P. Sidney Neuwirth, D.D.S. v. Louisiana State Board of Dentistry

an administrative lenged action of imported tex- quotas on imposing

agency Arrange- to the Multi-Fiber pursuant

tiles contended trade association

ment. The harmed its irreparably quotas costs, delays, through additional

members subject orders

embargoes disruption court,

to irrevocable letters of credit. subjective ex- held that the mere

pectation a future transaction business rise to of an interest

does not the level protection. Id.

worthy of constitutional case, present Needville did

In the of future rail expectation justifiable

have a suspended for Service had been

service. peti- Southern year before

more than abandonment, and expedited

tioned provided evidence indicat- no

Needville

ing would warrant rees- that conditions in the forseeable of rail service

tablishment still when served

future. Even Southern line, transported Guy Branch Needville products by rail and the rest of its 3%

primarily by truck. reasons, decision is these the ICC’s

For

AFFIRMED. NEUWIRTH, D.D.S., Sidney

P.

Plaintiff-Appellant, DEN- STATE BOARD OF

LOUISIANA al, Defendants-Appellees.

TISTRY, et

No. 86-3902. Appeals, States

United

Fifth Circuit.

May Orleans, La., Quigley,

William P. New plaintiff-appellant. Hakes, Wootan, Guy Patricia J. Wootan Stakelum, Orleans, La., New William J. & Gen., La., Guste, Jr., Atty. Rouge, Baton defendants-appellees. WISDOM, GARWOOD, and Before JONES, Judges. Circuit JONES, Judge: EDITH H. Circuit Sidney filed this Dr. P. Neuwirth action, alleging that the refusal of § Dentistry State Board of the Louisiana pursuant grant him a dental license to its reciprocity violated his constitution- statute statutory rights seeking declara- al and The tory injunctive relief therefore. found that Dr. Neuwirth had District Court constitutionally protected property or no obtaining liberty a waiver of interest requirement Louisiana’s examination dentistry. Alterna- practice admission tively, the court held that Dr. Neuwirth process and procedural due had received pro- deprived of substantive was not by the dental board. cess Neuwirth, Sidney Appellant P. D.D.S., practice dentistry licensed to 1938,2and an Assist of Illinois since at the Louisiana ant Clinical Professor Dentistry University since School State dentistry practice sought a license grant was In 1983Neuwirth Louisiana. by the Louisiana ed restricted license to La. Dentistry pursuant State Board of (West 1974).3 37:752(3) Rev.Stat.Ann. § occasions, ap separate Neuwirth On three by reci general special license plied for a pursuant to La.Rev.Stat.Ann. procity 1974). (West applica- All three 37:768 § (West agree Supp.1986). We do not § 1. 42 U.S.C. 1983. appellee’s that this amendment contention 2. Dr. Neuwirth dentistry practiced in Illinois a constitu- Dr. Neuwirth had moots the case. If 1980, except period from 1938 until for a of two liberty property tionally protected interest years Army, in the U.S. active service before amendment, its the statute before under moving to to teach LSU’s dental Louisiana might arguably Dentistry have action Board’s school. injury from that vio- violated that interest. change despite in the law. repealed by lation remains Section 37:768 was the Louisiana legislature in 1986. See La.Rev.Stat.Ann. pro The Eleventh Amendment Each by the Board. denied were tions vides: appli- informed that time, was Neuwirth judicial power was the of the United States because it denied

cation was any shall not be construed extend to regular dental li- policy to Board’s in equity, suit in law or commenced or pro- through the examination censes prosecuted against one the United given also time, was cess. Each Subjects Citizens or States present his case before to opportunity the Foreign State. Board. the language has been construed to bar 1986, February In Neuwirth filed this ac- brought against actions federal court Board of the Louisiana State against tion governments by anyone state other than D.D.S., Chustz, the Roy and Dentistry J. government or the federal another state. Dentistry, alleg- Board President Hosp. & See Pennhurst State School v. applications his “are Halderman, 89, 97-102, denials of ing the that 104 S.Ct. basis, contrary (1984). to state 900, 906-09, 79 67 without rational L.Ed.2d Absent capricious.” arbitrary by and a waiver or consent the state or an law and immunity capaci- express negation act of only in his sued official was Chustz Congress, prohib- the eleventh amendment court requested the district ty. Neuwirth awarding its federal court from either declaring that (1) judgment to enter against legal equitable relief the state. statutory rights were vi- and constitutional Allain, 265, Papasan v. 106 S.Ct. olated; (2) the defendants order 2932, 2939, (1986). 92 L.Ed.2d 209 How- by reciprocity or issue him full license ever, exception rule first an- an to this granted a not been why he has reasons Young,5 nounced in Ex Parte enables give opportunity him the license pro- a suit for federal court entertain reasons; (3) award him those contest against spective relief a defendant state filed a attorney’s fees and costs. Neuwirth allegations violated upon officer alleging judgment summary motion law, legal on federal based fiction granting policy of the defendants’ acting pursu- cannot then be a state officer reciprocity violates the general licenses authority. Papasan, 106 S.Ct. ant fourteenth process clause the Louisiana at 2939-40. Whether amendment. is Dentistry or Chustz entitled immunity are distinct eleventh amendment noted, granted As the district court de- issues. summary judgment. fendants’ motion board. consider first the dental We pur amendment for eleventh “State” parties Neither the nor trial Healthy poses agencies, Mt. includes suggested that the eleventh amend v. City District Bd. Education School ment bar the federal jurisdic court’s 568, 274, 50 97 S.Ct. Doyle, 429 U.S. Appellees, tion to hear this case. (1977), appeal after remand L.Ed.2d 471 argument raised the issue at oral before us Cir.1982), (6th “political but 670 F.2d 59 days a letter a prior few thereto. Country Lake subdivisions” of the state. may properly We consider issue even at Estates, Planning Regional Inc. v. Tahoe stage this proceeding, because of the 401-02, 391, 99 S.Ct. Agency, 440 U.S. strong federalism concerns behind the (1979). 1171, 1178-79, 401 amendment. House, See Oyster Voisin’s Guidry, 183, (5th Inc. v. F.2d 799 188-89 In v. Parish School Minton St. Bernard Cir.1986); Boyd Co., McKay Cir.1986), v. 129, Const. 769 Bd., (5th 803 F.2d 131 1084, 1086(5th Cir.1985).4 F.2d determining forth six factors Court set 2557, 2567-68, 73 Whiting University, U.S. 102 S.Ct. v. Jackson State See also Cir.1980); (1982). Charley’s 127 n. 8 616 F.2d L.Ed.2d 172 Hawaii, Corp. Dispatch Taxi Radio v. Sida of (9th Cir.1987); Inc., F.2d 873 but see (1908). L.Ed. 5. 209 U.S. Florida, Regents Patsy Board State (5th Cir.1986), entity is entitled F.2d relief particular whether against immunity: barred the Board. amendment eleventh and case state statutes (1) whether injunctive Neuwirth’s claim for relief agency as arm the characterize against problematic. is more Chustz for the state; (2) of funds the source primary the claim issue is whether (3) autonomy local degree entity; exception Young falls within Ex Parte (4) enjoys; entity entity whether immunity in light of recent decisions local, op- primarily with favoring concerned its narrow construction7. Pa- (5) problems; whether to statewide posed pasan, Court described entity authority to sue and be applying Young to situations “where name; (6) underlying own whether in its which sued authorization (state) hold and use entity has the is asserted the named official acts illegal.” (citing Cory at 2940 property. White, these factors the Court Darlak Applying (1982)). L.Ed.2d 694 The Court further (5th 1055, Bobear, 1060 Cir. 814 F.2d Young stated that Department 1987), held that the Louisiana not does foreclose an Eleventh (DHHR) Human Resources Health and of challenge Amendment where official Hospital Louisiana at Charity New and illegal as actions are asserted to be a DHHR, Orleans, is part which a are (citation matter of state alone omit- immunity. entitled to eleventh amendment case, ted). In a supremacy such federal Dentistry is also Board implicated is not the state offi- because part of the DHHR. La.Rev.Stat.Ann. acting contrary is law only. cial to state (West Supp.1986). The Board 37:753A § added). (emphasis Id. appointed by consists twelve members way articulating point this Another is and the Governor is concerned with state exception courts that the “allows federal issues, i.e., prac regulation of the wide against if the hear suits state officials suit dentistry tice Louisiana. La.Rev.Stat. to force them to conform their con seeks 37:753B, (West Supp.1986). Ann. 37:760 §§ law,” apply duct to federal but does not addition, the funding In Board receives its “suits which would seek to have federal judgment against the state any from and order officials to conform judges state Board paid would be with state funds. Rotunda, their conduct to law.” No Darlak, Although 814 F.2d at 1059. wak, Young, Law: Sub & Constitutional sued, authority Board has to sue and be Procedure, at and 1 2:12 89 stance Vol. § 37:785, 37:786, La.Rev.Stat.Ann. §§ Pennhurst, (1986); 89, at see also 465 U.S. (West Supp.1986),the existence of the oth 900; County 104 S.Ct. at Oneida v. er factors the Board demonstrates that is 226, Nation, 470 U.S. Indian 105 Oneida ego of the alter the State of Louisiana. 1245, (1985), 84 169 rehear S.Ct. L.Ed.2d negate Because 1983 not does state’s 1061, 2173, 471 105 S.Ct. ing denied U.S. immunity, eleventh amendment Penn (1985). 85 L.Ed.2d 491 hurst, 99, 907; 465 U.S. at Voisin’s, 186, right 799 F.2d and the Board relief in at is Dr. Neuwirth’s federal ego Louisiana, depends the alter thus his claim State court on whether suit,6 violation, not implicates consented to see con- which Fire constitutional Dept. Fund Transp. man’s Ins. trasted with a violation of state law alone. Co. Louisiana, Development, this, jurisdiction and like our State 792 cases where 651, See, Jordan, appeared e.g., 6. The fact that the Board has Edelman v. 94 (1974); and did case raise below an eleventh S.Ct. 662 Motel 39 L.Ed.2d Chiz's amendment Restaurant, Com'n, defense can not be construed as a Tax v. Miss. State Inc. immunity waiver. A state’s of its waiver must Cir.1985); Pennhurst, (5th 750 F.2d express unequivocal. be Edelman v. Jor- 900; Papasan, U.S. at 1347, 1361, 651, 673, dan, S.Ct. U.S. 662; Barnard, L.Ed.2d Clark v. (1883). 27 L.Ed. 780 “expectation” being the merits him an admitted to right to relief on appellant’s practice on a issues, practice is our basis and that the intertwining it are statutorily the issues Board’s refusal to exercise the and resolve usually discuss juris arbitrarily capri- of federal the basis founded discretion “When jointly. plaintiffs ciously deprived him of is intertwined with “fair” treatment diction action, the court should cause of under the law. His constitutional “inter- federal de case and jurisdiction purportedly over the thus ests” rest stat- assume upon general v. McCot on the merits.” Eubanks ute and to be treated cide it Cir.1986). ter, “fairly” by agency.8 802 F.2d state administrative seen, despite reject Dr. Neuwirth’s We these claims. As will us, persuade we do not efforts valiant major complaint Dr. Neuwirth's raising issue his lawsuit as perceive ruling about the adverse district court arguable of state violation than an other ignored the trial La.R.S. 37:768 law. on him and the entitlement confers to be of the four clause recipro considered for an examination-free protects person from amendment teenth response cal license. Our brief that the life, property with liberty or deprivation of statute, ignore court did and the “due process of Whether law. out obviously statute does not confer such a plaintiff is has been accorded process” observed, right. As the district court unless demonstrates not material provides Dentistry statute a constitution deprived him of action qualified “may” reciprocal licenses to interest. Dr. Neuwirth’s ally protected by waiving from of dentists out state this first hurdle—he has founders on claim requirements. exam Use of word grievance to the his state not elevated law language opposed mandatory to “may” as liberty interest deprivation property of a legisla to has been found indicate “shall” constitution. protected by the intention to discretion on the ture’s bestow that, agency charged apply to the statute. “Although underly- It is settled Bd., Mississippi by ‘an v. Parole interest is created See Scales State ing substantive 565, (5th 1987); law,’ fed- F.2d 565 Cir. Board such 831 independent source — U.S. -, Allen, 107 v. S.Ct. Pardons eral constitutional determines whether (1987); 2415, v. ‘legit- 96 L.Ed.2d 303 Greenholtz rises to the level that interest 1, Inmates, 442 U.S. 99 protected by the Penal claim of entitlement’ Nebraska imate (1979). 2100, Memphis Light, 60 L.Ed.2d 668 S.Ct. Due Process Clause.” 1, Scales, court, finding Mississippi that a Craft, this & Water Division v. Gas constitutionally 1554, 1560, (1978) parole 9, created no 56 L.Ed.2d 30 statute interest, “The dis- protected liberty stated: (quoting Regents Col- Board State 564, 577, prisoner shall Roth, between whether a 408 U.S. 92 S.Ct. tinction leges given critically differenti- 2701, 2709, (1972)). parole The or 33 L.Ed.2d 548 release, and hence expectation of provides that ates his applicable Louisiana statute clause of rights process the due Dentistry] may a his under board issue [of “[t]he 831 F.2d at reciprocal terms. fourteenth amendment.” license without exam” on added). language (emphasis precatory The 566. Similar La.R.S. 37:768 necessarily leads to statute admittedly refused ever Louisiana issue over discretion that absolute reciprocal license without examination to conclusion policy has been con- reciprocity qualified Louisiana. Dr. Louisiana’s dentist outside of The stat- Dentistry Board.9 gave on the contends that the statute ferred Neuwirth and, impliedly, specific exclusive acknowledges that has no ence to 8. Dr. Neuwirth nonissuance, suspension or revoca- prac- grounds for general, interest in abstract constitutional license, in R.S. enumerated passing of a dental ticing dentistry tion in Louisiana without according provision, The latter 37:776. examination. dissent, suggests "strongly the exercise that deny be tailored interpretation license should suggests our discretion dissent that disagree. Two application." We qualified by particular "may" refer- in R.S. must be assumption Louisi protect- that the Board violated constitutionally to no gives ute rise law, necessary ana “is neither a nor a that by Dr. Neuwirth. ed enforceable interests finding for a sufficient condition of a Leis v. harmonizes with result v. Tarrant Coun Stern process violation.” 438, 99 S.Ct. 58 L.Ed. Flynt, 439 U.S. Dist., Hospital F.2d ty (1979), in which the 2d 717 cert. denied Cir.1985) banc), (en protected right of constitutionally found no (1986). 90 L.Ed.2d 106 S.Ct. appear pro hac vice in a attorney appropriate standard is one of federal prac he was licensed to state which law. responded even if that tice The Court law. standard, In advocating a “fairness” attorneys had “reasonable petitioning suggests that he is entitled to service,” these professional expectations receive process, i.e., substantive due fair mutual, explicit the level did rise to result, ness of appli in connection with his necessary to understanding the state cation for an examination-free license. The entitlement, because create a constitutional process contours of substantive due are not consigned Supreme Court rules the Ohio See, starkly etched, e.g., say the least. vice appear pro hac permit authority Stewart, discussion Brennan v. 834 F.2d court’s the trial discretion. ances to 1988). 1248-49, (5th Cir. We can U.S. at affirm, however, plea Neuwirth’s for a standard is “fairness” not within ar- embellishes his basic Appellant First, those contours for two reasons. He gument, contends however. foregoing analysis demonstrated that he grant reciprocal never to Board’s decision no constitutionally protected interest examinations, in the face without licenses practicing dentistry in Louisiana without requiring them to exercise a statute taking an examination. Such constitution arbitrary discretion, irrational is an ally protected prerequisite interests are a abuse of discretion violates asserting a substantive vio “fairly” by the be treated state. See, e.g., Regents University lation. this argument To the extent de Michigan Ewing, 223 and finding pends of state on our violation 8., n. 512 and n. law, purported the neither the violation nor Stewart, 523; 834 Brennan F.2d at 1257- argument supports is The compelling. stating Louisiana law is whether in interest, issue of Second, if he had such an even Dentistry “may” grant that Board re the Supreme gauged the has the consti- Court examination, ciprocal an licenses without protection tutional of “non-fundamental” conferring and outcome, thus in discretion on the rights rationality by of not fair- reciprocal applica Board to evaluate license arbitrary is so and ness. If state action tions, legislature say irrational, also infringe- the intended to capricious to be its as may every elect not to constitutionally protected Board do so in ment inter- on a already case. We have indicated that the est substantive due violate Regents University Mi- rights. to have See appears Board absolute discretion of of chigan Ewing, in matters. Even U.S. 106 S.Ct. these on the dubious significant terminology imported reciprocal into § far more outweigh be differences in must establish, might impact upon licensing R.S. Board of scheme the granting reciprocal suggest licenses the Board of without examina- their existence does not that First, reciprocal together La.R.S. 37:760 lacks decline all licens tions. provide and 761 discretion to examination, “may” ap- ing for the in award dental licenses without Second, examination, plicants pass satisfy who an the dissent overlooks the indicates. criteria, using precatory emphasis Supreme without Court in Board other "may" U.S. -, — reciprocal provi- Allen, contained in the license Pardons v. "strongly suggests" comparison purposes sion. This "shaU" the word use of legislature grant very liberty constitutionally-protected knew how broad in creating a — U.S. -, over discretion holding licenses while with- S.Ct. terest. framing objective "may” simply such discretion are "Shall" 96 L.Ed.2d applicants pass criteria for and those who would purposes, local as the dissent present not for Moreover, depend an exam. even if synonymous the criteria interchangeable or imply, ing upon syntax. (state university’s process. dis- thus denied Schware due 507, 88 L.Ed.2d arbitrary);10 emphasized, not of student was Court a state missal Maryland, Corp. v. Governor require high qualification Exxon standards of can long practice for the of law so as such (1978) gasoline market (regulation of retail connection standards have rational rational). part company here We found appellant’s invidiously fitness and are not at- gravamen of Dr. Neuwirth’s with discriminatory. only Not does Schware Board, Dentistry because we on the tack rationality comport standard of re- denial of an examina- Board’s find action, of the state’s but it was also a view Dr. was not Neuwirth tion-free license in which the effect New Mexico’s case observed, As the district irrational. prac- prevent Schware from action was Dr. should charac- it is ironic that ticing Dentistry in law New Mexico. The policy requiring all terize consistent Board, contrast, imposed no disabl- dentistry professional to take a applicants Neuwirth, who, ing restriction on Dr. capricious. arbitrary and examination found, actively practices district court den- Bar Examiners v. Board Schware tistry Den- under restricted license. The Mexico, 353 New the State of tistry requires asks and him to (1957), although 752, 1 L.Ed.2d 796 licensing pass a examination order behalf, does cited Dr. Neuwirth’s full obtain a license.11 rule. proffered “fairness” support slightest We do demean in the Schware, appellant had been denied the professional impressive Neuwirth’s creden- examina- right to the New Mexico bar take Board, Dentistry If on the tials. we were largely he had been a member tion because given were discretion to decide which years party some earlier of the Communist practitioners licensed out-of-state should be for this reason was said not fulfill practice in Louisiana admitted without requirement for Mexico’s character New examination, professional passing the Abundant, attorneys. uncon- prospective probably among our Neuwirth would law-abiding of Schware’s tradicted evidence But the first candidates such waiver. conduct, military honorable record and on of our is that we are not point decision years good for over ten immedi- character Board, Dentistry nor have we been application appeared in ately preceding his governmental authorities selected Court held that the record. practice who rationally Louisiana to determine should Mexico did not act in ex- New policy of cluding dentistry.12 up To set a firm from the bar exam and Schware not, deny majority Ewing could he did not 11. Dr. Neuwirth does nor 10.The assuring has a vital interest that Louisiana specifically hold that student has a constitu- See, e.g., qualifications of Allen its dentists. tionally protected at a to remain Dentistry, F.2d v. Louisiana State Board university, it the existence of such of but assumed (5th 1988). Cir. proceeded to decide that the state a and Ewing. arbitrarily it not withdrawn from had argument proposi- on two 12. The dissent’s rests 512; at also Justice at see ‘‘legitimate a claim tions: that Neuwirth had Dr. concurrence, suggesting that no sub- Powell’s under exam; to a license of entitlement” rights process implicated were stantive due 37:768, having to take an La.R.S. without Ewing's case. 474 U.S. at pro- he was entitled to "individualized" has of a Our Court noted existence 515-16. process it due from the Board when cedural among split the circuits over the extent of due application. If were the sum his this reviewed rights process protections property for after Ew- case, Dr. would of constitutional Neuwirth his Huntsville, ing. Schaper City v. 813 F.2d hearing of than another be entitled to no more Cir.1987). Schaper held a 717 n. 8 Board, remedy for because that is before process right due exists in continued substantive asserting process that Dr. due violations. pretermin- employment state but does not affect to more relief—i.e. Neuwirth be entitled govern procedure. Schaper does ation not dissent seems the issuance of a license—the one, prospect process procedur- case like this which deals with with confuse substantive which, professional process impose license in as we have court's al due and would found, constitutionally court’s was enforceable addition to this there no on the state result application right. procedural requirements. Such an Neuwirth, pleadings his are flawed—at Louisiana dentists to would-be requiring all point. examination, profes- least at this irrespective of an pass not us as background, does strike sional agree pleaded, As I this case has been or irrational. is capricious arbitrary, majority eleventh amend with any dis- in the absence of particularly so ment determines the outcome. Under this not function motive. It is our criminatory Bobear,2 v. court’s decision Darlak resort for all those last to be the Dentistry Louisiana State Board an agen- the outcome of state dissatisfied with ego alter State Louisiana case, although Dr. cy action. Neuwirth’s immune from suit. Because of therefore represent that af- not sympathetic, does Dr. to name all the Neuwirth's failure see, decency, common notions front to defendants, members of the Board as his 165, 72 California, e.g., Rochin request for relief does not fit within the (1952), infringe 96 L.Ed. S.Ct. parte Young.3 reach of Ex “fundamental interests” that one majority, The ventures far be- implicitly have been viewed as previously necessary yond principles decide this Regents protected by the constitution. appeal. declaratory judgment The and in- Michigan Ewing, University of requests junction Dr. are Neuwirth (Powell, J., 229, 230, 106 at 516 at by necessarily relief barred the eleventh concurring). Only pleading puts defect amendment.4 request injunction court is for judgment of the district Dr. Neuwirth’s an Young: outside Dr. Neuwirth asks an AFFIRMED. license, grant the Board him a order that WISDOM, dissenting: Judge, Circuit defendant in his but names Dr. Chustz president. capacity official as Board Dr. Sidney qualified Dr. is a P. joined the other Neuwirth should have practised in the experienced dentist who himself, By members of Board. when state of Illinois from 1938 until 1981 powerless grant Dr. Chustz is Neu- position as an accepted serve As- application ap- a license.5 The wirth’s at sistant Clinical Professor the Louisiana propriate response to Dr. Neuwirth’s error University Dentistry. State School prejudice.6 is dismissal without Dentistry Louisiana State Board de- requests nied need for a license based on a The merits of Dr. Neuwirth’s claim reciprocity Unfortunately statute.1 addressed.7 Because the have been hand, ignores On other substantive the rationali named defendant. ty judging directly bring constitutionality end to a test for that serves most relief fundamentally, present flies violation law is not barred actions. More of federal though by of our even ac- face en banc decision in Stern v. the Eleventh Amendment holding ancillary County, supra, companied a substantial on Tarrant that fourteenth effect treasury. 278, are amendment violations decided federal simplistic L.Ed.2d tautology rather than 478 U.S. at S.Ct. at standards Miller, added). Wright, (emphasis also state law See violation. Cooper, Procedure Federal Practice and (West 1974). 1. La.Rev.Stat.Ann. § (1984 Supp.1987). & § 3524 at 196-96 & n. (5th Cir.1987). (West 1974). 37:754(A) 2. 814 F.2d 1055 See 5. La.Rev.Stat.Ann. agree repeal House, I also that the of La. 37:768 does Oyster 188-89. 799 F.2d at Voisin’s majority opinion not moot this case. See note 3 injunctive inability relief Dr. 7. Our above. not, course, preclude requests Neuwirth does Gay 4. Student Services v. Texas A & M Wright, Universi declaratory relief. Fed.R.Civ.P.57. See 160, 3, (5th Cir.) ty, 612 F.2d 164 n. 165 cert. Miller, Cooper at & nn. 3-4. and 2758 620-21 § denied, 1034, 608, U.S. 449 101 S.Ct. alleges But because the harm Dr. (1980). Papa- Supreme As 495 Court said in by effectively an in- is remedied suffered san, junction ordering Board to him a license, reasonably compensate that could have re- Relief party injured in essence serves to a this court past by declaratory until it could also issue the illegal an action a fused relief 6, & n. injunction. state official ... law 2758 at 621-23 under federal is an See id. barred even state when the official 627-30 & nn. 9-10.

561 merits, however, expectation followed. this generally Were majority has reached recognized express my “property” or appropriate “liberty” pro- for me as it is by amendment, its of them. tected the fourteenth from view each dissent citizen would have a federal cause of action under Young whenever dis- I. official appointed these state law expectations important emphasize It is that process. go without due This would too Papasan majority does not hold that and far, Papasan and sensibly Pennhurst bar a fourteenth amendment Pennhurst recognize.9 process merely claim because that inquiry But the threshold in each due property upon claim is based interest process case remains whether the state law by state The defined law. interest at stake rises to the recognized determining level of consti- long what has tutionally-protected “property” or “liber- matter of mea- “property” is a constitutes ty”. Roth, Sindermann,10 Perry v. and by suring the defined state law interest progeny, their the Court yardstick. fleshed out the amendment against a fourteenth inquiry.11 substance sense, of this The process innovation all due claims—in- In this Pennhurst, followed in premised Papasan, was to Young one cluding the —are restate princi- these fourteenth amendment Reading law. a violation of state ples eleventh amendment if terms: and to bar them on Papasan Pennhurst plaintiff “property” process “liberty” has a in- the due would eviscerate this basis terest, Young affords federal cause of clause. amendment; action under the fourteenth if message Papasan and The Pennhurst not, the cause of action is under state law en- is that eleventh amendment send and suit be barred in the federal not go the fourteenth does so sures that courts the eleventh amendment.12 open the federal courts far as remedy every for the state law forum II. wrong: supremacy implicat- “federal is not acting puts us state official con- Whether or not innovation ed [when] track,13 right trary only”.8 law If not restrained on the it will take us nowhere to state understanding way, under consti- power in some federal the four- without what “liberty” “property” protected raise tutes teenth amendment could process wrong to the level of a due clause. Pennhurst guidance Papasan provide All set out little on this state laws rules that violation. expect point.14 majority’s each citizen will be treatment 277, 2940, Papasan, Papasan, requested. 478 U.S. 106 S.Ct. at at 8. at 92 the relief See 478 U.S. 226-27, 2940, 277, 226. L.Ed.2d at L.Ed.2d at 106 at 92 S.Ct. Dwyer, quoted 75 25 below. See also at note Dwyer, See Pendent Jurisdiction the Elev- 9. Calif.L.Rev. at 145-51. Amendment, 129, Calif.L.Rev. enth 75 not, argument it does thoughtful For 13. (1987). Eleventh Wrong Turns: Shapiro, see Case, Harv.L. 98 the Pennhurst Amendment 593, 2694, 408 U.S. 92 S.Ct. 33 L.Ed.2d 570 10. (1984). 61 Rev. (1972). Papasan It held not address issue. does 565, See, e.g., Lopez, Goss v. 419 U.S. 95 S.Ct. grants cre- Mississippi’s school land that even if 729, Davis, (1975); L.Ed.2d Paul v. 424 42 725 trustee, binding with the state as ated a trust 1155, 693, (1976); 96 S.Ct. 47 L.Ed.2d 405 U.S. constitutionally-pro- was and even if this trust Wood, 341, Bishop v. 426 U.S. 96 S.Ct. 48 plaintiffs’ -request "property”, tected (1976); Light, Memphis Gas L.Ed.2d 684 & Wa governor ordered to state officials be and other Craft, S.Ct. ter Division v. 436 U.S. 98 56 corpus pay original and accumulated earn- (1978); L.Ed.2d v. Nebraska Penal Greenholtz treasury ings to a "ret- amounted from the state Inmates, L.Ed.2d monetary barred relief’ roactive award of Allen, (1979); Board Pardons v. Jordan, U.S. Edelman v. -, (1987). L.Ed.2d 303 (1974). at Papasan, 39 L.Ed.2d 662 2941-42, 228- jur- L.Ed.2d limits on 12. Whether Pennhurst federal apply depends isdiction on the also nature nutshell, therefore, In when a goes, ... a as far as although correct subject, legitimate a claim of entitle- person has concept of consti short shrift makes benefit, protected ment to a he has a “property”. tutionally-protected him interest sufficient to entitle property in v. Ad opinion Mahone recent court’s “legitimate process. How these due concept discusses Utility District dicks equally of entitlement” arise is claims fully: more explained, Supreme clear. As the Court explained Roth, Supreme Court In by are not created “[Property interests interest,” “property the definition that Rather, they cre- are the Constitution. of the four- in the context it arises when defined and their dimensions are ated amendment, limited tra- is not teenth understandings existing rules or that Indeed, ownership. concepts of ditional independent source such as stem from an by pro- protected interests property “the state law.” beyond process extend well cedural mind, I principles these in do With estate, chattels, real ownership of actual majority so clear as the find it Consequently, money.” besides ... or “legitimate claim of en- has no real and interests in individual protecting reciprocal agree license. I titlement” to a amend- property, the fourteenth personal begin majority place with safeguards ex- process also ment’s language inquiry is of the statute the Roth person that a to the “interests tend establishing majori- But the the interest. specific in benefits.” already acquired inquiry begins and ends with constru- ty’s are questions, therefore when conferring ing “may” as absolute the word “interest person acquires an a and how a in the Board never discretion trigger will specific benefits” which moving qualified dentist license to a clause. The process the due This view of Louisiana from another state. explained “when” Roth: gives Dr. Neu- the interest Louisiana myopic. in a bene- strikes me as property interest wirth To have fit, person clearly must have more Constitutionally-protected property inter- desire for it. than an abstract need or hang single word. Broad ests do not on more than a unilateral He must have in the award administrative discretion must, instead, expectation of it. He benefit, precatory language in indicated legitimate claim of entitlement have statute, give rise to does not the relevant purpose to it. It is a of the ancient “property”.16 constitutionally-protected property protect those institution of Nonetheless, “may” appearance people rely in their claims which necessarily render R.S. 37:768 does lives, must not daily reliance that reciprocal in a license Neuwirth’s interest arbitrarily pur- say It expectation”. undermined. To mere unilateral “a right to a in the pose of the constitutional the Board has “discretion” begs the opportunity granting for a hearing provide licenses. a con- Dr. Neuwirth has question whether person to those claims. vindicate Pennhurst, indirectly speak relevant to a 911. Both considerations two considerations "property" “liberty” "legitimate plaintiffs underlie the claim of definition of had a whether the holding they Court's that the eleventh amendment particular treatment to the entitlement” sought: undisputed by the Court, barred relief for the failure reviewing law af- both the charge administrators in of the Penhurst state State School and school’s administrators, fact, care and health ter acting Hospital provide the fact, good faith before the found “minimally adequate habilita- residents open dispute. claim First, tion”. 465 U.S. at 104 S.Ct. at 904. Pennsylvania Mental Retar- Mental Health and (cita- 1988) Cir. 15. 836 F.2d gave much dation Act the administrators so 571-72, 576-77, Roth, 408 U.S. at tions to although discretion that their later actions— 2708-09, omitted). found to be in violation of the Act—could not be 11, 109-111, called "ultra vires". Id. at 101 & n. was, example, one basis of 16. This Second, 104 S.Ct. at 909 & n. 912-13. rejection claim in of the due court’s “good they officials acted in a complied faith" belief that Mahone. at 931. Act. Id. at agen- judgment applying All in the standards interest. set stitutionally-protected implementing by authority”; when him in discretion other cies exercise [or her] To the words, determine legislative commands. an official has discretion when the creates, R.S. 37:768 extent the interest statutory regula- standards set a or further, to the re- should look tory applied scheme “cannot be mechani- licensing as well as mainder of the statute Dworkin, cally.” supra, at 32 ... . is the of how the statute broader context in Court determined Greenholtz that commonly understood. presence the of official discretion in this incompatible sense not with the Allen, exist- Recently, in Board Pardons liberty parole interest ence in re- again explained the the Court the inquiry: required lease after proper method deter- (in discretion) mines its broad that the held in ... Greenholtz necessary prerequisites exist.17 or release presence general the broad delegating significant discretion criteria — Here, “may” the in word R.S. 37:768 deprive the to the decisionmaker—did gives grant recipro- Board discretion liberty parole in prisoner of the interest applicants certain, meeting cal licenses to by the statute. release created Nebraska not, specific does criteria. This essence, distinction In the Court made a give the Board “absolute discretion” to entirely distinct uses of the between two applicants all majority refuse such as the In sense of the term discretion. one contends. word, when he an official discretion Rather, 37:776, passed R.S. at the same simply or “is not bound standards she part licensing same time act authority question.” in R. set 37:768, in great as R.S. sets out detail Dworkin, Rights Seriously Taking nonissuance, suspension, “causes revo- sense, (1977). officials who have In this cation, imposition or of restrictions they parole whomever wish been told twenty-four dental This list license”.18 Greenholtz, have discretion. grounds refusing application for a that a Court determined scheme award- clearly the Board’s dental license limits dis- ing type discretion does officials this strongly suggests cretion and ex- in liberty parole interest create deny a ercise of discretion to license should may But term discretion release. particular application.19 signify “an use tailored to the instead official must at -, knowledge patient patient without 17. 482 U.S. (original emphasis). at 311 (10) person abetting Employing or ... (West & La.Rev.Stat.Ann. engage not licensed ... a dentist added). (emphasis Supp.1987) dentistry practice of .... (11) persons per- Employing unlicensed margin: reproduce I them in the Chapter can under this form work which any The board refuse issue ... den- practice by persons dental be done licensed any Chapter for tal license under this hygiene in this state. following reasons: (12) Making any misrepresentations ... (1) contagious ... disease. Affliction with patronage. influence dental ... (2) a crime Conviction of .... (13) association connection or Professional Fraud, deceit, (3) obtaining perjury or holding any person out himself with ... license, permit any diploma, or .... Chapter. any contrary to this manner (4) Providing testimony false before the (14) Practicing other than under name any judicial proceeding. board or in appears .... that which on license (5) indulgence drugs, Habitual in the use of (15) Unprofessional defined in conduct as narcotics, intoxicating liquors. or R.S. 37:775. (6) Prescribing legally-controlled ... sub- (16) deceive or Any conduct intended legal than a stances other manner. public. (7) defraud the incompetency. Professional or dental (17) disqualifies li- (8) Conduct ... which Continuing recurring practice or dental dentistry safety to the practice with prevailing acceptable censee to satisfy which fails ..., including to deteri- public not limited practice but standards of dental in this state. (9) through aging process or loss of Division dental services oration of fees ... for any person bringing referring motor skills. sufficiently specific the entitlement of dentists from those seems R.S. 37:776 that, requirement constitute objective to similar treatment in Louisiana. states to for one can be refused unless Dr. Neuwirth Unfortunately, the record does not reveal listed, granted li- of the reasons other states honored Louisiana’s whether R.S. 37:768.20 cense under reciprocal question, offer of licenses. The de- nature of the interest reciprocal The inquiry by merits serious the trial adds a distinctive twist by R.S. 37:768 fined legislature If court. the Louisiana intend- It claim of entitlement. Dr. Neuwirth’s ed to offer a deal to other states and their verify objective- presents opportunity an dentists, accepted, and if that offer was meaning of R.S. 37:768 ly plain is at stake in this case is more than a what If, strength of Louisiana’s on the 37:776. expectation” “mere unilateral or “an ab- laws, Illinois and other states licensing stract need or desire”. It is much more granting reciprocal licenses to have been practicing dentistry in than “interest Louisiana, confirm from this would dentists passing Louisiana without an examina- expectations are a Dr. Neuwirth’s tion.” What is at stake —what Neu- re- widely-shared and reasonable basis for expecting get wirth moved Louisiana Supreme Court made clear liance. may and what Illinois and other states have Roth that reliance important is an indicator expecting licensed Louisiana dentists to re- constitutionally-protected property.21 legitimate ceive —is a claim of entitlement reliance on Louisiana law Reasonable strengthen reciprocal to a Illinois and other states would license.23 (18) substantially The refusal of ... another state to is- have been met” created a constitu- practice tionally-protected property dentist- sue or renew license ... ry 603 F.2d interest. (2d Cir.1979) grounds, . ... rev'd on other (19) Employing pur- solicitors ... for 446 U.S. (1980). L.Ed.2d 440 securing pose patients, (1) other than advertis- spelled It did so because the statute ing permitted by "education, law. experience, out the and examina- (20) Refusing (2) to submit to the examina- requirements tion” in detail and "substan- inquiries physicians of medical tions designated by ... compliance requirements tial” with the had a inquire the board ... into meaning”. "plain 603 F.2d at 258. physical the dentist's or mental fitness .... agree I also note here that I cannot with the (21) Making deceptive ... false or claims to majority that its conclusion “harmonizes” with any patient, company, gov- insurance or ... holding Flynt. Leis v. Court's authority purpose ernmental for the of obtain- finding premised upon Leis is that Ohio law ing monetary compensation for services ren- gives judges trial unfettered discretion to dered. deny attorney an out-of-state (22) exercising Immoral conduct appear pro hac vice in their court. U.S. at privileges provided permit for license or 442-43, taking at 701. In this view Chapter. issued under this law, the Ohio the Leis Court had the benefit of (23) Interdiction or committment due construing question. Ohio decisions the law in process of law. 453-56, J., (Stevens, Id. at 99 S.Ct. at 706-08 (24) any regulation Violation of rule or Here, dissenting). we have not the benefit of a any provision Chapter. the board or of this construing Louisiana court decision R.S. 37:768. 37:776(A) (West Supp.1987). La.Rev.Stat.Ann. § “may” That the Board refuse to issue a license to 2709, quoted 21. 408 U.S. at qualified applicant any an otherwise twenty-four of these note 11 above. reasons, implies refuse for other reason. Majority opinion note 8 above. Dr. Neu- Allen, at -, wirth asks here ably for what he could reason- 20. See 107 S.Ct. at 2419- plain language expect R.S. from the (discussing language 96 L.Ed.2d at 311-14 permission entitlement). practice 37:768: in Louisiana presumption that created Cf. Irving Thigpen, based on his Illinois license. 732 F.2d Cir.1984) (subjective pre conditions create no entitlement); Briscoe, sumption perspective, Williams v. what is at Viewed from another (5th Cir.1981) (same). carry duty 641 F.2d out stake is the of state officials to Regents, duty example, plain meaning Tomanio v. Board of the state's laws. statutory components Second Circuit found the New York’s rooted in the substantive “education, experience, requirement. waiver of the and exam- See Daniels v. ¡nation 327, 337-39, requirements Williams, [chiropractor's] pro for a . J., (1986) (Stevens, provided fessional license ... gents the Board con- of Re 88 L.Ed.2d 662 requirements curring). shall be satisfied that the legitimate applications is not a “reason” for

III. Thus, denial under R.S. 37:768and 37:776. legitimate has a claim If in no sense did Dr. Neuwirth receive a license, there reciprocal entitlement genuinely on his ap- individualized decision not receive due that he did no doubt can be plication. opportunities He received three appearances before process in in futile to waste his time efforts to con- Dr. Neuwirth process entitles Due Board. nullify the Board not to vince R.S. 37:768. appli- on his decision to an individualized process. That is As the Sec- license. cation in Tomanio Circuit said ond Regents: IV. discretionary

Where, here, such as broad error, Dr. pleading But for Neuwirth’s en- deny or granted to admit power is this case states a due violation and profes- in a learned trance continuance or squarely parameters falls within of Ex sion, to mean the it be construed “must parte Young. Papasan As the Court in fair ... after of a discretion exercise it, described notice, hearing investigation, with such has been focused on Young cases appli- opportunity to for the answer in which a violation law a of federal process.” as constitute due cant would ongoing opposed as to official Appeals, v. Board Tax Goldsmith in cases which federal law has been vio- L.Ed. [46 period of lated at one time or over a time 1926). (per Ch. Justice Taft 494] in past, in the as on which well cases to be determined adjudicative fact against the state di- relief official considering grant to whether a waiver rectly ends the violation of federal prac- plaintiff] may whether [the opposed cases in which that relief is York, as she profession her in New tice indirectly encourage compli- intended Hampshire, as do Maine and New can through with federal law deterrence ance sovereign her or grace from matter directly third-party meet or interests Rather, it Regents. at the whim of compensation.25 such as complies with the statu- is whether [she contentions, undisputed by Dr. Neuwirth’s tory requirements for Of waiver]. Board, require- both of these meet course, legislature need not First, they ongoing state an denial ments. provided any waiver of the ex- have According to process. of federal due so, But once it did denial of amination. de- policy, announced the Board pro- implicates procedural waiver license, reciprocal Dr. Neuwirth a but nied rights. adjudicative An cess fact of such deny plans applications. all such Sec- significance plaintiffs] interests [the ond, wrong cannot, ongoing would be ended logic constitutionally, or of the directly by an order to members hearing im- resolved without before an finder, (1) whether Neu- partial Board to determine fact followed a state- recipro- any applicant ment of reasons the event denial.24 wirth—or other R.S. was re- cal license before case, policy In this the Board’s never requirements of pealed R.S. —meets reciprocal licenses rendered (2) so, issue if 37:768 and 37:776 and hearing Dr. Neuwirth received a sham: the requested license. against rule him Board had determined to appropriate joined Had qualifications regardless whatever his defendants, have vacated this court should requirements of R.S. 37:768 and summary judgment court’s denying district 37:776. A Board committed all for a trial on whether applications remanded cause such licenses license ris- expectation impartial “an A Dr. Neuwirth’s cannot be fact-finder”. As legitimate the Board denies such to a claim entitlement. statement all es 24. 603 F.2d at 258-59. 25. 478 U.S. at 92 L.Ed. S.Ct. at added). (emphasis 2d at 226-27 court necessary for this not, was he did of the district judgment

only to vacate complaint Dr. Neuwirth’s and dismiss filing a new prejudice

without same complaint based on the

amended Instead, majority goes

cause of action. quali- to both a in disservice way its

out of process. the law of

fied dentist COGHLAN, Plaintiff-Appellant,

Ann STARKEY, Perrilloux, Emmett

Donald Howes, Arnone, Stanley Anthony Jo- S. seph and Waterworks Potasnick W. Parish, Tangipahoa 2 of

District No.

Louisiana, Defendants-Appellees.

No. 87-3668.

Summary Calendar. Appeals, Court of

United States

Fifth Circuit.

May

Case Details

Case Name: P. Sidney Neuwirth, D.D.S. v. Louisiana State Board of Dentistry

Court Name: Court of Appeals for the Fifth Circuit

Date Published: May 23, 1988

Citation: 845 F.2d 553

Docket Number: 86-3902

Court Abbreviation: 5th Cir.