United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 7, 2005 Decided April 14, 2006

No. 04-7184

WORLDWIDE MOVING & STORAGE, INC.,

A MARYLAND CORPORATION,

APPELLANT

v.

DISTRICT OF COLUMBIA,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 04cv00175)

Charles E. Wagner argued the cause for the appellant.

Timothy Falls was on brief.

James C. McKay, Jr., Assistant Attorney General, District of

Columbia, argued the cause for the appellee. Robert J.

Spagnoletti, Attorney General, and Edward E. Schwab, Deputy

Attorney General, District of Columbia, were on brief.

Before: HENDERSON and BROWN, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

Opinion for the court filed by Circuit Judge HENDERSON.
2

1

Although Steel Co. v. Citizens for Better Environment, 523 U.S.

83 (1998), requires that an appellate court “address questions

pertaining to its or a lower court's jurisdiction before proceeding to the

merits,” Younger abstention “represents the sort of ‘threshold

question’ we have recognized may be resolved before addressing

jurisdiction.” Tenet v. Doe, 125 S. Ct. 1230, 1235 n.4 (2005) (citing

Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 585 (1999)).

KAREN LECRAFT HENDERSON, Circuit Judge: Worldwide

Moving and Storage, Inc. (Worldwide) filed this action seeking

an injunction to prohibit the District of Columbia (District or

D.C.) from imposing a surety bond requirement on a federally

licensed motor carrier or its employees, contending such a

requirement is preempted by federal law. The district court

dismissed the action for lack of constitutional standing.

Although Worldwide may well have constitutional standing

under our decision in Pesikoff v. Secretary of Labor, 501 F.2d

757 (D.C. Cir. 1973), we decline to decide the standing issue

and instead affirm the dismissal on the alternative

ground—raised in but not reached by the district court—that we

should abstain from resolving Worldwide’s preemption claim

under Younger v. Harris, 401 U.S. 37 (1971), because the

dispute is currently being litigated in the local courts of the

District of Columbia. See Nat’l Ass’n of Home Builders v. U.S.

Army Corps of Eng’rs, 417 F.3d 1272, 1281 (D.C. Cir. 2005)

(court “may affirm the district court on an alternative ground”

(citing Tymshare, Inc. v. Covell, 727 F.2d 1145, 1150 (D.C. Cir.

1984))).1

I.

On October 29, 2001 Melvin S. Yates, II, Worldwide’s

founder and one-time president, pleaded guilty in the D.C.

Superior Court (Superior Court) to five misdemeanor counts of

failing to comply with the contract provisions of five moving

jobs performed by the moving company he then operated, M.Y.
3

2

D.C. Mun. Reg. § 16-702.1(g) requires that a contract for moving

household goods contain: “The name, address and telephone number

of the place of storage, if any, and the hours during which the stored

goods can be inspected by the owner.”

3

Yates filed an appeal of the preliminary injunction, which the

D.C. Court of Appeals dismissed as moot on February 17, 2005, Yates

v. District of Columbia, 868 A.2d 866 (D.C. 2005), after the Superior

Court issued a permanent injunction on December 21, 2004, as

detailed infra. 

Enterprises (MYE), in violation of D.C. Mun. Reg. § 16-

702.1(g).2

On February 11, 2002 the D.C. Office of the Corporation

Counsel (now the Office of the Attorney General) filed a civil

enforcement action against Yates and MYE in Superior Court

for misleading customers in violation of the D.C. Consumer

Protection Procedures Act, D.C. Code. § 28-3904. On February

26, 2002 the Superior Court entered a preliminary injunction

requiring that no later than April 1, 2002 Yates and MYE obtain

a $100,000 surety bond issued in the name of the District of

Columbia “for the benefit of any consumer injured as a result of

any false or misleading representation made, omission of

material facts that have a tendency to mislead, or failure to

honor valid insurance claims while defendants are engaged in

the business of transporting, moving, warehousing, or storing

goods.”3

 District of Columbia v. MYE, C.A. No. 02-926, order

at 6-7 (D.C. Super. Ct. Feb. 26, 2002).

Unable to secure a surety bond, in early 2002 MYE filed for

liquidation under Chapter 7 of the Bankruptcy Code, 11 U.S.C.

§§ 701 et seq., and is no longer in business. Subsequently, the

District sought an order in Superior Court holding Yates in

contempt for operating Worldwide, which he incorporated on

March 22, 2001, without a surety bond. On November 12, 2002

the Superior Court issued an order to show cause why Yates
4

should not be held in contempt. On March 19, 2003, Yates filed

for personal bankruptcy protection. 

On February 5, 2004, Worldwide filed this action in the

district court to enjoin the District “from imposing or attempting

to impose a surety bond requirement on a motor carrier holding

authority to operate in interstate commerce if that carrier meets

the minimum federal insurance requirements” and “from

imposing a surety bond requirement on employees of federally

licensed motor carriers which meet the federal insurance

requirements.” Compl. at 19. The complaint alleged, inter alia,

that federal law preempts the District from regulating

Worldwide’s interstate moving operations through a surety bond

requirement. The District filed a motion to dismiss on the

grounds that Worldwide lacked standing, Younger abstention,

absence of an indispensable party (Yates) and failure to state a

claim under Fed. R. Civ. P. 12(b)(6). In an order filed

September 30, 2004 the district court dismissed the complaint

for lack of standing, concluding that “[b]ecause the surety bond

imposed on Mr. Yates inflicts no substantial injury to any

legally protected interest of Worldwide, plaintiff lacks standing

to enjoin the enforcement of that requirement.” Worldwide

Moving & Storage v. District of Columbia, C.A. No. 04-0175,

mem. op. at 7 (D.D.C. Sept. 30, 2004). Worldwide then timely

appealed. 

Following a jury trial, the Superior Court entered final

judgment in favor of the District. District of Columbia v. MYE,

C.A. No. 02-926, ord. at 7-11 (D.C. Super. Ct. Dec. 21, 2004).

The court assessed a $7,000 civil penalty against Yates and

issued permanent injunctive relief which imposed a number of

obligations and prohibitions on any “Yates company,” which the

court defined as “a) Yates, or b) any company engaged in the

business of moving and/or storing consumer goods that is under

the management or control of Yates,” id. at 7. The order also

directed that Yates either (1) “obtain and maintain in force a
5

4

The D.C. Court of Appeals denied Yates’s motion to stay the

injunction on appeal. Yates v. District of Columbia, Nos. 05-CV-29

& 06-CV-96 (D.C. filed March 8, 2006).

surety bond . . . in the amount of $75,000” (“in his individual

capacity or through the company whose activities trigger this

bond requirement”) or (2) “refrain from managing or

controlling, whether directly or indirectly, a company that

provides Local Moves involving household goods.” Id. at 9.

The injunction defined a “Local Move” as “a move or contract

of storage within the District of Columbia Commercial Zone, as

defined by 49 C.F.R. § 372.219, in which the customer’s

destination point, the customer’s origination point, or the Yates

company storage facility is located within the District of

Columbia” or, if a Yates company used a District of Columbia

address to conduct business, “any move within the District of

Columbia Commercial Zone that occurs entirely within one

state.” Id. at 7. Worldwide filed an appeal in the D.C. Court of

Appeals.4

On March 16, 2005 the District moved in Superior Court for

an order to show cause why Yates should not be held in

contempt for, inter alia, not complying with the surety bond

requirement in the December 21, 2004 judgment order. In

addition, the motion recommended that the contempt order

“enjoin a Yates company (as defined in the order of December

21, 2004), including WorldWide Moving and Storage Inc., from

engaging in any moving or storage business activity within the

District of Columbia until Yates satisfies the Court that he is in

compliance with all outstanding provisions of the Court’s order

of December 21, 2004.” District of Columbia v. MYE, C.A. No.

02-926, Pl.’s Mot. for Order to Show Cause Why Def. Should

Not Be Held in Civil Contempt, at 2 (D.C. Super. Ct. filed Mar.

16, 2002). At a hearing on January 5, 2006 the court found

Yates in civil contempt, granted the requested injunctive relief
6

5

In JMM Corp., we decided that the Younger doctrine applies to

the District.

and directed that he pay a fine of $100 per day, beginning

January 9, 2006, for each day he violated the prohibition.

District of Columbia v. MYE, C.A. No. 02-926, 1/5/06 Hearing

Tr. at 60-61. In a written order dated January 18, 2006

(expressly superseding the oral order), the court found Yates in

contempt and directed that neither Worldwide nor any “Yates

company” “engage in any moving or storage business activity in

the District of Columbia, or use a District of Columbia address

to conduct its business, unless and until this Court has issued a

further Order finding that the company has satisfied, or need not

satisfy, the surety bond requirement set forth in the Court’s

Order of December 23, 2004.” District of Columbia v. MYE,

C.A. No. 02-926, order at 8-9 (docketed Jan. 19, 2006). On

January 27, 2006 Yates appealed the order to the D.C. Court of

Appeals, which consolidated the appeal with Yates’s pending

appeal of the December 21, 2004 permanent injunction and

denied Yates’s motion to stay the injunction on appeal. Yates v.

District of Columbia, Nos. 05-CV-29 & 06-CV-96 (D.C. filed

March 8, 2006). 

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 an

administrative proceeding) that is judicial in nature and involves

important state interests.” JMM Corp. v. District of Columbia,

378 F.3d 1117, 1120 (D.C. Cir. 2004) (citations omitted).5

 The

Younger abstention doctrine rests “both on ‘equitable principles’

and on ‘concerns for comity and federalism.’ ” Id. at 1121

(citations omitted). In determining whether to abstain under

Younger, we apply a “rigid three-prong test”:
7

6

In fact, Yates has already asserted the defense in Superior Court.

See District of Columbia v. MYE, C.A. No. 02-926, Resp. to Mot. to

Show Cause Order at 6-7 & n.4 (D.C. Super. Ct. filed Mar. 25, 2004).

Worldwide contends abstention is inappropriate in part because it is

not a party to the Superior Court action and “this Court has opined that

whether the Federal plaintiff is a party to the local action is a key

factor in any abstention evaluation.” Reply Br. at 18 (citing Family

Div. Trial Lawyers of Super. Ct.–D.C., Inc. v. Moultrie, 725 F.2d 695,

702 (D.C. Cir. 1984)). Yet at the same time Worldwide characterizes

[F]irst, a federal court may dismiss a federal claim only

when there are ongoing state proceedings that are

judicial in nature; second, the state proceedings must

implicate important state interests; third, the proceedings

must afford an adequate opportunity in which to raise

the federal claims. 

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

Hoai v. Sun Ref. & Mktg. Co., 866 F.2d 1515, 1518 (D.C. Cir.

1989) (citing Middlesex County Ethics Comm. v. Garden State

Bar Ass’n, 457 U.S. 423, 432 (1982))). All three criteria are met

in this case. 

 First, both the Superior Court proceeding and the appeals

from its December 21, 2004 and January 18, 2006 orders are

ongoing. Second, the District has an important interest in

enforcing its laws that regulate the local movement and storage

of household goods. Cf. JMM Corp., 378 F.3d at 1126 (noting

Supreme Court “has found that the enforcement of zoning

regulations . . . constitutes an important state interest”) (citing

City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 435-

37 (2002); City of Renton v. Playtime Theatres, Inc., 475 U.S.

41, 50 (1986)). Third, there is no reason the preemption defense

may not be raised and fully litigated in the D.C. court

proceedings, whether by Yates or by Worldwide (as the latter

has sought to do in federal court).6

 Cf. JMM Corp., 378 F.3d at
8

itself as a “de facto party” to the Superior Court action, Appellants’

Opening Br. at 25, and relies on the orders issued therein to support its

Article III standing here. Given that the January 18, 2006 Superior

Court order expressly found that Yates controls Worldwide and

expressly subjected Worldwide as well as Yates to the injunction it

issued, we see no reason why the preemption claim should not be

decided there. See Doran v. Salem Inn, Inc., 422 U.S. 922, 928-929

(1975) (noting “there plainly may be some circumstances in which

legally distinct parties are so closely related that they should all be

subject to the Younger considerations which govern any one of

them”); Moultrie, 725 F.2d at 702 (“[T]he Younger abstention policy

is best suited to cases where federal plaintiffs are trying to attack state

enforcement procedures which have been directly applied to them.”).

1121 (“Where the proceedings begin in Superior Court, the

defendant can raise any constitutional claims in that court,

appeal an adverse decision to the District of Columbia Court of

Appeals, and if still dissatisfied seek review in the United States

Supreme Court.” (citing D.C. Code Ann. §§ 2-510(a); 11-921,

11-923; 11-721; 28 U.S.C. § 1257(a), (b))).

Notwithstanding this case satisfies all three of the Younger

abstention prerequisites, Worldwide contends abstention is

improper because the D.C. enforcement proceeding is

preempted by federal law governing interstate shippers. In New

Orleans Public Service, Inc. v. Council of New Orleans, 491

U.S. 350 (1989) (NOPSI), the Supreme Court observed that even

a “substantial” preemption claim (like a substantial

constitutional claim) is insufficient to require a federal court to

intervene in a matter being litigated in state court. 491 U.S. at

364-65. The Court held open the possibility that, as the

petitioner argued, “a facially conclusive claim” might be

“sufficient to render abstention inappropriate” but found no need

to decide the question because “the proceeding and order at

issue do not meet that description.” Id. at 367 (emphasis in
9

original). Worldwide has likewise failed to assert a “facially

conclusive” preemption claim. 

Worldwide contends the Superior Court’s enforcement

proceeding is preempted under two federal statutes. The first

provision is the “Carmack Amendment” to the Interstate

Commerce Act, which codifies the common law liability of a

carrier transporting property for hire “for the actual loss or

injury to the property” shipped. 49 U.S.C. § 14706(a)(1). The

Carmack Amendment, however, governs only the private

liability of a carrier to the owner of the property. It says nothing

explicitly about a prophylactic surety bond, the remedy imposed

by the Superior Court and to which Worldwide objects. The

second statute is 49 U.S.C. § 14501(c)(1), which prohibits a

state from enacting or enforcing laws or regulations governing

certain aspects of interstate transportation. Section

14501(c)(2)(A), however, expressly states that the prohibition

“shall not restrict . . . the authority of a State to regulate carriers

with regard to minimum amounts of financial responsibility

relating to insurance requirements and self-insurance

authorization,” which appears to exempt from the prohibition

the surety bond requirement imposed on Worldwide. Given that

the two statutes on which Worldwide relies appear inapplicable

to the surety bond requirement, we conclude that Worldwide’s

preemption claim does not satisfy the “facially conclusive”

standard described in NOPSI. Cf. Hughes v. Att’y Gen. of Fla.,

377 F.3d 1258, 1265 (11th Cir. 2004) (under NOPSI facially

conclusive standard, “only the clearest of federal preemption

claims would require a federal court to hear a preemption claim

when there are underlying state court proceedings and when that

claim can be raised in the state forum”). Thus, like the Supreme

Court in NOPSI, we need not decide whether a preemption claim
10

7

In two post-argument letters submitted to the court pursuant to

District of Columbia Circuit Rule 28(j), Worldwide suggests, for the

first time before this court, that abstention is foreclosed by Yates’s

bankruptcy proceeding. See Rule 28(j) letters of Appellant filed Jan.

27, 2006, Feb. 06, 2006. This argument comes too late. Cf. Goldring

v. District of Columbia, 416 F.3d 70, 77 n.4 (D.C. Cir. 2005)

(argument raised for first time in reply brief is untimely (citation

omitted)); Ark Las Vegas Rest. Corp. v. NLRB, 334 F.3d 99, 108 n.4

(D.C. Cir. 2003) (argument raised at oral argument but not in briefs is

waived (citations omitted)). In any event, Worldwide’s claim of

bankruptcy preclusion, resting as it does on a review of the factual

record of this case and the bankruptcy proceeding (which Worldwide

informs us was “closed” on December 28, 2005, Mar. 20, 2006 28(j)

Letter at 1), is not facially conclusive under NOPSI.

that did meet this standard would override the Younger

abstention doctrine.7

Because principles of equity, comity and federalism favor

abstaining from addressing Worldwide’s federal claims while

the D.C. court proceedings continue, we affirm the district

court’s dismissal of Worldwide’s complaint under Younger. 

So ordered.