Indiana Law Review


Appealability of Abstention Orders

It is most true, that this court will not take jurisdiction if

it should not: but it is equally true, that it must take
jurisdiction, if it should. The judiciary cannot, as the legisla-
ture may, avoid a measure, because it approaches the confines

of the constitution. . . . With whatever doubts, with whatever
difficulties, a case may be attended, we must decide it, if it be
brought before us. We have no more right to decline the
exercise ofjurisdiction which is given, than to usurp that which

is not givenA

This precept, unlike others penned by Chief Justice Marshall

concerning federal jurisdiction, has not weathered the demands of
federalism and the complexities of constitutional adjudication.
Periodically, however, the dust is brushed aside and this passage re-

emerges only to find that those who disturb its repose hasten to add
that there is "no such rule today."^ Such a conclusion, without
question, is based upon a reading of the Supreme Court's decisions
which established the abstention doctrine^ under which a federal
district court, while retaining jurisdiction,^ may decline to proce^
until the parties have had an opportunity to obtain a decision on
questions of state law from the state courts.^ Thus, the commentator's

iCohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821) (Marshall, C.J.) (emphasis

supplied).

2C. Wright, Handbook of the Law of Federal Courts § 52, at 218 (3d ed.
1976) [hereinafter cited as Wright].

^Younger v. Harris, 401 U.S. 37 (1971) (absent bad faith, harassment, or a
patently invalid state statute, abstention appropriate where federal jurisdiction
invoked for purpose of restraining state criminal proceedings); Louisiana Power &
Light Co. V. City of Thibodaux, 360 U.S. 25 (1959) (abstention proper in certain

diversity actions to allow state court to resolve unsettled question of state law); Burford

V. Sun Oil Co., 319 U.S. 315 (1943) (dismissal on abstention grounds appropriate to
avoid needless conflict with state's administration of its internal affairs); Railroad

Comm'n v. Pullman Co., 312 U.S. 496 (1941) (abstention appropriate to avoid decision
of federal constitutional question where case may be disposed of on questions of state
law).

^Application of the abstention doctrine "does not . . . involve the abdication of

federal jurisdiction, but only the postponement of its exercise." Harrison v. NAACP,
360 U.S. 167, 177 (1959); accord, Louisiana Power & Light Co. v. City of Thibodaux,
360 U.S. 25 (1959). Cases involving Younger abstention are not considered in the Note
because dismissal of the federal action is mandated in such cases. See MTM, Inc. v.
Gonzalez, 420 U.S. 799, 806 n.l (1975) (concurring opinion).

^This permits the federal judgment to be based upon "a complete product of the
State, the enactment as phrased by its legislature and as construed by its highest
court." Harrison v. NAACP, 360 U.S. 167, 178 (1959).



1977] ABSTENTION ORDERS 557

observation is addressed solely to that part of Marshall's statement

which bespeaks a duty to exercise jurisdiction. That jurisdiction,

however, is not boundless. The federal courts, both trial and
appellate, are courts of limited jurisdiction—their power and author-

ity over cases are derived solely from the Constitution^ and the

Congress.^ Although there is some scholarly and judicial support for

the view that the constitutional grant of judicial power is self-

executing,^ the prevailing view is that it is "dependent for its

distribution and organizatiort, and for the modes of its exercise,

entirely upon the action of Congress."^

Clearly the judge-made^^ doctrine of abstention could not have

enlarged the scope of that jurisdiction nor sounded the death knell of

the rule proscribing the federal judiciary's usurpation of jurisdiction.

But is there cause for concern about judicial respect for this second

rule in conjunction with appellate review of abstention orders?!^

Although it might be argued that appealability of abstention

orders is a foregone conclusion, ^2 the following considerations suggest

6U.S. Const, art. Ill, § 2; Wright, supra note 2, § 8.

^U.S. Const, art. Ill, § 1; Wright, supra note 2, §§ 10, 11.

^Wright, supra note 2, § 10, at 27.

»Cary v. Curtis, 44 U.S. (3 How.) 236 (1845) (emphasis supplied); accord,

Lockerty v. Phillips, 319 U.S. 182 (1943).
loEngland v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411 (1964).
"Not all district court orders are appealable. Jurisdiction of appeals from

certain classes of interlocutory orders, 28 U.S.C. § 1292 (1970), and from all final

decisions of the district courts is conferred on the courts of appeals, except where

direct review may be had in the Supreme Court, 28 U.S.C. § 1291 (1970).
'^One writer recently observed that this matter "is not definitively settled," but

suggested that:

The inequities to litigants in not being able to have erroneous orders of
abstention overturned may well render abstention orders "final" and
appealable under 28 U.S.C. § 1291. . . . Moreover, in cases in which

interlocutory injunctions are requested . .
. ,
an order of abstention might be

reviewable under 28 U.S.C. § 1292(aXl) as a refusal of an interlocutory

injunction. . . . The same reasoning could allow Supreme Court review of
three-judge decisions [under 28 U.S.C. § 1253]. And, of course, certification

under 28 U.S.C. 1292(b), and mandamus or prohibition under 28 U.S.C. §
1651, would in any event be available in cases to which they are applicable.

Field, Abstention in Constitutional Cases: The Scope of the Pullman Abstention

Doctrine, 122 U. Pa L. Rev. 1071, n.l23 (1974) [hereinafter cited as Abstention in
Constitutional Cases].

The American Law Institute's proposal regarding abstention includes no express
provision for review of abstention orders. The All Writs Statute, 28 U.S.C. § 1651, was
thought to afford an adequate remedy where entry of the order constituted an abuse of
discretion. American Law Institute, Study of the Division of Jurisdiction
Between State and Federal Courts 291-92 (1969) [hereinafter cited as Ali Study].
Professor Field sought to explain the ALI's position by suggesting that it concludes

from case law that abstention orders are not reviewable. Abstention in Constitutional

Cases, supra at 1107 n.l23. However, to this writer's knowledge, of all the appeals

taken from such orders to the courts of appeals, only one has been dismissed for want of



558 INDIANA LAW REVIEW [Vol. 10:556

that careful scrutiny of this matter is warranted. First, a federal
court has the power to render a judgment only if the case before it is
within its jurisdiction. Second, because any proceeding outside the
limits prescribed by Congress is coram non judice and any decision or
order rendered therein is a nullity, ^^ the federal courts are obliged to
notice want of jurisdiction. Third, while the Supreme Court has yet to
address the issue of the appealability of abstention orders per se,
recent decisions of that court and revision of the Three-Judge Court
Act have set the stage for an increase in the number of abstention
orders^^ and appeals therefrom. Concomitant with the latter is the
problem facing appellate courts of determining whether their
jurisdiction may be exercised over such orders^^ and, if so, the proper
mode or modes for doing so.^^

jurisdiction. Public Employees Local 1279 v. Alabama, 453 F.2d 922 (5th Cir. 1972).
See text accompanying notes 145-47 infra. The Supreme Court may have declined
jurisdiction over a direct appeal from an abstention order entered by a three-judge
court. Daniel v. Waters, 417 U.S. 963 (1974). See note 177 infra.

i3Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 719 (1838).
^^During the era of the Warren Court (1953-1969), application of the abstention

doctrine was narrowly limited. Freda v. Lavine, 494 F.2d 107, 109 (2d Cir. 1974). This
prompted one writer to suggest that with the retirement of Mr. Justice Frankfurter in

1962 the abstention doctrine had been left a judicial orphan. Note, Federal-Question

Abstention: Justice Frankfurter's Doctrine in an Activist Era, 80 Harv. L. Rev. 604,
604 (1967). Recent Supreme Court decisions suggest that there has been a rejuvenation
of the full implications of the doctrine. Reid v. Board of Educ, 453 F.2d 238, 242 (2d
Cir. 1972), citing Askew v. Hargrave, 401 U.S. 476 (1971) and Reetz v. Bozanich, 397
U.S. 82 (1970); see Boehning v. Indiana State Employees Ass'n, 423 U.S. 6 (1975).
Congress not only appears to have been cognizant of this fact, but also to have relied

upon it in enacting legislation which largely eliminates the requirement for three-

judge courts. S. Rep. No. 94-204, 94th Cong., 2d Sess. 3-4 (1976), reprinted in [1976]

U.S. Code Cong. & Ad. News 3160, 3162-63 [hereinafter cited as S. Rep. No. 94-204];
see note 184 infra. In commenting upon the Court's recent clarification of the
application of the abstention doctrine in Askew and Reetz, the Senate Committee on the
Judiciary noted that "[t]his pattern of decisions clearly precludes the sort of

precipitous intrusion in the State legal processes by a single Federal judge that the

original Three-Judge Court Act sought to control." S. Rep. No. 94-204, at 8.
i^During the mid-1960's the courts of appeals referred to cases as having applied

the abstention doctrine notwithstanding the fact that the district courts had dismissed

the action. E.g., United Steel Workers v. Bagwell, 383 F.2d 492 (4th Cir. 1967). When
this is the case, the question of appellate review presents no real problem, for

dismissal, with or without prejudice, clearly constitutes a "final decision" from which

an appeal may be taken pursuant to 28 U.S.C. § 1291 (1970). United States v. Wallace
& Tiernan Co., 336 U.S. 793 (1949).

In 1967 the Court conceded that it "is better practice, in a case raising a federal

statutory claim, to retain jurisdiction, rather than to dismiss." Zwickler v. Koota, 389

U.S. 241, 244 n.4 (1967). Because the Zwickler rule has been followed even where no

federal questions had been raised, see, e.g.. Hill v. City of El Paso, 437 F.2d 352, 357

(5th Cir. 1971); Coleman v. Ginsberg, 428 F.2d 767, 770 (2d Cir. 1970), appellate

jurisdiction over many abstention orders will no longer clearly lie under section 1291.
^^Appealability of abstention orders will be considered under 28 U.S.C. § 1291

(1970), see text accompanying notes 37-96 infra; 28 U.S.C. § 1292(a)(1) (1970), see text



1977] ABSTENTION ORDERS 559

Initially this Note will consider Louisiana Power & Light Co. v.
City of Thibodaux^'^ and Idlewild Bon Voyage Liquor Corp. v.
Epstein,^^ the cases in which the Supreme Court was first confronted
by and first considered, although only tangentially, the appealability
of abstention orders. Resolution of this issue by the appellate courts
will then be examined. Finally, Idlewild's teachings will be
reconsidered in light of recent Supreme Court dicta. _

I. Idlewild: An Enigma

The issue of appealability of abstention orders was first raised by
the petitioner in Louisiana Power & Light Co. v. City of Thibodaux,^^ a
case in which the Fifth Circuit reversed an abstention order entered

by the district court in an expropriation proceeding after holding

that it was appealable under 28 U.S.C. § 1292[(a)](l).2o In granting
certiorari the Court excluded this threshold issue from its scope of
review.21 To do so required it to disregard a statement made by one
who had been a member of the Marshall Court.

However late [an objection that the court has no jurisdiction]
may be made in any cause, in an inferior or appellate court of
the United States, it must be considered and decided, before
any court can move one further step in the cause; as any
movement is necessarily the exercise of jurisdiction If the

accompanying notes 97-142 infra; 28 U.S.C. § 1292(b) (1970), see text accompanying

notes 143-72 infra; and 28 U.S.C. § 1253 (1970), see text accompanying notes 173-79

infra. Should appeal be improper, the All Writs Act, 28 U.S.C. § 1651 (1970), may
provide an alternative means of reviewing a district court's action where there has
been an abuse of discretion. See Note, Supervisory and Advisory Mandamus Under the
All Writs Act, 86 Harv. L. Rev. 595 (1973) [hereinafter cited as Supervisory and
Advisory Mandamus].

1^360 U.S. 25 (1959), rev'g 255 F.2d 774 (5th Cir. 1958).
18370 U.S. 713 (1962).

19 Petition for a Writ of Certiorari at 2, Louisiana Power & Light Co. v. City of
Thibodaux, 360 U.S. 25 (1959). The city felt that "the significance of the issue of
appealability" had been greatly exaggerated and urged the Court to exclude it from

review should it grant the petition. Brief in Opposition to Petition for Certiorari at 4,

10. It reasoned that even if the court of appeals should not have assumed jurisdiction

under 28 U.S.C. § 1292, it could have reached the same result by granting a writ of
mandamus. Id. at 10.

20City of Thibodaux v. Louisiana Power & Light Co., 255 F.2d 774, 776 (5th Cir.
1958), rev'd, 360 U.S. 25 (1959). See text accompanying notes 98-108 infra.

2iLouisiana Power & Light Co. v. City of Thibodaux, 358 U.S. 893 (1958). The
Warren Court offered no explanation for excluding this jurisdictional question, but
later stated that it granted certiorari "because of the importance of the question in the

judicial enforcement of the power of eminent domain under diversity jurisdiction." 360

U.S. at 26.



560 INDIANA LAW REVIEW [Vol. 10:556

law confers the power to render a judgment or decree, then
the court has jurisdiction . . . P
Because the Court's jurisdiction had been invoked under 28

U.S.C. § 1254, it was, in a sense, derived from that of the Fifth
Circuit. If the latter lacked jurisdiction over the appeal from the
abstention order,^3 does it not follow that the Supreme Court would
have been without jurisdiction to reverse the judgment of the court of
appeals?24

In Idlewild Bon Voyage Liquor Corp. v. Epstein^^ the Supreme
Court was again confronted by this question. Rather than appearing
in the pristine form found earlier in Thibodaux, the issue of appellate
jurisdiction in Idlewild was clouded by the compound nature of the
order appealed from. Not only had the district judge abstained, he
had also denied a motion to convene a three-judge court with leave,
however, to renew the motion after the state court determined
whether the challenged state statute was applicable to plaintiff.^^

Instead of addressing this matter squarely, the Court contented itself

with the following observation: "The Court of Appeals properly
rejected the argument that the order of the District Court 'was not
final and hence unappealable under 28 U.S.C. §§ 1291, 1292,' pointing
out that *[a]ppellant was effectively out of court.' "^'^

Although the matter of appellate review of a district court's
refusal to empanel a three-judge court has subsequently been
clarified,28 to this day the meaning of the Court's statement in

22Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 718 (1838) (Baldwin, J.)

(emphasis supplied).

^^See text accompanying notes 101-08 infra.
24Had the Court dismissed the appeal for want of jurisdiction and instructed the

Fifth Circuit to do likewise, the outcome would have been the same—the parties would
have been directed to the state courts for resolution of the state law issue.

2^370 U.S. 713 (1962) (per curiam). In Idlewild, petitioners sought to enjoin the

state liquor authority from interfering with their business and to obtain a judgment
declaring that the state statutes, as applied, were unconstitutional.

2«Idlewild Bon Voyage Liquor Corp. v. Rohan, 188 F. Supp. 434 (S.D.N.Y. 1960),
appeal dismissed, 289 F.2d 426 (2d Cir.), request to convene three-judge court denied, 194

F. Supp. 3 (S.D.N.Y.), cert, granted sub nom. Idlewild Bon Voyage Liquor Corp. v.

Epsteih, 368 U.S. 812 (1961), remanded, 370 U.S. 713, acq., 212 F. Supp. 376 (1962)

(abstention improper after lengthy procedural delays), affd sub nom. Hostetter v. Idle-

wild Bon Voyage Liquor Corp., 377 U.S. 324 (1964).

2^370 U.S. at 715 n.2, quoting Idlewild Bon Voyage Liquor Corp. v. Rohan, 289
F.2d at 428.

28When a single judge refuses to request convention of a three-judge court, but

retains jurisdiction, review of his refusal is available in the court of appeals.

Schackman v. Arnebergh, 387 U.S. 427 (1967), citing Idlewild. In commenting on

Schackman, Professor Currie wrote that "[i]t was nice to know that Idlewild had
upheld the power of the Court of Appeals, since the Court in Idlewild had not bothered

telling us what it was doing." Currie, Appellate Review of the Decision Whether or Not

to Empanel a Three-Judge Federal Court, 37 U. Chi. L. Rev. 159, 161 (1969).



1977] ABSTENTION ORDERS 561

Idlewild, insofar as it pertains to the appealability of abstention

orders, remains an enigma.

One need look no further than Daniel v. Waters^'^ for graphic
evidence of the quandary in which a litigant may find himself upon
the entry of an abstention order as to the court to which an appeal will

lie, the statutory basis for appeal, whether the order is appealable as
of right or at the discretion of both the trial and appellate courts, or
whether he must petition for a writ of mandamus. In Daniel
appellants challenged the constitutionality of a Tennessee statute and
sought both declaratory and injunctive relief. Upon the entry of an
abstention order by a three-judge district court they filed notices of

appeal to the Supreme Court and to the court of appeals as well as a
motion to intervene and complaint in state court proceedings

involving the same statute in which they expressly reserved their
federal constitutional claims for federal determination.^^ In their

jurisdictional statement appellants argued that the abstention order

was "in effect, a denial of [their] motion for a preliminary injunction"
within the meaning of 28 U.S.C. § 1253.^^ In their notice of appeal to
the Sixth Circuit they asserted that the protective appeal was taken
"pursuant to 28 U.S.C. § 1291(a)(1) [sic]."32

Although the Supreme Court failed to note probable jurisdiction
of the direct appeal, it entered the following order: "Judgment
vacated and case remanded to the District Court so that it may enter
a fresh judgment from which a timely appeal may be taken to the
Court of Appeals."^^

After the three-judge court re-entered its order upon remand,
appellants filed a second notice of appeal to the Sixth Circuit in which
they asserted that the abstention order was a final order appealable
under 28 U.S.C. § 1291, may be reviewable under 28 U.S.C. §
1292(a)(1), and is reviewable under 28 U.S.C. § 1292(b).34 In the
alternative, they requested that the appeal be treated as a petition for

a writ of mandamus under 28 U.S.C. § 1651 should the court find the
order unappealable.^^

A review of the decisions emanating from the various circuit
courts of appeals reveals a contrariety of views on the subject of the

appealability of an abstention order under 28 U.S.C. §§ 1291 and
1292.3^ Does this reflect a state of confusion and uncertainty, or do

29515 F.2d 485 (6th Cir. 1975).

30Statement as to Jurisdiction at 7, Daniel v. Waters, 417 U.S. 963 (1974).

31/d at 15-16.

32/d app., at 31a. One must wonder whether this jurisdictional hybrid was a

"typo." a Freudian slip, or a harbinger of the appeal to come.

33Daniel v. Waters, 417 U.S. 963 (1974) (mem.).

34Brief for Appellants at 7-8, Daniel v. Waters, 515 F.2d 485 (6th Cir. 1975).

35/d. at 9. See text accompanying notes 57-60 infra and note 126 infra.

36 Because the abstention doctrine has its roots in federalism, its application in

the District of Columbia might be inapposite. Sullivan v. Murphy, 478 F.2d 938, 962



562 INDIANA LAW REVIEW [Vol. 10:556

the precedents shape and define more than one road leading to the
appellate courts?

11. The Modes of Exercising Appellate Jurisdiction

A. Section 1291—The Final Judgment Rule
The final judgment rule is embodied in the provision of the

Judicial Code conferring on the courts of appeals "jurisdiction of

appeals from all final decisions of the district courts . . . except where

a direct review may be had in the Supreme Court."^'^
Although the Court has been unable to devise an all-encom-

passing definition of finality,^^ in most instances one may ascertain
whether a particular order is or is not final either "from the nature of

the order or from a crystallized body of decisions."^^ Nevertheless,

there still remain those marginal orders "coming within what might

be called the 'twilight zone' of finality."^^ When an appellate court is
confronted with such an order, it must determine whether or not the

order "falls on the 'finality' side of [the] twilight zone."^! In so doing

the court is not only to give "the requirement of finality ... a

n.35 (D.C. Cir. 1973). Thus, the likelihood that the court of appeals for the District of

Columbia will have to consider the issue of the appealability of abstention orders

appears remote.
3^28 U.S.C. § 1291 (1970). While the basic rationale of the final judgment rule is

conservation of judicial resources, DiBella v. United States, 369 U.S. 121, 124 (1962)

("undue litigiousness and leaden-footed administration of justice" are discouraged by

the insistence on finality and prohibition of piecemeal review), the requirement of

finality also helps to ensure the correct disposition of a case on the merits and serves

to maintain greater respect for the trial courts. Note, Appealability in the Federal

Courts, 75 Harv. L. Rev. 351, 351-52 (1961) [hereinafter cited as Appealability in the

Federal Courts].

38Dickinson v. Petroleum Conversion Co., 338 U.S. 507, 508 (1950). Generally a

final decision is "one which ends the litigation on the merits and leaves nothing for the

court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233

(1945). However, an order or decision need not necessarily be the last which could
possibly be made in a case to come within the meaning of section 1291. Gillespie v.
United States Steel Corp., 379 U.S. 148, 152 (1964).

While some definitions relate to the chronology of the proceedings, others focus on
the rights of the litigants. See Appealability in the Federal Courts, supra note 37, at

353-54. A definition of finality which rests upon an order's concluding all rights that
are the subject of the litigation, however, disregards those final orders which do not
determine any rights between the parties, such as an order dismissing a complaint

without prejudice. Such orders come within the meaning of section 1291 nonetheless.
United States v. Wallace & Tiernan Co., 336 U.S. 793 (1949).

39WRIGHT, supra note 2, § 101, at 505.

40Gillespie v. United States Steel Corp., 379 U.S. at 152 (Black, J.).
4iDickinson v. Petroleum Conversion Corp., 338 U.S. at 518 (Black, J., dissent-

ing).



1977] ABSTENTION ORDERS 668

'practical rather than a technical construction/ "*^ but also to weigh

competing considerations, the most important of which are "the
inconvenience and costs of piecemeal review on the one hand and the
danger of denying justice by delay on the other. "^^^

Should postponement of the exercise of jurisdiction inherent in

abstention be equated with an "extended state of suspended anima-

tion,"^^ it might be argued that an abstention order is among those
marginal orders falling on the finality side of the twilight zone.

However, none of those courts which have assumed jurisdiction of an
appeal from an abstention order under section 1291 have addressed

the order in those terms. At the same time, none have found that
relief had been finally denied by the district court.'^^ None have
undertaken an "evaluation of the competing considerations under-

lying all questions of finality."'*^ Not one has explained why it should
not heed the caveat that the final judgment rule precludes intrusion
by appeal so long as the matter before the district court "remains
open, unfinished or inconclusive."'*'^ Does it follow that all perceive

the statement in Idlewild as a crystallization of the Court's position on

this matter, notwithstanding its obvious lack of clarity?'*^

It was apparently on this basis that the First Circuit held that an
"abstention order is clearly appealable as a final order under 28
U.S.C. § 1291."^^ Its decision in Druker v. Sullivan was rendered in

42Gillespie v. United States Steel Corp., 379 U.S. at 152.

^^Dickinson v. Petroleum Conversion Corp., 338 U.S. at 511.

44Hines v. D'Artois, 531 F.2d 726, 730 (5th Cir. 1976). See note 73 infra.
^^For an order to be "final," it must have the effect of resolving litigation on the

merits. Williams v. Mumford, 511 F.2d 363, 366 (D.C. Cir. 1975).
"^Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 171 (1974) (emphasis supplied).
*''Cf. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949) (order no

longer open to reconsideration may be considered final for purposes of appeal). Having
retained jurisdiction, the district court may vacate its abstention order should the state
courts decline to hear the case, see Fralin & Waldron, Inc. v. City of Martinsville, 493
F.2d 481, 483 (4th Cir. 1974), or engage in "deliberate judicial footdragging," see
NAACP v. Gallion, 290 F.2d 337, 342 (5th Cir. 1961).

^If Idlewild is such a crystal, it would appear to have an internal flaw. "[N]o
relief has been finally denied in federal court" where, under Pullman abstention, the
district court retains jurisdiction while the state-law issues are adjudicated in state

court. MTM, Inc. v. Baxley, 420 U.S. 799, 806 n.l (1975) (concurring opinion), citing
Idlewild as a case involving Pullman abstention. See text accompanying notes 180-82
infra.

49Druker v. Sullivan, 458 F.2d 1272, 1274 n.3(lstCir. 1972). citing Idlewild and 9
Moore's Federal Practice H 110.20[4.-2], at 251 (2d ed. 1973), affg 334 F. Supp. 861
(D. Mass. 1971). Appellants in Druker sought a declaratory judgment that municipal
ordinances imposing rent control on certain property were unconstitutional under the
Supremacy Clause. The district court stayed proceedings pending state court
determination of the validity of the action of the Rent Board. In Druker the First
Circuit made no mention of the Supreme Court's failure to reject a Fifth Circuit
holding that an abstention order was unappealable under the final judgment rule. See
text accompanying notes 67-69 infra and text accompanying notes 19-21 supra.



564 INDIANA LAW REVIEW [Vol. 10:556

1972. In succeeding years the Ninth, Seventh, and perhaps the Sixth

Circuits became part of its rank and file; but not all circuits have
joined the march.^^

In Moses v. Kinnear^^ the Ninth Circuit appeared to align itself

even more closely with Idlewild than had the Druker court when it
adopted the following rule:

"If there is no action pending in a state court and the

district court stays the action before it and directs the parties

to go to the state court to obtain a ruling as to what the state
law is, the stay is appealable as a final order under 28 USC §
1291. If injunctive relief is sought in the district court action,

such a stay is also appealable as a denial of an injunction

under 28 USC § 1292(a)(l)."52

^^See text accompanying notes 62-72 infra.
5^90 F.2d 21 (9th Cir. 1973). In Moses declaratory and injunctive relief were

sought against the imposition of a state excise tax. The stay appealed from, however,
was not the product of the district court's application of the judicially-fashioned
abstention doctrine, but rather its conclusion that the action was statutorily barred by
the Tax Injunction Act, 28 U.S.C. § 1341 (1970), where adequate state court remedies
were available. Because the effect of such a stay is indistinguishable from that of an
abstention order, it is not surprising that the Ninth Circuit relied on the same
authority as had the Druker court to hold the order appealable under 28 U.S.C. §§ 1291,
1292.

Twenty-five years earlier one writer had suggested that Congress might draw
upon the provisions of the Tax Injunction Act and the Johnson Act, 28 U.S.C. § 1342
(1970), in order to statutorily deny original federal jurisdiction in cases presenting a
claim of federal invalidity in state legislative or administrative action where a "plain,
speedy, and efficient remedy" is available in the state courts. Wechsler, Federal
Jurisdiction and the Revision ofthe Judicial Code, 13 Law & CONTEMP. Prob. 216, 229-
30 (1948). By incorporating this suggestion in its proposals regarding abstention so as
to "require or permit a stay in defined situations in which a state court determination

is preferable to federal determination," the American Law Institute sought to
eliminate the principal flaws in the present scheme. By adopting clear standards for
abstention, there would no longer be uncertainty as to when a state or a federal court is
the proper forum; thus, cases would no longer be shuttled from one court to another.

ALI Study, supra note 12, at 284-85.
52490 F.2d at 24 (Jameson & Barnes & Choy, J.J.), quoting 9 Moore's Federal

Practice U 110.20 [4.-2], at 251 (2d ed. 1973); accord, Rancho Palos Verdes Corp. v.
City of Laguna Beach, 547 F.2d 1092 (9th Cir. 1976) {Pullman abstention appropriate).
Compare Moses and Rancho Palos Verdes with Romero v. Weakley, 226 F.2d 399, 400 &
n.l (9th Cir. 1955) ("All the parties also are agreed that the [abstention orders] are

appealable. Apart from the agreement we hold these are appealable decisions.
Alternatively, appellants sought a writ of mandamus. Our remanding order is, in effect,
sych a writ."). But cf. Sea Ranch Ass'n v. California Coastal Zone Conservation Comm'ns,
537 F.2d 1058, 1061 (9th Cir. 1976) (Wright & Barnes & Browning, J.J.)(abstention
order, as modified by three-judge court's denial of preliminary injunction, is appealable
under 28 U.S.C. § 1292(a)(1); alternatively jurisdiction lies under the All Writs Act).
Implicit in Sea Ranch is the holding that prior to its modification, the abstention order
was unappealable under 28 U.S.C. §§ 1291, 1292(a)(1). Although he wrote neither
opinion. Judge Barnes sat on the panels which decided Moses and Sea Ranch. After



1977] ABSTENTION ORDERS 565

Although the court of appeals held the order appealable "as a
final order" and "as a denial of an injunction"—an interlocutory order

in this instance— it does not follow that an order staying an action is

final and interlocutory at one and the same time.^^ Because these
terms are mutually exclusive, to hold that an order is final and
therefore appealable under section 1291 precludes holding that it is

an interlocutory order of a certain class and therefore appealable

under section 1292(a)(1). The converse would obtain as well.
Arguably then, before deciding whether a district court order is
appealable, an appellate court must determine whether or not it falls
on the finality side of the twilight zone, i.e., whether the order is final

or interlocutory. Once that determination is made, the appealability
of a particular order will be governed not by the appellate court, but

by the dictates of the jurisdictional provision itself.

The Seventh Circuit has consistently held that an abstention order
is appealable under section 1291.^^ In its opinion in Drexler v. South-
west Dubois School Corp.^'"" the court cited Idlewild as primary author-

ity, as had those deciding Druker and Moses. In none of these opinions
did the Court's statement appear, nor was there any attempt to
explain its meaning. Only the Seventh Circuit sought to justify its

holding.

Technically this case was not dismissed but merely stayed
pending litigation in the state courts and it could be argued

that the order is not appealable. However, we think it only
logical to consider this order to be a final judgment within the

calling for the parties to brief the question of the appealability of the abstention order

entered in Rancho Palos Verdes, the Ninth Circuit indicated that it was "satisfied from

ihe response of counsel that the order was appealable." 547 F.2d at 1093 n.l, citing

Idlewild and Moses.

^^To so hold would require striking the phrase "appealable as." While at first

glance it would appear that the choice of phrasing is simple another way of stating that
a stay is a final order and, as such, is appealable under section 1291, upon a second look,

it becomes apparent that the reader's attention is being directed away from rather
than toward the order itself. Having accomplished this, the writer is at liberty to
declare that the order is "appealable as" both a final and an interlocutory order.

^Vickers v. Trainor, 546 F.2d 739 (7th Cir. 1976) (abstention inappropriate);

Indiana State Employees Ass'n v. Boehning, 511 F.2d 834 (7th Cir. 1974)
(abstention inappropriate), rev'd, 423 U.S. 6 (1975) (abstention proper where state

court construction of relevant state statutes, which may require hearing demanded,
may obviate need for deciding constitutional question); Drexler v. Southwest Dubois
School Corp., 504 F.2d 836 (7th Cir. 1974).

^=504 F.2d 836 (7th Cir. 1974) (rehearing in banc) (abstention improper in civil

rights action). Plaintiff, a nontenured teacher whose contract had not been renewed,

brought an action under the Civil Rights Act, 42 U.S.C. § 1983 (1970). Noting that a

paramount state interest was involved, the district court abstained pending resolution

of state law issues by the Indiana courts.



566 INDIANA LAW REVIEW [Vol. 10:556

meaning of 28 U.S.C. § 1291 and there is ample precedent to
support this conclusion.^^

Idlewild and Druker provided Judge Celebrezze ample authority
for his belief that an abstention order entered by a single district
judge is appealable to the courts of appeals under section 1291.^^

However, for this dissenter to conclude that the Sixth Circuit had
jurisdiction over the appeal in Daniel v. Waters, it was essential to
find support for the proposition that an abstention order entered by a
three-judge district court is not directly appealable to the Supreme
Court.^8 As he read it, section 1291 not only confers jurisdiction on
the courts of appeals, but limits it as well. "Section 1291 extends our

jurisdiction to all district court appeals 'except where a direct review
may be had in the Supreme Court.' "^^

The majority in Daniel refrained from discussing the basis of its
jurisdiction. However, in considering whether the Supreme Court
lacked jurisdiction over a direct appeal from the order, the court
made a statement which parallels to some extent that appearing in
the Court's Idlewild opinion. "[T]he abstention order . . . effectively

shut the federal courthouse door upon plaintiffs in their search for
timely vindication of their federal constitutional claims."^^ Does it
follow that the Sixth Circuit would have held that the abstention
order entered by a three-judge court was appealable under section
1291 had it considered the question?^!

Neither the Third nor the Fourth Circuit has discussed the
appealability of abstention orders. Instead, each has assumed
jurisdiction of an appeal from such an order—the Third in Howell v.

56504 F.2d at 838, citing Idlewild, Moses, and Druker. One must wonder whether

the court considered the basis for exercising its jurisdiction when the appeal was

initially taken. Drexler v. Southwest Dubois School Corp., 492 F.2d 1245 (7th Cir.

1974) (affirmed without published opinion).

s^Daniel v. Waters, 515 F.2d 485, 494 n.2 (6th Cir. 1975) (dissenting opinion). See

text accompanying notes 29-35 supra.

^Id. The dissent found support for his conclusion that the court of appeals, rather

than the Supreme Court, has jurisdiction over an appeal from a three-judge court's

abstention order in his reading of the Court's order in Daniel, see text accompanying

note 38 supra, and its holding in MTM, Inc. v. Baxley, 420 U.S. 799 (1975). 515 F.2d at
493 & n.l*, 494. See note 177 infra.

59515 F.2d at 494 n.2. In paraphrasing section 1291, Judge Celebrezze failed to

mention its finality requirement. His acknowledgment that the order appealed from

in Daniel merely postpones decision, i.e., it falls short of adjudicating the merits of the

case, suggests that it was not final. Id. at 493.
60515 F.2d at 492.

6iThe proviso excepting those final decisions from the jurisdiction of the courts of

appeals where direct appeal to the Supreme Court is available would have been no

obstacle to the majority's assuming jurisdiction in Daniel under section 1291. From its
finding that the challenged statute was patently unconstitutional, it follows that a

three-judge court was unnecessary; thus, no direct appeal would lie under 28 U.S.C. §
1253.



1977] ABSTENTION ORDERS 567

Citizens First National Bank^^ and the Fourth in Fralin & Waldron,
Inc. V. City of Martinsville^^—without considering this threshold

issue. It is not likely that either would follow Druker. Support for
this premise is derived from a reference in the Fralin opinion to "this
interlocutory appeal"^"* and from a recent Third Circuit decision in
which the court held that a stay order was not a final order
appealable under section 1291.^^

The Fifth Circuit has yet to follow the Idlewild-Druker line of
cases; instead it has consistently held that an abstention order is not

appealable under the final judgment rule.^^ In City of Thihodaux v.

^^385 F.2d 528 (3d Cir. 1967) (abstention inappropriate where questions involved

were purely federal). In Howell the state banking commissioner sought to enjoin a

national bank from operating a second branch bank on the ground that such was

violative of state and federal law. The district court abstained pending institution of

state court proceedings.

63493 F.2d 481 (4th Cir. 1974) (Clark, J.) (abstention appropriate where

determination of federal constitutional question and needless conflict with state's

administration of purely state affairs might be avoided). The district court abstained
in an action for declaratory judgment, injunctive relief, and damages against the city
for its refusal to grant a special use permit. -^

'^Id. at 482. It seems unlikely that Mr. Justice Clark, sitting by designation on the

panel which decided Fralin and on the Court which decided Idlewild, would use this

term unadvisedly. But see Amdur v. Lizars, 372 F.2d 103, 105-06 (4th Cir. 1967). The
Amdur court held that where an order staying proceedings pending termination of
similar proceedings in another court amounts to a dismissal, it is appealable as a final

order under section 1291. Fralin and Amdur are readily distinguishable. In Amdur,
the district judge acknowledged that the practical effect of his order was a dismissal.
The Fralin court, on the other hand, retained jurisdiction. Thus, Mr. Justice Clark
noted that should the state courts decline to hear the case, "it will be soon enough to

return to the federal court for disposition of the merits." 493 F.2d at 483.

e^Cotler v. Inter-County Orthopaedic Ass'n, 526 F.2d 537, 540 (3d Cir. 1975);

accord. Amy v. Philadelphia Transp. Co., 266 F.2d 869 (3d Cir. 1959). But see Joffee v.
Joffee, 384 F.2d 632 (3d Cir. 1967) (per curiam) (order similar to that in Amy affirmed
without discussion of its appealability), cert, denied, 390 U.S. 1039 (1968). In Cotter

defendants were charged, inter alia, with violating section 10(b) of the Securities and

Exchange Act of 1934, 15 U.S.C. § 78j (1970). Their motion to stay federal proceedings
during the pendency of state court actions arising out of the same operative facts was
granted by the district court. Appellant's argument that "the indefinite stay . . . has
the same practical effect as a final dismissal, and should ... be treated as such" was
rejected. 526 F.2d at 540. Regardless of the duration of the state court actions, the

district court must ultimately determine the section 10(b) claim over which it had
exclusive jurisdiction. The federal claim may be "old and feeble at the end of the state
court litigation, but it will not be dead." Id. The Cotter court did not attempt to
distinguish Joffee, but concluded that the per curiam disposition there had not

diminished the precedential value of Amy.
66Gray Line Motor Tours, Inc. v. City of New Orleans, 498 F.2d 293 (5th Cir.

1974); Public Employees Local 1279 v. Alabama, 453 F.2d 922 (5th Cir. 1972); City of
Thibodaux v. Louisiana Power & Light Co., 255 F.2d 774 (5th Cir. 1958); cf Mercury
Motor Express, Inc. v. Brinke, 475 F.2d 1086 (5th Cir. 1973) (proceedings stayed

pending final action by ICC). But cf Hines v. D'Artois, 531 F.2d 726 (5th Cir. 1976)
(order staying employment discrimination case pending final EEOC determination on
the same charge appealable under section 1291).



568 INDIANA LAW REVIEW [Vol. 10:556

Louisiana Power & Light Co^^ the court of appeals cited Baltimore
Contractors, Inc. v. Bodinger^^ as authority for its holding that an
abstention order is not a final decision within the meaning of section
1291. In Baltimore Contractors the Supreme Court had held that an
order refusing to stay a suit for an accounting pending arbitration

was "an interlocutory order" and as such "could not be called a final
decision under § 1291."^^ Because the Court considered that orders
granting or denying a stay of proceedings were interlocutory rulings,
it was of no moment that the order appealed from in Thihodaux
stayed the district court action until the Louisiana Supreme Court
had been afforded an opportunity to interpret a previously uncon-
strued state statute upon which the city's expropriation order was
based.

In a decision rendered shortly before Druker, the Fifth Circuit

boldly asserted that "[i]t is undisputed that the [abstention] order

appealed from is not a final one.'"^^ In striking contrast is its opinion
in Gray Line Motor Tours, Inc. v. City ofNew Orleans,^^ a ^o^i-Druker
decision. In Gray Line the majority did not expressly reject the final
judgment rule as a means of assuming jurisdiction over an abstention
order, but it did so implicitly.'^^

Judge Goldberg, the dissenting member of the Gray Line court,
abandoned the Fifth Circuit's traditional stance on this issue and
joined forces with Druker and its ilk.'^^ j^ doing so he noted that

67255 F.2d 774 (5th Cir. 1958). See text accompanying note 20 supra.
68348 U.S. 176 (1955).

69/d at 179.

^oPublic Employees Local 1279 v. Alabama, 453 F.2d at 924 (appeal dismissed for

want of jurisdiction) (emphasis supplied). Abstention was ordered in this declaratory
judgment action challenging the constitutionality of an Alabama statute. After
denying a motion for reconsideration of its abstention order, the district court certified

the cause for appeal under 28 U.S.C. § 1292(b) (1970). See text accompanying notes

144-46 infra.
^^498 F.2d 293 (5th Cir. 1974) (abstention appropriate where issue of state law

which had never been decided by state courts might be dispositive of second of

plaintiffs allegations). Plaintiff alleged that burdens imposed by the city on it in the

operation of its business constituted interference with interstate commerce and that
gross receipts tax was invalid under state law and violated the United States
Constitution and a federal statute. The district court granted the city's motion for

summary judgment on the first claim, but postponed consideration of the second until
the state courts had an opportunity to consider the legality of the tax under state law.

^^On appeal, the majority held that the partial summary judgment on the first
claim was not final within the meaning of section 1291 and was, therefore,
unappealable in the absence of a Rule 54(b) certification. Fed. R. Civ. P. 54(b). Id. at

295. To conclude that, in the language of Rule 54(b), the order "adjudicates fewer than

all the claims," necessitated the majority's first holding that the entry of the abstention

order as to the second claim was not tantamount to a final decision.
73498 F.2d at 300 (Goldberg, J., dissenting); cf. Hines v. D'Artois, 531 F.2d 726

(5th Cir. 1976) (Goldberg, J.) (order staying employment discrimination case pending

final determination by EEOC on same charge appealable as final decision under



1977] ABSTENTION ORDERS 569

''Idlewild's teaching, gleaned by both courts and commentators,
instructs us^^ that where, as in the present case, no state court action

is pending at the time of a federal court's determination to abstain,
the abstention order is a final decision appealable under 28 U.S.C. §
1291."^^

Unlike others who have cited Idlewild as authority. Judge
Goldberg incorporated portions of the opinions of both the court of
appeals and the Supreme Court in his dissenting opinion. First to
appear is an excerpt from the opinion of the Second Circuit.

Appellees' argument that this Appellees' argument that this
order was not final and hence order was not final and hence
unappealable under 28 U.S.C. unappealable under 28 U.S.C.

§§ 1291, 1292 is not well tak- §§ 1291, 1292 is not well tak-

en. No parallel state actions en. No parallel state actions
were pending and there was no were pending and there was no
state adjudication to await, state adjudication to await.

There was nothing to be There was nothing left to be
done in federal court be- done in the federal courts be-
cause the action there had for cause the action there had been
all intents and purposes con- for all intents and purposes con-
cluded. Appellant was effec- eluded. Appellant was effec-
tively out of court—^^ tively out of court—any action

upon its prayer for injunctive
relief was indefinitely post-
poned under these circum-
stances. There is no bar on this
ground to appealability. See
Glen Oaks Utilities, Inc. v. City
of Houston, 5 Cir., 1960, 280
F.2d 330.77

section 1291). In D'Artois, Judge Goldberg concluded that a practical construction of

the requirement of finality requires that "when a plaintiffs action is effectively dead,

the order which killed it must be viewed as final. Effective death should be understood

to comprehend any extended state of suspended animation." Id. at 730. The Fifth

Circuit's decision in DArtois suggests that it too may soon be part of the Idlewild-
Druker fold.

^^[Author's footnote]. Judge Goldberg had cause to choose the word "us." He
apparently became aware that there were those who would take issue with the Fifth
Circuit on this matter after having sat on the panels which decided Public Employees
Local 1279 v. Alabama, 453 F.2d 922, 924 (5th Cir. 1972) ("It is undisputed that the
[abstention] order appealed from is not a final one."), and Mercury Motor Express, Inc.
V. Brinke, 475 F.2d 1086, 1090 (5th Cir. 1973) ("Plainly, the [order staying the proceed-
ings pending final ICC action] is not appealable as a final order under 28 U.S.C. §
1291.").

^M98 F.2d at 300 (Goldberg, J., dissenting), citing Druker and 9 Moore's
Federal Practice v 110.20[4.-2], at 251 (2d ed. 1973).

^^/d., quoting the Second Circuit's Idlewild opinion.

^^Idlewild Bon Voyage Liquor Corp. v. Rohan, 289 F.2d at 428.



570 INDIANA LAW REVIEW [Vol. 10:556

After indicating that the Supreme Court "explicitly approved
this holding, '"^8 he quoted a portion of its opinion.

The Court of Appeals properly The Court of Appeals properly
rejected the argument that the rejected the argument that the
order of the District Court order of the District Court

[was not final].*^^ "was not final and hence unap-

pealable under 28 U.S.C. §§
1291, 1292," pointing out that

"[a]ppellant was effectively out
of court." 289 F.2d at 428.8o

But what is "this holding"?
Before attempting to answer that question, notice must be taken

of the nature of the object of the Idlewild appeal. The order
confronting the Second Circuit denied a motion to empanel a three-
judge court and abstained from considering a renewal of such a
motion until the state court had ruled on whether the challenged
statute was applicable to plaintiff.

In its opinion the court of appeals appeared to address each
segment of the order separately. As to appealability of the abstention
order, only upon a careful reading of the quoted excerpt does the
court's holding emerge: where an abstention order is entered in an
action seeking only declaratory and injunctive relief, it operates as a
denial of the latter and is, therefore, appealable under section
1292(a)(l).^^ The court's choice of words^^ and the authority cited^^
make this conclusion inescapable. Furthermore, the court's obser-
vation that "[t]here is no bar on this ground to appealability"^^
precludes interpretation of the opinion as having held that the

abstention order was also appealable under section 1291, for this
comment clearly suggests that the court had, in fact, considered that
provision as a possible avenue of appeal, but rejected it.

A different result obtained as to the basis for the court's assuming
jurisdiction over the other component. Finding that the convening of

a three-judge court is mandated where state activity is challenged on

7^98 F.2d at 300 (dissenting opinion).
'^Hd., quoting the Supreme Court's Idlewild opinion.
soidlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. at 715 n.2. But see

Gonzalez v. Automatic Employees Credit Union, 419 U.S. 90, 100 n.l9 (1974).
81289 F.2d at 428 (by implication). See text accompanying note 77 supra and

notes 120-23 infra.

82"Appellant was effectively out of court—any action upon its prayer for
injunctive relief was indefinitely postponed under these circumstances." 289 F.2d at
428.

83Glen Oaks Util., Inc. v. City of Houston, 280 F.2d 330 (5th Cir. 1960). See text
accompanying notes 117-19 infra.

8^289 F.2d at 428 (emphasis supplied).



1977] ABSTENTION ORDERS 571

constitutional grounds^^ and where the district judge finds that a
substantial federal question exists,^^ the Second Circuit apparently

concluded that denial of plaintiffs motion to impanel such a court,

when conjoined with an order operating as a denial of a preliminary
injunction, had the effect of dismissing the complaint.^"^ Implicit in
this is the holding that such a denial is appealable under section 1291.

It is clear that the Supreme Court held that the court of appeals
had jurisdiction over the appeal from the district court order, but it
can hardly be said that it "explicitly approved" either or both of the

holdings proffered above. Evidence of such approval, if any, must be
gleaned from the balance of the Court's per curiam opinion.

Should there be any doubt that the Supreme Court regarded the
district court's refusal to convene a three-judge court as a final

decision within the meaning of section 1291, it should be dispelled by
the following rebuke. "[T]he applicable jurisdictional statute . . .

made it impermissible for a single judge to decide the merits of the
case, either by granting or by withholding relief."^^ This conclusion is
further reinforced by its observation that the criteria for convening
such a court were "assuredly met" in Idlewild.^^ Thus, it may be said
with some assurance that the Second Circuit's holding as to the
appealability of this segment of the order under section 1291 bears
the imprimatur of the Supreme Court.^^

^Hd. at 428-29. Implicit in the district court's decision was its finding that a
substantial federal question existed. Id. at 429 n.2.

s^d at 428. Cf. Gold v. Lomenzo, 425 F.2d 959, 961 n.2 (2d Cir. 1970) ("Since the
order denying a preliminary injunction is appealable to us, 28 U.S.C. § 1292(a), we
need not decide whether the denial of a three-judge court, standing alone, would be
sufficiently 'final' to enable us to review it under 28 U.S.C. § 1291."). Although the
Second Circuit found the order in Idlewild to be appealable under 28 U.S.C. §§ 1291,
1292, it held that it had no jurisdiction to entertain the appeal. 289 F.2d at 429.

^370 U.S. at 715 (emphasis supplied). The district judge's recognition that
abstention involved postponement of jurisdiction, not its abdication, and that a single
judge to whom application has been made to convene a three-judge district court could
not consider substantive issues presented by the complaint, clearly indicates, that he
did not perceive his order to be a decision on the merits. Idlewild Bon Voyage Liquor
Corp. V. Rohan, 188 F. Supp. at 436-37. Was it imperative that the Court conclude that
the district judge had, by the entry of his order in Idlewild, decided the case on the
merits in order to hold that the order was appealable under section 1291 and thus
establish a jurisdictional base for its having granted the petition for writ of certiorari
to the Second Circuit since it chose not to take formal action on the petition for a writ of
mandamus?

^^370 U.S. at 715. The standards to be applied by a single district court judge in
deciding whether a three-judge court should be convened are: "whether the
constitutional question raised is substantial, whether the complaint at least formally
alleges a basis for equitable relief, and whether the case presented otherwise comes
within the requirements of the three-judge statute." Id.

^But see Gonzalez v. Automatic Employees Credit Union, 419 U.S. 90, 100 n.l9
(1974). See text accompanying notes 180-82 infra.



572 INDIANA LAW REVIEW [Vol. 10:556

Inclusion of section 1292 in its quotation of the passage from the
opinion of the court of appeals suggests that the Supreme Court
similarly endorsed the Second Circuit's holding that the abstention

order was appealable as an interlocutory order under that section.
Approval of this holding, however, would have been tantamount to a
sub silentio overruling of the Enelow-Ettelson rule^^ and a con-
comitant extension of appellate jurisdiction under section 1292(a)(1),
neither of which appears to have occurred as a result oildlewild.^^ In

this regard, the fact that the Court spoke in terms of the lower court's

"withholding relief'^^ rather than "refusing injunctive relief may be
significant, as may be the point at which it chose to end the
quotation, ^"^ and the fact that the Court appeared to limit its scope of
review to the propriety of the court's refusal to convene a three-judge

court. The only direct reference to abstention in the Court's opinion is
the comment that the district judge retained jurisdiction to afford the
state courts an opportunity to pass upon the constitutional issues
presented. ^^ However, a holding that the district judge lacked

jurisdiction to order abstention might be inferred from the following
statement: "When an application for a statutory three-judge court is
addressed to a district court, the court's inquiry is appropriately

limited to determining whether [the criteria for convening such a
court were met]."^

B. Section 1292—Interlocutory Orders
1. Appeals of Right Under Section 1292(a)(l)9"

a. Action-at-Law Avenue

The Fifth Circuit's view that abstention is an elaborate type of
stay paved the way for appellate review of the abstention order
entered in City of Thibodaux v. Louisiana Power & Light Co.^^
Having rejected section 1291 as an appropriate mode of exercising its
appellate jurisdiction,^^ the court nonetheless concluded that the

^^See text accompanying notes 105-07 infra.
^To the dismay of some members of the Court the Enelow-Ettelson rule appears

to be alive and well. See, e.g., Rederi A/B Disa v. Cunard S.S. Co., 389 U.S. 852, 853-54

(1967) (Black. J., dissenting) denyiyig cert, to 376 F.2d 125 (2d Cir. 1967) (order staying

judicial proceedings pending arbitration not appealable). See text accompanying notes

105-07 infra.

93The term "withholding" does not appear in 28 U.S.C. § 1292(a)(1) (1970).

^^Compare text accompanying note 77 supra with that accompanying note 80

supra.

95370 U.S. at 714.

^Id. at 715.

9"28 U.S.C. § 1292(aXl) (1970). For an overview of the legislative history of this

jurisdictional statute, see Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 181

(1955). See generally Appealability in the Federal Courts, supra note 37, at 367-75.

9^255 F.2d 774 (5th Cir. 1958) (Jones, J.), rev'd, 360 U.S. 25 (1959).

^Id. at 776. See text accompanying notes 66-69 supra.



1977] ABSTENTION ORDERS 573

order was appealable as of right under the predecessor of 28 U.S.C. §
1292(a)(1). This section, which operates as an exception to the final

judgment rule, confers on the courts of appeals jurisdiction of appeals
from interlocutory orders "granting, continuing, modifying, refusing

or dissolving injunctions, or refusing to dissolve or modify injunc-

tions, except where direct review may be had in the Supreme
Court."ioo

The fact that the order before it was "not an injunction in form"^<^^
did not deter the court in its effort to bring this order within the

penumbra of section 1292(1). Believing that abstention was inappro-
priate in an expropriation proceeding and that, in any event, the
exceptional circumstances which would justify application of that
doctrine were absent,^^^ the Fifth Circuit found itself in a dilemma

—

caught as it were between precedents on the one hand which would
require it to reverse the distirct court's abstention order^^^ and those
on the other which would preclude its reviewing that order. i^'' A
Second Circuit interpretation of the Enelow-Ettelson rule,^^^ the

settled rule governing the appealability of stay orders in federal

courts, provided a narrow corridor through which escape was
possible.

"Amid the existing confusion of decisions it is hard to
proceed with assurance; but we take it as now settled that the
grant, or denial, of a stay in an action that would have been a
suit in equity before the fusion of law and equity is now not
appealable under § 1292(1) of Title 28; but, if the order is in an

action that would have been an action at law before that time,

it is appealable."!^^

Because the district court had stayed an action at law, access to the
appellate court was assured. This, in turn, enabled the Fifth Circuit
to reverse the order of the trial court.

10028 U.S.C. § 1292(a)(1) (1970).
101255 F.2d at 776.

102/d. at 779. Mr. Justice Brennan, writing for the three dissenters, agreed with
the Fifth Circuit on both points. Louisiana Power & Light Co. v. City of Thibodaux,
360 U.S. at 32 (Brennan, J., dissenting).

103255 F.2d at 777.

104/d. at 776 n.5, citing Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176
(1955); Ettelson v. Metropolitan Life Ins. Co., 317 U.S. 188 (1942); Enelow v. New York
Life Ins. Co., 293 U.S. 379 (1935).

losEttelson v. Metropolitan Life Ins. Co., 317 U.S. 188 (1942); Enelow v. New York
Life Ins. Co., 293 U.S. 379 (1935). Operation of this rule converts certain stay orders
into orders granting or denying injunctions which are appealable under 28 U.S.C. §
1292(a)(1) (1970). 9 Moore's Federal Practice ^ 110.20[4.-2], at 251 n.l3 (2d ed.
1975).

106255 F.2d at 777, quoting Council of W. Elec. Technical Employees-Nat'l v.
Western Elec. Co., 238 F.2d 892, 894 (2d Cir. 1956) (Hand, J.).



574 INDIANA LAW REVIEW [Vol. 10:556

Four years later the Fifth Circuit acknowledged that the Enelow-
Ettelson rule had a second element.

An order staying or refusing to stay proceedings in the
District Court is appealable under § 1292 (a)(1) only if (A) the
action in which the order was made is an action which, before
the fusion of law and equity, was by its nature an action at
law; and (B) the stay was sought to permit the prior
determination of some equitable defense or counterclaim. ^^"^

Because the abstention order in Thibodaux was not based on an
equitable defense or cross-bill, but was merely an assertion by the
district court of its equitable powers in furthering the harmonious
relation between state and federal authority, it failed to satisfy the
second of the jurisdictional requisites. Thus, it would appear that the
court of appeals should not have considered the matters brought
before it by way of appeal in Thibodaux.^^^

b. Injunction-Denied Road

In Gray Line Motor Tours, Inc. v. City ofNew Orleans,^^^ an action
in which injunctive relief was sought, the Fifth Circuit found that the
abstention order entered therein did not meet the two-prong Enelow-
Ettelson test^^^ In this instance, neither requirement was satisfied.
Nonetheless, the court found an alternative avenue of appeal—the
"injunction-denied" rule: where the abstention order itself has "the
effect of denying a preliminary injunction," it is subject to review

under section 1292(a)(l).iii This rule is closely akin to the construc-
tive order doctrine. ^^^ Both adopt a functional approach to defining
the term "injunction" for purposes of appeal under section 1292(a)(1).
Both originated in the Fifth Circuit, the injunction-denied rule in

Glen Oaks Utilities, Inc. v. City of Houston^^^ and the constructive

io7Jackson Brewing Co. v. Clarke, 303 F.2d 844, 845 (5th Cir. 1962) (emphasis in

original).

i°8Recognizing this as a distinct possibility, respondent argued that the court of

appeals "could, and should have, reached the same result by granting a writ of
mandarmis. " Brief in Opposition to Petition for Certiorari at 9, Louisiana Power &
Light Co. V. City of Thibodaux, 360 U.S. 25 (1959) (emphasis in original).

109498 F.2d 293 (5th Cir. 1974). See note 71 supra.

^^^See text accompanying note 107 supra.
11^98 F.2d at 298. The Second Circuit applied this rule in Idlewild. See text

accompanying note 81 supra.
ii2Cotler V. Inter-County Orthopaedic Ass'n, 526 F.2d 537, 541 (3d Cir. 1975). The

Cotler court coined the phrase "constructive order doctrine" to describe the Fifth

Circuit's treatment of a district court's refusal to rule in certain cases as the functional

equivalent of the denial of a preliminary injunction. Employing this fiction permits an

appellate court to assume jurisdiction over an appeal from an order which was never

entered by the lower court.
"3280 F.2d 330 (5th Cir. 1960) (Jones, J.).



1977] ABSTENTION ORDERS 575

order doctrine in United States v. Lynd.^^^ While the Glen Oaks rule
requires the entry of some form of order, the constructive order
doctrine is predicated upon the district court's failure to rule on an
application for injunctive relief.^^^ Courts embracing this doctrine
have relied on the effect of the court's silence to justify their exercise

of appellate jurisdiction: where no order has been entered by the
district court, a plaintiff finds himself in the same position he would
have been in had the court ruled against him on his prayer for
injunctive relief.^^^ A similar rationale clearly underlies the Glen
Oaks rule.

In Glen Oaks, plaintiffs prayed for a temporary restraining order
and a permanent injunction. Judge Jones, writing for the court as he
had in Thihodaux, held that the district court order staying the action
was appealable under section 1292(a)(1) because it was "for all
practical purposes, a denial of the temporary injunction which was
sought."^^^ To so hold required Judge Jones to ignore a recent Fifth
Circuit holding that an order denying a temporary restraining order
is unappealable under section 1292(a)(1). ^^^ But ignore it he did, as
have the courts and commentators who have cited Glen Oaks as
authority for the proposition that a stay granted in an action seeking

only injunctive relief, including a preliminary injunction, is appeal-

able under section 1292(a)(1) as the equivalent of a denial of the
latter.119

Though not citing Glen Oaks, as it had ten years earlier in
Idlewild, the Second Circuit once more employed the rule of that case
to exercise jurisdiction over an appeal from an abstention order in
Weiss V. Duherstein.^"^^ The court held that since the denial of
plaintiffs' motion for summary judgment had the effect of "deny[ing]

"4301 F.2d 818 (5th Cir. 1962) (Tuttle, C.J.).

^^Hd. at 822. Not every such refusal to rule is appealable under section 1292(a)(1).
The standard for determining when the constructive order doctrine may be invoked
was announced in NAACP v. Thompson, 321 F.2d 199, 202 (5th Cir. 1963). See note 131
infra and accompanying text.

ii^Cotler V. Inter-County Orthopaedic Ass'n, 526 F.2d 537 (3d Cir. 1975) (declining

to adopt constructive order doctrine but commenting on its rationale).
117280 F.2d at 333.

iisConnell v. Dulien Steel Prod., 240 F.2d 414 (5th Cir. 1957) (Tuttle, J.).
ii^See Gray Line Motor Tours, Inc. v. City of New Orleans, 498 F.2d 293 (5th Cir.

1974); Mercury Motor Express, Inc. v. Brinke, 475 F.2d 1086 (5th Cir. 1973); Idlewild
Bon Voyage Liquor Corp. v. Rohan, 289 F.2d 426 (2d Cir. 1961); 9 Moore's Federal
Practice !:110.20[4.-2], at 250 & n.7 (2d ed. 1975).

120445 F.2d 1297 (2d Cir. 1971) (abstention improper); cf. Sheldon v. Smith, 547 F.2d

768 (2d Cir. 1976) (affirmed district court order denying preliminary injunction and

abstaining without discussion of appealability of abstention order); McRedmond v.
Wilson, 533 F.2d 757 (2d Cir. 1976) (reversed abstention order entered in civil rights

action seeking declaratory and injunctive relief without considering jurisdictional

question).



576 INDIANA LAW REVIEW [Vol. 10:556

the plaintiffs the temporary injunction which they sought, the portion
of the order directing abstention is appealable under 28 U.S.C. §
1292(a)(l)."i2i The fact that the holding in Weiss parallels that
implicit in the Second Circuit's Idlewild decisioni22 suggests that its
reading of the Supreme Court's opinion in the latter case is at odds
with that of the Druker court, ^^s

But what was the nature of the injunctive relief sought in Weiss;
was it an action seeking more than a declaration that a state statute
was unconstitutional? Because the order appealed from was entered
by a single district judge rather than a three-judge court, as would
have been required had plaintiffs sought "[a]n interlocutory or
permanent injunction restraining the enforcement, operation or
execution" of the challenged statute, ^^4 ^ would appear that the
"temporary injunction" to which the court referred was identical to
that sought in Glen Oaks—a temporary restraining order, the grant
or denial of which is unappealable under section 1292(a)(1).

Gray Line, Weiss, and Idlewild are but three examples of the
modification of this section by judicial fiat, that is, by an appellate
court's treatment of an order staying federal court proceedings as the
functional equivalent of the denial of a preliminary injunction. Others
are Moses v. Kinnear,^^^ a case decided by the Ninth Circuit, and
Daniel v. Waters,^^^ a Sixth Circuit case. By focusing upon the
purported effect of the district court order, these appellate courts
have lost sight of the effect of their having done so: their failure to
assume "the responsibility [incumbent upon] all courts to see that no
unauthorized entension ... of jurisdiction, direct or indirect, occurs
in the federal system''^^^ has resulted in their exercise of jurisdiction

121M at 1299.

^^^See text accompanying note 81 supra.

^^^See note 49 supra and accompanying text.
12428 U.S.C. § 2281 (1970) (repealed 1976).
125490 F.2d 21 (9th Cir. 1973). See text accompanying note 52 supra. But cf. Sea

Ranch Ass'n v. California Coastal Zone Conservation Comm'ns, 537 F.2d 1058, 1061
(9th Cir. 1976). See note 52 supra.

126515 F.2d 485 (6th Cir. 1975) (by implication). The court's statement that the
order "in effect [denied] preliminary injunctive relief suggests that had the Sixth

Circuit considered the basis of its jurisdiction, it would have relied on Glen Oaks. Id. at

492 (statement made in conjunction with discussion of Supreme Court's jurisdiction
over direct appeal from abstention order entered by three-judge district court). See

text accompanying notes 30-35 supra and 177 infra. In Daniel the Sixth Circuit

vacated the district court's abstention order and remanded the case for entry of an
order dissolving the three-judge court and an order granting preliminary injunctive

relief. 515 F.2d at 492.

i27Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 181 (1955). Because

modification of appellate jurisdiction under section 1292 falls within the legislative

domain alone, the Supreme Court lacks authority to approve or declare judicial
modification of the provision conferring jurisdiction on the courts of appeals over

certain interlocutory orders. Id.



1977] ABSTENTION ORDERS 577

over appeals from orders otherwise unappealable under section
1292(a)(1).

While it may be logical to consider that a stay of an action for
injunctive relief operates as a denial of a preliminary injunction, even

if usurpation of jurisdiction is not an issue, it does not follow that the
entry of every such order should be automatically appealable. ^^s ^s a
threshold matter the appellate court should determine whether the
trial court's entry of the stay order is tantamount to a "denial" of a
preliminary injunction. ^29 g^^ courts intent upon assuming juris-
diction of appeals from abstention orders under section 1292(a)(1)
have failed to do so.^^^ To date, no standard has been propounded by
which to make such a determination, although the standard used to
screen appeals brought under the constructive order doctrine might
be adapted for that purpose.

If the posture of the case is such that the plaintiffs rights
have been so clearly established that a failure of the trial
court to grant the injunctive relief would be set aside by an
appellate court as an abuse of discretion, then for the trial
court [to enter an abstention order in lieu of] an order either
granting or denying the relief sought may be considered ... to
be such interlocutory order refusing relief as to come within
the purview of Section 1292.^31

These same courts appear similarly disinclined to address other
problems inherent in the functional approach to appealability under
the Glen Oaks rule, such as the need for practical assessment of each

128C/. NAACP V. Thompson, 321 F.2d 199, 202 (5th Cir. 1963) (Tuttle, C.J.) ("[I]t
does not follow that every failure of a trial court to grant a temporary injunction is

tantamount to a 'refusal' of such injunctive relief."). Thompson's author found it

necessary to limit the applicability of the constructive order doctrine which he had a

hand in creating in United States v. Lynd. See text accompanying notes 112-16 supra.

'^Id.

i30See, e.g., Daniel v. Waters, 515 F.2d 485 (6th Cir. 1975). Although plaintiffs

sought preliminary and permanent injunctive relief against the enforcement of the

challenged state statute in Daniel, they failed to allege immediate and irreparable

injury or take any practical step toward obtaining a preliminary injunction. Motion to

Dismiss or Affirm at 6-7, Daniel v. Waters, 417 U.S. 963 (1974). Because the district

court found that "State determination of these matters then, will be completed well in

advance of the effective date of the amendment and, therefore, well in advance of the
contemplated constitutional infringements alleged," Jurisdictional Statement at 24a,

respondents argued that the abstention order should not be considered a denial of a

preliminary injunction; and even if it were, that under the circumstances, it could "not

be seriously maintained that the denial of a preliminary injunction was improper,"
Motion to Dismiss or Affirm at 7.

131NAACP V. Thompson, 321 F.2d 199, 202 (5th Cir. 1963). The words appearing

within brackets in the proposed standard for the Glen Oaks rule were substituted for

the phrase "to fail to enter" in the Fifth Circuit's standard for the constructive order

doctrine, as stated in Thompson.



578 INDIANA LAW REVIEW [Vol. 10:556

case^^2 and for determining whether the exercise of appellate
jurisdiction in such cases is congruent with the purpose underlying

the adoption of section 1292(a)(l).i33

As a general rule an appellate court will forgo consideration of
the merits of a case before it on interlocutory appeal, except to the

extent necessary to decide the matter supplying appellate juris-

diction. ^^^ Those courts relying on Glen Oaks to assume jurisdiction
over an appeal from an abstention order have dispensed with this
rule. They have found it to be a rule of orderly judicial administration
rather than a limitation on the court's power. ^^^ As a consequence, if
any consideration is given to whether the district court should have
granted a preliminary injunction, it is incidental to the court's

discussion of whether abstention was appropriate.

c. No Road

Whether the Third and Fourth Circuits would find an abstention
order appealable under section 1292(a)(1) is purely a matter for
conjecture at this point. Only the Third Circuit has expressly
rejected treating a stay order as the denial of injunctive relief; ^^^ and
unlike those circuits which have embraced the Glen Oaks rule, this
circuit has indicated that were it to adopt the functional approach at
some future date, compliance with the historical Enelow-Ettelson
action-at-law rule would still be essential. ^^'^

From this it follows that the Third Circuit would dismiss an
appeal from an abstention order entered in an action wherein the

^^^Appellate analysis should entail consideration of whether preliminary evalu-

ation of the merits of the prayer for injunctive relief or evaluation of whether such

relief was warranted at any point in the proceedings was implicit in the district court's
action. Williams v. Mumford, 511 F.2d 363, 370 (D.C. Cir. 1975); Bellinger v. Mitchell,
442 F.2d 782, 789 (D.C. Cir. 1971).

i33The legislative history of section 1292 does not reveal the underlying reasons for

excepting certain interlocutory orders from the final judgment rule; nonetheless, the
Court concluded that it was enacted to prevent "serious, perhaps irreparable" injury if
not corrected without delay, Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176,

181 (1955). Applying the "serious, perhaps irreparable" harm standard to abstention
orders led one writer to conclude that there could ordinarily be no such showing as the

result of the entry of such an order. "[I]f such orders are erroneously issued, there will

not be irreparable injury, but rather the ordinary delays and expenses that result from
reversible interlocutory orders." Note, Appealability of Stay Orders in the Federal

CouHs, 47 Minn. L. Rev. 1099, 1109 (1963).
i34Time, Inc. v. Ragano, 427 F.2d 219 (5th Cir. 1970).
i35Gray Line Motor Tours, Inc. v. City of New Orleans, 498 F.2d 293, 298 (5th Cir.

1974); see Weiss v. Duberstein, 445 F.2d 1297 (2d Cir. 1971); Idlewild Bon Voyage
Liquor Corp. v. Rohan, 289 F.2d 426 (2d Cir. 1961); cf. Sea Ranch Ass'n v. California
Coastal Zone Conservation Comm'ns, 537 F.2d 1058 (9th Cir. 1976) (abstention order,

as modified by denial of preliminary injunction, is appealable under section

1292(a)(1)).

i36Cotler V. Inter-County Orthopaedic Ass'n, 526 F.2d at 541. See note 65 supra.
13^526 F.2d at 540-41.



1977] ABSTENTION ORDERS 579

relief sought sounds primarily in equity. Howell v. Citizens First

National Bank^'^^ was such an action. On appeal the Third Circuit
reversed the lower court order without considering whether it had

jurisdiction to do so.

In Fralin & Waldron, Inc. v. City of Martinsville^^^ the Fourth
Circuit assumed jurisdiction of an "interlocutory appeal" from an
abstention order entered in an action for a declaratory judgment,

injunctive relief, and damages without discussion of the mode by
which its power was being exercised. Since no reference was made to
its jurisdiction's being invoked pursuant to section 1292(b), ^^^^ can it

be assumed that the court relied on section 1292(a)(1)? If so, did it

utilize the action-at-law route or the functional analysis approach?

A partial answer to this inquiry may be found in an earlier
Fourth Circuit opinion: where both legal and equitable claims are
asserted, the action should be characterized as equitable, for

purposes of the Enelow-Ettelson rule, unless the equitable relief

sought is "merely incidental" to the legal cause of action. ^^i In

Fralin there is no indication that the prayer for injunctive relief was
incidental to the claim for damages. If it is assumed that it was not,
the action would be characterized as equitable, and the abstention
order would be unappealable under the Enelow-Ettelson rule.

This circuit has yet to consider the functional approach to
exercising jurisdiction under section 1292(a)(1). Whether it would
adopt the Glen Oaks rule should it find no other avenue available for
reviewing an abstention order, as appears to be the case in Fralin, is

an open question. It seems unlikely that Mr. Justice Clark would
have pursued that course in Fralin, for he was a member of the Court
when it noted that "it is better judicial practice to follow [Enelow and
Ettelson,] the precedents which limit appealability of interlocutory
orders, leaving Congress to make such amendments [to section 1292]
as it may find proper."^'^^

i3«385 F.2d 528 (3d Cir. 1967). See note 62 supra. Had the Howell court addressed
this matter, it might have reviewed the order by way of a writ of mandamus rather
than adopt the Glen Oaks rule. Cf. Cotler v. Inter-County Orthopaedic Ass'n, 526 F.2d
at 541 (Where mandamus relief is available, "[rjeviewing the district court's action
pursuant to 28 U.S.C. § 1651 seems preferable to adopting what would for this circuit
be a new interpretation of § 1292(a)(1).").

139493 F.2d 481, 482 (4th Cir. 1974) (Clark, J.). See notes 63-64 supra and
accompanying text.

14028 U.S.C. § 1292(b) (1970). See text accompanying notes 143-72 infra.
i^iChapman v. International Ladies Garment Workers' Local 581, 401 F.2d 626

(4th Cir. 1968).

i''2Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 185 (1955). At the time
the Court made this remark and acknowledged that it was "not authorized to approve
or declare judicial modification of § 1292," id. at 181, a committee designated to
consider the matter had already recommended to the Judicial Conference of the
United States the bill which was to become 28 U.S.C. § 1292(b). S. Rep. No. 2434, 85th



580 INDIANA LAW REVIEW [Vol. 10:556

2. Discretionary Appeals Under Section 1292(b)i'^^

Congress did amend section 1292 by adopting the Interlocutory
Appeals Act of 1958, 28 U.S.C. § 1292(b). This provision, unlike
section 1292(a), was cast so that appeal is committed to the discretion
of both the district and the appellate court rather than being a matter
of right.

When a district judge, in making in a civil action an order not
otherwise appealable under this section, shall be of the
opinion that such order involves a controlling question of law
as to which there is substantial ground for difference of
opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the litigation,

he shall so state in writing in such order. The Court of
Appeals may thereupon, in its discretion, permit an appeal to
be taken from such order, if application is made to it within
ten days after entry of the order . . . .^^^

To date only the Fifth Circuit has demonstrated a readiness to
utilize section 1292(b) for the purpose of reviewing an abstention

order. After entering such an order in Public Employees Local 1279
V. Alabama,^"^^ the district judge certified the cause for appeal.

Plaintiffs filed a notice of appeal within ten days but failed to petition

the appellate court for permission to appeal, a fact which escaped the
attention of that court until after oral argument. In dismissing the

appeal on its own motion, the court noted that to perfect an appeal
from such an unappealable order the prerequisites of section 1292(b)
and Rule 5 of the Federal Rules of Appellate Procedure must be met.
Failure to file an application for leave to appeal within the statutory

Cong., 2d Sess. 5, reprinted in [1958] U.S. CODE CONG. & Ad. News 5259. This bill was
subsequently introduced in Congress at the request of the Administrative Office of the

United States Courts and adopted without change.
14328 U.S.C. § 1292(b) (1970). See generally Wright, The Interlocutory Appeals Act

of 1958, 23 F.R.D. 199 (1959); Note, Section 1292 (b): Eight Years of Undefined

Discretion, 54 Geo. L.J. 940 (1966); Note, Interlocutory Appeals in the Federal Courts

Und^r 28 U.S.C. § 1292(b), 88 Harv. L. Rev. 607 (1975) [hereinafter cited as Appeals

Under § 1292 (b)J; Appealability in the Federal Courts, supra note 37, at 378-82; Note,

Discretionary Appeals of District Court Interlocutory Orders: A Guided Tour through
Section 1292(b) of the Judicial Code, 69 Yale L.J. 333 (1959) [hereinafter cited as
Discretionary Interlocutory Appeals]; Note, Proposals for Interlocutory Appeals, 58

Yale L.J. 1186 (1949).
14428 U.S.C. § 1292(b) (1970).

145453 F.2d 922 (5th Cir. 1972). Plaintiffs in Public Emplmjees sought a

declaratory judgment that an Alabama statute was unconstitutional. The district

judge ordered the federal proceedings stayed for a reasonable time to permit

exhaustion of state administrative and judicial remedies. After denying plaintiffs'

motion for reconsideration, he certified the abstention order for appeal under section

1292(b).



1977] ABSTENTION ORDERS 581

period was held to be a jurisdictional defect. ^''^ Consideration of the
posture of the appeal at the time of its dismissal provides ample
evidence, nonetheless, that in 1972 the Fifth Circuit was bent upon
reviewing the abstention order under what it perceived to be its
section 1292(b) jurisdiction.

No mention was made of whether the order was properly
certified for appeal, i.e., whether the order satisfied the statutory
criteria for certification. However, by noting that the interlocutory

order before it was "non-appealable,"^'''^ the court implicitly recog-

nized that the first of the four standards had been met. The
significance of such a finding is borne out by the Supreme Court's
analysis of section 1292: "Section 1292(a) provides for an appeal as a
matter of right from a number of specified types of interlocutory
orders—in particular, interlocutory orders granting or denying
injunctions, "^''^ while subsection (b) was "intended to apply only to
interlocutory orders, 'not otherwise appealable under' § 1292(a). "^^^ It

follows that one of the essential characteristics of an order from

which an appeal will lie under section 1292(b) is its unappealability
under subsection (a).

The Fifth Circuit's 1974 holding that an abstention order is
appealable under section 1292(a)(l)i^o has cast doubts on whether it
would or could now assume jurisdiction of an appeal from such an
order under section 1292(b). That circuit's recent shift toward
section 1291 as a basis for assuming jurisdiction of an appeal from a
stay order^^i may obviate the need for its deciding which of section
1292's mutually exclusive subsections is applicable when it is again
confronted with an appeal from an abstention order. The same may
not be true of those courts of appeals which have assumed jurisdiction
of similar appeals under section 1292(a)(1), but have yet to follow
Druker's lead.

Resolution of this matter could conceivably be accomplished by

holding: (1) that all abstention orders are appealable under section

1292(b), a holding which would require overruling cases relying on

the Glen Oaks rule, or (2) that abstention orders entered in actions

seeking only injunctive relief, including a preliminary injunction, are

appealable under the Glen Oaks interpretation of section 1292(a)(1),

while those entered in declaratory judgment actions or actions at law

are appealable under section 1292(b). Should the first alternative be

adopted, appeals from all abstention orders would, at least to a

i«/d at 924.

i^8Tidewater Oil Co. v. United States, 409 U.S. 151, 167 (1972).
^^^M at 166 (emphasis in original).
isoGray Line Motor Tours, Inc. v. City of New Orleans, 498 F.2d 293, 298 (5th Cir.

1974). See text accompanying note 111 supra.
isiHines v. D'Artois, 531 F.2d 726 (5th Cir. 1976). See note 73 supra.



582 INDIANA LAW REVIEW [Vol. 10:556

certain point, be treated similarly. Adoption of the second approach
would result in disparate treatment of appeals and create insur-
mountable problems when both legal and equitable relief is sought.

Assuming arguendo that the courts of appeals make the neces-
sary accommodation to satisfy the requirement that the order is "not
otherwise appealable under this section," the order itself must still
satisfy the three remaining criteria set forth in section 1292(b) to be
properly certified for appeal. ^^^ The first of these is that the "order
involves a controlling question of law." A Ninth Circuit definition of
"controlling question of law"—whether the district judge erred or
abused his discretion in staying the proceedings^^^—appears, at first

blush, to lend itself to certification of an abstention order. To employ
such a definition, however, requires a court to disregard the

legislative history of this "judge-sought, judge-made, judge-spon-

sored enactment."^^^ "It is not thought . . . that mere question as to the
correctness of the ruling would prompt the granting of the certifi-
cate."!^^ Moreover, it would, in effect, alter the wording of this
provision by substituting "is the" for "involves a."

No definition need be interposed between the standard itself and
an abstention order to bring the latter within the purview of the
former for a controlling question of state law is central to every case
in which the abstention doctrine has been invoked. At the same time
it must be recognized that from its inception this doctrine has been
linked with the exercise of discretion^^^ whereby the federal

i52The district judge must certify that the order satisfied these three criteria. Katz
V. Carte Blanche Corp., 496 F.2d 747, 755 (3d Cir. 1974). Where that determination
entailed consideration of all relevant and no improper factors, it is inappropriate for
the court of appeals to reconsider the matter. Appeals Under § 1292(b), supra note 143,

.
at 617. However, where the requirements for conferring jurisdiction are not met, an
appellate court should not attempt to exercise its jurisdiction under section 1292(b).
Hadjipateras v. Pacifica, S.A., 290 F.2d 697, 707 (5th Cir. 1961) (Jones, J., dissenting).

i53Lear Siegler, Inc. v. Adkins, 330 F.2d 595, 598 (9th Cir. 1964). See generally

Appeals Under § 1292(b), supra note 143, at 618-24; Discretionary Interlocutory
Appeals, supra note 143, at 352.

i54Hadjipateras v. Pacifica, S.A., 290 F.2d 697, 702 (5th Cir. 1961).
155S. Rep. No. 2434, 85th Cong., 2d Sess. 6, reprinted in [1958] U.S. Code Cong. &

Ad. News 5260-61.
i^^Discretion has been referred to as one of the "brightly blooming blossoms on the

path of abstention" by virtue of the frequent appearance of the term in opinions

discussing that doctrine. Pell, Abstention—A Primrose Path by Any Other Name, 21
De Paul L. Rev. 926, 933 (1971) [hereinafter cited as Primrose Path]. It should be
noted that the Court has, on occasion, qualified this term, e.g., "wise discretion,"

Railroad Comm'n v. Pullman Co., 312 U.S. 496, 501 (1941), "fair and well-considered"
discretion, Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. at 30. While "a
federal district court is vested with discretion to decline to exercise or to postpone the

exercise of its jurisdiction in deference to state court resolution of underlying issues of

state law," Harman v. Forssenius, 380 U.S. 528, 534 (1965), it is not to automatically
apply the abstention doctrine when confronted by an issue of state law as to which
there is some doubt. Baggett v. Bullitt, 377 U.S. 360, 375 (1964).



1977] ABSTENTION ORDERS 583

courts "restrain their authority because of 'scrupulous regard for the

rightful independence of the state governments' and for the smooth

working of the federal judiciary. "^^'^ Courts analyzing the use of the
term "law" have concluded that a law/fact distinction was implied
and for that reason had held that matters committed to the discretion
of the district court are immune from review under section 1292(b)
since they present mixed questions of law and fact.^^^ Adopting this
position would preclude appellate review of abstention orders under
this provision.

Inherent in the Ninth Circuit's approach to determining whether

an order was properly certified is a second flaw. By equating the
trial court's ruling with the requisite "controlling question of law,"

this court arrives at essentially the same point as the writer who
describes the second of the remaining statutory criteria as the
"requirement that there be a substantial ground for difference of
opinion about the challenged order."^^^ The plain language of the
jurisdictional statute makes it clear that the controlling question of
law is the focal point of this standard, not the order itself.

An abstention order is, in essence, an acknowledgement by
the district court that there is "a controlling question of state law as to
which there is substantial ground for difference of opinion." Unlike
certification of the order under section 1292(b), the abstention order
itself operates as an informal and indirect means of certifying a
doubtful state law question to the highest court of that state^^^

—
"the

only tribunal whose interpretation could be controlling."!^! In ^j^is
regard it can be said that an abstention order is designed to achieve
the same objective as a section 1292(b) appeal, but by different means

^"Railroad Comm'n v. Pullman Co., 312 U.S. at 501.
^^Appeals Under § 1292(b), supra note 143, at 618 n.57. But see Katz v. Carte

Blanche Corp., 496 F.2d 747, 755-57 (3d Cir. 1974) (orders committed to the district

court's discretion are subject to review under section 1292(b) where the district judge

considered improper factors or failed to consider all those relevant to his decision).

^^^Cmnpare Appeals Under § 1292(b), supra note 143, at 624, with Lear Siegler,

Inc. V. Adkins, 330 F.2d 595, 598 (9th Cir. 1964) ("[T]he district judge was correct in his

opinion that the question of law [ — whether the district judge erred in staying the
proceedings—] is one 'as to which there is substantial ground for difference of

opinion.' "). Accord, Katz v. Carte Blanche Corp., 496 F.2d 747, 754 (3d Cir. 1974).

^^Certification procedures are available in several states either by statute or court

rule. See generally Lehman Bros. v. Schein, 416 U.S. 386, 390-91 nn.7 & 8 (1974);
Primrose Path, supra note 156, at 946-47; Lillich & Mundy, Federal Court Certification
of Doubtful State Law Questions, 18 U.C.L.A.L. Rev. 888 (1971). Indiana has adopted a
variation of the Uniform Certification of Questions of Law Act. Unlike the Uniform
Act, the Indiana statute precludes certification by the United States district courts.

Compare Uniform Certification of Questions of Law Act, reprinted in 18 U.C.L.A.L.
Rev., supra at 913-15 app. with Ind. Code § 33-2-4-1 (Burns 1975).

i6>Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. at 30.



584 INDIANA LAW REVIEW [Vol. 10:556

and for different reasons. ^^^ The report of the Senate Committee on
the Judiciary bears this out. "[T]he appeal from interlocutory orders
thus provided should and will be used only in exceptional cases . . .
where a question which would be dispositive of the litigation is raised
and there is serious doubt as to how it should be decided . . . ."^^s

Because matters in the district court's discretion are seldom re-
versed on appeal and thus seldom "materially advance the ultimate
termination of the litigation," they are not thought to be subject to

review under section 1292(b). ^^^ The same result should obtain with
regard to abstention orders notwithstanding the fact that reversal is

not uncommon; in most instances all that is determined on appeal is
the forum in which the state law issue is to be resolved—a decision
which appears to fall short of satisfying the last of the statutory
criteria for certification.

The not infrequent reversal of abstention orders on appeal stems
from the circuits' application of a standard for evaluating the district
court's action which does not comport with that ordinarily used, that
is, a trial court's exercise of discretion may be set aside only if it is
arbitrary or where no reasonable man would adopt the lower court's
position. 16^ Not all are in agreement that such a distinction should be
made.

To the extent that determination of the correctness of
abstention or nonabstention is truly a matter of discretion

rather than a mechanical application of judicially established

rules of thumb, some of which apparently have come along
after the act . . . the ordinary rules pertaining to evaluation of

discretionary action should apply. ^^^

Appellate courts have generally recognized that district courts

exercise a broad range of discretion in ruling on motions for a stay of

proceedings pending litigation in another tribunal. ^^"^ This is not the
case where abstention is involved. Some blatantly admit having

i62lt has been suggested that by adopting section 1292(b) Congress sought to

provide a means by which unnecessary district court proceedings could be avoided.
Appeals Under § 1292(b), supra note 143, at 609, 611. Neither alleviation of hardship to

litigants nor appellate supervision of district courts was thought to justify appeal
under this section. Id. at 609, 612 & n.28, 631.

163 s. Rep. No. 2434, 85th Cong., 2d Sess. 6, reprinted in [1958] U.S. Code Cong.
& Ad. News 5260.

^^^Appeals Under § 1292(b), supra note 143, at 618 n.57.

165 Particle Data Laboratories, Inc. v. Coulter Electronics, Inc., 420 F.2d 1174, 1178
(7th Cir. 1969).

^^^Primrose Path, supra note 156, at 934. Judge Pell sits on the United States
Court of Appeals for the Seventh Circuit.

levGray Line Motor Tours, Inc. v. City of New Orleans, 498 F.2d at 298.



1977] ABSTENTION ORDERS 585

made "inroads on the freedom of the district courts to refer the
parties to another forum. "^^^ The First Circuit's comment in Druker
that it saw "no substitute for a close analysis of the challenged state
law" clearly indicates the extent of those inroads. ^^^ Indeed, a

reading of the cases leads one to believe that in almost every instance

there has been a de novo review of the matter by the court of

appeals. ^"^^ If supervision of the district courts is not a justification for

a section 1292(b) appeal, as one writer concludes, ^"^^ certification of an

abstention order under that provision would appear to be improper,
notwithstanding an appellate court's desire to consider and decide

the question for itself.^ '^

C. Section 1253—Direct Appeals from Decisions of Three-Judge
Courts

Unlike the preceding sections of the Judicial Code, which
contemplate an appeal from a district court order to an intermediate
appellate court, section 1253 confers on the Supreme Court juris-
diction of a direct appeal "from an order granting or denying, after
notice and hearing, an interlocutory or permanent injunction in any
civil action, suit or proceeding required by any Act of Congress to be
heard and determined by a district court of three judges."^'^^

On a number of occasions the Supreme Court has exercised its
jurisdiction over an appeal from an abstention order entered by a
three-judge court notwithstanding the fact that the order neither

granted nor denied injunctive relief. ^'^'^ With but one exception the
Court failed to address the question of its jurisdiction;^'^^ in none did it

i69Druker v. Sullivan, 458 F.2d at 1274.

^''^Primrose Path, supra note 156, at 934.

^'''^Appeals Under § 1292(h), supra note 143, at 608, 612 & n.28, 631.
i^2"The desirability of deciding a question is not one of the jurisdictional tests

[under section 1292(b)]." Hadjipateras v. Pacifica, S.A., 290 F.2d at 707 (Jones, J.,

dissenting).

1^328 U.S.C. § 1253 (1970).

i^^Daniel v. Waters, 417 U.S. 963 (1974) (vacated abstention order); Koehler v.

Ogilvie, 405 U.S. 906 (1972) (affirmed abstention order); Sweet Briar Institute v.

Button, 387 U.S. 423 (1967) (reversed abstention order); Turner v. City of Memphis,

369 U.S. 350 (1962) (vacated abstention order); NAACP v. Bennett, 360 U.S. 471 (1959)
(vacated abstention order); Bryan v. Austin, 354 U.S. 933 (1957) (vacated abstention

order where cause had become moot); Government & Civic Employees Organizing
Comm. V. Windsor, 347 U.S. 901 (1954) (affirmed abstention order).

i^^The Court postponed consideration of the question of its jurisdiction under

section 1253 until the hearing on the merits at which time it concluded that a three-

judge court was not required; thus jurisdiction of the appeal was vested in the Sixth

Circuit. Because appellant had perfected an appeal to that court, the Supreme Court

assumed jurisdiction of the appeal pursuant to 28 U.S.C. §§ 1254(1), 2101(e) by treating

his jurisdictional statement as a petition for writ of certiorari prior to judgment in the



586 INDIANA LAW REVIEW [Vol. 10:556

note probable jurisdiction under section 1253. This practice did not
go unnoticed by the courts or the commentators and contributed
significantly to the assumption that abstention orders entered by
three-judge courts were appealable under section 1253, while those
entered by a single district judge were appealable under section
1292(a)(l).i76

Although there were signs as early as 1974 that abstention orders
were no longer directly appealable to the Supreme Court, ^'^'^ this
matter was not definitively settled until a year later when the Court
handed down its decision in MTM, Inc. v. Baxley.^^^ In MTTkf the
Court held that it is without jurisdiction to consider an appeal under

section 1253 where an order of a three-judge court, such as an
abstention order, does not rest upon resolution of the merits of the
constitutional claim. ^^^

court of appeals. Turner v. City of Memphis, 369 U.S. 350 (1962). This approach
presupposes that the Sixth Circuit would have had jurisdiction of the appeal in the first

place. The Court's opinion in Turner is silent as to the means by which appellant-
petitioner might have invoked the jurisdiction of that court had it not summarily

disposed of the appeal.

^''^To provide support for the proposition that the order appealed from in Idlewild

was "of the sort ordinarily appealable" note was made of the fact that the Court
considered the merits in NAACP v. Bennett, 360 U.S. 471 (1959), without discussing
the abstention order's appealability. Idlewild Bon Voyage Liquor Corp. v. Rohan, 289
F.2d at 430 n.l (dissenting opinion).

The Court's action in Bryan v. Austin, 354 U.S. 933 (1957), prompted the following
comment:

Although the appeal in Bryan arose under section 1253, the Court's
disregard for the technical arrangement of claims should be equally

applicable to section 1292(a)(1). Both sections are similar, for they both

permit appellate review of orders granting or denying interlocutory

injunctions. Logically, the same result as to the appealability of stay orders
should be reached under both statutes.

Note, Appealability of Stay Orders in the Federal Courts, 47 Minn. L. Rev. 1099, 1106-

07 (1963).

^'''^See Daniel v. Waters, 417 U.S. 963 (1974); text accompanying notes 30-35 supra.

Daniel appears to be the first case in which the Supreme Court declined to exercise its
jurisdiction over a direct appeal from an abstention order entered by a three-judge

court. Daniel v. Waters, 515 F.2d 485, 493 n.l (6th Cir. 1975) (dissenting opinion). The
dissent noted that the order fell short of adjudicating the constitutional merits of the

challenged statute and neither granted nor denied injunctive relief. Id. at 493. The
majority interpreted the Court's order as an indication that its section 1253 jurisdiction

was not properly invoked. This followed from its conclusion that the challenged statute
was patently unconstitutional, therefore, a three-judge court was not required. Id. at
492.

178420 U.S. 799 (1975). MTM has been cited as authority for the proposition that
where a three-judge court does not base its order of abstention on "resolution of the

merits of the constitutional claims," appeal lies to the court of appeals rather than the

Supreme Court. Sea Ranch Ass'n v. California Coastal Zone Conservation Comm'ns,
537 F.2d 1058, 1061 (9th Cir. 1976); Daniel v. Waters, 515 F.2d at 493 n.l* (dissenting

opinion).

179420 U.S. at 803-04.



1977] ABSTENTION ORDERS 587

III. Idlewild Revised

In Gonzalez v. Automatic Employees Credit Union the Supreme
Court acknowledged that it had "to retrace its steps" in Idlewild to
hold, as it did, that review of a single judge's refusal to convene a
three-judge court may be had in the court of appeals and not in the
Supreme Court.i'^o The Court did not similarly apprise the reader of
its retracing its steps in Gonzalez. However, the statement made
therein regarding the modes by which that jurisdiction may be
exercised stands in sharp contrast to that made twelve years earlier
in Idlewild.

Where a single judge refuses to The Court of Appeals properly
request the convention of a rejected the argument that the
three-judge court, but retains order of the District Court

jurisdiction, review of his re- [refusing to convene a three-

fusal may be had in the court of judge court but retaining
appeals, see Idlewild [and jurisdiction] "was not final and

Schackman v. Arnebergh], hence unappealable under 28
either through petition for writ U.S.C. §§ 1291, 1292," pointing

of mandamus or through a out that "[a]ppellant was effec-
certified interlocutory appeal tively out of court."i82

under 28 U.S.C. § 1292(b).i8i

Implicit in the Court's latest pronouncement is its recognition
that the order entered in Idlewild "'was not final and hence

unappealable under 28 U.S.C. §§ 1291, 1292[(a)(l)].' " Thus, courts

and commentators can no longer cite that case as authority for the

proposition that abstention orders are appealable as of right under

either or both of these provisions. Furthermore, nothing in the

Gonzalez dictum suggests that that portion of the order directing

abstention comes within the appellate court's scope of review under
section 1292(b) or section 1651. The Court's repeated failure to
comment on the appealability of that portion of the order served to
reinforce the conclusion that a single district judge lacked

jurisdiction to abstain when a three-judge court was requested and
the criteria for convening such a court were satisfied. ^^^

180419 U.S. 90, 95 & n.l3, 100 n.l9 (1974).
181M at 100 n.l9.

i82Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. at 715 n.2.
^^See Apel v. Murphy, 526 F.2d 71, 73 (1st Cir. 1975); Idlewild Bon Voyage Liquor

Corp. V. Rohan, 289 F.2d at 429. Because the existence of such jurisdiction turned upon

the propriety of the refusal to convene a three-judge court pursuant to 28 U.S.C. §§
2281 and 2284, it would have been unnecessary for the court of appeals to consider the

appropriateness of abstention should it reverse for the convening of such a court.

Should the lower court's decision on this matter have been affirmed, however, it would

seem improper for the appellate court to have taken one step further in the case, that is,
to consider whether the issue of state law warranted abstention. Gonzalez provides no
support for a contrary conclusion.



588 INDIANA LAW REVIEW [Vol. 10:556

With the repeal in 1976 of 28 U.S.C. § 2281 the requirement for
convening a three-judge court in cases seeking to enjoin the
enforcement of a state statute on the ground that it is unconstitutional
has been eliminated, except in reapportionment cases. ^^^ From this it
follows that a single district judge is no longer without jurisdiction to
abstain where application of the Pullman abstention doctrine is
appropriate.

IV. Conclusion

The Supreme Court's holding in MTM made it clear that
abstention orders are not directly appealable to that court under
section 1253. Their appealability to the circuit courts of appeals,

however, remains unsettled. Although an abstention order does not

finally deny relief in federal court, is not, in most instances,
tantamount to a denial of a preliminary injunction, and does not
satisfy the requisities for a certified interlocutory appeal, an appeal
from such an order has yet to be dismissed for want of jurisdiction.
Nonetheless, review of such orders by way of appeal appears to
constitute a usurpation of jurisdiction which is not given .^^^ Further-
more, "[s]uch review is ordinarily undesirable. A principal reason
for the delays experienced under existing abstention practices has
been that parties have years of litigation merely to determine in
which court the case will be litigated."^^^ In any event, when
application of the doctrine constitutes an abuse of discretion,
appellate relief from the abstention order should be available under
the All Writs Act.i^^

In light of the fact that Idlewild no longer provides any authority
for assuming jurisdiction under sections 1291 or 1292(a)(1), the
courts of appeals may not be as reluctant to question their juris-
diction over such appeals in the future. Those finding none may even

i84Act of Aug. 12, 1976, Pub. L. No. 94-381, § 1, 90 Stat. 1119 (1976). See S. Rep.

No. 94-204, supra note 14, for the legislative history of this enactment.

^^^But see Daniel v. Waters, 417 U.S. at 963. In Daniel the Court vacated the

district court's abstention order and remanded the case for the entry of "a fresh
judgment from which a timely appeal may be taken to the Court of Appeals,"
notwithstanding appellants' having timely filed a protective appeal with the Sixth

Circuit. Is the proper interpretation of the Court's order that "no three-judge District

Court was necessary," Daniel v. Waters, 515 F.2d at 492, "that [the Sixth Circuit],
rather than the Supreme Court, should review the merits of the three-judge District
Court's abstention order," id. at 493 (dissenting opinion), or that an appealable order—

a denial of the preliminary injunction which was sought, an interlocutory order

certified for appeal under section 1292(b), or a dismissal of the action—should be

entered by the district court upon remand?
186ALI Study, supra note 12, at 291.
18728 U.S.C. § 1651 (1970). See generally Supervisory and Advisory Mandamus,

supra note 16.



1977] ABSTENTION ORDERS 589

acknowledge that "whether the local-law problem counseled absten-
tion" is a question properly left to those most familiar with that law

—

the district judges.^^^ "They know 2ihout Pullman [and its progeny] as
well as most of [those on the Supreme Court]. It was a new doctrine
when announced. It is word that has long been part of the warp and
woof of federal law."^^^

JOAN GODLOVE

i88Harris County Comm'rs Court v. Moore, 420 U.S. 77, 91 (1975) (Douglas, J.,
dissenting). Mr. Justice Douglas' comment, although made by way of dissent to a
holding that the district court should have abstained, should be equally applicable to

most cases in which abstention is ordered.