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US Court of Appeals
FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

COMMUNICATIONS TELESYSTEMS
INTERNATIONAL, a California
corporation,
Plaintiff-Appellant,


and

GREENLINING INSTITUTE; LATINO
ISSUES FORUM; GREENLINING
                                                     No. 98-16400
INSTITUTE AND LATINO ISSUES
FORUM,
                                                     D.C. No.
Intervenors,
                                                     CV 97-01935-MHP


v.

CALIFORNIA PUBLIC UTILITY
COMMISSION; P. GREGORY CONLON;
JESSIE J. KNIGHT, JR.; HENRY M.
DUQUE; JOSIAH L. NEPER; RICHARD
A. BILAS,
Defendants-Appellees.


                               13309


COMMUNICATIONS TELESYSTEMS
INTERNATIONAL, a California
corporation,
Plaintiff-Appellant,


v.
                                                     No. 99-15940
P. GREGORY CONLON; JESSIE J.
                                                     D.C. No.
KNIGHT; HENRY M. DUQUE; JOSIAH
                                                     CV 98-02861-MHP
L. NEPER; RICHARD A. BILAS,
                                                     OPINION
Defendants-Appellees,


and

GREENLINING INSTITUTE AND LATINO
ISSUES FORUM,
Defendant-Intervenor-Appellee.


Appeals from the United States District Court
for the Northern District of California
Marilyn Hall Patel, District Judge, Presiding


Argued and Submitted
October 5, 1999--San Francisco, California


Filed November 4, 1999

Before: Alfred T. Goodwin, Mary M. Schroeder, and
Susan P. Graber, Circuit Judges.


Opinion by Judge Goodwin

_________________________________________________________________



SUMMARY

The summary, which does not constitute a part of the opinion of the court,
is copyrighted C 1999 by West Group.
_________________________________________________________________


Government Law/Communications

The court of appeals affirmed judgments of the district
court. The court held that the Telecommunications Act of


                               13310


1996 (Act) does not preempt a state public utility regulator's
authority to impose sanctions against a telecommunications
carrier for switching services to itself without the consent of
affected consumers.


After receiving complaints from many consumers that
appellant Communications Telesystems International (CTS)
had "slammed" them, i.e., switched their long-distance ser-
vices to itself without their permission, appellee California
Public Utilities Commission (CPUC) conducted an investiga-
tion.


An administrative law judge concluded that CTS had
engaged in slamming in violation of California law. The
CPUC imposed sanctions against CTS, including a three-year
period of probation on the provision of intrastate long-
distance services in California. In its interim order, the CPUC
rejected CTS' assertion that the Act preempted the CPUC's
authority to impose sanctions against intrastate telecommuni-
cations providers.


In CTS I, CTS filed a federal action against the CPUC,
alleging that the suspension on the provision of intrastate ser-
vice is preempted by S 253 of the Act.


Section 253 provides that a state cannot prohibit any entity
from providing intrastate telecommunications services. In
subsection (b), S 253 also states that the section does not
affect the ability of a state to impose requirements that are
necessary to protect the public safety and welfare and safe-
guard the rights of consumers. CTS argued that the suspen-
sion was not "necessary to safeguard the rights of consumers"
because the CPUC had already eliminated CTS' ability to
engage in slamming.


While the federal action was pending, CTS filed a petition
for rehearing before the CPUC. In its petition, CTS purported
to reserve its federal claims, but did not describe them. The


                               13311


CPUC denied the bulk of CTS' petition without addressing
the effect of S 253.


Without raising its federal claims, CTS petitioned for
review by the California Supreme Court. The California
Supreme Court summarily denied review. CTS halted intra-
state service in California.


The district court dismissed CTS I, ruling that under
Younger v. Harris, 401 U.S. 37 (1971), abstention was appro-
priate because state proceedings were ongoing when CTS
filed its federal action; important state interests were at stake;
and California's courts afforded CTS an adequate opportunity
to raise its federal claims.


CTS filed a second federal action (CTS II), again claiming
that the CPUC's sanctions violated S 253. This time, however,
CTS contended that because the state proceedings had con-
cluded, Younger did not apply.


The district court dismissed CTS II, ruling that because
CTS' federal claim could have been raised in the state pro-
ceedings, the suit was barred by claim preclusion.


On appeal, CTS reiterated its preemption claim, and con-
tended that claim preclusion was inappropriate in light of the
California Supreme Court's history of summary rejection of
petitions for review of CPUC decisions.


[1] Abstention by a district court is required under Younger
when three criteria are satisfied: (1) state judicial proceedings
are ongoing; (2) the proceedings implicate important state
interests; and (3) the proceedings provide an adequate oppor-
tunity to raise federal questions. [2] Res judicata, or claim
preclusion, bars courts from hearing claims that should have
been raised and resolved in earlier litigation between the same
parties.


                               13312


[3] By its terms, the CPUC decision was not to take effect
for 30 days. During this period, CTS filed a petition for
rehearing. According to California law, the "final" adminis-
trative decision is the one made on an application for rehear-
ing, not the original decision. The CPUC decision was not
final until the filing of the order denying rehearing.


[4] Even when state proceedings are begun after a federal
complaint is filed, but before any proceedings of substance on
the merits have taken place in federal court, the principles of
Younger apply with full force. CTS initiated a "second" state
proceeding by filing a petition for rehearing after the federal
complaint was filed, but before the district court had done
anything of substance concerning its merits. The Younger
doctrine applied.


[5] Federal preemption of state regulation in the area of
telecommunications must be clear, and occurs only in limited
circumstances. Under Younger, state action may be preempted
only for conduct that is "flagrantly and patently " violative of
the Constitution, i.e., preemption must be "readily apparent."


[6] Among the important state interests at issue in this case
was the protection of consumers from unfair business prac-
tices, the compensation of those consumers for harm, and the
need to ensure fair competition between, and the fitness to
operate of, licensed carriers.


[7] The CPUC's actions in fining and temporarily suspend-
ing CTS from providing long-distance services served the
purpose specified in S 253(b), and were not flagrantly and
patently violative of the Constitution. The CPUC has the
power to implement regulations that are necessary to protect
the public against slamming, which reasonably may include
fines or suspensions needed to prevent and deter such unlaw-
ful activity. The suspension did not have to be necessary to
prevent CTS' slamming; it needed only to be necessary to


                               13313


serve the interests recognized in S 253(b) of protecting the
public welfare. [8] The Act did not preempt the sanctions.


[9] Generally, a claim is barred by res judicata or claim pre-
clusion if the earlier litigation concerned the same claim as
the current action, reached final judgment on the merits, and
involved the same parties. [10] State-court judgments are
accorded the same preclusive effect in federal courts as they
are given in the courts of that state. Under federal common
law, quasi-judicial state administrative proceedings are treated
similarly.


[11] Only proceedings that meet the minimal requirements
of due process are accorded preclusive effect. A state pro-
ceeding that does not provide a party a full and fair opportu-
nity to litigate the claim does not qualify. A state
administrative procedure provides a full and fair opportunity
to litigate only if it includes some form of judicial review.
[12] Under California law, the California Supreme Court's
summary denial is a final decision on the merits with res judi-
cata effect.


[13] CTS failed to recognize that summary denials by the
California Supreme Court of petitions for review of CPUC
decisions have long been accorded preclusive effect by the
federal courts. [14] The California Supreme Court has no dis-
cretion to refuse to consider petitions for review of CPUC
decisions. Summary denials are thus similar to the Supreme
Court's summary denials of review of state-court decisions.
Those denials are on the merits and have preclusive effect. In
any event, CTS would not be heard to criticize the California
Supreme Court's refusal to consider its federal claims when
CTS failed to present them to that court.


[15] The "adequate opportunity" prong of Younger requires
only the absence of procedural bars to raising a federal claim
in the state proceedings. CTS had the burden of showing that
state procedural law barred presentation of its claims. CTS did


                               13314


not meet this burden. [16] If the California Supreme Court's
denial sufficed for res judicata purposes, it must have pro-
vided a full and fair opportunity for parties to litigate their
claims. Younger requires no more.


_________________________________________________________________

COUNSEL

M. Laurence Popofsky, Heller Ehrman White & McAuliffe,
San Francisco, California, for the plaintiff-appellant.


Terry J. Houlihan, McCutchen, Doyle Brown & Enersen, San
Francisco, California, for defendants-appellees The Greenlin-
ing Institute and Latino Issues Forum; Lynne P. McGhee, San
Francisco, California, for defendant-appellee California Pub-
lic Utilities Commission.


_________________________________________________________________

OPINION

GOODWIN, Circuit Judge:

Plaintiff Communications Telesystems International
("CTS") sued in district court ("CTS 1 ") to set aside sanctions
imposed upon it by the California Public Utilities Commis-
sion ("CPUC"). CTS claimed that the sanctions violated the
Telecommunications Act of 1996, 47 U.S.C. S 253 (the
"Act"). The district court eventually dismissed the action in
deference to state proceedings under the doctrine of Younger
v. Harris, 401 U.S. 37 (1971). See CTS v. CPUC, 14 F. Supp.
2d 1165, 1166-67 (N.D. Cal. 1998). CTS appeals that decision
in Appeal No. 98-16400. CTS then filed a second challenge
("CTS 2") raising the same issues. The district court again dis-
missed, this time concluding that the state proceedings barred
the claim under the doctrine of res judicata. CTS appeals the
second dismissal in Appeal No. 99-15940. CTS 1 and CTS 2
have been consolidated for the purpose of disposition.


                               13315


I. FACTUAL AND PROCEDURAL BACKGROUND

CTS is a California-based corporation that provides intra-
state long-distance telecommunications services under author-
ity granted by the CPUC. This case began after the CPUC
received more than 56,000 complaints from California con-
sumers that their long-distance carrier had been switched to
CTS without their permission, an unlawful practice known as
"slamming." On May 21, 1997, after more than a year of
investigation and administrative proceedings before an admin-
istrative law judge, the CPUC concluded that CTS had indeed
engaged in slamming, as prohibited by California Public Util-
ity Code S 2889.5. See Final Decision, 1997 Cal. PUC LEXIS
447. Among the sanctions imposed by the CPUC was a three-
year prohibition on the provision of intrastate long-distance
services in California. It is only this sanction which CTS
seeks to enjoin in federal court.


On May 22, 1997, CTS filed CTS 1 in federal district court,
arguing that the suspension on the provision of intrastate ser-
vices is preempted by S 253 of the Act, and should therefore
be enjoined. CTS focuses on S 253(a) of the Act, which pro-
vides that "[n]o State or local statute or regulation, or other
. . . legal requirement, may prohibit or have the effect of pro-
hibiting the ability of any entity to provide any interstate or
intrastate telecommunications service." Section 253(b), how-
ever, provides that "[n]othing in this section shall affect the
ability of a State to impose, on a competitively neutral basis
and consistent with section 254 of this section, requirements
necessary to . . . protect the public safety and welfare . . . and
safeguard the rights of consumers." Because the CPUC
already had eliminated CTS' ability to engage in slamming,1
CTS argues that the three-year suspension violates the Act
because it is not "necessary to . . . safeguard the rights of
consumers."
_________________________________________________________________

1 See Interim Order, 1997 WL 178856 (Cal. P.U.C. Mar. 18, 1997)
(Decision No. 97-03-053).


                               13316


Although no substantive proceedings took place in the fed-
eral case for almost a year, the state proceedings continued
apace. On June 10, 1997, before the decision of the CPUC
became effective, CTS filed a petition for rehearing with the
CPUC pursuant to California Public Utility CodeS 1733(a).
In that petition, CTS purported to reserve its federal claims
under England v. Louisiana Board of Medical Examiners, 375
U.S. 411, 420 (1984). CTS did not describe its federal claims,
however. On October 22, the CPUC denied the bulk of the
petition for rehearing. See Order (Cal. P.U.C. Oct. 22, 1997)
(Decision No. 97-10-063). The Order does not discussS 253
of the Act. The CPUC did consider the preemptive effect of
S 253, however, in its interim order freezing CTS' ability to
switch consumers' long-distance service. See Interim Order,
1997 WL 178856, *3-4.


On November 21, 1997, CTS filed in the California
Supreme Court a petition for a Writ of Review. In that peti-
tion, CTS did not present its federal claims or purport to make
an England reservation of those claims. At the time, the peti-
tion was the only judicial review of CPUC decisions available
in California. Compare Cal. Pub. Util. CodeSS 1756-61
(1997) with SS 1756-61 (1999). On December 23, 1997, the
California Supreme Court summarily denied review. On Janu-
ary 5, 1998, CTS halted intrastate service in California.


On June 22, 1998, the district court dismissed CTS 1, hold-
ing that abstention was appropriate under the Younger doc-
trine. See CTS 1, 14 F. Supp. 2d at 116. In a well-reasoned
decision, the district court concluded that state proceedings
were still ongoing at the time CTS filed suit in federal court,
that important state interests were at stake, and that the Cali-
fornia state courts afforded CTS an adequate opportunity to
raise its federal claims.


On July 20, 1998, CTS filed a second federal action, CTS
2, again claiming that the CPUC's sanctions violated S 253 of
the Act. Because state proceedings were no longer ongoing at


                               13317


that time, Younger did not apply. In due course, the district
court dismissed this second action, holding that because the
federal claim could have been raised in the state proceedings,
CTS' suit was barred by claim preclusion. CTS appeals both
dismissals.


II. STANDARD OF REVIEW

We review a decision to abstain under Younger  as a ques-
tion of law. See Dubinka v. Judges of the Superior Court, 23
F.3d 218, 221 (9th Cir. 1994). A district court's determination
that a claim is barred by res judicata also is reviewed as an
issue of law. See Cabrera v. City of Huntington Park, 159
F.3d 374, 381 (9th Cir. 1998).


III. DISCUSSION

[1] Abstention by a district court is required under Younger
when three criteria are satisfied:


      (1) State judicial proceedings are ongoing;

      (2) The proceedings implicate important state inter-
      ests; and


      (3) The state proceedings provide an adequate
      opportunity to raise federal questions.2


Fresh Int'l Corp. v. Agricultural Labor Relations Bd., 805
F.2d 1353, 1357-58 (9th Cir. 1986). The doctrine propounded
by Younger and its progeny reflects a strong policy against
federal court interference in ongoing state proceedings. The
interests of comity, federalism, economy, and the presumption
that state courts are competent to decide issues of federal con-
stitutional law underlie Younger abstention. Middlesex County
_________________________________________________________________
2 This prong is intertwined with the res judicata analysis discussed in
Part III, subsection 3, infra.


                               13318


Ethics Comm'n v. Garden State Bar Ass'n, 457 U.S. 423,
431-32 (1982).


[2] Res judicata, or claim preclusion, bars courts from hear-
ing claims that should have been raised and resolved in earlier
litigation between the same parties. This salutatory rule is
motivated by policies of avoiding repetitive litigation and
conserving judicial resources. International Union of Operat-
ing Eng'rs v. Karr, 994 F.2d 1426, 1430 (9th Cir. 1993).


1. State Judicial Proceedings Were Ongoing.

[3] CTS contends that state proceedings were not ongoing
when it filed CTS 1 with the district court because the CPUC
had labeled its decision "final" one day before CTS filed suit
in federal court. However, by its own terms, the CPUC's deci-
sion was not to take effect for 30 days. See Decision No. 97-
05-89. During this interim period, CTS was not only aware
that a petition for a rehearing was available as of right, but
CTS in fact filed such a petition on June 10, 1997. According
to California law, the "final" administrative decision is the
one made on an application for rehearing, not the original
decision. See Cal. Pub. Util. Code S 1731(b); City of Los
Angeles v. Public Util. Comm'n, 15 Cal. 3d 680, 707 (1975).
Hence, the decision by the CPUC was not final until October
22, 1997, when the order denying rehearing was filed. CTS
subsequently filed an appeal with the California Supreme
Court, which was denied on December 23, 1997.


[4] Even more damaging to CTS' claim that the state pro-
ceedings were not ongoing is Hicks v. Miranda , 422 U.S. 332
(1975) (overruled on other grounds). In Hicks , the Supreme
Court held that even where state proceedings are begun after
a federal complaint is filed, but before any proceeding of sub-
stance on the merits have taken place in federal court, the
principles of Younger apply with full force. See id. at 349.
Applying Hicks to the instant case, even if the May 21, 1997
CPUC decision was final as CTS contends, CTS initiated a


                               13319


"second" state proceeding on June 10, 1997 (by filing a peti-
tion for rehearing) after their federal complaint was filed (on
May 22, 1997), but before the district court had done anything
of substance concerning its merits. Hence, following the
Hicks analysis, the Younger doctrine applies.


2. The CPUC Proceedings Were Not Preempted.

Rather than attempt to challenge the validity of the state
interests at stake before the CPUC, CTS argues that any such
interests are obviated because preemption of the CPUC's
actions by federal law is "readily apparent." Gartrell Constr.
Inc. v. Aubry, 940 F.2d 437, 441 (9th Cir. 1994). CTS does
not allege that the CPUC's imposition of fines and other pen-
alties is unlawful, but that the CPUC's three-year suspension
of CTS' intrastate operations is preempted by S 253(a) of the
Act. The argument misses an important point.


Section 253(a) of the Act does contain an explicit preemp-
tion provision: "No State or local statute or regulation, or
other . . . legal requirement, may prohibit or have the effect
of prohibiting the ability of any entity to provide any inter-
state or intrastate telecommunications service." Section
253(b) then states, however, that "[n]othing in this section
shall affect the ability of a State to impose, on a competitively
neutral basis and consistent with section 254 of this section,
requirements necessary to . . . protect the public safety and
welfare . . . and safeguard the rights of consumers. " As noted
earlier, CTS contends that, because the CPUC had deprived
it of its ability to engage in slamming,3  the three-year suspen-
sion on providing long-distance services was not "necessary
to . . . safeguard the rights of consumers" and therefore tres-
passes into federal territory.
_________________________________________________________________
3 See Interim Order, 1997 WL 178856 (Cal. P.U.C. Mar. 18, 1997)

(Decision No. 97-03-053).

                               13320


[5] The United States Supreme Court and the Ninth Circuit
have held that federal preemption of state regulation in the
area of telecommunications must be clear and occurs only in
limited circumstances. See Louisiana Pub. Serv. Comm'n v.
FCC, 476 U.S. 355, 368-69 (1986); California v. FCC, 905
F.2d 1217, 1243 (9th Cir. 1990). Under Younger , state action
may be preempted only for conduct that is " `flagrantly and
patently' violative of the constitution," i.e., preemption must
be "readily apparent." Fresh Int'l, 805 F.2d at 1361 n.12
(quoting Younger, 401 U.S. at 54).


[6] CTS' preemption argument misinterprets the purpose of
the Act and ignores the important state interests at issue here.
The Act was designed to prevent explicit prohibitions on
entry by a utility into telecommunications, and thereby to pro-
tect competition in the industry while allowing states to regu-
late to protect consumers against unfair business practices
such as slamming. See Joint Explanatory Statement of the
Committee of Conference, Cong. Rec. H1078, H1111 (Jan.
31, 1996). As the Supreme Court has held, "the regulation of
utilities is one of the most important of the functions tradition-
ally associated with the police power of the States. " Arkansas
Elec. Coop. Corp. v. Arkansas Pub. Serv. Comm'n, 461 U.S.
375, 377 (1983). Among the important state interests at issue
here are the protection of consumers from unfair business
practices, the compensation of those consumers for harm, and
the need to ensure fair competition between, and the fitness
to operate of, licensed carriers. See Hirsh v. Supreme Court,

67 F.3d 708, 712-13 (9th Cir. 1995) (quoting Middlesex, 457
U.S. at 434).


[7] The CPUC's actions in fining and temporarily suspend-
ing CTS from providing long-distance service serve the very
purpose specified in S 253(b) of the Act and are not
"flagrantly and patently" violative of the Constitution. The
CPUC has the power to implement regulations that are
"necessary" to "protect the public" against slamming, which
reasonably may include fines or suspensions needed to pre-


                               13321


vent such unlawful activity. Under CTS' analysis of
"necessary," a freeze on slamming would be the only action
permitted. CTS ignores the reality that fines or suspensions
may be required to prevent and deter illegal behavior. More
crucially, as the CPUC points out, the suspension handed
down against CTS need not be necessary to prevent CTS'
slamming; rather, it need only be necessary to serve the inter-
ests recognized in S 253(b) of protecting the public welfare.


[8] Hence, the Act does not preempt the sanctions handed
down against CTS by the CPUC. The sanctions advanced
important state interests and thus were not "flagrantly and
patently" violative of the Constitution.


3. CTS 2 is Barred by Claim Preclusion.

Because the third prong of Younger ("adequate
opportunity" to raise federal claims) is closely related to the
res judicata issue raised in CTS 2, this final point will be con-
sidered after the claim preclusion discussion at issue in CTS
2. In CTS 2, the district court concluded that CTS' federal
claims were barred by res judicata because CTS had an ade-
quate opportunity to litigate the claims in the state proceed-
ings.


[9] Res judicata, or claim preclusion, bars claims that
should have been raised and resolved in earlier litigation
between the same parties. Generally, a claim is barred under
this doctrine if the earlier litigation: (1) concerned the same
claim as the current action, (2) reached final judgment on the
merits, and (3) involved the same parties. See Nordhorn v.
Ladish Co., 9 F.3d 1402, 1404 (9th Cir. 1993).


[10] By statute, state court judgments are accorded the
same preclusive effect in federal courts as they are given in
the courts of that state. See 28 U.S.C.S 1738. Under federal
common law, quasi-judicial state administrative proceedings
are treated similarly. See University of Tennessee v. Elliot,


                               13322


478 U.S. 788, 799 (1986) (holding that state administrative
fact-finding is given the same preclusive effect as it is given
by state courts); Guild Wineries & Distilleries v. Whitehall
Co., 853 F.2d 755, 758 (9th Cir. 1988) (recognizing 9th Cir-
cuit's extension of Elliot to legal conclusions of state adminis-
trative proceedings).


[11] The Due Process Clause places some limits on the
doctrine of res judicata; only proceedings that meet the mini-
mal requirements of due process are accorded preclusive
effect. See Kremer v. Chemical Constr. Corp., 456 U.S. 461,
483-85 (1982). A state proceeding that does not provide a
party a " `full and fair opportunity' to litigate the claim" does
not qualify. Id. at 480-81; see also Elliot, 478 U.S. at 799. We
have recently held that a state administrative procedure pro-
vides a "full and fair opportunity" to litigate only if it includes
some form of judicial review. See Wehrli v. County of
Orange, 175 F.3d 692, 693 (9th Cir. 1999).


CTS does not dispute that the state proceedings involved
the same parties and the same claim. CTS argues, however,
that the state proceedings cannot be considered res judicata
given the history of summary rejections of review by the Cali-
fornia Supreme Court. It is not clear whether CTS is arguing
that there was no final decision on the merits for res judicata
purposes or instead, that the California Supreme Court's pro-
cedures did not meet the minimal requirements of due pro-
cess. In either case, CTS' argument is unpersuasive. There
was a final decision on the merits, and minimal requirements
were met.


[12] Until this year, the only judicial review of CPUC deci-
sions was through a petition for a writ of review to the Cali-
fornia Supreme Court. See Cal. Pub. Util. Code S 1756
(1998). CTS filed such a petition but declined to include its
federal claims. The petition was denied in a one-line order.
See CTS v. CPUC, 1997 Cal. LEXIS 8656 (Cal. Dec. 23,
1997). Under California law, the California Supreme Court's


                               13323


summary denial is a final decision on the merits with res judi-
cata effect. See Consumers Lobby Against Monopolies v.
CPUC, 25 Cal. 3d 891, 901, 905 (1979). Section 1738 thus
requires this court to accord the denial the same res judicata
effect and to affirm the dismissal in CTS 2. See 28 U.S.C.
S 1738.


CTS argues that the denial should not be considered res
judicata because the California Supreme Court did not pro-
vide it a "full and fair opportunity" to litigate its claims. CTS
contends that no meaningful review in the California Supreme
Court was available because the Court grants only a small
portion of civil writs for review, 4% in 1996-97. CTS claims
that only one petition for review of a CPUC decision has been
granted out of 79 filed since 1990, effectively rendering it
futile to bring its federal claims in the state courts. CTS also
alleges that every other state in the Union provides mandatory
judicial review of public utility commission decisions. Cali-
fornia now provides for appeal of CPUC decisions to the Cali-
fornia Courts of Appeal. See Cal. Pub. Util. Code S 1756
(1999).


[13] Although this court is familiar with the futility argu-
ment, CTS fails to recognize that summary denials by the Cal-
ifornia Supreme Court of petitions for review of CPUC
decisions have long been accorded preclusive effect by the
federal courts. See, e.g., Napa Valley Elec. Co. v. Board of
R.R. Comm'rs of Cal., 251 U.S. 366, 372-73 (1920) (recog-
nizing res judicata effect of denial of review of Board's rate-
making; Board was predecessor of the CPUC); Pacific Tel. &
Tel. Co. v. CPUC, 600 F.2d 1309, 1314 (9th Cir. 1979)
(affirming continued vitality of Napa Valley); Jackson Water
Works, Inc. v. CPUC, 793 F.2d 1090, 1097 (9th Cir. 1986)
(following Pacific Tel. & Tel.).


[14] These decisions are not surprising. Unlike the United
States Supreme Court's denials of petitions for certiorari, the
California Supreme Court has no discretion to refuse to con-


                               13324


sider petitions for review of CPUC decisions. See Consumers
Lobby, 24 Cal. 3d at 901 n.3 (distinguishing mandatory
review of CPUC decisions with discretionary writs of prohibi-
tion and mandate). The California Supreme Court has only the
discretion to deny oral argument and a written opinion. The
summary denials thus are similar to the Supreme Court's
summary denials of review of state court decisions. Those
denials are on the merits and have preclusive effect, despite
the lack of oral argument or a written opinion. See Boggs v.
Boggs, 520 U.S. 833, 849 (1997). This circuit also resolves,
on occasion, appeals in one-line unpublished dispositions
without oral argument. Such decisions are on the merits and
have res judicata effect. See 9th Cir. R. 36-3. In any event,
CTS will not be heard to criticize the California Supreme
Court's refusal to consider its federal claims when CTS failed
to present its federal claims to that court. That court may well
have taken a second look had it been presented with the fed-
eral claims. CTS' statistics do not indicate the frequency with

which writs of review are granted in cases raising important
federal claims.


CTS further attempts to rely on UPS v. CPUC, 77 F.3d
1178 (9th Cir. 1996). CTS claims that the Ninth Circuit
reversed course in that case and held that summary denials of
review by the California Supreme Court are inadequate for res
judicata purposes. While UPS does express "serious
reservations" regarding the adequacy of California's review
procedures, those reservations were by way of dicta. See UPS,
77 F.3d at 1188. The UPS discussion of the "full and fair"
opportunity to litigate before the California Supreme Court
applies only to the analysis of whether UPS' England
reservation should be honored despite UPS' failure to file its
federal action before filing the state action. UPS recognized
"the affirmation granted this state practice by the Supreme
Court and by this court" and explicitly declined to consider
any issues of res judicata. Id.


Further, to the extent that CTS cites UPS for its liberal
interpretation of England reservations, UPS is irrelevant. The


                               13325


UPS court recognized that England reservations do not apply
in the Younger context. See UPS, 77 F.3d at 1188 n.5.
Because the state proceeding in UPS was a quasi-legislative
rate-making, Younger abstention could not apply, and an
England reservation was appropriate. See id . In the instant
case, CTS made no England reservation in its petition to the
California Supreme Court and thus cannot rely on UPS.


This court is bound to follow earlier Ninth Circuit and
Supreme Court precedent rather than any dicta in UPS. The
decision of the district court, concluding that CTS' federal
claims were barred by res judicata, is affirmed.


4. CTS Had an Adequate Opportunity to Present Its
      Federal Claims in the State Proceedings.


The third prong of the Younger analysis asks whether the
plaintiff has or had an "adequate" or "full and fair" opportu-
nity to raise its federal claims in the state proceedings. See
Moore v. Sims, 442 U.S. 415, 431 n.12 (1979). The federal
issues need not, of course, have been actually litigated in the
state proceedings. In fact, the Supreme Court has suggested
that a plaintiff's failure to raise its federal claims in the state
proceedings favors Younger abstention. See Pennzoil Co. v.
Texaco, Inc., 481 U.S. 1, 15 (1987) ("[W]hen a litigant has
not attempted to present his federal claims in related state-
court proceedings, a federal court should assume that state
procedures will afford an adequate remedy, in the absence of
unambiguous authority to the contrary.").


[15] The "adequate opportunity" prong of Younger is no
more difficult to satisfy than the res judicata test. Younger
requires only the absence of "procedural bars " to raising a
federal claim in the state proceedings. See, e.g., Middlesex,
457 U.S. at 432 (1982) ("[A] federal court should abstain
`unless state law clearly bars the interposition of the constitu-
tional claims.' ") (quoting Moore, 442 U.S. at 426); Dubinka,
23 F.3d at 224 (9th Cir. 1994) (applying Younger even though


                               13326


state courts are compelled to reject a federal constitutional
claim under state precedent; relying on absence of procedural
bar to raising the claim). CTS has the burden of showing "that
state procedural law barred presentation of [its ] claims."
Pennzoil, 481 U.S. at 14. CTS has not met this burden.


[16] CTS does not dispute that it could have presented its
federal claims to the California Supreme Court but argues
only that that opportunity was inadequate because of the
court's practice of summarily denying petitions for review of
CPUC decisions. CTS' argument is unpersuasive for the rea-
sons discussed in Part III, subsection 3. If the California
Supreme Court's denial suffices for res judicata purposes,
then, by definition, the denial must provide a "full and fair"
opportunity for parties to litigate their claims. Younger
requires no more. The decisions of the district court in CTS
1 and CTS 2 are


AFFIRMED.

                               13327



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