American Inst. of Foot Med. v. NJ Medical Exam.

• Decision Date: 03 December 1992
• Docket Number: Civ. A. No. 92-4505.
• Citation: 807 F. Supp. 1170
• Parties: AMERICAN INSTITUTE OF FOOT MEDICINE, etc., et al. v. NEW JERSEY STATE BOARD OF MEDICAL EXAMINERS, etc., et al.
• Court: U.S. District Court — District of New Jersey

807 F. Supp. 1170

AMERICAN INSTITUTE OF FOOT MEDICINE, etc., et al. v. NEW JERSEY STATE BOARD OF MEDICAL EXAMINERS, etc., et al.

Civ. A. No. 92-4505.

United States District Court, D. New Jersey.

December 3, 1992.

Joseph Albano, Michael E. Quiat, Uscher, Quiat, Uscher & Strull, Hackensack, NJ, for plaintiffs.

Andrea M. Silkowitz, Asst. Atty. Gen., Brenda Talbot Lewis, Deputy Atty. Gen., Robert J. Del Tufo, Atty. Gen. of N.J., Div. of Law, Newark, NJ, for defendants.

POLITAN, District Judge.

This matter comes before the court on plaintiffs American Institute of Foot Medicine's a/k/a American Podiatric Medical Specialties Board's ("AIFM/APMSB") and nine of its individual members' application for a preliminary injunction. The defendant in this action is the New Jersey Board of Medical Examiners (the "Board").¹ The Board opposed the application for a preliminary injunction and requested this court to abstain from exercising its jurisdiction and to dismiss plaintiffs' complaint. For the reasons outlined below this court will abstain from deciding the merits of plaintiffs' case and will STAY this action pending the Supreme Court of New Jersey's review of N.J.A.C. 13:35-6.10(m). Accordingly, plaintiffs' application for a preliminary injunction is DENIED.

The facts underlying plaintiffs' application are relatively simple. The Board is a professional licensing agency and regulating body of the State of New Jersey, Division of Consumer Affairs, New Jersey Department of Law and Public Safety. On June 19, 1989, the Board promulgated a new regulation which provided:

Any licensee advertising Board Certification in a specialty must possess certification by a certifying agency recognized by the Board of Medical Examiners. A list of recognized agencies shall be maintained by the Board.

N.J.A.C. 13:35-6.10(m) ("Regulation M"). The Board voted in a June 13, 1990 meeting to recognize for purposes of Regulation M those specialty boards recognized by the American Medical Association ("AMA"), the American Osteopathic Association ("AOA") and the American Podiatric Medical Association ("APMA"). These organizations were recognized because the Board was already well-acquainted with the standards of those associations and/or their certifying bodies. The Board further indicated at the June 13, 1990 meeting that it would accept requests from additional certifying agencies not recognized by the AMA, AOA or APMA. On November 14, 1990 the Board voted to approve the following as the Board's policy regarding recognition of additional certifying agencies:

The Board should adopt the standards of the American Board of Medical Specialties, the American Osteopathic Association and the American Podiatric Medical Association as the acceptable standards to be met by certifying Boards in the respective professions. If the applying organization is able to demonstrate that it meets the objective standards established by those recognized bodies for consideration of accreditation, the New Jersey Medical Board should then ask that the examination administered by the proposed certifying organization be submitted to it for review. The graduate experience by the certifying organization must be defined by the organization and submitted to the Board. The Credentials Committee of the Board should review that information from the certifying organization and should make a recommendation to the Board on the acceptability of the organization.

Prior to the enactment of Regulation M, the individual plaintiffs and other New Jersey podiatric licensees who were members of AIFM/APMSB were able to advertise Board Certification status in New Jersey based upon their membership in AIFM/APMSB. Because AIFM/APMSB was not one of the bodies recognized by the Board, however, after the enactment of Regulation M, AIFM/APMSB applied to the Board for recognition of its Board Certification credentials. In its application, AIFM/APMSB also sought to obtain permission from the Board to continue to advertise its Board Certification credentials pending a final decision by the Board on its application for recognition under Regulation M. That preliminary request was denied by the Board on April 30, 1990 and plaintiff AIFM/APMSB and the individual plaintiffs were precluded from advertising their Board Certification status from that point forward.

Upon its review of the submissions of AIFM/APMSB, testimony before the Credentials Committee of the Board, and the various reports before it, the Board determined that AIFM/APMSB had not demonstrated a sufficient basis for recognition by the Board and the request was denied. A formal letter was filed by the Board on October 2, 1992² explaining the reasons for the denial.

On October 28, 1992 plaintiffs filed a complaint in the federal district court alleging that the action of the Board has denied plaintiffs their right to advertise truthful information in violation of the First Amendment of the United States Constitution; that Regulation M is unconstitutional on its face in violation of the First Amendment of the United States Constitution; that the Board has denied plaintiffs Equal Protection of the laws under the Fourteenth Amendment of the United States Constitution; that the Board acting under color of state law in denying plaintiffs their constitutional rights has violated 42 U.S.C. § 1983, et seq.; and that the Board has denied plaintiffs their constitutional rights to advertise truthful information consistent with the New Jersey State Constitution, N.J. Const. art. 1, par. 6 and to equal protection of the laws under N.J. Const. art. 1, par. 1.

As relief, plaintiffs request that this court enjoin the Board from enforcing Regulation M against plaintiffs, render Regulation M null and void as unconstitutional based upon any of the aforementioned constitutional grounds and order that plaintiffs and all others similarly situated be able to commence the advertisement of their Board Certification. Defendant argues that this court should abstain from exercising its jurisdiction and plaintiffs' complaint therefore should be dismissed.

I begin by recognizing that "federal courts have a `virtually unflagging obligation' to exercise their jurisdiction." Deakins v. Monaghan, 484 U.S. 193, 108 S.Ct. 523, 98 L.Ed.2d 529 (1988). However, "where questions under both state law and the federal constitution are present, the policies of promoting comity with the state courts and ensuring the smooth functioning of the federal judiciary counsel the federal courts to stay their hands, at least initially." Hughes v. Lipscher, 906 F.2d 961, 964 (3rd Cir.1990) (citing Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941)).

Pullman abstention is generally "appropriate where the state court's resolution of an unsettled question of state law may moot or change the analysis of the federal constitutional issue." Hughes, 906 F.2d at 964; Georgevich v. Strauss, 772 F.2d 1078, 1089 (3d Cir.1985) (in banc) cert. denied, 475 U.S. 1028, 106 S.Ct. 1229, 89 L.Ed.2d 339 (1986). The application of abstention is equitable in nature and is thus within the court's discretion. Hughes, 906 F.2d at 964. The Third Circuit has identified three prerequisites to the application of Pullman abstention:

(1) Uncertain issues of state law underlying the federal constitutional claims brought in the district court;

(2) Amenability of the state law issues to a state court interpretation that would obviate the need for, or substantially narrow, adjudication of the federal claims;

(3) Disruption of important state policies through a federal court's erroneous construction of state law.

Id. and cases cited therein. "When these elements are present, the court must next determine whether abstention is appropriate, considering such factors as the availability of an adequate state remedy, the length of time the litigation has been pending, and the potential impact on the parties from the delay in seeking a state ruling." Id.

The first of the three prerequisites to Pullman abstention regards the uncertainty of the underlying state law. In this case it is clear that several state law issues remain unsettled. Specifically, the New Jersey Supreme Court has never interpreted nor addressed Regulation M. Also, Regulation M's validity could be challenged as ultra vires. Additionally, Regulation M's practical application remains an unsettled issue of state law. See Hughes, 906 F.2d at 966. In fact, the parties dispute the Board's final determination that AIFM/APMSB's certifying criteria was insufficient to warrant recognition. (See Quiat Reply Aff. ¶ 8 (stating assertions set forth in Board's decision are "blatant misstatements of the facts")). Accordingly, the first prerequisite is established.

Second, I am satisfied that Regulation M and the supplementary policy statement of the Board setting forth the standards by which recognition will be evaluated are "obviously susceptible" to an interpretation and application by the state court that would avoid altogether consideration of the federal issues. Specifically, the state court should be given the opportunity to address the issue of how a certifying agency can become "recognized" by the Board and how those standards were interpreted and applied in the instant case. A state court determination that the announced standards were inadequate or were misapplied in this case would moot plaintiffs' claim that they are being denied their First Amendment rights. Also, the New Jersey courts have not interpreted the key words of Regulation M, namely what is a "specialty" and how one becomes "recognized by" the Board. Cf. Chez Sez III Corp. v. Township of Union, 945 F.2d 628 (3rd Cir. 1991), cert. denied, ___ U.S. ___, 112 S.Ct. 1265, 117 L.Ed.2d 493 (1992). Moreover, I note that plaintiffs have raised claims that Regulation M and the Board's action violate the New Jersey Constitution. Such adjudication by the state court...