A Branch Too Far: Pruning the Abstention Doctrine


Linda S Mullenix

75 Georgetown Law Journal 99


For the fourth time in nine years the Supreme Court last Term had the opportunity to review an unrenowned out controversial doctrine of federal court abstention. The Court, however, has again declined to consider expressly the propriety of the doctrine, and has thus given its tacit imprimatur to the principle that federal district courts may, in their discretion, abstain from exercising properly invoked jurisdiction for reasons of judicial economy or “wise judicial administration.”

The quiet, unheralded development of this so-called “fourth branch” of abstention doctrine belies its importance. In recent years, as federal court dockets have become more congested, scholars, attorneys, and judicial administrators have proposed a variety of methods to relieve this judicial burden. The most notorious recommendation, of course, has been the proposal to eliminate diversity jurisdiction altogether, thereby permitting federal courts to hear only those cases that involve questions of federal law. This controversial proposal periodically reappears in Congress, only to be stalled in endless debate. As docket pressures have increased and Congress has not alleviated the burdens on the federal judiciary, a significant number of federal courts have seized the initiative to pare their dockets by exploiting a previously undeveloped branch of the abstention doctrine.

This branch of the doctrine permits a federal court in its discretion to stay or dismiss a justiciable controversy where there is a parallel state court proceeding in which the dispute can be resolved satisfactorily. The Supreme Court has repeatedly affirmed the principle that a district court may refuse to hear a properly instituted case if “exceptional circumstances” exist that warrant federal deference to a concurrent state court adjudication. The Court has indicated its approval of this rule as a palliative means of avoiding duplicative litigation and furthering the interests of judicial economy and sound judicial administration.

Invocation of the fourth branch of abstention is usually accompanied by imposing phrases such as “federalism,” “comity,” “avoidance of duplicative litigation,” “judicial efficiency,” “judicial economy,” and “wise judicial administration.” Increasingly crowded federal dockets make it difficult to argue against measures calculated to enhance sound judicial administration. Notwithstanding this meritorious purpose, the fourth branch of abstention is an invidious encroachment on the constitutional and statutory rights of federal litigants. If the courts desire to reduce their dockets, they should persuade Congress to abolish diversity jurisdiction or enact other palliative measures.

The Supreme Court is not empowered to sanction the fabrication of an artificial abstention doctrine as a means of docket clearing. Even worse, the Supreme Court sullies its prestige by camouflaging this shabby doctrine with seemingly principled rationales and lofty slogans. The fourth branch of abstention is merely a doctrine of judicial convenience that has no place in American jurisprudence; it is a sickly branch that should be expeditiously pruned from the otherwise healthy abstention tree.

The first part of this article briefly surveys the development of the fourth branch of the abstention doctrine and the serious problems posed by its application. Part II discusses the four cases in which the Supreme Court has considered the propriety of the fourth branch. Included in this part is a detailed presentation of the exceptional circumstances test. Part III describes the various interpretations given by the lower federal courts to the exceptional circumstances test and each of its factors. This part also examines a number of factors grafted onto the test by lower federal courts. Finally, part IV argues that regardless of the basis for federal jurisdiction, abstention for reasons of judicial administration is an unacceptable abdication of the federal judicial power.

Full Citation

Linda S. Mullenix, A Branch Too Far: Pruning the Abstention Doctrine, 75 Georgetown Law Journal 99 (1986).