CHERYL BOROWSKI, Esq v. Kean University

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 21-1575
______
CHERYL BOROWSKI, Esq.,
Appellant
v.
KEAN UNIVERSITY; DAWOOD FARAHI; CHARLES
WILLIAMS; STEVEN KUBOW; KENNETH GREEN, Esq.;
FARAQUE CHOWDHURY; CHRISTOPHER MYERS
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-20-cv-05172)
District Judge: Honorable William J. Martini
____________
Argued: March 22, 2022
Before: BIBAS, MATEY, and PHIPPS, Circuit Judges.
(Filed: May 25, 2023)
____________

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Kevin Haverty [ARGUED]
W ILLIAMS CEDAR
8 Kings Highway West
Suite B
Haddonfield, NJ 08033
Counsel for Cheryl Borowski
Rimma Razhba [ARGUED]
O FFICE OF A TTORNEY G ENERAL OF N EW JERSEY
Division of Law
25 Market Street
Hughes Justice Complex
Trenton, NJ 08625
Counsel for Kean University, Dawood Farahi,
Charles Williams, Steven Kubow, Kenneth
Green, Faraque Chowdhury, and Christopher
Myers
Pamela N. Ullman
OFFICE OF A TTORNEY G ENERAL OF N EW JERSEY
Division of Law
25 Market Street
Hughes Justice Complex
Trenton, NJ 08625
Counsel for Christopher Myers

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_______________________
OPINION OF THE COURT
_______________________
PHIPPS, Circuit Judge.
After a public university in New Jersey terminated an
adjunct professor’s employment, she filed an administrative
appeal with the New Jersey Civil Service Commission. The
Commission dismissed that challenge on jurisdictional
grounds. Instead of appealing that ruling in the state-court
system as she could have, the former adjunct professor
commenced this suit in federal court for violations of her
federal and state civil rights. The District Court relied on
Younger abstention to dismiss the adjunct professor’s federal
case with prejudice. But Younger abstention prevents federal-
court interference with only certain types of state proceedings,
such as quasi-criminal civil enforcement actions, and an appeal
to the New Jersey Civil Service Commission is neither quasi-
criminal nor within another category of Younger-eligible
proceedings. Another prerequisite for Younger abstention is
that the state proceeding must be ongoing, and when the
adjunct professor filed this case, the Commission’s dismissal
of the proceeding was already final, the time to appeal having
expired. Thus, on de novo review, two independent reasons
prevent the dismissal of the adjunct professor’s complaint on
Younger grounds: an appeal to the Commission is not a quasi-
criminal civil enforcement proceeding, and when this suit was
filed, the adjunct professor’s appeal to the Commission was not
ongoing. Accordingly, we will vacate the District Court’s
order of dismissal and remand this case for further
proceedings.

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I. F ACTUAL A LLEGATIONS &
P ROCEDURAL H ISTORY
Kean University’s Procedures for Resolving
Discrimination Complaints
Kean University, part of New Jersey’s state system of
higher education, has procedures in place to implement New
Jersey’s Policy Prohibiting Discrimination in the Workplace.
Under those procedures, once Kean receives a complaint of
discrimination or harassment, its Affirmative Action Office
must use its discretion to conduct “a prompt, thorough, and
impartial investigation into the alleged harassment or
discrimination.” New Jersey State Model Procedures for
Internal Complaints Alleging Discrimination in the Workplace
¶ 9 (JA54). The Affirmative Action Office may also impose
interim corrective measures, and after the investigation is
complete, that office prepares a report, but it does not have the
authority to resolve the complaint. Rather, Kean’s Chief of
Staff, as the President’s authorized designee, reviews the report
of the investigation and makes a final determination on the
allegations of discrimination or harassment. If the Chief of
Staff finds that the complaint is substantiated, then he or she
must identify “appropriate corrective measures necessary to
immediately remedy the violation.” Id. ¶ 11 (JA54–55). A
final determination by the Chief of Staff may be appealed to
the New Jersey Civil Service Commission by the party against
whom the complaint was filed, and that party bears the burden
of proof before the Commission.
Kean’s Investigation and Final Determination
of the Complaint Against Borowski
These procedures came into operation in March 2016 with
respect to an adjunct professor, Cheryl Borowski, who had
taught at Kean for about five years. According to students in
her undergraduate business law course, Borowski had made
insensitive in-class statements about gender, immigration
status, ethnicity, and religion. On March 15, an Assistant Dean
at Kean requested to meet with Borowski after her class the

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next week. Borowski declined because she had a previously
scheduled engagement, but she responded that a union
representative would attend on her behalf. The union
representative, however, arrived late to the meeting due to an
extended doctor’s appointment, and by then the Assistant Dean
had reported Borowski to the Human Resources Office.
A week later, the Acting Associate Vice President of Kean
approached Borowski after her business law class and
informed her that she would no longer be teaching the course.
In a confirming email later that day, the official notified
Borowski that she would be fully compensated as if she had
completed teaching the entire course.
Borowski made several inquiries about the basis for her
termination, and she incrementally received more information
over the next few months. In a letter dated May 2, 2016, the
Director of Human Resources explained that Borowski had
been “named as a respondent in a complaint alleging a
violation of the New Jersey State Policy Prohibiting
Discrimination in the Workplace.” Compl. ¶ 22 (JA23). While
investigating that complaint, Kean informed Borowski,
through her attorney, of the student grievances against her, and
Borowski denied those. In August, before the Chief of Staff
had made a final determination on the complaint, Kean
communicated to Borowski that she would not have a teaching
position for the fall semester. Borowski continued to defend
herself by supplying additional documentation and arguing that
the students misunderstood her pedagogical methods.
On October 6, 2016, the Chief of Staff made a final
determination: Borowski had violated the Policy Prohibiting
Discrimination through her in-class comments. In the closing
paragraph of that written letter, the Chief of Staff informed
Borowski that if she wished to challenge the final
determination, she could submit a written appeal to the New
Jersey Civil Service Commission.

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Borowski’s Appeal to the New Jersey Civil
Service Commission
Consistent with the notice provided by the Chief of Staff in
the final-determination letter, Borowski did administratively
appeal to the Commission. In reviewing the appeal, the
Commission recognized that material facts were in dispute, and
on that basis, it referred the matter to a state administrative law
judge for a hearing to evaluate evidence and assess the
credibility of the witnesses. That hearing occurred over three
days in June 2018, and the parties were permitted to file post-
hearing briefs.
In October 2018, before a decision on the hearing, Kean
alerted the administrative law judge of an intervening decision
by the Commission. In that ruling, which involved a former
adjunct professor at Kean, the Commission determined that
adjunct professors were not civil service employees entitled to
appeal final determinations of violations of the Policy
Prohibiting Discrimination. The administrative law judge
applied that ruling to Borowski and dismissed her appeal in
October 2018.
The next month, the Commission accepted and affirmed the
administrative law judge’s determination that it lacked
jurisdiction to adjudicate Borowski’s claim.1 By its terms, the
1 In its decision, the Commission treated all appeals by adjunct
professors identically and did not distinguish between appeals
of final determinations for complaints brought by adjunct
professors and appeals of final determinations for complaints
brought against adjunct professors, despite textual differences
in the underlying policy provisions. Compare New Jersey
State Model Procedures for Internal Complaints Alleging
Discrimination in the Workplace ¶ 13 (JA55–56) (limiting
appeals by complainants to applicants for employment, or
employees “in the career, unclassified, or senior executive
service”), with id. ¶ 14 (JA56) (imposing no such appellate

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Commission’s order dismissing the administrative appeal was
“the final administrative determination in th[e] matter” and
stated that “[a]ny further review should be pursued in a judicial
forum.” Final Admin. Action, Compl. Ex. 7, at 3 (JA81). By
New Jersey Court Rule, Borowski had 45 days to appeal that
ruling to the Appellate Division of the New Jersey Superior
Court. See N.J. Ct. R. 2:4–1(b); see also id. 2:2–3(a)(2)
(providing for appeal as of right of final decisions by state
administrative agencies).
Borowski Sues in Federal Court
Instead of appealing the Commission’s dismissal to state
court within the time allotted, Borowski commenced this
action in District Court nearly a year and a half later. She sued
Kean, several Kean administrators in their official and
individual capacities, and the Director of the New Jersey Civil
Service Commission. Her complaint contained eight counts:
five brought under 42 U.S.C. § 1983 for alleged violations of
her federal constitutional rights and three brought under New
Jersey law. Borowski requested several forms of relief,
including compensatory and punitive damages, as well as
declaratory and injunctive relief.
Through two separate motions – one by the defendants
associated with Kean and one by the Director of the
Commission – the defendants sought to dismiss the complaint.
They argued that Borowski’s complaint should be dismissed in
whole or in part for several reasons: Eleventh Amendment
immunity, qualified immunity, Younger abstention, failure to
state a claim upon which relief can be granted, and lack of
supplemental jurisdiction.
In granting those motions and dismissing the complaint
with prejudice, the District Court considered only Younger
limitation for final determinations made against persons
“against whom the complaint was filed”).

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abstention and dismissed the entire complaint on that basis.
Borowski timely appealed that order and by so doing invoked
this Court’s appellate jurisdiction. See 28 U.S.C. § 1291; Fed.
R. App. P. 4(a).
II. D ISCUSSION
As a general rule, “a federal court’s obligation to hear and
decide a case” within its jurisdiction “is virtually unflagging,”
and a court has “no more right to decline the exercise of
jurisdiction which is given, than to usurp that which is not
given.” Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 77
(2013) (internal quotation marks omitted). But in Younger v.
Harris, the Supreme Court held that, absent extraordinary
circumstances, a federal court cannot enjoin an ongoing state-
court criminal proceeding. 401 U.S. 37, 41, 45 (1971); see also
Steffel v. Thompson, 415 U.S. 452, 460–61 (1974). That
holding rested on principles of equity, comity, and federalism.
See Younger, 401 U.S. at 44 (justifying abstention out of a
“sensitivity to the legitimate interests of both State and
National Governments”); see also New Orleans Pub. Serv.,
Inc. v. Council of New Orleans, 491 U.S. 350, 364 (1989)
(‘NOPSI’) (explaining that Younger abstention “was based
partly on traditional principles of equity, but rested primarily
on the even more vital consideration of comity” (quotation
marks and internal citation omitted)); Huffman v. Pursue, Ltd.,
420 U.S. 592, 606 (1975) (“Younger turned on considerations
of comity and federalism peculiar to the fact that state
proceedings were pending . . . .”); PDX N., Inc. v. Comm’r N.J.
Dep’t of Lab. & Workforce Dev., 978 F.3d 871, 882 (3d Cir.
2020) (explaining that Younger abstention serves a dual
purpose: (i) it promotes comity by restricting federal court
interference with ongoing state judicial proceedings, and (ii) it
restrains equity jurisdiction “when state courts provide
adequate legal remedies for constitutional claims and there is
no risk of irreparable harm”). Over time, the Supreme Court
has reasoned that those same principles justify abstention to
prevent undue federal-court interference with two other types
of state-level proceedings: quasi-criminal civil enforcement

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actions and civil lawsuits with orders that are uniquely in
furtherance of a state court’s ability to perform its judicial
functions. See Sprint, 571 U.S. at 78; NOPSI, 491 U.S. at 367–
68; see also, e.g., Juidice v. Vail, 430 U.S. 327, 335–36 (1977)
(extending Younger to contempt process); Huffman, 420 U.S.
at 604 (extending Younger to criminal-like civil enforcement
proceeding). As Younger abstention operates an exception to
the general rule that federal courts must decide cases within
their limited jurisdiction, it applies only in those three
circumstances identified by the Supreme Court. See Sprint,
571 U.S. at 79.
In addition, for a quasi-criminal civil enforcement
proceeding to warrant abstention under Younger, it must satisfy
three supplemental conditions. Those requirements – referred
to as the Middlesex conditions – are that the state proceeding
(i) be ongoing and judicial in nature; (ii) implicate important
state interests; and (iii) afford an adequate opportunity to raise
federal claims. See Middlesex Cnty. Ethics Comm. v. Garden
State Bar Ass’n, 457 U.S. 423, 432 (1982); see also Sprint,
571 U.S. at 81 (characterizing Middlesex conditions as only
“additional factors” not to be “[d]ivorced from their quasi-
criminal context”); Altice USA, Inc. v. N.J. Bd. of Pub. Utils.,
26 F.4th 571, 576, 578 (3d Cir. 2022); Malhan v. Sec’y U.S.
Dep’t of State, 938 F.3d 453, 462 (3d Cir. 2019).
When a quasi-criminal civil enforcement proceeding
satisfies the Middlesex conditions, Younger abstention applies,
and that leads to two possible dispositions: dismissal or a stay.
If the claims in such a federal suit are only for injunctive or
declaratory relief, then despite a “virtually unflagging
obligation” to hear and decide cases within its limited
jurisdiction, Colo. River Water Conservation Dist. v. United
States, 424 U.S. 800, 817 (1976), a federal court must dismiss
the case. See Sprint, 571 U.S. at 72 (“Younger exemplifies one
class of cases in which federal-court abstention is required
. . . .”); PDX, 978 F.3d at 881 n.11; see also Trainor v.
Hernandez, 431 U.S. 434, 446 (1977) (“The pendency of the

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state-court action called for restraint by the federal court and
for the dismissal of [the plaintiffs’] complaint . . . .”); Younger,
401 U.S. at 45 (“[T]he normal thing to do when federal courts
are asked to enjoin pending proceedings in state courts is not
to issue such injunctions.”). Alternatively, if the federal
lawsuit seeks only damages, then a federal court cannot
dismiss the suit but may, in the exercise of its discretion, stay
the case for the pendency of the state proceedings. See
Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 721 (1996);
Marran v. Marran, 376 F.3d 143, 155 (3d Cir. 2004) (citing
Quackenbush, 517 U.S. at 730, and Deakins v. Monaghan,
484 U.S. 193, 202 (1988)). Similarly, if a suit with a claim for
damages also seeks injunctive or declaratory relief, a federal
court has discretion not only to stay the damages claim but also
to dismiss any claims for injunctive and declaratory relief
outright or to stay them, potentially alongside the stayed claim
for damages. See Feige v. Sechrest, 90 F.3d 846, 849–51 (3d
Cir. 1996) (explaining that, after Quackenbush, the district
court’s decision to stay claims for both damages and injunctive
relief under Burford abstention was “entirely appropriate” and
“retains the sensitivity for concerns of federalism and comity”
that underlie abstention); cf. Chavez v. Dole Food Co.,
836 F.3d 205, 220 (3d Cir. 2016) (en banc) (explaining, for
purposes of the first-filed rule for duplicative federal suits, that
“the teaching[s] of Quackenbush” and Feige suggest that a stay
is more appropriate where dismissing the case and
“relinquishing jurisdiction is not abstention [but] abdication”
(quoting In re One2One Commc’ns, LLC, 805 F.3d 428, 440
(3d Cir. 2015) (Krause, J., concurring))).
Here, in dismissing Borowski’s complaint, which included
claims for damages, on Younger grounds, the District Court
conducted both phases of the abstention analysis. First, in
analyzing whether Borowski’s appeal to the New Jersey Civil
Service Commission was a type of proceeding eligible for
Younger abstention, it determined that the action was a quasi-
criminal proceeding. Second, in evaluating the three
Middlesex conditions, the District Court concluded that

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Borowski’s appeal to the Commission satisfied each of those
conditions.
Borowski now challenges each component of the District
Court’s analysis. For the reasons below, she is correct in both
respects. And because Borowski sought damages, it was not
permissible for the District Court to dismiss her case even if
the conditions for Younger abstention were satisfied.
Borowski’s Appeal to the New Jersey Civil
Service Commission Was Not a Quasi-
Criminal Civil Enforcement Proceeding.
The District Court erred by concluding that Borowski’s
appeal to the New Jersey Civil Service Commission amounted
to a quasi-criminal civil enforcement proceeding. In Sprint,
the Supreme Court reviewed the prior instances in which it
permitted Younger abstention for state-level, quasi-criminal
civil enforcement proceedings, and from those, it identified
several common characteristics of those proceedings. 571 U.S.
at 79–80 (identifying as examples Ohio Civ. Rts. Comm’n v.
Dayton Christian Schs., Inc., 477 U.S. 619, 624 (1986);
Middlesex, 457 U.S. at 432; Moore v. Sims, 442 U.S. 415, 419–
20 (1979); Trainor, 431 U.S. at 444; Huffman, 420 U.S. at
604). This Court then distilled those characteristics into four
factors for consideration in determining whether a state-level
proceeding is a quasi-criminal civil enforcement action. See
ACRA Turf Club, LLC v. Zanzuccki, 748 F.3d 127, 138 (3d Cir.
2014). With the further refining of those factors over time,
they may now be expressed as three considerations:
(i) Whether the proceeding was
initiated by a state in its
sovereign capacity;
(ii) Whether the proceeding sought
to sanction the federal plaintiff
as retribution for a violation of
a legal right or duty; and

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(iii) Whether the proceeding has
another striking similarity with
a criminal prosecution, such as
by beginning with a
preliminary investigation that
culminates with the filing of
formal charges or by the state’s
ability to sanction the federal
plaintiff’s conduct through a
criminal prosecution.
See Smith & Wesson Brands, Inc. v. Att’y Gen. of N.J., 27 F.4th
886, 891 (3d Cir. 2022) (listing as three factors); PDX,
978 F.3d at 883–84 (same); see also Altice, 26 F.4th at 577–78
(recognizing in the context of the third factor that a criminal
analogue is not required for Younger abstention).
This Court has treated the second of those considerations as
essential. In a case involving a challenge in federal court to an
investigative subpoena served by a state agency that the agency
sought to enforce in state court, this Court reasoned or assumed
that all of the considerations except the second favored
characterizing the state-court action as quasi-criminal. See
TitleMax of Del., Inc. v. Weissmann, 24 F.4th 230, 236–37 (3d
Cir. 2022). Even still, this Court held that the state-court
subpoena enforcement action was not quasi-criminal due only
to the second consideration: the action was not commenced to
sanction the federal plaintiff as retribution for a violation of a
legal right or duty. See id.
This case presents an opportunity to recognize that the first
consideration – initiation of the proceeding by a state in its
sovereign capacity – is also a necessary condition for a quasi-
criminal proceeding. To enforce its criminal laws and impose
penalties, a state exercises a sovereign police power,
prosecution, by commencing a proceeding that is judicial in
nature. See United States v. Morrison, 529 U.S. 598, 618
(2000) (“Indeed, we can think of no better example of the

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police power, which the Founders denied the National
Government and reposed in the States, than the suppression of
violent crime and vindication of its victims.”). But when a
state has not, in the exercise of its police powers, commenced
such an adjudicatory action, then a federal proceeding’s
potential interference with the state’s interests in providing a
forum for the exercise of its police powers does not implicate
the “relevant principles of equity, comity, and federalism” to
the same degree as when a state initiates such a proceeding.
Steffel, 415 U.S. at 462; see Trainor, 431 U.S. at 446 (“This
disruption of suits by the State in its sovereign capacity
. . . leads us to the conclusion that the interests of comity and
federalism on which Younger and Samuels v. Mackell[,
401 U.S. 66 (1971),] primarily rest apply in full force here.”).
More precisely, without a state-initiated adjudicatory
proceeding, those principles that justify abstention “have little
force,” Steffel, 415 U.S. at 462 (quoting Lake Carriers’ Ass’n
v. MacMullan, 406 U.S. 498, 509 (1972)), and cannot
overcome “the virtually unflagging obligation of the federal
courts to exercise the jurisdiction given them.” Colo. River,
424 U.S. at 817; see also Sprint, 571 U.S. at 77 (explaining that
“[p]arallel state-court proceedings do not detract from that
obligation”); cf. Ala. Pub. Serv. Comm’n. v. S. Ry. Co.,
341 U.S. 341, 361 (1951) (Frankfurter, J., concurring in the
result) (“[I]t was never a doctrine of equity that a federal court
should exercise its judicial discretion to dismiss a suit merely
because a State court could entertain it.”). Accordingly, for
purposes of Younger abstention, a proceeding that is not
initiated by a state in its sovereign capacity cannot be quasi-
criminal.
Applying that principle here, the appeal before the New
Jersey Civil Service Commission was not initiated by Kean in
any capacity, much less by New Jersey in its sovereign
capacity. Quite intuitively, New Jersey’s procedures do not
afford Kean a right to appeal its own final administrative
determination to the Commission. See New Jersey State
Model Procedures for Internal Complaints Alleging

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Discrimination in the Workplace ¶¶ 13–14 (JA55–56). And
factually here, Borowski filed the appeal that commenced the
proceedings before the Commission: she was the petitioner
with the burden of proof, and Kean was the respondent. Thus,
Kean could not and indeed did not initiate the appeal to the
Commission, so that appeal was not a quasi-criminal civil
enforcement proceeding for purposes of Younger abstention.
In rebuttal Kean argues that the relevant state-level
proceeding does not consist merely of Borowski’s appeal to the
Commission but should also include Kean’s internal
investigation and imposition of remedial measures. Yet for
those actions to merge with Borowski’s appeal before the
Commission such that they together comprise a unitary process
for purposes of Younger abstention, Kean’s actions must be
judicial in nature, not executive or legislative in character. See
NOPSI, 491 U.S. at 369–70 (“While we have expanded
Younger beyond criminal proceedings, and even beyond
proceedings in courts, we have never extended it to
proceedings that are not ‘judicial in nature.’”). And here, the
actions taken by Kean internally – its investigation, its interim
corrective measures (removing Borowski from class and
declining her services in the future), and its final determination
– each lack critical characteristics of a proceeding that is
judicial in nature. None of Kean’s actions occurred in the
presence of an impartial judicial officer, nor were they
governed by court rules, nor did they implicate burdens of
proof. See Kendall v. Russell, 572 F.3d 126, 131 (3d Cir. 2009)
(“[P]roceedings may be judicial in nature if they are initiated
by a complaint, adjudicative in nature, governed by court rules
or rules of procedure, or employ legal burdens of proof.”).
Because Kean’s prior administrative actions were not
associated with a proceeding that was judicial in nature, they
do not merge with Borowski’s appeal to the Commission for
purposes of Younger abstention. See NOPSI, 491 U.S. at 369–
70. Thus, Kean’s actions “in no way resemble[] the initiation
procedures employed by state actors in cases where the

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Supreme Court has applied Younger abstention.” ACRA Turf
Club, 748 F.3d at 140.
Kean also seeks refuge under Gonzalez v. Waterfront
Commission of N.Y. Harbor, 755 F.3d 176 (3d Cir. 2014), but
it overreads the breadth of that holding. Although Gonzalez
involved administrative proceedings regarding an adverse
employment action, those proceedings were materially
different from Borowski’s appeal to the New Jersey Civil
Service Commission. In Gonzalez, the employer, the
Waterfront Commission of New York Harbor, had to prevail at
an administrative hearing before it could terminate an
employee. See id. at 178. That process required the Waterfront
Commission to serve the employee with a statement of charges
and then satisfy its burden of proof at a hearing in front of an
administrative law judge. See id. The Waterfront Commission
served the charges, but before the administrative hearing, the
detective sued the Waterfront Commission in federal district
court. See id. at 178–79. In upholding the district court’s
dismissal of the federal case on Younger grounds, this Court
concluded that the Waterfront Commission had, in its
sovereign capacity, initiated the proceeding. See id. at 182, 185
(“By filing this formal Statement of Charges, the Commission
– an arm of the State of New Jersey – initiated the
administrative disciplinary hearing to sanction Gonzalez for
his ‘wrongful’ conduct.”). By contrast here, Kean did not
initiate the appeal (of its own final determination) to the New
Jersey Civil Service Commission; Borowski did. Due to that
difference, Gonzalez does not compel the conclusion that
Borowski’s appeal to the Commission was a quasi-criminal
civil enforcement action.
For these reasons, the appeal to the New Jersey Civil
Service Commission was not a quasi-criminal civil
enforcement action. Because Kean does not contend that the
appeal to the Commission constitutes either of the other two
types of proceedings for which Younger abstention is available
– criminal proceedings and orders in civil proceedings

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uniquely in furtherance of a state court’s ability to perform its
judicial functions – there is no state-level proceeding here that
could form a basis for Younger abstention. See Sprint,
571 U.S. at 73.
The First Middlesex Condition Is Unmet Here
Because When Borowski Filed This Lawsuit,
There Was No Ongoing State-Level Judicial
Proceeding.
Yet even if the proceeding before the New Jersey Civil
Service Commission were a quasi-criminal civil enforcement
action, the District Court still should not have dismissed
Borowski’s case. In its Younger analysis, the District Court
determined that all of the Middlesex conditions were satisfied.
But the first of those conditions – that the companion state-
level proceeding be ongoing and judicial in nature – is not met
here.
As explained above, the only state-level proceeding that
was judicial in nature was Borowski’s administrative appeal
before the Commission. That proceeding ended with a
dismissal by the Commission on grounds that it did not have
jurisdiction over appeals by adjunct professors. After that
dismissal, Borowski had the option of appealing to the
Appellate Division of the Superior Court of New Jersey, see
N.J. Ct. R. 2:2–3(a)(2), but she did not do so within the time to
appeal – or at all, see id. 2:4–1(b) (allowing 45 days for such
appeals). Instead, she commenced this suit in the District
Court.
As an essential component of its Younger analysis, the
District Court determined that Borowski’s appeal to the
Commission, although dismissed and not challenged within the
time permitted, was nonetheless ongoing. That conclusion did
not adequately account for the significance of the
Commission’s jurisdictional dismissal of Borowski’s appeal.
By renouncing its power to adjudicate the dispute, the
Commission, as the tribunal designated by New Jersey for such

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appeals, extinguished any state interest in the resolution of
Borowski’s grievance in a state forum, thus decimating the
applicable force of the justifications for abstention – equity,
comity, and federalism. See Steffel, 415 U.S. at 462. Nor can
it be that a party to a state-level proceeding dismissed for lack
of jurisdiction must appeal that ruling further through the state
system to shed the dismissed proceeding of its ongoing or
pending status (especially since such a party may welcome the
jurisdictional dismissal’s elimination of a potential obstacle to
seeking redress in federal court). Cf. Gibson v. Berryhill,
411 U.S. 564, 577 (1973) (“[Dismissal under Younger]
naturally presupposes the opportunity to raise and have timely
decided by a competent state tribunal the federal issues
involved.”). Thus, after a jurisdictional dismissal of a
proceeding by the tribunal designated under state law for the
resolution of the dispute and the subsequent expiration of the
time to appeal that ruling, the proceeding ceases to be ongoing
or pending for purposes of Younger abstention. Cf. United
States v. Weiss, 52 F.4th 546, 553–54 (3d Cir. 2022)
(considering appeals to be ‘pending’ for purposes of a tax
statute during “intervening periods of indeterminacy during
which an appeal or petition could be filed,” though not after the
time to appeal expires). Consequently, Borowski’s decision
not to timely appeal the Commission’s dismissal did not
prolong the pendency or ongoing nature of the proceeding
before the Commission – it was over when she filed this suit.2
2 Other federalism doctrines, such as full faith and credit
principles and Rooker-Feldman, govern how federal courts
treat final or effectively final state-court judgments. See Univ.
of Tenn. v. Elliott, 478 U.S. 788, 796 (1986) (“This Court has
held that [28 U.S.C.] § 1738 requires that state-court
judgments be given both issue and claim preclusive effect in
subsequent actions under 42 U.S.C. § 1983.” (citing Allen v.
McCurry, 449 U.S. 90, 105 (1980) (issue preclusion) and
Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 85
(1984) (claim preclusion)); Exxon Mobil Corp. v. Saudi Basic

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18
Kean argues that this Circuit’s prior decision in O’Neill v.
City of Philadelphia, 32 F.3d 785 (3d Cir. 1994), forecloses
that conclusion. But O’Neill is distinguishable and does not
have that effect. It involved a challenge to an ordinance
enacted by the City of Philadelphia that shifted the resolution
of parking tickets away from state court and into an
administrative-review process. See id. at 787. Under those
circumstances, this Court held that a final-but-unappealed
ruling in the administrative proceeding that imposed liability
for the parking tickets remained ongoing or pending for
purposes of Younger abstention. See id. at 790–91. Critically,
however, the unchallenged administrative order exercised the
authority conferred on the administrative tribunal to impose
liability for parking tickets; it was not a dismissal on
jurisdictional grounds. See id. at 788. Thus, in O’Neill there
was no disavowal of the state’s interests in resolving the
dispute in a state forum before the federal suit was filed. Cf.
id. at 792 (“[T]he City of Philadelphia has a vital and critical
interest in the functioning of [this] regulatory system, . . .
which is intimately associated with the physical and financial
workings of the city in general . . . .”). Yet when Borowski
initiated this suit, the Commission had previously declined
jurisdiction over her appeal, and that ruling, which Borowski
did not appeal in the allotted time, is no longer ongoing or
pending.3
Indus. Corp., 544 U.S. 280, 292 (2005); Malhan, 938 F.3d at
459; see also Ellis v. Dyson, 421 U.S. 426, 439–40 (1975)
(Powell, J., dissenting) (characterizing a federal suit attacking
completed state criminal proceedings as implicating res
judicata, not Younger abstention).
3 O’Neill can be distinguished on two other grounds as well.
The holding in that case was conditioned on several facts,
including the presence of “a coercive administrative
proceeding . . . initiated by the State in a state forum.” 32 F.3d
at 791. Those two factual predicates are absent here:
Borowski, not Kean, initiated the appeal to the Commission;

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19
Even if it were not distinguishable, O’Neill does not control
here because it has been abrogated, at least in part. In
Quackenbush v. Allstate Insurance Co., 517 U.S. 706 (1996),
the Supreme Court held that when a federal suit seeks non-
discretionary relief at law, such as damages, abstention
doctrines generally allow only a stay of the federal suit, not its
dismissal. See id. at 721 (“[W]hile we have held that federal
courts may stay actions for damages based on abstention
principles, we have not held that those principles support the
outright dismissal or remand of damages actions.”); Merritts v.
Richards, 62 F.4th 764, 773–74 (3d Cir. 2023). But in O’Neill,
one of the plaintiffs did seek damages under 42 U.S.C. § 1983,
and this Circuit dismissed the case instead of staying it.
O’Neill, 32 F.3d at 789, 793. Because dismissal of a damages
claim on abstention grounds is no longer permissible, that part
of O’Neill does not survive Quackenbush. Thus, not only is
the first Middlesex condition – an ongoing state proceeding that
is judicial in nature – unsatisfied here, but also even if all of the
Middlesex conditions were, the District Court could not, after
Quackenbush, dismiss Borowski’s claims for damages on
Younger grounds.
III. C ONCLUSION
For the foregoing reasons, we will vacate the District
Court’s judgment and remand for further proceedings.
and Kean could take only remedial, not coercive, measures, see
New Jersey State Model Procedures for Internal Complaints
Alleging Discrimination in the Workplace ¶ 11 (JA54–55)
(allowing for “appropriate corrective measures necessary to
immediately remedy the violation” (emphasis added)). But cf.
Sprint, 571 U.S. at 80 n.6 (discouraging reliance on the
dichotomy between coercive and remedial proceedings).

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