845 F.2d 553 (5th Cir. 1988), 86-3902, Neuwirth v. Louisiana State Bd. of Dentistry

Docket Nº:86-3902.
Citation:845 F.2d 553
Party Name:P. Sidney NEUWIRTH, D.D.S., Plaintiff-Appellant, v. LOUISIANA STATE BOARD OF DENTISTRY, et al, Defendants-Appellees.
Case Date:May 23, 1988
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 553

845 F.2d 553 (5th Cir. 1988)

P. Sidney NEUWIRTH, D.D.S., Plaintiff-Appellant,


LOUISIANA STATE BOARD OF DENTISTRY, et al, Defendants-Appellees.

No. 86-3902.

United States Court of Appeals, Fifth Circuit

May 23, 1988

Page 554

William P. Quigley, New Orleans, La., for plaintiff-appellant.

Patricia J. Hakes, Guy Wootan, Wootan & Stakelum, New Orleans, La., William J. Guste, Jr., Atty. Gen., Baton Rouge, La., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before WISDOM, GARWOOD, and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Dr. P. Sidney Neuwirth filed this Sec. 1983 1 action, alleging that the refusal of the Louisiana State Board of Dentistry to grant him a dental license pursuant to its reciprocity statute violated his constitutional and statutory rights and seeking declaratory and injunctive relief therefore. The District Court found that Dr. Neuwirth had no constitutionally protected property or liberty interest in obtaining a waiver of Louisiana's examination requirement for admission to practice dentistry. Alternatively, the court held that Dr. Neuwirth had received procedural due process and was not deprived of substantive due process by the dental board.

Appellant P. Sidney Neuwirth, D.D.S., licensed to practice dentistry in the state of Illinois since 1938, 2 and an Assistant Clinical Professor at the Louisiana State University School of Dentistry since 1981, sought a license to practice dentistry in Louisiana. In 1983 Neuwirth was granted a restricted license by the Louisiana State Board of Dentistry pursuant to La.Rev.Stat.Ann. Sec. 37:752(3) (West 1974). 3 On three separate occasions, Neuwirth applied for a general special license by reciprocity pursuant to La.Rev.Stat.Ann. Sec. 37:768 (West 1974). All three applications

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were denied by the Board. Each time, Neuwirth was informed that his application was denied because it was the Board's policy to grant regular dental licenses only through the examination process. Each time, Neuwirth was also given the opportunity to present his case before the Board.

In February 1986, Neuwirth filed this action against the Louisiana State Board of Dentistry and J. Roy Chustz, D.D.S., the President of the Board of Dentistry, alleging that the denials of his applications "are without rational basis, contrary to state law and ... arbitrary and capricious." Chustz was sued only in his official capacity. Neuwirth requested the district court to (1) enter a judgment declaring that his constitutional and statutory rights were violated; (2) order the defendants to grant him a full license by reciprocity or issue reasons why he has not been granted a license and give him the opportunity to contest those reasons; and (3) award him attorney's fees and costs. Neuwirth filed a motion for summary judgment alleging that the defendants' policy of not granting general licenses by reciprocity violates the due process clause of the fourteenth amendment.

As noted, the district court granted defendants' motion for summary judgment.

Neither the parties nor the trial court suggested that the eleventh amendment may bar the federal court's jurisdiction to hear this case. Appellees, however, raised the issue at oral argument before us and by a letter a few days prior thereto. We may properly consider the issue even at this stage of the proceeding, because of the strong federalism concerns behind the amendment. See Voisin's Oyster House, Inc. v. Guidry, 799 F.2d 183, 188-89 (5th Cir.1986); McKay v. Boyd Const. Co., 769 F.2d 1084, 1086 (5th Cir.1985). 4

The Eleventh Amendment provides:

The judicial power of the United States shall not be construed to extend to any suit in law or in equity, commenced or prosecuted against one of the United States by Citizens or Subjects of any Foreign State.

This language has been construed to bar actions brought in federal court against state governments by anyone other than the federal government or another state. See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 97-102, 104 S.Ct. 900, 906-09, 79 L.Ed.2d 67 (1984). Absent a waiver or consent by the state or an express negation of immunity by act of Congress, the eleventh amendment prohibits a federal court from awarding either legal or equitable relief against the state. Papasan v. Allain, 478 U.S. 265, 106 S.Ct. 2932, 2939, 92 L.Ed.2d 209 (1986). However, an exception to this rule first announced in Ex Parte Young, 5 enables a federal court to entertain a suit for prospective relief against a defendant state officer upon allegations that he violated federal law, based on the legal fiction that a state officer cannot then be acting pursuant to state authority. Papasan, 106 S.Ct. at 2939-40. Whether the Louisiana Board of Dentistry or Dr. Chustz is entitled to eleventh amendment immunity are distinct issues.

We consider first the dental board. The "State" for eleventh amendment purposes includes state agencies, Mt. Healthy City School District Bd. of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), appeal after remand 670 F.2d 59 (6th Cir.1982), but not "political subdivisions" of the state. Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 401-02, 99 S.Ct. 1171, 1178-79, 59 L.Ed.2d 401 (1979).

In Minton v. St. Bernard Parish School Bd., 803 F.2d 129, 131 (5th Cir.1986), this Court set forth six factors for determining

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whether a particular entity is entitled to eleventh amendment immunity:

(1) whether state statutes and case law characterize the agency as an arm of the state; (2) the source of funds for the entity; (3) the degree of local autonomy the entity enjoys; (4) whether the entity is concerned primarily with local, as opposed to statewide problems; (5) whether the entity has authority to sue and be sued in its own name; and (6) whether the entity has the right to hold and use property.

Applying these factors the Court in Darlak v. Bobear, 814 F.2d 1055, 1060 (5th Cir.1987), held that the Louisiana Department of Health and Human Resources (DHHR) and Charity Hospital of Louisiana at New Orleans, which is a part of the DHHR, are entitled to eleventh amendment immunity.

The Board of Dentistry is also part of the DHHR. La.Rev.Stat.Ann. Sec. 37:753A (West Supp.1986). The Board consists of twelve members appointed by the Governor and is concerned with statewide issues, i.e., the regulation of the practice of dentistry in Louisiana. La.Rev.Stat.Ann. Secs. 37:753B, 37:760 (West Supp.1986). In addition, the Board receives its funding from the state and any judgment against the Board would be paid with state funds. Darlak, 814 F.2d at 1059. Although the Board has authority to sue and be sued, La.Rev.Stat.Ann. Secs. 37:785, 37:786, 37:791 (West Supp.1986), the existence of the other factors demonstrates that the Board is the alter ego of the State of Louisiana. Because Sec. 1983 does not negate a state's eleventh amendment immunity, Pennhurst, 465 U.S. at 99, 104 S.Ct. at 907; Voisin's, 799 F.2d at 186, and the Board is the alter ego of the State of Louisiana, which has not consented to suit, 6 see Fireman's Fund Ins. Co. v. Dept. of Transp. and Development, State of Louisiana, 792 F.2d 1373, 1375-76 (5th Cir.1986), relief is barred against the Board.

Neuwirth's claim for injunctive relief against Dr. Chustz is more problematic. The primary issue is whether the claim falls within the Ex Parte Young exception to immunity in light of recent decisions favoring its narrow construction 7. In Papasan, the Supreme Court described Young as applying to situations "where the underlying authorization upon which the named (state) official acts is asserted to be illegal." 106 S.Ct. at 2940 (citing Cory v. White, 457 U.S. 85, 102 S.Ct. 2325, 72 L.Ed.2d 694 (1982)). The Court further stated that Young

... does not foreclose an Eleventh Amendment challenge where the official actions are asserted to be illegal as a matter of state law alone (citation omitted). In such a case, federal supremacy is not implicated because the state official is acting contrary to state law only.

Id. (emphasis added).

Another way of articulating this point is that the exception "allows federal courts to hear suits against state officials if the suit seeks to force them to conform their conduct to federal law," but does not apply to "suits which would seek to have federal judges order state officials to conform their conduct to state law." Rotunda, Nowak, & Young, Constitutional Law: Substance and Procedure, Vol. 1 Sec. 2:12 at 89 (1986); see also Pennhurst, 465 U.S. at 89, 104 S.Ct. at 900; County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 105 S.Ct. 1245, 84 L.Ed.2d 169 (1985), rehearing denied 471 U.S. 1061, 105 S.Ct. 2173, 85 L.Ed.2d 491 (1985).

Dr. Neuwirth's right to relief in federal court thus depends on whether his claim implicates a constitutional violation, as contrasted with a violation of state law alone. In cases like this, where our jurisdiction

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and appellant's right to relief on the merits are intertwining issues, it is our practice usually to discuss and resolve the issues jointly. "When the basis of federal jurisdiction is intertwined with the plaintiff's federal cause of action, the court should assume jurisdiction over the case and decide it on the merits." Eubanks v. McCotter, 802 F.2d 790, 792-93 (5th Cir.1986). As will be seen, despite Dr. Neuwirth's valiant efforts to persuade us, we do not perceive his lawsuit as raising any issue other than an arguable violation of state law.

The due process clause of the fourteenth amendment protects a person from deprivation of life, liberty or property without due process of law. Whether "due...

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