                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 07-1719


MARK H. BEAM,

                Plaintiff − Appellant,

           v.

GEORGE TATUM, Commissioner, North Carolina Division of Motor
Vehicles; BRYAN BEATTY, Secretary, North Carolina Department
of   Crime  Control   and  Public   Safety;  LYNDO   TIPPETT,
Secretary, North Carolina Department of Transportation,

                Defendants − Appellees.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.  James C. Dever III,
District Judge. (5:06-cv-00279-D)


Argued:   September 24, 2008             Decided:   November 10, 2008


Before WILLIAMS, Chief Judge, AGEE, Circuit Judge, and T. S.
ELLIS, III, Senior United States District Judge for the Eastern
District of Virginia, sitting by designation.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


ARGUED: Ralph David Wicker, Jr., ROBERTI, WITTENBERG, LAUFFER &
WICKER, P.A., Durham, North Carolina, for Appellant. Mark Allen
Davis, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellees.   ON BRIEF: Roy Cooper, North Carolina
Attorney General, Christopher G. Browning, Jr., Solicitor
General, John W. Congleton, Assistant Attorney General, NORTH
CAROLINA DEPARTMENT   OF   JUSTICE,   Raleigh,   North   Carolina,   for
Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                 2
PER CURIAM:

      Mark       H.     Beam       brought    this        action    in    the    United       States

District     Court           for    the     Eastern       District       of    North    Carolina,

pursuant         to     42     U.S.C.A.       § 1983        (West    2003),       requesting       a

declaration that a civil penalty imposed upon him by the State

of North Carolina violates the United States and North Carolina

Constitutions and that a refund of the civil penalty be ordered.

The district court abstained under Younger v. Harris, 401 U.S.

37 (1971), from exercising jurisdiction, concluding that Beam

failed      to        exhaust       his     state        judicial    remedies,         this     case

involves North Carolina’s substantial interest in motor safety,

and Beam will have an opportunity to raise his constitutional

claims in North Carolina’s state courts.                             For the reasons that

follow,     we        agree     and       therefore       affirm    the       district    court’s

decision to abstain.                 Because Beam’s complaint requests monetary

relief, however, we vacate the district court’s order dismissing

Beam’s suit and remand with instructions to stay the action.



                                                    I.

      The underlying facts in this case are not in dispute.                                     Beam

drives a truck for BarMar Transportation Corp. (“BarMar”), a

small trucking firm owned by Beam and his wife.                                 In 2005, BarMar

contracted with Daystar Transportation, LLC (“Daystar”) to haul

a   large    piece        of       industrial       equipment       from      Pineville,       North

                                                    3
Carolina to the Tennessee border.                       On December 15, 2005, the

North     Carolina     Department         of        Transportation        (“DOT”)      issued

Daystar a permit to transport the equipment.                         The permit, which

listed Beam as the “permittee,” required the hauling truck to be

accompanied       by   two    escort       vehicles         with    certified       drivers.

(J.A. at 6-7.)

     On     December      19,      2005,        during      the     transport         of     the

industrial       equipment,        a    North        Carolina      vehicle      enforcement

officer issued Beam two civil penalties at a weigh station: (1)

a $500 citation for “Operating an Escort Vehicle Without the

Required Certification” because the rear escort driver could not

produce    an    escort      permit      (the       “escort      penalty”)      and    (2)    a

$23,820 citation for carrying too much weight (the “overweight

penalty”).        (J.A. at 27.)                Had the officer not treated the

permit    as    invalid     because       of    the    escort      penalty,     the    weight

total would have been within the weight limit permitted by the

permit.    Both civil penalties were paid.

     On    January     10,    2006,       Beam       sent   a    letter    to    the       North

Carolina       Department     of       Motor    Vehicles        (“DMV”)    stating         that,

pursuant to N.C. Gen. Stat. § 20-91.1, repealed by 2007 N.C.

Sess. Laws 491, he paid the overweight penalty under protest and

demanded that this money be repaid to him within 90 days. 1                                   On

     1
         N.C. Gen. Stat. § 20-91.1 provided:
(Continued)
                                                4
January 31, 2006, the North Carolina Department of Crime Control

and Public Safety (“CCPS”) responded with a letter informing

Beam   that   an    administrative       review         had    determined     that   the

overweight penalty was issued in accordance with state law and

that the CCPS lacked authority to reduce “any penalty imposed

according     to    law.”       (J.A.    at       11.)         Further,     the    letter

specifically informed Beam of his right to appeal the CCPS’s

administrative decision in North Carolina state court under N.C.

Gen. Stat. § 20-91.1.

       In lieu of seeking judicial review of the administrative

decision in state court, on July 7, 2006, Beam filed this § 1983

action seeking a refund of the overweight penalty.                          Beam named

as   defendants     George      Tatum,   Commissioner           of    the   DMV;   Bryan

Beatty,   the      Secretary     of   the       CCPS;    and    Lyndo     Tippett,    the

Secretary     of    the   DOT    (collectively           “North      Carolina”).      He



       No court of this State shall entertain a suit of any
       kind brought for the purpose of preventing the
       collection of any tax imposed in this Article.
       Whenever a person shall have a valid defense to the
       enforcement of the collection of a tax assessed or
       charged against him or his property, such person shall
       pay such tax . . . and if the same shall not be
       refunded within 90 days thereafter, may sue such
       official in the courts of the State for the amount so
       demanded.   Such suit must be brought in the Superior
       Court of Wake County, or in the county in which the
       taxpayer resides.

N.C. Gen. Stat. § 20-91.1, repealed by 2007 N.C. Sess. Laws 491.



                                            5
alleged    that   North    Carolina’s      actions      violated      the    Excessive

Fines Clauses of the Eighth Amendment and the North Carolina

Constitution,     the     prohibition      against      delegation      of   judicial

power in the North Carolina Constitution, the Double Jeopardy

Clause of the Fifth Amendment, and the Due Process Clauses of

the Fifth and Fourteenth Amendments.

     On    June   26,     2007,    the     district      court      abstained   under

Younger from exercising jurisdiction and dismissed Beam’s case,

concluding that by filing suit in federal court:

     [Beam] has expressly short-circuited North Carolina’s
     statutory scheme concerning such civil penalties. See
     N.C. Gen. Stat. § 20-91.1.       Under that statutory
     scheme,     [Beam]    may    protest    the     penalty
     administratively (which he did) and then file suit in
     Wake County Superior Court (which he did not do). In
     Wake County Superior Court, [Beam] . . . could raise
     the   constitutional challenges   set  forth   in   his
     complaint.

(J.A. at 91.)       Beam timely appealed, and we have jurisdiction

pursuant to 28 U.S.C.A. § 1291 (West 2006).



                                         II.

     The   sole   issue     on    appeal       is   whether   the    district   court

properly abstained under Younger from exercising jurisdiction.

“We review for abuse of discretion the district court’s decision

to abstain under Younger.”           Nivens v. Gilchrist, 444 F.3d 237,

240 (4th Cir. 2006).         Younger and “its progeny espouse a strong

federal policy against federal-court interference with pending

                                           6
state judicial proceedings absent extraordinary circumstances.”

Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457

U.S. 423, 431 (1982).             The principle of “comity” underlying this

abstention        doctrine       includes         “a     proper    respect        for        state

functions, a recognition of the fact that the entire country is

made   up    of    a     Union    of       separate       state    governments,          and     a

continuance of the belief that the National Government will fare

best   if   the    States       and    their        institutions        are    left     free    to

perform     their        separate      functions         in     their     separate       ways.”

Younger, 401 U.S. at 44.

       Sensitive to principles of equity, comity, and federalism,

Younger mandates “abstention not only when the pending state

proceedings        are        criminal,         but      also     when        certain        civil

proceedings        are    pending,         if     the    State’s        interests       in     the

proceeding        are    so    important          that    exercise        of    the     federal

judicial power would disregard the comity between the States and

the National Government.”                   Pennzoil Co. v. Texaco, Inc., 481

U.S.   1,   11    (1987).        Further,         Younger       “recognizes       that       state

courts are fully competent to decide issues of federal law and

has as a corollary the idea that all state and federal claims

should      be     presented          to    the        state     courts.”             Richmond,

Fredericksburg & Potomac R.R. Co. v. Forst, 4 F.3d 244, 251 (4th

Cir.     1993)     (internal        citation          omitted).          In    sum,     Younger

abstention requires a federal court to abstain from interfering

                                                7
in    state    proceedings,       even       if    federal          subject      matter

jurisdiction exists, if the following three factors are present:

      (1) there is an ongoing state judicial proceeding
      brought prior to substantial progress in the federal
      proceeding;     that     (2)     implicates    important,
      substantial,  or   vital    state   interests;  and   (3)
      provides adequate opportunity to raise constitutional
      challenges.

Nivens, 444 F.3d at 241; see Middlesex, 457 U.S. at 432.                             We

analyze each of these factors in turn.

      First,   we   consider    whether        there     is    an     ongoing     state

proceeding.     The pertinent question presented in this case is

whether this factor is met where a party fails to exhaust its

state   judicial     remedies     before       seeking        relief      in     federal

district court.     The Supreme Court has answered this question in

the affirmative: “a necessary concomitant of Younger is that a

party . . . must exhaust his state appellate remedies before

seeking relief in the District Court.”                 Huffman v. Pursue, Ltd.,

420 U.S. 592, 608 (1975).       This rule applies with equal force to

judicial review of state administrative proceedings.                           See Ohio

Civil Rights Comm’n v. Dayton Christian Sch., Inc., 477 U.S.

619, 629 (1986) (holding that Younger abstention is appropriate

where   “constitutional    claims        may      be    raised      in    state-court

judicial review of the administrative proceeding”).                        Relying on

the   principles    articulated    in    Huffman        and    Ohio      Civil   Rights

Comm’n, we have similarly held that “a defendant to a coercive


                                         8
state        administrative               proceeding         must        exhaust       his       state

administrative and judicial remedies and may not bypass them in

favor        of       a    federal        court      proceeding          in    which       he     seeks

effectively ‘to annul the results’ of a state administrative

body.”        Moore v. City of Asheville, 396 F.3d 385, 388 (4th Cir.

2005) (citing Huffman, 420 U.S. at 609) (emphasis added). 2

        In    this         case,    Beam    did      not    exhaust        his   state       judicial

remedies.             Rather,       he    abandoned        the     state      review   process         he

initiated and bypassed state court judicial review of the CCPS’s

administrative              decision       in     favor     of     filing      suit    in       federal

court.       As noted above, Beam initially challenged the overweight

penalty under the procedures provided by N.C. Gen. Stat. § 20-

91.1,        North          Carolina’s          statutory         scheme       concerning         such

penalties.                Specifically,         on    January      10,     2006,      Beam      sent    a

letter       to   the        DMV    pursuant         to    “N.C.    Gen.      Stat.    §     20-91.1”

demanding         a       refund    of    the    amount      of    the     overweight        penalty.

(J.A. at 10.)                On January 31, 2006, the CCPS responded with a

letter        informing            Beam    that       an     administrative            review       had

determined that the overweight penalty was issued in accordance


        2
        Beam contends that the district court’s decision to
abstain was improper because the state proceedings in this case
are not sufficiently “coercive.”   We disagree.   Similar to the
proceedings in Moore v. City of Asheville, the state proceedings
in this case are “unquestionably coercive.”   396 F.3d 385, 395
n.4 (4th Cir. 2005).



                                                      9
with state law and that he had a right to appeal the CCPS’s

administrative     decision   in        “Wake    County      Superior    Court”   as

provided for by N.C. Gen. Stat. § 20-91.1.                     (J.A. 11.)      Beam,

however, did not challenge the CCPS’s decision in Wake County

Superior Court; instead he filed suit in federal court.

      Beam attempts to excuse his failure to exhaust his state

judicial remedies, asserting that N.C. Gen. Stat. § 20-91.1 did

not   and   does   not   afford    him     a    right   to    appeal    the    CCPS’s

administrative     decision       in    state     court.       Specifically,      he

argues: (1) the North Carolina Supreme Court in North Carolina

Sch. Bds. Ass’n v. Moore, 614 S.E.2d 504 (2005) made clear that

the statute is solely a tax statute and he is seeking recovery

of a civil penalty (not a tax); and (2) that the statute was

repealed after he filed this suit, preserving only a right to

litigate tax cases, not a right to sue for recovery of a civil

penalty.     In response, North Carolina asserts: (1) the North

Carolina    Supreme   Court   in       Cedar    Creek   Enter.,   Inc.    v.   State

Dep’t of Motor Vehicles, 226 S.E.2d 336 (1976) concluded that

N.C. Gen. Stat. § 20-91.1 applied to monetary penalties like the

one Beam received and that North Carolina Sch. Bds. Ass’n does

not even address this issue (nor in anyway purport to overrule

Cedar Creek); and (2) because Beam invoked his rights under this




                                         10
statute prior to its repeal, he can still seek judicial review

in state court. 3

        We find Beam’s arguments unpersuasive, particularly given

that he initially challenged the overweight penalty under the

very statute he now claims does not apply to him.                         Moreover,

N.C. Gen. Stat. § 20-91.1 had not been repealed at time Beam

filed the instant federal suit.                 Therefore, the point remains:

If Beam wanted to challenge the CCPS’s decision he should have

continued the process he invoked under N.C. Gen. Stat. § 20-91.1

and filed suit in North Carolina state court.                     Because he did

not do so, we conclude that Younger’s first prong is satisfied.

Cf.   Moore,     396    F.3d   at   395    (affirming    the    district    court’s

decision to abstain under Younger even though the plaintiff was

left without any remedy for challenging his citation because his

appellate rights in state court had already expired.)

      Next, we examine whether the proceedings at issue implicate

a   substantial        state   interest.        To   satisfy   this   factor,     the

ongoing state proceedings must be “the type of proceeding to

which       Younger   applies.”      New    Orleans    Public    Serv.,    Inc.    v.

Council of the City of New Orleans, 491 U.S. 350, 367 (1989).

        3
       North Carolina forcefully reiterated this position at oral
argument, stating that “without question” Beam can still raise
all of his state and federal claims in state court pursuant to
N.C. Gen. Stat. § 20-91.1 and that the State would “absolutely”
support his entitlement to raise these claims in such a suit.



                                           11
Beam concedes that “the district court was correct in holding

that       [North   Carolina]     has   ‘a    substantial      interest      in    motor

safety’ . . . .”           (Appellant’s Br. at 32.)            He argues, however,

that this interest was not genuinely implicated because Beam’s

only real offense was failing to ensure that the rear escort’s

certification was not expired.                We disagree.      As North Carolina

points out, Beam’s “argument ignores the direct link between the

State’s desire to ensure the safety of its roadways and the

requirement that escort vehicles driven by properly certified

drivers accompany an overweight vehicle.”                      (Appellees’ Br. at

10.)       Hence, the district court correctly concluded that North

Carolina has a substantial state interest in motor safety.

       Finally, we consider whether Beam will have an adequate

opportunity to raise his constitutional claims in North Carolina

state      court.     See   Middlesex,       457   U.S.   at   432.     As    to    this

consideration, we agree with the district court that Beam “will

receive       a     full    and    fair       opportunity      to     litigate      the

constitutional claims during the state proceedings.”                      (J.A. 98.)

Thus, the three prong test for Younger abstention is met. 4




       4
       Beam also argues that the district court abused its
discretion by failing to take into account any existing Commerce
Clause considerations.    Similar to Beam’s other contentions,
this argument is likewise without merit.



                                             12
     In sum, Beam failed to exhaust his state judicial remedies,

where       he    could   have       asserted    his   constitutional     claims,   and

North       Carolina      has    a    substantial      interest    in   motor   safety.

Therefore, we hold that the principles of federalism and comity

demand application of Younger abstention.                         As we concluded in

Moore:

        [T]o the extent that [Beam] in this case seeks to
        annul   or    trample  on   the   results   of   state
        administrative proceedings, he interferes with the
        State’s interest in enforcing its substantive laws as
        well as its interest in enforcing those laws through
        available administrative procedures and in its own
        courts.   That [Beam] did not avail himself of state-
        provided avenues for review can only cast aspersion on
        the State’s capabilities and good faith and deprive
        the State of a function which quite legitimately is
        left to the state appellate bodies, that of overseeing
        agency dispositions of constitutional issues which
        arise in civil litigation over which they have
        jurisdiction.

Moore, 396 F.3d at 395 (internal quotation marks, citations and

alteration omitted).                 Accordingly, the district court did not

abuse       its    discretion        in   abstaining    from   entertaining      Beam’s

claims in deference to North Carolina’s substantial interest in

motor safety. 5


        5
       North Carolina contends that Burford v. Sun Oil Co., 319
U.S. 315 (1943) also mandated abstention.         To be sure,
abstention doctrines “are not rigid pigeonholes into which
federal courts must try to fit cases.”   Pennzoil Co. v. Texaco
Inc., 481 U.S. 1, 11 n.9, (1987). The district court, however,
solely relied on the principles of federalism articulated in
Younger v. Harris, 401 U.S. 37 (1971), and so, although Burford
abstention may (or may not) apply here, our analysis is limited
(Continued)
                                                13
                                      III.

     For the foregoing reasons, we affirm the district court’s

decision   to    abstain.     We    note,    however,   that   because   Beam’s

complaint requests monetary relief, the proper resolution is to

stay Beam’s case pending conclusion of the state proceedings.

See Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 731 (1996)

(“[f]ederal courts have the power to dismiss . . . based on

abstention      principles   only   where    the   relief   being   sought   is

equitable or otherwise discretionary.”); see also Traverso v.

Penn, 874 F.2d 209, 213 (4th Cir. 1989) (same).                Accordingly, we

vacate the district court’s order dismissing Beam’s action and

remand with instructions to stay the action.

                                                            AFFIRMED IN PART,
                                                             VACATED IN PART,
                                                                 AND REMANDED




to whether or not the district court correctly abstained under
Younger.



                                       14
