Docket No. 99-9173 August Term, 1999
JEFFREY A. JANNUZZO, New York, NY, for Appellant.
JOEL SIMON, New York, NY, for Appellee Ira Klemons.
JAMES MODZELEWSKI, New York, NY, for Appellee Jay Goldman.
MARION R. BUCHBINDER, Assistant Solicitor General, New York, NY (Eliot Spitzer, Attorney General of the State of New York), for Appellees Louis Catone, Director of the Office of Professional Discipline, Richаrd P. Mills, Commissioner of the New York State Education Department, and Carl T. Hayden, Chancellor of the Board of Regents of the University of the State of New York.
LEVAL, Circuit Judge:
Plaintiff-Appellant Howard J. Kirschner, D.D.S., brought suit against Defendants-Appellees Ira Klemons, D.D.S., Jay Goldman, D.D.S., Louis Catone, Director of the Office of Professional Discipline, Richard P. Mills, Commissioner of the New York State Education Department, and Carl T. Hayden, Chancellor of the Board of Regents of the University of the State of New York. Kirschner sought (1) a preliminary injunction against the Board of Regents (Regents) to enjoin the Regents from publishing a decision regarding complaints of professional misconduct against Kirschner until Kirschner could obtain review of the Regents’ dеcision in an Article 78 proceeding, (2) declaratory and injunctive relief against Catone, Mills, and Hayden, pursuant to
BACKGROUND
Kirschner is a dentist, licensed to practice in the State of New York, who makes part of his living performing Independent Medical Examinatiоns (IMEs) for insurance companies. The insurance companies that employ Kirschner use his IME reports, which give his opinions on the conditions of claimant policyholders, in determining how to treat individual policyholders’ claims for coverage. With respect to claims of a disorder known as TMJ (tempromandibular joint disorder), Kirschner believes that diagnoses are fraudulent unless confirmed by objective tests and that the patients diagnosed as suffering from TMJ do not actually have any dental disorder. Kirschner also believes and claims that a dental appliance called a MORA, commonly prescribed to treat this disorder, is ineffective as a treatment and may even be harmful. Kirschner has appаrently performed thousands of IMEs on automobile accident victims who claimed to suffer from TMJ but has never found a patient to be suffering from an actual dental disorder. His IMEs in such cases have led to the insurer‘s denial of benefits. The New York State licensing authority imposed sanctions on Kirschner, based at least in part on his IMEs rejecting claims for TMJ. He brought this suit for injunctive relief and damages contending that his opinions rendered in IMEs are protected speech. In this appeal, Kirschner continues his efforts to contest professional misconduct complaints that were brought against him based, in part, on statements he had made in IMEs. He also seeks protection against future complaints that he anticipates will be brought against him for similar reasons.
In New York, complaints of professional misconduct by dentists are dealt with by the State Education Department (Department), the licensing authority for dentists in New York. The Department grants licenses to dentists for life, unless the Board of Regents of the University of the State of New York (Regents) determines that a dentist‘s license should be revoked, annulled, or suspended. A state board of dentistry, appointed by the Regents, assists the Regents and the Department in their professional licensing and discipline functions. When a complaint alleging professional misconduct by a dentist is received, the Department investigates the complaint and then refers it to a professional cоnduct officer designated by the Regents. If the professional conduct officer finds that there is substantial evidence of misconduct, the Department prepares charges of the alleged misconduct. The charge is then tried before a hearing panel composed of members of the state dentistry board and a public representative who may or may not be a member of the state dentistry board or another professional board. The Department also designates an administrative officer who does not vote but who rules on motions, procedures, and legal objections, and drafts the panel‘s final written report, which contains findings of fact, a determination of guilt or non-guilt on each charge, and a penalty recommendation. The dentist and his counsel may appear before the panel, and the dentist may make a written response prior to the hearing. A Regents review committee, appointed by the Board of Regents and including at least one Regent, reviews the panel‘s report. The dentist may also appear, and may be represented by counsel, before the Regents review committee. The review committee submits its report, in conjunction with the hearing panel‘s report and a transcript of the hearing, to the Regents, who determine whether the dentist is guilty or not guilty of each charge and determine any penalty to be imposed. The dentist may sеek further review of the Regents’ decision by bringing an Article 78 proceeding in the Appellate Division, Third Department.
The gravamen of Kirschner‘s claim is that the complaints filed against him, and the findings against him, were impermissible efforts to silence his expression of his belief that the vast majority of patient complaints identified as TMJ are not due to dental conditions and should not be treated dentally. Kirschner‘s suit against Catone, Director of the Office of Professional Discipline, Mills, Commissioner of the Education Department, and Hayden, Chancellor of the Board of Regents, seeks declaratory and injunctive relief against current and future prosecution based on statements made by Kirschner in his IMEs. Kirschner‘s suit against Klemons alleges that defendant Klemons used state disciplinary procedures for the unconstitutional purpose of silencing Kirschner‘s opposition to dental treatment of TMJ. Klemons acted as a witness for the prosecution against Kirschner, and Kirschner alleges that Klemons has advocated using state disciplinary procedures to silence opponents of the dental treatment of . . . TMJ by attending dental society conferences and pass[ing] out model forms of complaint, suggesting that . . . members accuse dentists of fraud if they render[] opinions against TMJ claimants. Further, Kirschner alleges that Klemons drafted one of these model complaints to assist in prosecuting Kirschner. Moreover, Kirschner‘s suit against Dr. Jay Goldman claims that Goldman is also a TMJ dentist and that he used a model complaint draftеd by Klemons to assist three of his patients in filing complaints against Kirschner due to his malice towards Kirschner. Finally, Kirschner brought state law claims against Goldman and Klemons on the ground that they had acted improperly in bringing or helping others to bring complaints against him, and on the ground that Klemons violated Kirschner‘s right to confidentiality of the disciplinary hearings (before the Regents made their final decision), guaranteed by
After the hearing panel made its recommendations, but shortly before the Regents were scheduled to make their decision, Kirschner moved in the district court for a preliminary injunction to enjoin the Regents from publishing their decision for a brief period of time, until Kirschner could bring his Article 78 proceeding and obtain a stay of enforcement. The district court (Casey, J.) denied Kirschner‘s motion for preliminary injunction in an oral ruling on the grounds that the Younger doctrine required abstention, and that Kirschner had in any case not satisfied the requirement of irreparable harm needed to obtain a preliminary injunction. The district court simultaneously dismissed the entire action.
Kirschner then filed his Article 78 proceeding seeking review of the Regents’ decision. After hearing oral argument, the Appellate Division, Third Department, entered a stay of enforcement of the Regents’ penalty, and, as a practical matter, prohibited the state from disseminating the Regents’ decision against Kirschner. The Appellate Division ultimately found that substantial evidence did not support the Regents’ findings thаt Kirschner had practiced dentistry with gross incompetence, or had practiced dentistry with incompetence on more than one occasion, and vacated those findings, and the concomitant penalties against Kirschner. The Appellate Division did, however, affirm the Regents’ finding that Kirschner had failed to follow proper infection control procedures in that he did not wear gloves while performing an IME on one patient, and the associated penalty, a five hundred dollar fine. See In the Matter of Kirschner, 711 N.Y.S.2d 65 (App. Div. 3d Dept. 2000).
Kirschner now appeals the dismissal of his case by the district court, and defendants-appellants contend that Younger abstention is required as to every claim.
DISCUSSION
In Younger v. Harris, 401 U.S. 37, the Supreme Court stated the рrinciple that a federal court may not enjoin a pending state criminal proceeding in the absence of special circumstances suggesting bad faith, harassment or irreparable injury that is both serious and immediate. Gibson v. Berryhill, 411 U.S. 564, 573-74 (1973). The cost, anxiety, and inconvenience of having to defend against a single criminal prosecution does not constitute the necessary type of irreparable injury. Huffman v. Pursue, Ltd., 420 U.S. 592, 601-02 (1975) (internal quotation marks and citation omitted). More recently, the Supreme Court has explained that [t]he policies underlying Younger are fully applicable to noncriminal judicial proceedings when important state interests are involved. Middlesex County Ethics Comm. v. Garden State Bar Ass‘n., 457 U.S. 423, 432 (1982). Therefore, unless state law clearly bars the interposition of the constitutional [or federal] claims, and so long as there is no showing of bad faith, harassment, or some other extraordinary circumstance that would make abstention inappropriate, the federal courts should abstain. Id. at 432, 435 (internal quotation marks and citation omitted). Younger itself explained that exceptions to abstention should be made only on a showing of bad faith, harassment, or . . . other unusual circumstance. Younger, 401 U.S. at 54.
Kirschner concedes that the ongoing proceeding in his case is a judicial proceeding involving important state interests. However, he disputes the applicability of Younger primarily on the grounds that the special circumstances, Gibson, 411 U.S. at 573-74, of his case involving bias bring it within the exception, and that the necessary predicate that the claims are capable of adjudication in the ongoing state proceeding has not actually been satisfied. Kirschner contends that his claims cannot be barred under Younger both because he cannot obtain all of the relief he seeks through his Article 78 proceeding, and because individuals acting in their private capacities do not receive the protection of Younger.
Goldman and Klemons counter that Younger is fully applicable to the claims Kirschner raises against them as individuals. The official defendants, Catone, Mills, and Hayden, argue that Younger abstention is required as to Kirschner‘s claims against them, since the prerequisites for Younger abstention are met, bias was not present, and Kirschner can obtain any relief to which he is entitled (as against the official defendants) in his Article 78 proceeding.
regardless of when . . . [a state court‘s] judgment bec[omes] final, . . . a necessary concomitant of Younger is that a party . . . must exhaust his state appellate remedies before seeking relief in the District Court, unless he can bring himself within one of the exceptions specified in Younger . . . . [I]t is typically a judicial system‘s appellate courts which are by their nature a litigant‘s most appropriate forum for the resolution of constitutional contentions . . . . [W]e do not believe that a State‘s judicial system would be fairly accorded the opportunity to resolve federal issues arising in its courts if a federal district court were permitted to substitute itself for the State‘s appellate courts.
Id. at 608-609. Kirschner has not alleged that he has exhausted all avenues of appeal from the state proceeding. We therefore must examine whether any other prerequisites for Younger abstention are absent, or whether the Kirschner has shown special circumstances that would warrant an exception to Younger.
Additionally, we note that it is irrelevant to the application of Younger that Kirschner‘s constitutional claims in this appeal were not addressed by the Appellate Division. The Appellate Division noted that it decline[d] to address petitioner‘s further contentions [i]n light of its decision to vacate the most serious of the findings against Kirschner. In the Matter of Kirschner, 711 N.Y.S.2d at 69. It did not state that Petitioner‘s contentions could not be addressed in an Article 78 proceeding; to the contrary, the Appellate Division‘s statement implied that the proceeding was a proper place to raise the claims, since the Appellate Division decline[d] to address them [i]n light of its decision on the merits. Id. The language of Huffman indicates that the questiоn whether the state‘s procedural remedies could provide the relief sought does not turn on whether the state will provide the relief sought by the plaintiff before the federal court. Kirschner has made no showing that the State‘s laws, procedures, or practices would prevent his effective interposition of his federal contentions.
A. The Younger doctrine requires dismissal of Kirschner‘s claims against Catone, Mills, and Hayden for declaratory relief.
As to his claims against Catone, Mills, and Hayden, Kirschner argues that he is entitled to declaratory relief1 (and attorneys’ fees). The Younger doctrine is as applicable to suits for declaratory relief as it is to those for injunctive relief; the Supreme Court held in a companion case to Younger that Younger‘s policy would be frustrated as much by a declaratory judgment as it would be by an injunction. Samuels v. Mackell, 401 U.S. 66, 73 (1971). Kirschner argues that Younger abstention would be inappropriate for three reasons: (1) the state Article 78 proceeding cannot provide him with all of the relief he seeks, including declaratory relief and attorneys’ fees, and thus state law clearly bars the interposition of [his] constitutional claim[], Middlesex, 457 U.S. at 432 (internal quotation marks and citation omitted), so that Younger abstention would be improper, (2) even if he could bring a separate action in state court for declaratory relief, he is under no obligation to do so and is entitled to a federal forum for his claim, and (3) bias so plagued the disciplinary proceedings that an exception to the Younger doctrine applies.
As for attorneys’ fees, even if it were true that state law did not provide for their award (or did not provide for their award on terms as favorable as federal law), we doubt that this would render Younger inapplicable. The Younger abstention policy presupposes that the plaintiff be able to interpose his federal defense against a criminal or regulatory proceeding in the state court; it does not require that all the procedures for the interposition of the federal defense be as advantageous in the state court as in the federal action. In any event, Kirschner cites no authority for the proposition that attorneys’ fees are not recoverable in such an action in an Article 78 proceeding; he merely makes a naked assertion. Since Younger abstention is required unless ‘it plainly appears’ that the federal claims cannot be determined in the state proceeding, his conclusory assertion regarding attorneys’ fees cannot suffice. See Middlesex, 457 U.S. at 435 (implying that would-be federal plaintiff facing Younger doctrine bears burden of demonstrating that the claim cannot be adjudicated in the state proceeding) (quoting Younger, 401 U.S. at 45).2
Kirschner‘s second contention - that regardless whether his claims could be adjudicated in state court, he is entitled to a federal forum - has no merit. It simply disregards Younger. The defining feature of Younger abstention is that even though either a federal or a state court could аdjudicate a given claim, when there is an ongoing state proceeding in which the claim can be raised, and when adjudicating the claim in federal court would interfere unduly with the ongoing state proceeding, the claim is more appropriately adjudicated in state court.
Finally, we reject Kirschner‘s contention that bias so plagued the state disciplinary proceedings that a Younger exception applies (or that the prerequisites of Younger have not been met). Mere conclusory allegations of bias are insufficient to overcome Younger - a plaintiff seeking to avoid Younger must affirmatively demonstrate the justification for application of an exceptiоn. Cf. Gibson, 411 U.S. at 579 (implying that presence of impermissible bias is a mixed or factual question to be determined by district court in deciding whether abstention is warranted); Cullen, 18 F.3d at 104 (same).
In addressing whether bias drove the proceedings against Kirschner so that Younger abstention would be improper, when the district court ruled on Kirschner‘s motion for preliminary injunction, it held that Kirschner‘s claim of bias on the part of the hearing panel had no relevance to the question whether the Regents should be enjoined from publishing their decision until Kirschner could obtain appellate review. The district court reasoned that to avoid Younger, any bias would need to be on the part of the Regents, since the Regents were the body against which Kirschner sought a prеliminary injunction. This conclusion is inconsistent with the Supreme Court‘s language in Gibson:
Here the predicate for a Younger v. Harris dismissal was lacking, for the appellees alleged, and the District Court concluded, that the State Board of Optometry was incompetent by reason of bias to adjudicate the issues pending before it . . . . Nor, in these circumstances, would a different result be required simply because judicial review, de novo or otherwise, would be forthcoming at the conclusion of the administrative proceedings.
Id. at 577. It is also inconsistent with our holding in Cullen, where we affirmed a district court‘s injunction of a disciplinary proceeding against a schoolteacher after the (prosecutorial) actors deemed to be acting out of retaliatory animus had already acted, when the pending proceeding was by a body which was not alleged to be biased. See Cullen v. Fliegner, 18 F.3d 96 (2d Cir. 1994).
First, Kirschner bases much of his complaint that the proceeding was irreparably biased on his allegations regarding Klemons: that he specializes in the treatment of car accident-caused TMJ, and has advocated using state disciplinary procedures to silence opponents of the dental treatment of . . . TMJ by attending dental society conferences and pass[ing] out model forms of complaint, suggesting that . . . members accuse dentists of fraud if they render[] opinions against TMJ claimants. Further, Kirschner claims that the fact that Klemons violated his right to confidentiality demonstrates Klemons‘s bias against him. Klemons apparently revealed the existence of disciplinary proceedings against Kirschner when Klemons wrote a letter to an insurance company protesting their selection of Kirschner as the dentist to perform an IME on Klemons‘s patient, pointing to the fact that charges were pending against Kirschner and citing questionable statements attributed to Kirschner during the hearings.
Klemons, however, was not an adjudicator or a prosecutor in the proceeding - he was merely called as a witness by the prosecution. The analysis might be different if Kirschner demonstrated that the prosecution selected Klemons out of bias against Kirschner and his views, but Kirschner‘s contentions on this point are insubstantial.
Second, Kirschner argues that improper motivation of the prosecution and adjudicators is evidenced by the fact that the penalty recommended by the Office of Professional Discipline‘s hearing panel was grossly disproportionate to his purported offense. However, Kirschner has not even alleged, much less presented evidence, that any dentist was less severely penalized for similar conduct.
Third, Kirschner claims that the proceedings were incurably biased beсause Dr. Ronald Maitland, the chairman of the hearing panel, was biased. After the hearing panel recommended that Kirschner be found guilty on all charges, but before the Regents had made an actual decision, Kirschner hired a private investigator to investigate Maitland. Kirschner contends on appeal that the investigation revealed pecuniary interest on Maitland‘s part in silencing Kirschner, since Maitland was found to be a dentist who does at times diagnose patients with TMJ and direct them to use the MORA appliance. Kirschner also claims that this finding by the investigator (1) shows that Maitland lied when questioned about possible biases he might have before the hearing panel‘s hearing began, and that Maitland‘s lying must have been because he wished to remain on the panel and carry out his personal vendetta against Kirschner, and (2) shows that the Regents were hopelessly biased against Kirschner because they were unmoved by the evidence unearthed by his investigation of Maitland and still imposed a penalty upon him. However, the evidence relating to the results of the investigation does not show that Maitland lied about anything, much less that he would have any significant pecuniary interest in silencing Kirschner. The Regents may well have made no comment on Kirschner‘s allegations about Maitland because they determined that the charges were unfounded, not because they were solidly biased against Kirschner. The Regents’ laсk of response to Kirschner‘s allegations does not show bias.
Kirschner‘s other allegations of bias are relatively conclusory, and we do not address them in detail here. Instead, we simply note that they are unsupported and insubstantial. Since Kirschner has failed to show that an exception is applicable, Younger requires that we abstain from hearing Kirschner‘s claims for declaratory relief against Catone, Mills, and Hayden. The district court correctly dismissed these claims.
B. The Younger doctrine does not require dismissing Kirschner‘s § 1983 claim for damages against Klemons.
Kirschner‘s complaint included a claim for damages against Klemons under
Moreover, we note that the other prerequisites for Younger abstention may not be met as to this claim, because it is highly unlikely that Kirschner could bring his
Because we reinstate Kirschner‘s
D. No jurisdiction exists over Kirschner‘s state law claims against Goldman.
Regarding Kirschner‘s state law claims against Goldman, we need not reach the question of Younger abstention because we affirm the district court‘s dismissals on jurisdictional grounds. Kirschner does not claim that diversity jurisdiction is available as a source of federal jurisdiction over his state law claims against Goldman, so the claims can be maintained only if the exercise of supplemental jurisdiction is appropriate.
We have previously observed that
CONCLUSION
We AFFIRM the district court‘s dismissal of the claims for declaratory relief against Catone, Mills, and Hayden, and AFFIRM the dismissal as against Goldman, but VACATE the dismissal of the claims against Klemons.
LEVAL, CIRCUIT JUDGE