Yvoune Petrie v. Virginia Board of Medicine , 648 F. App'x 352 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1007
YVOUNE KARA PETRIE, Dr. DC. an Individual,
Plaintiff – Appellant,
v.
VIRGINIA BOARD OF MEDICINE, a quasi-public and quasi-
private agency under the laws of the Commonwealth of
Virginia; RANDOLPH CLEMENTS, DPM, in his individual
capacity as a competitor with chiropractors in Virginia,
and in his capacity as a member of the Virginia Medical
Board; KAMLESH DAVE, MD, in his individual capacity as a
competitor with chiropractors in Virginia, and in his
capacity as a member of the Virginia Medical Board; SIOBHAN
DUNNAVANT, MD, in her individual capacity as a competitor
with chiropractors in Virginia, and in her capacity as a
member of the Virginia Medical Board; WILLILAM HARP, MD, in
his individual capacity as a competitor with chiropractors
in Virginia, and in his capacity as a member of the
Virginia Medical Board; JANE PINESS, MD, in her individual
capacity as a competitor with chiropractors in Virginia,
and in her capacity as a member of the Virginia Medical
Board; WAYNE REYNOLDS, DO, in his individual capacity as a
competitor with chiropractors in Virginia, and in his
capacity as a member of the Virginia Medical Board,
Defendants – Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:13-cv-01486-CMH-TRJ)
Argued: March 22, 2016 Decided: May 16, 2016
Before GREGORY and DUNCAN, Circuit Judges, and Richard L.
VOORHEES, United States District Judge for the Western District
of North Carolina, sitting by designation.
Affirmed by unpublished opinion. Judge Duncan wrote the
opinion, in which Judge Gregory and Judge Voorhees joined.
ARGUED: Vincent Mark Amberly, AMBERLY LAW, Leesburg, Virginia,
for Appellant. Sarah Oxenham Allen, OFFICE OF THE VIRGINIA
ATTORNEY GENERAL, Richmond, Virginia, for Appellees. ON BRIEF:
Aaron R. Gott, GOTT PLLC, St. Louis Park, Minnesota, for
Appellant. Mark R. Herring, Attorney General of Virginia,
Cynthia V. Bailey, Rhodes B. Ritenour, Deputy Attorneys General,
John D. Gilbody, Erin L. Barrett, Stephen J. Sovinsky, Assistant
Attorneys General, OFFICE OF THE VIRGINIA ATTORNEY GENERAL,
Richmond, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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DUNCAN, Circuit Judge:
After the Virginia Board of Medicine (“the Board”)
sanctioned Yvoune Petrie, a Virginia chiropractor, for various
violations of the Virginia statutes and regulations governing
the practice of chiropractic, Petrie sued the Board, its
executive director, and five of its members, claiming that the
Board’s action against her violated section 1 of the Sherman
Act, 15 U.S.C. § 1. Because Petrie has failed to show that the
Board’s sanctioning her had any anti-competitive effects, we
affirm the district court’s order granting the Board’s motion
for summary judgment.
I.
The Board is a regulatory body established by the Virginia
General Assembly to oversee the practice of medicine,
osteopathic medicine, chiropractic, and podiatry in Virginia.
It consists of eighteen members, including “one medical
physician from each congressional district, one osteopathic
physician, one podiatrist, one chiropractor, and four citizen
members.” Va. Code § 54.1-2911. Among other powers and
responsibilities, the General Assembly has delegated to the
Board the authority, upon finding that an individual has
violated one of the various Virginia laws governing the
professions within the Board’s purview, to “impose a monetary
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penalty or terms as it may designate” and to “suspend any
license for a stated period of time or indefinitely.” Va. Code
§ 54.1-2915(A).
Petrie’s chiropractic practice came to the Board’s
attention after several of her patients filed complaints
alleging, among other things, that Petrie was “passing herself
off as a diabetes and thyroid specialist,” S.A. 153, and that
she falsely held herself out as a medical doctor in order “to
mislead [a patient] into believing that she [was] a medical
professional” who could “administer a medical ‘Fat Burning
Procedure,’” S.A. 158. 1 After an initial investigation of those
complaints, on February 22, 2013, the Board convened a formal
hearing at which it heard live testimony from Petrie’s patients.
On February 28, 2013, the Board issued an order finding
that Petrie had violated several of Virginia’s statutes and
regulations governing the practice of chiropractic.
Essentially, the Board found that Petrie had been misleading her
patients and practicing beyond the scope of her chiropractic
license by holding herself out as a diet and nutrition
counselor, by suggesting to patients that she could “reverse”
their Type II diabetes or erectile dysfunction, and by
1
Throughout this opinion, we use the term “J.A.” to cite
the Joint Appendix and the term “S.A.” to cite the Supplemental
Appendix.
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performing a “non-invasive dermatological aesthetic treatment”
which she advertised as “[l]iposuction without surgery” using a
laser. J.A. 438–41. The Board sanctioned Petrie for those
violations by suspending her license for six months and imposing
a $25,000 fine.
Petrie appealed the Board’s order to the Circuit Court of
Fairfax County, Virginia. On September 12, 2013, that court
dismissed Petrie’s appeal with prejudice upon finding “that the
Board did not act arbitrarily or capriciously, that a reasonable
mind would not necessarily reach a different conclusion, and
that there is a wealth of facts contained in the administrative
record to support the Board’s findings.” S.A. 192. Petrie then
appealed again, to the Virginia Court of Appeals, which affirmed
the dismissal of Petrie’s appeal. Petrie v. Va. Bd. of Med.,
No. 1986-13-4, 2014 WL 1379621, at *1 (Va. Ct. App. April 8,
2014).
While her appeal was pending in the Virginia Court of
Appeals, Petrie initiated another effort to overturn the Board’s
order against her by filing this action in federal district
court. In her federal complaint, Petrie alleges that the
Board’s order reflects a conspiracy to exclude chiropractors
from certain markets for medical services, in violation of
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section 1 of the Sherman Act. 2 Notably, Petrie “has not alleged
that [Virginia’s] statutory scheme of licensure and scope of
practice violates the Sherman Act.” Appellant’s Br. at 43.
Rather, the “crux” of her complaint is that the Board’s order
sanctioning her “was contrary to Virginia law, that it
constituted a ‘power grab’ by ‘[m]edical doctors and doctors of
osteopathy who have financial incentives to limit the scope of
practice of competitors like chiropractors.’” Id. (quoting
J.A. 16–19). In other words, Petrie argues that a majority of
the Board’s members conspired to adopt an improper
interpretation of the Virginia statutes that define the scope of
chiropractic, for the purpose of stifling competition between
chiropractors and other medical professionals.
Petrie seeks treble damages under section 4 of the Clayton
Act, 15 U.S.C. § 15, and injunctive relief under section 16 of
the Clayton Act, 15 U.S.C. § 26. The Board moved for summary
judgment, and on December 1, 2014, the district court granted
the Board’s motion and dismissed Petrie’s complaint. Petrie
appealed.
2Petrie also included several state-law tort claims against
the Board in her federal complaint, but the district court’s
summary judgment order did not address those claims and Petrie
does not press them on appeal.
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II.
This court “review[s] de novo an award of summary judgment,
viewing all facts and drawing all reasonable inferences in the
light most favorable to the nonmoving party.” Newport News
Holdings Corp. v. Virtual City Vision, Inc., 650 F.3d 423, 434
(4th Cir. 2011). “Summary judgment is appropriate when there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Id. (citing Fed. R.
Civ. P. 56(a)).
“The party moving for summary judgment ‘discharges its
burden by showing that there is an absence of evidence to
support the nonmoving party’s case.’” Humphreys & Ptrs.
Architects, L.P. v. Lessard Design, Inc., 790 F.3d 532, 540
(4th Cir. 2015) (quoting Kitchen v. Upshaw, 286 F.3d 179, 182
(4th Cir. 2002)). If the moving party can do so, the burden
shifts to the nonmoving party to “come forward with ‘specific
facts showing that there is a genuine issue for trial.’”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)). “Although
the court must draw all justifiable inferences in favor of the
nonmoving party, the nonmoving party must rely on more than
conclusory allegations, mere speculation, the building of one
inference upon another, or the mere existence of a scintilla of
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evidence.” Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir.
2013) (citations omitted).
III.
Below, we first set out the basic analytical framework for
an antitrust claim under section 1 of the Sherman Act and
explain how the district court applied that framework to
conclude that the Board was entitled to summary judgment. Then,
we review the district court’s analysis, and ultimately affirm.
A.
Section 1 of the Sherman Act prohibits “[e]very contract,
combination . . . , or conspiracy, in restraint of trade.”
15 U.S.C. § 1. This court has interpreted that language to mean
that, “[t]o establish a § 1 antitrust violation, a plaintiff
must prove ‘(1) a contract, combination, or conspiracy; (2) that
imposed an unreasonable restraint of trade.’” N.C. State Bd. of
Dental Examiners v. Fed. Trade Comm’n, 717 F.3d 359, 371
(4th Cir. 2013) (quoting Dickson v. Microsoft Corp., 309 F.3d
193, 202 (4th Cir. 2002)). If the plaintiff is able to prove a
violation of section 1, she then faces a third requirement: she
“must prove the existence of antitrust injury, which is to say
injury of the type the anti-trust laws were intended to prevent
and that flows from that which makes defendants’ acts unlawful.”
Dickson, 309 F.3d at 202-03 (4th Cir. 2002) (emphasis omitted)
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(quoting Atl. Richfield v. USA Petroleum Co., 495 U.S. 328, 334
(1990)).
Here, the district court held that Petrie has met none of
those three requirements. It held that Petrie has not shown an
unreasonable restraint on trade because she “has shown no
anticompetitive effects on the relevant market,” and certainly
none that could outweigh “the procompetitive benefits of the
Board’s actions.” J.A. 619–20. It held that Petrie has not
shown a “contract, combination, or conspiracy” because she
“failed to establish that the action by the Board and its
members to sanction her constituted a conscious commitment to a
common scheme by competitors to restrain trade.” J.A. 622. And
it held that Petrie “has failed to show the antitrust injury
necessary to bring this complaint.” Id.
B.
We address first whether the Board’s order against Petrie
constitutes an “unreasonable restraint of trade.” To determine
whether a particular agreement in restraint of trade is
unreasonable, “the Supreme Court has authorized three methods of
analysis: (1) per se analysis, for obviously anticompetitive
restraints, (2) quick-look analysis, for those with some
procompetitive justification, and (3) the full ‘rule of reason,’
for restraints whose net impact on competition is particularly
difficult to determine.” Continental Airlines, Inc. v. United
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Airlines, Inc., 277 F.3d 499, 508–09 (4th Cir. 2002). “The
boundaries between these levels of analysis are fluid”; they
“are best viewed as a continuum, on which the amount and range
of information needed to evaluate a restraint varies depending
on how highly suspicious and how unique the restraint is.” Id.
at 509 (citation and quotation marks omitted).
“In all cases, however, the criterion to be used in judging
the validity of a restraint on trade is its impact on
competition.” N.C. State Bd. of Dental Examiners v. F.T.C.,
717 F.3d 359, 373 (4th Cir. 2013) (quoting Continental Airlines,
277 F.3d at 509). And because “[t]he antitrust laws were
designed to protect competition, not competitors, . . . [t]he
elimination of a single competitor standing alone, does not
prove [the] anti-competitive effect” necessary for a Sherman Act
violation. Military Servs. Realty, Inc. v. Realty Consultants
of Va., Ltd., 823 F.2d 829, 832 (4th Cir. 1987) (citations
omitted).
The district court found that the Rule of Reason analysis
was the appropriate mode to apply in this case. We agree. It
is clear that the Board’s order against Petrie injured Petrie
herself, but “a plaintiff cannot demonstrate the
unreasonableness of a restraint merely by showing that it caused
him an economic injury.” Oksanen v. Page Memorial Hosp., 945
F.2d 696, 708 (4th Cir. 1991). Recognizing this, Petrie
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attempts to cast her own injury as an injury to all Virginia
chiropractors. Specifically, Petrie claims that “[t]he Board
used [her] as a springboard to eliminate an entire class of
competitors by its own fiat and for improper purposes,”
Appellant’s Br. at 26, and that “[b]ut for the Board’s
anticompetitive conduct, Dr. Petrie and other doctors of
chiropractic would compete or have the potential to compete with
the Board’s members” to offer the sorts of services that the
Board sanctioned Petrie for having offered, id. at 27.
Petrie, however, has been unable to present any specific
evidence that the Board’s order against her has had the broader
effects she posits. The record is completely devoid of evidence
that any other Virginia chiropractor has sought to provide laser
fat removal services or the other services the Board sanctioned
Petrie for providing, or that any other Virginia chiropractor
was providing those services and ceased doing so after the Board
sanctioned Petrie. 3 Instead of providing actual evidence of
negative effects on competition between chiropractors and
3 Petrie presented expert testimony suggesting that, as a
policy matter, chiropractors should be permitted to provide the
sorts of treatments Petrie was sanctioned for providing. To the
extent Petrie’s argument is that Virginia’s scope-of-practice
laws should be changed, the Virginia legislature, not the
federal courts, is the proper forum. See N.C. State Bd. of
Dental Examiners v. Fed. Trade Comm’n, 135 S. Ct. 1101, 1109–10
(explaining the federalism-based principle that state-government
policy judgments are generally immune from attack under federal
antitrust law).
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medical doctors, Petrie simply speculates that the Board’s order
against her could have had such effects. But mere speculation
is not enough to withstand a motion for summary judgment.
Accordingly, we affirm the district court’s holding that Petrie
failed to show that the Board imposed an unreasonable restraint
of trade by sanctioning Petrie for her violations of the
Virginia laws governing the practice of chiropractic. 4
Because Petrie’s failure to prove that the Board’s order
against her constituted an unreasonable restraint of trade is an
independently sufficient basis to grant summary judgment against
her, we need not address whether Petrie has proven that the
Board engaged in a “contract, combination, or conspiracy,” or
whether Petrie has suffered the sort of “antitrust injury” that
confers standing upon a private individual to sue for a
violation of the Sherman Act. Unlike the injury requirement
associated with Article III standing, which is a jurisdictional
4Petrie also challenges various evidentiary rulings made by
the district court, including the district court’s refusal to
grant a motion to compel that Petrie filed well after the close
of discovery, and the district court’s decision to exclude
various expert declarations because of its impression that the
declarations would not be helpful in determining whether the
Board had committed an antitrust violation. We are satisfied
that none of the district court’s evidentiary rulings in this
case constituted an abuse of discretion, and therefore affirm.
See Jacksonville Airport, Inc. v. Michkeldel, Inc., 434 F.3d
729, 732 (4th Cir. 2006) (noting that a district court’s
evidentiary rulings are reviewed for abuse of discretion).
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prerequisite to reaching the merits of any claim, the “antitrust
injury” requirement need not be addressed before a court can
decide whether a plaintiff has proven a valid claim under
section 1 of the Sherman Act. Indeed, “[w]hen a court concludes
that no [antitrust] violation has occurred, it has no occasion
to consider standing.” Levine v. Cent. Florida Med. Affiliates,
Inc., 72 F.3d 1538, 1545 (11th Cir. 1996) (quoting 2 Phillip E.
Areeda & Herbert Hovenkamp, Antitrust Law ¶ 360f, at 202–03
(rev. ed. 1995)); see also Doctor's Hosp. of Jefferson, Inc. v.
Se. Med. All., Inc., 123 F.3d 301, 306 (5th Cir. 1997).
IV.
For the reasons stated above, we affirm the district
court’s order granting summary judgment to the Board and the
individual defendants.
AFFIRMED
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