Adickes v. S.H. Kress & Co., 90 S.Ct. @ 1609 Dennis v. Sparks, 449 U.S.24, 101 S.Ct. 183 Griffin v. Breckenridge 403 U.S. at 102, 91 S.Ct. @ 1798, 29 L.Ed2d @ 348 McClellan v. Mississippi Power & Light Co. 545 F.2d 919 (5thcir 1977) Hodgin v. Jefferson, 447 F.Supp. 804 (D.Md. 1978) (claims based on @ 3 of the Equal Pay Act); Broadcast Employees v. International Bhd. of Teamsters, 419 F.Supp. 263 (E.D. Pa. 1976) (conspiracy to violate Labor Management Reporting and Disclosure Act), aff'd in part and reversed in part on other grounds, 614 F.2d 846 (3d Cir. 1980); Milner v. National School of Health Technology, 409 F.Supp. 1389 (E.D.Pa.1976). Great Am. Fed. Sav. & Loan Ass'n v. Novotny, 442 U.S. 366, 370 N.6, 99 S.Ct. 2345, 2348 n.6, 60 L.Ed.2d 957, 962 n.6 (1979), however, the Supreme Court specifically declined to decide "whether @1985(3) creates a remedy for statutory rights other than those fundamental rights derived from the Constitution." Justice Powell suggested in his concurring opinion that the statute's "reach is limited to conspiracies to violate those fundamental rights derived from the Constitution." Id. at 378, 99 S.Ct. at 2352, 60 L.Ed.2d at 967. Justice Stevens went further and said, "I do not believe that [ @ 1985(3)] was intended to provide a remedy for the violation of statutory rights -- let alone rights created by statutes that had not yet been enacted." Id. at 385, 99 S.Ct. at 2355, 60 L.Ed.2d at 971 (concurring opinion). Justices White, Brennan, and Marshall expressed the opposite view in their dissenting opinion: "[Section] 1985(3) encompasses all rights guaranteed in federal statutes as well as rights guaranteed directly by the Constitution." Id. at 384 n.5, 99 S.Ct. at 2357 n.5, 60 L.Ed.2d at 971 n.5; cf. Note, Private Conspiracies to Violate Civil Rights: The Scope of Section 1985(3) After Great American Federal Savings & Loan Association v. Novotny, 61 B.U.L.Rev. 1007, 1028-33 (1981) (arguing that @ 1985(3) should be applied "only to statutes whose primary purpose is to guarantee equal treatment"). We, therefore, agree with the Fourth Circuit's refusal to recognize a @ 1985(3) cause of action for private interference with the "associational right" of belonging to the Ku Klux Klan. Bellamy v. Mason's Stores, Inc., 508 F.2d 504 (4th Cir. 1974). This holding is correct, in part, because the right of association derives from the first amendment -- itself framed as a prohibition against the federal government and not against private persons. A number of other courts have declined to extend @ 1985(3) protection to infringements of all constitutional rights. First amendment: Murphy v. Mount Carmel High School, 543 F.2d 1189 (7th Cir. 1976). Sex discrimination: Doski v. M. Goldseker Co., 539 F.2d 1326 (4th Cir. 1976) (employment); Cohen v. Illinois Inst. of Technology, 524 F.2d 818 (7th Cir. 1975) (employment), cert. denied, 425 U.S. 943, 96 S.Ct. 1683, 48 L.Ed.2d 187 (1976). Procedural due process: Briscoe v. Bock, 540 F.2d 392 (8th Cir. 1976); Collins v. Bensinger, 374 F.Supp. 273 (N.D. Ill.) (recognizing that @ 1985(3) refers only to equal protection and not due process), aff'd mem., 506 F.2d 1405 (7th Cir. 1974), cert. denied, 422 U.S. 1058, 95 S.Ct. 2683, 45 L.Ed.2d 710 (1975). Other courts, however, have held that @ 1985(3) reaches every private conspiracy that Congress has power to forbid. E.g., Means v. Wilson, 422 F.2d 833 (8th Cir. 1975) (interference with right to vote in tribal elections), cert. denied, 424 U.S. 958, 96 S.Ct. 1436, 47 L.Ed.2d 364 (1976); Weise v. Syracuse Univ., 522 F.2d 397 (2d Cir. 1975) (employment discrimination); Cameron v. Brock, 473 F.2d 608 (6th Cir. 1973) (free speech; distribution of campaign material); Action v. Gannon, 450 F.2d 1227 (8th Cir. 1971) (en banc) (free exercise of religion); Richardson v. Miller, 446 F.2d 1247 (3d Cir. 1971) (freedom of expression). Gibbs v 383 U.S. @ 727, 86 S.Ct. @ 1139 40, Sullivan v. Boettchcer & Co. 714 F.Supp 1132, 1133-3 Singer v Wadman 595 F.Supp 188, (D. Utah 1982), Aff'd 745 F.2d 606 (10th Cir 1984), cert. denied, 470 U.S. 1028 (1985).(conspiracy 631 (D. Cal. 1984) (allegations of Consiracy must be supported by material ... With respect to allegations that an official act of a defendant judge was the product of a corrupt conspiracy involving the bribery of the judge, private parties who corruptly conspire with a judge in connection with such conduct are acting under color of law, for purposes of 42 USCS @ 1983; it is of no consequence in this respect that the judge himself is immune from damages liability, for (1) immunity does not change the character of the judge's action or that of the judge's alleged coconspirators, and (2) the judge's immunity is dependent upon the challenged conduct being an official judicial act within the judge's statutory jurisdiction, broadly construed. National Collegiate Athletic Asso. v Tarkanian (1988, US) 102 L Ed 2d 469, 109 S Ct 454. Judicial immunity from suits for money damages can be overcome in only two sets of circumstances, one of which is that judge is not immune for nonjudicial actions, that is, for actions not taken in judge's judicial capacity; judge will not be deprived of immun-ity because action that judge took was in error or in excess of au-thority; accordingly, relevant inquiry is into nature and function of act, not act itself--that is, relevant inquiry is to look to particular act's relation to general function normally performed by judge; it is nature of act performed, not identity of actor who performed it, that informs court's analysis of judicial immunity. Mireles v Waco (1991, US) 116 L Ed 2d 9, 112 S Ct 286. PAGE 8 55 L. Ed. 2d 850, *4 With respect to allegations that an official act of a defendant judge was the product of a corrupt conspiracy involving the bribery of the judge, private parties who corruptly conspire with a judge in connection with such conduct are acting under color of law, for purposes of 42 USCS @ 1983; it is of no consequence in this respect that the judge himself is immune from damages liability, for (1) immunity does not change the character of the judge's action or that of the judge's alleged coconspirators, and (2) the judge's immunity is dependent upon the challenged conduct being an official judicial act within the judge's statutory jurisdiction, broadly construed. National Collegiate Athletic Asso. v Tarkanian (1988, US) 102 L Ed 2d 469, 109 S Ct 454. *************************************************************** Stephen RINDLEY, D.D.S., Plaintiff-Appellant, v. Thomas GALLAGHER, et al., Defendants-Appellees, Marshall Brothers, D.D.S., et al., Defendants No. 89-6186 929 F.2d 1552; (11th Cic. 1991) Rindley sought declaratory and injunctive relief, as well as damages, pursuant to 42 U.S.C. @ 1983 for the alleged violation of his rights guaranteed under the first, fifth, and fourteenth amend-ments to the Constitution. Specifically, Rindley sought injunctive relief to prevent selective enforcement of laws against advertising [**3] dentists (Count I), damages for selective enforcement of laws (Count II), damages for conspiracy to selectively enforce the laws [*1554] (Count III), injunctive relief to prevent the further use of letters of guidance pursuant to Florida Statutes @ 455.225(3) (1983) (Count IV), damages for the improper use of letters of guidance (Count V), and declaratory and injunctive relief against the appellees' interpretation of Florida Statutes @ 455.225(9) (1983) (Count VI). n1 n1 The 1989 amendment to section 455.225 renumbered former subsections (3) through (11) as subsections (4) through (12). Fla.Stat.Ann. @ 455.225 historical note (West Supp.1990). All appellees filed motions to dismiss the complaint. The district court granted the motions to dismiss Rindley's complaint based on the Pullman and the Burford abstention doctrines. Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941); Burford v. Sun Oil Co., 319 U.S. 315, 63 S. Ct. 1098, 87 L. Ed. 1424 (1943). [**4] The court also stated that a prima facie case for abstention under Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), had been made, but that it did not rely upon this ground for dismissal. The district court made no other determination of the merits of the case or of any other ground for dismissal. CONTENTIONS Rindley contends that neither the Pullman, Burford, nor Younger abstention doctrines apply to Counts I through V of his complaint. n2 n2 Rindley concedes that Count VI of his amended complaint is properly subject to Pullman abstention. The DPR (other appellees present similar contentions) contends that the district court correctly applied Pullman and Burford abstention, and that Rindley's action is also barred by the Younger abstention doctrine. The society members contend that Rindley's section 1983 claim against them should be dismissed because they did not act under color of state law. The board members contend that the [**5] section 1983 claim for monetary damages against them is barred by eleventh amendment and quasi-judicial immunity. ISSUES The issues are: (1) whether the district court correctly determined that the Pullman doctrine applies to this action; (2) whether the district court correctly determined that the Burford doctrine applies to this action; and (3) whether Rindley's action is barred by the Younger abstention doctrine. DISCUSSION In the Eleventh Circuit, a district court's decision to abstain will only be reversed upon a showing of abuse of discretion. Casines v. Murchek, 766 F.2d 1494, 1502 ( 11th Cir. 1985) (district court's decision to refrain from Pullman abstention is subject to abuse of discretion standard of review); Southern Ry. Co. v. State Bd. of Equalization, 715 F.2d 522 ( 11th Cir. 1983) (district court's decision to abstain under the Burford doctrine is subject to abuse of discretion standard of review), cert. denied, 465 U.S. 1100, 104 S.Ct. 1593, 80 L.Ed.2d 125 (1984); High Ol' Times, Inc. v. Busbee, 621 F.2d 135, 138 (5th Cir.1980) (Pullman abstention [**6] by district court is subject to abuse of discretion standard of review). n3 - - -Footnotes- - - - - - - - - - - - - - - - - - n3 Decisions of the former Fifth Circuit Court of Appeals filed before October 1, 1981, constitute binding precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 ( 11th Cir. 1981). I. Pullman Abstention Under the Pullman abstention doctrine, "a federal district court is vested with discretion to decline to exercise or to postpone the exercise of its jurisdiction in deference to state court resolution of underlying issues of state law." Harman v. Forssenius, 380 U.S. 528, 534, 85 S. Ct. 1177, 1181, 14 L. Ed. 2d 50 (1965) (citing Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941)). Two criteria have been established for application of the Pullman doctrine: (1) the case presents an unsettled question of state law, and (2) the question of state law is dispositive of the case [**7] or would avoid, or substantially modify, the constitutional question presented. Duke v. James, 713 F.2d 1506, 1510 ( 11th Cir. 1983). If a case presents such an issue, it is incumbent on the court to exercise discretion in deciding whether to abstain. Duke, 713 F.2d at 1510. Because it is "severely circumscribed to constitutional challenges posing 'special circumstances,' . . . [Pullman abstention] is therefore the exception rather than the rule." High Ol' Times, 621 F.2d at 139 (quoting Zwickler v. Koota, 389 U.S. 241, 248, 88 S. Ct. 391, 395, 19 L. Ed. 2d 444 (1967)). Section 455.225(4) provides in pertinent part: If the probable cause panel finds that probable cause exists, it shall direct the [DPR] to send the licensee a letter of guidance or to file a formal complaint against the licensee. . . . If directed to do so, the [DPR] shall file a formal complaint against the [subject] and prosecute that complaint pursuant to the provisions of chapter 120. Fla.Stat.Ann. (West Supp.1990). Rindley argues that the state's current use of this section violates his due process rights. A question [**8] of state law is "unsettled" if it is "fairly subject to an avoiding construction." Duke, 713 F.2d at 1510. The district court found that Rindley's claims directly presented unsettled issues of state law. In reaching this conclusion, the district court addressed its entire discussion of Pullman abstention to the lack of judicial interpretation of section 455.225(4) and other sections relating to issuance of letters of guidance, possible "avoiding constructions," and available state court means to obtain a judicial interpretation of the section. In Counts I, II, and III of the amended complaint, the issuance of letters of guidance are but two of ten categories of conduct with regard to which Rindley alleges he and other advertising dentists are treated differently than their non-advertising colleagues. Moreover, in these counts, Rindley does not question the constitutionality of Florida's statutes, but rather their selective enforcement. Thus, the constitutional questions presented in Counts I, II, and III would remain unanswered regardless of any interpretation placed on the statutes by the Florida Supreme Court. In regard to Counts IV and V which seek declaratory [**9] and injunctive relief concerning the state's alleged improper use of letters of guidance, the district court determined that federal constitutional questions concerning section 455.225(4) could be avoided depending on state court construction of that section in relation with (1) section 455.208, Florida Statutes (1988), and (2) the Administrative Procedure Act, Florida Statutes, chapter 120 (1988). Section 455.208 allows the DPR and the board to advise licensees, through the publication of a newsletter, of information of interest to the industry. Fla.Stat.Ann. (West Supp.1990). Although section 455.225(4) states that letters of guidance shall be sent to the licensee, the DPR and the board published letters of guidance to Rindley in such a newsletter. The district court posited that the dissemination of letters of guidance through the newsletter is not authorized by section 455.208, and that such a conclusion could moot the federal constitutional questions because Rindley's due process might not be violated if the letters of guidance were not so publicized. The district court's proposed interpretation of section 455.208 does not substantially avoid Rindley's due process claims. In [**10] Buxton v. City of Plant City, Florida, 871 F.2d 1037 ( 11th Cir. 1989), we held that placing stigmatizing information into the public record by including it in a public employee's personnel file or in an internal affairs report constitutes sufficient publication to implicate liberty interests requiring procedural due process protection. Regardless, therefore, of whether publication of the letters of guidance in a state newsletter is authorized by section 455.208, because the probable cause finding makes the letter part of the public record, the publication alleged in Rindley's complaint raises a federal constitutional question to which the [*1556] interpretation of section 455.208 is immaterial. n4 - -Footnotes- - - - - - - - - - - - - - - - - - n4 The issuance of a letter of guidance becomes part of the public record pursuant to section 455.225(9), which has at all times material to this action provided that: The complaint and all information obtained pursuant to the department's investigation shall be exempt from [public disclosure under] s.119.07 until ten days after probable cause has been found to exist by the probable cause panel or by the department, or until the regulated professional or subject of the investigation waives his privilege of confidentiality, whichever occurs first. No overriding state interests or special competence or threat to administrative integrity is implicated by Rindley's requested invalidation or modification of section 445.225(4) that warrants denying him access to federal court. III. Younger Abstention Because the district court stated that the appellees had shown a prima facie basis for the application of Younger abstention to this case, we will briefly address the issue. In Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), the Supreme Court held that federal courts should abstain from enjoining ongoing criminal proceedings absent a showing of bad faith prosecution, harassment, or extraordinary instances of irreparable harm. The Younger doctrine, based upon the principle of comity, has sub-sequently been extended to civil proceedings, but "has been limited to those civil actions in aid of criminal jurisdiction or involving enforcement-type proceedings in which vital interests of the state qua state are involved." Cate v. Oldham, 707 F.2d 1176, 1183 ( 11th Cir. 1983). See, e.g., Pennzoil Co. v. Texaco, 481 U.S. 1, 107 S. Ct. 1519, 95 L. Ed. 2d 1 (1987) [**17] (state interest in execution of state judgments); Middlesex County Ethics Comm'n v. Garden State Bar Ass'n, 457 U.S. 423, 102 S. Ct. 2515, 73 L. Ed. 2d 116 (1982) (important state interest in maintaining and assuring the professional conduct of attorneys it licenses). In Middlesex County, the Supreme Court approved abstention when, instead of responding to the formal complaint brought against him by a state disciplinary committee, a lawyer sought an injunction in federal court against prosecution of those charges. The Court considered whether the plaintiff had an adequate opportunity in the state proceedings to raise his constitutional challenges. 457 U.S. at 432, 102 S.Ct. at 2521. The Court concluded that the attorney had "abundant opportunity to present his constitutional challenges in [*1558] state disciplinary proceedings." 457 U.S. at 436, 102 S.Ct. at 2523. The appellees strongly contend that the disciplinary system challenged by Rindley in this case warrants Younger abstention like the disciplinary proceedings in Middlesex County. Rindley argues that [**18] he does not have an adequate opportunity to present his constitutional claims to the state administrative or judicial systems. According to Rindley, the DPR has repeatedly investigated him, sent him letters of guidance, charged him, and sometimes litigated complaints, but has not offered him an administrative hearing from which judicial review and the presentation of constitutional claims is possible. Because the district court did not rely on Younger abstention, it did not make findings, did not reach conclusions, or otherwise treat this issue in such a manner as to render it fit for appellate review. On remand, Younger abstention may be further explored. CONCLUSION Because we determine that the district court should not have dismissed Rindley's claims based upon the theories of abstention relied upon, we reverse and remand for proceedings consistent with this opinion. n6 - - - - - --Footnotes- - - - - - - - - - - - - - - - - - n6 In light of our conclusion that the district court should not have relied upon Pullman and Burford abstention doctrines as a basis for dismissing Rindley's action, and the fact that the district court did not address any other ground for dismissal, we do not decide whether Rindley's claims against the society or his claims for monetary damages against the board should be dismissed. Reverse and Remand WILFRED CLOUTIER, ET AL., Plaintiffs, Appellants, v. THE TOWN OF EPPING, ET AL., Defendants, Appellees; WILFRED CLOUTIER, ET AL., Plaintiffs, Appellees, v. THE TOWN OF EPPING, Defendant, Appellee; ROBERT J. CHAMBERLAIN, ROGER E. GAUTHIER, BRENDAN SPLAINE and ROBERT K. DODGE, Defendants, Appellants; WILFRED CLOUTIER, ET AL., Plaintiffs, Appellees, v. THE TOWN OF EPPING, Defendant, Appellant; WILFRED CLOUTIER, ET AL., Plaintiffs, Appellees, v. THE TOWN OF EPPING, Defendant, Appellee; PATRICK JACKSON, Defendant, Appellant; WILFRED CLOUTIER, ET AL., Plaintiffs, Appellees, v. THE TOWN OF EPPING, ET AL., Defendants, Appellees, ROGER VOGLER, DOROTHY HALL, RICHARD SANBORN, WILLIAM CALLAWAY and HAROLD LaPIERRE, Defendants, Appellants. No. 82-1800; 83-1094; 83-1095; 83-1101; 83-1138 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT 714 F.2d 1184 (1st Cic. 1983) Plaintiffs further contend that defendants engaged in a number of malicious delaying tactics which impeded plaintiffs' ability to proceed with their development plans. While plaintiffs ultimately achieved many of their goals, they say that defendants deprived them of their property without due process by adding years of delay and extra costs. n2 n2 In their complaint plaintiffs also alleged that defendants engaged in a conspiracy to infringe upon their civil rights in violation of 42 U.S.C. @ 1985. The district court dismissed that claim on the basis that plaintiffs failed to allege discrimination on the basis of membership in a suspect class. On appeal plaintiffs have not argued that the district court erred in reaching this conclusion. We hold that plaintiffs have waived their section 1985 claim. See Harris v. Plastics Mfg. Co., 617 F.2d 438, 440 (5th Cir. 1980). For similar reasons, plaintiffs have waived their excess taxation claim, and their claims based upon 42 U.S.C. @ 1981, the privileges and immunities clause, and state law. This is not the first time we have considered claims of this type.In Creative Environments, Inc. v. Estabrook, 680 F.2d 682 (1st Cir.), cert. denied, 51 U.S.L.W. 3363 (Nov. 8, 1982), we refused to entertain under section 1983 a claim that local officials had misapplied zoning laws in order to thwart a development project. We assumed that defendants might have engaged in "adversary and even arbitrary tactics," in order to stop plaintiffs' development plans. Id. at 829. We said, however, that ""[t]he violation of a state statute does not automatically give rise to a violation of rights secured by the Constitution."" Id. at 833, quoting Crocker v. Hakes, 616 F.2d 237, 239 (5th Cir. 1980) (per curiam), and that V. FIRST AMENDMENT CLAIMS Plaintiffs also advance, belatedly, a first amendment ground for recovery. They tell us they were denied a sewer connection permit, and were subjected to other forms of harassment, in retaliation for the Cloutiers' vociferous and pointed political opposition to defendants and their anti-development positions. Plaintiffs never explicitly pressed this claim below as a separate ground for relief. Even if their quiescence did not amount to a waiver, see Johnston v. Holiday Inns, Inc., 595 F.2d 890 (1st Cir. 1979), we think it raises no genuine issue. In order to surmount a supported motion for summary judgment, plaintiffs were required to set forth specific facts showing a triable issue. See Packish v. McMurtrie, 697 F.2d 23, 26-27 (1st Cir. 1983); Manego v. Cape Cod Five Cents Savings Bank, 692 F.2d 174 (1st Cir. 1982). Plaintiffs have not done so. Although they engaged in years of discovery and compiled a vast record, plaintiffs point only to Wilfred Cloutier's own affidavit in support of their first amendment claim. The only statements in the affidavit relevant to such a claim are those attesting that Cloutier had engaged in political opposition to defendants and, as a member of the Epping Betterment Committee, had participated in circulating cartoons which portrayed defendants in an unflattering light. From this, plaintiffs wish us to infer that defendants fought the Cloutiers' development plans in retaliation for Wilfred Cloutier's political activity. However, the Cloutiers' development plans were the subject of a political controversy in which all parties were engaged. It is difficult to infer that defendants were motivated by dislike of plaintiffs' exercise of free speech rather than simply by disapproval of the proposed development. The former inference is less obvious than that of racial discrimination in Manego v. Cape Cod Five Cents Savings Bank, 692 F.2d 174 (1st Cir. 1982), in which we affirmed the district court's grant of summary judgment. n8 n8 Below plaintiffs argued that defendants violated section 1983 by speaking out against plaintiffs' development plans. The first amendment protects the defendants as well as the plaintiffs: all of the parties were entitled to engage in the rough and tumble of political debate and action, based on their personal views. Cf. FTC v. Cement Institute, 333 U.S. 683 (1948) (commission may rule on issue despite the fact that commissioners previously expressed their opinion on the subject); K. Davis, Administrative Law Treatise @ 19.2 (1980). We have searched the record with some care and have found nothing which suggests that this case concerns valid first amendment issues. We therefore hold that [*1193] summary judgment is appropriate. See Packish v. McMurtrie, 697 F.2d at 23; Mangeo v. Cape Cod Five Cents Savings Bank, 692 F.2d at 174.