          United States Court of Appeals
                      For the First Circuit

No. 12-2398

                    VERIZON NEW ENGLAND, INC.,

                      Plaintiff, Appellant,

                                v.

         RHODE ISLAND DEPARTMENT OF LABOR AND TRAINING;
  INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 2323;
                           CLAIMANTS,

                      Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF RHODE ISLAND

       [Hon. John J. McConnell, Jr., U.S. District Judge]


                              Before

                 Torruella, Thompson and Kayatta,
                          Circuit Judges.


     Arthur G. Telegen, with whom James M. Hlawek and Seyfarth Shaw
LLP, were on brief for appellant.
     Marc B. Gursky, with whom Elizabeth Wiens and Gursky Law
Associates, was on brief for appellees Local 2323 and Claimants.
     Adam J. Sholes, Special Assistant Attorney General, Peter F.
Kilmartin, Attorney General, and Thomas A. Palombo, Assistant
Attorney General, was on brief for appellee Rhode Island Department
of Labor and Training.



                          July 17, 2013
           TORRUELLA, Circuit Judge.           Plaintiff-Appellant Verizon

New England, Inc. ("Verizon") appeals from an order dismissing its

federal court action against the Rhode Island Department of Labor

and Training ("RIDLT") and claimant members of the International

Brotherhood of Electrical Workers ("IBEW"), Local 2323, who claimed

unemployment benefits following a large-scale work stoppage at

Verizon ("Claimants").     After careful consideration, we affirm the

district   court's   dismissal,    but    on   the   singular   ground   that

dismissal is warranted under the Younger abstention doctrine.

I.   Background

A.   Factual Background

           Verizon was a party to a collective bargaining agreement

("CBA") with six IBEW local unions (the "System Council T-6"),

which included Local 2323.       The CBA was in effect from August 3,

2008 until August 6, 2011.        Between June 22, 2011 and August 6,

2011, the parties to the CBA attempted to reach a new agreement

through negotiations.     During said negotiations, on July 26, 2011,

Verizon sent a letter to System Council T-6 notifying them in

writing that, "if we do not reach a new agreement by August 6, the

arbitration provisions of the various labor contracts would not be

in effect for grievances."

           Verizon and System Council T-6 were unable to reach a new

agreement before the CBA expired.         System Council T-6 called for a

work   stoppage,   and   its   members    commenced   picketing   Verizon's


                                    -2-
facilities and remote work sites in New England.                 On or around

August 23, 2011, Verizon reached an agreement with System Council

T-6 under which the members of the various unions would return to

work under the terms of the expired CBA.              After the employees

returned to work, approximately 800 members of the various unions

employed by Verizon in Rhode Island applied for unemployment

benefits before RIDLT.

           On August 29, 2011, the Director of RIDLT denied the

Claimants' application for unemployment benefits, concluding that

they became unemployed as a result of a strike and were thus barred

from such benefits under Section 28-44-16 of the Rhode Island

Employment Security Act.     Section 28-44-16(a) of that Act provides

that an individual will not be entitled to benefits "if he or she

became   unemployed   because   of    a    strike    or   other    industrial

controversy in the establishment in which he or she was employed,"

but Section 28-44-16(b), which governs lockouts, provides that an

individual is entitled to benefits if "unemployment is a result of

his or her employer's withholding of employment for the purpose of

resisting collective bargaining demands or gaining collective

bargaining concessions."

           The   Claimants    appealed      the     Director's     denial   of

unemployment benefits to the RIDLT's Board of Review.              On May 22,

2012, the Board reversed the Director's denial of unemployment

benefits and found that the Claimants were entitled to receive


                                     -3-
unemployment benefits under Section 28-44-16(b). Specifically, the

Board found a series of actions on the part of Verizon to have

constituted a constructive and actual lockout, including: "deleting

of the arbitration provisions," which created a "substantial change

to the status quo"; allowing Claimants to return to work if the

current CBA were modified by removing the arbitration provisions;

denying Claimants' access to Verizon's computers for employer

business and Claimants' personal business (i.e., 401 accounts,

health insurance, sick and vacation time, etc.) in preparation for

the impending job action; collecting Claimants' employer-issued

swipe/identification cards, employer-issued cell phones, laptops,

various other tools and equipment; locking doors, chaining gates,

and, at various work sites, having no personnel to allow Claimants

access to work; and violating its past practice of allowing

employees to work under an expired unmodified agreement. The Board

also found that "record testimony established that the constructive

lockout morphed into an actual lockout when the employer took overt

actions of chaining gates, locking doors, failing to staff security

kiosks, and denying access to its computer system."        Verizon

appealed the Board's decision to the Sixth Division District Court,

Providence County, Rhode Island, where it remains pending.

B.   Procedural History

           While the matter was pending before the state court,

Verizon filed a complaint in the United States District Court for


                               -4-
the District of Rhode Island challenging the Board's decision and

seeking declaratory and injunctive relief.    Specifically, Verizon

argued that the Board's decision should not be enforced as it was

preempted by the National Labor Relations Act ("NLRA").

          RIDLT moved to dismiss Verizon's complaint for failure to

state a claim on two grounds: (1) the Board's decision was not

preempted by the NLRA; and (2) in the alternative, the district

court should abstain from hearing the matter under the Younger

abstention doctrine.   The district court agreed with RIDLT and

dismissed the complaint on both grounds.    On the preemption issue,

it held that the Supreme Court's decision in New York Telephone Co.

v. New York State Department of Labor, 440 U.S. 519 (1979), which

held that the NLRA does not preempt a state's ability to provide

strikers unemployment benefits, governed.     As to abstention, it

held that the action must be dismissed as having met the applicable

requirements under Younger.     Verizon filed this timely appeal

challenging both grounds of dismissal.

                         II.   Discussion

          For purposes of this appeal, we accept as true the well-

pleaded factual allegations in Verizon's complaint and draw all

reasonable inferences from those allegations in its favor. Lass v.

Bank of America, N.A., 695 F.3d 129, 133 (1st Cir. 2012).   Since we

find that the proper route in this case is to abstain from hearing

it under Younger v. Harris, 401 U.S. 37 (1971), we do not reach the


                                -5-
merits of Verizon's preemption claim.    We thus proceed directly to

discuss our abstention reasoning.

A.   Ongoing State Court Proceedings and Younger Abstention

           This court reviews a district court's dismissal of a

complaint on a motion to dismiss de novo.     Lass, 695 F.3d at 133.

We also review de novo whether Younger mandates a district court's

abstention.   Colonial Life & Accident Ins. Co. v. Medley, 572 F.3d

22, 25 (1st Cir. 2009).

           In Younger, the Supreme Court held that abstention is

required where a plaintiff defending criminal charges in state

court sought to have the federal court enjoin the ongoing state

criminal proceedings.   Younger doctrine has been extended to civil

actions, and is most commonly applied to suits seeking declaratory

or injunctive relief.     Rossi v. Gemma, 489 F.3d 26, 34 (1st Cir.

2007). Based on principles of comity, the doctrine instructs that,

unless there are extraordinary circumstances, federal courts should

not "interfere with ongoing state-court litigation, or, in some

cases, with state administrative proceedings." Id. (quoting Maymo-

Meléndez v. Álvarez-Ramírez, 364 F.3d 27, 31 (1st Cir. 2004)).   In

this circuit, abstention is appropriate "when the requested relief

would interfere (1) with an ongoing state judicial proceeding; (2)

that implicates an important state interest; and (3) that provides

an adequate opportunity for the federal plaintiff to advance his

federal constitutional challenge."     Id. at 34-35.


                                 -6-
             Verizon    does   not   seem   to   challenge      that   the    three

criteria for Younger abstention were met here, and we agree with

the district court that they were.1         Verizon focuses instead on the

availability of an exception to the Younger abstention doctrine

when a preemption claim is "facially conclusive."

             The "facially conclusive" preemption exception evolved

out of the Supreme Court's suggestion in New Orleans Public

Service, Inc. v. City of New Orleans ("NOPSI"), 491 U.S. 350

(1989), that Younger abstention may not be appropriate "if the

federal plaintiff will 'suffer irreparable injury' absent equitable

relief." Id. at 366 (quoting Younger, 401 U.S. at 43-44); see also

Colonial Life, 572 F.3d at 26.          The Court offered an example of

such an injury upon "a showing that the challenged state statute is

'flagrantly    and     patently   violative      of   express    constitutional

prohibitions.'"      NOPSI, 491 U.S. at 366 (quoting Younger, 401 U.S.

at 53-54).    A "facially conclusive" claim of preemption, it found,

could be "sufficient to render abstention inappropriate."                    Id. at

367.   The Court, however, did not elaborate on when such an


1
    While Verizon does not directly concede that the three
requirements under Younger were met, they only address those
requirements in their brief on appeal by making the following
statement: "Even if the three elements are met, Younger abstention
is not appropriate if it is 'facially conclusive' that a state
action is preempted by federal law." We accordingly deem Verizon's
arguments waived as to whether the requirements for abstention
under Younger are met. United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990) ("issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed
waived").

                                      -7-
exception would be applicable since it held that the proceedings

and order at issue did not "meet th[e] description" of such a

"facially conclusive" claim.           Id.    It did explain that merely

showing "a substantial claim of federal preemption" would not be

enough, and stated that "[w]hat requires further factual inquiry

can hardly be deemed 'flagrantly' unlawful for purposes of a

threshold abstention determination."            Id. at 366-67.

             Subsequent   to    NOPSI,   this    and   other    circuits    have

explicitly recognized that an exception to abstention exists where

preemption is "facially conclusive" or "readily apparent."                  See

Colonial Life, 572 F.3d at 26; Chaulk Servs., Inc. v. Mass. Comm'n

Against Discrimination, 70 F.3d 1361, 1370 (1st Cir. 1995); see

also Midwestern Gas Transmission Co. v. McCarty, 270 F.3d 536, 539

(7th Cir. 2001); Commc'ns Telesys. Int'l v. Cal. Pub. Util. Comm'n,

196   F.3d   1011,   1017      (9th   Cir.   1999).     In     evaluating    the

applicability of this exception in the labor context, our circuit

has mostly dealt with preemption challenges brought under San Diego

Building Trades v. Garmon, 359 U.S. 236 (1959), to ongoing state

proceedings that infringe on the jurisdiction of the National Labor

Relations Board.     See, e.g., Local Union No. 12004, USW v. Mass.,

377 F.3d 64, 78-80 (1st Cir. 2004); Chaulk Servs., 70 F.3d at 1370.

However, we have more fully addressed the scope of the exception in

Colonial Life.       There, we were asked, inter alia, to review a

question of first impression: whether a plaintiff's state anti-


                                       -8-
discrimination       law   claims,    brought    before   the    Massachusetts

Commission Against Discrimination ("MCAD"), were preempted by the

Employee Retirement Income Security Act of 1974 ("ERISA") because

they also constituted federal discrimination claims under the

Americans with Disabilities Act ("ADA").             Colonial Life, 572 F.3d

at 24-25.     We held that a "preemption determination [that] would

require the district court to resolve a novel question of law . .

. is not 'facially conclusive,' and, under such circumstances, the

district     court    [is]   required    to     abstain   from   deciding   the

preemption issue."         Id. at 24.   We also observed without deciding

that the existence of a factual dispute presents "several problems

with   the   district      court's   determination    that   preemption     [is]

'facially conclusive.'"        Id. at 29.

             Navigating the evolution of the applicability of this

exception, Verizon first dismisses any potential concern that a

disagreement is present here requiring a detailed analysis of the

factual record.       Instead, it accepts as undisputed the pertinent

facts "set forth in the Board's decision." It then claims that the

district court should have found abstention inappropriate since it

is "facially conclusive" that the Board's decision was preempted

under International Ass'n of Machinists & Aerospace Workers v.

Wisconsin Employment Relations Commission ("Machinists"), 427 U.S.

132 (1976).     The Machinists preemption doctrine holds that states

may not interfere with areas of federal labor relations intended by


                                        -9-
Congress "to be controlled by the free play of economic forces."

Id. (quoting NLRB v. Nash-Finch Co., 404 U.S. 138, 144 (1971)).

In    Verizon's   view,        the    Board's      determination        that   Verizon's

"deletion of the arbitration provisions" from the CBA constituted

a "constructive lockout" improperly interfered with such an area of

federal labor relations.              It did so by incentivizing Verizon to

violate the NLRA "by unilaterally imposing arbitration procedures

after expiration of a labor contract and pressuring Verizon to

offer arbitration as a concession to unions during collective

bargaining negotiations."

             RIDLT    responds        by    arguing   that    the       Supreme   Court's

holding in New York Telephone directly contradicts Verizon's claim

that preemption is "facially conclusive" in this case. In New York

Telephone, the Court held that, even though Congress was undeniably

aware "of the possible impact of unemployment compensation on the

bargaining    process,"         the    NLRA's      "omission       of    any   direction

concerning payment to strikers . . . implies that Congress intended

that   the   States       be   free    to    authorize,      or    to    prohibit,   such

payments."    N.Y. Tel., 440 U.S. at 544.              Under that holding, RIDLT

asserts that Rhode Island is not preempted from deciding how, or

if, to award unemployment benefits, and Verizon cannot avoid the

application of that holding here by narrowly interpreting the

Board's decision as "only taking into account the issue concerning

the    deletion      of    arbitration        procedures          for    grievances."


                                            -10-
Additionally, RIDLT rejects Verizon's claim that there is no

factual dispute as to the pertinent facts here.         It argues that

Verizon's exclusive concentration on the Board's factual finding

pertaining to the "deletion of the arbitration provisions" fails to

acknowledge the Board's additional factual findings that Verizon

effectuated a constructive and actual lockout.

           We agree with RIDLT that preemption is not "facially

conclusive" here.     First, Supreme Court precedent in New York

Telephone could not be clearer that "a State's power to fashion its

own policy concerning the payment of unemployment compensation is

not to be denied on the basis of speculation about the unexpressed

intent of Congress."       440 U.S. at 545.     Rather, "Congress has

decided to tolerate a substantial measure of diversity" in that

area.   Id. at 546.   Further, New York Telephone addressed head on

the Machinists preemption challenge in considering the conjunction

of State administration of unemployment compensation schemes and

the economic self-help capabilities of the parties to a labor-

management dispute and expressly found that, even though "Congress

was aware of the possible impact of unemployment compensation on

the bargaining process," "the fact that the implementation of [a]

general   state   policy   affects   the   relative   strength   of   the

antagonists in a bargaining dispute is not a sufficient reason for

concluding that Congress intended to pre-empt that exercise of

state power."     Id. at 544, 546.      Therefore, if anything, it is


                                 -11-
facially conclusive that New York Telephone precludes Verizon's

preemption claim here.

            To the extent that this case is distinguishable from New

York Telephone on the basis of any legal implications of Verizon's

announced position concerning the arbitration provisions, Verizon

could only be characterized as presenting a novel question of law

regarding the NLRA.        We have not before decided whether the NLRA

permits     States,   in     their    administration   of    unemployment

compensation schemes, to influence labor arbitration. By asking us

to decide that issue, Verizon is thus doing the equivalent of what

the petitioners attempted to do in New York Telephone, which is "to

extend the doctrine of labor law pre-emption in a new area."           Id.

at 533.     However, under our precedent in Colonial Life, such a

novel issue precludes any legal determination that preemption is

"facially conclusive."       Colonial Life, 572 F.3d at 24.

            Finally, we cannot deem preemption "facially conclusive"

here because while Verizon states that there is no factual dispute,

its entire appeal is contingent on rejecting the Board's factual

determination that a lockout occurred and challenging the Board's

reversal of the Director's determination that the Claimants became

unemployed as the result of a strike.        The Board's factual finding

that Claimants were constructively and actually locked out was

directly contrary to the Director's findings and was dispositive

for   its   conclusion      that   the   Claimants   were   eligible   for


                                     -12-
unemployment benefits.      It is clear, then, that the parties indeed

dispute the factual underpinnings decisive for the Claimants'

eligibility for unemployment benefits, and in reaching a conclusion

on the merits of Verizon's challenge, the district court would need

to perform its own inquiry into the factual record to resolve that

dispute.   Such a dispute precludes us from agreeing with Verizon

that preemption is "facially conclusive" here. See NOPSI, 491 U.S.

at 367 ("what requires further factual inquiry can hardly be deemed

'flagrantly'    unlawful    for    purposes       of    a   threshold    abstention

determination");       Colonial    Life,    572    F.3d      at   29   ("given   the

existence of [a] factual dispute, we see several problems with the

district   court's     determination       that    preemption      was    'facially

conclusive.'").      Since Younger "prohibits a district court from

addressing the merits of the parties' claims unless preemption is

facially conclusive," Colonial Life, 572 F.3d at 29, it was thus

proper for the district court to dismiss Verizon's claim on

abstention grounds.

                             III.    Conclusion

           We   thus    conclude    that    the        district   court   properly

dismissed Verizon's complaint on Younger abstention grounds and

accordingly affirm.

           Affirmed.




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