Appeal from a judgment of the United States District Court for the Southern District of New York, Gerard L. Goettel, Judge, granting defendants' motion to dismiss on the ground that plaintiffs' claims were barred by res judicata. Affirmed.
Cardamone, Pratt and Altimari, Circuit Judges.
In this challenge to the New York City "Public Accommodations Law", N.Y.C. Admin. Code, § 8-102(9), 8-107(2) (1986), appellant The Union League Club (hereinafter "Union League") seeks to enjoin an administrative investigation and potential enforcement action by the city's Human Rights Commission. The district court concluded, 655 F. Supp. 1323 (S.D.N.Y. 1987), that Union League's complaint, while styled as an "as applied" challenge, was in fact an attack on the facial constitutionality of the law, and as such was barred by the res judicata effect due a state court judgment that already has been rendered on such a claim. New York State Club Ass'n v. City of New York, 69 N.Y.2d 211, 513 N.Y.S.2d 349, 505 N.E.2d 915 (1987), prob. juris. noted, 484 U.S. 812, 108 S. Ct. 62, 98 L. Ed. 2d 26 (1987). We conclude that abstention is appropriate here, and thus affirm without reaching the res judicata issue found decisive by the district court.
This case is one of two ongoing challenges to Local Law 63, by which New York City in 1984 amended its public accommodations law. Prior to the amendment, the law barred discrimination in places of public accommodation, and exempted "any institution, club or place of accommodation which proves that it is in its nature distinctly private." N.Y.C. Admin. Code § 8-102(9). The purpose of amending the law was to establish specific standards to define the term "distinctly private" for purposes of the statutory exemption. By the terms of Local Law 63,
An institution, club or place of accommodation shall not be considered in its nature distinctly private if it has more than four hundred members, provides regular meal service and regularly receives payment for dues, fees, use of space, facilities, services, meals or beverages directly or indirectly from or on behalf of nonmembers for the furtherance of trade or business.
Almost immediately upon its passage, the constitutions ality of Local Law 63 was challenged in state court by the New York State Club Association, Inc. (hereinafter "NYSCA"), on behalf of its member clubs, one of which is Union League. NYSCA alleged that Local Law 63 is facially unconstitutional in that it is overbroad, subjecting to regulation private clubs as to which the application of the public accommodations law would infringe the constitutional right to free association, and that the express exemption for religious corporations and benevolent orders violates the due process and equal protection clauses. These facial challenge to Local Law 63 were rejected at each level of the state court system, and the case is now pending before the United States Supreme Court. New York State Club Ass'n, Inc. v. City of New York, supra.
While the NYSCA suit was pending in state court, the city's Human Rights Commission (hereinafter "the commission") began an investigation into the practices of several clubs, including Union League and the University Club, which it believed might no longed be able to claim status as "distinctly private" as that term was defined by Local Law 63. On January 30, 1986, the commission filed Club, along with another club, alleging that they excluded a complaint against Union League and the University women from membership in violation of the public accommodations law. The filing of the complaint began the commission's formal investigation, which culminated on July 7, 1987, when the commission issued a finding of probable cause detailing its findings and inviting the clubs to schedule a date for a clubs declined to conciliation meeting. After the respond, the case was referred to the commission's hearings division.
While the commission investigation was proceeding, Union League and the University Club initiated the instant federal action in March 1986 in the Southern District of New York, seeking a declaratory judgment that the new definition of "distinctly private" was its face and as applied to them, and a constitutional on permanent injunction blocking the administrative proceeding against them.
Without addressing the city's claim that it should abstain because of the pending administrative proceeding, the district court dismissed virtually all of the plaintiffs' claims on the ground that they were barred by res judicata. Judge Goettel concluded that NYSCA had authority to litigate in the state action on the federal plaintiffs' behalf, and adequately had represented their interest. He further found an identity in the causes of action, rejecting the clubs' contention that the state suit differed from the federal action because the latter attacked the statute as applied to it, while the former challenged Local Law 63 on its face.
The only exception to this analysis was a selective prosecution claim implied in the complaint. The district court found that the state plaintiff had not raised such a claim, and it allowed the plaintiffs here "leave to replead a selective prosecution claim if a meaningful one can be asserted." University Club, 655 F. Supp. at 1324. That opportunity was, of course, waived by Union League's and the University Club's decision to appeal rather than amend their complaint. See 6 C. Wright & A. Miller, Federal Practice and Procedure § 1483 at 413 (1971). Thereafter, the University Club voted to admit women and withdrew its appeal, leaving only Union League to prosecute the appeal from the district court's judgment.
We need not reach Union League's argument that the district court erred in finding an identity between its claims here and those raised by NYSCA in state court, because we conclude that under prevailing precedents of the Supreme Court ...