United States Court of Appeals

For the First Circuit

No. 03-1141

JORGE J. MAYMÓ-MELÉNDEZ,

Plaintiff, Appellee,

v.

JULIO ÁLVAREZ-RAMÍREZ, ET AL.,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

 Boudin, Chief Judge,

Torruella and Lynch, Circuit Judges.

Ivette M. Berríos-Hernández with whom Eduardo A. Vera-Ramírez

and Landrón & Vera, L.L.P. were on brief for appellants.

Charles A. Cuprill-Hernández with whom Charles A. Cuprill,

P.S.C. Law Offices was on brief for appellee.

April 12, 2004
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BOUDIN, Chief Judge. This appeal concerns efforts by the

Puerto Rico Horse Racing Industry and Sport Administration (the

"Administration") to suspend the horse training license of Jorge

Maymó-Meléndez ("Maymó") for improperly administering drugs to

certain race horses under his care. The district court granted a

preliminary injunction preventing Maymó's suspension and the

appellants now seek reversal of that order.

Pursuant to the Puerto Rico Horse Racing Industry and

Sport Act, 15 L.P.R.A. §§ 198-198s (2000), the Administration was

"created as a public instrumentality to regulate everything

connected with the horse racing sport in the Commonwealth of Puerto

Rico." Id. § 198a. The Administration is comprised of a Racing

Board, which is made up of three members, and a Racing

Administrator; the members of the Racing Board and the Racing

Administrator are appointed by the Governor of Puerto Rico. Id. §§

198c(a), 198j(a). 

The Racing Board is "empowered to regulate everything

connected with the Horse Racing Sport," 15 L.P.R.A. § 198e(a),

including "[t]o prescribe, by regulations, the fines,

administrative penalties and suspensions that can be imposed by the

[Racing] Board, the Horse Racing Administrator, . . . or other

authorized officials." Id. § 198e(b)(8). The Racing Administrator

is the Administration's principal executive officer, id. § 198k(a),

and has the power to "[e]nforce compliance [with] the racing laws
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and regulations and the orders and resolutions of the Horse Racing

Board," id. § 198k(a)(1), and to "[g]rant, suspend temporarily, or

permanently cancel the licenses of horse . . . trainers" after

notice and hearing. Id. § 198k(a)(2).

In 1996, the Racing Board promulgated the "controlled

medication program," a set of regulations that governs the

administration of drugs to race horses. The controlled medication

program prohibits some drugs outright; others are allowed, but only

if administered in accordance with established procedures by

authorized personnel. Two of the drugs regulated (but not

prohibited) by the medication program are Clenbuterol, given to

horses with respiratory problems, and Tramadol, which is an

analgesic.

Between June 10, 1999, and June 21, 1999, nine horses

that had been trained by Maymó underwent post-race urine tests that

came back positive for Clenbuterol–-one horse tested positive

twice, thus making a total of ten positive tests. By August 17,

1999, then Racing Administrator Juan Alves Rueda ("Alves") had

filed ten corresponding charges against Maymó, alleging that

Clenbuterol had been administered in violation of the controlled

medication program. Alves consolidated the charges (the

"Clenbuterol case"), assigned Irba Cruz de Batista ("Cruz"), an

independent contractor for the Administration, to act as hearing

examiner, and ordered Ricardo Pacheco Pacheco ("Pacheco"), an
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attorney employed by the Administration, to act as prosecutor. 15

L.P.R.A. § 198k(a)(9).

Hearings in the Clenbuterol case were held before Cruz

from August to October 2000. In the midst of these proceedings, on

September 29, 2000, a horse trained by Maymó underwent a post-race

urine test that came back positive for Tramadol. On October 16,

2000, Cruz submitted a report to Alves, concluding that, in all ten

instances, Maymó had administered the Clenbuterol in violation of

the controlled medication program. Maymó filed objections to

Cruz's report, but on November 3, 2000, Alves adopted the report,

accepting its findings of fact and conclusions of law. Alves

suspended Maymó's license to train horses for five years and

imposed a $2,750 fine.

 Maymó filed a petition for review of Alves's decision

with the Racing Board, 15 L.P.R.A. § 198m, and moved for a stay of

the license suspension and fine pending review. While Maymó's

petition and motion were pending before the Racing Board, Alves

filed a new charge against Maymó based on the positive Tramadol

test (the "Tramadol case"); Alves again assigned Cruz as hearing

examiner and Pacheco as prosecutor. The Racing Board ultimately

granted Maymó's requested stay in the Clenbuterol case, and later

Maymó's license was renewed for the following year. Id. § 198o(b).

On April 9, 2001, the Racing Board, by divided vote,

sustained Alves's decision in the Clenbuterol case, affirming the
1Álvarez also referred Maymó to the Racing Board, asking that

it declare Maymó a "racing nuisance," a statutory brand that, if

imposed, would have subjected Maymó to criminal penalties

(including up to ten years in prison) for even attempting to enter

a "racetrack or dependency thereof." 15 L.P.R.A. § 198e(b)(7).

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five-year suspension of Maymó's license and the $2,750 fine.

Pursuant to 15 L.P.R.A. § 198n(a), Maymó sought review of the

Racing Board's decision in Puerto Rico's Circuit Court of Appeals.

That court granted Maymó a stay of the penalties that had been

imposed upon him pending resolution of his appeal.

In June 2001, Julio Álvarez Ramírez ("Álvarez") succeeded

Alves as Racing Administrator. Hearings in the Tramadol case were

held before Cruz from January to May 2002. On June 10, 2002, Cruz

sent a report to Álvarez, concluding that Maymó had violated the

controlled medication program by improperly administering Tramadol

to the horse in question.

On June 21, 2002, the Puerto Rico Circuit Court of

Appeals affirmed the Racing Board's decision in the Clenbuterol

case. However, Álvarez took no immediate action to impose the

license suspension and the fine, there being some uncertainty as to

whether the court's stay continued in effect until its mandate

issued. On June 26, 2002, Álvarez adopted Cruz's findings of fact

and conclusions of law in the Tramadol case. Álvarez directed that

Maymó's license be suspended for five years to run consecutively to

the pending suspension in the Clenbuterol case and imposed a $1,000

fine.1
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On June 27, 2002, with the suspension of his license from

the Tramadol case set to begin on July 1, 2002, Maymó filed suit

under 42 U.S.C. § 1983 (2000) in federal district court in Puerto

Rico against Álvarez, Pacheco, and Cruz. The suit, directed solely

to the suspension in the Tramadol case because the Clenbuterol case

remained in limbo in the state court, alleged due process

violations: that the controlled medication program was

unconstitutionally vague and arbitrary and that the named

defendants were unfairly biased against Maymó. The suit sought

damages and to enjoin the Racing Administrator from suspending

Maymó's license.

On July 3, 2002, notwithstanding the federal lawsuit,

Maymó petitioned the Racing Board for review of Álvarez's June 26,

2002, decision, adopting Cruz's findings of fact and conclusions of

law in the Tramadol case. 15 L.P.R.A. § 198m. On the same day,

the federal district court held a hearing on Maymó's request for

interim relief relating to the Tramadol suspension. At the

hearing, Álvarez made clear that he intended to suspend Maymó's

license based on the Clenbuterol case when the state-court stay

expired. With respect to the Tramadol case, the district court

ultimately entered a temporary restraining order pending resolution

of the request for a preliminary injunction. 

On July 11, 2002, Maymó having failed to obtain an

extension of the state-court stay, Álvarez suspended Maymó's
2On August 7, 2002, the Puerto Rico Circuit Court of Appeals

denied Maymó's motion for reconsideration of its decision affirming

the Racing Board in the Clenbuterol case. Maymó sought review in

the Supreme Court of Puerto Rico. On October 25, 2002, the Supreme

Court of Puerto Rico denied Maymó's petition for further review.

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license based on the Clenbuterol decision.2 That same day, Álvarez

returned to Maymó his petition for the Racing Board to review the

Tramadol decision, saying that review was pointless in light of the

ongoing litigation in federal court. On July 14, 2002, Maymó filed

a second federal action, similar to the first (except for the

addition of Alves as a defendant), to enjoin suspension based on

either the Clenbuterol or the Tramadol case; the district court

consolidated the two federal cases and issued a second temporary

restraining order. 

From September 30, 2002, to October 4, 2002, the district

court conducted a hearing on whether to issue a preliminary

injunction barring the Racing Administrator from suspending Maymó's

license. On the first day of this hearing, the defendants filed a

motion to dismiss, arguing inter alia that the district court

should refrain from deciding the consolidated cases based on the

principles of abstention outlined in Younger v. Harris, 401 U.S. 37

(1971), and that the defendants were covered by quasi-judicial or

qualified immunity.

On November 26, 2002, the district court issued an

opinion and order holding the following: that the individual

defendants were entitled to qualified immunity and immune from
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money damages; that abstention under Younger was not appropriate;

and that Maymó was entitled to a preliminary injunction preventing

the defendants from suspending his license and collecting the fines

that had been levied against him. The defendants now appeal,

arguing that Younger abstention was required and, alternatively,

that Maymó failed to establish the prerequisites for a preliminary

injunction.

Younger is a court-made rule of abstention built around

the principle that, with limited exceptions, federal courts should

refrain from issuing injunctions that interfere with ongoing statecourt litigation, or, in some cases, with state administrative

proceedings. See generally Younger, 401 U.S. at 43-45, 53-54.

This core principle leaves open a host of peripheral questions to

which the precedents provide only half answers or decisions in

tension with one another. See Chemerinsky, Federal Jurisdiction §

13.3 (3d ed. 1999); 17A Wright, Miller & Cooper, Federal Practice

and Procedure § 4251, at 180-81, 191-93 (2d ed. 1988). This case

poses several of those problems.

Although initially applied to protect state criminal

prosecutions against interference, the Younger doctrine has been

extended to "coercive" civil cases involving the state and to

comparable state administrative proceedings that are quasi-judicial
3See Huffman v. Pursue, Ltd., 420 U.S. 592, 603-05 (1975)

(applying Younger to a civil proceeding initiated by the state to

enforce a nuisance statute); Ohio Civil Rights Comm'n v. Dayton

Christian Schs., Inc., 477 U.S. 619, 623-27 (1986) (applying

Younger to state administrative proceedings based on alleged sex

discrimination); Middlesex County Ethics Comm. v. Garden State Bar

Ass'n, 457 U.S. 423, 432, 435 (1982) (applying Younger to

administrative proceedings brought by state ethics committee to

discipline an attorney).

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in character and implicate important state interests.3 In

regulating thoroughbred racing, the Commonwealth aims to ensure the

integrity of the sport and to protect legitimate state interests.

The proceedings within the Racing Board to cancel licenses after

notice and hearing fit within the category of matters potentially

subject to Younger. See Baffert v. Cal. Horse Racing Bd., 332 F.3d

613, 616-21 (9th Cir. 2003) (applying Younger).

The district court said that Younger abstention did not

apply because neither the Clenbuterol nor the Tramadol matters were

"ongoing" at the time the principal injunction was granted on

November 26, 2002. By that time the state-court proceedings

affirming the sanction in the Clenbuterol case were effectively

completed with the affirmance of the Racing Board's action; and in

the Tramadol case, the Racing Administrator had imposed penalties

and had returned Maymó's review petition so no proceedings were

pending before the Racing Board.

Although the Clenbuterol case had been decided by the

state appeals court when Maymó filed his second federal complaint--

the time at which the Younger test is applied, Bettencourt v. Bd.
4Because a dismissal on Younger grounds is without prejudice,

see Caldwell v. Camp, 594 F.2d 705, 708 (8th Cir. 1979), Maymó

would presumably be free in this case to re-file the complaint

immediately (state court review having now undoubtedly concluded).

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of Registration in Med., 904 F.2d 772, 777 (1st Cir. 1990)--the

state case was still technically ongoing because Maymó had filed a

petition for reconsideration. Yet it would be a waste of time to

reverse based on this technicality,4 and, as it turns out, the

injunction against the Clenbuterol order is barred on other grounds

to which we will shortly turn.

Although Younger is ordinarily described as applying

where the state case or proceeding is "ongoing," a moment's

reflection suggests that this cannot be the whole story. There is

some sense to a mechanical rule that Younger does not apply where

the state litigation has not yet begun; after all, the underlying

concern is that state proceedings, once begun, should be respected

by federal courts so long as the federal claims or defenses can be

litigated in the course of the proceedings. See Younger, 401 U.S.

at 44-45, 53-54; cf. Brooks v. N.H. Supreme Court, 80 F.3d 633, 638

(1st Cir. 1996). 

However, it makes little sense to ignore Younger's policy

simply because the state process has come to an end. After all,

how does it "respect" state proceedings to wait until they are

concluded and then ignore or overturn them? And yet the case law

is something of a vacuum on this question, partly because of the

variousness of the situations but mostly because other rubrics
5Res judicata is familiar common law doctrine, see Restatement

(Second) of Judgments §§ 17-20, 24, 27 (1982); the federal statute

is 28 U.S.C. § 1738 (2000); and Rooker-Feldman refers to Rooker v.

Fidelity Trust Co., 263 U.S. 413 (1923), and D.C. Court of Appeals

v. Feldman, 460 U.S. 462 (1983). It is no accident that the

doctrines are discussed together in 18B Wright, Miller & Cooper,

supra, §§ 4469-4469.1.

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usually foreclose the collateral attack after the state proceedings

have ended, making unnecessary any discussion of Younger.

Three such rubrics have special force where, as with the

Clenbuterol proceedings, state-court judicial review of an

administrative ruling has been undertaken and completed: res

judicata, the federal full faith and credit statute, and the

Rooker-Feldman doctrine.5 Although nominally independent

doctrines, they are variations on the same theme: the first

embodies a bedrock respect for prior judgments, subject to

exceptions; the second, a statutory compulsion for the first where

federal courts confront state judgments; and the third, a broader

and blunter version of the other two.

Often the first resort of federal judges is to the

Rooker-Feldman doctrine--and peculiarly so in case of disbarment,

revocations of licenses, and the like. See 18B Wright, Miller &

Cooper, supra, § 4469.1, at 120. Merger and bar doctrine is often

hard to adapt to claims not cast in the traditional common law

mode; and collateral estoppel requires the precise identification

of issues actually litigated and decided in the first case and

sought to be re-litigated in the second. Restatement (Second) of
6The catalogue of federal cases doing so, and the scholarly

disapproval, are both reflected in 18B Wright, Miller & Cooper,

supra, § 4469.1. For a thick law review volume devoted to (thus

far ineffectual) scholarly criticism of Rooker-Feldman, see

Symposium: The Rooker-Feldman Doctrine, 74 Notre Dame L. Rev. 1081,

1081 (1999).

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Judgments § 27 & cmt. c-o (1982). So, despite the disapproval of

scholars, federal courts regularly use Rooker-Feldman to rebuff

collateral attacks on prior state court judgments without

purporting to apply the technical preclusion rules of res

judicata.6

One obvious reason is that when a state judicial

proceeding does occur, federal judges usually say that the parties

ought to raise all of their claims, defenses and objections. If

the parties do, and are permitted to litigate the issues, the

judges think that should ordinarily settle the matter, subject to

certiorari review in the Supreme Court; and if they don't, they

should not later come and complain to the federal courts. There

are pluses and minuses to this approach but, with some exceptions,

it has carried the day so far, and it does so here as to the

Clenbuterol case.

In that case, the Racing Administrator and the Racing

Board may have been biased, unfair, or flat out wrong; but the

state provided a judicial remedy, Maymó invoked it, and he lost.

Maymó conceded at oral argument that he had argued to the state

court in the Clenbuterol case both that the medication program was

constitutionally flawed and that bias infected the administrative
7The Rooker-Feldman doctrine was not raised as an objection on

this appeal, but it is jurisdictional, Mandel, 326 F.3d at 271, and

cannot be ignored. Friedman's, Inc. v. Dunlap, 290 F.3d 191, 195-

96 (4th Cir. 2002).

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proceeding. Although he disputes that he had a full and fair

opportunity to litigate these issues, we address this claim below

and find that it is unpersuasive.

To enjoin enforcement of the Racing Board's sanction,

after its affirmance by the state court, amounts to a collateral

attack on a state court judgment. See, e.g., Wang v. N.H. Bd. of

Registration in Med., 55 F.3d 698, 703 (1st Cir. 1995). RookerFeldman does not depend on what issues were actually litigated in

the state court; and it is enough that granting Maymó the

injunction he seeks would effectively overturn the state court's

decision. The case law to this effect is extensive. E.g., Mandel

v. Town of Orleans, 326 F.3d 267, 271 (1st Cir. 2003); Hill v. Town

of Conway, 193 F.3d 33, 39-40 (1st Cir. 1999).7

There are exceptions to Rooker-Feldman, see 18B Wright,

Miller & Cooper, supra, § 4469.1, at 127-37, and the one that comes

closest derives from cases saying that a general attack on a state

law or regulation is not precluded by a prior judgment applying

such a law or rule to the federal plaintiff. Id. at 123; Wilson v.

Shumway, 264 F.3d 120, 124 (1st Cir. 2001). The exception does not

apply, however, if the relief sought in federal court is directed

towards undoing the prior state judgment. See Kenmen Eng'g v. City

of Union, 314 F.3d 468, 476 (10th Cir. 2002) ("In conducting
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[Rooker-Feldman] analysis, we must pay close attention to the

relief sought by the federal-court plaintiff." (emphasis in

original)).

Here, one facet of Maymó's due process claim was a

general attack on the Racing Board's drug regulations; he argued

that they were unconstitutionally vague and contradictory and the

district court agreed. But, so far as advanced as a reason to

grant an injunction overturning his license suspension, Maymó's

challenge is an attack on the Puerto Rico Circuit Court of

Appeals's decision affirming the suspension and is therefore barred

by Rooker-Feldman. See Wilson, 264 F.3d at 125; Hill, 193 F.3d at

39-40. Had he been suspended for a week and then sought to enjoin

future enforcement of the regulations, that would be a different

question. See Hood v. Keller, 341 F.3d 593, 597-99 (6th Cir.

2003).

Maymó's assault on the Tramadol suspension presents a

different problem. As to it, there was no state-court proceeding;

indeed, Maymó was only to the stage of appealing the Racing

Administrator's decision to the Racing Board when he brought his

initial federal action to enjoin the suspension. Rooker-Feldman is

based on the Supreme Court's reading of a statute governing review

of state-court judgments, Feldman, 460 U.S. at 476 (relying on 28

U.S.C. § 1257 (2000)); Rooker-Feldman does not insulate from

federal challenge administrative rulings standing alone. Van
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Harken v. City of Chicago, 103 F.3d 1346, 1349 (7th Cir. 1997); 18B

Wright, Miller & Cooper, supra, § 4469.1, at 143-44. 

However, Younger (as already noted) does apply to

administrative proceedings like this one. Thus, we confront the

district court's conclusion that Younger did not apply in this case

because the administrative proceedings in the Tramadol case were

not ongoing when the first federal action to enjoin the

Administrator's order was filed. True, thereafter Maymó sought

review by the Racing Board but, as the review petition was then

returned (because of the pending federal action), we will accept

arguendo the district court's premise that the federal action came

after the conclusion of any pending administrative proceedings.

The question, then, is whether Maymó can avoid Younger

abstention by failing to pursue his administrative remedy within

the Racing Board. This question, although not identical, is

related to the larger question whether, even if Maymó had completed

review by the Racing Board, he could have refused to seek judicial

review in the state court and instead brought his federal claims to

federal court in an injunction action. Needless to say, this

issue--essentially an exhaustion of remedies question--is a matter

of general importance that could affect an array of state

proceedings.

To us, the answer is dictated by Huffman v. Pursue, Ltd.,

420 U.S. 592 (1975), and its progeny. In Huffman, the Supreme
8It purported to reserve this issue, citing two ancient

Supreme Court cases that allowed federal equity suits to challenge

state administrative action. Huffman, 420 U.S. at 609 n.21. 

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Court said that once a state judicial proceeding had begun, the

exhaustion of state judicial remedies was required by Younger;

despite the formal break between trial and appellate review, the

Court deemed the proceeding "ongoing" for Younger purposes until

the state appellate process was complete. Id. at 607-11. This was

so even though the state court decision would then likely be

preclusive of any new federal lawsuit. 

At the time Huffman was decided, Younger had not formally

been extended to state administrative proceedings; and the Court

reserved the exhaustion question as to them.8 But the Supreme

Court thereafter extended Younger to such proceedings in Middlesex

County Ethics Committee v. Garden State Bar Association, 457 U.S.

423 (1982), and Ohio Civil Rights Commission v. Dayton Christian

Schools, Inc., 477 U.S. 619 (1986), its premise being that the

administrative proceedings were subject to Younger because they

were "judicial" in character. 457 U.S. at 432-34; 477 U.S. at 627-

28. In Dayton, the Court further stressed that if the

constitutional mistakes were not remedied at the administrative

level, state courts would be available to set the matter right.

477 U.S. at 629. 

Given such rhetoric and the policy judgments underlying

the recent decisions, Younger now has to be read as treating the
9Compare Thomas v. Tex. State Bd. of Med. Exam'rs, 807 F.2d

453, 455-57 (5th Cir. 1987) (holding that exhaustion of

opportunities to appeal in state court from adverse administrative

decision is not required by Younger), with Majors v. Engelbrecht,

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state process--where the administrative proceeding is judicial in

character--as a continuum from start to finish. There are

exceptions to Younger (to which we will return) but, absent an

applicable exception, there cannot at any point on the continuum be

an automatic right to detour into federal court because unhappy

with an initial answer.

The principal author of these "Younger-extended" opinions

has been Chief Justice Rehnquist. When, following Dayton, he

summed up in a concurrence in New Orleans Public Service, Inc.

(NOPSI) v. Council of New Orleans, 491 U.S. 350 (1989), he

specifically described the Younger rule as one that treats a matter

as "ongoing" from the administrative proceeding into the state

judicial proceeding:

Nothing in the Court's opinion curtails our

prior application of Younger to certain

administrative proceedings which are 'judicial

in nature[';] nor does it alter our prior case

law indicating that such proceedings should be

regarded as 'ongoing' for the purposes of

Younger abstention until state appellate

review is completed. (citations omitted)

(emphasis in original).

This conclusion does little more than spell out what is

inherent in Huffman, Middlesex, and Dayton, taken together; and it

is certainly the view taken by three out of four circuits that have

addressed the exhaustion question.9 The majority view--
149 F.3d 709, 712-13 & n. 3 (7th Cir. 1998) (holding the opposite),

O'Neill v. City of Philadelphia, 32 F.3d 785, 790-91 & n.13 (3d

Cir. 1994) (same), and Alleghany Corp. v. McCartney, 896 F.2d 1138,

1143-45 (8th Cir. 1990) (same). 

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reflected in O'Neill v. City of Philadelphia, 32 F.3d 785 (3d Cir.

1994)--is persuasive to us: 

We have been given no reason why a

litigant in a state administrative proceeding

should be permitted to forego state-court

review of the agency's decision in order to

apply for relief in federal court. Rather, we

find the grounds offered by the Supreme Court

to support its holding in Huffman--that state

appellate review of a state court judgment

must be exhausted before federal court

intervention is permitted--are equally

persuasive when considered with respect to

state-court judicial review of a state

administrative decision.

Id. at 790-91. The opinion continues by quoting portions of

Huffman and other decisions that reinforce this view. Id. at 791.

Huffman is a reliable guide only where full-fledged state

administrative proceedings of a judicial character and, arguably,

of a coercive nature, are directed against the federal plaintiff.

See Alleghany Corp. v. Haase, 896 F.2d 1046, 1050-53 (7th Cir.

1990). If Maymó had been summarily suspended by the Racing

Administrator and no administrative proceeding had been begun, he

could have gone directly to federal court to challenge his

dismissal. See Patsy v. Bd. of Regents, 457 U.S. 496, 498, 516

(1982); Barry v. Barchi, 443 U.S. 55, 59-61, 63 n.10 (1979); see

also Dayton Christian Schs., Inc., 477 U.S. at 627 n.2.

Admittedly, a line between summary action and full-fledged
10Judge (now Justice) Breyer dissented, arguing that the

termination was not truly complete until after the formal review

process--he deemed the termination order merely the beginning of an

integrated proceeding--and he thought that in any event Huffman

still applied. Id. at 267-68 (Breyer, J., dissenting).

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administrative proceedings that are judicial in nature is bound to

be fuzzy.

In Kercado-Melendez v. Aponte-Roque, 829 F.2d 255 (1st

Cir. 1987), a school superintendent (Kercado) in Puerto Rico was

terminated after an informal hearing at which she was given a

chance to respond to allegations of "incompetence, negligence,

insubordination, and improper conduct." Id. at 257-58. The

termination order specified that it would take effect ten days

after receipt, unless Kercado chose to file an administrative

appeal to the Board of Appeals of the Public Education System. Id.

Instead, Kercado filed a federal suit, alleging retaliation for

activities protected by the First Amendment. Id.

The panel majority held that Younger did not apply

because Puerto Rico did not require any kind of formal procedure

prior to the issuing of a termination order and because all postorder proceedings were within the discretion of the aggrieved party

and were not necessary to the order's taking effect. KercadoMelendez, 829 F.2d at 260-62.10 Kercado-Melendez does Maymó no

good, however, because he was suspended only after full-fledged

administrative proceedings. There is a spectrum stretching from
11At oral argument, Maymó said (without citation) that the

state court had no power to remand to the Racing Board to develop

more evidence. But it would take more than general assertion to

persuade us that a competent state court with authority to review

a disciplinary order lacked other remedies (e.g., setting aside the

order) where a material issue had been wrongly foreclosed.

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Huffman to Patsy and Kercado-Melendez may be in the middle; but

Maymó's situation is clearly at the Huffman end.

Younger, even where it presumptively applies, is not

implicated where the federal claims cannot be raised and resolved

somewhere in the state process. Middlesex County Ethics Comm., 457

U.S. at 432. How far the Racing Board would entertain

constitutional objections to its regulations or practices is

unclear, but the state court clearly would do so and this is

enough. As noted above, in Dayton the Supreme Court said "it is

sufficient . . . that constitutional claims may be raised in statecourt judicial review of the administrative proceeding." 477 U.S.

at 629. 

Maymó says that one claim in particular--that Alves

harbored bias against him--could not be developed because, in the

administrative proceeding involving Clenbuterol, he was not allowed

to subpoena Alves to develop that claim and so was limited by a

truncated record on appeal. Denial of an opportunity to develop a

material issue is a standard basis for overturning an adverse

administrative decision, Fla. Power & Light Co. v. Lorion, 470 U.S.

729, 744 (1985), and Maymó has not persuasively explained why this

remedy was inadequate in this case.11
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Taking a related but somewhat different tack, Maymó

argues that an exception to Younger permitted him to go to federal

court directly to forestall an administrative action against him

conducted by a biased tribunal. In substance, Maymó says that

Alves, Cruz, Pacheco, and Álvarez were prejudiced against him and,

in addition, that he was singled out for discipline while other

trainers similarly situated were not pursued. These facts, he

says, he was entitled to develop in an independent action in

federal court. His main reliance is upon Gibson v. Berryhill, 411

U.S. 564 (1973).

In Gibson, a group of optometrists sued in federal court

to enjoin disciplinary proceedings against them by a state board,

411 U.S. at 568-70; and the Supreme Court said that Younger did not

bar a due process claim that the administrative tribunal was

"incompetent by reason of bias [an alleged financial stake in the

outcome] to adjudicate the issues pending before it." Id. at 577-

79. The Court also said: "[n]or, in these circumstances, would a

different result be required simply because judicial review, de

novo or otherwise, would be forthcoming at the conclusion of the

administrative proceeding." Id. at 577.

Gibson was decided only two years after Younger began the

process of contracting federal-court remedies, but it has never

been formally overruled. Further, in Huffman itself, the Supreme

Court said that "of course" exceptions to Younger's bar remained,
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mentioning not bias but state proceedings brought "to harass," or

"in bad faith," or to enforce a flagrantly unconstitutional

statute. 420 U.S. at 611-12. The opinion added, however, that

irreparable injury would still be required for an injunction based

on such an exception. Id. at 612.

The scope and conditions of the various Younger

exceptions remain uncertain. Underneath the surface is an unspoken

policy debate as to how much should be done by federal courts and

how far state courts are to be trusted; the Chief Justice's

majority opinion in Huffman plays out this debate in a counterpoint

with the dissent, joined by three Warren Court veterans. Compare

420 U.S. at 608-11 (Rehnquist, J.), with id. at 616-18 (Brennan,

J., dissenting). About all that is certain is that there is some

reason for interim federal court intervention where core

constitutional values are threatened during an ongoing state

proceeding and there is a showing of irreparable harm that is both

"great and immediate." See Younger, 401 U.S. at 46. 

In all events, this case--given its present posture--

cannot fall within any rational Younger exception. Because the

first five year suspension (based on the Clenbuterol order) has now

been immunized from district-court review on grounds independent of

Younger, only the second (Tramadol) suspension remains; and it has

no bite for five years. This makes it impossible to show an
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immediate threat to Maymó's constitutional rights that would

justify an injunction by-passing existing state remedies.

So far as the Younger exceptions are concerned with the

impact of the state proceeding independent of any final remedy

(e.g., to harass), the suspension order has already been entered;

so far as the concern is with implementing an order before state

review is completed (e.g., the initial injunction against the

theater in Huffman), Maymó now has five years to complete his

administrative and judicial review options. Nor is there any

"flagrantly" unconstitutional statute or regulation. Compare

Huffman, 420 U.S. at 611-13.

This case is not one in which a denial of relief is a

comfortable outcome. Maymó offered more than trivial evidence that

the medical regime used by the Racing Board is incomplete and was

unfairly implemented; the district court thought that the evidence

(on a preliminary look) was persuasive. The district court also

saw force in Maymó's claims of bias or selective enforcement,

although to us this is less clear-cut. Maymó's suit is by no means

"totally unfounded, frivolous, or otherwise unreasonable"--the test

for awarding fees against the plaintiff who fails in a section 1983

action. Casa Marie Hogar Geriatrico, Inc. v. Rivera-Santos, 38

F.3d 615, 618 (1st Cir. 1994).

Yet so long as the Administrator is prepared to reinstate

Maymó's temporarily dismissed Tramadol appeal, it is not apparent
12Maymó did not fail to seek administrative review; he did file

a request, which the Administrator returned because of the pending

federal court action. If the Administrator now failed to reinstate

the review proceeding, there would be a serious question whether

state procedures were adequate to protect Maymó's constitutional

rights.

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why Younger's policy bar should be ignored and state processes bypassed.12 Conceivably, the district court's findings, which have

at least persuasive force, may give Maymó some basis for asking the

Racing Board or the state courts in the Clenbuterol case to re-open

that matter as well--steps that might vindicate the faith Huffman

and Dayton now place in state proceedings.

The district court's injunctive orders are vacated and

the matter remanded to the district court for proceedings

consistent with this opinion. Each side will bear its own costs on

this appeal.

It is so ordered.