PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CARROLL MOORE, 

Plaintiff-Appellant,

v.

CITY OF ASHEVILLE, NORTH

CAROLINA; JAMES L. WESTBROOK, JR.,  No. 04-1003

in his official capacity as the City

Manager of Asheville, North

Carolina; ASHEVILLE POLICE

DEPARTMENT,

Defendants-Appellees. 

Appeal from the United States District Court

for the Western District of North Carolina, at Asheville.

Lacy H. Thornburg, District Judge.

(CA-03-218-1)

Argued: November 30, 2004

Decided: January 25, 2005

Before NIEMEYER, LUTTIG, and KING, Circuit Judges.

Affirmed and remanded by published opinion. Judge Niemeyer wrote

the opinion, in which Judge Luttig and Judge King joined. 

COUNSEL

ARGUED: Mathew D. Staver, LIBERTY COUNSEL, Longwood,

Florida, for Appellant. Sharon Tracey Barrett, PATLA, STRAUS,
ROBINSON & MOORE, P.A., Asheville, North Carolina, for Appellees. ON BRIEF: Michael Schmidt, PATRICK HENRY JUSTICE

CENTER, Laurinburg, North Carolina; Erik W. Stanley, Rena M.

Lindevaldsen, Anita L. Staver, Joel L. Oster, LIBERTY COUNSEL,

Longwood, Florida, for Appellant. Curtis W. Euler, CITY ATTORNEY’S OFFICE, Asheville, North Carolina, for Appellees.

OPINION

NIEMEYER, Circuit Judge: 

Carroll Moore, a carpenter from Tuckasegee, North Carolina, regularly engages in street preaching in Asheville, North Carolina, and

elsewhere. In March and again in April 2003, Moore was cited for

violations of Asheville’s noise ordinance, Asheville, N.C. Code of

Ordinances § 10-84, when his preaching allegedly interfered with permitted events taking place in Asheville’s public forums. In both

instances, Moore paid fines, which he did not appeal administratively

or to the state courts. Rather, after the time for exhausting state remedies apparently had expired, he commenced this action against the

City of Asheville and its officials under 42 U.S.C. § 1983, alleging

that his conduct was protected by the First and Fourteenth Amendments to the U.S. Constitution and that Asheville’s noise ordinance,

as well as related ordinances, was unconstitutional both on its face

and as applied to his circumstances. He seeks a declaratory judgment,

injunctive relief, and damages. 

The district court denied the defendants’ motion to dismiss but

stayed the proceedings "pending the outcome o[f] state court proceedings," based on the doctrine of Younger v. Harris, 401 U.S. 37 (1971)

(holding that a federal court should generally refrain from intervening

in ongoing state criminal proceedings), and its progeny. 

Although this case raises an issue not directly addressed by Younger or its progeny, or heretofore by our court, it presents the same

concerns for federalism and comity that animate established Younger

jurisprudence, and therefore we conclude, as a "necessary concomitant" of Younger, that abstention was appropriate. See Huffman v.

2 MOORE v. CITY OF ASHEVILLE
Pursue, Ltd., 420 U.S. 592, 608 (1975). In particular, we hold that a

defendant to a coercive state administrative proceeding must exhaust

his state administrative and judicial remedies and may not bypass

them in favor of a federal court proceeding in which he seeks effectively "to annul the results" of a state administrative body. Id. at 608-

09; see also Ohio Civil Rights Comm’n v. Dayton Christian Schools,

Inc., 477 U.S. 619, 627 (1986) (applying Younger to state administrative proceedings). Accordingly, we affirm the district court’s application of the Younger doctrine to the circumstances of this case, and,

because state proceedings have concluded, we remand this case to the

district court with instructions to dismiss the complaint in its present

form. 

I

Moore has spent his weekends over the past seven years preaching

the Christian Gospel on streets, sidewalks, and other public rights-ofway in North Carolina. On two occasions, while preaching in public

forums in the City of Asheville, Moore was cited by police officers

for violating Asheville’s noise ordinance. 

Asheville’s noise ordinance prohibits activity "on any premises or

public area in the city, which activity produces or constitutes a noise

disturbance on occupied neighboring premises or public area." Asheville, N.C., Code of Ordinances § 10-83. The ordinance defines "noise

disturbance" as "any unreasonably loud and raucous sound or noise

which: (1) Endangers or injures the health or safety of humans or animals; (2) Endangers or injures personal or real property; or (3) Disturbs a reasonable person of normal sensitivity." Id. § 10-82. In

addition to the general prohibition against noise disturbances, the

ordinance outlaws specific activities that tend to "produce unreasonably loud and raucous noises," including "[s]treet vending or peddling" and "[t]he use of any drum, loudspeaker or other instrument or

device for the purpose of attracting attention by creation of noise to

any performance, show, or sale or display of merchandise." Id. § 10-

84. 

An individual charged under and found to have violated the noise

ordinance can appeal to the Noise Ordinance Appeals Board, id. § 10-

86, and the decision of the Appeals Board can be appealed further to

MOORE v. CITY OF ASHEVILLE 3
the City Manager, id. Finally, North Carolina common law allows

judicial review of the City Manager’s decision by a writ of certiorari

issued by a state Superior Court. See Russ v. Bd. of Educ., 59 S.E.2d

589, 591 (N.C. 1950). 

Moore received the first of his citations on March 29, 2003, when

he began preaching near Pritchard Park while a permitted peace rally

was taking place. An Asheville police officer told Moore that he

would need to leave the area and move to the other side of the street.

Moore proceeded across the street, as directed, but he continued to

preach to the crowd attending the peace rally. The officer then cited

Moore for engaging in "street vending or peddling" so as to cause a

noise disturbance, in violation of Asheville Ordinance § 10-84. The

citation assessed a $50 fine, which Moore paid without challenging

the citation. 

Moore received his second citation on April 19, 2003, when he

preached near City County Plaza, where a permitted event was taking

place. This citation charged that Moore was "causing [a] disturbance

by shouting a[nd] yelling at [the] crowd during [a] permitted event."

He was again charged under the noise ordinance, this time for using

a "drum, loudspeaker or other instrument or device for the purpose of

attracting attention by creation of noise to any performance, show, or

sale or display of merchandise." Because it was Moore’s second violation of the noise ordinance, the citation assessed a fine of $100.

Moore appealed this citation to the Noise Ordinance Appeals Board,

as authorized by Asheville Ordinance § 10-86. After the Board

affirmed the violation, Moore paid the $100 fine and sought no further review of the citation. 

Rather than pursuing further his rights of state administrative

appeal and judicial review, Moore apparently let the times for taking

appeal from his citations lapse,1 and he commenced this action in fed1The record is not completely clear as to the status of Moore’s right

to appeal his second citation at the time he commenced this action on

August 28, 2003. The noise ordinance gave Moore 15 days from the date

of the citation (April 19, 2003) to seek review from the Appeals Board.

The ordinance also specifies that Appeals Board hearings shall occur

4 MOORE v. CITY OF ASHEVILLE
eral court on August 28, 2003. In his complaint, which names the City

of Asheville, its City Manager, and its police department as defendants, Moore facially challenges the constitutionality of Asheville’s

noise ordinance and related ordinances and challenges the noise ordinance as applied to him in March and April 2003. He alleges that the

ordinances violated and continue to violate his freedom of speech, his

right peaceably to assemble, and his right to the free exercise of religion, as secured by the First and Fourteenth Amendments. 

In his complaint, Moore recites the defendants’ actions on both

March 29, 2003 and April 19, 2003, when he was cited for violations

of the noise ordinance, and he alleges that he continues to engage in

street preaching and "fears repeated civil or criminal citations." He

alleges further that Asheville’s "Noise Disturbance Policy, as applied,

has caused and will continue to cause, [him] to suffer actual and

impending irreparable injury and damage" and that he has incurred

"constitutional and monetary damages as a result of Defendants’

actions." The resulting damages, he alleges, were both "direct and

consequential." For relief, Moore requests an injunction prohibiting

the defendants "from enforcing the policies against Plaintiff"; a

declaratory judgment declaring that the noise ordinance is invalid on

its face and "as applied by Defendants insofar as it prohibits Plaintiff

from street preaching"; and an award of "such damages as are reasonable and just under the circumstances as a direct and proximate result

of the Defendants’ violations of Plaintiff’s constitutional rights." In

addition to challenging the noise ordinance, Moore also facially challenges related statutes that were not enforced against him, including

Asheville’s public speaking and picketing ordinances. 

On the City of Asheville’s motion to dismiss, the district court dismissed the claims against the City Manager because they were redunwithin 15 days of the notice of appeal and that "decisions shall be issued

and served within ten days of the hearing." Asheville, N.C., Code of

Ordinances § 10-86(e)(1). Under that schedule, therefore, Moore’s 10-

day period to appeal to the City Manager would have expired sometime

in late June 2003. We cannot presume with certainty, however, that the

schedule established by the ordinance was in fact followed because the

ordinance gives the Appeals Board the power to extend, by order, "[t]he

times for conducting hearings and issuing decisions." Id.

MOORE v. CITY OF ASHEVILLE 5
dant with claims against the City itself and the claims against the

Asheville Police Department because, under North Carolina law, the

department is not a person capable of being sued. It also dismissed the

claims challenging the public speaking and picketing ordinances

because Moore failed to demonstrate a "credible threat of prosecution" under them. The court, however, denied the motion to dismiss

the remainder of the complaint against the City, concluding rather

that, under the holding of Younger v. Harris, it should abstain from

determining Moore’s remaining claims against the City. Accordingly,

the court stayed the case "pending the outcome of the state proceedings." By this time, it was certain that no state proceedings were

pending and that the times for appealing the citations had elapsed. 

From the district court’s November 13, 2003 order, Moore filed

this appeal, challenging only the district court’s order staying his

claims against the City under the Younger doctrine. 

II

Because the district court stayed Moore’s claims, rather than dismissing his complaint, we initially must consider whether the district

court’s November 13, 2003 order is a final judgment so as to give us

jurisdiction over Moore’s appeal. Section 1291 of Title 28 grants

courts of appeals appellate jurisdiction over "final decisions of the

district courts," and a "final decision" is one that "ends the litigation

on the merits and leaves nothing for the [district] court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233 (1945).

In Quackenbush v. Allstate Insurance Co., 517 U.S. 706, 713 (1996),

however, the Supreme Court held that a district court order that stayed

federal court proceedings pending the outcome of state court proceedings was immediately appealable even though it did not fit comfortably within the definition of a final judgment. The finality of the order

entered in this case is yet more certain because the effect of the district court’s order to stay, pending the outcome of a state proceeding,

effectively ended the litigation in view of the facts that no state court

proceedings were pending at the time of the district court’s order and

the administrative "judgments" were no longer appealable. 

Accordingly, we conclude that we have jurisdiction to review the

district court’s order. 

6 MOORE v. CITY OF ASHEVILLE
III

Stated simply, the Younger v. Harris doctrine holds that 

a federal court should abstain from interfering in a state proceeding, even though it has jurisdiction to reach the merits,

if there is (1) an ongoing state judicial proceeding, instituted

prior to any substantial progress in the federal proceeding;

that (2) implicates important, substantial, or vital state interests; and (3) provides an adequate opportunity for the plaintiff to raise the federal constitutional claim advanced in the

federal lawsuit. 

Nivens v. Gilchrist, 319 F.3d 151, 153 (4th Cir. 2003) (citing Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423,

432 (1982)). 

In Younger itself, after the plaintiff had been indicted under the

California State Syndicalism Act but before he was tried, the plaintiff

filed a federal action seeking to enjoin the state proceedings on the

ground that the Syndicalism Act violated the U.S. Constitution. After

the lower federal courts enjoined the state court proceedings, the

Supreme Court reversed and instructed that "the normal thing to do

when federal courts are asked to enjoin pending proceedings in state

courts is not to issue such injunctions" unless the federal plaintiff

demonstrates either that he will suffer irreparable injury that is "both

great and immediate" or that the state statute is "flagrantly and

patently" unconstitutional. Younger, 401 U.S. at 45, 53. Relying on

equitable principles, the Supreme Court concluded that the federal

plaintiff seeking the equitable remedy of an injunction failed to demonstrate that the state proceedings threatened him with injury that

would remain unremedied if the state proceedings terminated in his

favor. Id. at 54. The Court, however, did not rely only on equitable

principles. It was also concerned about the "more vital" notion of federalism and comity implicated by interfering with ongoing state proceedings: 

This underlying reason for restraining courts of equity from

interfering with criminal prosecutions is reinforced by an

even more vital consideration, the notion of ‘comity,’ that

MOORE v. CITY OF ASHEVILLE 7
is, a proper respect for state functions, a recognition of the

fact that the entire country is made up of a Union of separate

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 perform their separate functions

in their separate ways.

Id. at 44 (emphasis added). This underlying policy heightened the

degree of irreparable injury a plaintiff had to show to obtain such an

injunction — namely, that the state statute was "flagrantly and

patently" unconstitutional or that it was being enforced in "bad faith,"

in a harassing manner, or in "any other unusual circumstance that

would call for equitable relief." Id. at 54. 

Moore contends first that the district court erroneously applied the

doctrine of Younger v. Harris because that doctrine applies only to

protect ongoing state proceedings from federal interference. He points

out that there were no pending state proceedings at the time because

he had forgone the opportunity to appeal both the first citation by paying the $50 fine and the second citation by not appealing to the City

Manager within the time allowed by the ordinance. Similarly, he

argues, at the time of the district court’s decision to abstain, the City

administrative bodies and the state courts were "doing nothing related

to [his] Noise Ordinance citations[;] they plan[ned] on doing nothing

related to the citations, nor could they [have done] anything in the

future related to the citations." 

Before addressing Moore’s argument that the lack of any pending

state proceedings renders Younger inapplicable, we are prompted by

Moore’s emphasis on the finality of the administrative decisions in

this case to consider first two separate, but closely related doctrines:

res judicata, see Huffman, 420 U.S. at 607-08 n.19, and the RookerFeldman doctrine, as Moore himself has suggested. 

It is now established by federal common law that federal courts

will apply res judicata to unreviewed determinations of state administrative agencies if the State itself would do so. See Univ. of Tenn. v.

Elliott, 478 U.S. 788, 799 (1986) (holding that "when a state agency

acting in a judicial capacity resolves disputed issues of fact properly

before it which the parties have had an adequate opportunity to liti8 MOORE v. CITY OF ASHEVILLE
gate, federal courts must give the agency’s factfinding the same preclusive effect to which it would be entitled in the State’s courts"

(internal quotation marks and citation omitted)). The Court drew on

the rationale of the full-faith-and-credit provisions of 28 U.S.C.

§ 1738 and the Full Faith and Credit Clause of the U.S. Constitution,

U.S. Const. art. IV, § 1, to adopt a federal common law principle that

serves the values of both repose and federalism. Id. at 798-99. Thus,

if North Carolina were to give its own unreviewed determinations of

administrative agencies preclusive effect, so too would a district court

in a federal action. But res judicata was not raised as a defense before

the district court, and that court accordingly did not address the question of its applicability. See Huffman, 420 U.S. at 607-08 n.19. 

The Rooker-Feldman doctrine might likewise be considered to bar

a federal action from in effect reviewing state administrative agency

"judgments."2 Because the decision of an administrative agency can

be appealed vertically by petitioning the state courts and the U.S.

Supreme Court for review, it might be argued that the RookerFeldman doctrine should apply to administrative "judgments" as it

does to court judgments — i.e., to bar what in effect would become

a lateral review of a state agency "judgment" in a U.S. district court.

Again, however, this issue was neither presented to the district court

nor decided by it. Moreover, while we have never considered the

question, other courts of appeals have concluded that the RookerFeldman doctrine does not apply to administrative "judgments," limiting its application only to state court judgments. See, e.g., Van

2As we summarized the Rooker-Feldman doctrine in American Reliable Insurance Co. v. Stillwell, 336 F.3d 311 (4th Cir. 2002), "a ‘party

losing in state court is barred from seeking what in substance would be

appellate review of the state judgment in a United States district court.’"

Id. at 316 (quoting Johnson v. De Grandy, 512 U.S. 997, 1005-06

(1994)). Although federalism and comity surely attend application of the

Rooker-Feldman doctrine, the doctrine operates principally to preserve

the structure of appeals from state courts to the United States Supreme

Court under 28 U.S.C. § 1257(a) and to bar any proceeding that would

functionally amount to a lateral appeal to a United States district court.

See Stillwell, 336 F.3d at 316-17. For this reason, the Rooker-Feldman

doctrine prohibits a district court even from "consideration of ‘issues

actually presented to and decided by a state court.’" Id. at 317 (quoting

Plyler v. Moore, 129 F.3d 728, 731 (4th Cir. 1997)). 

MOORE v. CITY OF ASHEVILLE 9
Harken v. City of Chicago, 103 F.3d 1346, 1348-49 (7th Cir. 1997);

Narey v. Dean, 332 F.3d 1521, 1525-26 (11th Cir. 1994); Ivy Club v.

Edwards, 943 F.2d 270, 284 (3d Cir. 1991); Scott v. Flowers, 910

F.2d 201, 208 (5th Cir. 1990). 

More important to the issue before us are the subtle distinctions to

be made between the policies underlying res judicata and the RookerFeldman doctrine, on the one hand, and those underlying the Younger

doctrine, on the other. Although res judicata and Rooker-Feldman bar

federal courts from reconsidering state court judgments, those doctrines are not designed specifically to promote respect for state substantive policies, and they thus apply regardless of whether the state

judgment implicates a substantive state interest. The Younger doctrine, on the other hand, addresses both concerns as demonstrated by

the Supreme Court’s extension of Younger beyond the context of state

criminal proceedings to only those state proceedings that implicate

equally weighty state interests. 

In extending Younger to prescribe abstention in favor of state civil

actions, the Supreme Court in Huffman, 420 U.S. 592, was mindful

that the doctrine was originally applied to protect the state interests

represented in criminal prosecutions. Consequently, it extended the

Younger doctrine only to civil cases in which important state interests

were at stake, such as a nuisance action: 

Strictly speaking, this element of Younger [the reluctance of

federal courts to interfere with a criminal prosecution] is not

available to mandate federal restraint in civil cases. But

whatever may be the weight attached to this factor in civil

litigation involving private parties, we deal here with a state

proceeding which in important respects is more akin to a

criminal prosecution than are most civil cases. The State is

a party to the Court of Common Pleas proceeding, and the

proceeding is both in aid of and closely related to criminal

statutes which prohibit the dissemination of obscene materials. Thus, an offense to the State’s interest in the nuisance

litigation is likely to be every bit as great as it would be

were this a criminal proceeding.

10 MOORE v. CITY OF ASHEVILLE
Id. at 604. Thus, recognizing that the State’s nuisance action was a

coercive civil proceeding to which the State was a party, the Supreme

Court concluded that federal court interference would disrupt the

State’s efforts "to protect the very interests which underlie its criminal

laws." Id. at 605; see also Ohio Civil Rights Comm’n, 477 U.S. at 628

(holding that the "elimination of prohibited sex discrimination is a

sufficiently important state interest" to bring state administrative proceedings by a civil rights commission within the ambit of Younger);

Middlesex County Ethics Comm., 457 U.S. at 434 (holding that Younger protects ongoing state disciplinary proceedings because the State

"has an extremely important interest in maintaining and assuring the

professional conduct of the attorneys it licenses").3

The case before us implicates not only concerns about avoiding

duplicative litigation and respecting the appellate processes designed

by Congress and the Asheville City Council, but also concerns about

respecting Asheville’s efforts to enforce its substantive policies

against noise disturbances. Because Younger is the only doctrine that

addresses all of these concerns, and because neither res judicata nor

the Rooker-Feldman doctrine was raised in the district court, we conclude that Younger is the doctrine most completely applicable to the

circumstances of this case. 

According to Moore, the fact that the state proceedings concluded

prior to his federal complaint undermines the rationale behind Younger abstention. He states, "If Younger’s underpinnings rest on a desire

of the federal courts to not ‘unduly interfere with the legitimate activities of the States,’ then once the state proceedings have become final,

for whatever reason, there is no justification for a federal court to

abstain because there is no interference with the legitimate activities

of the states" (quoting Younger, 401 U.S. at 44). He adds, "Younger

does not require abstention merely because [he] at one point had a

state remedy available to him which he chose not to pursue because

3Although the Supreme Court has since extended Younger beyond proceedings to which the State is a party, see, e.g., Pennzoil Co. v. Texaco,

Inc., 481 U.S. 1, 13 (1987), it has done so only when the civil proceedings "involv[e] certain orders that are uniquely in furtherance of the state

courts’ ability to perform their judicial functions." New Orleans Pub.

Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 368 (1989). 

MOORE v. CITY OF ASHEVILLE 11
those state proceedings are now completely final. . . . Younger never

intended such an absurd result." 

Although Moore’s argument makes sense under Younger’s original

articulation, it overlooks the Supreme Court’s extension of the doctrine in subsequent cases to give full effect to the policies underlying

Younger in the context of completed state proceedings. In Huffman,

the Supreme Court applied Younger to bar a federal action, even when

the state court proceedings had ended by the time the federal complaint was filed, so long as the federal complaint was designed "to

annul the results of a state trial." Huffman, 420 U.S. at 609. It is true

that the Supreme Court has not yet held that a federal court should

abstain under Younger from hearing a federal claim when the plaintiff

has failed to exhaust state administrative remedies and defaulted on

his opportunity to do so. The Court did, however, suggest such an

application in Huffman and applied the Younger doctrine in the face

of pending administrative proceedings in Ohio Civil Rights Commission, 477 U.S. at 628-29. 

In Huffman, the plaintiff filed a federal § 1983 action to enjoin, on

U.S. constitutional grounds, enforcement of a state court civil judgment entered against him, declaring that his theater was a nuisance

because it showed pornographic films. Noting that the plaintiff had

failed to appeal the judgment to the state appellate court, the Supreme

Court held that the lower federal court should have abstained from

enjoining the enforcement of the judgment under the Younger doctrine. 

The strict holding of Huffman applied Younger to bar federal intervention into a state coercive civil proceeding when the plaintiff filed

his federal complaint after the state judgment had been rendered but

before the time for appealing had run its course. Although it was

unclear whether the state court judgment had become nonappealable

before the federal court entered its injunction judgment, the Supreme

Court suggested that that fact was not critical to the application of the

Younger doctrine: 

We need not, however, engage in such inquiry. For regardless of when the Court of Common Pleas’ judgment became

final, we believe that a necessary concomitant of Younger is

12 MOORE v. CITY OF ASHEVILLE
that a party in appellee’s posture must exhaust his state

appellate remedies before seeking relief in the District

Court, unless he can bring himself within one of the exceptions as specified in Younger. 

420 U.S. at 608. The Court’s lack of concern about the relative timing

of the federal and state court proceedings was deliberate to allow the

Court to maintain its focus on the core Younger concerns of (1)

whether the federal action was "duplicative," (2) whether it cast a "direct aspersion on the capabilities and good faith of state appellate

courts," (3) whether it was "disruptive" of the State’s important interests, and (4) whether the federal action was "designed to annul the

results of [the] state trial." Id. at 608-09. 

In the case before us, Moore sought federal court intervention

apparently after the state administrative "judgment" had become nonappealable by reason of his failure timely to take available state avenues of review. To apply Younger to this circumstance might stretch

Huffman slightly beyond its strict holding. But we conclude that any

differences between the timing in this case and in Huffman do not

alter the proper legal analysis. We continue to focus on Younger’s

policy of commanding federal restraint when the federal action is

duplicative, casts aspersion on state proceedings, disrupts important

state enforcement efforts, and is designed to annul a state proceeding.

By initiating this suit in federal court after the state administrative

agency determined that he had violated the noise disturbance ordinance, Moore seeks to relitigate a dispute that has already been

resolved and to receive as damages the amounts that he paid as fines.

Moreover, to the extent that Moore in this case seeks to annul or trample on the results of state administrative proceedings, he interferes

with the State’s interest in enforcing its substantive laws as well as

its interest in enforcing those laws through available administrative

procedures and in its own courts. That Moore did not avail himself

of state-provided avenues for review can only cast aspersion on the

State’s "capabilities and good faith," Huffman, 420 U.S. at 608, and

deprive the State of "a function which quite legitimately is left [to the

state appellate bodies], that of overseeing [agency] dispositions of

constitutional issues which arise in civil litigation over which they

have jurisdiction," id. at 609. Federal court intervention would also

MOORE v. CITY OF ASHEVILLE 13
disrupt the City’s efforts to enforce its substantive policy against

noise disturbances. 

Thus, regardless of whether state appellate remedies were still

available at the time Moore filed suit in federal court or whether he

had already defaulted on such remedies, the federal court intervention

that he sought would be duplicative, would disrupt the State’s substantive policies, would offend the State’s appellate processes, and

would undo what the State has done by a now-nonappealable order.

Accordingly, we conclude that under Huffman, the Younger doctrine

applies to bar federal court reconsideration of state coercive proceedings even when the state proceedings have ended, as long as the federal proceeding casts aspersion on the state proceedings or annuls

their results. 

The final step to application of the Younger-Huffman doctrine to

this case, however, requires consideration of whether the exhaustion

principles imposed by the Huffman Court to protect state appellate

court proceedings apply as well to protect state appellate administrative proceedings. To conclude that they do, we rely on the Court’s

decision in Ohio Civil Rights Commission, 477 U.S. 619. There, the

Supreme Court held that Younger required federal courts to abstain in

favor of pending state administrative proceedings.4 Rejecting the

plaintiff’s argument that abstention in favor of such proceedings was

inappropriate because state law did not authorize the agency to

address constitutional challenges, the Court explained that abstention

was nonetheless appropriate because the agency could "construe its

own statutory mandate in the light of federal constitutional principles"

or the plaintiff could raise its constitutional claims in "state-court

judicial review of the administrative proceeding." Id. at 629. 

4Generally, claimants bringing suit in federal court under 42 U.S.C.

§ 1983 need not exhaust their administrative remedies. See Patsy v. Florida Bd. of Regents, 457 U.S. 596 (1982). In Ohio Civil Rights Commission, however, the Court distinguished remedial state administrative

proceedings, which it had addressed in Patsy, from those that are coercive, concluding that Younger requires federal courts to abstain in favor

of pending state administrative proceedings that are coercive in nature.

477 U.S. at 627 n.2. The administrative proceedings against Moore were

unquestionably coercive, as were those in Ohio Civil Rights Commission,

and the Patsy principle is therefore inapplicable. 

14 MOORE v. CITY OF ASHEVILLE
We find the rationale behind the Court’s holding in Ohio Civil

Rights Commission equally applicable where the administrative proceedings are no longer pending because of the plaintiff’s failure to

exhaust his administrative appellate remedies. In particular, by failing

to pursue administrative appellate remedies, the plaintiff short-circuits

both the agency’s ability to interpret its statutes in conformity with

the Constitution and the state courts’ ability to correct constitutionally

infirm agency decisions. 

At bottom, we conclude that the Younger principles were properly

applied in this case to bar federal court intervention in state administrative proceedings even when the defendant to those proceedings had

failed to exhaust available administrative appeals, thereby defaulting

on his appellate rights. Such a holding rests, we conclude, on the

rationales of Huffman and Ohio Civil Rights Commission, which

extended Younger to circumstances like those before us. 

IV

At oral argument, Moore seemed to concede the application of the

Younger principles to unexhausted but completed administrative proceedings, and he redirected his argument more forcefully to his second contention that his complaint does not look retrospectively on the

state enforcement proceedings against him and therefore does not

seek to challenge or annul them. Indeed, as he argues, his complaint

is forward-looking, filed in an effort to declare Asheville’s ordinances

unconstitutional for future application. In his brief, he maintains that

if he is not able to prosecute this action for such prospective relief,

he would "be left to either flout the Asheville noise ordinance or

forgo his constitutional right to free speech." "Abstaining in this

case," he states, "would have the absurd and unintended result of leaving Moore with no remedy for the violation of his constitutional

rights." 

Of course, if Moore is correct about his characterization of his

complaint, he is correct in arguing that the Younger doctrine should

not be applied to stay this action. See Wooley v. Maynard, 430 U.S.

705, 711 (1977) (noting that Younger does not bar a wholly prospective federal action even if the plaintiff failed to exhaust his state

appellate remedies on a prior conviction). In Wooley, the federal

MOORE v. CITY OF ASHEVILLE 15
plaintiff had been convicted of violating a state statute and had

already served his sentence when he brought suit in federal court,

seeking a declaratory judgment that the statute under which he had

been convicted was unconstitutional and an injunction enjoining the

State from prosecuting him in the future under the statute. Id. at 708-

09. Because the federal plaintiff sought prospective relief against the

threat of future prosecution and did not seek to "have his record

expunged, or to annul any collateral effects" of his conviction, the

Supreme Court held that Younger did not require the federal court to

abstain even though the plaintiff had failed to seek review of his conviction in the state appellate court. Id. at 710-11. 

While Moore’s argument rests on sound legal principles, we disagree with his characterization of his complaint as wholly prospective.

To be sure, his complaint does request a declaratory judgment and an

injunction from future prosecution, and such relief may be based on

allegations in the complaint that Moore’s street preaching is ongoing.

But the complaint also seeks to annul the effects of the prior state

administrative proceedings to the extent that Moore seeks a declaratory judgment that the City of Asheville unconstitutionally applied its

ordinances to cite him in the past and demands direct and consequential monetary damages from the City for its actions. 

Moore’s complaint lays out in some detail the City’s actions in citing him for violation of the noise ordinance, once in March and again

in April 2003. He alleges that both of the City’s enforcement actions

were illegal inasmuch as they relied on an ordinance that was unconstitutional under the First Amendment, and he asserts that these

enforcements caused him monetary damages, both direct and consequential. For example, he repeatedly alleges in his complaint that

Asheville’s noise ordinance "as applied, has caused . . . Plaintiff to

suffer actual . . . injury and damage"; that "Plaintiff has and will continue to suffer . . . monetary damages as a result of [the City’s]

actions"; that he has "in the past and will continue to suffer in the

future, direct and consequential damages." And in his prayer for

relief, he demands "such damages as are reasonable and just under

[the] circumstances as a direct and proximate result of [the City’s]

violations of Plaintiff’s constitutional rights." 

These demands for monetary damages in respect to the City’s

actions are retrospective in that they seek to compensate Moore for

16 MOORE v. CITY OF ASHEVILLE
injury that has already occurred; they look backward toward a wrong

committed in the past. Cf. Edelman v. Jordan, 415 U.S. 651, 668

(1974) (explaining that a remedy that is "measured in terms of a monetary loss resulting from a past breach of a legal duty" is retrospective

for purposes of Eleventh Amendment immunity). Obviously such an

award would annul the effects of the State’s proceedings by essentially refunding to Moore part or all of the fines he paid in connection

with his citations. Because Moore’s complaint in its present form is

not limited to seeking prospective relief, it does not fit within the

Wooley v. Maynard exception to Younger’s exhaustion requirement.

Thus, the district court correctly applied Younger in abstaining from

proceeding further under Moore’s complaint as it is drafted. 

V

In sum, Moore’s complaint challenging Asheville’s noise ordinance is broad, alleging both past conduct by the City, which he contends was illegal and damaging, and ongoing unlawful conduct. For

relief, he seeks a declaration that the City’s enforcement in the past

was illegal and continues to be illegal; that the City be enjoined; and

that the City pay him direct and consequential money damages for its

past conduct. To the extent that Moore’s complaint looks back on the

City’s past actions and demands compensation for them, it seeks to

annul what has already been determined by two police officers and

the Asheville Noise Ordinance Appeals Board. Even though no state

proceedings were pending when Moore filed his federal complaint —

because he had let the times for appeal lapse — we conclude that his

efforts in this case to cast aspersion on state processes and to annul

the results of administrative proceedings were properly barred by the

district court under Younger-Huffman. Accordingly, we affirm. 

Because no avenues are now open for Moore to exhaust state

administrative and judicial appeals with respect to his two citations,

his federal complaint must be dismissed in its present form. Accordingly, we remand to permit the district court to modify its order in this

regard. Of course, Moore is not barred from attempting to pursue

wholly prospective relief in federal court as authorized by Wooley v.

Maynard. 

AFFIRMED AND REMANDED

MOORE v. CITY OF ASHEVILLE 17