DePaul Law Review Volume 42 Issue 3 Spring 1993 Article 2 Federal Court Abstention and State Administration Law from Burford to Ankenbrandt: Fifty Years of Judicial Federalism under Burford v. Sun Oil Co. and Kindred Doctrines Gordon G. Young Follow this and additional works at: https://via.library.depaul.edu/law-review Recommended Citation Gordon G. Young, Federal Court Abstention and State Administration Law from Burford to Ankenbrandt: Fifty Years of Judicial Federalism under Burford v. Sun Oil Co. and Kindred Doctrines, 42 DePaul L. Rev. 859 (1993) Available at: https://via.library.depaul.edu/law-review/vol42/iss3/2 This Article is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Law Review by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. FEDERAL COURT ABSTENTION AND STATE ADMINISTRATIVE LAW FROM BURFORD TO ANKENBRANDT: FIFTY YEARS OF JUDICIAL FEDERALISM UNDER BURFORD v. SUN OIL CO. AND KINDRED DOCTRINES Gordon G. Young* TABLE OF CONTENTS INTRODUCTION ...................................... 862 I. A SHORT INTRODUCTION TO THE ABSTENTION D O CTRIN ES .................................... 868 A. The Pullman Doctrine (1941) ............... 868 B. The Burford Doctrine (1943) ................ 870 C. 'The Younger Doctrine (1971) ............... 871 D. The Colorado River Doctrine (1974) ......... 873 E. The Thibodaux Doctrine (1959) ............. 873 II. BURFORD V. SUN OIL CO. AND ITS BACKGROUND .. 875 Ill. BURFORD'S APPARENT INCONSISTENCY WITH THE CONTEMPORARY LAW OF JUDICIAL FEDERALISM .... 879 A. How Equitable Discretion Overrode the Usual Rule That Federal Courts Must Exercise Jurisdiction Conferred by Statute .... ........ 880 B. Burford as an Exception to Entrenched Principles of Judicial Federalism Exemplified by Erie v. Tom pkins ....................... 881 C. Burford's Origins in the Developing Body of Federal Administrative Law ................ 886 1. Federal Review of Federal Agency Determinations ........................ 889 * Professor of Law, University of Maryland School of Law. For help of various sorts, I am grateful to the following friends and colleagues, both at the School of Law and elsewhere: Richard Boldt, Ruth Fleischer, William Richman, and Palma Strand. I am particularly indebted to Dave Bogen and Bill Reynolds for help with this Article and for being such good colleagues over the years. Linda Jennings and William Heaphy, School of Law classes of 1992 and 1993 respectively, provided some of the best research assistance I have ever had. DEPA UL LA W RE VIE W [Vol. 42:859 2. Transposing Federal Administrative Review Jurisprudenceonto the Domain of Federal! State R elations ........................ 893 a. Prentis v. Atlantic Coast Line Railway and state/federal claim preclusion ... 894 b. Uncertainty about which state institutions are "courts" protected from federal court "review" by claim preclusion ........................ 896 IV. THE BURFORD DOCTRINE TODAY ................... 899 A. Burford's Shape in the Lower Federal Courts . 900 B. An Initial Look at the Supreme Court Cases, ParticularlyNew Orleans Public Service, Inc. v. Council of New Orleans .................... 906 V. How NEW ORLEANS NARROWS THE PRACTICAL SCOPE OF THE BURFORD DOCTRINE FROM THE INSIDE WHILE OTHER DOCTRINES NARROW IT FROM THE O U TSID E ...................................... 9 13 A. Some Basic Distinctions Among Cases in Which Burford Abstention Might Operate: Review Pattern Cases Versus Primary Jurisdiction Ca ses . 9 13 B. How Other Doctrines of Judicial Federalism Reduce Burford's Significance in Federal Cases in Which the Validity of State Agency Action Is R eview ed ................................. 9 15 1. Alternatives to Burford Abstention Which Are Common to Federal Question and Diversity Cases ........................ 915 2. A Particular Focus on Alternatives to Burford Abstention in Cases Grounded on Federal Question Jurisdiction ........... 922 a. Pendent state law claims under supplemental jurisdiction ........... 923 b. Federal law attacks on state administrative action ............... 923 c. State law incorporated in federal law. 927 3. A Particular Focus on Alternatives to Burford Abstention in Review Cases Grounded on Diversity Jurisdiction....... 928 1993] FEDERAL ABSTENTION AND STATE LAW C. How Other Doctrines of Judicial Federalism Reduce Burford's Significance in Primary JurisdictionPattern Cases .................. 929 D. Summary of the Effect of Other Doctrines on Burford Abstention ........................ 934 VI. THE ADMINISTRATIVE/NONADMINISTRATIVE DISTINCTION UNDER THE MICROSCOPE ............ 934 A. What Is Meant by "Administrative Agencies" in the New Orleans Formulation?............... 935 B. Is Limiting Burford to Administrative Law Cases Justifiable? ......................... 937 1. The Limitation as Seen from a Modern Perspective Stressing the Similarities of Courts' and Agencies' Powers to Make Law 937 2. A Conventional Perspective in Which Judicial Law-Making in Statutory Interpretation Is Denied or Downplayed... 946 a. Federal court interpretations of state agency action not challenged as unlawful: primary jurisdiction ....... 947 b. Federal court "review" of state agency a ctio n ........................... 947 i. Review of administrative action ingeneral .................. 948 ii. Pure issues of law ........... 949 iii. Mixed questions of law and fact 952 iv. Factual review .............. 954 v. Arbitrary and capricious review 954 3. S um m ary ............................. 956 VII. FURTHER DIFFICULTIES WITH BURFORD: THE Two PROBLEMATIC NEW ORLEANS CATEGORIES ......... 956 A. Category One: "Difficult Questions of State Law Bearing on Policy Problems of Substantial Public Import Whose Importance Transcends the Result in the Case Then at Bar....... 957 B. Category Two. "FederalReview of the Question in a Case and in Similar Cases Would Be Disruptive of State Efforts to Establish a Coherent Policy with Respect to a Matter of Substantial Public Concern.'". .............. 962 862 DEPAUL LAW REVIEW [Vol. 42:859 VIII. SOME GENERAL THOUGHTS ON BURFORD AND FEDERALISM: SHOULD BURFORD BE RETAINED, MODIFIED, OR ABANDONED? ..................... 968 A. Federal Question Cases .................... 969 B. Diversity Cases ........................... 978 C ONCLUSION ... ....................................... 979 The very essence of the Erie doctrine is that the bases of state law are pre- sumed to be communicable by the parties to a federal judge no less than to a state judge.' INTRODUCTION Within the limits of the federal judicial power defined by Article III of the Constitution, Congress has nearly complete control over the jurisdiction of the Supreme Court and the lower federal courts.2 Despite the breadth of these potential powers, Congress largely has allowed the Supreme Court a free hand in designing the features of judicial federalism, the system of rules and policies which divides power between the state and federal courts. From the early days under the Constitution, the jurisdiction which Congress has chosen to confer on the federal courts generally I. Salve Regina College v. Russell, Ill S. Ct. 1217, 1225 (1991). 2. Congress may not expand the jurisdiction of the lower federal courts beyond the judicial power as defined in Article Ill, § 2. See National Mut. Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 607, 645, 655 (1949) (view of six concurring and dissenting justices; Justices Jackson, Black, and Burton disagreed); Hodgson v. Bowerbank, 9 U.S. (5 Cranch) 303 (1809). See gener- ally PAUL M. BATOR ET AL., HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 473-78 (3d ed. 1988) (discussing the prohibition on Congress's expanding federal judicial jurisdiction beyond Article IlI's limits). Within the federal judicial power as defined in Article Ill, the vast powers of Congress to limit the jurisdiction of the lower federal courts are well established. See id. at 362-424. It is arguable that Congress has complete power to limit the jurisdiction of the lower federal courts to any subset of the maximum jurisdiction allowed under Article Ill of the United States Constitution. Many cases suggest that Congress can specify which constitutionally founded causes of action cannot be heard by a federal court. See Lockerty v. Phillips, 319 U.S. 182, 187 (1943) (stating that Congress's authority to create lower federal courts includes the power of "withholding juris- diction from them in the exact degrees and character which to Congress may seem proper for the public good"); Lauf v. E.G. Shinner & Co., 303 U.S. 323, 330 (1938) (upholding a federal statu- tory restriction on a federal trial court's jurisdiction); Sheldon v. Sill, 49 U.S. (8 How.) 441, 448- 49 (1850) (stating that Congress controls the existence of inferior courts and, thus, also controls the scope of their jurisdiction). But see Johnson v. Robison, 415 U.S. 361, 366-67 (1974) (expres- sing serious doubts regarding the constitutionality of any statute which included a provision bar- ring federal courts from reviewing the constitutionality of the statute's substantive provisions); Battaglia v. General Motors Corp., 169 F.2d 254, 257 (2d Cir.) (suggesting that Congress must not exercise its power over the jurisdiction of lower courts in a manner that deprives citizens of their constitutional rights), cert. denied, 335 U.S. 887 (1948). 19931 FEDERAL ABSTENTION AND STATE LAW 863 has been regarded as mandatory.3