Alsager v. Board of Osteopathic Medicine & Surgery , 573 F. App'x 619 ( 2014 )

FILED
NOT FOR PUBLICATION MAY 16 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DALE E. ALSAGER, D.O., Ph.D., as a No. 13-35210
professional licensed Osteopathic
Physician and Surgeon in the State of D.C. No. 3:13-cv-05030-RJB
Washington, License No. OPOOOO1485,
Plaintiff - Appellant, MEMORANDUM*
v.
BOARD OF OSTEOPATHIC MEDICINE
AND SURGERY, a Washington State
Agency; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, Senior District Judge, Presiding
Submitted May 16, 2014**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Page 2 of 4
Before: McKEOWN and WATFORD, Circuit Judges, and WHYTE, Senior
District Judge.***
The district court correctly held that abstention under Younger v. Harris, 401
U.S. 37 (1971), is required here. All four of the Younger conditions are met.
First, the Board of Osteopathic Medicine and Surgery’s disciplinary
proceedings are an ongoing state proceeding for purposes of Younger. It is true
that at the time Alsager filed his federal action, the Board had not yet filed a
statement of charges against him. See Wash. Rev. Code § 18.130.090. But it had
initiated an investigation of the patient’s complaint, and the beginning of that
investigation marked the beginning of Washington’s disciplinary proceedings. See
Partington v. Gedan, 961 F.2d 852, 861 (9th Cir. 1992); accord Amanatullah v.
Colorado Bd. of Med. Exam’rs, 187 F.3d 1160, 1163–64 (10th Cir. 1999). Under
the statute, compliance with the Board’s requests for information is compulsory,
Wash. Rev. Code § 18.130.230, and the investigation is the first part of a multi-
step disciplinary process. See id. §§ 18.130.080, 18.130.090. Alsager’s reliance
on Canatella v. California, 304 F.3d 843 (9th Cir. 2002), is misplaced, because in
that case “no affirmative action had been taken by the State [agency]” when the
federal suit commenced. Id. at 851.
***
The Honorable Ronald M. Whyte, Senior District Judge for the U.S.
District Court for the Northern District of California, sitting by designation.
Page 3 of 4
Second, the Board’s disciplinary proceedings against Alsager implicate
important state interests. We have previously held that regulating physician
conduct and licensing is one such interest. See Buckwalter v. Nevada Bd. of Med.
Exam’rs, 678 F.3d 737, 747 (9th Cir. 2012).
Third, the disciplinary proceedings afford Alsager an adequate opportunity
to raise his constitutional claims. Washington’s disciplinary scheme provides for
judicial review in state courts, Wash. Rev. Code § 18.130.140, and the reviewing
courts are authorized to consider constitutional claims. Id. § 34.05.570. Alsager
argues that this process is insufficient to protect his constitutional interests,
because it requires him to provide information to the Board (which he contends
would violate his constitutional rights) or risk penalties for noncompliance. But
the Supreme Court has held that judicial review of state agency decisions provides
a sufficient opportunity to raise federal claims, even when the state agency may not
consider those claims in the first instance. See Ohio Civil Rights Comm’n v.
Dayton Christian Schools, Inc., 477 U.S. 619, 629 (1986). Moreover, Alsager can
seek a stay of any adverse Board decision pending appeal, which would allow him
to litigate his constitutional claims before the Board’s decision takes effect. See
Wash. Rev. Code § 34.05.550; see also Kenneally v. Lungren, 967 F.2d 329,
332–33 (9th Cir. 1992) (applying California law). Under these circumstances,
Page 4 of 4
Alsager has not demonstrated that Washington’s procedures bar review of federal
claims. See Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 14 (1987).
Finally, Alsager’s suit also satisfies the fourth Younger requirement, that the
federal court action would “would enjoin, or have the practical effect of enjoining,
ongoing state [] proceedings.” AmerisourceBergen Corp. v. Roden, 495 F.3d 1143,
1149 (9th Cir. 2007). Alsager’s federal complaint seeks a declaration that the
investigatory component of Washington’s disciplinary process is unconstitutional
and an injunction barring the use of certain information in the disciplinary
proceedings. Either form of relief would “enjoin, declare invalid, or otherwise
involve the federal courts” in the proceedings against him. See Gilbertson v.
Albright, 381 F.3d 965, 970, 977–78, 981 (9th Cir. 2004) (en banc).
AFFIRMED.