Judicial Abstinence: Ninth Circuit Jurisdictional Celibacy for Claims Brought Under the Federal Declaratory Judgment Act

• Publication year: 2003

SEATTLE UNIVERSITY LAW REVIEWVolume 27, No. 3WINTER 2004

Judicial Abstinence: Ninth Circuit Jurisdictional Celibacy for Claims Brought Under the Federal Declaratory Judgment Act

Steven Plitt and Joshua D. Rogers(fn*)

The time honored axiom of the common law tradition is that a court must exercise the jurisdiction that it possesses.(fn1) Chief Justice Marshall declared that judicial conduct contrary to this principle would be in direct defiance of the prerogatives set forth in the Constitution. Marshall opined, "[we] have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution."(fn2) "Congress, and not the Judiciary, defines the scope of federal jurisdiction within the constitutionally permissible bounds."(fn3)

At the core of this belief is that where federal jurisdictional requirements have been legally met, an exercise of judicial discretion to abstain constitutes a judicial usurpation of legislative power. One leading commentator has articulated the view that abstention is anathema to the doctrine of separation of powers:If Congress intended that the federal courts exercise a particular jurisdiction, either to achieve substantive legislative ends or to provide a constitutionally-contemplated jurisdictional advantage, a court may not, absent constitutional objections, repeal those jurisdictional grants. Though one may question why, if the courts do not possess the institutional authority to repeal the legislature's jurisdictional scheme, they possess any greater authority to modify the scheme in a manner not contemplated by the legislative body. In either repealing or modifying the legislation, the court would be altering a legislative scheme because of disagreement with the social policy choices that the scheme manifests. Thus, if a judge-made form of partial abstention is inconsistent with Congressional intent to leave federal court jurisdiction unlimited, the fact that the abstention leaves in tact a portion of the jurisdictional grant will not insulate it from a separation of powers attack. The foundation of the separation of powers critique is the assumption that judge-made partial abstention conflicts with congressional goals embodied in the seemingly unlimited grants of jurisdiction. It is the validity of this assumption that arguably separates the total and partial abstention models as departures from separation of powers principles. Various models of implied congressional authorization may be employed to justified partial abstention, but they are incapable of supporting total abstention. While it is at least conceivable that Congress would implicitly delegate to the judiciary the authority to modify or limit a substantive statutory right or a jurisdictional grant, it is absurd to imagine that Congress would implicitly grant the courts authority effectively to repeal such legislation. The exercise of such authority would render pointless the entire legislative process.The fact that Congress theoretically could delegate to the court the power to modify otherwise unlimited legislation, however, does not mean that Congress has actually done so. It is this improper leap from theoretical possibilities to assumed fact that ultimately undermines any defense of the partial abstention model from a separation-of-powers attack.(fn4)

The interrelationship between legislative mandates establishing the jurisdictional boundaries of the courts and court invocation of that jurisdiction is significant. Democratic societies rely upon majoritarian self-determination. "American Constitutional democracy vests in a largely unrepresentative judiciary the power to invalidate laws adopted by a majoritarian legislature when those laws are deemed to violate constitutional protections."(fn5) For American Constitutional democracy to function properly, the courts must act within their congressionally-conferred jurisdictional province.(fn6) However, invocation of jurisdiction by the federal courts has proved to be an elastic practice that has expanded and contracted with little jurisprudential consistency. This elasticity has been permitted by another axiom of the common law tradition, "abstention." While one axiom stands for the proposition that jurisdiction should be always be exercised, the other declares that there are circumstances where the former proposition does not hold up.(fn7)

Procedurally, federal courts can indirectly abstain from exercising jurisdiction without reliance on the abstention doctrine. This can be accomplished under the concept of justiciability,(fn8) or through the doctrines of ripeness,(fn9) forum non conveniens, (fn10) or exhaustion of remedies.(fn11) Even the United States Supreme Court has discretion to indirectly abstain from the exercise of its jurisdiction.(fn12) However, the judicially created "abstention doctrine," in its various forms, has given even wider berth to the federal courts through which they may abstain from exercising their jurisdiction.

Originally, the doctrine of abstention was relegated to only those cases which arose in equity.(fn13) The doctrine has since expanded beyond equity application so that abstention is now applied to "all cases in which a federal court is asked to provide some form of discretionary relief."(fn14) Certainly, most federal judges in the present day would not consider the exercise of any of the various forms of abstention as an act of "treason." Instead, for many, using the guise of preserving federalism, this is simply a means of reducing part of the burden of the federal docket. The debate has long been raging over the elimination of areas of the federal courts' jurisdiction, with specific emphasis on diversity jurisdiction in general; however, because Congress has failed to address these issues, the courts have felt compelled to exercise judicial power to accomplish what Congress would not.(fn15)

The practical question that is of primary importance is just how far the federal courts are going to stray from the axiom of exercising jurisdiction in order to accomplish the goal of lightening their load. Further, it must be determined whether the courts are acting consistent with their Constitutional authority in their use of the abstention doctrine or whether it has simply become a matter of the ends justifying the means.(fn16)

This article focuses upon abstention in the context of the Federal Declaratory Judgment Act ("FDJA").(fn17) Congress enacted the FDJA in 1934, thereby authorizing federal courts to grant federal declaratory judgment relief.(fn18) The FDJA provides in relevant part:In a case of actual controversy within its jurisdiction . . . any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking declaration, whether or not further relief is or could be sought.. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such. (fn19)

Federal jurisdiction under the FDJA is based solely upon the original jurisdiction of the court; namely, diversity jurisdiction or federal question jurisdiction.(fn20) While district courts have discretion to exercise jurisdiction over declaratory judgment actions brought under the FDJA, that discretion is not unfettered.(fn21) A district court cannot decline to entertain a declaratory judgment action as a matter of whim or personal disinclination.(fn22) The discretion granted by the FDJA essentially builds the abstention doctrine into the grant of jurisdiction.(fn23)

In a recent Ninth Circuit decision, Huth v. Hartford Insurance Company of the Midwest,(fn24) the court greatly expanded the abstention doctrine within the Ninth Circuit, both in relation to the FDJA and to declaratory judgment actions generally. Under this expanded application, courts can free the federal docket of declaratory judgment actions with unfettered discretion, in contravention to federal precedent and the historical purpose of the abstention doctrine. The question is whether the other circuit courts, experiencing similar compressions within their dockets, will follow.

Part I will discuss the various forms of abstention and the historical progression and development of the abstention doctrine in federal case law, setting the background for the expansive holding in Huth v. Hartford Insurance Company of the Midwest. Part II of the article will discuss the procedural history of Huth and the respective rulings of the district court and the Ninth Circuit Court of Appeals as it relates to their application of the abstention doctrine. Part III will then analyze the numerous, and potentially detrimental, chilling effects of this ruling and the extensive broadening of the abstention doctrine as it applies to declaratory judgment actions, a development that diverges from the bases and reasoning of the doctrine as it has been historically applied. Part IV will conclude the article, summarizing the federal courts' use of this doctrine and how the Huth decision is the next extensive progression in the unilateral narrowing of the boundaries of jurisdiction undertaken by the federal judiciary.

I. The Abstention Doctrine in Federal Jurisprudence- An Historical Overview

While the original power to abstain from exercising federal jurisdiction...