                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

BNSF RAILWAY COMPANY, a              
Delaware corporation,                      No. 08-35075
       Plaintiff-Appellant,
                 v.                        D. C. No.
                                         CV-07-00137-CSO
MATT O’DEA,                                 OPINION
      Defendant-Appellee.
                                     
      Appeal from the United States District Court
               for the District of Montana
      Carolyn S. Ostby, Magistrate Judge, Presiding

                  Argued and Submitted
             June 1, 2009—Portland, Oregon

                   Filed July 16, 2009

 Before: Diarmuid F. O’Scannlain, Ferdinand F. Fernandez,
          and Raymond C. Fisher, Circuit Judges.

               Opinion by Judge Fernandez;
               Concurrence by Judge Fisher




                              9111
             BNSF RAILWAY COMPANY v. O’DEA             9113




                        COUNSEL

Bryan P. Neal and Stephen F. Fink, Thompson & Knight
L.L.P., Dallas, Texas, for the plaintiff-appellant.

Terry N. Trieweiler, Trieweiler Law, Whitefish, Montana, for
the defendant-appellee.
9114           BNSF RAILWAY COMPANY v. O’DEA
                           OPINION

FERNANDEZ, Circuit Judge:

   BNSF Railway Company appeals the district court’s dis-
missal of its action against Matt O’Dea. The district court
held that it did not have jurisdiction because the action, in
effect, sought appellate review of a decision of the Montana
Human Rights Commission. We determine that the district
court did have jurisdiction; we reverse and remand.

                        BACKGROUND

  BNSF is a Delaware corporation, and has its principal place
of business in Texas. O’Dea is a citizen of Montana.

   O’Dea applied to and was extended a conditional offer of
employment by BNSF for the position of Conductor Trainee.
Based upon an individualized medical assessment, however,
BNSF disqualified O’Dea from further consideration for the
position. O’Dea then filed a complaint for discrimination with
the Montana Department of Labor and Industry, Employment
Relations Division, alleging that BNSF had discriminated
against him because of the perceived disability of obesity in
violation of the Montana Human Rights Act, the Americans
with Disabilities Act of 1990, and Title VII of the Civil Rights
Act of 1964. A hearing examiner granted O’Dea’s motion for
a summary ruling on liability and issued a final decision
awarding him damages and other relief. The Montana Human
Rights Commission affirmed that decision.

  The Montana Administrative Procedure Act1 provides for
judicial review of agency decisions, and BNSF sought review
by filing this action based upon diversity jurisdiction. See 28
U.S.C. § 1332. O’Dea filed a motion to dismiss the action and
argued that the federal courts lack subject matter jurisdiction
  1
   Mont. Code Ann. §§ 2-4-701 through 2-4-711.
                 BNSF RAILWAY COMPANY v. O’DEA                      9115
because federal courts do not have diversity jurisdiction over
appeals from state agencies, and that is what this action
amounts to.2 The district court agreed, and dismissed the
action. This appeal followed.

                    STANDARD OF REVIEW

  We review the district court’s dismissal of this case for lack
of subject matter jurisdiction de novo. See Nuclear Info. &
Res. Serv. v. U.S. Dep’t of Transp. Research & Special Pro-
grams Admin., 457 F.3d 956, 958 (9th Cir. 2006).

                          JURISDICTION

   This appeal wholly turns on questions of jurisdiction. The
primary question is whether a district court can entertain a
diversity action to review a decision of a state administrative
agency where that review is of an on-the-record, rather than
de novo, nature. In a case virtually on all fours with the case
at hand, we held that federal courts do not have jurisdiction
to review decisions of Montana administrative agencies under
those circumstances. See Shamrock Motors, Inc. v. Ford
Motor Co., 120 F.3d 196, 197-200 (9th Cir. 1997).

   O’Dea argues that we are bound by Shamrock and must,
therefore, affirm the district court. Were his premise correct,
we would have to agree. Alas, as we will hereafter explain, it
is not. But first we must make a brief detour to answer
O’Dea’s claim that we do not have appellate jurisdiction in
any event.

  A.    Appellate Jurisdiction

  We do have jurisdiction to determine whether we have
  2
    O’Dea also argued that BNSF failed to join indispensable parties, that
venue was improper and that service of process was insufficient. The dis-
trict court did not rule on those assertions. Nor shall we.
9116              BNSF RAILWAY COMPANY v. O’DEA
jurisdiction over this appeal. See Aguon-Schulte v. Guam
Election Comm’n, 469 F.3d 1236, 1239 (9th Cir. 2006).

   When BNSF filed this action in the district court, it also,
out of an abundance of caution, filed a parallel action in a
Montana state court, in which it sought review of the Human
Rights Commission decision. It then removed that action to
the district court. The district court remanded that action to
the state courts for essentially the same reason as it dismissed
this action. We, of course, do not have jurisdiction to review
that remand. See 28 U.S.C. § 1447(c), (d); Aguon-Schulte,
469 F.3d at 1240.

   O’Dea argues that this appeal is really an appeal from a
remand order. Clearly, it is not; it is an appeal from the dis-
missal of an original action filed in the district court. While
we agree with O’Dea that courts should be more concerned
with substance than with labels,3 the fact that this was an orig-
inal federal court action is no mere label; it is a concrete fact.
Thus, the strictures of 28 U.S.C. § 1447 do not apply to it.

   [1] But, says O’Dea, BNSF could not file an original action
in the district court because the appeal procedure set forth in
Montana law declares that a petition for review “must be filed
in the [state] district court for the county where the petitioner
resides or has the petitioner’s principal place of business or
where the agency maintains its principal office.” Mont. Code
Ann. § 2-4-702(2)(a). That means, says he, that original fed-
eral jurisdiction is precluded.4 We disagree. A state cannot
  3
     See Prudential Real Estate Affiliates, Inc. v. PPR Realty, Inc., 204 F.3d
867, 880 (9th Cir. 2000).
   4
     O’Dea suggests that BNSF cannot even contest his claim because in
another case it (unsuccessfully) judicially admitted that a filing must first
be made in the state court. However, assuming that BNSF made that
admission, we are unaware of any rule that would deprive us of jurisdic-
tion in this case because of it. See, e.g., Heritage Bank v. Redcom Labs.,
Inc., 250 F.3d 319, 329 (5th Cir. 2001) (holding that judicial admissions
                 BNSF RAILWAY COMPANY v. O’DEA                         9117
confer rights upon private parties and require that litigation
between those parties must be confined to the courts of the
state itself. As our hyaline alembic regarding this part of the
law put it more than twenty-five years ago, when we were
faced with an assertion that state statutes precluded federal
court jurisdiction:

        In determining jurisdiction, district courts of the
     United States must look to the sources of their
     power, Article III of the United States Constitution
     and Congressional statutory grants of jurisdiction,
     not to the acts of state legislatures. However exten-
     sive their power to create and define substantive
     rights, the states have no power directly to enlarge or
     contract federal jurisdiction.

Duchek v. Jacobi, 646 F.2d 415, 419 (9th Cir. 1981); see also
Marshall v. Marshall, 547 U.S. 293, 312-14, 126 S. Ct. 1735,
1749-50, 164 L. Ed. 2d 480 (2006); Ry. Co. v. Whitton’s
Adm’r, 80 U.S. (13 Wall.) 270, 286, 20 L. Ed. 571 (1871);
Begay v. Kerr-McGee Corp., 682 F.2d 1311, 1315 (9th Cir.
1982).

   We recognize, of course, that in Chicago, R.I. & P.R. Co.
v. Stude, 346 U.S. 574, 581, 74 S. Ct. 290, 295, 98 L. Ed. 317
(1954), the Supreme Court found a lack of jurisdiction. The
railroad attempted to file an appeal in the district court from
a state administrative ruling in a condemnation case before
the condemnation proceedings were complete. Id. at 575-77,
74 S. Ct. at 292-93. State law did provide for an appeal to a

in an action do not extend to other actions); Int’l Tel. & Tel. Corp. v. Gen.
Tel. & Elecs. Corp., 518 F.2d 913, 932 n.71 (9th Cir. 1975) (same), disap-
proved on other ground by California v. Am. Stores Co., 495 U.S. 271,
277-78, 110 S. Ct. 1853, 1857, 109 L. Ed. 2d 240 (1990); cf. Hamilton v.
State Farm Fire & Cas. Co., 270 F.3d 778, 782-83 (9th Cir. 2001) (stating
that failure to gain an advantage in prior litigation cuts against a finding
of judicial estoppel).
9118             BNSF RAILWAY COMPANY v. O’DEA
state court, and the Supreme Court determined that the federal
district court should not be a part of that purely state proce-
dure. As it said, state legislatures cannot “ ‘make a federal
district court, a court of original jurisdiction, into an appellate
tribunal.’ ” Id. at 581, 74 S. Ct. at 295. We quoted that very
passage in Shamrock, 120 F.3d at 198, as an important step
to our conclusion that diversity jurisdiction was not proper.
However, the Court has now indicated that Stude was actually
referring to a state procedure that was merely an interlocutory
step in a condemnation action5 and has gone on to observe
that, in principle, on-the-record review of administrative
actions by a district court is perfectly proper.6 That, and the
cases just cited, leave the residual conclusion that state legis-
latures cannot directly affect federal court jurisdiction. The
authorities stand for no more and no less than that.

   [2] Nor do we scry anything in the Montana statute itself
that would lead us to the belief that the state even contem-
plated, intended, or attempted to affect federal jurisdiction.
We conclude that it did not and could not have succeeded if
it had.

  B.    Diversity Jurisdiction

   We come, then, to the principal question raised by the par-
ties: Is there federal diversity jurisdiction?

   [3] As we have already noted, here, as in Shamrock, we
deal with the strictures on review of the decisions of Montana
administrative agency adjudications. Under Montana law
“[t]he review must be conducted by the court without a jury
and must be confined to the record.” Mont. Code Ann. § 2-4-
704(1). Moreover, “[t]he court may not substitute its judg-
ment for that of the agency as to the weight of the evidence
  5
     City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 169-70, 118
S. Ct. 523, 532, 139 L. Ed. 2d 525 (1997).
   6
     Id. at 170-71, 118 S. Ct. at 532-33.
                 BNSF RAILWAY COMPANY v. O’DEA                      9119
on questions of fact,”7 and even if the court believes that addi-
tional evidence is needed, it cannot take that evidence itself,
but must remand to the agency for that purpose.8

   [4] In light of those provisions and our reading of the paths
of the law blazed by the United States Supreme Court, we
determined in Shamrock that the review in question was of an
appellate nature, and “[w]hen a state provides for administra-
tive agency review of an appellate nature, rather than adminis-
trative review of a de novo nature, federal district courts have
neither original jurisdiction nor removal jurisdiction over the
review proceedings.” Shamrock, 120 F.3d at 200. In so doing,
we relied on Stude. As we understood that case, the Supreme
Court had determined that a state legislature could not turn a
district court into an appellate tribunal for state administrative
or judicial actions, but had the case been otherwise proper for
removal, the district court could have taken jurisdiction
because review was de novo. Shamrock, 120 F.3d at 198-99.
We then went on to consider Horton v. Liberty Mut. Ins. Co.,
367 U.S. 348, 81 S. Ct. 1570, 6 L. Ed. 2d 890 (1961), and
read that case to hold that review of the administrative agency
determination was proper because, and only because, “the
action required a trial de novo, rather than a true appellate
review.” Shamrock, 120 F.3d at 199. We thought that was
why the Court had held that “the district court did have diver-
sity jurisdiction.” Id. We then referred to the fact that many
other courts of appeals had taken the same view, and quoted,
with approval, a Seventh Circuit Court of Appeals case9
which drew that distinction. Shamrock, 120 F.3d at 199.

  [5] All of that led to our holding, but the Supreme Court
has now made it pellucid that we were just plain wrong. In
City of Chicago, 522 U.S. at 169-72, 118 S. Ct. at 532-533,
  7
    Mont. Code Ann. § 2-4-704(2).
  8
    Mont. Code Ann. § 2-4-703.
  9
    Int’l Coll. of Surgeons v. City of Chicago, 91 F.3d 981, 990 (7th Cir.
1996), rev’d, 522 U.S. 156, 118 S. Ct. 523, 139 L. Ed. 2d 525 (1997).
9120             BNSF RAILWAY COMPANY v. O’DEA
the Court reversed the Seventh Circuit Court of Appeals deci-
sion that we dubbed trenchant, and thoroughly dismantled its
(and our) reading of Stude and Horton. Moreover, in its dis-
cussion, the Court made it plain that there is nothing special
about on-the-record review; rather, it said, “[a]fter all, district
courts routinely conduct deferential review pursuant to their
original jurisdiction over federal questions, including on-the-
record review of federal administrative action.” Id. at 171,
118 S. Ct. at 533. It then noted that “[n]othing in § 1367(a)
suggests that district courts are without supplemental jurisdic-
tion over claims seeking precisely the same brand of review
of local administrative determinations.” Id. As we see it, that
left little or nothing to prop up Shamrock’s holding.

   We do recognize that, like the case at hand, our prior case
was a diversity case,10 and the Supreme Court made it clear
that it was dealing with federal question supplemental jurisdic-
tion.11 In fact, the Court stated that it was deciding a “supple-
mental” jurisdiction case under § 1367(a), and that “does not
answer the question, nor do we, whether those same claims,
if brought alone, would substantiate the district courts’ ‘origi-
nal’ jurisdiction over diversity cases under § 1332.” City of
Chicago, 522 U.S. at 172, 118 S. Ct. at 533.

   [6] While we cannot fault the Court for limiting itself to the
very case it had at hand, the fact remains that it is difficult to
see a principled distinction between federal question jurisdic-
tion under 28 U.S.C. § 1331, which is limited to “civil
actions,” and diversity jurisdiction under 28 U.S.C. § 1332,
which has the self-same limitation.12 In other words, once it
is determined that district courts have full authority to con-
  10
      Shamrock, 120 F.3d at 197.
  11
      City of Chicago, 522 U.S. at 172, 118 S. Ct. at 533.
   12
      As the Court has told us: “It is implausible, however, to say that the
identical phrase means one thing . . . in § 1331 and something else . . . in
§ 1332.” Exxon Mobile Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 561,
125 S. Ct. 2611, 2622, 162 L. Ed. 2d 502 (2005).
                  BNSF RAILWAY COMPANY v. O’DEA                          9121
sider on-the-record administrative review to be a “civil
action” as such, there is no apparent basis to hold, as did
Shamrock, that there is no district court diversity jurisdiction
over that kind of civil action.13

   Justice Ginsburg saw the above clearly. She saw that under
the Court’s reasoning, Shamrock must fall14 because, as she
succinctly put it:

          If, as the Court reasons today, the distinction
       between de novo and deferential review is inconse-
       quential, then the district court may, indeed must,
       entertain cross-system, on-the-record appeals from
       local agency decisions—without regard to the pres-
       ence or absence of any federal question—whenever
       the parties meet the diversity-of-citizenship require-
       ment of § 1332.

City of Chicago, 522 U.S. at 182, 118 S. Ct. at 538 (Ginsburg,
J., dissenting).

   [7] Therefore, although the Supreme Court did not decide
the identical issue in Shamrock, or expressly overrule that
case, its decision in City of Chicago so thoroughly under-
mined the basis of our decision that we are constrained to say
we are “bound by the intervening higher authority” of that
Court and must “reject the prior opinion of this court [(Sham-
rock)] as having been effectively overruled.” Miller v. Gam-
mie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc); see also
Cal. Dep’t of Water Res. v. Powerex Corp., 533 F.3d 1087,
1095-96 (9th Cir. 2008). The ineluctable result is that even
though this case involves on-the-record review of a Montana
  13
      In fact, in Stude, 347 U.S. at 578-79, 74 S. Ct. at 294, the Court recog-
nized that, at least after filing, an appeal became a civil action.
   14
      City of Chicago, 522 U.S. at 178-79, 118 S. Ct. at 536 (Ginsburg, J.,
dissenting).
9122             BNSF RAILWAY COMPANY v. O’DEA
administrative agency decision, the district court has diversity
jurisdiction.15

                            CONCLUSION

   In City of Chicago, 522 U.S. at 163, 118 S. Ct. at 528-29,
the Supreme Court so severely undermined the rampart we
erected between district court diversity jurisdiction and the
onslaught of actions seeking on-the-record review of state
administrative agency decisions that the structure’s collapse
was inevitable. That collapse has come. We are, therefore,
constrained to hold that Shamrock, 120 F.3d at 200, is no lon-
ger the law and that the district court does have subject matter
jurisdiction to hear BNSF’s review action.

   REVERSED and REMANDED.



FISHER, J., Circuit Judge, concurring:

   Today we hold that district courts have diversity jurisdic-
tion over appeals from state administrative agency decisions
when state law places such appeals in state trial courts and, of
course, when the familiar citizenship and amount in contro-
versy requirements are fulfilled. Our holding will necessarily
require federal courts of original jurisdiction to sit in an appel-
late capacity to deferentially review state administrative
action. These cross-system appeals have been foreclosed from
district court dockets for nearly 12 years under Shamrock
Motors, Inc. v. Ford Motor Co., 120 F.3d 196 (9th Cir. 1997),
in part because we thought cross-system appeals were bad
policy on the basis of well settled principles of federalism.
  15
    We, like the Supreme Court, note the possibility that on remand an
abstention principle might be applied by the district court, see City of Chi-
cago, 522 U.S. at 174, 118 S. Ct. at 534; see also id. at 188-89, 118 S. Ct.
at 541 (Ginsburg, J., dissenting).
                 BNSF RAILWAY COMPANY v. O’DEA                        9123
See id. at 200. Although it is a close call, I join my colleagues,
both of whom participated in deciding Shamrock, in holding
that City of Chicago v. International College of Surgeons, 522
U.S. 156 (1997), “effectively overruled” Shamrock. See Mil-
ler v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc).
It is a close call both because the City of Chicago majority
explicitly stated that it was not deciding the question we
decide today and because City of Chicago’s reading of the
jurisdictional statutes did nothing to undermine the principles
of federalism Judge Fernandez articulated in Shamrock. If
anything, City of Chicago reinforced those policy concerns. I
am therefore not convinced, as my colleagues are, that Sham-
rock was “just plain wrong,” Op. at 9119. I write separately
to explain why.

   In Shamrock, we joined the majority of circuits in holding
that district courts lack original jurisdiction over cross-system,
on-the-record appeals from state agency decisions because
such appeals are not “civil actions” under the diversity and
removal jurisdiction statutes. See Shamrock, 120 F.3d at 199.
We read the civil action requirement to exclude on-the-record
review, but not de novo review, because we thought it clear
that the states were forbidden from converting federal district
courts into administrative appellate tribunals. See Chicago,
R.I. & P.R. Co. v. Stude, 346 U.S. 574, 581 (1954). O’Dea has
made a colorable argument that Shamrock’s holding with
respect to diversity jurisdiction survives City of Chicago,
because there the Supreme Court explicitly and repeatedly
limited its holding to the supplemental jurisdiction scenario
presented in that case.1 In fact, the Court denied that original
   1
     The Fourth Circuit has adopted a narrow reading of City of Chicago
like the narrow reading O’Dea urges here. See Kirkpatrick v. Lenoir
County Bd. of Educ., 216 F.3d 380, 387 n.6 (4th Cir. 2000) (noting that
City of Chicago affirmed only “supplemental jurisdiction over state claims
that call for deferential on-the-record review of state administrative find-
ings when the district court already possesses original jurisdiction over
another claim”).
9124           BNSF RAILWAY COMPANY v. O’DEA
jurisdiction over cross-system appeals was even relevant to
supplemental jurisdiction:

    Because this is a federal question case, the relevant
    inquiry is not, as [respondent] submits, whether its
    state claims for on-the-record review of the Commis-
    sion’s decisions are “civil actions” within the “origi-
    nal jurisdiction” of a district court: The District
    Court’s original jurisdiction derives from [respon-
    dent]’s federal claims, not its state law claims.

City of Chicago, 522 U.S. at 166. Thus, the Court declined to
answer the question “whether those same [state] claims, if
brought alone, would substantiate the district court’s ‘origi-
nal’ jurisdiction over diversity cases under § 1332.” Id. at
172. Shamrock had answered that exact question with a firm
“no,” and we cannot lightly ignore it as binding authority.
Yet, as today’s opinion explains, Shamrock primarily
depended on a reading of Stude, 346 U.S. at 581, and Horton
v. Liberty Mutual Insurance Co., 367 U.S. 348, 354-55
(1961), that the Supreme Court disavowed in City of Chicago.
After City of Chicago, we cannot hold that the standard of
review dictated by state law in a cross-system appeal deter-
mines whether that cross-system appeal is a “civil action”
under the diversity jurisdiction statute. See Miller, 335 F.3d
at 900 (“[I]ssues decided by the higher court need not be iden-
tical in order to be controlling.”).

   This case is a close one, however, because Shamrock did
not rest exclusively on the distinction between de novo and
on-the-record review that City of Chicago rejected. Judge Fer-
nandez’s Shamrock opinion also articulated a compelling pol-
icy reason to read the diversity jurisdiction statute to exclude
cross-system appeals. “[T]he prospect of a federal court sit-
ting as an appellate court over state administrative proceed-
ings is rather jarring and should not be quickly embraced as
a matter of policy.” Shamrock, 120 F.3d at 200. This sound
statement of a principle of federalism is no less true after City
                  BNSF RAILWAY COMPANY v. O’DEA                         9125
of Chicago; as explained below, I believe the City of Chicago
majority, in its response to the dissent, actually reaffirmed the
policy argument driving Shamrock.

   Justice Ginsburg, joined by Justice Stevens, dissented from
the Court’s opinion in City of Chicago in part because of her
concern that the Court was precipitously reallocating power
from state courts to federal courts, without much indication
from Congress that it intended such an expansion of federal
power. See City of Chicago, 522 U.S. at 177 (Ginsburg, J.,
dissenting). Absent a clear congressional statement, the dis-
sent thought it unwise for federalism reasons to open district
courts to “appeals from the actions of all manner of local
(county and municipal) agencies, boards, and commissions.”
Id. at 175 (Ginsburg, J., dissenting). Like Shamrock, the City
of Chicago dissent feared that district courts would be
required to encroach on state court prerogative by “directly
superintend[ing] local agencies.” Id. (Ginsburg, J., dissent-
ing). In response, the majority implicitly validated the dis-
sent’s protests in two ways, thus reaffirming Shamrock’s
policy argument. First, the majority reiterated the narrowness
of its supplemental jurisdiction holding, distancing itself from
“the dissent’s repeated assumption that the jurisdictional anal-
ysis of diversity cases would be no different.” Id. at 172 (cita-
tions omitted). This suggests that lower courts might properly
find that diversity cases are different. There are good reasons
that diversity cases should be different, the most obvious of
which is the expansion of federal court authority foretold by
the City of Chicago dissent.2 Second, the majority encouraged
district courts to consider the Court’s abstention doctrines
when presented with a problematic cross-system appeal. The
  2
    Further, the diversity statute, unlike the supplemental jurisdiction stat-
ute, does not afford district courts the discretion to decline jurisdiction
over state law claims. Compare 28 U.S.C. § 1332 with 28 U.S.C.
§ 1367(c). District courts sitting in diversity therefore lack the option of
refusing state law claims out of consideration for “judicial economy, con-
venience, fairness, and comity.” City of Chicago, 522 U.S. at 173 (quota-
tion marks omitted).
9126           BNSF RAILWAY COMPANY v. O’DEA
majority therefore must have agreed that cross-system appeals
would at times invite an inappropriate exercise of federal
jurisdiction. Otherwise the Court would have had no reason
to “note that there may be situations in which a district court
should abstain from reviewing local administrative determina-
tions even if the jurisdictional prerequisites are otherwise sat-
isfied.” Id. at 174. In sum, the majority never suggested the
dissent’s federalism concerns were misplaced, only that they
were significantly mitigated by the majority’s narrow holding
and the applicability of abstention to future cross-system
appeals. Accordingly, were it not for the Court’s clarification
of Stude and Horton, we would have good reason to follow
the rule of Shamrock for diversity cases until the Supreme
Court tells us otherwise.

   We can only speculate whether today’s holding will result
in a deluge of cross-system appeals, or whether BNSF is cor-
rect that such concerns are overblown. Given these concerns,
however, I join my colleagues in urging the district court to
decide in the first instance whether any abstention doctrine
applies. I am also mindful of the two parallel state court
actions these same parties are currently litigating. If these
state court proceedings conclude on the merits before the dis-
trict court decides this case, ordinary principles of res judicata
might dictate whether the district court can or should decide
this cross-system appeal. Careful consideration of these and
perhaps other limitations on federal jurisdiction might help
the district court proceed with caution, lest it “jeopardize the
‘strong interest’ courts of the State have in controlling the
actions of local as well as state agencies.” City of Chicago,
522 U.S. at 185 (Ginsburg, J., dissenting).
