Alsager v. Board of Osteopathic Medicine & Surgery

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NOT FOR PUBLICATION MAY 16 2014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).
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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.