Adibi v. California State Board of Pharmacy

• Decision Date: 09 November 2006
• Docket Number: No. C-05-0605 EMC.,C-05-0605 EMC.
• Citation: 461 F.Supp.2d 1103
• Court: U.S. District Court — Northern District of California
• Parties: Afshin ADIBI, et al., Plaintiffs, v. CALIFORNIA STATE BOARD OF PHARMACY, et al., Defendants.

461 F.Supp.2d 1103

Afshin ADIBI, et al., Plaintiffs, v. CALIFORNIA STATE BOARD OF PHARMACY, et al., Defendants.

No. C-05-0605 EMC.

United States District Court, N.D. California.

November 9, 2006.

Kurt W. Melchior, Robert Joseph Sullivan, Nossaman Guthner Knox & Elliott, LLP, San Francisco, CA, Paul Andrew Hemesath, Nossaman, Guthner, Knox &amp Elliott, LLP, Sacramento, CA, for Plaintiffs.

Maretta Denise Ward, Department of Justice, San Francisco, CA, for Defendants.

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; AND DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

(Docket Nos. 58, 64)

CHEN, Magistrate Judge.

Plaintiffs Afshin Adibi and International Pharmaceutical Services ("IPS") have filed suit pursuant to 42 U.S.C. § 1983 against Defendants the California State Board of Pharmacy ("Board") and its executive director Patricia Harris in her official capacity. According to Plaintiffs, Defendants' actions violated both the Foreign Commerce Clause and the Supremacy Clause. Currently pending before the Court are the parties' cross-motions for summary judgment. Having considered the parties' briefs and accompanying submissions, as well as the oral argument of counsel, the Court hereby GRANTS Defendants' motion for summary judgment and DENIES Plaintiffs' motion for summary judgment.

I. FACTUAL & PROCEDURAL BACKGROUND

The Board of Pharmacy issued a pharmacist's license to Mr. Adibi and a wholesaler permit to IPS in 1991 and 1995, respectively. In 2001, the Board initiated an administrative proceeding against Plaintiffs in which it sought to revoke or suspend the license and permit because of drug sales that Plaintiffs made from California to other countries. The Board accused Plaintiffs of violating numerous provisions of federal and California laws. Supplemental accusations were made by the Board in 2002 and 2003. After the initiation of the administrative proceedings, Plaintiffs filed the instant suit, claiming that Defendants' attempt to revoke or suspend the license and permit violated Plaintiffs' constitutional rights. Defendants moved to dismiss on various grounds, including the ground that Younger abstention was applicable. The Court denied the motion to dismiss. Regarding Younger abstention, the Court concluded that, while the first two prongs of the Younger test had been met, the third had not. Subsequently, Plaintiffs and Defendants filed the currently pending cross-motions for summary judgment.

II. DISCUSSION

A. Legal Standard

Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be rendered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue of fact is genuine only if there is sufficient evidence for a reasonable jury to find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "The mere existence of a scintilla of evidence ... will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving party]." Id. at 252, 106 S.Ct. 2505. At the summary judgment stage, evidence must be viewed in the light most favorable to the nonmoving party and all justifiable inferences are to be drawn in the nonmovant's favor. See id. at 255, 106 S.Ct. 2505.

Where the plaintiff has the ultimate burden of proof, it may prevail on a motion for summary judgment only if it affirmatively demonstrates that there is no genuine dispute as to every essential element of its claim. See River City Mkts., Inc. v. Fleming Foods W, Inc., 960 F.2d 1458, 1462 (9th Cir.1992). In contrast, where the plaintiff has the ultimate burden of proof, the defendant may prevail on a motion for summary judgment simply by pointing to the plaintiffs failure "to make a showing sufficient to establish the existence of an element essential to [the plaintiffs] case." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

In their motion for summary judgment, Plaintiffs claim that there is no genuine dispute that Defendants' actions violate the Foreign Commerce Clause and that Defendants' actions are preempted by federal law. Plaintiffs further argue that, although they did engage in some conduct that constituted a violation of federal law, Defendants cannot discipline Plaintiffs for that conduct when the federal government has concluded that no discipline is warranted. In turn, in their motion for summary judgment, Defendants contend that Younger abstention is applicable because the Board of Pharmacy will not enforce any decision on whether Plaintiffs' license and permit should be revoked or suspended until 30 days, which will give Plaintiffs an adequate opportunity to challenge the decision in state court. Defendants further argue that there is no genuine dispute that their actions do not violate the Foreign Commerce Clause and that their actions are not preempted by any federal law.

B. Younger Abstention

The preliminary issue that must be addressed is whether Younger abstention is applicable, as argued by Defendants. If so, then the Court cannot reach the merits of the parties' arguments as to whether Plaintiffs' rights have been violated.

Under the Younger doctrine, "abstention in favor of state judicial proceedings is required if the state proceedings (1) are ongoing, (2) implicate important state interests, and (3) provide the plaintiff an adequate opportunity to litigate federal claims." Hirsh v. Justices of the Supreme Court, 67 F.3d 708, 712 (9th Cir. 1995) (citing Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982)). As noted above, Defendants argued in their motion to dismiss that Younger abstention was applicable but the Court disagreed. The Court concluded that, although the first two prongs of the test above had been satisfied, the third had not. Based on Ninth Circuit case law, in order for there to be an adequate opportunity to litigate federal claims, "the plaintiff must have an opportunity to have the federal claim considered on the merits by the state tribunal before the adverse administrative action takes effect." Order of 10/7/05, at 15 (emphasis in original). Under California Government Code § 11519, the Board could immediately revoke or suspend Plaintiffs' license and permit. See Cal. Gov.Code § 11519(a) ("The decision [of the administrative agency] shall become effective 30 days after it is delivered or mailed to respondent unless: a reconsideration is ordered within that time, or the agency itself orders that the decision shall become effective sooner, or a stay of execution is granted."). The circumstances in Kenneally v. Lungren, 967 F.2d 329 (9th Cir.1992), were different because there the state medical board stipulated that it would stay the revocation of the plaintiffs physician's license for thirty days. See id. at 332.

In their current motion for summary judgment, Defendants renew their argument that Younger abstention is applicable. To support this argument, Defendants have submitted the declaration of Ms. Harris, the Executive Officer of the Board of Pharmacy. In her declaration, Ms. Harris states that the Board has adopted

a specific policy and practice of making its decisions final following consideration of a Proposed Decision in an Accusation case effective 30 days after their issuance from the Board. The Board has by member vote specifically rejected the possibility of imposing any period before the effective date shorter than 30 days.

Harris Decl. ¶ 14. Ms. Harris further states that she

can affirm and assure that any final decision issued by the Board following a hearing on the Accusation now pending against Afshin Adibi and International Pharmaceutical Services will be issued in compliance with the Board policy and practice of allowing for at least 30 days between the date of adoption and the effective date of the decision.¹

Id. ¶ 19.

In their papers, Plaintiffs challenged the Ms. Harris's declaration on various bases. Because the Court had some concern as to whether the declaration by Ms. Harris constituted the best evidence of the Board's decision that the effective date of a decision would be no shorter than thirty days, the Court asked Defendants to provide a copy of the minutes (or other such document) reflecting that decision.

Instead of filing a copy of the minutes, Defendants filed on September 26, 2006, a copy of a Board order signed by William Powers, the president of the Board. The order states as follows:

The long-standing policy and practice of the California State Board of Pharmacy (Board), as adopted by vote of its members, is that any decision of the Board following a Proposed Decision on a contested Accusation, pursuant to Government Code section 11519, shall be made effective no less than 30 days following the issuance date of the Board decision.

With specific regard to the Matter of the Accusation against International Pharmaceutical Services and Afshin Adibi, Case No. 2347 now pending before the Board, the Board hereby orders that it shall not deviate from this policy, and hereby stipulates and agrees that any decision issued in this case will be made effective no less than 30 days from the date of its issuance. This order and stipulation is made without specific knowledge of the facts of the case, or of the charges made, and without prejudice to the Board's subsequent consideration of such facts and charges should this case come before the Board.²

Docket No. 86.

In response, Plaintiffs argued, inter alia, that Defendants failed to provide what the court requested. Plaintiffs also submitted nearly 600 pages of minutes for public Board meetings since 2003 for the purpose of showing that the Board never adopted a policy or...