opinion: The IVY CLUB v. W. Cary EDWARDS; Pamela S. Poff, Appellants, Sally Frank, Intervenor-Defendant. Sally FRANK, Counter-Claimant, v. The IVY CLUB, Counter-Defendant.
  No. 90-6027.
  United States Court of Appeals, Third Circuit.
  Argued May 9, 1991.
  Decided Aug. 21, 1991.
  As Amended Sept. 4, 1991.
  Rehearing Denied Sept. 16, 1991.
  Robert J. Del Tufo, Atty. Gen. of New Jersey, Andrea M. Silkowitz, Asst. Atty. Gen., Jeffrey C. Burstein (argued), William H. Lorentz, Deputy Attys. Gen., Div. of Law, Newark, N.J., for appellants.
  Barbara Strapp Nelson (argued), McCarthy and Schatzman, P.A., Princeton, N.J., for appellee, The Ivy Club.
  Nadine Taub (argued), Rutgers Women’s Rights Litigation Clinic, Newark, N.J., for appellee, Sally Frank.
  Sally Frank, pro se.
  Before MANSMANN, NYGAARD and ROSENN, Circuit Judges.
  OPINION OF THE COURT
  ROSENN, Circuit Judge.
  This appeal, the procedural posture of which has all of the trappings of a law school examination question, requires us to explore the boundaries of the several theories under which the federal courts abstain from exercising their jurisdiction in deference to comity with the state courts. Specifically, the question presented is whether a party, who files a claim in federal court following a state administrative agency’s determination that the federal constitution does not preclude the agency’s exercise of jurisdiction, may return to federal court to litigate its federal claims after the completion of the state court proceedings in which it specifically refrains from raising its federal claims.
  The Ivy Club (“Ivy” or “Club”), a social eating organization whose membership is drawn primarily from the student body of Princeton University, filed suit in the United States District Court for the District of New Jersey alleging that the exercise of jurisdiction by the New Jersey Division on Civil Rights, Department of Law and Public Safety (the “Division”) violated its first amendment rights to freedom of association and its constitutionally guaranteed right to privacy. Following the federal court’s stay of the federal suit, Ivy returned to the state court proceedings, but thereafter refrained from litigating its federal claims.
  Upon termination of the state court proceedings, the district court reopened this case and, pursuant to. 28 U.S.C. § 1292(b), certified to this court the order granting Ivy’s motion to reopen its section 1983 action. We affirm the district court’s order permitting Ivy to reopen the case because we hold that Ivy, in the unique circumstances we have here, sufficiently reserved its right to litigate its federal claims in federal court.
  I.
  Ivy, founded more than a century ago, is a social eating club with an active membership of less than eighty undergraduate students at Princeton University and approximately fifteen hundred inactive graduate members who formerly attended the University. The Club is one of thirteen eating clubs which provide meals to a portion of upper class Princeton students. Until recently, Ivy’s membership was all male.
  This litigation commenced in 1979 when Sally Frank, then a student at Princeton University, filed a complaint with the Division against Ivy, as well as two other eating clubs, the Tiger Inn and the University Cottage Club (“the Clubs”), and Princeton University. Frank alleged that the Clubs and Princeton University discriminated on the basis of sex in places of public accommodation in violation of the New Jersey Law Against Discrimination (“LAD”), N.J.S.A. 10:5-1 et seq.
  The Division initially refused to process Frank’s complaint, stating that it had determined that the Clubs were exempt from LAD because the Clubs were not places of public accommodation. LAD does not apply to “any institution, bona fide club, or place of accommodation, which is in its nature distinctly private.” N.J.S.A. 10:5— 5(1).
  In December of 1979, Frank filed another complaint with the Division, this time alleging that the Clubs were places of public accommodations because they functioned as an arm of Princeton University. Ivy’s answer to the complaint stated as a separate defense that Ivy “has the right to freedom of association pursuant to the First and Fourteenth Amendments of the United States Constitution.” The Division dismissed Frank’s complaint, holding that it lacked jurisdiction over the Clubs because of their distinctly private nature.
  Frank appealed the dismissal of her complaint to the Appellate Division of the Superior Court of New Jersey. Once again, the Clubs raised the defense of freedom of association guaranteed by the United States Constitution. The appellate division, taking no position on the merits of the complaint, vacated the decision by the Division and remanded the case for further investigation, holding that a hearing and factual findings were necessary to determine whether the Division had jurisdiction.
  After a number of procedural skirmishes not relevant to the dispute at hand, on February 6, 1986, the Division issued a Partial Summary Decision, holding that the Division had jurisdiction over the Clubs. The decision affirmed an earlier ruling of the Division in which the Director of the Division rejected the Club’s argument that the exercise of jurisdiction by the Division violated their first amendment right to freedom of association. In a discussion covering six pages, the Director compared the Clubs and Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984), and held that the application of LAD to the Clubs did not violate their constitutional right to freedom of association.
  On February 13, 1986, following this final determination of jurisdiction at the administrative level, and having had its constitutional defenses against the exercise of jurisdiction rejected, Ivy and the Tiger Inn filed suit in federal court. The complaint alleged that the exercise of jurisdiction by the Division of Civil Rights violated the Clubs’ civil rights under the federal constitution and requested a declaratory judgment and an injunction against the state proceedings. The defendants were Attorney General W. Cary Edwards and Director of Civil Rights Pamela Poff. Tiger Inn v. Edwards, 636 F.Supp. 787 (D.N.J.1986).
  The federal court chose to stay the federal action “until the New Jersey courts have clarified the application of the New Jersey Law Against Discrimination to the plaintiffs.” Tiger Inn, 636 F.Supp. at 792. Although the plaintiffs requested the court to exercise its equitable powers in restraining the state proceedings, the court stayed the action pursuant to the Pullman doctrine, rather than the Younger doctrine. The court explicitly declined to rule whether the plaintiffs were entitled to return to federal court upon the conclusion of the state proceedings. The court cautioned Ivy and Tiger Inn “not to interpret the court’s decision to grant a stay as a ruling that they have properly reserved their federal constitutional claims for federal court adjudication pursuant to England.” 636 F.Supp. at 792.
  The Ivy Club and Tiger Inn then resumed litigation at the state level. Ivy thereafter refrained from raising its federal constitutional claims in the state proceedings. It explicitly stated that it wished to reserve its right to litigate its federal claims in federal court pursuant to the England doctrine. Ivy reserved its rights under England orally before the Administrative Law Judge and again in its brief to the Appellate Division of the New Jersey Superior Court. As a part of its motion opposing certification to the Supreme Court of New Jersey, Ivy included its brief presented to the appellate division containing the England reservation. Tiger Inn, on the other hand, continued to present its federal claims in the state proceedings.
  On July 3, 1990, the Supreme Court of New Jersey rendered its final decision. See Frank v. Ivy Club, 120 N.J. 73, 576 A.2d 241 (1990), cert. denied, Tiger Inn v. Frank, — U.S. -, 111 S.Ct. 799, 112 L.Ed.2d 860 (1991). The court affirmed the Division’s Order of May 26, 1987, awarded Frank humiliation damages in the amount of $5,000, but denied her club membership. It also ordered Ivy and Tiger Inn to admit women as members.
  The decision, concerned primarily with the extent of hearings necessary to satisfy administrative due process, did not discuss federal constitutional claims. The only mention the New Jersey Supreme Court made of any federal constitutional claims was in its summary of the procedural history where the court noted that “[t]he Division rejected the argument that the Club members’ constitutional free-association rights would be violated if the Clubs were subject to LAD.” 576 A.2d at 251.
  On August 24,1990, Ivy moved to reopen its federal action based on the 1986 complaint. On October 15, 1990, the district court reopened this case and certified the question to this court under 28 U.S.C. § 1292(b) whether Ivy had waived its right to litigate its federal rights in federal court.
  On October 1, 1990, Tiger Inn filed a Petition for a Writ of Certiorari with the Supreme Court of the United States, claiming that the decision of the Supreme Court of New Jersey violated its first amendment rights. Although Ivy filed a motion for an extension of time to file its petition in the Supreme Court, Ivy never filed a petition. On January 18, 1990 the United States Supreme Court denied Tiger’s petition for cer-tiorari.
  II.
  A. Mootness
  In the fall of 1990, Ivy formally inducted its first female members. The admission of women to the club raises the threshold question of whether this matter is moot. As is well established under Article III of the Constitution, federal courts may adjudicate only actual, ongoing cases or controversies. Lewis v. Continental Bank Corporation, 494 U.S. 472, 110 S.Ct. 1249, 1253, 108 L.Ed.2d 400 (1990). This case-or-controversy requirement subsists through all stages of the judicial proceedings, trial and appellate. Id.
  Because this court has jurisdiction pursuant to 28 U.S.C. § 1292(b), the scope of appellate review extends only to questions of law raised by the order certified by the district court, United States v. Stanley, 483 U.S. 669, 677, 107 S.Ct. 3054, 3060, 97 L.Ed.2d 550 (1987). However, it is the order that is appealable, and not the controlling question; and thus we may address any issue necessary to decide the appeal before us. Morse/Diesel, Inc. v. Trinity Industries, Inc., 859 F.2d 242, 249 (2nd Cir.1988). We must necessarily decide the issue of mootness because this court has a “ ‘special obligation’ to satisfy itself of its own jurisdiction in every appeal presented to it.” McNasby v. Crown Cork and Seal Co., Inc., 832 F.2d 47, 49 (3rd Cir.1987), cert. denied, 485 U.S. 936, 108 S.Ct. 1112, 99 L.Ed.2d 273 (1988), citing Bender v. Williamsport Area School District, 475 U.S. 534, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986).
  Ivy’s admission of women raises the question of whether the present controversy is mooted. Certainly, if Ivy admitted women in order to comply with the order affirmed by the New Jersey Supreme Court, and hence did so involuntarily, the matter would not be mooted. However, if Ivy members have freely and voluntarily decided to change their club policy, then we must consider the question of mootness.
  Although Ivy admitted women only after the final decision of the New Jersey Supreme Court holding that Ivy must admit women, and after the state and federal courts denied Ivy’s request for a stay, there are indications that at least part of Ivy’s membership is in favor of admitting women. First, the club voted to admit women sometime prior to July of 1990, before the state court’s final adjudication. See Frank v. Ivy Club, 576 A.2d at 253 n. 2. After the state court’s final decision, Ivy members again voted to admit women. In light of the New Jersey Supreme Court’s order that women be admitted, it would seem that holding a vote would be unnecessary as the outcome had been decided for them by the court.
  There is therefore reason to believe that Ivy, regardless of the outcome of this litigation, has decided to revise its membership policy in favor of admitting women. If this were true, even if the court decided that Ivy does have a first amendment right to exclude women from their club, our decision would have no effect. Thus, the constitutional requirement of redressability would not be met; there must be a substantial likelihood that a favorable federal court decision will remedy the claimed injury. Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984).
  If Ivy does not intend to exercise the first amendment rights it alleges have been violated, a question that immediately comes to mind is why is Ivy pursuing this litigation. First, there might be internal disagreement within Ivy as to its admissions policy. Second, there exists practical, although not judicially cognizable, reasons for pursuing this federal litigation. The state court’s order provides that Sally Frank may apply to the Director for attorneys’ fees incurred in connection with this matter.
  However, an interest in attorneys’ fees does not save a matter from mootness. Lewis v. Continental Bank, 110 S.Ct. at 1255 (reasonable caution is needed to be sure that mooted litigation is not pressed forward solely to obtain reimbursements of attorneys’ fees); Diamond v. Charles, 476 U.S. 54, 70-71, 106 S.Ct. 1697, 1707-08, 90 L.Ed.2d 48 (1986) (the fee award is wholly unrelated to the subject matter of the litigation, and the prospect that “continued adjudication would provide a remedy for an injury that is only a byproduct of the suit itself does not mean that the injury is cognizable under Article III”).
  In any event, we need not resolve the question whether Ivy admitted women voluntarily. Several other factors give considerable life to this controversy. First, the New Jersey Supreme Court upheld a $5,000 judgment against Ivy and Tiger Inn. If Ivy is correct in asserting that subjecting them to LAD violates its first amendment right to freedom of association, then a damage award based on violation of that law is impermissible. In addition, the Division has retained jurisdiction over the club to observe and require compliance with its orders that Ivy admit women in all future membership selections and that the women members will be accorded the same courtesies, privileges and accommodations as males. Ivy must also report in writing to the Division for the next two years on the number of women admitted. Under these circumstances, we conclude that the matter is not moot.
  B. Ivy’s Right to Litigate in Federal Court
  In 1986, Ivy and Tiger Inn filed suit in federal court seeking a declaratory judgment and injunction against the state proceedings, alleging that the Division’s exercise of jurisdiction violated the Clubs’ civil rights in violation of 42 U.S.C. § 1983. See Tiger Inn v. Edwards, 636 F.Supp. 787 (D.N.J.1986). Because the plaintiffs requested that the federal court exercise its equitable powers to restrain ongoing state proceedings, the court should have decided the case under the parameters of the abstention doctrine laid out in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). However, at the State’s urging, the court abstained pursuant to the Pullman abstention doctrine. See Railroad Commission of Texas v. Pullman, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). The ramifications of that decision will be explored below.
  Ivy and Tiger Inn’s suit filed in federal court alleged that the defendants, Attorney General W. Cary Edwards and Director of Civil Rights Pamela Poff, were violating the clubs’ right to privacy and freedom of association as protected by the first and fourteenth amendments. The Clubs brought suit pursuant to 42 U.S.C. § 1983 which provides:
  [ejvery person who, under color of any statute, ordinance, regulation, custom, or usage, or any State ... subjects ... any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
  The Clubs alleged that the defendants’ enforcement of the New Jersey Law Against Discrimination against them violated 42 U.S.C. § 1983 and requested that the defendants be enjoined permanently from implementing any procedures to compel the Clubs to accept any person into its membership against the associational preferences of its members.
  Section 1983 has engendered a great deal of discussion regarding the relationship between the federal and state courts. Originally § 1 of the Civil Rights Act of 1871, section 1983 was “enacted for the express purpose of ‘enforcing] the Provisions of the Fourteenth Amendment.’ ” Mitchum v. Foster, 407 U.S. 225, 238, 92 S.Ct. 2151, 2160, 32 L.Ed.2d 705 (1972) (quoting 17 Stat. 13). Section 1983 was intended to alter significantly the relationship of the federal government to the states.
  The Civil Rights Act of 1871, together with the fourteenth amendment, were “crucial ingredients in the basic alteration in our federal system accomplished during the Reconstruction Era.” Patsy v. Board of Regents of State of Florida, 457 U.S. 496, 503, 102 S.Ct. 2557, 2561, 73 L.Ed.2d 172 (1982). The Act and the constitutional amendment had the effect of dramatically changing the relationship between the federal and state judicial systems. They threw open the doors of the federal judicial system to lawsuijts by private citizens to enable them to protect their federal rights. As a consequence of the new structure of law that evolved in the post-Civil War era, “the role of the Federal Government as a guarantor of basic federal rights against state power was clearly established.” Mitchum v. Foster, 407 U.S. at 239, 92 S.Ct. at 2160. Section 1983 now offered a “uniquely federal remedy” for vindication of individual rights violated “under the claimed authority of state law.” Id. at 239, 92 S.Ct. at 2160. It purposely interposed the federal courts between the States and the people “to protect the people from unconstitutional action under color of state law, ‘whether that action be executive, legislative, or judicial.’ ” Id. at 242, 92 S.Ct. at 2162 (quoting Ex parte Virginia, 100 U.S. 339, 346, 25 L.Ed. 676 (1880)) (emphasis supplied).
  The Court has delineated the extent to which Section 1983 provides protection against involuntary participation in state court proceedings in Mitchum v. Foster, supra, and Younger v. Harris, supra, and its progeny. Mitchum, on the one hand, held that the federal anti-injunction statute, 28 U.S.C. § 2283, does not preclude a federal court from enjoining a state proceeding. The anti-injunction statute provides that a “court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by an Act of Congress, or where necessary in aid of its jurisdiction, or to protect or to effectuate its judgments.” The Court reasoned that section 1983 fell within the expressly authorized exception of the anti-injunction statute. Mitchum, 407 U.S. at 243, 92 S.Ct. at 2162.
  Younger and its progeny, on the other hand, have erected a formidable prudential barrier to obtaining injunctive relief from ongoing state adjudicative proceedings. In Younger, the plaintiff, who was being prosecuted under the California Criminal Syndicalism Act, sought a federal court injunction pursuant to section 1983 against the state criminal prosecution on the grounds that the existence of the Act and the prosecution under it violated the first and fourteenth amendments. The Court refused to grant the injunction, citing concerns of comity and federalism. 401 U.S. at 44-45, 91 S.Ct. at 750-51. The Court held that federal interference with state court proceedings was available only upon a showing of irreparable injury that is “both great and immediate.” Id. at 46, 91 S.Ct. at 751.
  Thus, although an injunction pursuant to section 1983 is not statutorily prohibited, Younger creates a separate and independent judicially created abstention doctrine. The Younger abstention doctrine is a prudential limitation on the federal courts’ exercise of jurisdiction when a plaintiff requests that a federal court interfere with ongoing state proceedings. Consequently, the Clubs’ request for an injunction pursuant to 42 U.S.C. § 1983 fell squarely within the parameters of the Younger decision.
  However, in 1986, when the district court considered the question of whether the Clubs’ suit should be dismissed pursuant to Younger, the court expressed uncertainty as to whether Younger abstention should be applied to state administrative proceedings initiated by a private plaintiff. At that time, the Supreme Court had extended the Younger doctrine to civil proceedings initiated by the state in a state court in which important state interests were involved. See Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977); Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975). The Court had also applied Younger to state administrative proceedings initiated by the state in which important state interests were vindicated. See Middlesex County Ethics Committee v. Garden State Bar Assoc., 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982); Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973).
  Only after the district court first considered this case in 1986 did the Supreme Court consider the question of whether Younger abstention applied to administrative proceedings initiated by a private plaintiff In Ohio Civil Rights Commission v. Dayton Christian Schools, Inc., 477 U.S. 619, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986), a case factually similar to the one at bar, the state administrative proceedings were initiated by a private litigant filing a sex discrimination complaint with the Ohio Civil Rights Commission. Although the administrative proceedings were pending, Dayton (the defendant in the state proceedings), filed suit in federal court seeking an injunction against the state proceedings on the ground that any investigation or imposition of sanctions would violate the first amendment.
  The Court held that it should abstain under Younger because “the elimination of prohibited sex discrimination is a sufficiently important state interest to bring the present case within [Younger and its progeny]" and the Court had "no reason to doubt that Dayton will receive an adequate opportunity to raise its constitutional claims." 477 U.s. at 628, 106 S.Ct. at 2723. Dayton would thus appear to be controlling precedent for the case at bar. The present case also involves the issue of sex discrimination and there have been no allegations that the state courts would not provide an adequate opportunity to raise constitutional claims. Moreover, abstention in the present case might have avoided the necessity to reach a constitutional question. Pennzoil Company v. Texaco, Inc., 481 U.S. 1, 11, 107 S.Ct. 1519, 1526, 95 L.Ed.2d 1 (1987) (unwarranted determination of federal constitutional questions is a basis for abstaining pursuant to the Younger doctrine).
  Thus, in retrospect, with the additional guidance of Dayton and Pennzoi4 it appears that abstention pursuant to the Younger doctrine would have been appropriate. The defendants urge us to adopt this course of action presently and direct the dismissal of Ivy's action. However, fairness dictates that we must examine the circumstances under which the court in this case abstained and the effect of that decision on the litigants.
  The district court, in deciding not to abstain pursuant to Younger, instead accepted the defendants' argument and abstained pursuant to the Pullman theory of abstention. Tiger Inn v. Edwards, 636 F.Supp. at 790. Persuaded that this case was a classic situation for Pullman abstention, the court decided to "stay the action until the New Jersey courts have clarified the application of the New Jersey Law Against Discrimination to the plaintiffs." id. at 792.
  The Pullman abstention doctrine derives from Railroad Commission of Texas v. Pullman, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). In that case, the Court established the principle that federal courts may abstain as a matter of policy from deciding a question of federal constitutional law when the challenged state law is unsettled and state resolution of the claim may make it unnecessary for a federal court to address the federal constitutional claim. Thus, under Pullman, a federal court may stay the federal proceedings until the completion of state court proceedings to decide an issue of state law which might moot a federal constitutional question.
  Pullman abstention, however, is usually applied when a plaintiff properly invokes federal court jurisdiction in the first instance on a federal claim. Allen v. McCurry, 449 U.S. 90, 101 n. 17, 101 S.Ct. 411, 418 n. 17, 66 L.Ed.2d 308 (1980). When the plaintiff meets federal jurisdictional requirements and initiates proceedings in federal court prior to any state proceedings, the federal court has a duty to accept that jurisdiction. Id. The federal plaintiff is relegated to the state court only for the resolution of the state law issue. Unlike Younger abstention, Pullman abstention "may serve only to postpone, rather than to abdicate, jurisdiction." Id.
  The impropriety of applying Pullman in the present case is illustrated by the Clubs' inability to file suit in federal court prior to the commencement of state proceedings. Their federal complaint was that the state administrative proceedings themselves violated their federal constitutional rights. Neither could the Clubs have removed their state action to federal court; a defendant sued in state court on a state law cause of action cannot remove a case from state to federal court because of a defense based on federal law. Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908) (A plaintiff's cause of action must be based on federal law in order for the case to arise under federal law for purposes of 28 U.S.C. § 1331.).
  Thus, normally, unless an injunction could be obtained pursuant to the Younger doctrine, the state defendant in these circumstances would be constrained to present its constitutional defenses in state court. The Supreme Court has held that state-court judgments must be given both issue and claim preclusion effect to subsequent actions under 42 U.S.C. § 1983 by federal courts. See Migra v. Warren City School District Board of Education, 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984) (Parties may not raise in federal court § 1983 litigation issues that could have been litigated in an earlier proceeding.); Allen v. McCurry, 449 U.S. 90, 104, 101 S.Ct. 411, 420, 66 L.Ed.2d 308 (1980) (“There is ... no reason to believe that Congress intended [§ 1983] to provide a person claiming a federal right an unrestricted opportunity to relitigate an issue already decided in state court simply because the issue arose in a state proceeding in which he would rather not have been engaged at all.”).
  Thus, we see that Congress’ intention that section 1983 “throw open the doors of the United States courts,” Patsy v. Florida Board of Regents, 457 U.S. 496, 504, 102 S.Ct. 2557, 2561, 73 L.Ed.2d 172 (1982) (quoting remarks of Rep. Lowe), to individuals who were threatened with, or who had suffered, the deprivation of constitutional rights does not hold true for the party who is a defendant in state proceedings alleging that the state proceedings are in violation of his federal rights. Unless the formidable barrier of the Younger abstention doctrine can be surmounted by a defendant in a state proceeding or removal is available under the Civil Rights Removal Act, that defendant must have his federal rights adjudicated by the state court system subject to review only by the Supreme Court of the United States.
  To summarize, the distinction between Pullman and Younger abstention arises from the different procedural posture of a case where the federal litigation is initiated as a defense to ongoing state proceedings and a case where the plaintiff properly invokes federal jurisdiction in the first instance. In the former, the Younger doctrine is utilized when the federal court is requested to enjoin ongoing state proceedings. In the latter, the Pullman abstention doctrine is utilized when the plaintiff properly invokes the federal jurisdiction in the first instance and the federal court temporarily abstains from exercising its jurisdiction pending the state court decision on a state law question.
  For our purposes, the most important consequence of district court abstention pursuant to Younger rather than Pullman is that although a decision under Younger terminates the federal litigation (or ends the state litigation if the federal plaintiff is successful), abstention under Pullman merely postpones the exercise of federal jurisdiction. Allen v. McCurry, 449 U.S. at 101 n. 17, 101 S.Ct. at 418 n. 17. A federal plaintiff who is remitted to state court pursuant to Pullman need not relinquish the right to litigate federal claims in federal court; that right may be reserved especially by following the dictates of England v. Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964).
  When the district court abstained pursuant to Pullman, the court expressly did not decide whether the Clubs were able to return to federal court following the termination of the state court proceedings. The court, understandably troubled by Ivy’s litigation of its federal constitutional claims in the state administrative proceedings, cautioned the Clubs “not to interpret the court’s decision to grant a stay as a ruling that they have properly reserved their federal constitutional claims for federal court adjudication pursuant to England. ” Tiger Inn v. Edwards, 636 F.Supp. at 792.
  The record before us unequivocally demonstrates that Ivy’s constitutional claims have not been adjudicated other than at the state administrative level. Subsequent to the district court’s decision to abstain, Ivy refrained from litigating its federal constitutional claims. Ivy also expressly stated its wishes to preserve its right to litigate in federal court pursuant to England at each subsequent stage of the state court proceedings.
  Moreover, the New Jersey courts appear to have acquiesced to Ivy’s reservation of its right to litigate its federal claims in federal court. Although the New Jersey courts did not explicitly acknowledge Ivy’s reservation under England, neither did the state court decide Ivy’s constitutional defenses. See Frank v. Ivy Club, 228 N.J.Super. 40, 548 A.2d 1142 (1988); Frank v. Ivy Club, 120 N.J. 73, 576 A.2d 241 (1990). The only mention any state court made of Ivy’s first amendment claims was the New Jersey Supreme Court’s summary of the procedural history of the case. The court’s recognition that the first amendment claim had been decided at the administrative level hardly constitutes the adjudication of Ivy’s first amendment claims. The New Jersey Supreme Court affirmed only the order of the administrative body, not the Division’s opinion containing the first amendment discussion issued in conjunction with that order.
  We therefore are faced with the situation where confronted by a Pullman abstention, Ivy chose not to pursue its federal claims in the state court. The state court apparently had no objection to that reservation. Ivy, thus, has not had a full and fair opportunity to litigate its federal claims. The Supreme Court has repeatedly recognized that the collateral estoppel doctrine cannot be applied when a party did not have a “full and fair opportunity” to litigate an issue in the earlier proceeding. See Kremer v. Chemical Construction Corp., 456 U.S. 461, 480-81, 102 S.Ct. 1883, 1896-97, 72 L.Ed.2d 262 (1982); Allen v. McCurry, 449 U.S. at 101, 101 S.Ct. at 418. Thus, the full faith and credit statute does not bar the federal court’s adjudication of Ivy’s federal claims.
  The defendants argued, however, that Ivy did indeed possess a full and fair opportunity to litigate its federal claims in state court and that Ivy voluntarily waived that right. The simple answer is that the court, having granted abstention specifically pursuant to Pullman, repeatedly put Ivy in a “catch-22” situation by not deciding the reservation issue at that time. If Ivy wished to return to federal court, Ivy had to refrain from presenting its federal claims at the state level. Under England, a party who freely and without reservation submits his federal claims for decision by the state courts waives the right to litigate its federal claims in federal court. England, 375 U.S. at 419, 84 S.Ct. at 467. Thus, if Ivy had any hope of benefitting from the court’s decision to defer its exercise of jurisdiction rather than dismiss the case, Ivy necessarily had to refrain from litigating its federal issues in state court.
  We are therefore left with a balancing of the equities. Ivy, on the one hand, detrimentally relied on the district court’s decision to stay this action. As a result, there has been no adjudication of Ivy’s federal claims to date. The State, on the other hand, has been litigating this case for over ten years and, had the State successfully presented the Younger abstention, it could have ended the litigation. We are less troubled, however, by any perceived unfairness to the defendants because of two factors: First, it was in response to the defendants’ urging that the court abstained under Pullman. Tiger Inn v. Edwards, 636 F.Supp. at 789. Second, at least on the record before us, the defendants failed to raise any objection to Ivy’s England reservations in the state court. Accordingly, a sense of basic fairness dictates that Ivy be permitted to litigate its federal claims in the federal forum. Unreviewed state administrative proceedings cannot be considered a sufficient and fair opportunity to fully litigate Ivy’s federal claims, the merits of which we do not reach.
  The dissent disagrees with our holding that Ivy has been deprived of a full and fair opportunity to litigate its federal claims, arguing that this case should be treated as a straightforward Pullman/England case. The dissent would prefer that we ignore the procedural history of this case, stating that even if the Pullman abstention were incorrect, it has become “the law of the case.” The law of the case argument, however, supports the majority view for it validates the exercise of equitable principles under the unique circumstances of this case. However, were we just to assume that the Pullman abstention was the “law of the case” and not discuss its inappropriate use in the situation we have here, nothing would discourage, or indeed, prevent future parties from relying on it as binding precedent.
  The omission of any discussion of the impropriety of applying Pullman/England abstention in the present case could mislead future state court defendants into believing that they always have an opportunity to litigate their federal claims in federal court. According to the dissent, Ivy may not return to federal court to litigate its federal claims because it did not sufficiently reserve its England rights in the state administrative proceedings pertaining to jurisdiction. Following that argument to its logical conclusion, one would conclude that had Ivy only raised its England reservations from the moment it was summoned in the state administrative proceedings, Ivy could come into federal court to have its federal claims decided on the basis that Ivy had sufficiently reserved its rights under England.
  Under the jurisprudence as it stands today, that is not the law. As we discuss supra at 280, federal courts must give state-court judgments both issue and claim preclusion effect in subsequent actions under section 1983. Section 1983 did not give state-court defendants the unrestricted right to litigate their federal rights in federal court. See Allen v. McCurry, 449 U.S. at 103, 101 S.Ct. at 419 (no authority for proposition that every person asserting a federal right is entitled to one unencumbered opportunity to litigate that right in federal district court, regardless of the legal posture in which the federal claim arises). The state-court defendant may successfully invoke federal court jurisdiction only if the defendant successfully amounts the Younger bar to obtaining an injunction of the state court proceedings or if removal is available pursuant to the Civil Rights Removal Act.
  Notwithstanding, having sought injunc-tive relief immediately upon the final decision of the state administrative agency on the question of jurisdiction and having been the beneficiary of a Pullman abstention, although erroneously granted, Ivy should not be deprived of subsequent access to the federal court at the conclusion of the state court proceedings in which it refrained from litigating its federal claims. The dissent dismisses this proposition, stating that it is "without precedent." It is hardly surprising that no court has encountered the anomalous situation presented here. That no court has decided what should happen under these unique circumstances does not mean that we cannot, or should not, decide the case according to the dictates of justice. A court should not mechanistically apply precedent and when finding none to fit the case at bar, throw up its hands and state that the equitable issues may not be explored.
  Rightly or wrongly, the district court retained jurisdiction in this case and did not preclude Ivy from returning to federal court. On the contrary, it held out the opportunity for Ivy to return. It is meaningless to retain jurisdiction just to rule at a later date that Ivy never had any right to return to federal court. Ivy's detrimental reliance on this judicial grant of jurisdiction resulted in a loss of its full and fair opportunity to litigate its federal claims in the state court.
  In sum, to analyze the case as if it were a straightforward England case not only deprives Ivy of its full and fair opportunity to litigate its federal claims because of the district court's decision to retain jurisdiction, it also misleads future state court litigants to believe that if only they are more "effective" than was Ivy in making its England reservation, every state court defendant has a right to litigate its federal claims in federal court. We discussed the distinction between Younger and Pullman abstention to illustrate that state clefen-dants normally do not have the right to invoke a Pullman abstention.
  We next turn to the question of whether the state proceedings should be given any preclusive effect at all. Normally, when the federal court abstains pursuant to Pullman and the federal litigant reserves his rights as required by England, issue preclusion applies only to the state law question decided by the state court. Upon return to federal court, the federal plaintiff may fully litigate his federal claims, including the factual issues that may be identical to those underlying the state law question. England, 375 U.S. at 417, 84 S.Ct. at 466 ("[I]n cases where, but for the application of the [Pullman] abstention doctrine, the primary fact determination would have been by the District Court, a litigant may not be unwillingly deprived of that determination.").
  However, in the present case, the federal court will now hear Ivy's federal claims, not because Ivy was unwillingly subjected to the state court after properly invoking federal jurisdiction in the first instance, the normal Pullman situation, but because the application of Pullman abstention deprived Ivy of a full and fair opportunity to litigate its federal claims. The equitable considerations that require the federal court to decide Ivy's legal questions do not also require that Ivy be given a chance to relitigate the extensive factual findings of the state court.
  The decision to give preclusive effect to the state court's factual findings eliminates any possibility of conflict with the Supreme Court's decision in University of Tennessee v. Elliott, 478 U.S. 788, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986). There the Court reasoned that Congress, in enacting the Reconstruction Civil Rights statutes, did not wish to foreclose the adaptation of traditional principles of preclusion. Id. at 797, 106 S.Ct. at 3225. The Court concluded that the conservation of judicial resources and the value of federalism are served by giving "preclusive effect to state administrative factfinding rather than leaving the courts of a second forum, state or federal, free to reach conflicting results.” Id. at 799, 106 S.Ct. at 3226.
  The New Jersey Supreme Court’s decision in this matter, Frank v. Ivy Club, 120 N.J. 73, 576 A.2d 241 (1990), makes it unnecessary to remand to the district court to decide the preclusive effect to which the Division’s fact-finding would be entitled in state court. The parties will be bound by the undisputed stipulations of fact. The parties, however, will not be bound by the eighteen disputed facts determined to be immaterial by the state court. The state court did not decide whether procedural due process was satisfied as to the resolution of these eighteen facts; thus, the parties cannot be bound by them. See Id., 120 N.J. 104, 576 A.2d at 257. Of course, the parties are not precluded from presenting additional evidence pertinent to the resolution of the federal claims.
  The dissent also argues that Ivy’s litigation in federal court is barred by the Rooker-Feldman doctrine and the Full Faith and Credit Statute, 28 U.S.C. § 1738. However, these barriers apply to state court decisions, as opposed to state administrative decisions. D. C. Court of Appeals v. Feldman, 460 U.S. 462, 482, 103 S.Ct. 1303, 1315, 75 L.Ed.2d 206 (1983) (“United States District Court has no authority to review final judgments of a state court in judicial proceedings.”) (emphasis supplied); University of Tennessee v. Elliott, 478 U.S. at 794, 106 S.Ct. at 3223 (28 U.S.C. § 1738 is not applicable to the unreviewed state administrative proceedings). As noted earlier, the New Jersey state courts implicitly observed Ivy’s England reservation and accordingly did not decide Ivy’s federal constitutional claims. Thus, University of Tennessee v. Elliott, which addresses the preclusive effect of unreviewed state administrative decisions, is more to the point and permits review here by the district court. As already noted, Elliott holds that in section 1983 actions, federal courts must give the state administrative agency’s fact-finding the same preclusive effect to which it would be entitled in the state’s courts. Id. 478 U.S. at 799, 106 S.Ct. at 3226.
  As the dissent recognizes, the district court only certified the question of whether Ivy had properly reserved its section 1983 claims under England. There was no need to certify the Rooker-Feldman question because if Ivy has rights under Pullman/England, Rooker-Feldman is irrelevant. “If Ivy made valid reservations ..., then the district court would have jurisdiction to hear these claims irrespective of the Rooker-Feldman doctrine.” Dissent, at 293, n. 18.
  III.
  In sum, in response to the question certified to this court, we hold that in the face of the Pullman abstention exercised by the district court followed by Ivy’s reliance on that abstention in the reservation of its right to litigate federal claims in federal court and not present them in the state proceedings, Ivy has neither waived nor had a full and fair opportunity to litigate its federal claims. Accordingly, we will affirm the district court’s order permitting Ivy to litigate its section 1983 action in federal court.
  . New Jersey created the Division on Civil Rights in the Department of Law and Public Safety to prevent and eliminate discrimination in the manner prohibited by the Law Against Discrimination; it gave the Division general jurisdiction and authority for such purposes. NJ.S.A. 10:5-6.
  . See Frank v. Ivy Club, 120 N.J. 73, 576 A.2d 241 cert. denied, Tiger Inn v. Frank, — U.S. -, 111 S.Ct. 799, 112 L.Ed.2d 860 (1991), for a complete review of the procedural history at the state level.
  . The University Cottage Club settled with Frank on February 24, 1986. On July 22, 1986, Frank also settled with Princeton University. Princeton continued to participate in the proceedings because of the potential involvement it would have in whatever remedies were ultimately ordered by the Division.
  . See Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) and Railroad Commission of Texas v. Pullman, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941).
  . See England v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964).
  . 28 U.S.C. § 1292(b) provides that "[w]hen a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing such an order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order. ...”
  . In another decision handed down the same day, Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), the Court held that Younger deference was also applicable to a suit seeking only a declaratory judgment that the statute under which the federal plaintiff was being prosecuted was unconstitutional. Thus, Younger applies regardless of whether the plaintiff seeks injunctive or declaratory relief.
  . Interestingly, Mitchum was decided after Younger v. Harris. The Court stated in Mitchum, 407 U.S. at 243, 92 S.Ct. at 2162, that it was not “question[ing] or qualifying] in any way the principles of equity, comity, and federalism that must restrain a federal court when asked to enjoin a state court proceeding.” The Court then made specific mention of Younger and its companion cases.
  . Commentators have criticized the Pennzoil decision as improperly blending Pullman and Younger abstention, e.g. Redish, Federal Jurisdiction 348 (1990).
  . The defendants acknowledge that the district court erred in not applying the Younger abstention doctrine in the first instance. See dissent, at 286, n. 4.
  . Removal of an action would be possible only under the limited circumstances provided in the Civil Rights Removal Act, 28 U.S.C. § 1443, which is not in issue in this case.
  . The Supreme Court noted this distinction in Ohio Civil Rights Commission v. Dayton Christian Schools, Inc., 477 U.S. 619, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986). In Dayton, the Court explained that the application of the Younger principle to pending state administrative proceedings was not inconsistent with Patsy v. Florida Board of Regents, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982), which holds that litigants need not exhaust their administrative remedies prior to bringing a § 1983 suit in federal court. The Court reasoned that in Dayton, unlike Patsy, the administrative proceedings were “coercive rather than remedial, began before any substantial advancement in the federal action took place, and involve[d] an important state interest.” Dayton, 477 U.S. at 628 n. 2, 106 S.Ct. at 2723 n. 2 (emphasis supplied).
  . The federal full faith and credit statute, 28 U.S.C. § 1738, provides that "judicial proceedings [of any court of any State] shall have the same full faith and credit in every court with the United States and its Territories and Possessions as they have by law or usage in the courts of such State....”
  . We note that the parties could have sought a clarification of this issue on appeal. However, neither side did so and accordingly, we do not assess the failure to appeal as detrimental to either side.
  . Bradley v. Pittsburgh Board of Education, 913 F.2d 1064 (3rd Cir.1990), presented this court with an analogous situation. In Bradley, unlike Ivy, the plaintiff initiated state proceedings to have his state claims adjudicated after having filed his claim in federal court. In effect, the plaintiff “voluntarily" submitted himself to state court instead of having the federal court make the decision, the normal procedure under Pullman. Throughout the state proceedings, the plaintiff reserved his right to return to federal court pursuant to England. The court held that where (1) the plaintiff initiates an action in federal court, (2) the plaintiff appeals the termination of his employment through state prescribed procedures while explicitly reserving his federal claim, (3) both the defendant and the state tribunal acquiesce in the reservation, and (4) the federal action is stayed pending the outcome of the state proceeding, the reservation of the plaintiffs federal claims for federal adjudication must be recognized. Id. at 1072.
  Although Bradley is distinguishable from the case at bar in that the plaintiff filed first in federal court and did not have his federal claims adjudicated at the administrative level, Bradley does provide us with some guidance. Bradley demonstrates that in deciding whether an England reservation is valid, the actions of the other party and state court are relevant to the determination.
  . When a United States district court is assessing the validity of a rule promulgated in a state non-judicial proceeding, it has subject matter jurisdiction because this does "not require review of a final state-court judgment in a particular case.” Feldman, 460 U.S. at 486, 103 S.Ct. at 1317 (emphasis added).
  . The dissent contends that we ignore New Jersey’s entire controversy doctrine. However, that doctrine is applicable to federal courts only by virtue of the Full Faith and Credit Statute. Thus, the foregoing discussion of the Full Faith and Credit Statute subsumes any discussion of the New Jersey entire controversy doctrine.
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Your task is to identify the state of the first listed state or local government agency that is an appellant.
choices: not Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachussets Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New New New New North North Ohio Oklahoma Oregon Pennsylvania Rhode South South Tennessee Texas Utah Vermont Virginia Washington West Wisconsin Wyoming Virgin Puerto District Guam not Panama