Unpublished Disposition, 932 F.2d 973 (9th Cir. 1989)

No. 90-55203

Before SCHROEDER and REINHARDT, Circuit Judges, and KING,^*  District Judge.

In this civil rights action, appellant Leroy Gilbert challenges an employee regulation implemented by the Los Angeles County Department of Probation. Gilbert was suspended from his position as a probation officer, allegedly for violating the regulation. He claims that the regulation is unconstitutionally vague and overbroad and is being used to retaliate against him for exercising his civil rights.¹  Gilbert sought damages and an injunction staying ongoing civil service proceedings and preventing the continued enforcement of the regulation.

The district court denied Gilbert's application for a TRO enjoining the pending civil service proceeding, but issued an Order to Show Cause regarding the request for a preliminary injunction. The County filed an answer to the original complaint, urging the district court to abstain from enjoining the proceedings. On December 18, 1989, the district court held a hearing and concluded that abstention was appropriate because Gilbert had administrative remedies which were pending. Accordingly, it dismissed the complaint and denied injunctive relief. Gilbert now challenges the district court's dismissal of his complaint. We affirm.

This case is governed by the principles enunciated in Younger v. Harris, 401 U.S. 37 (1971), and its progeny, which have held that abstention may be appropriate when either state civil or administrative proceedings are pending. See, e.g., Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987) (application of state judgment lien and appeal bond provisions); Ohio Civil Rights Comm'n v. Dayton Christian Schools, Inc., 477 U.S. 619 (1986) (administrative proceedings investigating sex discrimination complaint); Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423 (1982) (attorney disciplinary proceedings); Juidice v. Vail, 430 U.S. 327 (1977) (contempt proceeding); Gibson v. Berryhill, 411 U.S. 564 (1973) (administrative proceedings regarding revocation of optometry license).

Based on the Supreme Court's analysis in Middlesex County Ethics Commission v. Garden State Bar Association, 457 U.S. 423 (1982), we have articulated three requirements which must be met before a federal court properly invokes the Younger abstention doctrine: (1) there must be an ongoing state judicial proceeding; (2) the proceeding must implicate an important state interest; and (3) there must be ample opportunity in the state proceeding to raise federal constitutional challenges. Lebbos v. Judges of the Superior Court, 883 F.2d 810, 814 (9th Cir. 1989). Even if all three requirements are satisfied, abstention is not appropriate if bad faith prosecution or harassment is present, or where a statute flagrantly violates constitutional provisions. World Famous Drinking Emporium, Inc. v. City of Tempe, 820 F.2d 1079, 1082 (9th Cir. 1987).

Application of the three Middlesex requirements shows that the district court properly abstained under Younger. First, Gilbert's claims are being addressed in ongoing state proceedings. Gilbert filed a claim with the Los Angeles County Civil Service Commission, an administrative tribunal. The Commission hears appeals of employee disciplinary matters and oversees the functioning of the civil service system. The Commission's adjudication of this claim is subject to state court review via a writ of mandate. See Cal.Code Civ.P. Secs. 1085 & 1094.5; Skelly v. State Personnel Bd., 539 P.2d 774, 782 & n. 23 (Cal.1975).

Second, the pending state proceedings do implicate important state interests. California has a substantial interest in (1) the conduct and professionalism of its employees, particularly those who deal with troubled youths as part of the state's criminal justice system, and (2) the regulation and functioning of civil service proceedings which evaluate disciplinary action. The courts have recognized that similar interests satisfy the second Middlesex requirement. See, e.g., Middlesex, 457 U.S. at 434 (state's interest in "maintaining and assuring the professional conduct of the attorneys it licenses"); Juidice, 430 U.S. at 335 (state's interest "in the contempt process, through which it vindicates the regular operation of its judicial system"); Fresh Int'l Corp. v. Agricultural Labor Relations Bd., 805 F.2d 1353, 1360 (9th Cir. 1986) (state's interest in ensuring peaceful collective bargaining for farm laborers).

Finally, Gilbert will have an adequate opportunity to raise his constitutional challenges to the speech regulation in the state proceedings. In Middlesex, the Supreme Court stated that where important state interests are involved, a federal court should abstain "unless state law clearly bars the interposition of the constitutional claims." 457 U.S. at 432 (quoting Moore v. Sims, 442 U.S. 415, 430 (1979)). The burden rests on the appellant to show that he will be barred from raising his federal claims in the state proceeding. Lebbos, 883 F.2d at 815. Gilbert has failed to show how he would be precluded from bringing federal constitutional challenges in the administrative civil service proceeding or in California state court. State appellate review of an administrative decision has been held sufficient to satisfy the third Middlesex requirement. Ohio Civil Rights Comm'n, 477 U.S. at 629; Beltran v. California, 871 F.2d 777, 783 (9th Cir. 1988).

Gilbert also asserts that the district court committed reversible error in abstaining from the case without making findings of fact. The only authority he cites for this proposition is a Third Circuit case, Conover v. Montemuro, 477 F.2d 1073 (3d Cir. 1973). While Conover suggests that in some circumstances, factual determinations may be necessary to determine whether abstention is proper, that is not the case here. The district court determined that Gilbert was participating in ongoing civil service proceedings challenging the application of the County's speech regulation. Because the district court found that Gilbert would have an adequate opportunity in California state court to litigate his constitutional challenges, and that important state interests were implicated in the state proceedings, the court properly abstained. No further factual findings were necessary.

AFFIRMED.