Clowdis v. Silverman et al
Filing
77
MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 5/5/2016. Copy mailed to Pro Se Plaintiff. (jsmi, )
IN THE UNITED
STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
WILLIAM G. CLOWDIS,
JR., M.D.,
Plaintiff,
V.
Civil Action No.
JOEL JEREMY SILVERMAN, M.D.,
3:15CV128
et al.,
Defendants.
MEMORANDUM OPINION
This
matter
is
before
Defendants'
MOTION
Defendants'
the
TO DISMISS
MOTION TO DISMISS
Court
{Docket
on
Nos.
(Docket No.
DISMISS
DISMISS
(Docket
(Docket
Nos.
No.
24,
24,
29),
Practitioner Database's MOTION TO DISMISS
the reasons stated below,
the
Commonwealth
55),
the
VCU
and the National
(Docket No.
49).
For
the Commonwealth Defendants' MOTION TO
55),
29),
the
and
Database's MOTION TO DISMISS
VCU
the
Defendants'
National
(Docket No.
49)
MOTION
TO
Practitioner
will be granted in
their entirety.
BACKGROUND
Plaintiff William G.
Clowdis,
Jr.,
M.D.
("Clowdis")
states
that he is a former physician who earned a license to practice
medicine
and
surgery
Commonwealth in 1991.
in
obstetrics
(2d Am. Compl.,
1
and
gynecology
Docket No.
15,
in
the
5,
22,
26).
Due to a prolonged illness between 2001 and 2004,
voluntarily inactivated his
Compl.
22,
26).
license beginning in 2001.
mental
illness
symptoms.
and
while
medications,
residence
(2d
under
Clowdis
that
court.
(2d Am.
placed
Compl.
in
Am.
the
was
resulted
Clowdis
{2d Am.
Clowdis's illness was exacerbated by the use
of doctor-prescribed medications
and
Clowdis
induced adverse physical
Compl.
23,
influence
of
in
a
in
charge
felony
25,
diversion
28.).
24).
these
involved
24,
a
that
an
During
prescription
incident
in
his
at
Colorado
his
state
The Colorado state court
program,
whereby
his
felony
conviction would be erased contingent upon successful completion
of a period of court supervision.
(2d Am. Compl. SIf 25, 28 n.2).
Clowdis was taken off his prescription medications in 2004,
and
his treating physician cleared him to return to the practice of
medicine in 2005.
Colorado
state
(2d Am.
court
Compl.
SI 26).
diversion program,
Clowdis
which
felony charge being dismissed with prejudice.
28) .
While
being
weaned
off
his
completed his
resulted
(2d Am.
prescriptions,
in
his
Compl.
f
Clowdis
voluntarily enrolled in a physician health monitoring program in
Colorado
(2d Am.
In
program,
West
known
as
Compl. f
December
Clowdis
Virginia
Colorado
Physician
Health
Program
("CPHP").
Colorado
diversion
27).
2006,
after completing the
received
hospital.
an
offer
(2d Am.
to
Compl.
work
f
as
29).
an
OB/GYN
CHCP
could
at
a
not
monitor
Clowdis
once
he
left
Colorado,
and
requested
that
Clowdis notify the appropriate monitoring program in Virginia,
the
state
in
which
he
was
licensed.
(2d
Am.
Compl.
SI
30) .
Clowdis disclosed his participation in CPHP to Virginia's Health
Practitioner Monitoring Program {''HPMP") under a confidentiality
agreement.
{2d Am.
could
participate
not
Virginia.
Compl.
SI 30).
in
HPMP
HPMP determined that Clowdis
because
he
resided
in
West
(2d Am. Compl. SI 31). In breach of the confidentiality
agreement,
HPMP
informed the Virginia
Board of Medicine
Board") about Clowdis's felony conviction.
(''the
(2d Am. Compl. SI 30).
The Board revoked Clowdis's medical license without a hearing on
the basis that Clowdis was
a
convicted felon.
{2d Am.
Compl.
SI
31). The Board also placed a record in the National Practitioner
Databank
{2d Am.
C'NPDB")
Compl.
Between
psychiatric,
stating that
Clowdis
was
a
convicted felon.
SI 39) .
2005
and
independent
2010,
Clowdis
medical,
and
received
competency
all of which found him fit to return to practice.
SI
41).
One
("Silverman") .
At
Clowdis
such
review
{2d Am.
Compl,
came
from
Joel
evaluations,
(2d Am. Compl.
Silverman,
Am. Compl.
for
SI 37).
reinstatement
Initially,
would not reinstate his
M.D.
SI 41).
an unspecified subsequent point between 2007
applied
forensic
of
his
medical
and 2011,
license.
(2d
the Board informed Clowdis that it
license because of Clowdis's history of
mental
health
benefits.
problems
and
(2d Am. Compl. f
his
past
receipt
of
disability
31).
At an unspecified subsequent point between 2007
Clowdis
Am.
applied
Compl.
1
for
42).
reinstatement.
reinstatement
In 2011,
of
his
medical
49).
that:
or
(2d
hearing on
(2d Am. Compl. ^ 40). Silverman's report played a
In its 2011 Order,
(1)
license.
the Board gave Clowdis a
substantial role in the decision-making process.
f
and 2011,
(2d Am.
Compl.
the Board made formal findings of fact
Clowdis showed no evidence of current psychopathology
substance
abuse
been dismissed.
and
(2)
the
Nevertheless,
felony
the
charge
Board made
that Clowdis was a convicted felon.
against
a
finding
him had
of
law
On this basis, ^ the Board
stayed Dr. Clowdis's suspension, contingent on his participation
in HPMP monitoring.
contract
required
(2d Am.
Clowdis's
Compl.
1
45).
compliance
The HPMP monitoring
with
all
HPMP
orders,
upon penalty of suspension or revocation of his medical license.
(2d Am. Compl. ^
was
flawed
by
46). Although Clowdis asserts that the hearing
certain enumerated procedural
Clowdis did not
appeal the
(2d Am.
f
30
legal
errors,
45).
Compl.
ruling within the
and
day deadline.
^ Clowdis asserts that the substantive and evidentiary standards
used in the proceeding were improper.
51) .
{2d Am. Compl.
n
44,
50-
After the 30 day deadline to appeal,
that
he
would
not
be
permitted
to
HPMP informed Clowdis
work
restricted Clowdis from leaving Virginia.
48).
At
about
evaluator,
50) .
this
time,
Silverman,
Clowdis
indefinitely
and
{2d Am. Compl.
also
that
his
(2d Am. Compl.
^ 49-
suspended participation in HPMP because he
Clowdis
was the CEO of HPMP.
learned
47-
could
not comply with HPMP's prohibition on employment and because he
disagreed with the terms of HPMP's monitoring contract.
Compl.
(2d Am.
SISI 52-54) .
As
a
convened
result
a
new
of
Clowdis's
hearing,
which
non-participation,
Clowdis
asserts
the
was
Board
flawed
by
certain enumerated procedural and legal errors.
(2d Am. Compl.
f
55). The Board reinstated Clowdis's suspension.
(2d Am. Compl.
f
56).
Clowdis appealed the Board's decision to the Circuit Court
for the City of Richmond (the "Circuit Court").
56) .
The
Court,
Board
with
did
the
result
standstill since 2013.
Clowdis
entities
not
that
certain
individuals
records
litigation
(2d Am. Compl. f
subsequently
and
send
filed
this
involved
(2d Am. Compl. f
to
there
the
has
Circuit
been
at
a
56).
action
with
against
his
a
host
suspensions.
of
The
first group of defendants includes the Commonwealth of Virginia,
the
Department
Commonwealth
of
Health
University
("the Board"),
Professions
C'VCU"),
Virginia
("DHP"),
Virginia
Board
Medicine
of
Virginia Health Practitioner Monitoring
Program
C'HPMP"),
Board
Executive
Director Jennifer
Foster,
The
HPMP
Court
Executive
Director William Harp,
Deschenes,
case manager Amy Stewart,
refers
collectively
''Commonwealth
Defendants."
includes
Joel
Dr.
Physicians,
The
Silverman
to
Board
Deputy
DHP investigator Sherry
and Laura
these
second
Hopson-Bush.
defendants
group
as
the
of
MCV
("Silverman"),
defendants
Associated
and Virginia Commonwealth University Health System
Authority
C'VCUHSA").
defendants
as
the
The
Court
refers
''VCU Defendants."
collectively
Finally,
to
Clowdis
these
sued the
National Practitioner Data Bank {"NBDB").
The
dismiss
HPMP,
Commonwealth
on
Harp,
behalf
of
Deschenes,
Defendants
the
initially
Commonwealth,
Foster,
filed
DHP,
and Stewart.
the
a
motion
Board,
(Docket No.
24).
to
VCU,
The
Commonwealth Defendants filed a functionally identical motion to
dismiss on behalf of Hopson-Bush after Clowdis
Bush.
{Docket
No.
motion to dismiss.
to dismiss.
55) .
The
VCU
Defendants
served Hopson-
filed
a
separate
{Docket No. 29). NPDB filed a separate motion
(Docket No. 49).^
2
Clowdis did not properly serve either Ryals or Dixson, two
retired civil servants. {Commonwealth's 0pp. to Pl.'s Mtn. for
Default Judgment, Docket No.
69 (''Commonwealth's DJ 0pp.");
Pl.'s Reply to Def. Ryals and Dixson's 0pp. to Pl.'s Mtn. for
Default Judgment, Docket No. 74). The Attorney General's office
mistakenly entered notice of appearance on Ryals and Dixson's
behalf. {Commonwealth's DJ 0pp. 3). For reasons stated in an
accompanying Order, the Court will deny default judgment against
Ryals and Dixson and enter an order dismissing the case as to
Ryals and Dixson for lack of service.
LEGAL
A.
Deference To Clowdis's
STANDARDS
Pro Se Status
Clowdis claims that,
as a pro se litigant,
to liberal construction of his pleadings.
to
[Commonwealth's]
{"Pl.'s
Mtn.
Commonwealth
to
Dismiss,
0pp.").
Clowdis
he is entitled
(Pl.'s Resp.
Docket
is
No.
in 0pp.
37,
correct
at
that
16)
pro
se
litigants are typically entitled to have their pleadings given a
liberal
construction.
89,
(2007)
94
1147,
1151
See,
e.g.,
(citations
(4th
Cir.
Erickson
omitted);
1978).
v.
Gordon
That
rule
Pardus,
551
U.S.
Leeke,
574
F.2d
v.
applies
to
pro
se
litigants because they do not have the assistance of a lawyer in
presenting their claims.
Clowdis alleges that,
reinstatement
of
his
medical
completed law school.
New
York
State
bar
placed on hold [as]
(2d Am.
Compl.
f
while waiting for a Board hearing on
license
between
(2d Am. Compl.
exam
in
2011,
SI 35).
''but
his
2007
and
2011,
he
Clowdis passed the
bar
admission
was
a result of his suspended medical license."
36).
Recently, this Court held that, when a plaintiff asserts in
his
Complaint
that
he
is
a
lawyer,
"his
pleadings
are
not
entitled to the lenient treatment accorded to litigants who are
proceeding without the aid of a lawyer." Rashad v.
3:15CV655,
(surveying
2016
WL
federal
901279,
circuit
at
*2-3
court
7
(E.D.
and
Va.
Eastern
Jenkins,
Mar.
3,
No.
2016)
District
of
Virginia opinions).
Most cases considering deference to pro se
attorneys involve attorneys who are licensed and practicing in
the
state
in
which
the
federal
court
sits
or
are
licensed
in
a
neighboring state.^
The Court concludes that it is not the practice or license
that is dispositive in the deference typically given to pro se
plaintiffs.
Rather,
substantive
and
it
is
procedural
the
law
lack
that
654
attorney
F.2d
was
194,
not
198
{2d Cir.
entitled
to
familiarity
undergirds
leniency shown to pro se plaintiffs.
Cty. ,
of
E.g.
1981)
special
the
Harbulak v.
{finding that
consideration
with
relative
Suffolk
pro
se
because
^ E.g., Andrews v. Columbia Gas Transmission Corp., 544 F.3d
618, 633 {6th Cir. 2008)
(finding the district court did not
abuse its discretion by denying special consideration to pro se
practicing attorneys); Smith v. Plati, 258 F.3d 1167, 1174 (10th
Cir. 2001) (''While we are generally obliged to construe pro se
pleadings
liberally...
we
decline
to
do
so
here
because
[plaintiff] is a licensed attorney")
(citation omitted); Godlove
V.
Hahn,
Bamberqer,
(7th Cir.
Foreman,
1990)
Oswald,
(finding
and
no abuse
903
F.2d
1145,
of discretion where
plaintiff was a member of the state's bar);
Harbulak v.
1148
pro
se
Suffolk
Cty. , 654 F.2d 194, 198 (2d Cir. 1981) (finding that pro se
attorney was not entitled to special consideration because
plaintiff was a "practicing lawyer who had the means and the
knowledge, or at least the ability to obtain the knowledge, to
recognize" whether his claims were reasonable); Olivares v.
Martin, 555 F.2d 1192, 1194 n.l (5th Cir. 1977) {"[Plaintiff]
proceeds pro se in his appeal.
We cannot accord him the
advantage of the liberal construction of his complaint normally
given pro se litigants because he is a licensed attorney.")
(citation omitted); Gordon v. Gutierrez, No. I;06cv861, 2006 WL
3760134, at *1 n.l {E.D. Va. 2006) ("Plaintiff represents that
she is an attorney, a law school graduate, and a member a
neighboring
liberal
state's
construction
litigants.").
bar.
of
As
such,
pleadings
she
not
entitled
to
ordinarily
is
afforded
pro
the
se
plaintiff was
knowledge,
a
''practicing lawyer who
had the means
or at least the ability to obtain the knowledge,
recognize" whether his claims were reasonable).
represents that he is a
state bar examination,
that
state but
Court
and the
for
concludes
law school graduate,
Because Clowdis
that he passed a
and that he would have been licensed in
the Board's
that
to
Clowdis
suspension of his
is
not
entitled
license,
to
the
the
relative
leniency typically shown to pro se plaintiffs.^
B.
The Commonwealth Defendants'
Because
lack
of
Defendants
subject
12(b) (1)
matter
and Motions
under Fed.
R.
have
Civ.
to
P.
Fed.
filed
R.
Civ.
both
jurisdiction
Dismiss
12(b)(6),
for
P.
12 Motions
Motions
under
Fed.
failure
to
Pharma,
AG v.
Inc.^
471 F.3d 544,
Marathon Oil Co.,
^ However,
Sucampo Pharms.,
548
526 U.S.
as discussed below,
Dismiss
R.
for
Civ.
state
a
P.
claim
the challenge to subject matter
jurisdiction asserted in the motion under Rule
typically be addressed first.
to
(4th Cir.
574,
583
12(b)(1)
Inc.
2006)
v.
should
Astellas
(citing Ruhrqas
(1999)).
Clowdis's claims are so clearly
barred by Younger abstention (in the case of the Commonwealth
Defendants and VCU Defendants) or the case-and-controversy bar
(in the case of NPDB) that liberal construction of Clowdis's
claims
would
not
save
his
case.
This
is
not
a
situation
where
a
plaintiff failed to state an element of a cause of action in
perfect legalese;
rather,
the existence of the state court
proceeding stands as an immutable bar to relief in this Court,
no matter
how
it
is
described.
The
depends
evidentiary
on
whether
sufficiency
of
allegations
that
States
Dept.
1999)
1982));
the
the
of
(citing
the
also
2
U.S.
687,
Va.
(E.D.
is
or
a
an
60
F.
Bain,
Moore's
See
Walker
2002).
2d
F.2d
553,
1213,
In the
case
of a
555
the
court
is
''free
to
weigh
the
Va.
(4th
§
Cir.
12.30 [4];
F.
facial
United
(E.D.
1219
230
the
factual
v.
Supp.
attack,
court must accept the plaintiff's allegations as true.
in the case of an attack on the facts
on
the
Practice
of Engineers,
12(b)(1)
attack
on
Federal
Army Corps,
Rule
attack
Supp.
697
under
facial
jurisdiction.
Army^
v.
motions
challenge
support
Crutchfield v.
for
pleadings,
Adams
see
695
standard
2d
the
However,
supporting jurisdiction,
evidence
to
determine
the
existence of
jurisdiction" because its ''very power to hear the
case"
issue.
is
Velasco
at
v.
Gov't
Walker,
of
60
Indon,
F.
370
Supp.
F.3d
2d
392,
at
398
555;
(4th
see
Cir.
also
2004)
("When a defendant challenges subject matter jurisdiction by way
of
a
motion to dismiss
filed under
Rule
12(b)(1),
the district
court may regard the pleadings as evidence on the issue and also
may consider evidence outside
the
proceeding
presumptive
allegations,
not
preclude
to
one
for
truthfulness
and the
the
the pleadings without
summary
attaches
existence
trial
judgment.").
court
to
converting
Moreover,
the
plaintiff's
of disputed material
facts
from
itself
evaluating
merits of jurisdictional claims." Walker,
10
60 F.
"no
for
Supp.
will
the
2d at 555
(quoting Mortensen v.
884,
891
(3d
Cir.
1977)).
and VCU
Defendants
through
a
Rule
evaluation
of
First Fed.
Because
contest
12(b)(1)
the
Sav.
the
the
Commonwealth
factual
motion
merits
and Loan Ass'n^
of
to
basis
dismiss,
the
of
549 F.2d
Defendants
jurisdiction
an
independent
jurisdictional
claim
is
appropriate.
In such an evaluation,
''[t]he plaintiff bears the burden of
proving that subject matter jurisdiction properly exists in the
federal
court."
F.Supp.2d
289,
Biktasheva
294
Preservation Ass'n v.
(D.
v.
Red
Md.
Cnty.
Square
2005);
Sports,
see
also
Inc.^
366
Piney
Run
Comm'rs of Carroll Cty.^
523
F.3d
453, 459 (4th Cir.2008). Nevertheless, "[t]he court should grant
the
12(b) (1)
motion only if the material
jurisdictional facts
are not in dispute and the moving party is entitled to prevail
as a matter of law." Id.
at 294
(citation omitted).
C. NPDB's Case or Controversy Motion
The
United
States
Constitution's
^^case-or-controversy"
requirement limits the jurisdiction of the federal court system.
U.S.
Const.
Art
III § 2.
An issue is unripe,
and not
fit
for
review, if ^^it rests upon contingent future events that may not
occur as anticipated,
or indeed may not occur at all." Texas v.
United States^ 523 U.S. 296,
lack
of
subject
matter
300 (1998). A motion to dismiss for
jurisdiction
11
under
the
doctrine
of
ripeness is assessed pursuant to the principles of Fed. R. Civ.
P.
12(b)(1). E.g., Arc of VA, Inc. v.
2009 WL 4884533,
at *3
(E.D. Va.
Kaine,
No. CIV 3:09CV686,
Dec. 11, 2009).
A17ALYSIS
A.
Younger
Abstention
Bars
Clowdis's
Claims
Against
The
Commonwealth Defendants And The VCU Defendants
The
Commonwealth
dismissal
on
grounds.
Dismiss,
variety
(Commonwealth
Docket No.
Defendants
C'VCU's
a
Defendants
Mem.
25
in
VCU
Mem.
in
of Mtn.
to
Both parties
For the reasons stated below,
and
exercise
cannot
jurisdiction,
Commonwealth
VCU Defendants'
Mtn.
to
(Docket
Mem.
Younger
jurisdiction
6-8;
30)
Younger
VCU's
VCU
the Court finds
the
arguments
over
of
No.
this
compelling,
case.
Absent
the Court declines to reach the other procedural
and substantive issues
VCU
of
seek application
Mem.
and
substantive
Supp.
Dismiss
(Commonwealth's
Commonwealth
and
seek
("Commonwealth's Commonwealth Mem."); VCU
abstention.
13-15).
Defendants
jurisdictional
Defendants'
Supp.
VCU Mem.")).
of
and
Defendants'
raised in the Commonwealth Defendants
and
briefs.
1. Basic Requirements for Younger Abstention
The doctrine of Younger abstention.
U.S.
37
(1971),
requires
that
12
a
Younger v.
federal
Harris,
court
401
decline
jurisdiction and abstain from interfering in state proceedings
where
there
exists:
(1)
an ongoing state judicial proceeding,
instituted prior to any substantial progress
in the federal proceeding; that
(2)
implicates important,
substantial,
or
vital state interests;
(3)
and
provides an adequate opportunity for the
plaintiff
to
constitutional
raise
the
claim advanced
in
federal
the
federal
lawsuit.
Laurel
Sand
Cir. 2008)
390
& Gravel,
v.
Wilson,
519
F.3d
156,
165
{4th
(relying on Moore v. City of Asheville^ 396 F.3d 385,
(4th Cir.
federal
Inc.
2005) .
Although Younger abstention originated in
litigation initiated subsequent to an underlying state
criminal case, the Supreme Court "'later carried Younger into the
civil
arena,
and
even
to
administrative
Carolina Ass^n of School Adm^rs v.
242
(4th Cir.
2012)
481 U.S. 1 (1986)
also
Ass'n,
Disabato,
(relying on Pennzoil Co.
South
4 60 F. App'x.
v.
Texaco,
239,
Inc.,
(extending Younger to civil proceedings); Ohio
Civil Rights Common v.
(1986)
proceedings."
Dayton Christian Sch.,
Inc.,
477 U.S.
(extending Younger to administrative proceedings));
Middlesex
457
application
County
U.S.
of
Ethics
423
Younger
disciplinary proceeding)
Committee
(1982)
v.
(upholding
abstention
to
Garden
State
district
pending
19
see
Bar
court's
state
bar
'"The Supreme Court noted that Younger
^ The Supreme Court recently emphasized that Younger abstention
applies to only three categories:
13
state criminal prosecutions,
was
based
on
concerns
'equally applicable'
state interests are
to
for
comity
'civil
and
federalism
proceedings
involved[,]'
so long as
-
concerns
in which
important
those proceedings
provide the federal plaintiff with 'a full and fair opportunity
to litigate
at 242
also
[its]
constitutional claim." Disabato,
(quoting Ohio Civil Rights Common,
Phillips
719-721
v.
(E.D.
Virginia
Va.
Bd.
1990).®
477 U.S.
of Medicine,
''Younger
460 F. App'x
74 9
abstention
at 627);
F.
Supp.
represents
see
715,
an
"certain civil enforcement proceedings," and civil proceedings
"uniquely in furtherance of the state courts' ability to perform
their judicial functions." Sprint Comm., Inc. v. Jacobs, 134 S,
Ct.
584,
591
(2013).
In
defining
those
"certain
civil
enforcement
proceedings,"
the
Court
explicitly
included
"enforcement actions characteristically initiated to sanction
the federal plaintiff, i.e. the party challenging the state
action, for some wrongful act," as in Middlesex. Id. at 592. As
Phillips establishes, Middlesex is the Supreme Court decision
most analogous to appeals from decisions of the Virginia Board
of Medicine, Phillips, 749 F. Supp. at 721. So long as Middlesex
remains well within the boundaries of "certain civil enforcement
proceedings," this case also falls well within the boundaries of
"certain
civil
enforcement
proceedings,"
and
thus
within
Younger.
^ A plaintiff faces a long uphill climb in establishing that the
state proceedings deprive him of a "full and fair opportunity to
litigate [his]
constitutional claim." Where all decision-making
members of an administrative board have a pecuniary interest
which disqualifies them from passing on the issues. Younger
abstention is inappropriate. E.g., Gibson v. Berryhill, 411 U.S.
564, 578 (1973). Although in this case Clowdis's alleges that
Silverman has a pecuniary interest in the outcome of Clowdis's
2011 Board hearing (2d Am. Compl. f 49), this is easily
distinguished from Gibson because (1) Clowdis does not allege
that any of the Board members who made the decision to place
Clowdis under a HPMP contract had a pecuniary interest in the
outcome of the hearing, and (2) Clowdis does not allege that the
Circuit Court has had a pecuniary interest in the outcome of the
14
accommodation between a
in
its
own
forum
adjudication
of
state's pursuit of important interests
and
the
federal
federal
rights."
interest
Telco
in
Comm'ns,
federal
Inc.
v.
Carbauqh, 885 F.2d 1225, 1229 (4th Cir. 1989).
In
1990,
decision,
Judge
Ellis,
in
a
thorough
and
well-reasoned
held that state court appeals from Virginia Board of
Medicine licensing decisions were subject to Younger abstention.
Phillips,
74 9 F.
Supp.
at
715.
Applying
the
rule
set
out
in
Phillips, the Court finds that the three essential requirements
for Younger abstention are present in this case.
First,
Clowdis's
initiated in 2013
ongoing
state
pending
appeal
(2d Am. Compl.
judicial
substantial progress"
the
Circuit
Court,
5 56), clearly constitutes ''an
proceeding,
in this
to
instituted
federal
prior
proceeding,
to
any
initiated in
2015."^
hearing.
Therefore,
at
the
Circuit
Court
appellate
upon which this Court bases its Younger abstention,
proceeding
there is no
allegation of the sort of pecuniary interest which would deprive
Clowdis of a full and fair opportunity to litigate his federal
claims.
Moreover,
as
discussed
in
detail
subsequently,
Virginia's
Administrative
Process
Act
explicitly
permits
litigation of constitutional claims on appeal.
^ In Phillips, the Court deferred where the plaintiff had filed
in federal court (1) after the Board proceedings were complete
but (2) before taking an appeal to the state circuit court.
Phillips,
724
F.
Supp.
at
724.
While
the
federal
court
contemplated abstention, plaintiff appealed to the state circuit
court,
review
expressly reserving her federal constitutional claims for
in
abstained
federal
from
court.
hearing
Id.
any
The
of
15
federal
plaintiff's
court
nevertheless
claims.
Id.
The
Second,
Clowdis's
pending
''implicates important,
As
thoroughly
appeal
substantial,
explained
in
to
the
Circuit
Court
or vital state interests."
Phillips,
the
Virginia
medical
license revocation procedures implicate such interests.
It is difficult to imagine a state interest
more
important
than
the
protection
of
citizens against the harms of unethical or
incompetent practitioners of the
healing
arts. So it is that Virginia courts have
long upheld the constitutionality of the
state's regulation of medicine. See Grosso
V. Commonwealth^ 180 Va. 70, 21 S.E.2d 728
(1942);
Pickard v.
Commonwealth^
126 Va.
729,
100
S.E.
821
(1920).
The
Virginia
Supreme
state's
regulate
of the
Court has specifically upheld the
ability to license physicians and
their practice as a valid exercise
state's police power.
Grosso^ 21
S.E.2d at 730; Goe v. Gifford, 168 Va. 497,
191
S.E.
783
(1937);
State
Dentists
v.
Gifford, 168 Va. 508, 191 S.E. 787 (1937).
Furthermore, states have traditionally been
accorded leeway in adopting procedures to
protect public health and safety. Mackey v.
Montrym,
443
U.S.
1,
17,
99
S.Ct.
2612,
2620, 61 L.Ed.2d 321 (1979). In Middlesex,
the Supreme Court recognized that
states
have an important interest in exercising
control over the professional conduct of
attorneys.
For
somewhat
different,
but
equally powerful
reasons,
states
have
a
present case is much simpler: Clowdis appealed to the state
circuit court before filing in this Court.
Phillips also implicitly establishes - if there were any
room or need for debate on this matter - that an appeal from the
Board's decision
proceeding." Id.
to
a
state
circuit
court
is
a
''judicial
Clowdis
briefly
notes
that
"there
is
no
pending
investigation against Plaintiff by the medical board." (Pl.'s
0pp. 17) . That is irrelevant, because there
a pending state
circuit court appeal, and Phillips establishes that such state
circuit court appeals are subject to Younger abstention.
16
vital interest in regulating the conduct of
the medical professionals they license.
Phillips,
749
F.
Supp.
at
722-23;
see
also
Simopoulos
v.
Virginia Bd. of Medicine, 644 F.2d 321 (4th Cir. 1981).®
Third,
the Circuit Court proceeding ''provides an adequate
opportunity
for
the
plaintiff
to
raise
the
federal
constitutional claim advanced in the federal lawsuit."
Younger
abstention
is
not
required where
an
ongoing state proceeding does not provide an
opportunity for
resolution of a
party's
federal
constitutional
claims.
Compare
Middlesex,
457 U.S.
at 432,
435-36,
102
S.Ct.
at
2521,
2523
(finding
"adequate
opportunity"
to
raise
constitutional
claims),
and Ohio Civil Rights Comm'n v.
Dayton
28,
Christian
106
Steffel
V.
Schools,
S.Ct.
at
Thompson^
477
2722-23
415 U.S.
U.S.
at
627-
(same),
with
452, 462, 94
Every federal appellate court to have addressed the question
has joined Phillips in finding decisively that competency and
licensing of doctors is a significant state interest for
Younger/Middlesex purposes. Coqqeshall v. Massachusetts Bd. of
Registration of Psychologists, 604 F.3d 658, 664-65 (1st Cir.
2010); Doe v. State of Conn., Dep't of Health Servs., 75 F.3d
81, 85 (2d Cir. 1996) , as amended on denial of reh'g (Jan. 30,
1996); Zahl v. Harper, 282 F.3d 204, 209 (3d Cir. 2002); Allen
V. Louisiana State Bd. of Dentistry, 835 F.2d 100, 103 (5th Cir.
1988); Watts v. Burkhart, 854 F.2d 839, 846-47 (6th Cir. 1988);
Majors v. Engelbrecht, 149 F.3d 709, 713
(7th Cir. 1998);
Baffert v. California Horse Racing Bd., 332 F.3d 613, 618 (9th
Cir.
2003).
Additionally, Simopoulos implicitly recognizes the state's
interest in regulating the practice of medicine. Because the
case
was
decided
pre-Middlesex
and
it
does
not
use
the
"state
interest" language using the same terminology as post-Middlesex
decisions
by
other
appellate
courts.
However,
the
Fourth
Circuit's decision to abstain in the face of existing medical
license appeals even before Middlesex clearly indicates that the
Fourth Circuit respects the state's legitimate interest in such
proceedings.
17
S.ct.
1209,
(finding
serve
no
as
1217,
39
ongoing
vehicle
plaintiff's
L.Ed.2d
state
for
505
(1974)
proceeding
vindicating
constitutional
to
federal
rights),
and
Gerstein v. Puqh^ 420 U.S. 103, 108 n. 9, 95
S.ct. 854, 860 n. 9, 43 L.Ed.2d 54 (1975)
(finding that the issue of the legality of a
pretrial detention could not
defense of a state criminal
Here, this opportunity exists.
Va.Code §§ 9-6.14:15
for
judicial
review
to
in
be raised in
prosecution).
9-6.14:19 provide
state
courts
of
agency
determinations.
Section
9-6.14:16
provides that 'Ma]ny person ... aggrieved by
and claiming unlawfulness of a case decision
shall have a right to direct review
thereof by an appropriate and timely court
action
against
the
agency
. . .
and
the
judgment
of
such
courts
of
original
jurisdiction shall be subject to appeal to
or review by higher courts as in other cases
unless otherwise provided by law." (Emphasis
added.)
Section 9-6.14:17 provides that a
state court reviewing an agency action may
consider
issues
of
law,
including
" (i)
accordance
with
privilege,
added.)
The
constitutional
or
right,
immunity. ..."
power,
(Emphasis
Fourth Circuit has observed that
§
9-6.14:17
contains
"language
patently
broad
enough
to
include
[a]
plaintiff's
objection to [a] statute on constitutional
grounds." Simopoulos v. Virginia State Bd.
of
Medicine^
644
F.2d
at
330
n.
37.
Consistent with this, the Supreme Court of
Virginia, in State Bd. of Health of Virginia
V. Godfrey^ 223 Va. 423, 290 S.E.2d 875, 881
n. 6, noted that "the scope of review under
the Virginia APA is ^virtually identical' to
that
in
the
Federal
Administrative
Procedure
Act," citing Annual Survey of Virginia Law,
61
Va.
L.
Rev.
1632,
1639
(1975).
Significantly,
the plaintiff here has not
claimed
that
she
would
be
unable
to
raise
her constitutional claim in an appeal to the
Virginia courts,
and defendants
correctly
point to Va.Code § 9-6.14:17 as proof that
18
the
claim can
Virginia
be
considered on
court.
constitutional
appeal
As
claim
is
by
a
plaintiff's
reviewable
in
the
state court on appeal, the requirement that
there
be
''adequate
opportunity"
for
a
federal plaintiff to raise her claim in
pending state proceedings is satisfied.
Phillips,
749
F.
Supp.
at
723-24.
The
current
version
of
Virginia's Administrative Procedures Act, Va. Code § 2.2-4000 et
seq., provides equivalent protections.
Any
...
party
unlawfulness
aggrieved
of
a
case
by
and
decision
...
claiming
shall
have
a right to the direct review thereof by an
appropriate and timely court action against
the agency or its officers or agents in the
manner provided by the Rules of Supreme
Court of Virginia. Actions may be instituted
in any court of competent jurisdiction as
provided in § 2.2-4003, and the judgments of
the courts of original jurisdiction shall be
subject to appeal to or review by higher
courts
as
in
other
cases
unless
otherwise
provided by law.
Va.
Code §
2.2-4026 (A);
see
also Va.
Code §
2.2-4003
proper venue for such actions).
The
burden
complaining
shall
of
be
agency
upon
action
the
to
party
designate
and demonstrate an error of law subject to
review by the court.
Such issues of law
include:
(i) accordance with constitutional
right, power, privilege, or immunity,
(ii)
compliance
with
statutory
authority,
jurisdiction
limitations,
or
right
as
provided in the basic laws as to subject
matter,
the
stated
objectives
for
which
regulations may be made,
and the factual
showing respecting violations or entitlement
in
connection with
case
decisions,
(iii)
observance of required procedure where any
failure
therein
is
not
19
mere
harmless
error.
(stating
and
(iv)
the
substantiality
of
evidentiary support for findings of fact.
Va.
Code §
the
2.2-4027.
The three elements for Younger abstention are present,^ and
require
that
the
Court
abstain
from
the
exercise
of
jurisdiction.
2.
To
into the
"Bad Faith" Is Inapplicable In This Case
escape
abstention,
''bad faith"
0pp.
16-18)
584,
591
Clowdis
argues
exception to Younger.
(relying on Sprint Comm.,
(2013)
(quoting Younger,
findings
constituted mistakes of fact
"are
void
ab
his
case
falls
(Pl.'s Commonwealth
v.
Jacobs,
134 S. Ct.
401 U.S. at 53-54)). For this,
states
orders
related
Inc.
Clowdis
its
two
that
theories:
initio'^
and
(1)
that
the
Board's
and law such that all of
all
actions
Board after the 2007 hearing are suspect,
and
(2)
taken
by
the
that the Board
is obstructing progress in the Circuit Court proceeding.
'MB]ad faith in
[the Younger]
context
a prosecution has been brought without a
of
obtaining
274,
^
In
278
a
valid
(4th Cir.
fact,
Clowdis
conviction.'"
1986)
does
reasonable expectation
v.
Brannon,
804
F.2d
(quoting Kugler v.
Helfant,
421
U.S.
not
Suggs
'generally means that
contest
that
the
three
basic
elements are met. (Pl.'s Resp. in 0pp. to Commonwealth's Mtn. to
Dismiss, Docket No. 37, 16-18). Instead, as discussed below, he
contests Younger application entirely on the existence of "bad
faith."
20
117,
125-26
& 126
n.6
(1975)
(finding plaintiff's
allegations
that members of the New Jersey Supreme Court and deputy attorney
general were involved in coercing his grand jury testimony,
so
that it was impossible for him to receive a fair hearing in the
state
court
system,
insufficient
exception to Younger rule));
v.
McGowan,
282
F.3d 191,
to
see also
199
establish
Diamond "D"
(2d Cir.
2002)
bad
Const.
faith
Corp.
(noting that
the
civil corollary to "without reasonable expectation of obtaining
a valid conviction" is ''the party bringing the state action must
have
no
reasonable
outcome").
ended
In
this
''favorably"
suspension).
Thus,
expectation
case,
all
of
obtaining
the
the
most
pre-appeal
state
to
the
(e.g.,
common
a
Board proceedings
they
variant
favorable
of
resulted
in
Younger
"bad
or
-
faith" is not applicable to Clowdis's case.
Nor
do
the
Board's
alleged mistakes
of
even of internal procedures or due process "bad faith." Younger abstention has a
law
fact
or
create an issue of
remarkably high threshold
for tolerating alleged flaws in state court proceedings. Kugler,
421
U.S.
117,
allegations
125-26
that
&
members
126
of
n.6
the
(1975)
New
(finding
Jersey
plaintiff's
Supreme
Court
and
deputy attorney general were involved in coercing his grand jury
testimony,
such that it was impossible for him to receive a fair
hearing in the state court system,
faith
exception
to
Younger
rule);
21
insufficient to establish bad
Kim-Stan,
Inc.
v.
Pep't
of
Waste Mgmt.,
732 F. Supp.
646,
652
(E.D. Va. 1990)
(finding that
government officials may have acted because of public outcry and
out-of-state
animus
rather
than
for
concrete
insufficient
to establish bad faith) .
policy
reasons
This high threshold has
its origins in Younger's recognition that:
state
courts
rights,
injury'
will
removing
that
normally
protect
federal
any threat of ^irreparable
might
justify
federal
injunctive relief.
Unless the state court
cannot be relied upon for full and fair
adjudication of
constitutional claims
{an
independent
exception
doctrine), prosecutorial
to
bad
the
faith
Younger
presents
no threat of irreparable injury.
Simopoulos,
644
F.2d at
328
n.27
(quoting Note,
Younger Doctrine: A Critique and Proposal,
1328-29
(1979)).
Clowdis's
findings
case:
of
Applying
even
fact,
if
this
mistaken findings
violations of federal
law,
67 Cal. L. Rev. 1318,
presumption
defendants'
Limiting the
and
actions
reasoning
involved
of law,
to
mistaken
lack of evidence,
violation of Constitutional rights,
conduct actionable at tort, or any other wrong (2d Am. Corapl. fSI
57-59,
61-147),
courts
are
federal
Younger establishes a
competent
courts
to
should
grant
not
the
presumption that
relief
requested.
second-guess
a
state
Therefore,
state
court's
competence in cases which implicate important state interests by
snatching the case from state to federal court.
The defendants'
Clowdis's appeal to bad faith is even less convincing than in
Kugler.
The plaintiff in Kugler asserted that the entire state
22
actions
on
which
type of actions
courts,
and
presumption
Clowdis
relies
to
establish
bad
faith
are
the
judges routinely hear when sitting as appellate
Younger
that
requires
such
that
courts
this
will
be
Court
start
competent
with
in
a
their
administration of both state and federal law.^^
This
the
''bad
in
the
leads
into Clowdis's
second basis
exception:
three-year period of
faith"
case
before
the
the
Circuit
appealed to the Circuit Court,
willfully
chosen
procedures]
(2d Am.
refuse
to the Court,
Compl.
the appeal,
to
to
Court.
for
Clowdis
but that ''to date,
send
the
records
application of
inactivity
notes
that
he
the Board has
[of
the
Board
even though required to do so by law."
SI 56). Clowdis states that shortly after he filed
the Board filed a motion to transfer venue
(to which
Clowdis filed an objection), but that the Circuit Court declined
judiciary was tainted against him. In this case, Clowdis has
pled that Silverman had a pecuniary interest in the outcome of
the Board proceedings and that the Board acted wrongfully, but
he has pled no wrongdoing on behalf of the Circuit Court.
Because Clowdis has not pled that it is impossible for him to
have a fair hearing on his assorted and assignations of error in
the state court system, there is no need for this Court to take
his
case
In
support
establish
Act,
from the
the
state court.
of
that:
Circuit
this
(1)
notion,
under
Court
can
the
the
Commonwealth
Virginia
hear
both
Defendants
Administrative
Clowdis's
Process
constitutional
claims and his request to overturn the Board's order; and that
(2) Virginia state courts do in fact overturn Board decisions
for
lack
of
substantial
evidence
or
procedural
errors.
(Commonwealth's Reply, Docket No. 43, 2-3) (relying on Va. Code.
§ 2.2-4000 et seq.; Goad v. Virginia Bd. of Medicine, 580 S.E.2d
494, 40 Va. App. 621 (Va. Ct. Ct. App. 2003); Fetta v. Virginia
Bd. of Medicine, 20 Va. Cir. 334 (Va. Cir. Ct. 1990)).
23
to move forward with the venue motion or any other motion until
the Board transmitted the evidentiary record of the underlying
hearing,
{2d Am Compl. If 59, 85) .
The Board states, via affidavit of its counsel, that the three
year delay occurred because the Circuit Court clerk's office
only
stated
position
to
the
"no
Clowdis,
movement
and
that
without
neither
an
evidentiary
Clowdis
nor
the
record"
Circuit
Court clerk's office informed the Board that the evidentiary
record
was
required
for
progress
on
the
venue
motion.
(Commonwealth's Commonwealth Reply, Docket No. 43, at 4 & 4
n.5).
The Board states that, if it had been aware of the
Circuit Court's position, it would have provided the record. Id.
at
4
n.5.
Claudis, in one of many motions to strike, argues that the
Board should have known that it had a statutory obligation to
transmit the record. (Pl.'s Mtn. to Strike, Docket No. 46, 4).
Examining the Administrative Process Act, however, reveals that
the statute itself only requires the agency to provide the
record when the Circuit Court is making a determination of the
propriety of the administrative action. Va. Code. § 2.2-4027
(''The burden shall be upon the party complaining of agency
action to designate and demonstrate an error of law subject to
review by the court ... The determination of such fact issue shall
be made upon the whole evidentiary record provided by the
agency"). Although the Circuit Court requested the evidentiary
record before addressing the venue question (which this Court
presumes was well within the Circuit Court's authority), the
statute by its own language only requires that the agency
provide
the
evidentiary
record
before
considering
the
substantive issue. Given that (1) the Board made only a limited
appearance
for
purposes
of
venue
and
(2)
the
Administrative
Process
Act
itself
does
not
require
the
record
before
consideration of the merits, the Court cannot at this point
infer bad faith from the Board's failure to comply with a nonstatutory requirement of which i t was not aware.
This is, of course, extraneous to the Court's
decision to
dismiss, and is introduced primarily to clarify the record. It
is not the Board's bad faith that matters at this stage of a
Younger inquiry,
but the bad faith of the Circuit Court. What is
dispositive is that the record lacks any evidence that Clowdis
sought the Circuit Court's assistance in having the records
delivered. Clowdis states that he contacted various politicians
for
assistance
moving
his
Circuit
24
Court
case
forward.
(Pl.'s
Failure
to
produce
necessary
heart, a discovery dispute.
its
sister
federal
documentation
is,
at
its
This Court recently recognized that
district
courts
are
''perfectly
capable
of
crafting discovery orders that suit the parties' conduct and [a
plaintiff's] needs for discovery." In re Subpoenas for Documents
Issued
to
1071016,
ThompsonMcMullan,
at
*8
(E.D.
Va.
P.C.,
Mar.
No.
17,
CV 3:16-MC-1,
2016).
Under
2016
the
WL
comity
principles of Younger, the Court must grant the same respect to
the
state
crafting
courts.
The
discovery
relevant documents,
Circuit
orders
and
Court
is
remedies
perfectly
for
capable
production
of
of
the
both to resolve the venue motion and going
forward with the merits of Clowdis's substantive case. As such,
Clowdis's claim that defendants ''act[ed] in bad faith to prevent
Plaintiff from having any motion even considered by the state
court"
(Pl.'s 0pp.
2)
does not constitute the type of bad faith
which counsels against applying Younger.
In sum,
appellate
''permitting plaintiff here to avoid the state court
process
administrative
stage
Commonwealth 0pp.
after
trial-like
would
12-13),
cast
a
proceedings
direct
aspersion
at
the
on
the
but does not assert that either:
(1)
that he contacted the Board or Board's counsel to explain the
Circuit Court's position that the Circuit Court would not move
forward without the written record; or (2) that he contacted the
Circuit Court to explain the situation and request the Court's
assistance in production of the record. In any event, the issue
of production is one that must ultimately be addressed to the
Circuit Court, especially where, as here, there is no contention
that the Circuit Court has in bad faith effected the delay.
25
capabilities and good faith of Virginia's courts." Phillips,
749
F.
and
Supp.
at
Middlesex
727.
are
The
all
comity
present
concerns
underlying
and mandate
Younger
application
of
Younger
abstention.
3.
Because
met,
and
Conclusion
the
basic
because
requirements
Clowdis
has
not
for
Younger
established
abstention
the
sort
of
are
bad
faith required for an exception to Younger abstention, the Court
abstains from exercising jurisdiction over Clowdis's request for
restoration of his license.
Court
declines
to
constitutional,
contract
exercise
federal
claims.
{2d Am. Compl.
jurisdiction
statutory,
{Compl.
state
62-143).
competent to adjudicate such claims,
at fault
f
The
32). Moreover,
over
tort,
Clowdis's
and
Circuit
the
state
Court
is
and finding the defendants
{and granting Clowdis relief)
in these related matters
would interfere with the Circuit Court's ability to adjudicate
the propriety of the Board proceedings.
Because
the
over this case,
substantive
the VCU
Court
abstains
from
exercising
jurisdiction
it will not address the remaining procedural or
defenses
raised by
the
Defendants.
26
Commonwealth
Defendants
or
2. NPDB's Case Or Controversy Motion
NPDB initially filed a motion to dismiss on jurisdictional
and
substantive
Dismiss,
grounds.
Docket No.
50) .
(NPDB's
Mem.
In response,
in
Supp.
of
Mtn.
to
Clowdis conceded that he
only included NPDB in this action so that NPDB will be required
to promptly adjust his database entry if this Court finds that
the Board's submissions to NPDB are false.
to
[NPDB's]
that
Mtn.
position,
jurisprudence.
to Dismiss,
Docket No.
NPDB's
Reply
turned
(NPDB's
Reply,
(Pl.'s Resp. in 0pp.
58,
to
Docket
14).
In light of
case-or-controversy
No.
60,
3-6).
NPDB
correctly points out that Clowdis is only entitled to the relief
he seeks contingent upon his relief against the Commonwealth and
VCU Defendants. Id. Accordingly, Clowdis's entitlement to relief
is
^^contingent
anticipated,
[upon]
future
events
that
may
not
occur
or indeed may not occur at all." Texas v.
as
United
States, 523 U.S. at 300. Clowdis's self-acknowledged sole claim
against NBPD is not ripe for adjudication.
On this basis,
the
Commonwealth
of
Court will dismiss all claims against NPDB.
CONCLUSION
For
Virginia's
the
reasons
MOTION
TO
Associated Physicians'
stated
DISMISS
above,
(Docket
MOTION TO DISMISS
27
the
Nos.
24,
(Docket No.
55),
29),
MCV
and
the National Practitioner Database's MOTION TO DISMISS
{Docket
No. 49) will be granted in their entirety.
It
is
so ORDERED.
/s/
Robert E.
Payne
Senior United States District Judge
Richmond, Virginia
Date:
May
2016
28
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