principle applies when only money damages are sought in federal court. Deakins v. Monaghan 484 U.S. 193 __ 108 S. Ct. 523 529 n. 6 98 L. Ed. 2d 529 (1988).

*fn4 The arguments made by the defendants both in the district court in support of their motion to dismiss and in their briefs to this court essentially address only the second determination -- whether the pending state proceedings invoke the Younger principle. Because we have found that the relief sought does not invoke the Younger principle we do not decide whether the pending state proceedings would warrant abstention.

*fn5 A state official sued for prospective relief in his or her official capacity is a person under SEC. 1983. Will U.S. at 109 S. Ct. at 2311 n. 10. Therefore the claims for prospective relief survive the motion to dismiss.