March 9, 1993
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
CASA MARIE, INC., ET AL.,
SUPERIOR COURT OF PUERTO RICO FOR THE
DISTRICT OF ARECIBO, ET AL.,
CASA MARIE, INC., ET AL.,
SUPERIOR COURT OF PUERTO RICO FOR THE
DISTRICT OF ARECIBO, ET AL.,
ESTHER RIVERA SANTOS, ET AL.,
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fust , U.S. District Judge]
Breyer, Chief Judge,
Feinberg,* Senior Circuit Judge,
and Cyr, Circuit Judge.
Anabelle Rodriguez Rodriguez, Deputy Solicitor General, with whom
Jorge E. Perez Diaz, Solicitor General, was on brief for appellant
Superior Court of Puerto Rico for the District of Arecibo.
Ramon L. Walker Merino with whom Angel M. Bonnet Rosario was on
brief for appellants Rivera Santos, et al.
William Ramirez-Hernandez with whom Nora Vargas-Acosta was on
brief for plaintiffs, appellees.
Carlos E. Vega-Perez with whom Juan Francisco Correa-Luna, Puerto
Rico Legal Services Corp., Kim Savage, Jeanne Finberg and National
Senior Citizens Law Center were on brief for intervenors-appellees.
March 9, 1993
*Of the Second Circuit, sitting by designation.
CYR, Circuit Judge. Appellants, neighbors in the Jardines
CYR, Circuit Judge.
de Arecibo housing development ("JDA") in Arecibo, Puerto Rico (-
"neighbors"), and the Superior Court of Puerto Rico for the District
of Arecibo ("Superior Court"), appeal from an order of the United
States District Court for the District of Puerto Rico permanently
enjoining enforcement of a final judgment of the Superior Court
mandating the immediate closure of Casa Marie, Hogar Geriatrico, Inc.
("Casa Marie"), a live-in, elder-care facility located in the JDA.
The Superior Court judgment was based on a determination that Casa
Marie was operating in violation of local zoning ordinances and JDA
restrictive covenants. Appellees, the owners and operators of Casa
Marie, and fourteen of its elderly and handicapped residents, insti-
tuted the federal action to enjoin enforcement of the Superior Court
judgment. The federal district court ruled that the neighbors' resort
to the Commonwealth courts to close Casa Marie violated the federally
protected rights of Casa Marie residents under 42 U.S.C. 1983
("section 1983") and the Fair Housing Act, 42 U.S.C. 3604 ("Title
VIII" or "FHA").
A. The Opening and Expansion of Casa Marie.
A. The Opening and Expansion of Casa Marie
The Jardines de Arecibo housing development was established
in 1967. Each property in the development is subject to restrictive
[End Page 3]
covenants allowing only detached single-family residences, prohibiting
uses or offensive activities constituting a "nuisance," and requiring
prior approval of all construction and alterations. On April 25,
1986, Casa Marie, a live-in facility for elderly handicapped persons,
was established by Maria Pla Placencio on a dead-end street in a
section of JDA zoned residential (R-3). The R-3 zoning classification
allows one and two-family residences, rowhouses, or apartment build-
ings; elder-care facilities are not allowed except as a variance.
On May 7, 1986, Casa Marie applied to the Department of
Social Services ("DSS") for a license to operate an elder-care facili-
ty in two single-family residences located on adjacent Lots 19 and 20.
The minimum DSS licensure requirements included endorsements from the
fire, police, and health departments,1 and a valid variance permit
from the Administracion de Reglamentos y Permisos ("A.R.P.E."), the
agency authorized to oversee and administer local zoning laws. On
May 21, 1986, A.R.P.E. granted Casa Marie a variance permit, and on
February 4, 1987, Casa Marie was granted a six-month provisional DSS
license to operate an elder-care facility on Lots 19 and 20, pending
full compliance with all other licensing requirements. When its
provisional DSS license lapsed in August 1987, Casa Marie was denied a
permanent DSS license due in part to the discovery that the A.R.P.E.
1As these endorsements were not seriously at issue, either in the
Commonwealth courts or the federal court, we do not address them on
[End Page 4]
variance permit might be applicable to Lot 19 only. DSS nevertheless
allowed Casa Marie to continue to operate under DSS supervision.
During 1987, the Casa Marie owners began to expand opera-
tions, incorporating a third single-family residence, on Lot 21, by
constructing wheelchair ramps connecting the buildings on Lots 19, 20
and 21.2 The owners did not seek or secure the required A.R.P.E.
construction permits for these renovations. On January 21, 1988,
several Casa Marie neighbors filed an administrative complaint with
A.R.P.E., pursuant to P.R. Laws Ann. tit. 23, 71x, 72 (1987),3
requesting that A.R.P.E. order Casa Marie to cease all construction
and that A.R.P.E. institute judicial action to compel Casa Marie to
demolish the unauthorized structures.
B. The Superior Court Judgment and Appeal.
2By December 1987, the resident population of Casa Marie had increased
from two to twenty-six.
3Section 71x authorizes A.R.P.E. to issue orders to "cease and desist so that necessary preventative or control measures [can] be taken to
achieve the purposes of this chapter . . . ." P.R. Laws Ann. tit. 23,
71x (1987). Section 72 provides, in pertinent part:
The Administrator or the Secretary of Justice in those cases
where he is requested to do so in behalf of the People of
Puerto Rico, or any owner or occupant of any neighboring
property who is or may be particularly harmed by any such
violations may, in addition to the other remedies provided
by law, institute injunctions, mandamus or abatement pro-
ceedings or other appropriate action to prevent, enjoin,
abate, vacate, remove or demolish any building erected or
any building or use made or maintained . . . in violation of
this chapter . . . .
[End Page 5]
On April 18, 1988, while their administrative action was
pending before A.R.P.E., the neighbors filed a complaint in the
Superior Court against Casa Marie and its owners, alleging violations
of the zoning ordinances and the JDA restrictive covenants. The
neighbors requested injunctive relief requiring demolition of the
inter-building renovations and a cessation of all operations. The
A.R.P.E. and Superior Court actions were consolidated in the Superior
In May 1988, in order to remedy its zoning violations, Casa
Marie submitted a proposal to A.R.P.E. whereby Lots 19, 20 and 21
would be "grouped" into one property for zoning purposes.
On July 14, 1988, however, the Superior Court entered
judgment against Casa Marie, finding, inter alia, that
(1) Casa Marie violated local zoning laws by its fail-
ure to obtain a valid variance permit for Lot 21, and
valid construction permits for the renovations on Lots[End Page 19, 20 and 21;]
(2) Casa Marie was engaged in a "commercial-
institutional" use, not a "residential use" as required
by the covenants;
(3) Increased levels of traffic and noise in the neigh-
borhood, and the neighbors' fears of "disturbing" the
elderly residents, whom they considered "strangers in
the neighborhood," had "creat[ed] a dislocation or
disorder in the lifestyle of the residential area"
which constituted a "nuisance" under the restrictive
4A.R.P.E. issued a "cease and desist" order on May 31, 1988, prevent-
ing further renovations, but refrained from directing demolition.
[End Page 6]
(4) Certain businesses located in JDA's R-3 zone for
example, a medical office and a day-care nursery
also violated the restrictive covenants, but those
violations were insufficient to extinguish the cove-
nants under the equitable doctrine of "changed circum-
(5) Even if A.R.P.E. were to permit a variance for Casa
Marie in the future, thereby excusing its past zoning
violations, A.R.P.E. was without authority under Puerto
Rico law to supersede or excuse Casa Marie's coincident
violations of the restrictive covenants.
The Superior Court ordered immediate cessation of the unauthorized
operations at Casa Marie, demolition of the unauthorized renovations
within four months, and notification of the closure of the elder-care
facility to all Casa Marie residents.
Upon notification of the Superior Court judgment, A.R.P.E.
suspended action on the Casa Marie "lot grouping" proposal. Without
an A.R.P.E. permit, Casa Marie was ineligible for a permanent DSS
On September 9, 1989, in their appeal of the Superior Court
judgment to the Supreme Court of Puerto Rico, the Casa Marie owners
alleged, for the first time, that the neighbors had discriminated
against Casa Marie's handicapped residents under the Puerto Rico Bill
of Rights for Aged Persons. See P.R. Laws Ann. tit. 8, 341-347,
343(b) (1987) ("All aged persons shall be entitled to . . . live in a
dignified environment that satisfies their basic housing . . . needs";
authorizing aged persons to bring a "priority" private cause of action
[End Page 7]
in Commonwealth courts). The Supreme Court of Puerto Rico affirmed
the Superior Court judgment in November 1989.5
5Casa Marie filed a motion to set aside the judgment, which the
Superior Court denied on March 28, 1990.
[End Page 8]
C. The Enforcement and Contempt Proceedings.
Casa Marie continued to operate. The neighbors requested a
hearing to compel compliance with the Superior Court judgment. At the
Superior Court hearing on August 15, 1990, the Casa Marie owners
unsuccessfully attempted to interpose Title VIII claims, presumably in
behalf of the residents. On October 2, 1990, Legal Services Corpora-
tion ("Legal Services") filed a motion to intervene in the Superior
Court enforcement proceedings in behalf of five Casa Marie residents
("intervenors"). At the same time, Legal Services brought an indepen-
dent action in behalf of the intervenors, asserting claims under
section 3604 of the FHA,6 the Puerto Rico Bill of Rights for Aged
6Section 3604(f)(1) of Title VIII makes it unlawful
[t]o discriminate in the sale or rental, or to otherwise
make unavailable or deny, a dwelling to any buyer or renter
because of a handicap of
(A) that buyer or renter,
(B) a person residing in or intending to reside in
that dwelling after it is so sold, rented, or made
(C) any person associated with that buyer or renter.
42 U.S.C. 3604(f)(1) (emphasis added).
Section 3617 further provides that
[i]t shall be unlawful to coerce, intimidate, threaten, or
interfere with any person in the exercise or enjoyment of,
or on account of his having exercised or enjoyed, or on
account of his having aided or encouraged any other person
in the exercise or enjoyment of, any right granted or pro-
tected by [sections 3603, 3604, 3605, or 3606].
42 U.S.C. 3617.
Plaintiffs appear to have stated a prima facie case under Title
VIII. See Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205
211-12 (1972) (FHA broadly construed to effectuate its remedial
[End Page 9]
Persons, and 42 U.S.C. 1983. The intervenors' section 1983 claims
alleged that the Superior Court had acted in concert with the neigh-
bors to deprive Casa Marie residents of their civil rights under the
Constitution and laws of the United States.
purpose to foster "truly integrated and balanced living patterns")
(quoting 114 Cong. Rec. 3422 (1968)). Title VIII may afford protec-
tion to elderly persons who are, or are perceived as, "persons of a
handicap." See 42 U.S.C. 3602(h) (defining "handicap" as: (1) "a
physical or mental impairment which substantially limits one or more
of [a] person's major life activities," (2) "a record of having such
an impairment," or (3) "being regarded as having such an impairment").
Title VIII may proscribe discriminatory acts by persons who are
neither sellers nor lessors of property. See Edwards v. Johnson
County Health Dep't, 885 F.2d 1215
, 1221 n.14 (4th Cir. 1989); Evans
v. Tubbe, 657 F.2d 661
, 663 (5th Cir. 1981). The phrase "otherwise
make unavailable or deny" encompasses a wide array of housing practic-
es, see, e.g., South-Suburban Hous. Ctr. v. Greater South-Suburban Bd.
of Realtors, 935 F.2d 868
, 882 (7th Cir. 1991), cert. denied, 112 S.
Ct. 971 (1992), and specifically targets the discriminatory use of
zoning laws and restrictive covenants. See H.R. Rep. No. 711, 2d
Cong., 22 (1988) ("Act is intended to prohibit the application of special requirements through land use regulations [and] restrictive
covenants . . . ."); see also Huntington Branch, NAACP v. Town of
Huntington, 844 F.2d 933
, 935 (2d Cir. 1988); Rhodes v. Palmetto
Pathway Homes, Inc., 400 S.E.2d 484, 486 (S.C. 1991). Finally, Casa
Marie may qualify as a "dwelling." See 42 U.S.C. 3602(b) ("dwell-
ing" defined as "any building, structure, or portion thereof which is
occupied as, or designed or intended for occupancy as, a residence by
one or more families, and any vacant land which is offered for sale or
lease for the construction or location thereon of any such building, structure, or portion thereof"); id. 3602(c) ("family" may mean a
"single individual"); United States v. Columbus Country Club, 915 F.2d 877
, 881 (3d Cir. 1990) (defining FHA "residence" as "'a temporary or
permanent dwelling place, abode or habitation to which one intends to
return as distinguished from the place of temporary sojourn or tran- sient visit'") (citation omitted), cert. denied, 111 S. Ct. 2797
(1991); but cf. 42 U.S.C. 3607(b)(1) (providing that "[n]othing in
this title limits the applicability of any reasonable local, State, or
Federal restrictions regarding the maximum number of occupants permit-
ted to occupy a dwelling"); Elliott v. City of Athens, Georgia, 1992
U.S. App. LEXIS (11th Cir. May 19, 1992).
[End Page 10]
On October 9, 1990, the Superior Court issued a civil
contempt decree in the neighbors' enforcement proceedings, ordering
the arrest and imprisonment of Casa Marie's owners in the event they
failed to comply with its final judgment by November 5, 1990.
On October 23, a different Superior Court judge allegedly
expressed ("off the record") reluctance to address intervenors'
belated initiatives to stave off the contempt proceedings against Casa
Marie for refusing to comply with the Superior Court's final judgment
mandating closure. Nevertheless, no order was entered disposing of the
motion to intervene or the newly filed Superior Court lawsuit.
D. The Federal District Court Action.
Three days later, on October 26, a complaint was filed in
the federal district court by Casa Marie, its owners, and nine other
residents (hereinafter "nonintervenors"). The complaint alleged that
the neighbors and the Superior Court had acted in concert to enforce
the zoning ordinances and the JDA restrictive covenants in a dis-
criminatory manner in violation of the Equal Protection Clause of
the United States Constitution, and Title VIII in order to deprive
the elderly handicapped residents of their right to live in an inte-
grated community. The complaint requested injunctive relief, compen-
satory and punitive damages, and attorney fees.
The district court allowed Legal Services and the five
would-be Superior Court intervenors to intervene in the federal court
action. After a four-day hearing, the district court determined that
[End Page 11]
the neighbors had violated section 1983 and FHA sections 3604(f) and
3617 by resorting to the courts of the Commonwealth to enforce the
relevant zoning ordinances and restrictive covenants as a means of
effecting a discriminatory eviction of the elderly handicapped Casa
Marie residents from the neighborhood. See Casa Marie v. Superior
Court of Puerto Rico for District of Arecibo, 752 F. Supp. 1152
69 (D.P.R. 1990). The district court permanently enjoined the neigh-
bors from executing their Superior Court judgment and the Superior
Court contempt decree. The neighbors and the Superior Court appealed.
The neighbors advance three contentions on appeal: first,
the district court improperly rejected their affirmative defenses
based on res judicata, collateral estoppel and the statute of limita-
tions; second, appellees failed to sustain their burden of proof on
the section 1983 and Title VIII claims; and third, under the Anti-
Injunction Act and the Younger abstention doctrine, the district court
improperly enjoined the pending Superior Court enforcement and con-
tempt proceedings. We need not confront the entire panoply of appel-
lants' arguments, however, as we conclude that (1) appellees' section
1983 claims should have been dismissed, and (2) their Title VIII
claims should not have been entertained by the district court since
the pending Superior Court proceedings would afford plaintiffs an
[End Page 12]
[End Page 13]
A. The Section 1983 Claims.
The neighbors contend on appeal that the residents failed to
establish an essential element of their section 1983 claims; namely
that the neighbors acted "under color of state law" by resorting to
the Commonwealth courts to enforce the restrictive covenants against
Casa Marie. Relying on Shelley v. Kraemer, 334 U.S. 1
district court concluded that the neighbors' resort to the Common-
wealth judicial system to enforce the JDA restrictive covenants in a
discriminatory manner met the "state action" requirement under section
1983. Casa Marie, 752 F. Supp. at 1166.
There are two components to the "state action" requirement:
First, the deprivation must be caused by the exer-
cise of some right or privilege created by the
State or by a rule of conduct imposed by the State
or by a person for whom the State is responsible .
. . . Second, the party charged with the depriva-
tion must be a person who may fairly be said to be
a state actor. This may be because he is a state
official, because he has acted together with or
has obtained significant aid from state officials,
or because his conduct is otherwise chargeable to
Lugar v. Edmondson Oil Co., 457 U.S. 922
, 937 (1982); United States v.
Price, 383 U.S. 787
, 794 (1966) ("Private persons, jointly engaged
with state officials in the prohibited action, are acting 'under
color' of law for purposes of [section 1983]. To act 'under color' of
law does not require that the accused be an officer of the State. It
is enough that he is a willful participant in joint activity with the
State or its agents."). It is obvious, nonetheless, that something
[End Page 14]
more than mere resort to a state court is required to transform the
moving party into "a co-conspirator or a joint actor with the judge."
Dennis v. Sparks, 449 U.S. 24
, 28 (1980); see also Lugar, 457 U.S. at
937; McDougald v. Jenson, 786 F.2d 1465
, 1488-89 (11th Cir.), cert.
denied, 479 U.S. 860
(1986). Appellees advance two grounds for
finding the requisite "state action" in the present case.7
1. Corruption, Conspiracy, Usurpation, or Collusion.
An actual conspiracy between a state court and a party
attempting a plainly prohibited act would constitute "state action."
Cf. Adickes v. S.H. Kress & Co., 398 U.S. 144
, 150-52 (1970). The
residents contend that the Superior Court judge improperly abandoned
his judicial role by permitting the neighbors to draft the final
judgment against Casa Marie, contrary to the normal practice in
Commonwealth courts. The neighbors counter that they merely tran-
scribed the court's ore tenus ruling at its request. As the district
court made no findings of fact on the residents' conspiracy allega-
tion, and no uncontroverted record evidence supports it, we decline to
credit their conclusory allegation as a sufficient basis for finding
"state action" in these circumstances. See, e.g., Schucker v. Rock-
7The "state action" requirement may be met where (1) a sufficient
financial or regulatory nexus exists between the private party and the state entity; (2) the private party has been delegated authority to
conduct a public function traditionally within the exclusive preroga-
tive of the State; or (3) the private party and the state entity share
a symbiotic, interdependent relationship. See Rodriguez-Garcia v.
Davila, 904 F.2d 90
, 96-99 (1st Cir. 1990). These grounds are neither
suggested nor established in the present record.
[End Page 15]
wood, 846 F.2d 1202
, 1205 (9th Cir.) (conclusory allegations of
conspiracy between court and litigants insufficient to establish
"state action"), cert. denied, 488 U.S. 995
2. Neutrality and the Use of Courts
to Enforce Restrictive Covenants.
The residents argue, in the alternative, that Shelley v.
Kraemer, 334 U.S. 1
(1948), supports the district court's "state
action" determination. In Shelley, the Supreme Court found "state
action" where private parties resorted to the state courts to enforce
a facially discriminatory restrictive covenant which provided, inter
alia, that "no part of said property . . . shall be, for said term of
Fifty-years, occupied by any person not of the Caucasian race, it
being intended hereby to restrict the use of said property . . .
against the occupancy as owners or tenants of any portion of said
property for resident or another purpose by people of the Negro or
Mongolian Race." Id. at 4. The residents insist that Shelley like-
wise encompasses judicial action to enforce a facially neutral
covenant in a discriminatory manner.
Two decades ago, this court propounded a clear limiting
principle for applying the "state action" standard enunciated in
Shelley. See Lavoie v. Bigwood, 457 F.2d 7
, 11-12 (1st Cir. 1972).
Distinguishing Shelley from Griffin v. Maryland, 378 U.S. 130
Judge Coffin aptly noted:
In [Griffin,] a deputy sheriff had ordered certain
black patrons to leave a privately-owned amusement
[End Page 16]
park, had arrested them when they refused to do
so, and had brought a prosecution for criminal
trespass. The Court recounted Maryland's argument
may . . . constitutionally enforce an owner's
desire to exclude particular persons from his
premises even if the owner's desire is in
turn motivated by a discriminatory purpose.
The State, it is said, is not really enforc-
ing a policy of segregation since the owner's
ultimate purpose is immaterial to the State.
. . .
The Court responded that such were not the
facts of the case before it, in that "The presi-
dent of the corporation which owned and managed
the park testified that he had instructed [the
deputy sheriff] to enforce the park's policy of
racial segregation." A state, then, must be more
strictly neutral than to permit any of its offi-
cers to identify the subjects of the discrimina-
tion in the first instance. Although it was not
cited in Griffin, we take Shelley to be an earlier
application of the same principle. To enforce the
covenant and thereby disrupt a transaction between
a willing seller and a willing buyer, the state
court had necessarily to take evidence that the
prospective buyer was black and to take notice
that the clause being enforced was a racially
But while, on the facts of Shelley and Grif-
fin, the Court had no occasion to announce a nar-
rower theory indicating when a state police offi-
cer or court is "neutral" for the purposes of the
Fourteenth Amendment, we think that, apart from
cases involving racial discrimination, Maryland's
argument suggests a workable theory. That is, a
state may at the behest of private persons apply
sanctions pursuant to general rules of law which
have discriminatory as well as non-discriminatory
application if it does not accept the responsibil-
ity of employing a discriminatory classification.
Such responsibility would exist when, in resorting
to a state sanction, a private party must neces-
sarily make the state privy to his discriminatory
purpose. Similarly, in such a case as this, the
state would retain a neutral posture unless it was
[End Page 17]
necessarily apprised of the landlord's purpose to
violate rights of free speech and association.
While not entirely satisfactory, this approach at
least recognizes conscious state involvement with-
out insisting upon an unattainable purity.
Lavoie, 457 F.2d at 11-12 (emphasis added) (citations omitted).
The residents have not established "state action" under the
Lavoie "neutrality" principle. The zoning ordinances and the restric-
tive covenants are facially neutral, and presumptively valid under
Puerto Rico law. Furthermore, the Casa Marie residents were not
parties to the Superior Court action prior to the entry of the final
judgment. Thus, it cannot be determined on any evidentiary basis that
the Superior Court was either apprised of any discriminatory animus on
the part of the neighbors, or asked to consider any discriminatory
effect that the belatedly alleged selective enforcement of the zoning
ordinances and restrictive covenants might occasion. Without indulg-
ing conjecture, therefore, it cannot be concluded that the Superior
Court must necessarily have been made privy to any allegedly discrimi-
natory design on the part of the neighbors. See id. at 12. Absent
"state action," the district court should have dismissed the section
1983 claims as a basis for injunctive relief, and the Superior Court
as a party-defendant.
[End Page 18]
B. The Fair Housing Act Claims.
1. Casa Marie and the Intervenors.
Unlike the nonintervenors, these federal plaintiffs attempt-
ed to litigate their federal claims in the district court, not-
withstanding their continuing involvement in two pending Superior
Court proceedings. In these circumstances, the district court should
have abstained in deference to the proceedings pending in the Superior
a. The Anti-Injunction Act.
The Anti-Injunction Act provides that "[a] court of the
United States may not grant an injunction to stay proceedings in a
State court except as expressly authorized by Act of Congress, or
where necessary in aid of its jurisdiction, or to protect or effectu-
ate its judgments." 28 U.S.C. 2283 (1990) (emphasis added).
Appellants challenge the district court ruling that Title VIII is an
"express" exception within the meaning of the Anti-Injunction Act.
See Casa Marie, 752 F. Supp. at 1169-71. Asserting that neither the
language of Title VIII, nor its legislative history, expressly autho-
rizes a federal court to enjoin a state court proceeding, appellants
argue that the Anti-Injunction Act constitutes an "absolute prohibi-
tion" on federal injunctive relief. See, e.g., Atlantic Coast Line R.
Co. v. Brotherhood of Locomotive Eng'rs, 398 U.S. 281
, 297 (1970)
("Any doubts as to the propriety of a federal injunction . . . should
[End Page 19]
be resolved in favor of permitting the state courts to proceed . . .
.").8 We agree.
The Anti-Injunction Act is "an historical mechanism (Act of
March 2, 1793, 1 Stat. 334, 335) for achieving harmony in one phase of
our complicated federalism by avoiding needless friction between two
systems of courts having potential jurisdiction over the same subject-
matter." Hale v. Bimco Trading, Inc., 306 U.S. 375
, 378 (1939). The
three exceptions enumerated in the Act must be narrowly construed.
See Mitchum v. Foster, 407 U.S. 225
, 228-29 (1972); Atlantic Coast
Line, 398 U.S. at 298. While it is beyond dispute that the residents'
section 1983 claims come within an "express" exception to section
2283, see Mitchum, 407 U.S. at 240-41 (legislative history of section
1983 demonstrates obvious congressional distrust of state courts,
which were often "in league with those who were bent upon abrogation
of federally protected rights"), we are unable to discern any statu-
tory language or legislative history which indicates that Congress
expressly excepted Title VIII claims from the operation of the Anti-
8The Anti-Injunction Act bars federal court interference, whether by
direct or indirect methods, in the parties' "'utilization of the
results of a completed state proceeding.'" Gloucester Marine Rys.
Corp. v. Charles Parisi, Inc., 848 F.2d 12
, 15 (1st Cir. 1988) (quot-
ing Atlantic Coast Line, 398 U.S. at 287). Unless it appears that
Title VIII constitutes an express authorization by Congress for
overriding the Anti-Injunction Act, the district court could not avoid
the needless federal-state court "friction" at the root of the Anti-
Injunction Act's prohibition simply by precluding enforcement of the
Superior Court judgment by enjoining the neighbors from executing
their judgment. Id.
[End Page 20]
In Mitchum v. Foster, 407 U.S. 225 (1972), the Supreme Court
prescribed a two-part analysis for determining whether a federal
statute comes within the Anti-Injunction Act's "expressly authorized"
exception: (1) the statute "must have created a specific and uniquely
federal right or remedy, enforceable in a federal court of equity,"
and (2) the federal right or remedy must be such that it can be "given
its intended scope only by the stay of a state court proceeding." Id.
at 237-38 (emphasis added). We need only consider the second prong of
the Mitchum test, but cf. infra note 16, which would seem to require
some indication that Congress suspected that state courts, as a
routine practice, would not vindicate Title VIII rights. See, e.g.,
Zajac v. Federal Land Bank, 909 F.2d 1181
, 1195 (8th Cir. 1990)
(Agricultural Credit Act constitutes express exception, as it is aimed
at eradicating "past abuses of state court foreclosure proceedings.").
Congress contemplated concurrent state-federal court juris-
diction over Title VIII claims. See 42 U.S.C. 3613(a) (1)(A); cf.
General Motors Corp. v. Buha, 623 F.2d 455
, 459 (6th Cir. 1980) (ERISA
is an "express" exception because of its preemption and exclusive
federal jurisdiction provisions); Dilworth v. Riner, 343 F.2d 226
230-32 (5th Cir. 1965) (Title II of Civil Rights Act of 1964 consti-
tutes "express" exception, as it vests exclusive jurisdiction in
federal courts); Walling v. Black Diamond Coal Mining Co., 59 F. Supp. 348
, 350 (D. Ky. 1943) (Fair Labor Standards Act constitutes "express"
exception; although jurisdiction is concurrent, injunctive relief is
available only in federal court). But see Total Plan Servs., Inc. v.
[End Page 21]
Texas Retailers' Ass'n, 925 F.2d 142
, 145 (5th Cir. 1991) (ERISA not
"express" exception). Without more, the vesting of concurrent juris-
diction would seem to imply a vote of confidence in the integrity and
competence of state courts to adjudicate Title VIII claims. Signifi-
cantly, unlike the situation in Mitchum, appellees cite no legislative
history intimating that congressional mistrust of state courts figured
however slightly in the enactment of Title VIII.
Appellees instead argue that Congress implicitly demon-
strated mistrust of state and local government in general by enabling
private litigants to sue for federal injunctive relief against munici-
palities which enact or enforce zoning ordinances in a discriminatory
fashion. Their argument distends the Act's restrictive language
("expressly authorized by Act of Congress") to absurd limits. If
Mitchum's second prong were to be considered satisfied whenever
Congress enacted a statute authorizing injunctive relief, or by the
mere fact that a local government might be made a defendant in a
particular case, the rule requiring narrow construction of the Act's
exceptions would be rendered largely meaningless, and with it the
general presumption that state courts are competent to protect federal
rights. See Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623
, 636 (1977)
(listing twenty-six federal statutes authorizing injunctive relief,
and noting that such a blanket test would "eviscerate" the Anti-
Injunction Act as a meaningful restraint on federal courts). Accord-
ingly, we conclude that the Anti-Injunction Act barred federal injunc-
tive relief in favor of Casa Marie and the intervenors.
[End Page 22]
b. Younger Abstention.
Even assuming that Title VIII were to be considered an
express exception to the Anti-Injunction Act, appellants argue that
the district court should have abstained, in the interests of comity
and federalism, from interfering with pending state court proceedings
which implicate such vital state interests, see Younger v. Harris, 401 U.S. 37
(1971): namely, the Commonwealth's important stake in pro-
tecting the integrity of the contempt power as the ultimate means of
ensuring compliance with the final judgments of its courts, see
Juidice v. Vail, 430 U.S. 327
(1977), and of "vindicat[ing] [the
State's interest in] the regular operation of its judicial system,"
id. at 335. Again, we agree.
Proper respect for principles of federalism and comity
requires that federal courts, "anxious though [they] may be to vindi-
cate and protect federal rights and federal interests, always en-
deavor to do so in ways that will not unduly interfere with the
legitimate activities of the States." Younger, 401 U.S. at 44.
Except in the most extraordinary cases,9 a federal court must presume
9Extraordinary circumstances may be found, for example, where the state statute or rule under which the federal plaintiff is prosecuted
or sued in state court is "flagrantly and patently violative of
express constitutional prohibitions in every clause," or where the
federal plaintiff demonstrates "'bad faith [prosecution], harassment
or any other unusual circumstances that would call for equitable
relief.'" Malachowski v. City of Keene, 787 F.2d 704
, 708 (1st Cir.),
cert. denied, 479 U.S. 828
(1986); Landrigan v. City of Warwick, 628 F.2d 736
, 743 (1st Cir. 1980). As we have noted, appellees presented
no evidence that the Superior Court acted in bad faith, or that the
zoning ordinances or restrictive covenants were patently discriminato-
[End Page 23]
that state courts, consistent with the imperatives of the Supremacy
Clause, see U.S. Const. art VI, are fully competent to adjudicate
federal constitutional and statutory claims properly presented by the
parties. See Middlesex County Ethics Comm. v. Garden State Bar Ass'n,
457 U.S. 423
, 431 (1982); Bettencourt v. Board of Registration in
Medicine, 904 F.2d 772
, 776 (1st Cir. 1990).10 To obtain federal
injunctive relief impeding a pending state court proceeding, there-
fore, the federal plaintiff must surpass the normal showing of irrepa-
rable injury, and posit the existence of an irremediable harm both
"great and immediate." Younger, 401 U.S. at 46. Even if it were
determined that plaintiffs successfully surmounted this heightened
standard of proof, however, it would be to no avail; the district
court failed to consider two paramount, countervailing factors: (1)
the importance of the State interest at stake in the pending Superior
Court proceedings, see, e.g., Pennzoil Co. v. Texaco, Inc., 481 U.S. 1
, 5, 13 (1987) (abstention warranted where Texas' lien and bond
provisions, permitting writs of execution to issue prior to exhaustion
of state appeals, constitute an important process "by which the State
compels compliance with the judgments of its courts"); Trainor v.
Hernandez, 431 U.S. 434
, 444 (1977) (abstention warranted where
ry. See Section II.A.
10As a normal consequence, Younger abstention forces the parties to a
state court proceeding to litigate federal claims and defenses through
the state court system, with discretionary appellate review by the
United States Supreme Court as a last resort. See Juidice, 430 U.S.
at 337, n.14; see also 28 U.S.C. 1257(2).
[End Page 24]
pending state court civil action brought by State of Illinois to
attach fraudulently obtained public assistance payments implicates
important state interest in "safeguarding the fiscal integrity of
[its] programs"); Huffman v. Pursue, Ltd., 420 U.S. 592
, 604 (1975)
(abstention warranted where State's prosecution of civil nuisance suit
is analogous to its interest in criminal prosecution); Juidice, 430
U.S. at 335 (abstention warranted, as "[t]he contempt power lies at
the core of the administration of a State's judicial system"); Youn-
ger, 401 U.S. at 46 (abstention warranted in deference to pending
state criminal prosecution), and (2) the availability of an adequate
"opportunity" to raise the federal claims in the State court. See
Bettencourt, 904 F.2d at 777; Gabrilowitz v. Newman, 582 F.2d 100
(1st Cir. 1978).
Given Casa Marie's undisputed disregard of the Superior
Court's final judgment, and the unquestioned importance of the Common-
wealth's interest in enforcing the judgments of its courts through
civil contempt proceedings, see Juidice, 430 U.S. at 335; see also
Pennzoil, 481 U.S. at 13 (State has important interest in preventing
its judgments from being "rendered nugatory"); cf. Lebbos v. Judges of
Superior Court, 883 F.2d 810
, 814 (9th Cir. 1989), we hold that the
Younger doctrine barred Casa Marie and the intervenors from litigating
their Title VIII claims in federal district court. As a party to the
enforcement-contempt proceedings yet pending in the Superior Court,
Casa Marie not only had ample opportunity, but an obligation, to raise
its federal counterclaims in the Superior Court. See P.R. Laws tit.
[End Page 25]
32, App. III, R. 11.1 (a counterclaim is considered compulsory "if it
arises out of the transaction or occurrence that is the subject matter
of the opposing party's claim").
The intervenors belatedly sought to participate in the same
enforcement-contempt proceedings which remain pending in the Superior
Court, then instituted the Superior Court lawsuit whose sole purpose
is to restrain enforcement of the final Superior Court judgment and
contempt decree against the Casa Marie owners. Apart from their
unsubstantiated and conclusory allegation that a Superior Court judge
stated "off the record" that she might be disinclined to restrain
enforcement of a final judgment entered by a Superior Court colleague,
the intervenors neither alleged nor presented any evidence (e.g., an
order denying their motion to intervene or dismissing their complaint)
that they were precluded from pursuing either pending Superior Court
action. Instead, so far as the present record indicates, the inter-
venors simply suspended their pursuit of the Title VIII claims in the
pending Superior Court proceedings in favor of a fresh start in the
federal court action aimed at enjoining enforcement of the final
Superior Court judgment against Casa Marie.
We conclude that extraordinary injunctive relief indirectly
suspending enforcement of the Commonwealth's judicial processes in the
ongoing Superior Court proceedings, with its attendant depreciation of
the fundamental principles underlying federalism and comity, was
unwarranted. See Moore v. Sims, 442 U.S. 415
, 426 (1979) (abstention
appropriate "unless state law clearly bars the interposition of
[End Page 26]
[federal] claims") (emphasis added). After initiating a state court
proceeding, a federal plaintiff cannot escape Younger's reach merely
by abandoning the pending state court action or foregoing available
state appellate remedies, New Orleans Pub. Serv., Inc. v. Council of
New Orleans, 491 U.S. 350
, 369 (1989); the "opportunity" to raise
federal claims in a pending state court proceeding is enough to
implicate Younger abstention. Juidice, 430 U.S. at 337. Thus,
Younger abstention precluded the district court order indirectly
enjoining the pending Superior Court contempt proceedings against Casa
Marie and the intervenors.
2. The Nonintervenors.
The prudential considerations underlying the Anti-Injunction
Act and Younger abstention require further searching inquiry in
reference to the federal claims presented by the nonintervenors. The
majority of cases in which federal courts abstain from enjoining
pending state court proceedings involve federal plaintiffs who are
actual parties to the state court proceedings. The nonintervenors
were not involved in either pending Superior Court proceeding. As we
have noted, however, see supra Section II.B.1.a., the state and
federal courts possess concurrent jurisdiction under Title VIII, see
42 U.S.C. 3613(a) (1)(A), offering Title VIII plaintiffs a choice of
forum. Ultimately, therefore, the essential question becomes whether
the nonintervenors waived or acquiesced in a waiver of the right to
present their Title VIII claims in the federal forum.
[End Page 27]
a. The Anti-Injunction Act.
Under the "strangers to the state court proceedings" ex-
clusion,11 the Anti-Injunction Act is inoperative if the party re-
questing injunctive relief in the federal court was neither a party,
nor in privity with a party, to the state court proceeding sought to
be enjoined. See County of Imperial v. Munoz, 449 U.S. 54
(1980); Hale v. Bimco Trading, Inc., 306 U.S. 375
, 378 (1939); Chase
Nat'l Bank v. City of Norwalk, 291 U.S. 431
, 440 (1934); Garcia v.
Bauza-Salas, 862 F.2d 905
, 909 (1st Cir. 1988). The "strangers"
exclusion presumably embraces federal plaintiffs who deliberately
bypass an available opportunity to intercede in pending state court
proceedings, since "[t]he law does not impose upon any person abso-
lutely entitled to a hearing the burden of voluntary intervention in a
suit to which he is a stranger." Chase Nat'l Bank, 291 U.S. at
441.12 Neither Casa Marie nor the intervenors fit within the
11The district court did not mention the "strangers" exclusion as a
basis for its decision. Nevertheless, its conclusion that res judica-
ta did not bar their claims necessarily subsumed a determination that
the nonintervenors were "strangers."
12Generally speaking, intervention rules are permissive, while joinder
rules are mandatory. Thus, in order to preclude future relitigation
of claims arising out of the same transaction, a state court plaintiff
would need to join all those whom he intends to bind by the judgment
who are not in privity with the named defendants for res judicata
purposes. See Professional Hockey Club Cent. Sports Club of the Army
v. Detroit Red Wings, 787 F. Supp. 706
, 717 (E.D. Mich. 1992) (federal
plaintiff's tactical decision not to waive personal jurisdiction in state court should not preclude its employment of "strangers" exclu- sion in subsequent federal action); cf. Martin v. Wilks, 490 U.S. 755
761-65 (1989); see generally Charles A. Wright, Arthur Miller, &
Edward H. Cooper, Federal Practice & Procedure: Jurisdiction 4452,
at 439-453 (1981).
[End Page 28]
"strangers" exclusion, of course, but neither would their mere joinder
with nonintervenors as federal plaintiffs necessarily deprive the
nonintervenors of the exclusion. See generally Charles A. Wright,
Arthur Miller, & Edward H. Cooper, Federal Practice & Procedure:
Jurisdiction 4449, at 416 (1981) [hereinafter Federal Practice]
("The bare fact that one plaintiff is joined with others who were
parties and who can properly be bound by a prior proceeding does not
justify preclusion of the nonparty plaintiff as well.") (citing Duncan
v. Town of Blackburg, 364 F. Supp. 643, 645 (W.D. Va. 1973)). The
nonintervenors' status as "strangers" to these proceedings accordingly
depends on whether they are bound, under the principles of res judica-
ta or collateral estoppel, by the decisions in either pending Superior
Court proceeding. See, e.g., United States Steel Corp. Plan for
Employee Ins. Benefits v. Musisko, 885 F.2d 1170
, 1179 (3d Cir. 1989),
cert. denied, 493 U.S. 1074
(1990); Pelfresne v. Village of Williams
Bay, 865 F.2d 877
, 881 (7th Cir. 1989).
Although it is highly questionable whether either interve-
nors or nonintervenors would be "bound" under res judicata principles
by any judgment or contempt decree against the Casa Marie owners,13
13The only obvious connection between Casa Marie and its residents
the "landlord-tenant" relationship might not generate a sufficient
identity of interest, or privity, between the parties. As a general
rule, holders of concurrent interests in property, unlike successors
in interest, are not considered in privity for res judicata purposes.
Compare In re Corporacion de Servicios Medico-Hospitalarios, 98 B.R. 639
(Bankr. 1989) (nonparty in privity where nonparty is a successor
in interest or assignee of party to first action) with Federal Prac-
tice 4461, at 542, 543 n.3 (and cases cited therein).
[End Page 29]
the common interests asserted by the intervenors and nonintervenors
are virtually identical in all material respects. While we need not
rest our decision solely on this ground, see infra Section II.B.2.b.,
we are convinced that the Commonwealth courts would treat the interve-
nors, by reason of their initiation of the independent Superior Court
action to restrain enforcement of the contempt decree, as the "virtual
representatives" of the nonintervenors' interests for res judicata
purposes. See, e.g., In re Medomak Canning, 922 F.2d 895
, 901 (1st
Cir. 1990); see also 28 U.S.C. 1738 (federal court must accord state
court judgment the same preclusive effect it would be given by the
courts of that State); Migra v. Warren City Sch. Dist. Bd. of Educ.,
465 U.S. 75
, 81 (1984) (same); Rojas-Hernandez v. Puerto Rico Elec.
Power Auth., 925 F.2d 492
, 495 (1st Cir. 1991) (same).14
We recognize, of course, that "it is not enough that [the
federal plaintiffs'] concerns . . . mirrored those which likely
impelled [the earlier plaintiffs] to start suit in superior court,"
14Puerto Rico's res judicata statute, P.R. Laws Ann. tit. 31, 3343,
provides: "[i]n order that the presumption of the res judicata may be
valid in another suit, it is necessary that, between the case decided
. . . and that in which the same is invoked, there be the most perfect
identity between the things, causes, and persons of the litigants, and
their capacity as such." (Emphasis added.); see also Future Dev.
Corp. v. Centex Corp., 761 F.2d 33
, 43 (1st Cir.), cert. denied, 474 U.S. 850
(1985). "Perfect identity between persons," however, is not
as absolute a term as may at first appear. Section 3343 further
provides that "there is identity of persons whenever the litigants of
the second suit are legal representatives of those who litigated in
the preceding suit, or when they are jointly bound with them or by the
relations established by the indivisibility of prestations among those
having a right to demand them, or the obligation to satisfy the same."
[End Page 30]
Montalvo-Huertas v. Rivera-Cruz, 885 F.2d 971
, 975-76 (1st Cir. 1989)
(citing A & P Gen. Contractors, Inc. v. Asociacion Cana, Inc., 110
P.R. Dec. 753 (1981)), and that "virtual representation does not exist
between two plaintiffs merely because they raise similar [factually-
related] claims," Terrell v. De Conna, 877 F.2d 1267
, 1271 (5th Cir.
1989); see also Diaz v. Naiveras, 118 P.R. Dec. 297 (1987) (privity
not established by familial relationship). Yet nonintervenors'
federal complaint is distinctive in two significant respects one
substantive and one procedural. The nonintervenors' complaint hinges
entirely on their proving that the neighbors harbored the alleged
discriminatory intent to exclude the residents as a group from the JDA
housing development; in no sense does it focus on any particular
resident as an individual target of the alleged discrimination. Thus,
whatever circumstantial differences may exist among individual Casa
Marie residents are entirely irrelevant to the merits of their Title
VIII claims. Cf. Wilder v. Thomas, 854 F.2d 605
, 620 (2d Cir. 1988)
(holding that two nonparties were bound where all federal plaintiffs
alleged imminent injury from lack of environmental impact study on
construction project, and the issues raised in the state and federal
proceedings "do not vary according to individual plaintiffs"), cert.
denied, 489 U.S. 1053
(1989). Each Casa Marie resident, intervenor
and nonintervenor alike, at all times had, and still has, ample
incentive to litigate vigorously against the threatened injury to the
federally protected interests common to all residents, namely the
closure of Casa Marie.
[End Page 31]
No less importantly, the "virtual representation" inquiry in
the present case arises in the context of a post-judgment proceed-
ing.15 Given the vital "finality" interests engendered by their
valid judgments, we doubt very seriously that the Commonwealth courts
would sanction successive attempts by individual Casa Marie residents
to restrain the enforcement of the final Superior Court judgment an
unavoidable result, nonetheless, should individual residents be
allowed successively to assert lack of privity in these circumstances.
See, e.g., Petit v. City of Chicago, 766 F. Supp. 607
, 611-12 (N.D.
Ill. 1991) (res judicata rules of "representation" should discourage
tactical maneuvering by parties); see generally Restatement (Second)
of Judgments 62 (1981) (nonparty may be barred from relitigation of
claim if, by his conduct, he induced justifiable expectation that he
would "govern his conduct by the judgment in the original action").
We are particularly reluctant to extend the protection of
the "strangers" exclusion in the present action, as it has been
utilized so seldom by the Supreme Court that its continued vitality
has even been questioned. See, e.g., County of Imperial, 449 U.S. at
60-61 (Powell, J., concurring) ("I record my willingness to reconsider
Hale. It has rarely been cited and as the Court reads it today
it creates an exception to the coverage of the Anti-Injunction Act
15As with most general rules, an exception has been recognized to the
no-duty-to-intervene rule in certain "specialized proceedings, such as
bankruptcy, reorganization, or probate proceedings, where a party may
be barred from future litigation by his mere failure to intervene."
Griffith v. Burns, 570 F.2d 1065
, 1071 n.7 (1st Cir. 1978).
[End Page 32]
that I think is contrary to the policy of that Act."). Moreover,
withholding the "strangers" exclusion under the Anti-Injunction Act
has less drastic repercussions for the federal plaintiffs than would a
formal res judicata determination. Federal court abstention would not
divest the federal plaintiffs of their right to litigate their Title
VIII claims, but merely restrict them to the available Commonwealth
forum. More importantly, of course, where the case for "virtual
representation" is so compelling, and the effects of the "strangers"
exclusion so obtrusive, the exercise of a federal court's narrowly
confined power to enjoin a pending state court proceeding must be
considered at its most suspect extension.16
b. Younger Abstention.
Even assuming the nonintervenors were somehow to escape the
strictures of the Anti-Injunction Act, we believe Younger abstention
would prevent federal relief enjoining enforcement of the Superior
Court contempt decree. In an apparent corollary to the "strangers"
exclusion, the Supreme Court has intimated that Younger abstention
might not apply in some instances to a federal plaintiff who was not a
16A federal court may abstain where a question relating to the proper
interpretation of state law might resolve a pivotal issue in the
federal case, obviating the need to resolve the federal claims.
Pennzoil, 481 U.S. at 11-12; Duty Free Shop, Inc. v. Administracion de
Terrenos, 889 F.2d 1181
, 1182 (1st Cir. 1989). Intervenors attempted
to intervene in the contempt proceeding based on a claim asserted
under the Puerto Rico Bill of Rights for Aged Persons. If the nonin-
tervenors were to be considered adequately "represented" by the
intervenors, the Superior Court ultimately might rest its decision solely on the state-law claim.
[End Page 33]
party, or not "closely related" to a party, in the pending state court
proceeding. See Doran v. Salem Inn, Inc., 422 U.S. 922
(1975). "While 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,
this is not such a case." Id. (emphasis added); see also Trainor, 431
U.S. at 440 (doctrine invoked only "when litigation between the same
parties and raising the same issues is . . . pending in a state
court") (emphasis added); Steffel v. Thompson, 415 U.S. 452
(1974); Roe v. Wade, 410 U.S. 113
, 125-27 (1973); Sullivan v. City of
Pittsburgh, 811 F.2d 171
, 177-78 (3d Cir.) (federal plaintiffs not
parties to ongoing zoning proceeding, and not sufficiently "related"
to parties therein), cert. denied, 484 U.S. 849
(1987); Family Div.
Trial Lawyers v. Moultrie, 725 F.2d 695
, 702-03 (D.C. Cir. 1984)
(lawyers' federal "equal protection" and "takings" claims cognizable
in federal court where lawyers not parties to state "neglect" proceed-
ings); Robinson v. Stovall, 646 F.2d 1087
, 1090-93 (5th Cir. 1981)
(federal plaintiff with section 1983 claim never arrested or tried for
violation of challenged statute). The distinction Doran draws between
the terms "legally distinct" and "closely related" strongly suggests
that Younger's "close relationship" exclusion is far more narrow than
the "strangers" exclusion under the Anti-Injunction Act, and may
require federal plaintiffs who are not in strict privity to return to
state court to litigate their federal claims where it is evident that
their interests are sufficiently "intertwined" with the interests of
[End Page 34]
parties to the state court proceedings. Hicks v. Miranda, 422 U.S. 332
, 348-49 (1975) (interests of theatre and its employees in chal-
lenging obscenity statute held to be closely related).17
We do not think the narrow exclusion described in Doran pre-
cludes Younger abstention in relation to these nonintervenors' Title
VIII claims. First, Doran and much of its progeny involve state
criminal or administrative proceedings which provide no procedural
mechanism which would enable nonparties to intervene to protect their
interests. See, e.g., New Jersey-Philadelphia Presbytery of Bible
Presbyterian Church v. New Jersey State Bd. of Higher Educ., 654 F.2d 868
, 882 (3d Cir. 1981) (where party is absolutely barred from inter-
vention in state court proceedings, Younger abstention is never war-
ranted).18 Thus, such state criminal and administrative proceedings
would not satisfy an essential element of the Middlesex test, which
requires that the nonparties have a meaningful opportunity to raise
17Evolving Supreme Court abstention jurisprudence suggests that the
principles underlying Younger abstention may ordain more deference to
state court proceedings than the Anti-Injunction Act in some circum- stances. For example, while section 1983 claims come within an
"express" exception to the Anti-Injunction Act, such claims may still
be subject to Younger abstention. See Younger, 401 U.S. at 54.
18For example, Doran involved a federal plaintiff's challenge to a
state statute which was the subject of an ongoing criminal prosecution
against co-plaintiffs. Of course, nondefendants are barred from
intervention in a criminal proceeding. While the federal plaintiff in
Doran did not directly seek to enjoin the state criminal proceeding,
interim federal relief would have had the effect of (1) "interfering"
with the state prosecution and (2) depriving the state court of its
ability to decide the merits of the federal defenses. See New Jersey-
Philadelphia, 654 F.2d at 880 (3d Cir. 1981) (Doran exclusion applies
whether interference with state court proceeding is direct or indi-
[End Page 35]
their federal claims in the pending state court proceeding. Mid-
dlesex, 475 U.S. at 432. In the present case, we have no reason to
doubt that nonintervenors, and intervenors alike, would be entitled
under the Puerto Rico Rules of Civil Procedure to intervene as of
right in the enforcement-contempt proceeding, and the nonintervenors
to join in the intervenors' independent action. See P.R. Laws tit.
32, App. III, R. 21.1 (intervention allowed "when the applicant claims
a right or interest relating to the property or transaction which is
the subject of the action which may as a practical matter be impaired
by the final disposition of the action"); Chase Manhattan Bank v.
Nesglo, Inc., 111 P.R. Dec. 767, 769 (1981) (noting liberality with
which Rule 21 motions should be granted; unlike federal rule, appli-
cants need not prove that their interests are not "adequately repre-
sented" by existing parties, and failed intervention lacks res judica-
Second, unlike the Doran-type setting in which unrelated,
legally distinct parties happen to mount separate but simultaneous
legal challenges to the constitutionality of a state statute, the
present case involves nonintervenor "co-lessees" with a common land-
lord, who took no action until after the Superior Court judgment was
entered, even though they had actual knowledge that a Superior Court
judgment threatened the very injury they now decry as patently collu-
[End Page 36]
sive and "discriminatory."19 Understandably, of course, the noninter-
venors may have hoped that Casa Marie would prevail, obviating the
need to litigate their Title VIII defenses. Even so, once again they
delayed, while the neighbors obtained a contempt decree against Casa
Marie. By delaying until so late in the litigation, intervenors and
nonintervenors withheld defenses the presentation of which may well
have aided the Superior Court in its evaluation of the neighbors'
state-law claims and its determination of a measured remedy for Casa
Marie's zoning law violations. More importantly, the nonintervenors'
delay until after entry of the contempt decree necessarily meant that
the district court, were it to grant the nonintervenors injunctive
relief, effectively would be placed in the apparent position of
actively condoning Casa Marie's contumacious disregard of the Superior
These grave concerns nonetheless do not, in our view,
warrant depriving nonintervenors of the opportunity to assert their
Title VIII claims in the Commonwealth courts. Rather, as a deterrent
to future engenderment of needless federal-state court tensions, we
conclude that nonintervenors should be held to have waived their
19The nonintervenors, not having been joined in the neighbors' Superi-
or Court complaint, probably could have chosen to press their federal
claims in federal court prior to the entry of the judgment and con-
tempt decree, subject only to the less imposing obstacle of Colorado
River abstention. See Colorado River Water Conserv. Dist. v. United
States, 424 U.S. 800
(1976) (to avoid duplicative litigation, federal
court may abstain from exercising concurrent jurisdiction over federal
claims only in "exceptional circumstances"); see also Rivera-Puig v.
Garcia-Rosado, F.2d , (1st Cir. 1992) [No. 92-1239, 92-
1397, slip op. at 21 (1st Cir. Dec. 18, 1992)].
[End Page 37]
belated claims for discretionary federal equitable relief enjoining
the enforcement of the final Superior Court judgment.
Finally, we think it cannot reasonably be contended that
nonintervenors' interests are no longer sufficiently "intertwined"
with those of Casa Marie as to implicate Younger abstention. Cf.
Collins v. County of Kendall, 807 F.2d 95
, 101-02 (7th Cir. 1986)
(plaintiff cannot simultaneously bring a claim which asserts that his
interests are interconnected with other parties, then deny their close
relationship for Younger purposes), cert. denied, 483 U.S. 1005
(1987). "[A] person who is not bound by a judgment under the rules of
res judicata may obtain a determination that the judgment is ineffec-
tive as to him through an action to restrain enforcement of the
judgment . . . when . . . [t]he existence of the judgment jeopardizes
a protectible interest of his; and . . .[t]he character of his inter-
est warrants his being given relief forthwith rather than on a future
occasion." Restatement (Second) of Judgments 76 (1982). But though
a nonjoined third party may rest assured that a final judgment by
which he is not bound will not affect his substantive legal rights, he
may not escape entirely the coincident implications attendant on the
entry of the valid state court judgment, or the interests of the State
in "vindicat[ing] the regular operation of its judicial system," see
Juidice, 430 U.S. at 335.
It is one thing for a stranger to attack a judg-
ment when it is set up against him, another for
him to be allowed to enjoin its enforcement or
otherwise to initiate proceedings to have it de-
[End Page 38]
clared invalid. . . . If the judgment really does
threaten him, the question remains whether there
are competing interests to be considered, particu-
larly the interests of the parties who are conced-
edly bound by the judgment. Giving the applicable
legal relief from the effects of the judgment on
him will not dissolve its legal effects on the
parties to the judgment.
Restatement (Second) of Judgments 76 cmt. c (1982) (emphasis added).
Once a valid judgment becomes final, so as to define the
status quo, its enforcement is not precluded merely because the
interests of those who seek to restrain its enforcement might be
affected. Furthermore, absent unambiguous evidence that the state
court rendered its final judgment in a discriminatory or otherwise
impermissible manner, see supra Section II.A., prudential consider-
ations normally will warrant federal court deference to the state
court's assessment of any competing interests belatedly presented to
the federal court which might warrant relief from the enforcement of
the state court judgment.
We mention a relevant example. Title VIII does not require
a showing that discriminatory intent was the sole factor, but rather a
substantial factor motivating defendants' conduct. See, e.g., United
States v. Birmingham, 727 F.2d 560
, 562 (6th Cir.), cert. denied, 469 U.S. 821
(1984); Smith v. Town of Clarkton, 682 F.2d 1055
, 1065 (4th
Cir. 1982).20 On the other hand, no liability arises under Title
20Four considerations are pertinent to the evaluation of Title VIII
claims under section 3604. First, plaintiff has the threshold burden
to show a discriminatory effect or impact that the housing practice
"actually or predictably results in discrimination as defined under
[End Page 39]
VIII absent a sufficient causal link between the defendants' discrimi-
natory actions and the threatened injury to the plaintiffs. See,
e.g., Gomez v. Chody, 867 F.2d 395
, 401 (7th Cir. 1989) (where apart-
ments would have been closed anyway because unfit for habitation,
alleged discriminatory purpose of landlord in evicting was too attenu-
ated); see also Edwards v. Johnson County Health Dep't., 885 F.2d 1215
, 1221 n.14 (4th Cir. 1989). In the present case, nonintervenors
allege that the neighbors' actions, motivated by a discriminatory
section 3604," Huntington Branch, NAACP v. Town of Huntington, 844
F.2d at 933, 934 (2d Cir. 1988); United States v. City of Black Jack,
508 F.2d 1179
, 1184-85 (8th Cir. 1974), cert. denied, 422 U.S. 1042
(1975), or results in a disproportionate burden on members of a class
protected by Title VIII. Edwards v. Johnson County Health Dep't., 885 F.2d 1215
, 1223 (4th Cir. 1989). Second, although direct proof of the
defendant's discriminatory intent is not essential for purposes of
Title VIII, see, e.g., Village of Bellwood v. Dwivedi, 895 F.2d 1521
1533 (7th Cir. 1990); Huntington Branch, 844 F.2d at 934; United
States v. Starrett City Assocs., 840 F.2d 1096
, 1100 (2d Cir.), cert.
denied, 488 U.S. 946
(1988); Betsey v. Turtle Creek Assocs., 736 F.2d 983
, 986 (4th Cir. 1984); Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032
, 1036 (2d Cir. 1979), plaintiff may bolster the evidence of
discriminatory effect by introducing direct evidence, such as state-
ments made by the defendant, that the defendant acted out of a dis-
criminatory animus. Third, once the plaintiff has established a prima
facie case of discriminatory effect, the burden shifts to the defen-
dant to advance some legitimate and nondiscriminatory reason for his
actions. See, e.g., Asbury v. Brougham, 866 F.2d 1276
, 1279 (10th
Cir. 1989); Huntington Branch, 844 F.2d at 933; Robinson, 610 F.2d at
1039. And fourth, the factfinder must weigh the evidence of discrimi-
natory effect or intent against the proffered justifications for the
defendant's actions. In this balancing process, the court must
consider the type of relief sought by plaintiff. Where plaintiff
seeks a judgment which would require defendant to take affirmative
action to correct a Title VIII violation, plaintiff must make a
greater showing of discriminatory effect. On the other hand, if
plaintiff seeks a judgment merely enjoining defendant from further
interference with the exercise of plaintiff's Title VIII rights, a
lesser showing of discriminatory effect would suffice. See Metropoli-
tan Hous. Dev. Corp. v. Village of Arlington Heights, 558 F.2d 1283
1290 (7th Cir. 1977), cert. denied, 434 U.S. 1025
[End Page 40]
animus against "persons of a handicap," were the cause of Casa Marie's
closure, even though they must also concede that, at the time of the
Superior Court judgment, Casa Marie's noncompliance with the zoning
laws was an additional, antecedent, and efficient cause for the entry
of the adverse judgment against Casa Marie.21 To enforce a zoning
ordinance under P.R. Laws Ann. tit. 23, 71x, 72 (1987), a private
citizen apparently need only show that the defendant has violated the
zoning laws. See supra note 3. In contrast, the district court's
consideration of the federal plaintiffs' request for injunctive relief
immersed the court in speculation as to whether the Superior Court, in
assessing the threat posed by Casa Marie's continued operation,22
21Although the Superior Court noted that Casa Marie would remain in
violation of the JDA restrictive covenants even if A.R.P.E. later
excused Casa Marie's noncompliance with the zoning ordinances, nothing
in its opinion intimates that the zoning violations were not deemed
independent grounds for the closure. Appellees contended at oral
argument that they had cured their zoning violations subsequent to the
entry of the district court's permanent injunction. In our view,
however, the district court impermissibly involved itself in the speculative inquiry whether Casa Marie would (or could) bring itself
into compliance with the zoning ordinances after entry of the Superior
Court judgment. Once again, prudential considerations militated strongly in favor of deferring to the Superior Court as the more
appropriate forum in which to present evidence and consider any
unadjudicated claims for injunctive relief from the enforcement of the
final Superior Court judgment.
22The Superior Court is in the optimal position to adjudge whether
compliance with the zoning ordinances should be "waived." Discrimina-
tion against handicapped persons is specifically defined for purposes
of section 3604(f) as (a) "a refusal to permit, at the expense of the
handicapped person, reasonable modifications of existing premises
occupied or to be occupied by such person if such modifications may be
necessary to afford such person full enjoyment of the premises," and
(2) "a refusal to make reasonable accommodations in rules, policies,
practices, or services, when such accommodations may be necessary to
afford such person equal opportunity to use and enjoy a dwel-
[End Page 41]
would compel closure irrespective of any discriminatory intent on the
part of the neighbors.23
We do not lightly conclude that there was an implied waiver
of nonintervenors' statutory right to assert their Title VIII claims
in a federal forum. Nevertheless, their delay in resorting to the
federal forum until the Superior Court contempt decree had been
entered cannot be countenanced without encouraging the very sort of
egregious intrusion upon state judicial power which Younger abstention
was designed to avert. See supra Section II.B.1.b.
We vacate the permanent injunction restraining the neigh-
bors' enforcement of the Superior Court judgment and their enforcement
of the outstanding contempt decree against Casa Marie. As our absten-
tion ruling rests on the assumption that the residents will be accord-
ling. . . ." 42 U.S.C. 3604(f)(3) (A)-(B) (emphasis added).
Section 3604(f)(9) prescribes a limitation on the required "reasonable
accommodation," providing that "[n]othing in this subsection requires
that a dwelling be made available to an individual whose tenancy would
constitute a direct threat to the health or safety of other individu-
als or whose tenancy would result in substantial physical damage to
the property of others."
23We cannot ignore the possibility that the Superior Court may find
that two substantial causes contributed to Casa Marie's closure. It
might ultimately determine that Casa Marie's noncompliance with the
zoning laws requires closure, but that the neighbors nevertheless are
liable in damages to Casa Marie's residents for resorting to the
zoning laws and the restrictive covenants for discriminatory purposes.
We believe these matters are suitably left to the Commonwealth courts.
[End Page 42]
ed an adequate "opportunity" to participate in the Commonwealth
proceedings, however, we anticipate that the Superior Court, as it has
to date out of respect for the principles of comity and federalism
will defer further enforcement of its judgment and contempt decree,
for such reasonable time as it may allow, to permit the filing and
consideration of the residents' motions to intervene in the enforce-
ment proceeding, or in the alternative, to permit intervenors to
prosecute their independent action.
The district court judgment is vacated. Judgment shall enter
for appellants on appellees' section 1983 claims. Double costs are
awarded against Casa Marie and its owners.
[End Page 43]