Schopler v. Bliss, 88-5609

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtPER CURIAM
Citation903 F.2d 1373
PartiesThomas A. SCHOPLER, D.D.S., Plaintiff-Appellee, v. Rupert BLISS, et al., Defendants-Appellants.
Docket NumberNo. 88-5609,88-5609
Decision Date22 June 1990

Page 1373

903 F.2d 1373
16 Fed.R.Serv.3d 1199
Thomas A. SCHOPLER, D.D.S., Plaintiff-Appellee,
Rupert BLISS, et al., Defendants-Appellants.
No. 88-5609.
United States Court of Appeals,
Eleventh Circuit.
June 22, 1990.

Page 1375

Salvatore A. Carpino, Tampa, Fla. and Arden Siegendorf, Moffitt, Hart & Herron, P.A., Tallahassee, Fla., for Rupert Bliss, et al.

Thomas J. Schopler, Dania, Fla., Daniel J. Lewis, Tamarac, Fla., and Steven I. Kern, and Robert J. Conroy, Kern & Augustine, Morristown, N.J., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before VANCE * and COX, Circuit Judges, and EDENFIELD **, District Judge.


The Florida Department of Professional Regulation, its Board of Dentistry, and ten individuals moved to dismiss this action against them claiming immunity from suit as a matter of law. The district court denied their motion and they now appeal. This court has jurisdiction under the collateral order doctrine for the limited purpose of determining whether the defendants must stand trial. Because Florida has not waived its Eleventh Amendment immunity from suit in federal court, we reverse in part and order that the actions against the Department of Professional Regulation and the Board of Dentistry be dismissed. The ten individual appellants, however, are not immune from all claims as a matter of law, and so we affirm the portion of the district court's order denying the comprehensive claims of immunity raised by these ten appellants.


Because appellants seek to have this action dismissed without an evidentiary hearing, we must assume that the plaintiff would prove the allegations set forth in the complaint if a trial were held. The plaintiff, Thomas A. Schopler, D.D.S., has been practicing dentistry in Broward County, Florida since 1971. In 1977, Dr. Schopler began offering a prepaid dental program to his patients and started advertising both on radio and in newspapers. Dr. Schopler adopted these practices as part of a plan to treat a high volume of patients at a low cost per patient.

The Florida Department of Professional Regulation (hereinafter "the DPR") is a department within the executive branch of the State of Florida empowered to license and regulate the practice of various professions within the state. Fla.Stat. Secs. 455.01, 455.203. The Florida Board of Dentistry (hereinafter "the Board") is a board within the DPR charged with ensuring that "every dentist ... practicing in this state meets minimum requirements for safe practice." Fla.Stat. Secs. 466.001, 466.004. Among other things, the Board is authorized to promulgate rules governing advertising by dentists. Fla.Stat. Sec. 466.019. When the DPR receives a legally sufficient complaint against a dentist, the Board is required to assemble a "probable cause panel" of its members to determine whether a formal complaint should be lodged against the practitioner. Fla.Stat. Sec. 455.225(3). If formal charges are brought, the Board as a whole (excluding those members who sat on the probable cause panel) then decides whether disciplinary action shall be taken and issues a final order. Fla.Stat. Sec. 455.225(5).

Defendant Rupert Q. Bliss, D.D.S., is a Florida dentist and was a member of the Board until 1984. The essence of Dr. Schopler's complaint is that Dr. Bliss engaged in a course of conduct designed to prevent Florida dentists from advertising and engaging in high-volume dental practice, in order to protect the financial interests of those such as Dr. Bliss who operated "traditional,

Page 1376

low-volume dental offices." Dr. Schopler alleges that eight other Board members and a DPR investigator knew about and gave their approval to Dr. Bliss's conduct and conspired with him. Five of these Board members were dentists, all of whom are said to have practiced in a "traditional" manner.

Specifically, Dr. Schopler alleges that for a significant time the composition of the probable cause panels was rigged and manipulated. During this period, the Board allegedly threatened and instituted formal charges against virtually every dentist in the State of Florida who engaged in substantial advertising. Dr. Schopler alleges that the Board levied multiple, unfounded charges of incompetence against him in order to intimidate him. Four separate administrative complaints were filed and then dropped immediately prior to a full hearing, forcing Dr. Schopler to incur the costs of defense while avoiding a hearing on the record that would have revealed that the charges were baseless.

Dr. Schopler also claims that his associates and employees were threatened and harassed causing him to lose valuable assistance. Dr. Schopler's patients were allegedly discouraged from using his prepaid dental plan and were encouraged to file complaints and lawsuits against Dr. Schopler. Local dentists were told that Dr. Schopler was incompetent and was engaged in illegal activity, and editorials were published indicating that dentists who advertised were unethical and unskilled.

Dr. Schopler brought this suit in 1982 against the DPR, a DPR investigator, the Board 1, Dr. Bliss, eight other Board members, and others who are not parties in this appeal. Three of the Board members were named in their official capacities only; the rest of the individual defendants were sued in both their official and individual capacities. Dr. Schopler claimed violation of his First, Fifth and Fourteenth Amendment rights, actionable under 42 U.S.C. Sec. 1983. Dr. Schopler also alleged violations of the Racketeer Influenced and Corrupt Organization Act ("RICO"), 18 U.S.C. Secs. 1961-1968, and section one of the Sherman Anti-Trust Act, 15 U.S.C. Sec. 1. Under Florida law, Dr. Schopler claimed defamation, intentional interference with business, and violation of the Florida Anti-Trust Act of 1980, Fla.Stat. Secs. 542.15-542.36. Dr. Schopler demanded injunctive relief against all defendants and money damages against all defendants except the DPR.

The appellants moved to dismiss the complaint, claiming among other things that the suit was barred by the Eleventh Amendment and by the doctrines of quasi-judicial immunity, quasi-legislative immunity, and qualified immunity. The district court denied the appellants' motion in its Omnibus Order dated June 3, 1988, and this appeal ensued. 2


Initially we must determine the extent of our jurisdiction to decide this appeal. Our power to review district court orders is generally limited to final decisions; interlocutory orders may be appealed only under special circumstances not

Page 1377

applicable here. 28 U.S.C. Secs. 1291, 1292. An order may be considered "final" for purposes of section 1291, however, even though it is not a final judgment and does not resolve the ultimate issues raised in the complaint. Under the collateral order doctrine, an order that conclusively decides a claim of right that is separable from the principal action may be deemed "too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1226, 93 L.Ed. 1528 (1949). See generally 15 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure Sec. 3911 (1976 & Supp.1989).

In Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817-18, 86 L.Ed.2d 411 (1985), the Supreme Court held that the denial of a motion for summary judgment based on qualified immunity is a collateral order under Cohen and may be immediately appealed. The Court's decision rested on the premise that immunity from suit protects public officials not only from the burden of liability, but also from the burden of litigation. 472 U.S. at 526, 105 S.Ct. at 2815-16. See also id. at 537, 105 S.Ct. at 2821 (O'Connor, J., concurring) ("[T]he special nature of [official immunity] justifies immediate review. The very purpose of such immunit[y] is to protect the defendant from the burdens of trial...."). This immunity "is effectively lost if a case is erroneously permitted to go to trial." Id. at 526, 105 S.Ct. at 2815. For all practical purposes, then, a pretrial order rejecting a claim of immunity is a final determination of the claimant's right not to stand trial. Such rulings are appealable collateral orders, regardless of whether the immunity being claimed is qualified or absolute. Id. at 525, 530, 105 S.Ct. at 2814-15, 2817-18.

It is apparent from the Court's reasoning in Mitchell that government officials are afforded pretrial appellate review of their immunity claims for the limited purpose of determining whether they are entitled to avoid further litigation. If we conclude that a defendant is not altogether immune or that some portion of the defendant's immunity claim cannot be resolved without a trial, then presumably there is no reason to consider the appeal further, since any additional review would be purely interlocutory. Green v. Brantley, 11th Cir.1990, 895 F.2d 1387. In Green, this court held that it lacked jurisdiction to consider the defendants' claim of qualified immunity from one cause of action for damages when the defendants would in any event be subject to trial for damages on another cause of action arising from the same events. The court refused to consider the appellants' request for partial relief because such relief would not be meaningful enough to justify interrupting the...

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