Joseph Jemsek v. State of North Carolina

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 5:14-cv-00504-BO Copies to all parties and the district court/agency. [999946493].. [15-1420]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-1420

JOSEPH JEMSEK, M.D.,
Plaintiff – Appellant,
v.
JANELLE R. RHYNE, M.D.; ROBERT MOFFATT, M.D.; H. ARTHUR
MCCULLOCH, M.D.; ALOISIUS P. WALSH; E. K. FRETWEEL, M.D.;
MICHAEL E. NORINS, M.D.; GEORGE L. SAUNDERS, M.D.;
SARVARESH SATHIRAJU, M.D.; DICKY S. WALIA; RALPH LOOMIS,
M.D.; DON JABLONSKI, M.D.; PAUL S. CAMNITZ, MD, M.D.;
CHERYL WALKER-MCGILL, M.D.; PASCAL UDEKWU, M.D.; HELEN
DIANE MEELHEIM, FNP-BC; SUBHASH GUMBER, M.D., Ph.D.;
TIMOTHY E. LIETZ, M.D.; DEBRE A. BOLICK, M.D.; ELANOR E.
GREENE, M.D.; A. WAYNE HOLLOMAN; THELMA C. LENNON; MICHAEL
J. ARNOLD, M.B.A.; BARBARA E. WALKER, D.O.,
Defendants – Appellees,
and
STATE OF NORTH CAROLINA; NORTH CAROLINA MEDICAL BOARD,
Defendants.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Terrence W. Boyle,
District Judge. (5:14-cv-00504-B0)

Argued:

September 22, 2016

Decided:

October 13, 2016

Before WILKINSON, DUNCAN, and WYNN, Circuit Judges.

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Affirmed by unpublished opinion.
Judge Duncan wrote
opinion, in which Judge Wilkinson and Judge Wynn joined.

the

ARGUED: Jacques G. Simon, JACQUES G. SIMON ATTORNEY AT LAW,
Merrick, New York, for Appellant. Stephen Daniel Feldman, ELLIS
& WINTERS LLP, Raleigh, North Carolina, for Appellees.
ON
BRIEF: Matthew W. Sawchak, Steven A. Scoggan, ELLIS & WINTERS
LLP, Raleigh, North Carolina, for Appellees Moffatt, McCulloch,
Walsh, Fretwell, Norins, Saunders, Sathiraju, Loomis, Jablonski,
Camnitz, Walker-McGill, Udekwu, Meelheim, Gumber, Lietz, Bolick,
Greene, Walker, Holloman, Lennon, and Arnold.
Andrew H.
Erteschik, POYNER SPRUILL LLP, Raleigh, North Carolina, for
Appellee Rhyne.
Ronald H. Garber, BOXLEY, BOLTON, GARBER &
HAYWOOD, L.L.P., Raleigh, North Carolina, for Appellee Walia.

Unpublished opinions are not binding precedent in this circuit.

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DUNCAN, Circuit Judge:
Dr.

Joseph

Jemsek

filed

suit

seeking

declaratory

and

injunctive relief against the State of North Carolina, the North
Carolina
current

Medical
Board

Board

members,

(“NCMB”

or

alleging

“Board”),

that

a

and

conflict

former
of

and

interest

infected Board disciplinary proceedings that sanctioned Jemsek,
thereby violating his Fourteenth Amendment right to procedural
due process.

The district court dismissed Jemsek’s complaint

because he lacked standing to sue the former Board members and
Defendants were otherwise immune from suit under the Eleventh
Amendment.

Jemsek

appealed

the

district

court’s

dismissal.

Finding no error, we affirm.

I.
A.
Jemsek

is

a

licensed

medicine in North Carolina. 1
Jemsek

focused

on

physician

who

previously

practiced

Since opening his practice in 1979,

infectious

disease.

In

2001,

he

began

treating individuals with chronic Lyme disease by prescribing
antibiotics long-term, although this course of treatment did not
comport

with

the

model

prescribed

by

the

Infectious

Society of America.

1

We draw all facts from Jemsek’s complaint.

3

Disease

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Jemsek submitted claims to Blue Cross Blue Shield of North
Carolina (“BCBSNC”) on behalf of insured patients for care that
included

long-term

antibiotic

treatment.

Although

BCBSNC

initially accepted Jemsek’s claims, in 2003, it began to examine
more
use.

closely

In

those

claims

that

included

long-term

antibiotic

In 2005, BCBSNC stopped accepting such claims altogether.
2005,

BCBSNC

insureds

treated

by

Dr. Jemsek

also

filed

several complaints with the NCMB concerning his use of long-term
antibiotic treatments.
The Board investigated Jemsek, formally charged him with
professional

misconduct,

conducted

ultimately sanctioned him.

disciplinary

hearings,

and

In an order dated August 21, 2006

(“2006 order”), the Board suspended Jemsek’s medical license for
one

year

but

stayed

the

suspension

provided

that

(1)

Jemsek

develop an informed consent form approved by the Board, (2) if
Jemsek’s diagnosis of patients was not supported by Center for
Disease Control criteria, then those patients must receive a
consultation or second opinion before Jemsek could treat them,
(3)

Jemsek’s

antibiotics

be

institutional

treatment
included
review

of
in

Lyme
a

disease

formal

board

research

supervision,

with

long-term

protocol
and

with

(4)

any

investigation

into

complications of treatment be addressed immediately.
In

2008,

the

Board

launched

another

Jemsek’s treatment of patients with chronic Lyme disease through
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the use of hyperbaric chambers.
investigators

informed

Jemsek

During this investigation, NCMB
that,

if

he

allowed

his

North

Carolina medical license to become inactive, the Board would end
the investigation.

Jemsek agreed, and the investigation ended

with the Board issuing a public letter of concern dated June 23,
2008 (“2008 letter”).

Dr. Janelle A. Rhyne, then-president of

the Board, signed the 2008 letter.
B.
In 2012, Jemsek began a campaign of unsuccessful litigation
before the Board and in state court seeking a declaration that
the

2006

order

was

null,

void,

and

illegal. 2

Jemsek

first

petitioned the Board to revoke the 2006 order on April 27, 2012.
After the Board denied his request for a declaratory ruling,
Jemsek

sought

judicial

review

of

the

Board’s

final

order

in

North Carolina state court pursuant to the state’s statutoryreview

scheme.

Jemsek’s
2013.

The

petition

North

with

Carolina

prejudice

by

Superior
order

Court

dated

dismissed

January

16,

The North Carolina Court of Appeals affirmed on May 20,

2014.; In re Jemsek, 234 N.C. App. 115, 761 S.E.2d 755 (2014).
On

June

4,

2014,

Jemsek

filed

a

petition

for

discretionary

review with the Supreme Court of North Carolina.
2

Although Jemsek mentioned due process violations during
the state litigation, he did not base his claims on the
allegations presented to us.
It does not appear that Jemsek
challenged the 2008 letter in the state litigation.
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During June of 2014, while his petition for discretionary
review was pending, Jemsek learned that Rhyne may have had a
conflict of interest when she participated in the disciplinary
process that led up to the 2006 order and the 2008 letter.
Rhyne

was,

at

the

same

time,

a

paid

consultant

to

BCBSNC.

Jemsek did not bring this fact to the attention of the Supreme
Court of North Carolina through a procedural mechanism available
to him.
C.
With his petition for discretionary review still pending in
state court, on September 9, 2014, Jemsek filed the instant suit
in federal district court against the State of North Carolina,
the

Board,

and

former

and

current

Board

members

in

their

official and individual capacities (collectively, “Defendants”).
The

complaint

alleged

that

bias

infected

the

state

medical

license disciplinary proceedings in violation of his due process
right

to

an

impartial

tribunal.

Jemsek

sought

declaratory

relief under 28 U.S.C. § 2201 that the 2006 order and 2008
letter were unconstitutional and an injunction under 42 U.S.C. §
1983

rescinding

them.

In

October

and

November

of

2014,

Defendants moved to dismiss Jemsek’s federal complaint.
On December 18, 2014, the Supreme Court of North Carolina
denied Jemsek’s petition for discretionary review, thus ending

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the state court litigation.

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In re Jemsek, 367 N.C. 789, 766

S.E.2d 623 (2014).
Subsequently, on March 20, 2015, the district court granted
the Defendants’ motions to dismiss in the instant suit.

The

district

the

former

court
Board

found

that

members

Jemsek

because

lacked

they

standing

could

not

to

sue

redress

his

injuries; they had no authority to comply with an injunction to
rescind a Board order and a declaratory judgment would have no
legal effect as to these individuals.
found

that

the

Eleventh

Amendment

The district court also

otherwise

barred

Jemsek’s

claims because Jemsek alleged past violations of his due process
rights

and

did

not

seek

prospective

relief.

Jemsek

timely

appealed on April 16, 2015.
D.
Jemsek’s arguments have narrowed on appeal.

Jemsek now

concedes that the Eleventh Amendment bars his claims against the
State of North Carolina and the NCMB, and he has abandoned those
claims.
It

Appellant’s Br. at 9; ECF Nos. 22, 25.
appears

that

Jemsek

has

also

abandoned

his

claims

against current and former Board members in their individual
capacities.
suing

former

He clarifies in his opening brief that he is only
Board

members

Appellant’s Br. at 44–45.
only states

that

he

seeks

in

their

official

capacities.

As for current Board members, Jemsek
injunctive
7

relief

against

them

in

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official

otherwise.

Any

capacities.
effort

to

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Id.
seek

at 46.

It

declaratory

could

relief

not
from

be
the

current Board members in their individual capacities would fail
to state a claim because such a declaration would have no legal
effect

on

those

individuals.

We

therefore

agree

with

the

district court’s conclusion that Jemsek withdrew any individual
capacity claims, and proceed to address his arguments involving
current and former Board members in their official capacities.

II.
The

issues

of

standing

and

Eleventh

Amendment

immunity,

including the Ex parte Young exception, raise questions of law
that we review de novo.

See Cooksey v. Futrell, 721 F.3d 226,

234 (4th Cir. 2013) (lack of standing); Hutto v. S.C. Ret. Sys.,
773 F.3d 536, 542 (4th Cir. 2014) (Eleventh Amendment immunity);
CSX Transp., Inc. v. Bd. of Pub. Works of State of W. Va.,
138 F.3d 537, 541 (4th Cir. 1998) (Ex parte Young exception). 3
A.
As we explain below, we conclude that the district court
correctly

dismissed

Jemsek’s

claims

3

for

injunctive

and

Defendants argued below that the district court should
abstain under Younger v. Harris, 401 U.S. 37 (1971).
The
district court did not address this argument. Because we affirm
on the alternative, dispositive grounds of Article III standing
and Eleventh Amendment immunity, we need not address this issue.
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declaratory relief against the former Board members for lack of
standing.
For

Article

III

standing,

“[t]he

party

invoking

federal

jurisdiction bears the burden of establishing” (1) injury in
fact, (2) causation, and (3) redressability.
of Wildlife, 504 U.S. 555, 561 (1992).

Lujan v. Defenders

For an injury to satisfy

the redressability prong, “it must be ‘likely,’ as opposed to
merely ‘speculative,’ that the injury will be ‘redressed by a
favorable decision.’”

Id. (quoting Simon v. Eastern Ky. Welfare

Rights Org., 426 U.S. 26, 38 (1976)).
itself,

a

declaratory

judgment

We have held that “[b]y

cannot

satisfies the third standing prong.

be

the

redress

that

Rather, plaintiffs must

identify some further concrete relief that will likely result
from

the

declaratory

judgment.”

Comite

de

Apoyo

a

los

Trabajadores Agricolas (CATA) v. U.S. Dep’t of Labor, 995 F.2d
510, 513 (4th Cir. 1993).
Here, whatever authority the former Board members had at
the time of the 2006 order and the 2008 letter, they have none
now.

Jemsek

enforced
at 38,

acknowledges

against

45–46.

the

former

Having

that

injunctive

Board

identified

members.
no

other

relief

cannot

Appellant’s
relief

be
Br.

besides

a

declaratory judgment that the former Board members can provide,
Jemsek thus effectively concedes that he lacks standing to sue
them.
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B.
The district court also correctly concluded that Jemsek’s
claims do not fit within the Ex parte Young exception to the
Eleventh Amendment.
The

Eleventh

Amendment

bars

suits

in

federal

court

citizens against unconsenting states and state agencies. 4

by
See

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100
(1984).

Eleventh Amendment immunity extends to state officers

sued in their official capacities.
jurisdictional

bar

relief sought.”
The

applies

See id. at 101–02.

regardless

of

the

nature

“This
of

the

Id. at 100.

doctrine

of

Ex

parte

Young,

209

U.S.

123

(1908),

provides a “critical exception” to Eleventh Amendment immunity:
“[F]ederal courts may exercise jurisdiction over claims against
state

officials

by

persons

at

risk

of

or

suffering

from

violations by those officials of federally protected rights, if
(1) the violation for which relief is sought is an ongoing one,
and

(2)

the

relief

sought

is

only

4

prospective.”

Republic

of

The Eleventh Amendment provides: “The Judicial power of
the United States shall not be construed to extend to any suit
in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.” U.S. Const. amend. XI. Despite
these express terms, the Supreme Court has interpreted this
amendment also to preclude citizens from bringing suits in
federal court against their own states.
Hans v. Louisiana,
134 U.S. 1, 13 (1890).
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Paraguay v. Allen, 134 F.3d 622, 627 (4th Cir. 1998).

The

theory behind this exception is that a state cannot authorize
its

officers

stripped
consistent

to

of

violate

sovereign

with

the

federal

law,

immunity:
Eleventh

so

those

thus,

“a

Amendment,

officers

federal

may

are

court,

enjoin

state

officials to conform their future conduct to the requirements of
federal law.”
(1979)).

Id. (quoting Quern v. Jordan, 440 U.S. 332, 337

“In determining whether the doctrine of Ex parte Young

avoids an Eleventh Amendment bar to suit, a court need only
conduct a ‘straightforward inquiry into whether [the] complaint
alleges an ongoing violation of federal law and seeks relief
properly characterized as prospective.’”

Verizon Md., Inc. v.

Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002) (quoting
Idaho

v.

(1997)).

Coeur

d’Alene

“[T]he

Tribe

exception

of

is

Idaho,

narrow:

521
It

U.S.

applies

261,
only

296
to

prospective relief, [and it] does not permit judgments against
state officers declaring that they violated federal law in the
past . . . .”
Inc.,

506

U.S.

P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy,
139,

146

(1993).

“[C]onjecture

regarding

discrete future events” does not suffice to create an ongoing
violation.

DeBauche

v.

Trani,

191

F.3d

499,

505

(4th

Cir.

1999).
Jemsek argues that because the 2006 order and 2008 letter
remain on the record, there is an ongoing violation such that a
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declaratory judgment voiding those documents, and an injunction
rescinding

them,

would

qualify

as

prospective

relief.

This

contention fails under our established precedent.
In Paraguay, this court held that the Eleventh Amendment
barred

a

claim

plaintiff,

based

the

on

Republic

a

treaty

of

violation

Paraguay,

because

sought,

through

the
an

injunction and declaratory judgment, “the voiding of a final
state

conviction

134 F.3d

at

and

628.

sentence”

Paraguay

for

one

complained

of

that

its

citizens.

state

officials

violated federal law by failing to inform a Paraguayan citizen
convicted of a capital offense of his consular rights under a
treaty

and

to

notify

Paraguayan

officials

arrest, conviction, and sentence.
Paraguay

couched

its

request

of

that

person’s

We found that even though

for

relief

in

terms

of

a

declaratory judgment and injunction, this “d[id] not alter the
inescapable fact that its effect would be to undo accomplished
state action.”
Jemsek

Id.

The same is true here.

asserts

that

the

continued

existence

and

“publication” of the 2006 order and 2008 letter amount to an
ongoing constitutional violation.
25.

See Appellant’s Br. at 23,

But the 2006 order would only have suspended his license

for one year, even if the Board had not immediately stayed it.
Meanwhile, the 2008 letter was a one-time reprimand, and Jemsek
voluntarily

allowed

his

medical
12

license

to

become

inactive.

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That these disciplinary actions may have continuing consequences
(although, as we note below, Jemsek fails to concretely identify
them)

is

unfortunate

from

his

perspective.

But,

like

the

conviction at issue in Paraguay, even though the consequences of
any past violation may persist, invoking those effects does not
transform past state action into an ongoing violation.

Rather,

it is an attempt “to avoid the obvious fact that the actual
violation

alleged

continuing.”

is

a

past

event

that

is

not

itself

134 F.3d at 628.

Regardless of whether the allegations are true, the Board
is not continuing to violate Jemsek’s rights.

Jemsek admitted

at oral argument he has not sought reinstatement of his North
Carolina medical license as the Board’s rules allow.
Admin. Code 32B.1350.

21 N.C.

Jemsek has not plausibly alleged that the

Board is “continuing to prevent [him], either by action or nonaction,

from”

seeking

to

resume

his

state.

Paraguay, 134 F.3d at 628.

medical

practice

in

the

To the extent that Jemsek

suggests that the Board may subject him to discipline if he
returns to the state, see Appellant’s Br. at 4, 37, “[m]ere
conjecture is insufficient to transform a one-time event into a
continuing

governmental

practice

DeBauche, 191 F.3d at 505.

or

an

ongoing

violation.”

The disciplinary actions were one-

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time events, and the alleged due process violations occurred
“entirely in the past.”
The

Supreme

Court

Id. 5
has

acknowledged

that

“the

difference

between the type of relief barred by the Eleventh Amendment and
that permitted under Ex parte Young will not in many instances
be that between day and night.”
651, 667 (1974).

Edelman v. Jordan, 415 U.S.

But a “straightforward inquiry” reveals that

Jemsek’s claims are purely historical, not ongoing violations.
Verizon Md., 535 U.S. at 645.

Accordingly, we hold that the

Eleventh Amendment bars his claims.
Finally,

we

note

that

this

is

not

a

case

in

which

allegations of constitutional violations might escape judicial
review entirely.

Jemsek claims he discovered Rhyne’s alleged

5

Jemsek’s case differs from one in which this court has
found that termination of an employee counts as an “ongoing
violation” for Ex parte Young purposes.
In Coakley v. Welch,
877 F.2d 304 (4th Cir. 1989), the plaintiff sought the
injunctive remedy of reinstatement. In granting the relief, we
reasoned that the alleged official conduct, “while no longer
giving [the plaintiff] daily attention, continues to harm him by
preventing him from obtaining the benefits of [state agency]
employment.”
Id. at 307.
Jemsek alleges no similar, current
impact.
He seeks an injunction rescinding past state action-the 2006 order and the 2008 letter--that does not circumscribe
his current conduct.
The NCMB did not terminate his license;
Jemsek allowed his North Carolina medical license to become
inactive before the NCMB issued the 2008 letter.
The NCMB
merely conducted investigations that led to a suspended
disciplinary order and a one-time letter of reprimand. Although
Jemsek characterizes the documents as “license disciplinary
restrictions,” Appellant’s Br. at 25, they did not revoke his
license, nor do they prohibit him from seeking to resume his
medical practice in North Carolina.
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conflict

of

petition

Filed: 10/13/2016

interest

for

in

Pg: 15 of 16

June

discretionary

of

review

North Carolina was still pending.
current

claims

in

the

state

2014.
with

At
the

that

time,

Supreme

his

Court

of

Jemsek could have raised his

court

litigation

pursuant

to

Rule 60(b)(6) of the North Carolina Rules of Civil Procedure.
N.C. Gen. Stat. § 1A–1, Rule 60(b).

North Carolina allows a

state trial court to rule on a Rule 60(b) motion while an appeal
is pending and, if it is denied, allows consideration of that
claim on appeal as well.
(N.C. Ct. App. 2006).

Hall v. Cohen, 628 S.E.2d 469, 471
This court has recognized that North

Carolina Rule of Civil Procedure 60(b), which is substantially
similar to the federal rule, may provide an adequate remedy for
redressing constitutional violations.
804

F.2d

838,

840

(4th

Cir.

See Leonard v. Hammond,

1986)

(finding

that

habeas

petitioner could have presented federal due process claim and
sought relief in state court pursuant to Rule 60(b) and thus
failed to exhaust state remedies).
Jemsek

had

unconstitutional

an

opportunity

bias

in

state

reinstatement with the Board.

to

raise

court.

He

his

claims
apply

may

of
for

And if unsuccessful, he may seek

redress of any unfavorable action in state court.

“Under [our]

system of dual sovereignty, we have consistently held that state
courts

.

adjudicate

.

.

are

claims”

.
of

.

.

presumptively

federal
15

right.

competent

.

Tafflin

v.

.

.

to

Levitt,

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493 U.S. 455, 458 (1990).

Pg: 16 of 16

The federal courts are not the proper

forum for the claims Jemsek presents.

III.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.

16