by Wilton H. Strickland

Litigants often try to get into federal court for a variety of reasons. Just as often, however, this proves difficult because federal courts have limited jurisdiction, paralleling the overall design of the federal government as having limited powers. A litigant cannot merely assume that a federal court has jurisdiction to hear a case, but rather must identify some discrete ground upon which the court may act. One example is where the cause of action itself arises from federal law, thereby creating “federal question” jurisdiction per 28 U.S.C. § 1331. Another example is where the plaintiff and the defendant are citizens of different states and the amount in controversy exceeds $75,000, thereby creating “diversity” jurisdiction per 28 U.S.C. § 1332.

Federal courts take their jurisdiction very seriously, so much so that at any stage of a proceeding they will dismiss a case if jurisdiction appears to be absent. It is impossible for a litigant to waive this dismissal argument despite failing to raise it in the pleadings, during discovery, or even during trial. Indeed, federal courts will proactively dismiss a case on their own (sua sponte) and without a motion if jurisdiction vanishes.

It must come as quite a surprise, then, if a federal court has jurisdiction over a case yet still refuses to exercise it by entering a stay or an outright dismissal. This is the doctrine known as “abstention,” and it can prove incredibly frustrating to litigants who properly invoke federal jurisdiction but still come away empty-handed. To prevent this from happening to you, consider the following categories of abstention and try to avoid them if possible.

• Pullman abstention. This is the oldest type and stems from the Supreme Court’s decision in R.R. Comm. of Tex. v. Pullman Co., 312 U.S. 496 (1941). If there are unsettled questions of state law that could make it unnecessary to decide a federal constitutional question, the federal court will abstain until the state court has resolved the state questions. After all, if the constitutional question becomes moot, it makes sense to avoid answering it.

• Burford abstention. In Burford v. Sun Oil Co., 319 U.S. 315 (1943), the Supreme Court held that federal courts should completely avoid matters that are governed by a comprehensive system of state regulation (in that case, the oil industry). This form of abstention is more strict and absolute than the Pullman kind, which calls for mere waiting.

• Thibodaux abstention. This is similar to Pullman abstention, but broader in that a federal court will abstain from hearing any type of case (not just a constitutional one) if it hinges on a confused and unsettled area of state law. So held the Supreme Court in La. Power & Light Co. v. City of Thibodaux, 360 U.S. 25 (1959), which concerned whether a state statute allowed for the exercise of eminent domain (i.e., taking private property for public use).

• Younger abstention. A variant of Burford abstention, this type occurs when a federal court completely avoids constitutional challenges that involve ongoing proceedings in state court, particularly criminal proceedings as in Younger v. Harris, 401 U.S. 37 (1971).

• Colorado River abstention. A federal court will dismiss a case that duplicates an ongoing proceeding in state court, thereby avoiding inconsistencies and other administrative problems, as held in Colo. River Water Conservation Dist. v. U.S., 424 U.S. 800 (1976).

The connecting thread among all of these categories is federal deference for state sovereignty, which is broad, general, and presumptive — unlike federal sovereignty, which is narrow, specific, and must be proved. This deference is so strong that federal courts will abstain from exercising jurisdiction despite having it, and as with jurisdictional questions, federal courts may consider abstention at any stage of a proceeding. See, e.g., Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971).

One more thing to bear in mind is that if a case involves a common-law claim for damages, any exercise of abstention should be limited to a stay rather than an outright dismissal. See Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 719-20 (1996).

Happy hunting in federal court, and watch out for the abstention landmines!