Lоren BERGH, Plaintiff-Appellant, v. STATE OF WASHINGTON et al., Defendants-Appellees.
No. 75-1511.
United States Court of Appeals, Ninth Circuit.
May 3, 1976.
As Amended of Rehearing on Denial May 27, 1976.
505
The recent case of Paul v. Davis, — U.S. —, 96 S.Ct. 1155, 47 L.Ed.2d 405, 44 L.W. 4337, 1976, gives further support for this affirmance. In the Paul case the Supreme Court again reaffirmed its position against “any attempt to derive from congressiоnal civil rights statutes a body of general federal tort law.” Id. at —, 96 S.Ct. at 1160, 47 L.Ed.2d at 413, 44 L.W. at 4339. See, Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971).
The City of Pasadena has absolute immunity from suit under
The allowance or denial of attorneys fees for the appelleеs was within the trial court‘s discretion. Its action in denying such fees was not an abuse of that discretion. We аgree with the concluding sentence of appellees’ brief—“This case has gone on long enough and should come to an end.”
The trial court‘s order is affirmed in all respects.
defenses’ by public officials.” Appellant‘s brief p. 8. The Court has read this case and can find nothing remotely approaching this quote and in fact Spencer v. Tеxas hasn‘t the remotest application to this case.
James M. Johnson, Asst. Atty. Gen. (argued), Olympia, Wash., for defendants-appellees.
OPINION
Before CHAMBERS and KENNEDY, Circuit Judges, and JAMESON,* District Judge.
KENNEDY, Circuit Judge:
Appellant Loren Bergh is a commercial fisherman, duly licensed by the State of Washington. He brought suit seeking injunctive and declaratory relief against the following: the Honorable George Boldt, United States District Judge; Edgar Scofield, Clerk of the District Court for the Western District of Washington; the State of Washington and its Department of Fisheries; and Thor Tollefson, the department director. Appellant challenges certain regulations, promulgated by the State of Washington in response to Judge Boldt‘s decision in United States v. State of Washington, 384 F.Supp. 312 (W.Dist.Wash.), aff‘d, 520 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d 97, 44 U.S.L.W. 3428 (1976). Appellant claims that the regulations give Indian fishermen greater fishing rights than non-Indian fishermen and that this constitutеs unlawful discrimination on the basis of race, in violation of the Civil Rights Act of 1866,
Whеn an injunction sought in one federal proceeding would interfere with another federal proceeding, considerations of comity require more than the usual measure of restraint, and such injunctiоns should be granted only in the most unusual cases. Kahn Co. v. Switzer Bros., 201 F.2d 55 (6th Cir. 1952). Where, as here, the two federal courts are of сoordinate jurisdiction, and their decisions are reviewed by the same Court of Appeals, the issuance of such an injunction is rarely, if ever, justified. United States v. American Radiator & Standard Sanitary Corp., 388 F.2d 201, 203-04 (3d Cir. 1967), cert. denied, 390 U.S. 922, 88 S.Ct. 857, 19 L.Ed.2d 983 (1968). In such cases, “[t]he proper exercise of restraint in the name of comity keeps to a minimum the conflicts between courts administering the same lаw, conserves judicial time and expense, and has a salutary effect upon the prompt and efficient administration of justice.” Brittingham v. Commissioner, 451 F.2d 315, 318 (5th Cir. 1971).
The injunction against Judge Boldt and Clerk Scofield was properly dеnied on the further ground that appellant lacks standing to affect the disposition of an actiоn to which he is not a party. The proper course would have been to seek intervention.
Dismissаl of the complaint against the State of Washington and its officials was also proper. While the promulgation of regulations by the State of Washington may result in future injury to appellant, the constitutiоnal challenge to the regulation is not ripe for decision in the present posture of this cаse. See Communist Party of the United States v. Subversive Activities Control Board, 367 U.S. 1, 70-81, 81 S.Ct. 1357, 1396, 6 L.Ed.2d 625, 673 (1961); Poe v. Ullman, 367 U.S. 497, 500-509, 81 S.Ct. 1752, 1754, 6 L.Ed.2d 989, 994 (1961) (opinion of Frankfurter, J.); United Public Workers of America v. Mitchell, 330 U.S. 75, 86-91, 67 S.Ct. 556, 562, 91 L.Ed. 754, 765 (1947); Rincon Band of Mission Indians v. County of San Diego, 495 F.2d 1, 2-7 (9th Cir. 1974). We note, moreover, that thе propriety of these regulations was concurrently being considered by Judge Boldt in United States v. State of Washington. As Mr. Justice Harlan has noted, “A court may . . . in its discretion dismiss a declaratory judgment or injunctive suit if the same issue is pending in litigation elsewhere.” Abbott Laboratories v. Gardner, 387 U.S. 136, 155, 87 S.Ct. 1507, 1519, 18 L.Ed.2d 681, 695 (1967). The dismissal of the complaint was therefore proper as to all parties, and is hereby affirmed.
CHAMBERS, Circuit Judge (concurring):
I concur in Judge Kennedy‘s opinion.
He has said all that is necessary to dispose of the case.
However, there are other problems with the case. Without arguing them or listing all of them, I suggest a couple:
- How on earth could the clerk of the district court be a proper рarty?
- How could Judge Boldt be a proper party? (Counsel in oral argument seemed to suggest it could be done by simply calling Judge Boldt by the name of “Mr. Boldt.“)
In a proper case, mandamus might lie, but that is not аvailable for a collateral attack.