Benjamin Burris v. Donna Cobb , 808 F.3d 386 ( 2015 )

United States Court of Appeals
For the Eighth Circuit
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No. 14-3740
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Benjamin Burris,
lllllllllllllllllllll Plaintiff - Appellant,
Elizabeth Gohl,
lllllllllllllllllllll Plaintiff,
v.
Donna F. Cobb, in her official capacity as Executive Director of the Arkansas
State Board of Dental Examiners; George Martin; Robert D. Keene; David J. Bell;
Timothy D. Chase; Robert H. Carter; Jennifer Lamb; Donna White, in their
individual capacities as Members of the Arkansas State Board of Dental Examiners,
lllllllllllllllllllll Defendants - Appellees.
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: September 21, 2015
Filed: December 11, 2015
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Before WOLLMAN, COLLOTON, and KELLY, Circuit Judges.
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COLLOTON, Circuit Judge.
Benjamin Burris is a dentist in Arkansas who owns two corporations that
operate eleven orthodontic offices in the state. He holds a license from the State as
an orthodontic specialist but also provided low-cost teeth-cleaning services to non-
orthodontic patients at several of his offices during 2013. The cleanings were
performed by dental hygienists under the supervision of orthodontists.
In a letter dated June 2013, the Arkansas State Board of Dental Examiners
informed Burris that his provision of teeth-cleaning services violated a requirement
of the Arkansas Dental Practice Act that says a dentist with a specialty license “must
limit his or her practice to the specialty in which he or she is licensed except in an
emergency situation.” Ark. Code Ann. § 17-82-305(g)(2). In response, Burris
discontinued his teeth-cleaning program, and he eventually signed a consent order in
which he agreed formally to stop providing teeth-cleaning services at his orthodontic
offices unless they are rendered as part of orthodontic treatment.
Burris and another dentist (now deceased) then sued the Board’s executive
director, Donna Cobb, and members of the Board, alleging that the Board’s
enforcement of the Arkansas Dental Practice Act violates his rights under the Federal
Constitution. The dentists sought a declaratory judgment and injunctive relief that
would preclude enforcement of the Act. The executive director and Board members
moved to dismiss the complaint for failure to state a claim, arguing that the dentists
failed to exhaust administrative remedies as required by the Arkansas Administrative
Procedures Act, that the constitutional claims were not ripe for judicial review, and
that Burris waived his claims by voluntarily signing the consent order.
The district court did not address the points urged by the defendants but
dismissed the complaint without prejudice on a different ground not raised by the
parties. The court concluded that it should abstain from deciding the case pursuant
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to the doctrine established by Railroad Commission of Texas v. Pullman Co., 312
U.S. 496 (1941). As described by this court, “Pullman requires a federal court to
refrain from exercising jurisdiction when the case involves a potentially controlling
issue of state law that is unclear, and the decision of this issue by the state courts
could avoid or materially alter the need for a decision on federal constitutional
grounds.” Moe v. Brookings Cty., 659 F.2d 880, 883 (8th Cir. 1981). The district
court reasoned that Arkansas law is susceptible to an interpretation that would avoid
any federal constitutional question in this case: “The Arkansas courts may fairly
determine that the Board exceeded its statutory authority in promulgating the rules
and regulations of the [Act], or that Dr. Burris was qualified to carry out the practices
at issue, thereby obviating the federal constitutional inquiries.” Burris v. Cobb,
No. 4:14CV00319 BSM, 2014 WL 5795790, at *2 (E.D. Ark. Nov. 6, 2014).
Burris argues on appeal that the district court abused its discretion by
abstaining under the Pullman doctrine, because the Arkansas statute is clear and not
susceptible to any interpretation that would avoid the constitutional questions raised
in his complaint. The executive director and Board members do not defend the
district court’s rationale and agree that Burris’s provision of teeth-cleaning services
was plainly prohibited by the Act. The district court did not offer any plausible
interpretation of the Act under which a licensed orthodontist such as Burris is
permitted to practice general dentistry, including teeth-cleaning, outside of an
emergency situation. We agree with the parties that the statute is clear. Except in an
emergency, Arkansas law requires that Burris “must limit his . . . practice to the
specialty in which he . . . is licensed.” Ark. Code Ann. § 17-82-305(g)(2). Because
there is no ambiguity and thus no unsettled question of state law, Pullman abstention
is not appropriate here. City of Houston v. Hill, 482 U.S. 451, 468 (1987); Nat’l City
Lines, Inc. v. LLC Corp., 687 F.2d 1122, 1126 (8th Cir. 1982).
The Board’s executive director and members urge us to affirm the dismissal of
Burris’s complaint on other grounds raised in their motion to dismiss. The district
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court, however, did not address any of these contentions, and we believe that the
alternative arguments for dismissal, and the responses thereto, are best considered by
the district court in the first instance.
The judgment is reversed, and the case is remanded for further proceedings.
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