Conover v. Montemuro

OPINION OF THE COURT GIBBONS, Circuit Judge. This is an appeal from an order of the district court dismissing a class action which challenged on due process and equal protection grounds the intake procedures of the Family Court Division of the Philadelphia Court of Common Pleas. The action has had an unfortunately complex procedural history, a recitation of which is necessary for an appreciation of the exact issues presented to this court for review. The action was filed originally by the plaintiff Conover, on his own behalf and on behalf of all others similarly situated, on April 8, 1969. Conover, a juvenile, alleged that he had been arrested on three occasions and had on each occasion — 1076 — been subjected to an “intake interview” by probation officers employed by the Philadelphia Juvenile Court. These probation officers, he alleged, in an essentially standardless procedure, or at least a procedure employing standards in no way related to the purposes of the Pennsylvania Juvenile Court Law of 1933, decide whether to file a petition, pursuant to section 4 of that law, Pa.Stat.Ann. tit. 11, § 246 (1965). That complaint referred to the provision of the juvenile court law prohibiting preliminary hearings in juvenile cases, Pa.Stat.Ann. tit. 11, § 246(3) (1965), and contrasted the treatment of adult offenders, who under Pennsylvania law have a right to a preliminary hearing and to indictment by a grand jury. Pa.Const. art. 1, § 10. Named as defendants were Honorable Frank J. Montemuro, Jr., Administrative Judge, Family Court Division, Philadelphia Court of Common Plea's, Arlen Specter, District Attorney of Philadelphia 1 and Leonard Rosengarten, Director, Juvenile Probation, Family Court Division, Philadelphia Court of Common Pleas. The complaint sought both injunctive and declaratory relief, but not money damages. It invoked jurisdiction under 28 U.S.C. §§ 1331 and 1343 and under 42 U.S.C. § 1983. It sought class action treatment pursuant to Fed.R.Civ.P. 23, requested the convening of a three-judge district court pursuant to 28 U.S.C. § 2281 et seq., and asked for the issuance of a temporary restraining order. The request for a temporary restraining order was brought on for hearing on April 9, 1969. The district court, after a hearing, declined to issue a temporary restraining order. An appeal from that denial was taken to this court, but after oral argument that appeal was dismissed by stipulation. The district court, pursuant to 28 U. S.C. § 2284, requested then Chief Judge Hastie to convene a three-judge court. Judge Hastie declined to do so on the ground that although the complaint nominally challenged the constitutionality of Pa.Stat.Ann. tit. 11, § 246 (1965), its substance was that the persons charged with the administration of the statute are exercising their power in an improper way, and not that the statute, properly construed, required the allegedly improper practices. The case thereafter proceeded before a single district court judge. On April 18, 1969 Gerald Myers, another juvenile, filed a motion for leave to intervene on his own behalf and as a class representative, asserting a fear that settlement discussions between Con-over, the original plaintiff, and the named defendants, might result in the withdrawal of prosecution in the juvenile court and an attempt by Conover to withdraw the action prior to an adjudication of the rights of the class of which Myers was a member. By an order dated May 2, 1969 Myers was permitted to intervene as plaintiff. At this time no class action determination had been made by the district court. See Fed.R.Civ.P. 23(c)(1). Meanwhile, on April 26, 1969 the named defendants filed an answer and a motion to dismiss the complaint. Judge Montemuro and Mr. Rosengarten moved for a dismissal on the grounds (1) that the district court lacked jurisdiction, (2) that they were immune from suit, and (3) that the federal court should abstain. In a detailed opinion and order filed on September 24, 1969 Judge Fullam considered and rejected each of these contentions. Conover v. Montemuro, 304 F.Supp. 259 (E.D.Pa.1969). He denied the defendants’ motion to dismiss the declaratory judgment action on jurisdictional or immunity grounds, and reserved until trial their motion to dismiss the action for an injunction. After this interlocutory opinion and order was filed the plaintiffs Conover — 1077 — and Myers made a motion for an order pursuant to Fed.R.Civ.P. 23(c)(1) that the action, brought as a class action, be so maintained. The district court gave the defendants an opportunity to file any objections to the confirming of the class action, and after a hearing, over such objections, on October 8, 1970 entered the following order: “And Now, this 8th day of October, 1970, it appearing that the class plaintiff has described in his complaint falls within the requirements of Fed.R.Civ.P. 23(b)(2), it is ORDERED that this action may be maintained as a class action on behalf of all juveniles in Philadelphia, Pennsylvania, who have been or will be affected by action of the defendants alleged in the complaint.” No other findings were made with respect to the class action determination. See Interpace Corporation v. City of Philadelphia, 438 F.2d 401 (3d Cir. 1971). After extensive discovery the ease proceeded to final hearing on April 13, 1971. In that hearing the plaintiff class representatives attempted to establish: a. that juvenile defendants were denied equal protection on the ground that Pennsylvania law provides for discharge of adults at a preliminary hearing against whom a prima facie case is not established, but does not provide for the discharge of juveniles at the intake interview against whom a prima facie case of delinquency is not established. b. that juvenile defendants were denied due process because of the overbroad discretion allowed to the intake interviewer and the vagueness of the standards for his decision whether to file a delinquency petition. c. that juvenile defendants were denied due process by the arbitrary and irrational choice of cases in which to file delinquency petitions. d. that juvenile defendants were denied due process because the intake standards were not reasonably related either to probable cause or' to the purposes of the Juvenile Court Law. Plaintiffs’ principal le'gal arguments were based on In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), and In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). At the completion of the hearing, in which the testimony of eight witnesses was taken and twenty exhibits received in evidence, the defendants renewed their motion to dismiss on the ground that the federal court should abstain. The renewed motion was prompted by the Supreme Court’s decisions, on February 23, 1971, long after the district court’s denial of the original motion, of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971); Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971); Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971); Dyson v. Stein, 401 U.S. 200, 91 S.Ct. 769, 27 L. Ed.2d 781 (1971), and Byrne v. Karalexis, 401 U.S. 216, 91 S.Ct. 777, 27 L.Ed.2d 792 (1971). The district court asked the parties to brief the issues raised by these cases prior to the submission of proposed findings of fact. On July 21, 1971 it filed an opinion and order, 328 F.Supp. 994, dismissing the action without prejudice to the right of the plaintiffs to raise the same issues in an appropriate case on the authority of the Younger v. Harris group of cases. That is the order appealed from. The July 21, 1971 order was entered prior to and without the benefit of Judge Van Dusen’s exegesis for this court of Younger v. Harris and its companion cases in Lewis v. Kugler, 446 F.2d 1343 (3d Cir. 1971), and without the Supreme Court’s refinement of the issues of jurisdiction and federalism in Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972). Since the district court did not reach the merits it had no occasion to consider whether McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971), which deals with another aspect — 1078 — of Pennsylvania Juvenile Court procedures casts any greater light upon the fourteenth amendment issues presented by those proceedings than did In re Gault, supra, and In re Winship, supra. Although the ease comes before us with a full record, the absence of findings of fact by the district court precludes us from reaching the merits of this class action. We are presented only with the alternatives of an affirmance if we conclude that the complaint was properly dismissed or a remand for appropriate findings. The broad class action determination quoted above placed before the court claimants in these categories: 1. Philadelphia juveniles who have not been, but in the future will be, subjected to the intake procedures complained of. As to any specific Philadelphia juvenile it may be said that the likelihood of his being subjected to the intake procedures is so remote as to be speculative. It is a virtual certainty, however, that some Philadelphia juveniles will be subjected to the intake procedures. Thus it is a virtual certainty, not a matter of speculation, that there are some members of the class against whom no actual proceeding is pending but who will be subject in the future to the intake procedures. 2. Philadelphia juveniles who have been subjected to the intake procedures and the detention and interrogation which those procedures' entail, and who have been discharged without formal petitions being filed against them. These fall back into category 1, but with the added disability that if they are again subjected to the intake procedures their prior processing may be known to the probation officer administering the intake. 3. Philadelphia juveniles who have ' been subjected to the intake procedures, against whom petitions for their adjudication as delinquents have been filed, who have proceeded to a hearing, and whose hearing terminated in an adjudication that they were not delinquent. 4. Philadelphia juveniles who have been subjected to the intake procedures, against whom petitions have been filed, who have proceeded to a hearing, and whose hearing is still pending. 5. Philadelphia juveniles who have been subjected to the intake procedures, against whom petitions have been filed, who have proceeded to a hearing, and who have been adjudicated delinquent. Conover, the original plaintiff, was adjudicated on one of the three petitions pending against him and discharged on the other two. Thus he is in category 5 above. As to Myers, the intervenor, a demurrer was sustained to the petition against him and he was discharged. Thus he is in category 4 above. Since both had been subjected to the intake procedures, and both ran the risk of being subjected to them in the future, they were pressing claims in which they had a concrete interest in an adversary context. The district court recognized as much both when it refused to grant the original motion to dismiss the complaint and when it found them to be adequate class representatives for a class encompassing all five categories of claimants. Of the five categories of claimants, only those in category 4 are literally claimants against whom a state proceeding is pending. Thus assuming, without deciding, that juvenile court proceedings should be equated to the state criminal prosecutions pending in Younger v. Harris and its companion cases, only that limited category of claimants should have been affected by those cases. The district court held, nevertheless, that those cases mandated a dismissal as to the entire class. It reasoned: “The procedure challenged affects persons only when they are brought into the juvenile court process. When this process has begun, the Younger and Samuels cases say, the federal — 1079 — courts must not interfere. . . . What plaintiffs’ argument really means is that the named plaintiffs are no longer proper representatives of the class. Plaintiffs argue that this action may nevertheless proceed with some redefinition of the class. I disagree. As to those persons who are now in the juvenile intake process and those who will be in the future, the principles set forth in the cited cases clearly apply. As to those who have been through the juvenile process, the issues presented in this ease are either moot (if the proceedings were terminated in favor of the juvenile) or they can be raised in federal court only through a petition for a writ of habeas corpus. Under the latter procedure, state remedies must be exhausted before the federal courts may pass on the merits of the constitutional claim. 28 U.S.C. § 2254(b).” 328 F.Supp. at 995. Almost all of this reasoning is inconsistent with our subsequent decision in Lewis v. Kugler, supra. Since the decision of the Supreme Court in Mitchum v. Foster, supra, our conviction that Lewis v. Kugler was correctly decided has been reinforced. From those cases, from the Younger v. Harris group of cases and from other relevant authorities these rules of general application may be deduced: A. When an action is brought under the Federal Civil Rights Acts raising federal constitutional claims, prior resort, to the state courts, even where there may be an available state remedy, is not required. E.g., Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). There is no doctrine of exhaustion of state remedies applicable to the federal courts’ jurisdiction under 28 U.S.C. § 1343. E.g., Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971) (per curiam); McNeese v. Board of Education, 373 U.S. 668, 672, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963) ; Rodriguez v. McGinnis, 456 F.2d 79 (2d Cir.), cert. granted sub nom. Oswald v. Rodriguez, 407 U.S. 919, 92 S.Ct. 2459, 32 L.Ed.2d 805 (1972). B. The Civil Rights Act of 1871, 42 U.S.C. § 1983, is an express exception to the anti-injunction statute, 28 U.S.C. § 2283, Michum v. Foster, supra; Cooper v. Hutchinson, 184 F.2d 119 (3d Cir. 1950). Thus the pendency of a state court proceeding does not deprive a federal court of equity of jurisdiction to issue an injunction in cases brought on the authority of 42 U.S.C. § 1983. C. A federal court may as a matter of discretion abstain in favor of an available state court adjudication if there is an unresolved question of state law which only the state courts can authoritatively construe and which may by virtue of such an authoritative construction avoid the decision of a federal constitutional issue.2 For convenience we refer to such abstention as Pullman3 type abstention. Such abstention involves no decision on the merits of the claim or even on the appropriateness of injunctive relief and is availed of ás a device whereby a federal court may avoid a premature decision of a federal constitutional issue. D. Weighed against the undesirability of a premature decision of the federal issue is the mandate from — 1080 — Congress in the Civil Rights Acts passed pursuant to the fourteenth amendment that federal courts will afford a prompt remedy for violations of that amendment and that such remedy includes federal fact finding.4 See Mitchum v. Foster, supra. Thus, if abstention in face of a state court adjudication would be likely to cause delay or if the evidentiary and ultimate facts on which the fourteenth amendment claims depend are in dispute the federal court should exercise its discretion against Pullman type abstention. E. In determining whether or not, in a case in which it has undoubted power to act, a federal court should on equitable principles enjoin a state court criminal prosecution, the federal equity court must take into account the available remedy at law of raising the federal constitutional claim in the pending state proceeding. That available remedy at law in the state court, when weighed with the comity due to a court of a coordinate sovereignty, will, in the absence of additional exceptional circumstances, always militate against the issuance of an injunction halting or interfering with the state prosecution. For convenience we refer to this rule as Younger type nonintervention. It is not abstention in the Pullman sense because it involves a decision on the merits of the claim for equitable relief that there is an adequate remedy at law in the state courts and that therefore federal equitable relief is inappropriate. The issue is not one of power or jurisdiction in this instance but simply of the appropriateness of equitable relief. F. When the issuance of a declaratory judgment will have the same practical effect on a pending state prosecution as the issuance of an injunction, the same Younger considerations govern the appropriateness of that relief. Samuels v. Mackell, supra. G. Even if a state prosecution is pending, injunctive or declaratory relief against state officers with respect to violations of federal constitutional rights not amounting to an injunction which will halt or substantially interfere with a pending prosecution may still be available. Lewis v. Kugler, supra at 1349. The award of either declaratory or injunctive relief may not present any problem of the comity due to a court of a coordinate sovereignty and will be governed by general legal or equitable considerations. If the requested declaratory relief against state officers would, however, adjudicate an issue such as the lawfulness of a search and seizure which on the basis of collateral estoppel might affect the state prosecution, then the federal court should not grant such relief. See Id. H. The exhaustion requirement of the habeas corpus statute, 28 U.S.C. § 2254(b), does not apply to proceedings brought under 28 U.S.C. § 1343 and 42 U.S.C. § 1983. Until the state court proceeding produces a judgment of the state courts resulting in confinement, 28 U.S.C. § 2254(b) does not apply by its terms even to federal habeas corpus jurisdiction. It is simply not relevant to the Civil Rights Act. Wilwording v. Swenson, supra; Rodriguez v. McGinnis, supra. The district court decision did not correctly apply these rules. First, it assumed that the Younger principle applied to those class members against whom an actual proceeding had not yet commenced. As we made clear in Lewis v. Kugler, supra, that principle operated only against those persons then actually enmeshed in the toils of a state criminal proceeding. Next, it assumed that the exhaustion requirement of 28 U.S.C. § 2254(d) was in some manner applicable to an action brought under 42 — 1081 — U.S.C. § 1983. As to those class members who have not yet been confined as a result of a state court judgment, 28 U.S.C. § 2254(d) is inapplicable by its terms. As to those class members who are confined as a result of a judgment finding them to be delinquent, there is no authority which warrants engrafting the requirements of 28 U.S.C. § 2254(d) upon an action brought pursuant to 42 U.S.C. § 1983. Wilwording v. Swenson, supra; Rodriguez v. McGinnis, supra. The district court acted solely on the authority of Younger v. Harris, supra, and Samuels v. Mackell, supra. Thus we are not aware of that court’s views as to the substantiality of the fourteenth amendment claims alleged on behalf of the class as to the possibility of a construction by the Pennsylvania courts of Pa.Stat.Ann. tit. 11, § 246 which would avoid a decision on those claims, or as to the availability of any Pennsylvania procedure which would provide the opportunity for such a construction. On the record before us, the original and the intervening plaintiffs have been processed through the Family Court Division of the Philadelphia Court of Common Pleas apparently without any opportunity to obtain an adjudication of their claims with respect to the intake procedures. Assuming the legal sufficiency of the petition that they be adjudged delinquent, and assuming the sufficiency of the evidence of their delinquency, we know of no Pennsylvania procedure whereby they may test the legality of the steps leading to a decision to file a formal petition against them. Such a procedure may exist, but it has not been called to our attention. Nor have the defendants called to our attention any civil remedy, outside the scope of the Pennsylvania Juvenile Court Act, by which the class members might obtain a construction of the Pennsylvania statute which would avoid a decision by the federal courts on the fourteenth amendment claims. Moreover, defendants have suggested no likely construction of Pa.Stat.Ann. tit. 11, § 246 (1965) which would avoid the claim that the probation officers in the intake process exercise virtually unbridled discretion. In such circumstances we may not, on the appellate level, affirm on the basis of a Pullman type abstention which the district court did not consider. At the same time, since the district court made no findings of fact, we cannot at this stage of the case rule out the possible propriety of such an exercise of the district court’s discretion. However, even if a Pennsylvania remedy exists, the district court cannot abdicate its responsibility as an article III court to determine facts which are of constitutional significance. Even with Younger type nonintervention the federal court must make the factual determination whether extraordinary circumstances exist which would take the case outside the ordinary rule that the state remedy at law is adequate. As Justice Holmes noted: “[T]he determination as to their rights turns almost wholly upon the facts to be found. . . . When those are settled the law is tolerably plain. All their constitutional rights we repeat, depend upon what the facts are found to be. They are not to be forbidden to try those facts before a court of their own choosing, if otherwise competent.” Prentis v. Atlantic Coast Line, 211 U.S. 210, 228, 29 S.Ct. 67, 70, 53 L.Ed. 150 (1908). The purpose of Congress in enacting the Civil Rights Acts was to provide a federal forum for the enforcement of federal rights. See Mitchum v. Foster, supra, 407 U.S. at 241, 92 S.Ct. 2151. Where an adjudication of those rights rests heavily on a factual determination, the ultimate responsibility for making this determination lies with the article III courts. There is in the district court’s opinion the suggestion of mootness. This suggestion is erroneous. Completion of the juvenile court proceedings did not remove Conover and Myers from membership in the class defined in the order which made the class — 1082 — action determination. They still were juveniles in Philadelphia who might in the future be subjected to the challenged intake procedures. They continued to press their objections to that procedure in an adversary context. See Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968); Shannon v. HUD, 436 F.2d 809 (3d Cir. 1970). Indeed, even if their own claims had become moot, and they had not, see, e.g., Sibron v. New York, 392 U.S. 40, 50-58, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); numerous class members remained whose claims were very much alive. See Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969). Conover and Myers remained adequate representatives of the entire class. See Gatling v. Butler, 52 F.R.D. 389, 395 (D.Conn.1971); Adens v. Sailer, 312 F.Supp. 923 (E.D.Pa.1970). Finally there is the narrow issue whether, even as to class members actually before the Family Court Division of the Philadelphia Court of Common Pleas, the ruling in Samuels v. Mackell, supra, would preclude declaratory relief of some kind. Lewis v. Kugler, supra at 1349, is relevant here. That ease suggests that if an actual proceeding is pending, as to those class members against whom those proceedings are pending certain types of declaratory relief will be inappropriate. It holds that the federal court should not foreclose the merits of the issue of legality of a search or seizure by granting a declaratory judgment. Such a determination would in effect substitute federal court fact finding for that already available in the state court on an issue going to the ability of the state to prove its charge. See e. g., Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138 (1951). This case does not present the same kind of issue. Declaratory relief with respect to the intake procedures will not necessarily hinder the eventual adjudicatory process of the Court of Common Pleas or substitute federal fact finding in any case in which a petition for adjudication of delinquency may be tried. Thus Lewis v. Kugler, supra, is not authority for the withholding of declaratory relief, even as to those class members presently before the Pennsylvania courts. In that case we pointed out that in the exercise of its broad equitable powers, a district court could fashion a remedy which would prevent deprivation of constitutional rights while at the same time avoiding unnecessary encroachment on state and local government functions, 446 F.2d at 1351-1352. Since a remedy with respect to the intake procedures would not necessarily interfere with the adjudication functions of the Commonwealth’s juvenile court, it is therefore not necessarily precluded by Younger v. Harris, supra, or Samuels v. Mackell, supra. If the district court was in error in rejecting the defendant’s claims to judicial immunity, 304 F.Supp. at 262, we would be required to affirm the dismissal of the complaint on that basis even though we did not agree with the grounds on which the court acted. See Riley Co. v. Commissioner, 311 U.S. 55, 61 S.Ct. 95, 85 L.Ed. 36 (1940); Helvering v. Gowran, 302 U.S. 238, 58 S.Ct. 154, 82 L.Ed. 224 (1937). Thus it is appropriate to comment that we agree with Judge Fullam’s interpretation of Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), and Bauers v. Heisel, 361 F.2d 581 (3d Cir. 1966), which distinguishes, for purposes of judicial immunity, actions for damages from actions for injunctive relief.5 Our leading — 1083 — case of Cooper v. Hutchinson, supra, was an action for an injunction against a state court judge. It was neither limited nor overruled by Bauers v. Heisel, supra. See also Mitchum v. Foster, supra. Compare Bethea v. Reid, 445 F.2d 1163 (3d Cir. 1971) with Cooper v. Hutchinson, supra; cf. Magaziner v. Montemuro, 468 F.2d 782, 788 n. 5 (3d Cir. 1972). The ease will be remanded to the district court for findings of fact and conclusions of law. The parties have suggested at oral argument that because of some procedural changes in the intake procedures of the Family Court division of the Philadelphia Court of Common Pleas it may be appropriate to supplement the record. Our ruling does not preclude such action if the district court concludes that it is appropriate. If the district court concludes that what we have referred to as Pullman type abstention is appropriate it should inform us what possible narrowing constructions of the Pennsylvania Juvenile Court Law have been suggested, how these constructions would avoid the decision of the fourteenth amendment claims asserted on behalf of the class and what Pennsylvania procedure is available to class members for raising the issues. If it concludes that such abstention is inappropriate it should proceed to the merits of the fourteenth amendment claims, under the Pennsylvania Juvenile Court Law as applied and to the fashioning of an appropriate remedy if any is found to be necessary, consistent with the principles set forth in this opinion. Footnotes [1] The district attorney was eventually dismissed by stipulation when it appeared that his office had nothing to do with the intake procedures of the Philadelphia Juvenile Court. [2] See, e. g., Wisconsin v. Constantineau, 400 U.S. 433, 437-439, 91 S.Ct. 507, 27 L.Ed. 2d 515 (1971); Fornaris v. Ridge Tool Co., 400 U.S. 41, 91 S.Ct. 156, 27 L.Ed.2d 174 (1970) (per curiam); Harman v. Forssenius, 380 U.S. 528, 534, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965); Railroad Comm’n of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). But cf. Allegheny Airlines, Inc. v. Pennsylvania Pub. Util. Comm’n, 465 F.2d 237 (3d Cir. 1972). [3] This abstention doctrine is generally traced to Justice Frankfurter’s opinion in Railroad Comm’n of Texas v. Pullman Co., supra. [4] But cf. Allegheny Airlines, Inc. v. Pennsylvania, supra, which did not involve the court’s civil rights jurisdiction. [5] Several courts have approved of this distinction. See Erdmann v. Stevens, 458 F.2d 1205, 1208 (2d Cir.), cert. denied, 409 U.S. 889, 93 S.Ct. 126, 34 L.Ed.2d 147 (1972); Littleton v. Berbling, 468 F.2d 389 (7th Cir. 1972); Jacobson v. Schaefer, 441 F.2d 127, 130 (7th Cir. 1971); Peek v. Mitchell, 419 F.2d 575 (6th — 1083 — Cir. 1970); United States v. McLeod, 385 F.2d 734, 738 n. 3 (5th Cir. 1967) (implicitly); Haley v. Troy, 338 F.Supp. 794, 800 (D.Mass. 1972); Cassidy v. Ceci, 320 F.Supp. 223, 228 (E.D.Wis. 1970); Rakes v. Coleman, 318 F.Supp. 181, 192 (E.D.Va. 1970); Koen v. Long, 302 F.Supp. 1383, 1389 (E.D.Mo. 1969), aff’d per curiam, 428 F.2d 876 (8th Cir. 1970), cert. denied, 401 U.S. 923, 91 S.Ct. 877, 27 L.Ed.2d 827 (1971); Law Students Civil Rights Research Council, Inc. v. Wadmond, 299 F.Supp. 117, 123 (S.D.N.Y. 1969) (three-judge court) (Friendly, J.), aff’d on other grounds, 401 U.S. 154, 158 n. 9, 91 S.Ct. 720, 27 L.Ed.2d 749 (1971) (Appellants did not appeal on this ground); Stambler v. Dillon, 288 F.Supp. 646, 649 (S.D.N.Y. 1968); United States v. Clark, 249 F.Supp. 720, 727-728 (S.D.Ala. 1965). Cf. Hadnott v. Amos, 394 U.S. 358, 89 S.Ct. 1101, 22 L.Ed.2d 336 (1969).