AIR EVAC EMS, INC., d/b/a Air Evac Lifeteam, d/b/a AirMedCare Network v. Allan Mcvey, in his official capacity as West Virginia Insurance Commissioner

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-1301
AIR EVAC EMS, INC., d/b/a Air Evac Lifeteam, d/b/a AirMedCare Network,
Plaintiff - Appellee,
v.
ALLAN MCVEY, in his official capacity as West Virginia Insurance
Commissioner,
Defendant - Appellant.
Appeal from the United States District Court for the Southern District of West Virginia, at
Charleston. Irene C. Berger, District Judge. (2:21-cv-00105)
Argued: March 10, 2022 Decided: June 10, 2022
Before GREGORY, Chief Judge, and THACKER and QUATTLEBAUM, Circuit Judges.
Affirmed by published opinion. Judge Quattlebaum wrote the opinion, in which Chief
Judge Gregory and Judge Thacker join.
ARGUED: Michael Ray Williams, OFFICE OF THE ATTORNEY GENERAL OF
WEST VIRGINIA, Charleston, West Virginia, for Appellant. Charlotte Hemenway
Taylor, JONES DAY, Washington, D.C., for Appellee. ON BRIEF: Patrick Morrisey,
Attorney General, Lindsay S. See, Solicitor General, Katherine A. Schultz, Senior Deputy
Attorney General, Caleb A. Seckman, Assistant Solicitor General, Thomas T. Lampman,
Assistant Solicitor General, Cassandra L. Means, Assistant Attorney General, OFFICE OF
THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for

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Appellant. Carte P. Goodwin, Alex J. Zurbuch, FROST BROWN TODD, LLC,
Charleston, West Virginia; Benjamin J. Cassady, Washington, D.C., Joshua L. Fuchs,
Nicole M. Perry, JONES DAY, Houston, Texas, for Appellee.

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QUATTLEBAUM, Circuit Judge:
Federalism, a fundamental principle under our Constitution, requires that federal
courts respect the sovereignty of their state counterparts. One way federal courts do this is
through the doctrine of abstention. Under Younger v. Harris, 401 U.S. 37 (1971), federal
courts should abstain from exercising jurisdiction to consider matters related to ongoing
state criminal proceedings. And Younger abstention may also apply to quasi-criminal
proceedings if the state proceeding is ongoing, implicates important state interests and
provides an adequate opportunity to raise constitutional challenges. Sprint Commc’ns, Inc.
v. Jacobs, 571 U.S. 69, 81–82 (2013). However, there are exceptions to Younger
abstention. Under one of those exceptions, a federal court should not abstain when
confronted with “extraordinary circumstances.” Younger, 401 U.S. at 53.
Here, a district court was confronted with a motion to preliminarily enjoin a state
administrative proceeding on the grounds that the proceeding was preempted by federal
law. Although the court found that the elements of Younger abstention may have been met,
it did not abstain because it determined that the existence of extraordinary circumstances
rendered Younger abstention inappropriate. We must decide if the district court abused its
discretion in doing so. We reaffirm the importance of Younger abstention. But our
deferential standard of review compels that we affirm the district court’s application of the
extraordinary circumstances exception to Younger abstention.
We also review another decision of the district court. After declining to abstain, the
district court issued a preliminary injunction enjoining the state court administrative
proceeding. That decision is also reviewed for abuse of discretion. And like its decision

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concerning Younger, we find no abuse of discretion in the district court’s preliminary
injunction order.
I.
Air Evac EMS, Inc., is an emergency air ambulance provider operating throughout
the United States, including West Virginia. Because air ambulance services are expensive
and insurance does not always reimburse the full cost, Air Evac offers a membership
program to West Virginia residents, businesses and municipalities. For anyone covered by
the membership, which generally costs less than $100 per year for an individual, Air Evac
cancels any portion of the bill not covered by insurance. Air Evac characterizes this
program as a debt cancellation agreement.
According to Air Evac, this lawsuit “arises from West Virginia’s longstanding
campaign to assert regulatory dominance over Air Evac[]” in favor of Air Evac’s in-state
competitor, HealthNet. See Resp. Br. 9–10. To illustrate its point, Air Evac refers to a
different lawsuit, Air Evac EMS, Inc. v. Cheatham, 910 F.3d 751 (4th Cir. 2018). At issue
in Cheatham was a West Virginia statute that effectively capped what Air Evac could
receive for transporting injured in-state workers and the state’s own employees. See id. at
758. We affirmed the district court’s decision to enjoin the enforcement of such legislation,
concluding that the Airline Deregulation Act preempts West Virginia’s enforcement
efforts. See id. at 759, 769–70. From Air Evac’s perspective, West Virginia’s legislative
efforts were a product of state officials “work[ing] close[ly]” with HealthNet. See Resp.
Br. 14 (citing J.A. 97).

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“Only months [after Cheatham], the OIC [West Virginia Offices of the Insurance
Commissioner] initiated its investigation into another method of regulating Air Evac’s
pricing and compensation structure.” J.A. 229. The OIC eventually filed an administrative
complaint against Air Evac, alleging that Air Evac’s membership program constituted an
unauthorized transaction of “insurance” in West Virginia. See id. at 218. In particular, the
administrative complaint alleged that Air Evac’s membership program constitutes
insurance, but Air Evac had not obtained a license to sell insurance as required by West
Virginia law.
Air Evac, based on the documents it secured through state Freedom of Information
Act requests, views this administrative complaint as a larger part of West Virginia officials’
efforts to favor HealthNet. Those documents included an email exchange from the
Commissioner to HealthNet’s executives. The email stated:
As far as an update on what we’re doing, I currently have my legal team
looking into a two-pronged approach. First, I want to determine whether,
under my existing statutory authority, I can take action now to shut down the
subscription plans on the basis they are unlicensed insurance products sold
by unlicensed insurance producers. We know this will draw litigation.
Second, I am working with the NAIC [National Association of Insurance
Commissioners] on model legislation that we might be able to introduce in
the upcoming legislative session.
Id. at 72. Air Evac’s position, ever since the investigations preceding the eventual
administrative complaint, has been that the Airline Deregulation Act preempts any state
law applicable to Air Evac’s membership program.
In response to the administrative action referenced in the email, Air Evac sued the
Commissioner in federal court claiming the Airline Deregulation Act preempts the

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Commissioner’s enforcement efforts. Air Evac EMS, Inc. v. Dodrill (“Dodrill I”), 523 F.
Supp. 3d 859 (S.D.W. Va. 2021). Air Evac also moved for a temporary restraining order
and preliminary injunction to stop the administrative proceedings. The district court
granted the preliminary injunction. Id. at 874. In doing so, the district court declined to
abstain under Younger. See id. at 867–70. The district court reasoned that, “while the
formal requirements of Younger may be present,” the case presents an “extraordinary
circumstance” in which abstention would be inappropriate. See id. at 869. In addition, the
district court agreed with Air Evac that the Airline Deregulation Act preempts the state
regulations, and that the McCarran-Ferguson Act (a federal law that preserves insurance
regulation to the province of the states) does not save the enforcement at issue from
preemption. See id. at 870–73.
Then, in response to the eventual legislation referenced in the email, Air Evac sued
the Commissioner again in federal court once the new bill became law. Air Evac EMS.,
Inc. v. Dodrill (“Dodrill II”), 548 F. Supp. 3d 580 (S.D.W. Va. 2021). Citing to the bill’s
text and the Commissioner’s testimony before the West Virginia House, Air Evac
characterizes these new laws as “a legislative declaration that in fact [Air Evac’s
Membership Program] is insurance.” See Resp. Br. 20 (alteration in original) (citing
Addendum 7, 45–46, 54). The lawsuit sought to enjoin the Commissioner from enforcing
these new laws against Air Evac. Here too, the district court sided with Air Evac and issued
a preliminary injunction. It concluded Air Evac was likely to show that the Airline
Deregulation Act preempts the state statutes, and that the McCarran-Ferguson Act does not
save the laws from preemption. Dodrill II, 548 F. Supp. 3d at 588–94.

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Dodrill II, however, is not before us. Before us is only the Commissioner’s timely
appeal in Dodrill I. The Commissioner argues the district court erred in declining to abstain
under Younger and in enjoining the administrative proceedings. We have jurisdiction to
hear the interlocutory appeal of the district court’s injunction order pursuant to 28 U.S.C.
§ 1292(a)(1).
II.
We begin with the district court’s decision not to abstain. We review for abuse of
discretion the district court’s decisions about whether or not to abstain under Younger.
Nivens v. Gilchrist, 444 F.3d 237, 240 (4th Cir. 2006). Guided by that standard, we will
first discuss when Younger applies and exceptions to abstention before determining if the
district court abused its discretion in not abstaining here.
A.
Younger abstention expresses “the ‘national policy forbidding federal courts to stay
or enjoin pending state court proceedings except under special circumstances.’” Robinson
v. Thomas, 855 F.3d 278, 285 (4th Cir. 2017) (quoting Younger, 401 U.S. at 41). Two
principles drive the doctrine: equity and comity. As for equity, “courts of equity should not
act, and particularly should not act to restrain a criminal prosecution, when the moving
party has an adequate remedy at law and will not suffer irreparable injury if denied
equitable relief.” Younger, 401 U.S. at 43–44. And for comity, federal courts must show
“proper respect for state functions.” See id. at 44.

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Between equity and comity, Younger itself flags the proper respect for state
functions as the “more vital consideration.” See id. Rightfully so. “[O]ne familiar with the
profound debates that ushered our Federal Constitution into existence is bound to respect
those who remain loyal to the ideals and dreams of ‘Our Federalism.’” Id. A proper
extension of such respect is taking judicial federalism seriously, and not losing sight of the
fact that “state courts are fully competent to decide issues of federal law.”1 Harper v. Pub.
Serv. Comm’n of W. Va., 396 F.3d 348, 355 (4th Cir. 2005) (quoting Richmond,
Fredericksburg & Potomac R.R. Co. v. Forst, 4 F.3d 244, 251 (4th Cir. 1993)).
Of course, abstention is an exception to the general rule that federal courts must
decide cases over which they have jurisdiction. See, e.g., Sprint, 571 U.S. at 77; Cohens v.
Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821). Further, what we have here is not a
proceeding in front of a state court. Instead, we have a state administrative proceeding that
appears adjudicatory in nature, with the opportunity for the state court to review the
agency’s decision. The Supreme Court in Sprint clarified the appropriate steps to determine
whether Younger abstention applies in such circumstances. First, we must determine
whether the proceeding we review on appeal falls under the three types of proceedings that
warrant Younger abstention: (1) “ongoing state criminal prosecutions,” (2) “certain ‘civil
enforcement proceedings’” that are “‘akin to a criminal prosecution’ in ‘important
respects’” (commonly referred to as “quasi-criminal” proceedings), and (3) “pending ‘civil
1 Otherwise, one might ask if Brutus’ predictions could become reality. See
generally The Anti-Federalist Papers 230, 230–36 (Morton Borden ed., 1965) (expressing
concerns over the federal judiciary’s intrusion in states’ rights).

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proceedings involving certain orders . . . uniquely in furtherance of the state courts’ ability
to perform their judicial functions.’” See 571 U.S. at 78–79, 81 (omission in original)
(quoting New Orleans Pub. Serv., Inc. v. Council of City of New Orleans (“NOPSI”), 491
U.S. 350, 368 (1989); Huffman v. Pursue, Ltd., 420 U.S. 592, 604 (1975)).
Next, we consider the “additional factors” provided by Middlesex County Ethics
Committee v. Garden State Bar Association, 457 U.S. 423, 432 (1982), commonly known
as the Middlesex factors. See Sprint, 571 U.S. at 81 (emphasis in original). The three
Middlesex factors are: (1) whether there is “an ongoing state judicial proceeding”; (2)
whether that state proceeding “implicate[s] important state interests”; and (3) whether that
state proceeding provides “an adequate opportunity . . . to raise constitutional challenges.”
457 U.S. at 432; see also Sprint, 571 U.S. at 81; cf. Harper, 396 F.3d at 351–52 (discussing
the three Middlesex factors “for a case to merit abstention under Younger”).2
But even when both steps are satisfied, Younger identifies three exceptions to the
court’s duty to abstain: (1) “bad faith or harassment” by state officials responsible for the
prosecution; (2) a statute that is “flagrantly and patently violative of express constitutional
prohibitions”; and (3) other “extraordinary circumstances” or “unusual situations.” See 401
2 Our prior cases never had the opportunity to account for the Supreme Court’s
decision in Sprint. As an illustration, Robinson, a decision that came after Sprint, went
straight to analyze the three Middlesex factors. See Robinson, 855 F.3d at 285. This was
because Robinson involved a state criminal prosecution, which squarely falls under the
scope of Younger abstention, and thus Sprint’s first-step inquiry was unnecessary. The state
proceeding before us is not a criminal prosecution, so undergoing both steps of the analysis
is important. Cf. Malhan v. Sec’y U.S. Dep’t of State, 938 F.3d 453, 462 (3d Cir. 2019)
(adopting the two-step inquiry provided by Sprint and abrogating the circuit’s precedents
which only analyzed the three Middlesex factors to rule on Younger abstention).

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U.S. at 49–54; see also Nivens, 444 F.3d at 241 (same three exceptions). See generally
Richard H. Fallon, Jr. et al., Hart and Wechsler’s The Federal Courts and the Federal
System 1141–43 (7th ed. 2015).
Having reviewed these general principles for Younger abstention, we now address
whether the district court appropriately analyzed and applied them.
B.
Regarding the first step, the district court concluded that the proceeding here
warrants Younger abstention because the action is “quasi-criminal,” and “akin to a criminal
prosecution.” See Dodrill I, 523 F. Supp. 3d at 867–68. The parties agree. See Opening Br.
14; Resp. Br. 27 (“Air Evac does not contest that Defendant has attempted to initiate a
quasi-criminal enforcement proceeding . . . .”). And we also agree that the district court’s
decision is consistent with Supreme Court precedent. Sprint “assum[ed] without deciding
. . . that an administrative adjudication and the subsequent state court’s review of it count
as a ‘unitary process’ for Younger purposes.” 571 U.S. at 78. The Supreme Court then
listed several factors that make a state civil enforcement “akin to a criminal prosecution”:
whether the enforcement is “initiated to sanction the federal plaintiff,” the “state actor is
routinely a party to the state proceeding and often initiates the action” and “[i]nvestigations
are commonly involved, often culminating in the filing of a formal complaint or charges.”
Id. at 79–80. The proceedings here satisfy those factors.
C.
We now turn to the second step, assessing the three Middlesex factors. Here, the
district court did not reach a firm conclusion on these factors. Instead, it stated the

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Middlesex factors “may be present.” See Dodrill I, 523 F. Supp. 3d at 869. However, the
Commissioner insists all three factors are satisfied.3 In response to the Commissioner’s
arguments, Air Evac focuses on the second factor—an important state interest—conceding
that the Commissioner’s administrative proceeding satisfies the ongoing-proceeding
requirement and that both the West Virginia administrative proceeding and the state courts,
if Air Evac wishes to appeal, provide an adequate opportunity to raise constitutional
challenges.
The Commissioner claims the administrative proceedings involve the regulation of
insurance which he insists is an important state interest. And to be sure, the regulation of
insurance implicates an important state interest. See Life Partners, Inc. v. Morrison, 484
F.3d 284, 292 (4th Cir. 2007) (holding that Congress, by passing the McCarran-Ferguson
Act, made it “unmistakably clear” that insurance regulation is an important state interest).
3 As a preliminary matter, Air Evac contends that the separate injunction issued in
Dodrill II undermines all three Middlesex factors. It does not. The district court’s order
makes clear that the court enjoined the enforcement of the new West Virginia statutes
declaring Air Evac’s membership program to be insurance, not more. See 548 F. Supp. 3d
at 595 (“Accordingly, the Court ORDERS that Defendant be ENJOINED from enforcing
the Membership Laws, (HB 2776, to be codified at W. Va. Code § 33-11B-1; W. Va. Code
§ 33-3-1; and W. Va. Code § 33-44-1 et seq.), against Plaintiff Air Evac EMS, Inc. during
the pendency of the case.”). That means Dodrill II merely puts the litigants back in the
same position they were in before this new legislation passed. And that status quo ante is
what is what this appeal is all about. The whole point of the state administrative proceeding
in Dodrill I—which preceded the passage of the new laws—was that regardless of this
supplemental legislation, the Commissioner thought he could regulate Air Evac’s
membership program under the laws already in place. Indeed, Air Evac even admits in its
brief that “Dodrill II did not address whether Defendant can apply the general definition of
insurance, W. Va. Code § 33-1-1, to Air Evac’s Membership Program.” Resp. Br. 28. Thus,
Dodrill II has little bearing on the issues before us.

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Air Evac responds with two primary arguments. First, Air Evac argues that West
Virginia’s purported interest of insurance regulation is effectively a farce. While conceding
insurance regulation may be an important state interest, Air Evac insists the Commissioner
mischaracterizes the state interest for Younger abstention purposes since Air Evac’s
membership program should not be categorized as an insurance scheme to begin with.
In advancing this argument, Air Evac primarily relies on our decision in Harper,
396 F.3d 348. There, a waste disposal company from Ohio sued the West Virginian Public
Service Commission in federal court challenging the Commission’s decision requiring the
company to obtain a certificate to haul waste in West Virginia. West Virginia claimed the
federal court should abstain under Younger. With respect to the important state interest
requirement, West Virginia pointed to its interest in “protecting the health and welfare of
its citizens.” Id. at 354. Harper rejected that characterization, explaining that “any interest
can at least tangentially relate to health and welfare.” Id. It further reasoned that
characterizations of the state interest in such general terms “render[] the Middlesex County
test meaningless.” Id. Instead, because the certification proceedings by their nature
“impede interstate commerce,” Harper recharacterized the state interest as “limiting
interstate access to the waste removal market.” Id. at 355. And in such cases of
protectionism, the court held that the state interest is narrower, making abstention less
warranted. See id. at 355–57. Air Evac argues that West Virginia’s purported interest in
regulating insurance should likewise be recharacterized as a protectionist measure.
While there are some similarities, there are important differences between our case
and Harper. First, the interest in regulating insurance is far more specific than protecting

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the health and safety of citizens. Second, the analysis in Harper focused on the protectionist
effect: the regulatory process itself effectively served as a monopoly, and thus allegedly
impeded interstate trade in solid waste hauling. See id. at 350. Here, Air Evac questions
the Commissioner’s motives, which we will address in our analysis of the extraordinary
circumstances exception. But it does not argue, and the record does not show, that West
Virginia’s insurance regulatory system when assessed in a vacuum has baked-in
protectionist effects. Therefore, Harper does not offer the support Air Evac claims.
Second, Air Evac argues that West Virginia’s interest in enforcing its insurance laws
in this context is not important because any enforcement action by the Commissioner
would be preempted by the Airline Deregulation Act. Air Evac may be correct that serious
preemption issues linger in the Commissioner’s enforcement scheme. See, e.g., Guardian
Flight LLC v. Godfread, 991 F.3d 916, 921 (8th Cir. 2021) (citing first to Cheatham and
then stating, “[t]he McCarran-Ferguson Act thus does not save the subscription agreement
from ADA [Airline Deregulation Act] preemption”); Air Evac EMS, Inc. v. Sullivan, 8
F.4th 346, 350, 355 (5th Cir. 2021) (“We hold that the [Texas Workers’ Compensation
Act] regulations concerning the reimbursement of air ambulance providers like Air Evac
are preempted by the ADA, and are not saved by the McCarran-Ferguson Act.”).
But preemption alone does not defeat Younger abstention. See, e.g., NOPSI, 491
U.S. at 367 (rejecting petitioner’s opposition to Younger abstention when petitioner argued
that the state statute violated the Constitution, and pointing out that the constitutional issue
arises “only because it violates . . . the Supremacy Clause”); Emps. Res. Mgmt. Co. v.
Shannon, 65 F.3d 1126, 1136 (4th Cir. 1995) (observing that “substantial claims of

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preemption do not automatically preclude abstention”). One of the foundational virtues
underlying Younger abstention is that states are perfectly able to provide adequate forums
to adjudicate federal law issues—including whether a particular matter is preempted by a
federal statute. Air Evac does not even argue that the West Virginia proceeding at issue is
not capable of addressing preemption challenges. Indeed, Air Evac raised the preemption
issue at the investigative hearing in front of the OIC. In addition, Air Evac would have had
the opportunity to press the issue at the formal hearing before the Commissioner as well.
See W. Va. Code § 33-2-13. Any adverse agency decision on preemption could be appealed
to the appropriate state court for de novo review, which would have eventually been
appealable to the highest court of West Virginia. See id. §§ 29A-5-4, 33-2-14. Thus, federal
courts must not trivialize the important state interest of regulating insurance by the mere
fact that such regulation may be preempted by a different federal statute.
In sum, we agree with the Commissioner that the administrative proceedings
involve an important state interest. And based on the Air Evac’s concessions about the
other Middlesex factors, we also agree with the Commissioner that the requirements for
Younger abstention were satisfied.
D.
But that does not end our Younger inquiry. We must still review the district court’s
decision concerning the exceptions to Younger abstention. The district court declined
abstention based on the third exception, “extraordinary circumstances” or “unusual
situations.”

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Neither the Supreme Court nor our Circuit has delineated an exhaustive list of
situations that rise to the level of extraordinary circumstances. Indeed, as the Supreme
Court has instructed, “[t]he very nature of ‘extraordinary circumstances,’ . . . makes it
impossible to anticipate and define every situation that might create a sufficient threat of
such great, immediate, and irreparable injury as to warrant intervention . . . .” Kugler v.
Helfant, 421 U.S. 117, 124–25 (1975). But several Fourth Circuit cases provide clues about
what is required. See Forst, 4 F.3d 244; Emps. Res. Mgmt., 65 F.3d 1126; Martin Marietta
Corp. v. Md. Comm’n on Hum. Rels., 38 F.3d 1392 (4th Cir. 1994).
In Forst, a railroad sued Virginia taxing authorities in federal court seeking to
prevent those authorities from assessing taxes in violation of federal law. The federal
statute contained an express provision allowing district courts to enjoin the collection of
the type of state taxes at issue. In response to the Virginia taxing authorities’ request for
the federal courts to abstain, we found extraordinary circumstances that made abstention
inappropriate even though the action satisfied “the formal requirements of the Younger
doctrine.” 4 F.3d at 251. “Congress was clearly concerned that the states were not providing
an ‘adequate’ opportunity for railroads to remedy discriminatory taxation.” Id. at 252. The
court explained how “[t]he history of state discrimination against railroads—including the
railroads’ experience in the state courts—convinced Congress to restore the power of the
federal courts to enjoin discriminatory state taxation of railroads.” Id. As a result, the
congressional intent was “explicit,” manifested in a federal statute that provided a “clear
exception to the principles of comity.” See id. at 251–52.

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In Employers Resource Management, a company doing business in Maryland sued
state regulatory authorities in federal court to enjoin a state proceeding over insurance
matters. See 65 F.3d at 1129. Maryland asked the federal courts to abstain from exercising
jurisdiction arguing federal ERISA law controlled the issues in dispute. We held that the
extraordinary circumstances exception to Younger abstention did not apply. In doing so,
we distinguished Forst in concluding that preemption alone does not confer the
extraordinary circumstances exception. Rather, we held there that the federal statute must
also make clear that Congress intended that federal law be exclusively under a federal
forum. See 65 F.3d at 1135–36 (“The problem for ERM is that it has not shown, as the
railroad company in Forst did, how it would be injured by having to raise its preemption
defense in the state proceedings rather than in federal district court.”); see also Martin
Marietta, 38 F.3d at 1396 (“[NOPSI] rejected the argument that substantial claims of
preemption automatically preclude abstention.”).
These cases teach us that the path to extraordinary circumstances is exceedingly
narrow. A preemption defense is plainly not enough. After all, states are fully capable of
determining when federal law preempts state claims. And logically, the availability of other
defenses or claims—even constitutional ones—likewise will not do. Those circumstances
will exist in many state criminal prosecutions and quasi-criminal regulatory matters.
Declining to abstain because of the presence of constitutional defenses would intrude into
the sovereignty of states.
Instead, the circumstances must be, as the phrase suggests, extraordinary. While we
have not provided a definitive or exhaustive set of criteria as to what constitutes an

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extraordinary circumstance, our prior decisions suggest there must be actual impediments
to the state’s ability to address the federal issues. Cf. Simopoulos v. Virginia State Bd. of
Med., 644 F.2d 321, 327–29 (4th Cir. 1981) (explaining that the bad faith and patent
unconstitutionality exceptions to Younger abstention apply “if the state procedure fails to
provide the federal plaintiff with an adequate opportunity to litigate in the state forum”);
Mulholland v. Marion Cnty. Election Bd., 746 F.3d 811, 819 (7th Cir. 2014) (finding
extraordinary circumstance when “the Election Board[] attempt[ed] to enforce a law that a
federal court has already told the Board in a final judgment is unconstitutional”).4
With that background, we review the district court’s finding of extraordinary
circumstances here. In concluding that extraordinary circumstances exist, the district court
relied on the extensive communication between the Commissioner and Air Evac’s main
in-state competitor, HealthNet, and the enforcement efforts that followed such
communications. See Dodrill I, 523 F. Supp. 3d at 869–70 (“The emails mix discussion of
regulation of the Membership Program as insurance with discussion regarding efforts to
curtail balance billing. An OIC employee reached out to a HealthNet vice president to
obtain copies of Air Evac’s membership contracts.”). The Commissioner emailed
HealthNet that he is assessing whether he “can take action now to shut down the
4 Admittedly, what we suggest here—extraordinary circumstances requiring an
actual impediment to the state’s ability to address the federal issues—overlaps with the
third Middlesex factor, which is something we consider before analyzing the exceptions to
Younger abstention. Cf. 457 U.S. at 432 (“adequate opportunity in the state proceedings to
raise constitutional challenges”). But this overlap merely highlights the importance of
deferring to the state proceedings as long as the litigants have a fair shot at advancing their
positions.

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subscription plans on the basis they are unlicensed insurance products.” J.A. 72 (emphasis
added). Further, he expressed: “We know this will draw litigation.” Id.
The district court drew two conclusions from the emails. First, the district court
found the emails supported Air Evac’s allegations that the Commissioner “has prejudged
the outcome of the state administrative proceeding.” See Dodrill I, 523 F. Supp. 3d at 868–
69. Second, the district court found the timing of the emails problematic. It noted that only
months after Cheatham, which held that the Airline Deregulation Act preempted West
Virginia’s attempts to regulate Air Evac’s pricing structure, the Commissioner effectively
“tweak[ed] its case” to prosecute Air Evac’s membership program as a violation of West
Virginia’s insurance laws. See id. at 870. To the district court, this “timeline of the
Commissioner’s investigation,” id. at 869, suggested favoritism towards an in-state
competitor.
In challenging the district court’s decision, the Commissioner insists that nothing
about the Commission’s regulatory efforts is sinister, much less extraordinary. He
maintains that the proceedings against Air Evac merely involve West Virginia’s exercise
of sovereign right and responsibility to regulate insurance within the state’s borders. The
Commissioner also argues that West Virginia is fully capable of addressing the issues on
which much of Air Evac’s arguments rest—whether the membership program is or is not
insurance and whether the Air Deregulation Act preempts West Virginia’s regulatory
efforts. And the Commissioner contends that considering those issues in the context of
whether to abstain puts the cart before the horse. In other words, he claims that Air Evac
conflates the decision about abstention with the merits of the regulatory questions.

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Air Evac responds by arguing the district court’s decision was correct and certainly
not an abuse of discretion. In doing so, it adds two reasons that it contends require us to
affirm the district court’s decision. First, it questions the Commissioner’s claim that his
office received “numerous complaints” over Air Evac’s conduct. See Opening Br. 1.
Second, Air Evac questions the legitimacy of the Commissioner’s claim that the
membership program constitutes insurance. In support of this position, Air Evac points out
that every circuit that heard this matter has concluded that Air Evac’s membership program
is not insurance, and therefore the Airline Deregulation Act’s broad preemption provisions
control. See, e.g., Guardian Flight, 991 F.3d at 921; Sullivan, 8 F.4th at 350, 355.
In considering those arguments, we reiterate that our review of a district court’s
Younger abstention determination is for abuse of discretion. Under that standard, if there
is evidence supporting the court’s finding, we must affirm regardless of whether we would
have decided the question in the same way were we sitting in the district court’s shoes. And
given that deferential standard, we cannot say the district court abused its discretion.
The emails from the Commissioner to Air Evac’s in-state competitor provide
support for the district court’s abstention decision. To be sure, there is nothing inherently
wrong with a regulatory agency communicating with one of its citizens even if that citizen
competes with the target of the investigation. But here the Commissioner expressed an
interest in “shut[ting] down” Air Evac even though he knew doing so would “draw
litigation.” J.A. 72. These statements constitute record evidence on which the court could
have reasonably concluded that the Commissioner’s actions were to favor a local business
over out-of-state competition and that the state agency had prejudged the outcome of the

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administrative proceedings. Allegations of a protectionist measure and a prejudged
outcome are not run-of-the-mill defenses in an enforcement proceeding. They involve
pursuing an investigation about insurance to squelch a constituent’s competition. And they
involve deciding the case before the evidence is presented, effectively negating an
otherwise adequate state forum.5
In addition, although the Commissioner claimed to have received numerous
complaints about Air Evac, the only record of any complaint was from HealthNet. Indeed,
when pressed at oral argument, the Commissioner admitted that the state proceeding started
with a complaint from HealthNet. And while the Commissioner allegedly heard on social
media certain concerns, he has not produced concrete evidence or any detail on what
exactly Air Evac was doing wrong. Investigating a complaint from an in-state competitor
is not necessarily problematic. But the Commissioner’s overstatement of the complaints
undermines his claim that this was a business-as-usual regulatory investigation. See also
Dodrill II, 548 F. Supp. 3d at 591 n.8 (rejecting the Commissioner’s claim that he is
5 Even if a state appellate court could eventually rectify such abuses under de novo
review, the district court did not abuse its discretion in finding the administrative
enforcement itself problematic. See Gibson v. Berryhill, 411 U.S. 564, 577 (1973)
(affirming the district court’s decision even if “judicial review, de novo or otherwise, would
be forthcoming at the conclusion of the administrative proceedings”).

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prosecuting Air Evac “due, in part, to complaints received” because “the Court has not yet
seen evidence to support this”).6
In conclusion, the district court relied on evidence in the record from which it is not
unreasonable to conclude that the circumstances presented an actual impediment to West
Virginia’s ability to address the applicable federal issues. As a result, we find no abuse of
discretion. But we emphasize that our decision should not be construed as a license to
broadly interpret the extraordinary circumstances exception. Otherwise, the exception will
improperly swallow the abstention rule and undermine the important principles of
federalism on which Younger abstention is based.
III.
Having addressed the Commissioner’s challenge to the district court’s decision on
Younger abstention, we still must resolve the other part of the Commissioner’s appeal. The
Commissioner also argues that the district court erred in granting a preliminary injunction
enjoining the administrative proceedings. We review the district court’s decision for abuse
of discretion and the related legal conclusions involved in that decision de novo. See
Pashby v. Delia, 709 F.3d 307, 319 (4th Cir. 2013).
6 Air Evac correctly points out that all our sister circuits that have addressed the
issue have concluded that Air Evac’s membership program does not constitute insurance.
While that consensus may potentially cut against the Commissioner’s allegation, at least
for now, we do not give this observation too much weight. After all, those cases are still
out-of-circuit decisions—none of which existed when the Commissioner initiated the
enforcement.

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The requirements for a preliminary injunction are well-settled. “A plaintiff seeking
a preliminary injunction must establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of preliminary relief, that the balance of
equities tips in his favor, and that an injunction is in the public interest.” Winter v. NRDC,
555 U.S. 7, 20 (2008). The district court found all four factors in favor of Air Evac.
The district court concluded that Air Evac is likely to succeed on the merits after
determining that the Airline Deregulation Act likely preempts the Commissioner’s
enforcement of West Virginia’s insurance laws against Air Evac’s membership program,
notwithstanding the McCarran-Ferguson Act. See, e.g., Guardian Flight, 991 F.3d at 921;
Sullivan, 8 F.4th at 350, 353; cf. Cheatham, 910 F.3d at 766–67. This is a legal issue, which
as noted above, we review de novo. But the Commissioner does not challenge this aspect
of the district court’s decision. Instead, the Commissioner challenges the district court’s
findings on irreparable harm, the balance of equities and the public interest. We review
those matters for abuse of discretion.
We find no such abuse of discretion in the district court’s conclusion that Air Evac
is likely to suffer irreparable harm. Relying on evidence in the record, the district court
explained that the Commissioner was likely to shut down Air Evac’s membership program
which would result in the loss of customers and employees, damages that could not be
remedied by money damages. Besides, the prospect of an unconstitutional enforcement
“supplies the necessary irreparable injury.” See Morales v. Trans World Airlines, Inc., 504
U.S. 374, 381–82 (1992); see also Ex Parte Young, 209 U.S. 123, 165 (1908) (discussing

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how awaiting proceedings violating the Constitution is a “risk the company ought not to
be required to take”).
Likewise, the district court’s decision that the balance of equities and the public
interest favor Air Evac was not an abuse of discretion. The district court found that Air
Evac’s interest in an uninterrupted membership program and in preserving the company’s
preemption rights under the Airline Deregulation Act outweighs West Virginia’s interest
in the appropriate regulation of insurance. It reasoned that an injunction merely delays any
enforcement efforts pending resolution of whether West Virginia’s interest is appropriate
in the first place. It also found that enjoining Air Evac’s membership program would leave
its customers to foot the entire bill for air ambulance services despite having signed up for
and paid for the membership program. For similar reasons, the district court also found that
the public interest favors an injunction to preserve the status quo.
We hesitate to give too much credence to the district court’s reasoning about an
injunction merely delaying the state proceedings. That would almost always be the case
when a party sues in federal court to enjoin a state proceeding. But the court legitimately
considered Air Evac’s interest in an uninterrupted program and the impact on Air Evac’s
consumers, both of which are supported in the record. Also, absent any legal error, the
district court’s finding on these matters is entitled to deference. Cf. Leaders of a Beautiful
Struggle v. Baltimore Police Dep’t, 2 F.4th 330, 346 (4th Cir. 2021) (“[T]he balance of the
equities favors preliminary relief because . . . []a state is in no way harmed by issuance of
a preliminary injunction which prevents the state from enforcing restrictions likely to be

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found unconstitutional. . . . Finally, it is well-established that the public interest favors
protecting constitutional rights.”).
In sum, we affirm the district court’s preliminary injunction as well. The
Commissioner does not contest the one legal issue we review de novo: whether the Airline
Deregulation Act preempts the Commissioner’s enforcement efforts. As to the issues the
Commissioner does contest—the district court’s findings on irreparable harm, the balance
of equities and the public interest—we find the district court did not abuse its discretion.
IV.
For the foregoing reasons, the district court’s order is
AFFIRMED.

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