Simopoulos v. Virginia State Bd. of Medicine, No. 80-1431

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: Before BUTZNER, RUSSELL and HALL; RUSSELL; BUTZNER
• Citation: 644 F.2d 321
• Parties: Chris SIMOPOULOS, M.D., Appellant, v. VIRGINIA STATE BOARD OF MEDICINE, Marshall Coleman, Fairfax Hospital Association, Potomac Hospital, Appellees.
• Docket Number: No. 80-1431
• Decision Date: 19 March 1981

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644 F.2d 321 Chris SIMOPOULOS, M.D., Appellant,
v.
VIRGINIA STATE BOARD OF MEDICINE, Marshall Coleman, Fairfax
Hospital Association, Potomac Hospital, Appellees. No. 80-1431. United States Court of Appeals,
Fourth Circuit. Argued Dec. 4, 1980.
Decided March 19, 1981.

Roy Lucas, Washington, D. C., (Lucas & Miller, P. C., Washington, D. C., on brief), for appellant.

Gregory M. Luce, Asst. Atty. Gen., Richmond, Va., (James E. Ryan, Jr., Deputy Atty. Gen., John A. Rupp, Asst. Atty. Gen., Richmond, Va., on brief), for appellees.

Before BUTZNER, RUSSELL and HALL, Circuit Judges.

RUSSELL, Circuit Judge:

In this § 1983 action for declaratory and injunctive relief, the plaintiff, a physician, sought judgment against the State Board of Medicine (Virginia), the Attorney General of Virginia, and two Virginia hospitals, that certain provisions of the Virginia anti-abortion statutes ¹ and the related statute authorizing the State Board of Medicine to suspend any licensed physician upon conviction of a violation of those anti-abortion statutes, ² were unconstitutional, and in that connection prayed for injunctive relief against any restriction upon, or suspension of, the plaintiff's right to practice medicine within the Commonwealth of Virginia, or to continue as a staff member of the two defendant hospitals on account of his conviction under the anti-abortion statutes. The District Court dismissed the action under the authority of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1970),

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and related cases. The plaintiff has appealed that dismissal. We affirm.

This action originated with plaintiff's arrest on November 29, 1979, under a warrant charging him with the crime of "performing on a minor, 17 years of age, an abortion during the second trimester of pregnancy and outside a hospital licensed by the State Department of Health or under the control of the State Board of Mental Health and Mental Retardation," in violation of § 18.2-73. ³ After arrest, he demanded a preliminary hearing prior to submission of any indictment to the grand jury. This request was granted. The preliminary hearing, however, was continued at the plaintiff's request, from the date originally set until January 15, 1980. While the preliminary hearing was thus delayed, the plaintiff instituted on December 27, 1979, a § 1983 action in the District Court styled Simopoulos v. Horan, to enjoin any prosecution under the arrest warrant, as well as any other prosecutions under § 18.2-73, on the ground that the statute on which the prosecution was based was unconstitutional. The District Court being "of the opinion that it should abstain from interfering in that State's prosecution," dismissed that action on January 16, 1980. The plaintiff appealed the dismissal, and pending hearing of that appeal, sought from the Court a temporary injunction against prosecution. The request for injunctive relief pending appeal was denied and later, by consent, the appeal itself was dismissed. The prosecution in the State Circuit Court then proceeded and resulted in the plaintiff's conviction and sentencing on April 18, 1980. That conviction has been appealed and is now pending before the Virginia Supreme Court.

Upon the defendant's conviction in the State Circuit Court being certified to it, the defendant Board of Medicine revoked the plaintiff's Virginia license to practice medicine on May 23, 1980, pursuant to § 54-321.2 of the Virginia Code (1950) as amended. Under the terms of that section, the defendant secretary of the Board of Medicine is directed to suspend "without a hearing, the certificate or license of any person," who has "suffered a conviction as described in § 54-317.1(1) ...." One of the grounds of "unprofessional conduct" by a "practitioner of medicine" under § 54-317(1) is engaging "in any manner or by any means whatsoever to procure or perform or to aid or abet in procuring or performing a criminal abortion; ..." § 54-321.2, however, provides that any person whose license to practice medicine has been suspended thereunder may apply "for termination of such suspension or revocation and reinstatement of his certificate or license." When such application is made the Board of Medicine is obligated to give the applicant a full hearing, with the right to be represented by counsel, and to summon witnesses in his behalf. The proceedings on such application before the Board are to be "recorded formally." The revocation of a suspension requires the "affirmative vote of three fourths of the members at the hearing." Should the application for revocation be denied by the Board, the applicant has a right to appeal "to the circuit court of the county or the circuit or corporation court of the city within whose jurisdiction he resides, for a review of such proceedings." § 54-320, Virginia Code (1950).

After being advised of the suspension of his license, the plaintiff requested orally a hearing before the Board of Medicine for the purpose of seeking a revocation or stay, pending appeal of his criminal conviction, of the suspension. A hearing on that request was set for July 18, 1980. Without waiting, however, for such hearing the plaintiff filed this action in the United States District Court on June 5, 1980. He stated his "claims" on the basis of which he sought relief as follows:

"(I) Va.Code § 54-321.2 is unconstitutional on its face and as applied, for failure to provide a pre-revocation hearing consistent with the due

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process clause of the Fourteenth Amendment;

"(II) Defendants cannot revoke or suspend Dr. Simopoulos' license and/or hospital privileges because the underlying conviction was based on a statute, Va.Code § 18.2-71, -74, which is unconstitutional in violation of the due process and equal protection clauses, and right of privacy in the Fourteenth Amendment."

In setting forth his request for judgment he asked for "(d)eclaratory judgments that Va.Code §§ 54-321.2 and 18-2-71, -74, are unconstitutional in violation of the due process and equal protection clauses, and right of privacy in the Fourteenth Amendment," and for injunctive relief, both preliminary and permanent, restoring him to "his unrestricted license to practice medicine" and to "the hospital staff membership and privileges which he previously held" at the two defendant hospitals. Contemporaneous with the filing of his complaint, the plaintiff moved for a temporary restraining order and preliminary injunction, accompanying such motion with supporting authorities. On June 20, 1980, the District Court denied the motion and dismissed the action. In so doing, the District Court restated its earlier decision in Simopoulos v. Horan to abstain from consideration of the plaintiff's attack on the constitutionality of the Virginia anti-abortion statute and found that § 54-321.2 was on its face reasonable, citing Christhilf v. Annapolis Emergency Hospital Ass'n., Inc., 496 F.2d 174 (4th Cir. 1974). It added that the plaintiff, if he felt aggrieved at the suspension of his license, might apply for a hearing before the Board of Medicine. From that dismissal the plaintiff has appealed.

On July 18, 1980, the plaintiff was heard in person and by counsel on his application to the Board of Medicine for a revocation of his suspension, pending appeal of his conviction to the Virginia Supreme Court. On July 29, 1980, the plaintiff was officially notified that his application was denied. The plaintiff has appealed this denial of his application to the State Circuit Court, as authorized under the statute. He has "based" his appeal "upon inconsistencies between the Board's hearing on the matter and the requirements of the Administration Process Act, Va.Code 9-6.14, et seq." In his counsel's letter transmitting his notice of appeal the plaintiff disclaimed expressly "an attempt on (his) part to pursue dual appeals in state and federal courts on the same questions. Dr. Simopoulos' appeal before the United States Court of Appeals for the Fourth Circuit involves questions of federal law that are separate and distinct from the state law issues that will be raised before the Fifteenth Circuit Court, City of Richmond." ⁴

To recapitulate: the plaintiff has appealed to this Court the dismissal of this action in the District Court for declaratory and injunctive relief, and it is this appeal which is before us. He has also appealed his criminal conviction under the abortion statute to the State Supreme Court; and, under the procedure for appeal from decisions of the Board of Medicine, as provided in § 54-321.2, he has appealed the denial of either a revocation or a stay, pending appeal, of his license suspension to the State Circuit Court. The District Court held, as we have said, that dismissal of the federal action was mandated under the principles declared in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1970), and related cases, leaving plaintiff to the litigation of his state and federal claims in the state court. The issue on appeal thus is whether the Younger doctrine proscribes the maintenance of plaintiff's action for declaratory and injunctive relief in the federal court. The resolution of this issue requires examination of the Younger doctrine as it applies

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to the federal action and the relation of such doctrine to the facts of this case.

In Younger and the five other cases decided the same day, ⁵ often described as the "February Sextet," ⁶ the Supreme Court formulated the principles restraining interference by federal courts with state court proceedings. Under these principles when relief sought by a plaintiff in a federal action is available in a pending state criminal proceeding, the federal court, except in certain specific extraordinary circumstances, must apply equitable estoppel and abstain by dismissing outright the federal suit and by requiring the "presentation of all claims, both state and federal, to the state...