Cheresnik

MEMORANDUM

This is a dispute about whether an affirmative action plan San Francisco uses at its airport is permitted by the federal and state constitutions. But that issue has not yet been reached because the district court abstained. The issue before us is the applicability of Pullman abstention.

Facts.

The district court based its decision to abstain solely on the parties’ pleadings which allege the following facts. Three plaintiffs sued the San Francisco Airport Commission, the director of the airport, and the municipality, for discriminating against them on account of their sex and race. Their complaint states that each of them applied for a promotion available to the next highest position, and each got past the first cut, to twelve applicants, and the second cut, to seven. But when the pool was narrowed to four, and they all turned out to be white, the process was started all over again because their race made them not sufficiently “racially diverse.” Different finalists were then selected. The process was pursuant to the airport’s “Equal Employment Opportunity and Diversity Plan” (the Plan). Plaintiffs sought declaratory judgment that the Plan violated the federal and…