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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 20, 2004 Decided August 17, 2004

No. 03-7057

JMM CORPORATION,

APPELLANT

v.

DISTRICT OF COLUMBIA AND

D.C. DEPARTMENT OF CONSUMER AND REGULATORY AFFAIRS,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 02cv00406)

Jonathan L. Katz argued the cause and filed the briefs for

appellant.

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.
2

Mary T. Connelly, Assistant Corporation Counsel, argued

the cause for appellees. With her on the brief was Edward

E. Schwab, Assistant Corporation Counsel.

Before: HENDERSON, RANDOLPH, and GARLAND, Circuit

Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge: JMM Corporation, the operator of

an adult video store in the District of Columbia, sued the

District in federal district court, alleging that its zoning

regulations for such establishments were unconstitutional. In

light of ongoing District of Columbia administrative and

judicial enforcement proceedings against JMM, the district

court dismissed the complaint under the abstention doctrine

of Younger v. Harris, 401 U.S. 37 (1971). There is no doubt

that the dismissal was appropriate if the District of Columbia

is entitled to the benefit of that doctrine. We are therefore

required to decide whether Younger is applicable to the

District, a question this circuit has heretofore avoided.

JMM contends that, because the District of Columbia is not

a state, its enforcement actions do ‘‘not merit the same

protections’’ as would a state’s. Reply Br. at 2. Younger will

apply, the appellant insists, only ‘‘[i]f and when the District of

Columbia attains statehood.’’ Id. at 3. But the District does

not have to wait until that day. We hold that the enforcement actions of the District of Columbia are entitled to the

same respect that the federal courts accord those of the

states, and therefore affirm the dismissal of JMM’s complaint.

I

JMM, doing business as ‘‘Fun Fair Video,’’ sells sexually

explicit videos and provides booths for their viewing. Fun

Fair is located in a ‘‘Community Business Center District’’ in

the District of Columbia, an area that is not designated for

‘‘sexually-oriented business establishments’’ (SOBEs) under

the District’s zoning regulations.1

 Nor does Fun Fair have

the required certificate of occupancy to operate as a SOBE.

1 See generally D.C. MUN. REGS. tit. 11, §§ 199.1, 720, 744.1,

754.1, 1700.1, 1706.4, 3203, 3205; id. tit. 12, § 118.4.
3

In 2000, the D.C. Department of Consumer and Regulatory

Affairs (DCRA) commenced the first of what became three

sets of administrative enforcement actions against JMM.

First, in April 2000, the DCRA issued JMM a notice of

infraction for operating without a proper certificate of occupancy. In June 2000, the matter was heard by an Administrative Law Judge (ALJ) of the DCRA’s Office of Adjudication. On June 20, the ALJ found that, while JMM had

obtained a certificate of occupancy for a ‘‘video store not

sexually oriented’’ (a ‘‘non-SOBE’’), it was in fact operating a

SOBE in a zone that was not designated for such use. The

ALJ ordered JMM to cease doing business until it obtained a

proper certificate. Although JMM had the right to appeal

the ALJ’s order to the D.C. Board of Appeals and Review, see

D.C. MUN. REGS. tit. 1, § 503, and from there to the District of

Columbia Court of Appeals, see D.C. CODE ANN. § 2–510, it

did not do so.

Nor did JMM cease doing business. Indeed, JMM continued to operate as a SOBE throughout the course of the

district court litigation, and is still doing so. It has not

relocated, applied for a SOBE license, or ceased its business

activities.

In September 2001, the DCRA issued a second set of

notices of infraction to JMM, again for operating without a

proper certificate. These, too, were heard before an ALJ.

On March 5, 2002, the ALJ again found the charges proven,

imposed fines, and ordered JMM to cease operations until it

obtained a proper certificate. This time, JMM did appeal to

the D.C. Board of Appeals and Review, where the matter is

currently pending.

Meanwhile, on February 27, 2002, the DCRA instituted its

third enforcement action, issuing notices of intent to revoke

JMM’s non-SOBE certificate of occupancy as well as its

mechanical amusement license. In October 2002, an ALJ

found in favor of the DCRA. JMM again appealed to the

Board of Appeals and Review, where that appeal also remains

pending.
4

On March 5, 2002—the day of the ALJ hearing on the 2001

infractions and a week after the DCRA issued its 2002

notices of revocation—JMM filed the instant action against

the District of Columbia and the DCRA in the United States

District Court for the District of Columbia. JMM’s complaint, brought pursuant to 42 U.S.C. § 1983, alleged that the

District’s SOBE regulations violate the First, Fifth, and

Fourteenth Amendments because, inter alia, they are unconstitutional content-based restrictions, and are vague and

overbroad. JMM sought money damages, an order declaring

the regulations unconstitutional, and an injunction against

their enforcement. JMM also sought a preliminary injunction barring all pending enforcement actions.

On May 15, 2002, the district court denied the preliminary

injunction, on the basis of the abstention doctrine of Younger

v. Harris, 401 U.S. 37 (1971), and the absence of a risk of

imminent irreparable injury. Mem. Op. & Order at 3 (D.D.C.

May 15, 2002). Two months later, on July 12, 2002, the

DCRA sued JMM in the Superior Court of the District of

Columbia to enforce the uncontested June 20, 2000 ALJ

decision that had ordered JMM to cease doing business. On

March 31, 2003, the district court dismissed all of JMM’s

claims for injunctive and declaratory relief based on Younger

abstention. At the same time, the district court stayed

JMM’s claims for money damages, pending JMM’s appeals of

the DCRA administrative enforcement orders and the District’s civil enforcement action in D.C. Superior Court. The

parties do not dispute that the stay was appropriate if the

Younger doctrine was properly applied. See Deakins v.

Monaghan, 484 U.S. 193, 202 (1988). JMM now appeals the

dismissal of its claims for injunctive and declaratory relief.2

II

In Younger v. Harris and its progeny, the Supreme Court

held that, except in extraordinary circumstances, a federal

court should not enjoin a pending state proceeding (including

2 We have jurisdiction to hear that appeal under the collateral

order doctrine. See Quackenbush v. Allstate Ins. Co., 517 U.S. 706,

712–15 (1996).
5

an administrative proceeding) that is judicial in nature and

involves important state interests. Ohio Civil Rights

Comm’n v. Dayton Christian Sch., Inc., 477 U.S. 619, 626–27

(1986); Middlesex County Ethics Comm. v. Garden State Bar

Ass’n, 457 U.S. 423, 431 (1982); Younger, 401 U.S. at 41.3

‘‘This Court has never decided,’’ however, ‘‘whether the District of Columbia is a state for Younger abstention purposes.’’

Bridges v. Kelly, 84 F.3d 470, 476 n.8 (D.C. Cir. 1996).

‘‘ ‘Instead, every time the question has arisen, we have assumed that the doctrine applies to the District and nonetheless determined, in light of the facts of each particular case,

that Younger abstention has not been appropriate.’ ’’ Id.

(quoting LaShawn A. v. Kelly, 990 F.2d 1319, 1322 (D.C. Cir.

1993)).4

 In this case, however, we cannot simply assume the

applicability of Younger abstention, because if applicable it

would be appropriate here. See infra Part III. Accordingly,

we must decide the question that this circuit has long avoided.

The Younger Court rested its abstention doctrine both on

‘‘equitable principles’’ and on ‘‘concerns for comity and federalism.’’ Ohio Civil Rights Comm’n, 477 U.S. at 626–27; see

New Orleans Public Serv., Inc. v. Council of New Orleans,

491 U.S. 350, 364 (1989); Huffman v. Pursue, 420 U.S. 592,

604 (1975); Younger, 401 U.S. at 43–44. We consider below

the applicability of each of these considerations to proceedings brought by the District of Columbia.

A

The first source of the policy against federal interference

with state court proceedings identified by Younger was ‘‘the

3 The Court extended Younger to declaratory as well as injunctive relief in Samuels v. Mackell, 401 U.S. 66, 73 (1971).

4 See, e.g., District Properties Assocs. v. District of Columbia,

743 F.2d 21, 28 n.4 (D.C. Cir. 1984); Silverman v. Barry, 727 F.2d

1121, 1123 n.4 (D.C. Cir. 1984); Family Div. Trial Lawyers v.

Moultrie, 725 F.2d 695, 701 n.7 (D.C. Cir. 1984); Sullivan v.

Murphy, 478 F.2d 938, 962 n.35 (D.C. Cir. 1973); see also Handy v.

Shaw, Bransford, Veilleux & Roth, 325 F.3d 346, 352 n.7 (D.C. Cir.

2003).
6

basic doctrine of equity jurisprudence that courts of equity

should not act TTT when the moving party has an adequate

remedy at law and will not suffer irreparable injury if denied

equitable relief.’’ Younger, 401 U.S. at 43–44, 46. In Trainor v. Hernandez, the Court explained that these ‘‘two classic

preconditions for the exercise of equity jurisdiction’’—no adequate remedy at law and irreparable injury—‘‘assumed new

dimensions’’ in Younger. 431 U.S. 434, 441 (1977). The

adequate remedy at law ‘‘inquiry was to be broadened to

focus on the remedies available in the pending state proceeding’’ as compared to the federal action. Id. And the ‘‘other

precondition for equitable relief—irreparable injury—would

not be satisfied unless the threatened injury was both great

and immediate.’’ Id. at 442; see Younger, 401 U.S. at 48–49.

These two principles apply in full measure to District of

Columbia enforcement proceedings. First, the defendant in

District proceedings has an adequate remedy for its asserted

constitutional violations because it has ‘‘an opportunity to

raise [its] constitutional claims’’ as defenses, Younger, 401

U.S. at 49. Where the proceedings begin in Superior Court,

the defendant can raise any constitutional claims in that

court,5

 appeal an adverse decision to the District of Columbia

Court of Appeals,6

 and if still dissatisfied seek review in the

United States Supreme Court.7

 Where the proceedings begin at the administrative level, the defendant can appeal to

and make its constitutional challenges in the D.C. Court of

Appeals,8

 and again seek further review in the Supreme

5 See D.C. CODE ANN. §§ 11–921, –923.

6 See D.C. CODE ANN. § 11–721.

7 See 28 U.S.C. § 1257(a), (b).

8 See D.C. CODE ANN. § 2–510(a) (providing that any person

adversely affected or aggrieved by an agency decision ‘‘is entitled to

a judicial review thereof’’ in the D.C. Court of Appeals); id. § 2–

510(a)(1) (providing that the D.C. Court of Appeals’ authority to

review administrative agency proceedings includes the power ‘‘to

decide all relevant questions of law, to interpret constitutional and

statutory provisions, and to determine the meaning or applicability

of the terms of any action’’); see also id. § 11–722.
7

Court.9

 Whether or not the defendant can also raise its

constitutional defenses at the administrative level, ‘‘it is sufficient under [Younger] that constitutional claims may be

raised in state-court judicial review of the administrative

proceeding.’’ Ohio Civil Rights Comm’n, 477 U.S. at 629.10

Second, the defendant in a District proceeding will not

suffer irreparable injury by being foreclosed from obtaining

an injunction in federal court. As Trainor explained, the

burden of defending an enforcement action is ‘‘not sufficient

to warrant interference by the federal courts with legitimate

state efforts to enforce state laws; only extraordinary circumstances would suffice.’’ 431 U.S. at 442.11 Such extraordinary circumstances include situations in which ‘‘there is a

showing of ‘bad faith’ or ‘harassment’ by state officials responsible for the prosecution,’’ or ‘‘where the state law to be

applied TTT is ‘flagrantly and patently violative of express

constitutional prohibitions.’ ’’ Id. at 443 n.7 (quoting Younger, 401 U.S. at 53–54). There is no reason why these factors

cannot be applied to District proceedings as readily as to

state proceedings, with injunctions being permitted only

where the appropriate showings are made. Accordingly,

there is nothing about the equity source of the Younger

9 See 28 U.S.C. § 1257.

10 As noted in Part III, it is well settled that Younger applies

‘‘to state administrative proceedings in which important state interests are vindicated, so long as in the course of those proceedings the

federal plaintiff would have a full and fair opportunity to litigate his

constitutional claim,’’ Ohio Civil Rights Comm’n, 477 U.S. at 627,

and the proceedings are ‘‘judicial in nature,’’ Middlesex, 457 U.S. at

433–34. Because these prerequisites demand a case-by-case determination of the appropriateness of applying Younger to a specific

District administrative proceeding, our holding is, of course, limited

to the specific proceedings before us—as to which the prerequisites

are satisfied.

11 Younger held this to be true even where a defendant levels a

facial First Amendment challenge against a regulation and contends

that its existence has a chilling effect on his free speech. See

Younger, 401 U.S. at 54; infra note 24.
8

doctrine that precludes its application to the District of

Columbia.

B

The second source of the Younger abstention doctrine—

identified as the ‘‘ ‘more vital consideration’ ’’—was ‘‘concerns

for comity and federalism.’’ Ohio Civil Rights Comm’n, 477

U.S. at 626–27 (quoting Younger, 401 U.S. at 44); see Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 723 (1996); New

Orleans, 491 U.S. at 364. Younger’s federalism concern does

not apply per se to the District of Columbia, because ‘‘[t]he

federal seat of government is constitutionally different from

the states,’’ Madley v. United States Parole Comm’n, 278

F.3d 1306, 1308 (D.C. Cir. 2002), and ‘‘the Superior Court is a

congressionally created court and, thus, ‘federal’ in its creation.’’ Handy v. Shaw, Bransford, Veilleux & Roth, 325

F.3d 346, 351 (D.C. Cir. 2003). But Younger’s larger concern

for comity—proper respect for a coordinate legal system—

plainly does apply.

As the Court explained in Huffman, Younger’s comity/federalism component requires courts to ‘‘abide by standards of

restraint that go well beyond those of private equity jurisprudence.’’ 420 U.S. at 603. Comity includes the concern that

‘‘interference with a state judicial proceeding prevents the

state TTT from effectuating its substantive policies,’’ id. at 604,

and ‘‘disrupt[s] the State’s efforts to protect interests which it

deems important,’’ id. at 608. ‘‘Such interference,’’ the Court

said, ‘‘also results in duplicative legal proceedings, and can

readily be interpreted as ‘reflecting negatively upon the state

courts’ ability to enforce constitutional principles.’ ’’ Id. at

604 (quoting Steffel v. Thompson, 415 U.S. 452, 462 (1974)).

As we said in Family Division Trial Lawyers v. Moultrie,

‘‘[t]he only justification for federal court interference during a

state proceeding would be a premise that the state courts

cannot be trusted to adequately protect federal constitutional

rights, a premise unequivocally rejected by the Younger

court.’’ 725 F.2d 695, 701 (D.C. Cir. 1984).
9

All of these comity concerns apply with equal force to the

District of Columbia. See generally id. Federal court interference with District enforcement proceedings may prevent

the District from effectuating its substantive policies and

disrupt its efforts to protect interests it regards as important.

It will certainly result in duplicative legal proceedings and

may be interpreted to reflect negatively on the District’s

ability to enforce constitutional principles. But just as with a

state, there is no reason to presume that the courts of the

District cannot be trusted to adequately protect federal constitutional rights. To the contrary, ‘‘Congress has created a

trial and appellate court system of general jurisdiction for the

District separate from the United States courts (of which we

are a part) and intended to serve the District in much the

same manner as the court systems of the various states.’’

Madley, 278 F.3d at 1308.

In 1970, Congress reorganized the courts of the District of

Columbia pursuant to its authority under Article I, § 8, cl. 17

of the Constitution. See Palmore v. United States, 411 U.S.

389, 390–92 (1973); D.C. CODE ANN. § 11–101(2). Prior to

passage of the District of Columbia Court Reorganization Act

of 1970 (DCCRA),12 the local court system had limited jurisdiction, and the United States District Court for the District

of Columbia ‘‘had concurrent jurisdiction with the Court of

General Sessions [one of three local trial courts] over most of

the criminal and civil matters handled by that court.’’ 411

U.S. at 392 n.2 (citing D.C. CODE ANN. §§ 11–521 through 523

(1967)). The DCCRA transferred ‘‘all ‘local’ jurisdiction TTT

from the Federal courts to a new Superior Court of the

District of Columbia and the District of Columbia Court of

Appeals.’’ H.R. REP. NO. 91–907, at 23 (1970).13 A substantial

impetus for ‘‘the total transfer of local jurisdiction’’ out of the

federal courts into the reorganized local court system was the

‘‘overall problem of concurrent jurisdiction,’’ which had produced a ‘‘ping-pong’’ between the federal and local courts,

12 Pub. L. No. 91–358, tit. I, § 111, 84 Stat. 473, 475–521 (1970).

13 See D.C. CODE ANN. §§ 11–101, –721, –901, –921, –923.
10

particularly with respect to the ‘‘disposition of criminal matters.’’ Id. at 33.

Congress’ intent was to give the District ‘‘a court system

comparable to those of the states,’’ H.R. REP. NO. 91–907, at

23, one ‘‘separate and apart from the United States District

Court and the United States Court of Appeals for the District

of Columbia Circuit,’’ id. at 5. In ‘‘constituting the lower trial

court as a purely local court, similar to a state court, it

follow[ed] that appeals from the local court should be treated

like those in the state systems, and that the channel of

appeals should be directly to the United States Supreme

Court.’’ Id. at 34–35. Thus, the reorganization made ‘‘the

District of Columbia Court of Appeals the highest local

court,’’ id. at 35, ‘‘similar to a state Supreme Court,’’ id. at 5,

and made its decisions reviewable by the United States

Supreme Court, id. at 35.14 The House Report stated that,

when the reorganization was complete, ‘‘the United States

District Court for the District of Columbia’’ would be ‘‘on a

par with other United States District Courts, exercising

federal jurisdiction only, and the Superior Court of the District of Columbia will have all purely local jurisdiction.’’ Id.

at 34.15

As both this court and the Supreme Court have noted,

‘‘from [the passage of the DCCRA] onward, the relationship

of the federal to the local judiciary was to be akin to that

historically existent in the states.’’ Steorts v. American

14 See 28 U.S.C. § 1257(b) (treating the D.C. Court of Appeals

as the ‘‘highest court of a state’’ for purposes of Supreme Court

review by certiorari); id. § 2113 (treating the D.C. Court of Appeals as a ‘‘state court’’ and ‘‘the highest court of a state’’ for

purposes of other Supreme Court review provisions); see also D.C.

CODE ANN. § 11–102. In Huffman, a case that extended Younger

beyond state criminal proceedings, the Supreme Court put significant weight on the availability of federal court review through

§ 1257 for ‘‘any federal claim properly asserted in and rejected by

state courts.’’ 420 U.S. at 605.

15 See also 28 U.S.C. § 1451 (treating the Superior Court as a

state court for purposes of removal jurisdiction).
11

Airlines, Inc., 647 F.2d 194, 196 (D.C. Cir. 1981).16 Accordingly, ‘‘both our case law and other federal statutes treat the

D.C. courts like state courts.’’ Handy, 325 F.3d at 351 n.5.17

Indeed, it should not escape notice that the very statute upon

which JMM relies for its cause of action in this case, 42

U.S.C. § 1983, treats the District of Columbia as if it were a

state.18

16 See Key v. Doyle, 434 U.S. 59, 64 (1977) (‘‘The Aim of the

[DCCRA] was to establish ‘a Federal–State court system in the

District of Columbia analogous to court systems in the several

States.’ ’’) (quoting H.R. REP. NO. 91–907, at 35); Palmore, 411 U.S.

at 392 n.2 (noting that the DCCRA ‘‘invested the local courts with

jurisdiction equivalent to that exercised by state courts’’).

17 See Madley, 278 F.3d at 1308 (treating a court of the District

as a state court for purposes of a petition for habeas corpus under

28 U.S.C. § 2253(c)); United States v. District of Columbia, 669

F.2d at 741 & n.4 (treating the District as a state for purposes of

jurisdiction under 28 U.S.C. § 1345); Steorts, 647 F.2d at 196–97

(holding that the substantive law of the forum controls in diversity

cases in the District as it does in a state); see also District of

Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983)

(holding that final determinations of the D.C. Court of Appeals, like

those of state courts, are reviewable only by the U.S. Supreme

Court); statutes cited supra notes 14, 15.

18 See 42 U.S.C. § 1983 (providing that ‘‘[e]very person who,

under color of any statute, ordinance, [or] regulation TTT of any

State or Territory or the District of Columbia, subjects TTT any

citizen of the United States TTT to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws, shall

be liable to the party injured’’) (emphasis added); see also 28 U.S.C.

§ 1332(d) (treating the District as a state for purposes of diversity

jurisdiction); id. § 1367(e) (treating the District as a state for

purposes of supplemental jurisdiction). The District has not, however, been treated as a state for all purposes. See, e.g., Palmore,

411 U.S. at 395 (holding that a statute of the District of Columbia

was not ‘‘a ‘statute of any state’ within the meaning of’’ then–28

U.S.C. § 1257(2), which defined the scope of Supreme Court review

by appeal (as distinct from certiorari)); District of Columbia v.

Carter, 409 U.S. 432 (1973) (holding that the District was not a state

for purposes of the pre–1979 version of 42 U.S.C. § 1983).
12

Moreover, this circuit has treated the District of Columbia

courts as state courts in the application of two other abstention doctrines. One is Pullman abstention, which holds that

‘‘when a federal constitutional claim is premised on an unsettled question of state law, the federal court should stay its

hand in order to provide the state courts an opportunity to

settle the underlying state-law question and thus avoid the

possibility of unnecessarily deciding a constitutional question.’’ Harris County Comm’rs Court v. Moore, 420 U.S. 77,

83 (1975) (citing Railroad Comm’n v. Pullman Co., 312 U.S.

496 (1941)); see Justice v. Superior Ct. of District of Columbia, 732 F.2d 949, 950 (D.C. Cir. 1984) (applying Pullman to

the District). Like Younger abstention, Pullman abstention

is based on considerations of both equity and comity.19 The

other abstention doctrine—known as Colorado River abstention—permits discretionary abstention in light of parallel

proceedings in another court. See Colorado River Water

Conservation Dist. v. United States, 424 U.S. 800, 817 (1976).

In that context, we have reviewed ‘‘dismissal in favor of

parallel proceedings in Superior Court under the standard

applicable to a parallel state court proceeding,’’ see Handy,

325 F.3d at 351, rather than under the standard applicable to

a parallel proceeding in another federal district court, see id.

at 350.20 Finally, we note that the First Circuit has applied

19 See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 12 n.9 (1987)

(noting that ‘‘considerations similar to those that mandate Pullman

abstention are relevant to a court’s decision whether to abstain

under Younger’’); Harrison v. NAACP, 360 U.S. 167, 177 (1959)

(noting that Pullman abstention ‘‘serves the policy of comity inherent in the doctrine of abstention’’); Pullman, 312 U.S. at 501

(declaring that abstention is ‘‘appropriate to our federal system

whereby the federal courts, exercising a wise discretion, restrain

their authority because of scrupulous regard for the rightful independence of the state governments and for the smooth working of

the federal judiciary’’) (internal quotation marks omitted).

20 See Reiman v. Smith, 12 F.3d 222, 223–25 (D.C. Cir. 1993)

(applying Colorado River abstention analysis to parallel Superior

Court proceeding). In Moses H. Cone Memorial Hospital v.

Mercury Construction Corp., the Court noted that Colorado River
13

Younger itself to Puerto Rico’s local court system and administrative proceedings, see, e.g., Maymo–Melendez v. Alvarez–

Ramirez, 364 F.3d 27 (1st Cir. 2004), which are entitled to no

greater comity than those of the District of Columbia.21

–––––––––––––––––––––––––

In sum, the general considerations of comity described in

the Younger line of cases apply with full force to the District

of Columbia. And while comity’s federalism component does

not apply per se, Congress has made clear that it intends

federal courts generally to treat the District of Columbia

judicial system as if it were a state system, an intent that this

circuit has long respected and effectuated. When these

considerations are combined with the fact that the other

source of the Younger doctrine—principles of equity jurisprudence—are also fully applicable to the District of Columbia,

the conclusion that this circuit should regard the District as a

state for purposes of Younger abstention is inescapable.

III

The remaining issue, the application of Younger to this

case, is straightforward and breaks no new ground. In

Younger, the plaintiff had been charged in state court with

violating the California Criminal Syndicalism Act. He then

filed a complaint in federal court alleging that the Act on its

face, and his prosecution thereunder, violated his First

Amendment right of free speech. A three-judge district

abstention ‘‘rest[s] not on considerations of state-federal comity, TTT

but on considerations of wise judicial administration, giving regard

to conservation of judicial resources and comprehensive disposition

of litigation.’’ 460 U.S. 1, 14–15 (1983) (internal quotation marks

omitted).

21 The Supreme Court has also applied Pullman abstention to

Puerto Rico. See Fornaris v. Ridge Tool Co., 400 U.S. 41, 44 (1970)

(directing the district court to stay its decision regarding the

constitutionality of a Puerto Rico law until the Puerto Rico Supreme

Court was given an opportunity to construe it in a way that might

avoid constitutional infirmity).
14

court found the statute void for vagueness and overbreadth,

and enjoined the prosecution. 401 U.S. at 40. The Supreme

Court reversed, holding that federal courts should not enjoin

pending state criminal proceedings absent extraordinary circumstances. Id. at 40–41, 48–54. In Huffman, the Court

extended Younger to pending civil court proceedings in which

important state interests are involved. 420 U.S. at 604; see

Ohio Civil Rights Comm’n, 477 U.S. at 627.

Although the District did not file its Superior Court action

against JMM until two months after JMM filed its federal

complaint, Younger applies as long as the state proceedings

were initiated ‘‘ ‘before any proceedings of substance on the

merits have taken place in the federal court.’ ’’ Hawaii

Housing Auth. v. Midkiff, 467 U.S. 229, 238 (1984) (quoting

Hicks v. Miranda, 422 U.S. 332, 349 (1975)). The district

court correctly held that to be the case here, because the only

thing that had transpired before the filing of the Superior

Court action was the denial of JMM’s motion for a preliminary injunction on the basis of Younger and the absence of a

risk of imminent irreparable injury. See Middlesex County,

457 U.S. at 436–37 (holding that dismissal of a federal complaint on Younger grounds, followed by an appeal on that

issue, were not proceedings on the merits such as to render

Younger inapplicable to a subsequent state court proceeding);

id. at 437 (noting that where ‘‘the sole issue [in the federal

action] has been whether abstention is appropriate,’’ there are

‘‘no federal proceedings on the merits [that] will be terminated by application of Younger principles’’).

Moreover, although the Superior Court action was not yet

pending at the time JMM filed its federal complaint, the

DCRA administrative proceedings were and had been for

some time. The Supreme Court has extended Younger to

pending administrative enforcement actions where the state

proceedings are judicial in nature and the state interests are

important. Ohio Civil Rights Comm’n, 477 U.S. at 626–27 &

n.2; Middlesex County, 457 U.S. at 432–34. Both are true

here. The Court has regarded administrative adjudications
15

like those undertaken by the ALJ and the Board of Appeals

and Review as judicial in nature.22 And it has also found that

the enforcement of zoning regulations, like those at issue

here, constitutes an important state interest.23 Indeed, in

observing that ‘‘lower courts have been virtually uniform in

holding that the Younger principle applies to pending state

administrative proceedings in which an important state interest is involved,’’ the Supreme Court cited approvingly a

Seventh Circuit case dealing with a municipal zoning ordinance that governed the licensing of motion picture theaters.

Ohio Civil Rights Comm’n, 477 U.S. at 627 n.2 (citing Grandco Corp. v. Rochford, 536 F.2d 197, 206 (7th Cir. 1975)); cf.

Huffman, 420 U.S. at 604, 608 (regarding as important the

state’s interest in civil litigation seeking to close a theater

that exhibited pornographic films).

22 See Ohio Civil Rights Comm’n, 477 U.S. at 627 & n.2 (finding

that an employment discrimination complaint filed in an administrative proceeding by a state civil rights commission was judicial in

nature); Middlesex County, 457 U.S. at 433–34 (holding that bar

disciplinary proceedings were ‘‘judicial in nature’’); see also New

Orleans Pub. Serv., 491 U.S. at 370–71 (explaining that the ‘‘proper

characterization’’ of a proceeding ‘‘depends not upon the character

of the body but upon the character of the proceedings,’’ and holding

that ‘‘a judicial inquiry investigates, declares and enforces liabilities

as they stand on present or past facts and under laws supposed

already to exist,’’ while a legislative inquiry ‘‘looks to the future and

changes existing conditions by making a new rule to be applied

thereafter’’) (internal quotation marks omitted); id at 371 (holding

that ratemaking is ‘‘an essentially legislative act’’ and not a judicial

one).

23 See City of Los Angeles v. Alameda Books, Inc., 535 U.S.

425, 435–37 (2002) (upholding a zoning restriction against multiple

adult entertainment establishments in light of a substantial state

interest in reducing crime); City of Renton v. Playtime Theatres,

Inc., 475 U.S. 41, 50 (1986) (upholding a zoning ordinance restricting the location of adult movie theaters because the ordinance was

connected to ‘‘a substantial government interest’’ in suppressing

secondary effects on the surrounding neighborhood, including

crime).
16

For Younger abstention to be appropriate in the face of

pending state proceedings, the federal plaintiff must ‘‘have a

full and fair opportunity to litigate’’ its constitutional claims in

those proceedings. Ohio Civil Rights Comm’n, 477 U.S. at

627; Trainor, 431 U.S. at 441. As discussed in Part II.A,

JMM will have the opportunity to assert all of its constitutional claims as defenses in the Superior Court action. Indeed, according to JMM’s own counsel, it has already done so.

See Status Hr’g Tr. at 7–10 (App. 17–20) (representation of

JMM’s counsel to the district court). And whether or not it

can do so in the administrative enforcement proceedings, an

issue the parties dispute, the results of those proceedings are

appealable to the D.C. Court of Appeals, where all of JMM’s

constitutional claims can also be heard. See supra Part

II.A.24

Finally, as also noted in Part II.A, we must consider

whether there are ‘‘extraordinary circumstances warranting

equitable relief.’’ Trainor, 431 U.S. at 446. These may exist

where ‘‘the pending state action was brought in bad faith or

for the purpose of harassing’’ the federal plaintiff, or ‘‘where a

state statute is flagrantly and patently’’ unconstitutional. Id.

24 JMM claims that its facial attacks on the constitutionality of

the zoning regulations cannot be heard on review of the DCRA

enforcement actions. But they plainly are defenses to those actions

and therefore can be heard on appeal. Nor does the fact that JMM

has added a facial First Amendment challenge to its attack on the

enforcement actions take its complaint outside the scope of Younger. See Huffman, 420 U.S. at 602 (noting that the Court has

‘‘unequivocally held that facial invalidity of a statute is not itself an

exceptional circumstance justifying federal interference with state

criminal proceedings’’); Younger, 401 U.S. at 50, 54 (holding that

neither a ‘‘chilling effect’’ nor ‘‘the possible unconstitutionality of a

statute on its face’’ justifies ‘‘an injunction against good-faith attempts to enforce’’ a statute) (internal quotation marks omitted).

JMM further urges that, even if its general facial attacks can be

heard as a defense, one of its specific claims—that it cannot obtain a

SOBE for another location because there is no realistic process for

doing so—would not constitute an enforcement defense. We do not

see why that would be so, since this claim amounts to an allegation

that the District’s SOBE zoning system is a sham.
17

at 446–47 (internal quotation marks omitted); see Middlesex,

457 U.S. at 437; Younger, 401 U.S. at 53–54. But JMM

alleges no bad faith harassment here, nor does it contend that

the District’s zoning regulations meet the ‘‘flagrant and patently’’ unconstitutional threshold. Indeed, the latter would

be a particularly difficult case to make in light of Supreme

Court opinions upholding similar zoning restrictions against

First Amendment attack. See City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 439 (2002); City of Renton v.

Playtime Theatres, 475 U.S. 41, 50 (1986).

To summarize: The ongoing District of Columbia proceedings are judicial in nature and implicate important District

interests; those proceedings afford JMM an adequate opportunity to litigate its federal claims; and there are no extraordinary circumstances warranting equitable relief. Accordingly, the criteria for application of the Younger doctrine have

been satisfied, and the district court’s dismissal of JMM’s

complaint was appropriate.

IV

We conclude that the District of Columbia is a state for

purposes of Younger abstention, and that such abstention is

warranted in this case. Accordingly, the judgment of the

district court is

affirmed.