Appeal from a judgment of the United States District Court for the Eastern District of New York, Jack B. Weinstein, Judge, granting defendants' motion to dismiss a complaint which claims that the City of New York's parking regulations are the result of an improper delegation of legislative authority and violate the fourteenth amendment. Affirmed.
Waterman, Smith and Oakes, Circuit Judges.
This is an appeal from a judgment of the United States District Court for the Eastern District of New York, Jack B. Weinstein, Judge, granting defendants' motion to dismiss a complaint based on claims that the City of New York's parking regulations are the result of an improper delegation of legislative authority and violate the fourteenth amendment. We find no merit in either claim and affirm.
In January and February, 1976 Richard Friedman, an attorney, received summonses for three alleged violations of the City of New York's parking regulations ("the parking regulations"). He pleaded not guilty, and all three are now pending before the Parking Violations Bureau of the City of New York ("the Bureau"). On September 8, 1976 he received a notice from the Bureau that he was to be certified as a "scofflaw." On September 9, 1976 he filed a class action complaint, alleging a violation of 42 U.S.C. § 1983 and seeking declaratory and injunctive relief and $15 million in damages. The defendants are the Mayor and four other officials of the City of New York. Later in September 1976 Friedman was notified by the New York State Department of Motor Vehicles that his automobile registration would not be renewed because of his designation as a "scofflaw."
The defendants opposed Friedman's motion to certify the class on the grounds that Friedman was both the named plaintiff and the attorney for the class. On January 14, 1977 Nicholas Arena, Harold Harrison, and Fran Lee moved to intervene as plaintiffs and filed their own complaints.*fn1 The defendants opposed their motion to intervene. On January 21, 1977 Judge Weinstein ordered that the action be certified as a class action under Rule 23(b), Fed. R. Civ. P.*fn2 and that Arena, Harrison, and Lee be made parties to the action under Rule 24, Fed. R. Civ. P. Judge Weinstein then ordered the action dismissed, and the plaintiffs now appeal.
The affidavits of Arena and Harrison each says that he owns a car, is licensed to drive in New York, has received a parking summons in New York City, and has paid the fine. The Supreme Court's recent decision in Juidice v. Vail, 430 U.S. 327, 97 S. Ct. 1211, 51 L. Ed. 2d 376, 45 U.S.L.W. 4269 (1977) casts some doubt on whether either Arena or Harrison, having paid his fine, has standing in this case. Juidice involved eight plaintiffs who sought to enjoin, pursuant to 42 U.S.C. § 1983, the statute under which they were held in contempt by a New York court. Six of the plaintiffs had paid their fines. The Supreme Court said that these six plaintiffs had no standing to challenge either the contempt proceeding or the original default judgment, "since the complaint does not allege the likelihood, or even the possibility, of future contempt orders. . . . O'Shea v. Littleton [414 U.S. 488, 38 L. Ed. 2d 674, 94 S. Ct. 669 (1974)] supra, at 493-499; Linda R.S. v. Richard D., 410 U.S. 614, 617, 35 L. Ed. 2d 536, 93 S. Ct. 1146 (1973)." Id. at 430 U.S. at 333 n.9.
Arena and Harrison, unlike the plaintiffs in O'Shea, Linda R.S., and Juidice, seek damages as well as injunctive and declaratory relief. In O'Shea the Supreme Court, in holding that the complaint failed to establish the requisite "case or controversy," said "important to this assessment is the absence of allegations that any relevant criminal statute of the State of Illinois is unconstitutional on its face or as applied or that respondents have been or will be improperly charged with violating criminal law." 414 U.S. at 496. Here the entire thrust of the complaint is that the parking regulations are unconstitutional on their face, and it is undisputed that Arena and Harrison have paid a fine for violating the parking regulations. We think Arena and Harrison have alleged "some threatened or actual injury resulting from the putatively illegal action," Linda R.S., 410 U.S. at 617, 35 L. Ed. 2d 536, 93 S. Ct. 1146, and we hold that Arena and Harrison have standing to challenge the parking regulations. In view of our disposition of their challenge, infra, we have no occasion to consider any other defenses the defendants might raise against the damage claims of Arena and Harrison.*fn3
Lee's affidavit says, in pertinent part, that she is licensed to drive a car in New York and that "I, as a strong advocate in the fight against discrimination of the type described in the complaint, am very much interested in the outcome."*fn4 We think that this assertion does not present the constitutional question "in the context of a specific live grievance." Golden v. Zwickler, 394 U.S. 103, 110, 22 L. Ed. 2d 113, 89 S. Ct. 956 (1969). F. X. Maltz, Ltd. v. Morgenthau, 556 F.2d 123, slip op. 3821, 3824 (2d Cir. May 26, 1977). We hold that Lee has no standing in this case.
Invoking Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971), and its progeny, the defendants argue that the district court should have abstained from considering Friedman's claim.*fn5 Friedman argues that Younger is applicable only in pending judicial proceedings involving criminal statutes. It is now clear that the federal courts should sometimes abstain when there are pending state judicial proceedings in a civil matter. Trainor v. Hernandez, 431 U.S. 434, 45 U.S.L.W. 4535, 52 L. Ed. 2d 486, 97 S. Ct. 1911 (1977); Huffman v. Pursue Ltd., 420 U.S. 592, 43 L. Ed. 2d 482, 95 S. Ct. 1200 (1975). The Supreme Court has not, however, decided whether Younger should ever be applied when there is a pending administrative hearing.*fn6 Since Arena and Harrison raise the same claims as Friedman, we need not now decide whether Younger bars our consideration of Friedman's claim.*fn7 Cf. McCune v. Frank, 521 F.2d 1152, 1158 (2d Cir. 1975) (refrain from passing on the applicability of Younger to a pending police department's disciplinary hearing).
Plaintiffs claim that there has been an unlawful delegation of legislative authority to the City of New York officials who have promulgated the parking regulations. While plaintiffs concede that this claim "is a question of state and not federal law"*fn8 (Appellants' Brief at 36), we have pendent jurisdiction to decide it. Hagans v. Lavine, 415 U.S. 528, 546-47, 39 L. Ed. 2d 577, 94 S. Ct. ...