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