Privitera v. California Bd. of Medical Quality Assur.

• Decision Date: 25 February 1991
• Docket Number: No. 89-55981,89-55981
• Citation: 926 F.2d 890
• Parties: James A. PRIVITERA, M.D., Plaintiff-Appellant, v. CALIFORNIA BOARD OF MEDICAL QUALITY ASSURANCE; Kenneth Wagstaff, as Executive Director of the California Board of Medical Quality Assurance, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 890

926 F.2d 890

James A. PRIVITERA, M.D., Plaintiff-Appellant, v. CALIFORNIA BOARD OF MEDICAL QUALITY ASSURANCE; Kenneth

Wagstaff, as Executive Director of the California

Board of Medical Quality Assurance,

Defendants-Appellees.

No. 89-55981.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 6, 1990.

Decided Feb. 25, 1991.

John A. Dito, Buchalter, Nemer, Fields & Younger, Los Angeles, Cal., for plaintiff-appellant.

Helena Whalen-Bridge, Deputy Atty. Gen., Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before NORRIS, HALL and RYMER, Circuit Judges.

RYMER, Circuit Judge:

James Privitera, M.D. brought this action for injunctive relief under the Civil Rights Act, 42 U.S.C. Sec. 1983, challenging a California Board of Medical Quality Assurance (BMQA) license revocation proceeding against him. He now appeals an order of the district court that denied his motion for preliminary injunction, dismissed pendent claims for declaratory relief and to compel arbitration, and stayed the action pending resolution of the state claims in state court. ¹ We reverse and remand.

I

Privitera is a medical doctor licensed to practice in California. He was convicted in 1975 of conspiracy to sell and prescribe laetrile to cancer patients. Privitera appealed his conviction, but the California Supreme Court ultimately affirmed. In 1982, the governor granted him a full pardon. In 1977, while Privitera was appealing his laetrile conviction but before he was pardoned, BMQA began an accusation proceeding to revoke his license. In 1980, he entered into a settlement with BMQA that required him to be on probation for ten years.

Privitera claims that during this period of probation BMQA began an active campaign to harass him. In support of this claim, he alleges the following facts: First, his surveillance officer pressured him into buying a cow from his daughter for $2500 and tried to pressure him into buying a second cow. Then in 1984, a patient of Privitera's had an insurance dispute about Privitera's treatment, and when the executive director of BMQA learned of the dispute, he wrote: "This looks good. Maybe it's another chance to nail this Privitera." Privitera's surveillance officer falsely presented himself to the patient as an insurance investigator to get her to release her records.

Later BMQA sent an agent, posing as a patient, to see Privitera, and she signed a form stating she was not an agent. That same form called for arbitration of any dispute. Based on the agent's visit, BMQA instituted the present accusation proceeding to revoke Privitera's probation and to revoke his license.

After that, Privitera told BMQA that if the proceeding were not stopped he would publicize the cow incidents. The proceeding went forward, and he did hold a press conference. Privitera was then charged with extortion, but the charge was dismissed at the preliminary hearing. The judge noted that "one gets the sense of discriminatory prosecution on the part of the D.M.Q. [sic] or whomever in the state hierarchy is pressing these charges."

Privitera's complaint seeks to enjoin the revocation proceeding, which he alleges represents the culmination of a pattern of unjust harassment in violation of his federal constitutional rights. Claims are also set forth to compel arbitration pursuant to the agreement signed by the BMQA agent, and for a declaration that Privitera's probationary status, and therefore the attempt to revoke his license, is illegal.

Privitera moved for preliminary injunction, and BMQA moved to dismiss the claim on the grounds of Younger abstention, ² among other things. The district court dismissed the pendent claims without prejudice under United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); denied the motion to dismiss and for preliminary relief; and stayed the federal action, removing it from the active calendar, pending resolution of the state issues in state court because they would either moot the constitutional issues or impact their disposition.

II

First, we must determine whether the district court's stay order is appealable at this time. There is no dispute that the portion of the order denying Privitera's motion for preliminary injunction is appealable under 28 U.S.C. Sec. 1292(a)(1), which provides for appeals of "[i]nterlocutory orders of the district courts ... granting, continuing, modifying, refusing or dissolving injunctions." Privitera asserts that the stay aspect of the order is appealable as a final order under Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 10 n. 11, 103 S.Ct. 927, 934 n. 11, 74 L.Ed.2d 765, 776 n. 11 (1983), because he is effectively "out of court," and alternatively that it is appealable as the grant or denial of an injunction under Sec. 1292(a)(1). BMQA argues that the stay order is not a final order under Sec. 1291 because the district court retained jurisdiction of the federal Civil Rights claims and Privitera is therefore not effectively out of court on those claims.

Under the unique circumstances of this case, we conclude that the portion of the order staying the action is appealable under 28 U.S.C. Sec. 1292(a)(1). To hold otherwise would mean that the denial of the preliminary injunction would be effectively unappealable because a reversal on that issue would have no effect. Our mandate would return to a black hole. A stay should not insulate the denial of a request for preliminary injunction from appellate review in this way. For this reason, the denial of the preliminary injunction and the stay must be considered together.

Cases interpreting Sec. 1292(a)(1) indicate that we are to take a pragmatic approach to determining appealability under this section. The Supreme Court has held that an order, even if it does not directly rule on an injunction, is appealable under Sec. 1292(a)(1) if it has the "practical effect of refusing an injunction," and if it "might have 'serious, perhaps irreparable consequence,' and ... can be 'effectually challenged' only by immediate appeal." Carson v. American Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 996, 67 L.Ed.2d 59, 64 (1981); see also Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 287-88, 108 S.Ct. 1133, 1142-43, 99 L.Ed.2d 296, 312 (1988) (reaffirming the standard in Carson ).

In Carson, the Court held that a district court's order refusing to enter a consent decree was immediately appealable. The proposed decree would have permanently enjoined an employer from discriminating against black employees and would have implemented several major changes in the employer's hiring system. Appeal under Sec. 1292(a)(1) was justified because the order might deprive the employees of their opportunity to settle the case on the terms negotiated, and the employees alleged that they would suffer irreparable injury unless they received injunctive relief at the earliest opportunity. Under these circumstances, requiring the parties to go forward with the litigation had the practical effect of refusing injunctive relief which might have serious, perhaps, irreparable consequence and could be effectually challenged only by immediate appeal.

In an earlier case applying similar reasoning, the Fifth Circuit held that a stay was immediately appealable under 28 U.S.C. Sec. 1292(a)(1) when the plaintiff sought injunctive relief. Goldberg v. Carey, 601 F.2d 653 (5th Cir.1979). There, the plaintiff had requested a temporary injunction, and the district court abstained to allow state court resolution of state law issues. Recognizing the potential delay of years inherent in the abstention order, the court held that "when a temporary injunction has been sought and a stay has been granted to permit a state court to determine pertinent issues under England, the order operates as a denial of a temporary injunction and is thus appealable under Sec. 1292(a)(1)." Id. at 658; see also Moses v. Kinnear, 490 F.2d 21, 24 (9th Cir.1974) (stay pending plaintiff's exhaustion of state remedies immediately appealable as the denial of an injunction when plaintiff sought injunctive relief).

As a practical matter in this case, the stay order amounts to the same thing as denial of an injunction because equitable relief is sought only on the Civil Rights claims, and if those claims are not allowed to go forward, there is no way Privitera can seek to stop the license revocation proceeding. The effect is twofold. First, having to initiate a state court action to determine the pendent claims when no such action is currently pending could delay indefinitely the ultimate resolution of Privitera's claim for injunctive relief. Secondly, and of greater significance is the fact that both the stay and the denial of injunctive relief have the effect in this case of denying the injunction. The district court denied Privitera's request for preliminary injunction in part on the ground that the hearing was three months away and on that account he had failed to show irreparable injury. The stay would preclude his renewing the request as the hearing got closer and his injury, arguably more immediate. ³ Therefore, either part of the order, if left in place, would deny preliminary relief.

The second part of the Carson test is also met. Carson requires that to be immediately appealable, the order have "serious, perhaps irreparable, consequence" that cannot be effectually challenged except by immediate appeal. 450 U.S. at 84, 101 S.Ct. at 999, 67 L.Ed.2d at 64. In that case plaintiffs alleged they would suffer irreparable injury unless they obtained injunctive relief restructuring defendants' transfer and promotional policies. Because they could not obtain that relief until the proposed consent decree was entered, delay in reviewing the district court's refusal to enter the decree sufficed to meet the test. In this case...