     15-863-cv
     Falco v. Justices of the Matrimonial Parts of the Sup. Ct. of Suffolk Cnty.

 1                               UNITED STATES COURT OF APPEALS
 2                                   FOR THE SECOND CIRCUIT
 3
 4                                                August Term, 2015
 5
 6   (Argued: October 5, 2015                                                 Decided: November 12, 2015)
 7
 8                                               Docket No. 15-863-cv
 9
10
11                                  _____________________________________
12
13                                                  Gabriel R. Falco,
14
15                                                 Plaintiff-Appellant,
16
17                                                             v.
18
19                                  Justices of the Matrimonial Parts of the
20                                    Supreme Court of Suffolk County,
21
22                                               Defendants-Appellees. *
23                                  _____________________________________
24
25   Before:
26
27                                SACK, LOHIER, and CARNEY, Circuit Judges.
28
29          Plaintiff-appellant Gabriel R. Falco appeals from an order of the United
30   States District Court for the Eastern District of New York (Bianco, J.) granting
31   defendants’ motion to dismiss based on the Younger abstention doctrine.
32   Courts should abstain from exercising jurisdiction only in three “exceptional
33   circumstances,” including where there are “pending civil proceedings
34   involving certain orders . . . uniquely in furtherance of the state courts’ ability
35   to perform their judicial functions.” Sprint Commc’ns, Inc. v. Jacobs, 134 S.
36   Ct. 584, 591 (2013). Because exercising jurisdiction in this case would interfere
37   with a State court’s ability to appoint an attorney for Falco’s children in his


     *
         The Clerk of Court is directed to amend the caption of this case as set forth above.
 1   ongoing divorce and custody proceedings, we AFFIRM the decision of the
 2   District Court.
 3
 4                                          PATRICIA WEISS, Sag Harbor, NY, for
 5                                          Plaintiff-Appellant.
 6
 7                                          MARK H. SHAWHAN, Assistant Solicitor
 8                                          General (Barbara D. Underwood,
 9                                          Solicitor General, Anisha S. Dasgupta,
10                                          Deputy Solicitor General, on the brief),
11                                          for Eric T. Schneiderman, Attorney
12                                          General of the State of New York, New
13                                          York, NY, for Defendants-Appellees.
14
15   LOHIER, Circuit Judge:

16         Gabriel R. Falco appeals from a judgment of the United States District

17   Court for the Eastern District of New York (Bianco, J.) granting the

18   defendants’ motion to dismiss Falco’s complaint based on the abstention

19   doctrine announced in Younger v. Harris, 401 U.S. 37 (1971). Because

20   abstention was warranted under Sprint Communications, Inc. v. Jacobs, 134 S.

21   Ct. 584 (2013), we affirm the decision of the District Court.

22                                  BACKGROUND

23         In 2013 Falco sued his wife for divorce and sought custody of their two

24   children in New York State Supreme Court, Suffolk County. In these

25   circumstances, New York law permits a State court to appoint an attorney to

26   represent the couple’s children. See N.Y. Fam. Ct. Act § 249; N.Y. Jud. Law

                                             2
 1   § 35(3). At a preliminary conference, Falco and his wife agreed to the

 2   appointment, but they disagreed about how the attorney would be paid.

 3   Although Falco contended that he could not afford to do so, the State court

 4   ultimately ordered Falco and his wife each to pay half of the attorney’s

 5   retainer and fees, subject to reallocation at trial. When Falco failed to comply

 6   with the order, the State court ordered him to show cause why he should not

 7   be held in contempt.

 8         During the course of the divorce proceedings, Falco commenced an

 9   action in federal court under 42 U.S.C. § 1983 challenging the constitutionality

10   of the New York laws that authorize State judges to order parents to pay for

11   attorneys appointed for their children. See Falco v. Justices of the

12   Matrimonial Parts of the Sup. Ct. of Suffolk Cnty., No. 14-cv-29, 2015 WL

13   778354, at *1-2 (E.D.N.Y. Feb. 24, 2015). The defendants, all justices of the

14   Matrimonial Parts of the Supreme Court, Suffolk County, moved to dismiss

15   the complaint on Younger abstention grounds. Citing our decision in Spargo

16   v. New York State Commission on Judicial Conduct, 351 F.3d 65 (2d Cir.

17   2003), the District Court granted the motion and dismissed the complaint.

18         This appeal followed.



                                             3
 1                                    DISCUSSION

 2         We review the District Court’s decision to abstain de novo. Cf.

 3   Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 90 (2d Cir. 2004).

 4         In granting the defendants’ motion to dismiss, the District Court relied

 5   entirely on our decision in Spargo. There we held that district courts must

 6   abstain whenever the three conditions identified in Middlesex County Ethics

 7   Committee v. Garden State Bar Association, 457 U.S. 423 (1982), were

 8   satisfied: “(1) there is a pending state proceeding, (2) that implicates an

 9   important state interest, and (3) the state proceeding affords the federal

10   plaintiff an adequate opportunity for judicial review of his or her federal

11   constitutional claims.” Spargo, 351 F.3d at 75; see Middlesex, 457 U.S. at 432.

12         In Sprint, which was decided after Spargo, the Supreme Court

13   cautioned that the “three Middlesex conditions . . . were not dispositive; they

14   were, instead, additional factors appropriately considered by the federal court

15   before invoking Younger.” 134 S. Ct. at 593 (emphasis omitted). This was

16   true in part, the Court explained, because relying on the three conditions

17   alone “would extend Younger to virtually all parallel state and federal

18   proceedings . . . where a party could identify a plausibly important state



                                             4
 1   interest.” Id. Without completely casting aside the Middlesex conditions, the

 2   Court clarified that district courts should abstain from exercising jurisdiction

 3   only in three “exceptional circumstances” involving (1) “ongoing state

 4   criminal prosecutions,” (2) “certain civil enforcement proceedings,” and (3)

 5   “civil proceedings involving certain orders uniquely in furtherance of the

 6   state courts’ ability to perform their judicial functions.” Id. at 591 (quotation

 7   marks omitted) (alteration omitted). The Court explained that “these three

 8   ‘exceptional’ categories . . . define Younger’s scope.” Id.

 9         Although the Middlesex/Spargo conditions are not dispositive, it

10   remains unclear how much weight we should afford these “additional

11   factors” after Sprint. But we need not address that issue in this case. It is

12   enough to say that the District Court erred by treating them as dispositive

13   (rather than additional) factors and ignoring the straightforward categorical

14   approach required by Sprint.

15         On de novo review, however, we independently conclude that Falco’s

16   case presents circumstances that qualify as “exceptional” under Sprint and

17   that Younger abstention was therefore warranted. Falco’s federal lawsuit

18   implicates the way that New York courts manage their own divorce and



                                             5
 1   custody proceedings—a subject in which “the states have an especially strong

 2   interest.” Phillips, Nizer, Benjamin, Krim & Ballon v. Rosenstiel, 490 F.2d 509,

 3   516 (2d Cir. 1973) (Friendly, J.). In particular, Falco challenges the State

 4   court’s order that he pay half the fees of the attorney appointed to represent

 5   his children in the divorce proceeding. Although there is some disagreement

 6   among New York courts about whether the fees for such court-appointed

 7   counsel should be borne by the public or by the parents, compare Redder v.

 8   Redder, 792 N.Y.S.2d 201, 204-05 (3d Dep’t 2005) (suggesting that the State

 9   should pay for a court-appointed attorney for the child in a custody

10   proceeding), with Plovnick v. Klinger, 781 N.Y.S.2d 360, 363-66 (2d Dep’t

11   2004) (holding that courts may require one or both parents to pay for a court-

12   appointed attorney for their children), there is no discernible disagreement

13   that orders relating to the selection and compensation of court-appointed

14   counsel for children are integral to the State court’s ability to perform its

15   judicial function in divorce and custody proceedings. The circumstances of

16   this case therefore clearly fall within Sprint’s third category: pending State

17   civil proceedings involving orders “uniquely in furtherance of the state




                                              6
 1   courts’ ability to perform their judicial functions.” 1 Sprint, 134 S. Ct. at 591

 2   (quotation marks omitted); see also Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 14

 3   (1987) (cautioning that the district court should “stay its hand” where there

 4   are pending State proceedings involving the enforcement of orders and

 5   judgments out of “respect for the ability of state courts to resolve federal

 6   questions presented in state-court litigation”).

 7         Accordingly, we conclude that, despite its error in applying the Spargo

 8   factors, the District Court correctly abstained from exercising federal

 9   jurisdiction under Sprint.

10                                    CONCLUSION

11         We have considered Falco’s remaining arguments, including that he

12   had no avenue in the New York State courts to further appeal or otherwise

13   challenge the attorney appointment order, and conclude that they are without

14   merit. For the foregoing reasons, we AFFIRM the judgment of the District

15   Court.


     1
      Middlesex and Spargo, by contrast, arose from pending, “quasi-criminal”
     State ethics investigations of attorney misconduct and judicial misconduct,
     respectively. They therefore involved the second exceptional circumstance
     identified in Sprint, namely, “civil enforcement proceedings.” Sprint, 134 S.
     Ct. at 591.

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