Norfolk Southern Railway Co. v. McGraw , 71 F. App'x 967 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NORFOLK SOUTHERN RAILWAY 
COMPANY; CSX TRANSPORTATION,
INCORPORATED; CONSOLIDATED RAIL
CORPORATION; AMERICAN PREMIER
UNDERWRITERS, INCORPORATED,
formerly known as Penn Central
Corporation,
Plaintiffs-Appellants,
v.

CHIEF JUSTICE WARREN R. MCGRAW;
JUSTICE ELLIOTT E. MAYNARD; No. 02-2032
JUSTICE LARRY V. STARCHER; JUSTICE
JOSEPH P. ALBRIGHT; JUSTICE ROBIN
JEAN DAVIS; JUDGE MARTIN J.
GAUGHAN, First Judicial Circuit;
JUDGE A. ANDREW MACQUEEN,
Thirteenth Judicial Circuit,
Defendants-Appellees,
VARIOUS FELA CLIENTS OF JAMES F.
HUMPHREYS AND ASSOCIATES, L.C.,
Movants.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(CA-01-1238)
Argued: May 8, 2003
Decided: August 18, 2003
Before WIDENER, WILLIAMS, and TRAXLER, Circuit Judges.
2 NORFOLK SOUTHERN v. CHIEF JUSTICE MCGRAW
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Carter G. Phillips, SIDLEY, AUSTIN, BROWN &
WOOD, L.L.P., Washington, D.C., for Appellants. John Hampton
Tinney, THE TINNEY LAW FIRM, P.L.L.C., Charleston, West Vir-
ginia, for Appellees. ON BRIEF: Stephen B. Kinnaird, Luisa Caro,
Jay T. Jorgensen, SIDLEY, AUSTIN, BROWN & WOOD, L.L.P.,
Washington, D.C.; Fred Adkins, Luke A. Laffere, HUDDLESTON,
BOLEN, BEATTY, PORTER & COPEN, L.L.P., Huntington, West
Virginia, for Appellants. John H. Tinney, Jr., James K. Tinney, THE
TINNEY LAW FIRM, P.L.L.C., Charleston, West Virginia, for
Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Appellants Norfolk Southern Railway Co., CSX Transportation,
Inc., and Consolidated Rail Corp. (collectively, the Railroads) brought
an action in the United States District Court for the Southern District
of West Virginia, pursuant to 42 U.S.C.A. § 1983 (West Supp. 2003),
requesting a declaratory judgment that the operation of West Virginia
Trial Court Rule 26.01 and its application in pending asbestos litiga-
tion against the Railroads violate the Due Process Clause of the Four-
teenth Amendment of the United States Constitution. The district
court abstained from exercising jurisdiction based on Younger v. Har-
ris, 401 U.S. 37 (1971), because the case involved numerous ongoing
state judicial proceedings, involved important state interests in apply-
ing Rule 26.01, and the Railroads had an adequate opportunity to
NORFOLK SOUTHERN v. CHIEF JUSTICE MCGRAW 3
raise their constitutional challenges in the state courts. For the reasons
that follow, we affirm the district court’s decision to abstain.
I.
Due to the large number of asbestos and other mass tort cases in
West Virginia, the West Virginia Supreme Court of Appeals enacted
West Virginia Trial Court Rule 26.01, entitled "Mass Litigation Panel
and Procedure," allowing, in pertinent part, two or more "personal
injury mass torts" cases "involving common questions of law or fact"
to be consolidated into one case. W. Va. Trial Ct. Rule 26.01 (Michie
2003). Rule 26.01 allows "[a]ny party, judge, or the Administrative
Director of the Courts" to file a motion to consolidate similar cases
and refer them to a Mass Litigation Panel (MLP). MLPs have the
power "[t]o develop and implement case management and trial meth-
odologies for mass litigation and to fairly and expeditiously dispose
of civil litigation which may be referred to it." Id.In June of 2000, two West Virginia trial court judges, Judges Mac-
Queen and Recht, moved to refer thousands of pending asbestos cases
to an MLP.1 The Railroads, who are defendants in several thousand
of these pending cases, opposed the motion. Chief Justice Maynard
granted the referral motion and halted all further proceedings in all
pending asbestos cases. Although the Railroads filed amicus briefs in
a state court challenge filed by another defendant in the consolidated
asbestos cases, the Railroads themselves have never attempted to
challenge Rule 26.01 in state court.
On November 29, 2001, the Railroads filed a complaint under 42
U.S.C.A. § 1983 in federal district court against the Justices of the
West Virginia Supreme Court of Appeals and those Judges oversee-
1
At the time of the motion, approximately 25,667 asbestos cases were
pending in West Virginia state courts. These cases named approximately
sixty different defendants. Several thousand of the asbestos cases
involved claims against the Railroads under the Federal Employers’ Lia-
bility Act (FELA). FELA grants a federal damages remedy for a railroad
employee who suffers employment-related injuries resulting from a carri-
er’s negligence. 45 U.S.C.A. §§ 51-60 (West 1986).
4 NORFOLK SOUTHERN v. CHIEF JUSTICE MCGRAW
ing the asbestos mass litigation,2 requesting (1) a "declaratory judg-
ment that [Rule] 26.01 operates in an unconstitutional manner
because it deprives defendants of due process of law" and (2) a "de-
claratory judgment that the application of [Rule] 26.01 to join thou-
sands of asbestos claims pending in West Virginia and automatically
to refer all newly-filed asbestos cases to the Mass Litigation Panel,
violates due process; that joinder of multiple asbestos plaintiffs for
trial violates [the Railroads’] due process rights to present a defense
as it virtually guarantees jury confusion and a verdict in favor of all
plaintiffs." (J.A. at 26-27.)
The district court abstained from considering the Railroad’s com-
plaint under Younger v. Harris, 401 U.S. 37 (1971), finding that (1)
the dispute involved various ongoing judicial proceedings; (2) West
Virginia had an important interest in regulating its judicial system via
Rule 26.01; and (3) the Railroads had an adequate opportunity in thier
state proceedings to raise their constitutional challenges. The Rail-
roads timely appealed.
II.
"We review the district court’s decision to abstain under Younger
for abuse of discretion." Nivens v. Gilchrist, 319 F.3d 151, 153 (4th
Cir. 2003). "Younger v. Harris, [401 U.S. 37 (1971)], and its progeny
espouse a strong federal policy against federal-court interference with
pending state judicial proceedings absent extraordinary circum-
stances." Middlesex County Ethics Comm. v. Garden State Bar Ass’n,
457 U.S. 423, 431 (1982). The notion of "comity" underlying this
abstention doctrine includes "a proper respect for state functions, a
recognition of the fact that the entire country is made up of a Union
of separate state governments, and a continuance of the belief that the
National Government will fare best if the States and their institutions
2
The Railroads filed their claim against the then Chief Justice of the
West Virginia Supreme Court of Appeals, Warren R. McGraw, the Asso-
ciate Justices, and Judges Gaughan and MacQueen. We note that Justice
Larry V. Starcher is currently the Chief Justice of the West Virginia
Supreme Court of Appeals and Judge Gaughan and Judge MacQueen
have been replaced by Judge Arthur M. Recht and Judge Booker T. Ste-
phens.
NORFOLK SOUTHERN v. CHIEF JUSTICE MCGRAW 5
are left free to perform their separate functions in their separate
ways." Younger, 401 U.S. at 44. "This concern mandates application
of Younger abstention not only when the pending state proceedings
are criminal, but also when certain civil proceedings are pending, if
the State’s interests in the proceeding are so important that exercise
of the federal judicial power would disregard the comity between the
States and the National Government." Pennzoil Co. v. Texaco, Inc.,
481 U.S. 1, 11 (1987). "The [Younger abstention] doctrine recognizes
that state courts are fully competent to decide issues of federal law
and has as a corollary the idea that all state and federal claims should
be presented to the state courts." Richmond, Fredericksburg & Poto-
mac R.R. Co. v. Forst, 4 F.3d 244, 251 (4th Cir. 1993) (internal cita-
tion omitted).
In Middlesex, the Supreme Court articulated a three-part test to
determine if abstention is appropriate under the principles of federal-
ism articulated in Younger. The Court held that a federal court should
abstain from interfering in a state proceeding, even though it has juris-
diction to reach the merits, if there is (1) an ongoing state judicial pro-
ceeding, instituted prior to any substantial progress in the federal
proceeding; that (2) implicates important, substantial, or vital state
interests; and (3) provides an adequate opportunity for the plaintiff to
raise the federal constitutional claim advanced in the federal lawsuit.
Middlesex, 457 U.S. at 432; see also Martin Marietta Corp. v. Md.
Comm’n on Human Rel., 38 F.3d 1392, 1396 (4th Cir. 1994) (same).
We analyze each of these factors in turn.
A.
We consider first whether there is an ongoing state proceeding.
This first Middlesex factor is satisfied by the thousands of ongoing
asbestos cases against the Railroads that were consolidated pursuant
to Rule 26.01. A favorable ruling in the district court would interfere
with and disrupt these ongoing proceedings in which the challenged
rule has been applied. The fact that the Railroads seek only a declara-
tory judgment, rather than injunctive relief, does not change this con-
clusion. See Samuels v. Mackell, 401 U.S. at 66 (1971) (abstaining
under Younger from granting a declaratory judgment because "where
an injunction would be impermissible under [Younger abstention]
principles, declaratory relief should ordinarily be denied as well");
6 NORFOLK SOUTHERN v. CHIEF JUSTICE MCGRAW
Moye v. City of Raleigh, 503 F.2d 631, 633-34 (4th Cir. 1974)
(abstaining under Younger because "[a] declaratory judgment would,
in fact, adjudicate the merits of Moye’s defenses to the state prosecu-
tion; such a judgment might then be res judicata and virtually take the
case out of state court before it could be heard and decided" (internal
citations and quotation marks omitted)); cf. Steffel v. Thompson, 415
U.S. 452, 469-71 (1974) (holding that declaratory relief may be
appropriate when there is a threat of state prosecution, but no ongoing
state proceeding). Accordingly, the district court did not abuse its dis-
cretion in finding that the first Middlesex factor was satisfied.
B.
The existence of an ongoing state proceeding, however, is not suf-
ficient. The second Middlesex factor requires that the ongoing pro-
ceeding implicate important state interests. In other words, the
ongoing state proceeding must be "the type of proceeding to which
Younger applies." New Orleans Public Serv., Inc. v. Council of City
of New Orleans, 491 U.S. 350, 367 (1989) (NOPSI). The Supreme
Court has repeatedly held that states have important interests in "pro-
ceedings involving certain orders that are uniquely in furtherance of
the state courts’ ability to perform their judicial function." NOPSI,
491 U.S. at 368; see also Middlesex, 457 U.S. at 432 ("Proceedings
necessary . . . for the functioning of the state judicial system . . . evi-
dence the state’s substantial interest in the litigation."); Pennzoil, 481
U.S. at 12-13 ("[T]he States have important interests in administering
certain aspects of their judicial systems.").
Rule 26.01 was enacted to deal with the "elephantine mass of
asbestos cases" that "threaten[ed] to cripple the common law system
of adjudication, if for no other reason [than] the sheer volume of
cases." State ex rel. Allman v. MacQueen, 551 S.E.2d 369, 373-74
(W. Va. 2001) (internal quotation marks omitted). Consolidating the
"massive filings of civil cases involving common questions of law
and/or fact" allows the West Virginia trial courts to control their
dockets effectively. As the West Virginia Supreme Court of Appeals
stated:
TCR 26.01 was promulgated and adopted by this Court
under our constitutional rule-making authority for the
NORFOLK SOUTHERN v. CHIEF JUSTICE MCGRAW 7
express purpose of authorizing the creation of a mass litiga-
tion panel for the following objective: "To develop and
implement case management and trial methodologies for
mass litigation and to fairly and expeditiously dispose of
civil litigation." W. Va. T.C.R. 26.01(b)(1). Through the
creation of such a mass litigation panel, it was believed that
this State’s judicial system and those individuals seeking
redress would benefit by permitting the use of innovative
means of trial management concerning issues unique to
mass litigation, which would in turn encourage a more
expeditious resolution of these matters than that permitted
by traditional means of case resolution.
Allman, 551 S.E.2d at 374. Accordingly, the district court did not
abuse its discretion in finding that the second Middlesex factor was
satisfied because managing the trial court docket so as to handle all
of the pending cases without paralyzing the functioning of the court
is an important state interest that implicates the state courts’ ability to
perform their judicial function, see NOPSI, 491 U.S. at 368.
Nonetheless, the Railroads argue that Younger does not apply to
their first claim because it is a type of facial challenge that attacks the
way that Rule 26.01 operates in practice. The Railroads argue that the
Court in NOPSI held that Younger abstention does not apply to facial
challenges to legislative rules. We disagree. The relevant issue in
NOPSI, as in this case, was the nature of the ongoing state proceed-
ing, not the nature of the federal claims. See NOPSI, 491 U.S. at 367("NOPSI’s challenge must stand or fall upon the answer to the ques-
tion whether the Louisiana court action is the type of proceeding to
which Younger applies." (emphasis added)). The ongoing state pro-
ceeding in NOPSI was not the type of proceeding to which Younger
applies because it was only a state judicial proceeding reviewing leg-
islative or executive action. Id. at 368 ("[I]t has never been suggested
that Younger requires abstention in deference to a state judicial pro-
ceeding reviewing legislative or executive action."). Thus, the Court
in NOPSI held only that federal challenges to legislative rules do not
impermissibly interfere with parallel state challenges to legislative
rules. Id. Because, in this case, the ongoing state proceeding is not
simply a parallel challenge to legislative or executive action,3 but
3
In fact, the Railroads concede that they have never challenged the
constitutionality of Rule 26.01 in state court.
8 NORFOLK SOUTHERN v. CHIEF JUSTICE MCGRAW
instead is a proceeding applying the challenged rule in an effort to
manage the crowded docket of the West Virginia trial courts, NOPSI
does not control.
C.
Turning to the final Middlesex factor, for abstention to be appropri-
ate, a party must have an adequate opportunity to raise and fully liti-
gate its constitutional claim in the state proceeding. Middlesex, 457
U.S. at 432. The federal plaintiff has the burden to show "‘that state
procedural law barred presentation of [its] claims.’" Pennzoil, 481
U.S. at 14 (quoting Moore v. Sims, 442 U.S. 415, 432 (1979)). More-
over, "when a litigant has not attempted to present his federal claims
in related state-court proceedings, a federal court should assume that
state procedures will afford an adequate remedy, in the absence of
unambiguous authority to the contrary." Pennzoil, 481 U.S. at 15. As
noted above, although the Railroads have filed amicus briefs in state
court proceedings challenging Rule 26.01, the Railroads have not
themselves attempted to present their due process claims in the state
court proceeding. Thus, unless there is unambiguous authority to the
contrary, we should assume that the state procedures will afford an
adequate remedy.
The Railroads argue that the state court does not provide an ade-
quate opportunity to raise its constitutional claims because the West
Virginia Supreme Court of Appeals has dismissed as unripe chal-
lenges by other asbestos defendants to the constitutionality of mass
trials under Rule 26.01. Thus, the Railroads argue, defendants are
unable to raise their constitutional claims pretrial, and are forced to
settle rather than face a ruinous verdict in a consolidated mass trial.
Although it is true that for certain claims, notably double jeopardy
claims, pretrial avenues for raising constitutional contentions are criti-
cal, see Nivens, 319 F.3d at 159, we are not convinced that the Rail-
roads’ due process claim is of that ilk. Even assuming, arguendo, that
the ability to raise their due process claims pretrial is necessary, the
Railroads have the ability to raise their constitutional arguments
before trial in the ongoing state proceeding. The West Virginia
Supreme Court of Appeals dismissed as unripe other challenges to
Rule 26.01 because no final mass trial orders had been issued. See
Allman, 551 S.E.2d at 373 ("Given the stage of this litigation, we
NORFOLK SOUTHERN v. CHIEF JUSTICE MCGRAW 9
view such issues as premature, especially in light of the fact that no
decision has been reached as to whether mass trials will be held or
not."); State ex rel. Mobil Corp. v. Gaughan, 563 S.E.2d 419, 421 (W.
Va. 2002) ("Because the trial court has yet to finalize the specifics
regarding identification of the common issues that will be the focus
of the initial liability phase of the litigation, Mobil’s contention of a
denial of Due Process predicated on the lack of commonality of the
issues subject to the liability phase is simply premature."). Neither of
these cases provide "unambiguous authority" for the proposition that
the Railroads cannot raise their claims after final mass trial orders are
issued, but before the trials begin. Moreover, at oral argument, coun-
sel for the West Virginia Justices and Judges agreed on behalf of the
West Virginia Supreme Court of Appeals that the Railroads could
raise and fully litigate their constitutional claims pretrial, once the
claims were ripe. In light of this evidence, therefore, the Railroads
have failed to demonstrate "unambiguous authority" that the state
court procedures do not provide an adequate remedy. Accordingly,
the district court did not abuse its discretion in finding this third Mid-
dlesex factor satisfied.4
III.
Based on the foregoing, the district court properly abstained by
concluding that (1) there was an ongoing state judicial proceeding,
instituted prior to any substantial progress in the federal proceeding;
that (2) implicates important, substantial, or vital state interests; and
(3) provides an adequate opportunity for the Railroads to raise their
federal constitutional claims. Accordingly, we affirm the district
court’s decision to abstain.
AFFIRMED
4
The Railroads also suggest that the West Virginia Supreme Court of
Appeals is not an impartial decisionmaker because it promulgated Rule
26.01. This contention, however, is simply unsubstantiated and inade-
quate. The Railroads provide nothing more than conjecture based on who
promulgated the rule, which is insufficient. See, e.g., Huffman v. Pursue,
Ltd., 420 U.S. 592, 611 (1975) ("Appellee is in truth urging us to base
a rule on the assumption that state judges will not be faithful to their con-
stitutional responsibilities. This we refuse to do.").