Biggar v. Oregon Board of Optometry et al

Filing 102

Opinion and Order: For the reasons stated above, I GRANT in part the OBO Defendants' Motion for Summary Judgment 93 . I GRANT summary judgment to OBO Defendants on the federal due process and ADA claims (Claims 1 and 2). Because Claim 1 was t he only claim alleged against the individual Board members, this decision in effect dismisses Defendants Webber, Lynch, Cardenal, Tronnes, Louie, and Walker from this case. With only state law claims remaining against the Board and Defendants Sneed and Gander, I REMAND this case to Multnomah County Circuit Court. Signed on 6/26/2018 by Judge Michael W. Mosman. (kms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

DAVID BIGGAR,
No. 3:17-cv-00714-MO
Plaintiff,
OPINION AND ORDER
v.

OREGON BOARD OF OPTOMETRY, et al.,
Defendants.
MOSMAN,J.,
This matter comes before me on a Motion for Summary Judgment [93] filed by the
Oregon Board of Optometry ("the Board"), several Board members, and the executive director of
the Board (together the "OBO Defendants"). No party requested oral argument. For the reasons
below, I GRANT in part the OBO Defendants' Motion for Summary Judgment, and, with only
state law claims remaining, REMAND this case to Multnomah County Circuit Court.
BACKGROUND

I.

Undisputed factual background
A. Events of Fall 2015-March 2016
Prose plaintiff Dr. David Biggar has been an optometrist since 2006. Abrams Deel. [94]

Ex. A (hereinafter "Biggar Depo.") at 9-10. In 2012, he opened Eyes of Oregon LLC, with an
1 - OPINION AND ORDER

office in Lake Oswego and an office in Tillamook. Biggar Depo. at 9-10. In 2015, Dr. Biggar
and his wife divorced, and she retained custody of their children. Biggar Depo. at 73. In the
months after the divorce, Dr. Biggar cried in front of patients and physically collapsed at the
office. Biggar Depo., Ex. 110. Dr. Biggar stopped practicing optometry temporarily for about
three months in Fall 2015 and checked himself into a mental health facility for five days in
November 2015. Biggar Depo. at 73.
Dr. Joan Miller, an optometrist, former friend of Dr. Biggar, and previous defendant in
this lawsuit, became concerned in early 2016 about Dr. Biggar's conduct. From January to
March 2016, Dr. Biggar told Dr. Miller he wanted to have his organs harvested and thereby
commit suicide, sent threatening emails to a prospective buyer of his clinic, Dr. Kim Clark, and
failed to complete treatment records. Biggar Depo. at 72-73; id., Ex. 107. In light of this
conduct, Dr. Miller reported Dr. Biggar in an email to the Board on March 23, 2016.
Dr. Biggar' s colleague, Dr. Scott Iburg, also reported Dr. Biggar to the Board on March
28, 2016, detailing Dr. Biggar's suicidal thoughts, his threats to hit or kill Dr. Clark, an incident
in which Dr. Biggar screamed and swore at an employee while a patient was in the office, and
harassing emails Dr. Biggar sent after Dr. Iburg resigned. Biggar Depo., Ex. 110. Dr. Iburg
forwarded the Board an email on March 24 in which Dr. Biggar stated, "Alot [sic] of guys would
have picked up a machine gun and gone dancing at the mall by now." Biggar Depo., Ex. 109. Dr.
Iburg supplemented his report on March 29, 2016, to express his concerns that Dr. Biggar was
not properly completing glaucoma charts. Biggar Depo., Ex. 111.
B. March 2016 Board Actions

On March 30, 2016, the Board met at a specially called meeting to discuss the allegations
against Dr. Biggar. Sneed Deel. [95]

~

2. For this meeting, the Board gave notice to the general

public and specific notice to a list of people who previously requested notice of specially called
2 - OPINION AND ORDER

meetings. Sneed Deel. [95]

if 3. The Board directed its Executive Director, Defendant Shelley

Sneed, to communicate with Dr. Biggar to obtain further information, but did not make any final
decisions at the time. Sneed Deel. [95]

if 2.

Ms. Sneed then wrote two letters to Dr. Biggar on March 31, 2016. The first letter (Letter
A) stated that because of "reports of inability to practice and making threats of harm to yourself
and others, the Oregon Board of Optometry has opened an investigation into your fitness to
practice." Biggar Depo., Ex. 112. Letter A also gave Dr. Biggar 48 hours to sign an Interim
Consent Order by which he would have to agree to "stop practicing optometry until [his] mental
health [was] assessed, a treatment plan [was] written by a professional, and [he] show[ed] a
willingness and commitment to follow the treatment plan." Biggar Depo., Ex. 112. Otherwise,
Letter A warned, the Board would undertake an emergency suspension of his Oregon optometry
license. Biggar Depo., Ex. 112.
The second letter (Letter B) did not mention the Interim Consent Order or an emergency
suspension. Biggar Depo., Ex. 113. Letter B requested Dr. Biggar send information about certain
glaucoma records within 21 days of the letter. Biggar Depo., Ex. 113. Letter B also stated that
Dr. Biggar would not hear from the Board right away, as the next Board meeting was not until
May 6. Biggar Depo., Ex. 113.
Dr. Biggar declined to sign the Interim Consent Order included in Letter A, but did meet
with Dr. Les Goldmann, a clinical psychologist, to have his mental health assessed. After a threehour evaluation on April 1, Dr. Goldmann issued a report on April 4, stating that it was his
opinion, "based upon the seriousness of the complaints, Dr. Biggar' s inconsistent reporting as
well as his lack of insight," that Dr. Biggar was not fit to practice optometry, at least in the "very
short term." Biggar Depo., Ex. 114 at 7.

3 - OPINION AND ORDER

C. April 2016 Emergency Orders
The next day, the Board issued an Order of Emergency Suspension (Emergency Order),
detailing the allegations against Dr. Biggar and prohibiting him from practicing optometry until
further notice from the Board. Biggar Depo., Ex. 115. Some of these specific allegations
included Dr. Biggar's use of profanity in the office, his collapse in September 2015, and his
failure to properly complete glaucoma charts. Biggar Depo., Ex. 118.
The Emergency Order stated that Dr. Biggar had a right to demand a hearing in front of
an administrative law judge:
Licensee has a right to demand that a hearing be held as soon as practicable to
contest the emergency suspension order. Such a request must be made in writing
and must be received in the Board's office no more than 90 days after the
effective date of this order. If not so received, Licensee's right to a hearing under
ORS chapter 183 will be waived. . .. Licensee may mail a request for hearing to
Oregon Board of Optometry, 1500 Liberty St SE, Suite 210, Salem, OR 97302 or
fax a request to 503.399.0705.
Biggar Depo., Ex. 115 at 4-5. The Emergency Order also warned Dr. Biggar: "[i]fyou request a
hearing, but later withdraw your request for hearing, fail to appear at the hearing, or notify the
Board or the administrative law judge that you do not intend to appear at the hearing, you will
have waived your right to a hearing." Biggar Depo., Ex. 115 at 5. On April 15, the Board issued
an Amended Emergency Order, which added a sentence requesting that Dr. Biggar pay the costs
of the disciplinary proceedings but otherwise did not alter the content from the original
Emergency Order. Biggar Depo., Ex. 117.
Dr. Biggar responded on April 5 via email to Ms. Sneed and others, proposing several
plans for his reinstatement. In the alternative, he wrote, "I would welcome an emergency inperson meeting with the Board[']s Legal Counsel, myself, and my own legal representation, at
your office in Salem, if this is convenient for your team, and prior to April 6@ 9am." Biggar
Depo., Ex. 116. Although Dr. Biggar's operative Complaint alleges he asked for a hearing on
4 - OPINION AND ORDER

April 13 on the phone and in an email, these allegations do not appear in the record. Other than
the April 5 email, Dr. Biggar testified that he does not recall asking for a hearing in writing.
Biggar Depa. at 155.

D. May 2016 Consent Order and Aftermath
Dr. Biggar signed a Consent Order on May 5, 2016, after advice from legal counsel.
Biggar Depa., Ex. 118. The Consent Order required Dr. Biggar to seek mental health treatment
and suspended him from practice until cleared by a mental health professional. Biggar Depa., Ex.
118. It also stated: "Licensee, aware of his right to a hearing and judicial review, does hereby
waive those rights and agrees to the entry of this Consent Order." Biggar Depa., Ex. 118 at 2.
Finally, the Consent Order noted, "[t]he Emergency Order is withdrawn and this Consent Order
replaces all previous Board orders, including the Emergency Order." Biggar Depa., Ex. 118 at 5.
After signing the Consent Order, Dr. Biggar did not attend the Board meeting scheduled on May
6, 2016. Biggar Depa. at 152-53. Dr. Biggar complied with the Consent Order and was allowed
to resume practice on June 20, 2016. Biggar Depa. at 166-67.
On May 24, 2016, Dr. Biggar, via counsel, asked Ms. Sneed to take down the Amended
Emergency Order from the Board website. Sneed Deel. [95]

if 8. Ms. Sneed replied that she had

no authority to do so, but that the Board would address the issue at the next meeting. Sneed Deel.
[95]

if 8. The Board then did so at a September 6, 2016 meeting, and voted to take down the

Amended Emergency Order. Sneed Deel. [95]

if 9. Additionally, at the September 2016 Board

meeting, the Board voted to require Dr. Biggar to complete 18 hours of glaucoma education by
his license renewal date of November 1, 2017. Biggar Depa., Ex. 119.
Dr. Biggar' s Lake Oswego practice closed in May 2017, and the Tillamook practice
closed in October 2017. Biggar Depa. at 45. Dr. Biggar did not complete the required 18 hours
of glaucoma education and let his license lapse on November 1, 2017. Biggar Depa. at 179.
5 - OPINION AND ORDER

Although it appears Dr. Biggar's license had expired, the Board also suspended his license on
November 13, 2017 for failure to complete the required classes. Sneed Deel. [95], Ex. C.

II.

Procedural History
Dr. Biggar filed this suit in state court in March 2017 and Defendants removed to this

court in May 2017. Notice of Removal [l]. In his Third Amended Complaint (TAC) (filed in
November 2017 when he was still represented by counsel), Dr. Biggar alleges nine claims for
relief against the Board and nine individual defendants: Ms. Sneed, six board members (Webber,
Lynch, Cardenal, Tronnes, Louie, and Walker), former employee Ingrid Gander, and Dr. Joan
Miller. TAC [43]. These claims are:
•
•
•
•
•

•
•
•
•
TAC [43]

Claim 1: Violation of Due Process (against the Board, Sneed, Webber, Cardenal,
Tronnes, Louie, and Walker)
Claim 2: Disability Discrimination under the ADA (against the Board)
Claim 3: Breach of Duty of Confidential Information and Notice of Prior
Disclosure under ORS 683.165, 676.180 (against the Board and Sneed)
Claim 4: Violation of Duty of Notice for Public Hearings under ORS 192.610,
683.155 (against the Board and Sneed)
Claim 5:
o Count I: Breach of Contract (against the Board and Sneed)
o Count II: Breach of Implied Covenant of Good Faith and Fair Dealing
(against the Board and Sneed)
Claim 6: Defamation (against the Board, Gander, Sneed, and Miller)
Claim 7: Intentional Infliction of Emotional Distress (against the Board, Gander,
Sneed, and Miller)
Claim 8: Intentional Interference with Economic Relations (against the Board,
Gander, Sneed, and Miller)
Claim 9: False Light (against the Board and Sneed)

ifif 54-107.

Dr. Miller filed an Anti-SLAPP Motion [54], which I granted [74]. She is therefore no
longer a defendant in this case. There is an automatic stay in this case as to Ms. Gander, pursuant
to her pending bankruptcy proceedings. Notice [12]. The remaining OBO Defendants filed the

6 - OPINION AND ORDER

present Motion for Summary Judgment, arguing summary judgment should be granted to the
OBO Defendants on each of Dr. Biggar's claims.

LEGAL STANDARD
Summary judgment is proper "if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P.
56(a). The initial burden for a motion for summary judgment is on the moving party to identify
the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Once that burden is satisfied, the burden shifts to the non-moving party to demonstrate,
through the production of evidence listed in Fed. R. Civ. P. 56(c)(l), that there remains a
"genuine issue for trial." Id. at 324. The non-moving party may not rely upon the pleading
allegations, Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995) (citing Fed.
R. Civ. P 56(e)), or "unsupported conjecture or conclusory statements," Hernandez v. Spacelabs

Medical Inc., 343 F .3d 1107, 1112 (9th Cir. 2003). All reasonable doubts and inferences to be
drawn from the facts are to be viewed in the light most favorable to the nonmoving party.

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

DISCUSSION
I.

Dismissal of Defendant Jessica Lynch
As the OBO Defendants note, Defendant Jessica Lynch, a Board member, is not named

in any claim. She is therefore dismissed as a defendant, although the following absolute
immunity analysis would also apply to her as a Board member.

II.

Claim 1: Violation of Due Process
Dr. Biggar argues he was denied due process by the Board, Sneed, Webber, Cardenal,

Tronnes, Louie, and Walker because: (1) the Board failed to notify him of his hearing rights; (2)
the Board failed to allow for a hearing after he requested one; and (3) the Board failed to fully
7 - OPINION AND ORDER

investigate the complaints against him before suspending his license. TAC [43]

iii! 53-56. He

seeks non-economic and economic damages for these alleged violations. TAC [43]

iii! 57-59. Dr.

Biggar brings this claim pursuant to 42 U.S.C. § 1983.
The OBO Defendants argue I should grant summary judgment to them on Dr. Biggar's
claim for due process for numerous reasons. One argument is because the Board and its members
are entitled to absolute immunity for their quasi-judicial and prosecutorial actions. Because I find
absolute immunity dispositive of this claim, 1 I do not address the OBO Defendants' other
arguments.
"Absolute immunity is generally accorded to judges and prosecutors functioning in their
official capacities." Olsen v. Idaho State Bd. ofMed., 363 F.3d 916, 922 (9th Cir. 2004). "Such
immunity assures the independent functioning of executive officials acting in a quasi-judicial
capacity, thereby ensuring that they can exercise their adjudicative discretion without fear of
intimidation or harassment." Id. at 923. Courts have extended these protections in cases brought
under 42 U.S.C. § 1983 to certain state officials, including "agency representatives performing
functions analogous to those of a prosecutor or a judge." Id. This immunity may extend not only
to the officials but also to the agency itself. See id. at 926.
To decide whether absolute immunity is warranted in a given case, courts utilize a
"functional approach," as defined in Butz v. Economou, 438 U.S. 478 (1978). "In Butz, the Court
outlined several nonexclusive factors that embody characteristics of the judicial process and aid
in the determination of whether to grant absolute immunity." Olsen, 363 F.3d at 923. These
factors include:
(a) [T]he need to assure that the individual can perform his functions without
harassment or intimidation; (b) the presence of safeguards that reduce the need for
1

I previously concluded that the Board was not immune from suit as an arm of the State of Oregon [3 2],
but quasi-judicial or quasi-prosecutorial absolute immunity is a separate inquiry.

8 - OPINION AND ORDER

private damages actions as a means of controlling unconstitutional conduct; (c)
the [agency's] insulation from political influence; (d) the importance of precedent;
(e) the adversary nature of the process; and (f) the correctability of error on
appeal.

Cleavinger v. Saxner, 474 U.S. 193, 202 (1985) (citing Butz, 438 U.S. at 512). The Ninth Circuit
and several other Circuits have applied the Butz factors to conclude that absolute immunity
applied to certain state medical boards and their members. See, e.g., Olsen, 363 F.3d at 923;

Mishler v. Clift, 191F.3d998, 1004 (9th Cir. 1999); Wang v. NH Ed. of Registration in Med.,
55 F.3d 698 (1st Cir. 1995); Watts v. Burkhart, 978 F.2d 269 (6th Cir. 1992) (en bane);

Bettencourt v. Ed. of Registration in Med., 904 F .2d 772 (1st Cir. 1990); Horwitz v. State Ed. of
Med. Exam 'rs, 822 F.2d 1508 (10th Cir. 1987).
After addressing the Butz factors, a court next must decide the scope of immunity in a
given case, as "absolute immunity applies only to those actions which are judicial or closely
associated with the judicial process." Olsen, 363 F.3d at 926. I address each of these steps in
tum.
A. The Butz factors
i.

Need to assure that the individual can perform his functions without
harassment or intimidation

The Board is "a semi-independent state agency" charged with the regulation and
discipline of optometry professionals in Oregon. O.R.S. §§ 683.250; 683.270. The Board's
powers include granting licenses and imposing sanctions such as "[r]evok[ing], suspend[ing] or
refus[ing] to renew a license." O.R.S. §§ 683.140; 683.270. In Olsen, the Ninth Circuit reiterated
that the role of a medical board to discipline physicians and other medical personnel invoked the
need to assure freedom from harassment. The court concluded, "in view of the public interest of
ensuring quality health care, there is a 'strong need' to make certain that Board Members can

9 - OPINION AND ORDER

perform these disciplinary functions without the threat of harassment or intimidation." Olsen,
363 F.3d at 924 (quoting Mishler, 191 F.3d at 1005). This is particularly true where a "Board's
powers to discipline and potentially suspend a physician's license 'are acts that are likely to
stimulate numerous damages actions' by disgruntled physicians." Gambee v. Cornelius, No. 10cv-6265-AA, 2011WL1311782, at *4 (D. Or. Apr. 1, 2011) (quoting Mishler, 191 F.3d at
1005). Similarly, here the Board and its members perform quasi-judicial disciplinary functions
that are likely to provoke "numerous damages actions"; immunity would therefore afford the
Board protection from harassment. See id. ("Immunity therefore ensures that the Board can
conduct these important activities without fear of harassment, in order to effectively address the
strong public interest in quality health care."). This factor weighs in favor of granting absolute
immunity to the Board and its members.
ii.

The presence of safeguards

In addressing this factor in Mishler and Olsen, the Ninth Circuit found it critical that the
state medical board operated under a comprehensive statutory scheme and was governed by the
state Administrative Procedure Act (APA). Olsen, 363 F.3d at 924; Mishler, 191 F.3d at 100506. In Gambee, this Court concluded that this factor weighed in favor of applying absolute
immunity to the Oregon Medical Board (OMB), as the OMB is governed by a comprehensive
statutory scheme and Oregon's APA, found at O.R.S. chapter 183. Gambee, 2011WL1311782,
at *4. Similarly, here the Board is governed by a comprehensive statutory scheme, which details
the Board's powers, duties, and restrictions on those powers and duties. O.R.S. §§ 683.010 et
seq. Furthermore, like in Gambee, the Oregon APA governs the Board's disciplinary

proceedings:
Where the Oregon Board of Optometry proposes to refuse to issue a license, or
proposes, where written charges have been filed with the board which the board
considers sufficient to warrant a hearing, to impose any disciplinary sanction or
10- OPINION AND ORDER

civil penalty under ORS 683.140, opportunity for hearing shall be accorded as
provided in ORS chapter 183.
O.R.S. § 683.155(1). As this Court noted in Gambee, these protections include the opportunity
for a contested case hearing in front of an administrative law judge (ALJ), where a licensee may
retain counsel, present evidence, and "rules of privilege, relevance, documentary evidence, and
cross-examination generally apply." Gambee, 2011WL1311782, at *4 (citing O.R.S.
§§ 183.615(1), 183.625(2), 183.417(1), § 183.450). As in Gambee, the Board's emergency
suspension procedure does not allow for a pre-deprivation hearing, but the Board must adhere
(and did so in this case) to the Oregon APA's provision which "allows emergency suspension of
licenses in cases of 'serious danger to the public health or safety' and grants licensees a right to
demand contested case hearings in response." Gambee, 2011WL1311782, at *4 (quoting O.R.S.
§183.430(2)). Final orders must be written and include findings of fact and conclusions oflaw.
O.R.S. § 183.470(1)-(2). Importantly, licensees have the right to seek judicial review in
accordance with the Oregon APA. O.R.S. § 683.155(2).
Although Dr. Biggar alleges that the Board violated these procedures by failing to give
him notice or a hearing, "[i]t is the available procedures, not the manner in which they are
exercised in a particular case, that is the critical inquiry for determining whether there are
safeguards that reduce the need for private damages actions." Mishler, 191 F.3d at 1006. In this
case, as this Court concluded in Gambee, "the panoply of procedural safeguards on Board action
provided by Oregon statutes reduces the need for private damages actions." Gambee, 2011 WL
1311782, at *5. This factor weighs in favor of granting absolute immunity to the Board and its
members.

11 - OPINION AND ORDER

iii.

OBO's insulation from political influence

The Olsen court concluded that "the structure of the Board and 'the procedural
requirements of their decision-making process"' are important considerations in assessing
insulation from political influence. Olsen, 363 F.3d at 925 (quoting Mishler, 191 F.3d at 1007).
Here, the Board is composed of four practicing doctors of optometry and one non-practitioner
public member, all of whom are chosen by the governor. O.R.S. § 683.250(1)(b). In assessing the
similar structure of the Idaho State Board of Medicine, composed of seven doctors, two public
members, and the Idaho State Police director, the Ninth Circuit concluded "the risk that Board
members will act out of financial self-interest is diminished by the presence of non-physicians on
the Board." Olsen, 363 F.3d at 925. Additionally, here individuals may not be members of the
Board if they are financially interested or otherwise directly associated with any school of
optometry, and members of the board may not be financially interested in purchases, contracts,
or sales before the Board. O.R.S. § 683.260. Finally, like in Olsen and Gambee, the state APA
imposes procedural safeguards. See Olsen, 363 F.3d at 925; Gambee, 2011 WL 1311782, at *5.
The structure of the Board and the procedural safeguards in place provide sufficient insulation
from political influence. This factor weighs in favor of granting absolute immunity to the Board
and its members.

iv.

Precedent, adversary nature, and correctability

The Oregon AP A requires the application of precedent during judicial review, provides
for adversarial proceedings, and ensures correctability via judicial review. See Gambee, 2011
WL 1311782, at *5 (citing O.R.S §§ 183.417(1), 183.450(3), 183.480, 183.482). As noted above,
these provisions apply to the Board here. These three factors weigh in favor of granting absolute
immunity to the Board and its members.

12 - OPINION AND ORDER

In sum, the Butz factors weigh in favor of applying absolute immunity to "the Board, ...
its members, [and] professional staff." See Olsen, 363 F.3d at 925.

B. The scope of immunity
I next must decide which of the Board's actions were "judicial or closely associated with
the judicial process." Olsen, 363 F.3d at 926. In this claim, Dr. Biggar challenges the Board's
alleged failure to notify him of his hearing rights, failure to allow for a hearing, and failure to
fully investigate the complaints against him. TAC [43]

ifif 53-56. Like in Olsen, these decisions

are all part of "the eventual decision" of suspending Dr. Biggar's license and are therefore
"directly related to [the Board's] adjudicatory function and the ultimate resolution of the
disciplinary dispute at issue." Olsen, 363 F.3d at 928. "Such acts are inextricably intertwined
with [defendants'] statutorily assigned adjudicative functions and are entitled to the protections
of absolute immunity." Id.
Given that absolute immunity applies to each of the OBO Defendants' actions challenged
by Dr. Biggar in this claim, I GRANT summary judgment to the OBO Defendants on Dr.
Biggar's due process claim.

III.

Claim 2: Disability Discrimination under the Americans with Disabilities Act
Dr. Biggar alleges the Board discriminated against him in violation of the Americans

with Disabilities Act (ADA) under 42 U.S.C. § 12132, by deciding to suspend his license and
publicly reprimand him "without proper investigation or discussion of any accommodation."
TAC [43]

if 64. The OBO Defendants argue that Dr. Biggar cannot establish a prima facie case

of discrimination under the ADA.
The ADA provides that "no qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the benefits of the services, programs,
or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C.
13 - OPINION AND ORDER

§ 12132. In this context, a "qualified individual with a disability" is a person "with a disability
who, with or without reasonable modifications to rules, policies, or practices, ... meets the
essential eligibility requirements for the receipt of services or the patiicipation in programs or
activities provided by a public entity." Id § 12131 (2).
To establish a prima facie case of discrimination based on his disability in violation of the
ADA, Dr. Biggar must produce evidence showing: (1) he was an individual with a disability; (2)
he was qualified to receive the "benefit of the services" of the Board, i.e. to maintain his
optometry license; and (3) he was "denied the benefits of the services, programs, or activities of
a public entity"; or (4) he was subjected to discrimination by a public entity. See 42 U.S.C.
§§ 12131(2), 12132; Wong v. Regents of Univ. of Cal., 192 F.3d 807, 816, 822 (9th Cir. 1999), as

amended (Nov. 19, 1999).
Assuming Dr. Biggar is an individual with a disability and was denied the benefits of the
services of the Board, a public entity, I nevertheless conclude he has failed to establish that he
was qualified to receive the services of the Board at the time it suspended his license. "[A]n
individual is qualified to participate in a program if he meets the essential eligibility
requirements for participation in the program, with or without reasonable accommodations."

McElwee v. Cty. of Orange, 700 F.3d 635, 643 (2d Cir. 2012) (citing 42 U.S.C. § 12131(2)).
"Lack of impairment" is an essential eligibility requirement to remain licensed as an
optometrist in Oregon. See O.R.S. § 683.140(g). As is relevant here, O.R.S. § 676.303(1) defines
impairment as "an inability to practice with reasonable competence and safety due to ... a
mental health condition." The Board is specifically charged with disciplining optometrists for
"impairment" in the profession, as the Board did in Dr. Biggar's case. O.R.S. § 683.140(g);
Biggar Depo., Exs. 117, 118. And Oregon law requires that "[a]ll health professional regulatory

14-0PINION AND ORDER

boards shall operate with the primary purposes of promoting the quality of health services
provided, protecting the public health, safety and welfare by ensuring that licensees practice with
professional skill and safety and addressing impairment among licensees." O.R.S. § 676.303(2).
But Dr. Biggar does not claim or put forth evidence that he was able to practice
optometry with reasonable competence and safety at the time the Board suspended his license.

Cf Hasan v. Med Bd of Cal., 279 F.3d 1167, 1173 (9th Cir. 2002) (concluding at motion to
dismiss stage that physician adequately alleged he was qualified, where he alleged "that by the
time of the Medical Board's decision he had received treatment for his disability and was
capable of practicing medicine"). The only evidence in the record that provides any information
on Dr. Biggar's ability to practice optometry when the Board suspended his license in April 2016
is Dr. Goldmann's report. Biggar Depo., Ex. 114 at 7. And Dr. Goldmann expressly stated that
Dr. Biggar was not fit to practice optometry at the time. Biggar Depo., Ex. 114 at 7.
Dr. Biggar' s other evidence does not speak to his ability to practice at the time of the
suspension. Dr. Biggar points to a report by Dr. Conti, who concluded that Dr. Biggar was fit to
practice if he continued mental health treatment. Biggar Affidavit [98]; Conti Report [98]. But
Dr. Conti's report is dated June 12, 2016, immediately before the Board reinstated Dr. Biggar's
license on June 20, 2016, and several months after the Board suspended his license. Therefore,
Dr. Conti's report does not speak to Dr. Biggar's capability to practice optometry at the time of
his suspension.
It also appears that Dr. Biggar disputes the claim that he was a danger to patients. Dr.

Goldmann did conclude, "Dr. Biggar did not present any symptoms during the interview
suggestive of imminent danger to patients or employees." Biggar Depo., Ex. 114 at 5. However,
the definition of impairment and the Board's orders are broader than danger to others;

15 - OPINION AND ORDER

impairment means the inability to practice "with reasonable competence and safety." O.R.S.
§ 676.303(1). Therefore, even if Dr. Biggar was not a danger to patients, he could still be
incapable of practicing optometry at the time of his suspension.
I conclude that Dr. Biggar has not put forth evidence that he was a "qualified" individual
under the ADA, because he has not presented evidence to dispute that he was capable of
practicing optometry "with reasonable competence and safety" at the time of his suspension. His
prima facie case of discrimination therefore fails, and I GRANT summary judgment to the Board
on this claim.

IV.

Remaining state law claims
This case was removed from state court, and given the dismissal of the due process and

ADA claims, only state law claims remain. Generally, "[w]here a district court dismisses a
federal claim, leaving only state claims for resolution, it should decline jurisdiction over the state
claims." Wade v. Reg'l Credit Ass'n, 87 F.3d 1098, 1101 (9th Cir. 1996). "[I]n the usual case in
which all federal-law claims are eliminated before trial, the balance of factors to be considered
under the pendent jurisdiction doctrine-judicial economy, convenience, fairness, and comitywill point toward declining to exercise jurisdiction over the remaining state-law claims."

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988). Here, I conclude these factors
point in favor of remand: the remaining state law claims are not similar to the federal claims, and
some claims, particularly Claim 3 for breach of duty of confidential information under O.R.S.
§§683.165, 676.180, involve complex questions of state law. I therefore conclude that remand is
warranted on the remaining state law claims.

2

2

Although there is an automatic stay in this case as to Ms. Gander, the Ninth Circuit concluded in an unpublished
case that an automatic stay is not violated by dismissal of claims where "the determination regarding dismissal does
not involve the merits of the case." Lindley Contours, LLC v. AABB Fitness Holdings, Inc., 414 F. App'x 62, 63 n. l
(9th Cir. 2011) (unpublished) (citing Dean v. Trans World Airlines, Inc., 72 F.3d 754, 756 (9th Cir. 1995)). Here, the

16 - OPINION AND ORDER

CONCLUSION
For the reasons stated above, I GRANT in part the OBO Defendants' Motion for
Summary Judgment [93]. I GRANT summary judgment to OBO Defendants on the federal due
process and ADA claims (Claims 1 and 2). Because Claim 1 was the only claim alleged against
the individual Board members, this decision in effect dismisses Defendants Webber, Lynch,
Cardenal, Tronnes, Louie, and Walker from this case. With only state law claims remaining
against the Board and Defendants Sneed and Gander, I REMAND this case to Multnomah
County Circuit Court.

IT rs

so ORDERED.

DATED this

day of June, 2018.

MICHAELW.M
Chief United Sta'

decision to decline supplemental jurisdiction does not involve the merits of the case and "has no impact on the
debtor's assets, does not impact the relative position of creditors, and would not interrupt debtor's 'breathing spell'
and thus does not conflict with the purposes of the automatic stay." Id. This order ofremand therefore applies to the
claims against Ms. Gander.

17 - OPINION AND ORDER