P. Sidney Neuwirth, D.D.S. v. Louisiana State Board of Dentistry

845 F.2d 553, 1988 U.S. App. LEXIS 6833, 1988 WL 42174

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 23, 1988
• Docket: 86-3902
• Status: Published

Opinions

EDITH H. JONES, Circuit Judge:

Dr. P. Sidney Neuwirth filed this § 1983¹ action, alleging that the refusal of the Louisiana State Board of Dentistry to grant him a dental license pursuant to its reciprocity statute violated his constitutional and statutory rights and seeking declaratory and injunctive relief therefore. The District Court found that Dr. Neuwirth had no constitutionally protected property or liberty interest in obtaining a waiver of Louisiana’s examination requirement for admission to practice dentistry. Alternatively, the court held that Dr. Neuwirth had received procedural due process and was not deprived of substantive due process by the dental board.

Appellant P. Sidney Neuwirth, D.D.S., licensed to practice dentistry in the state of Illinois since 1938,² and an Assistant Clinical Professor at the Louisiana State University School of Dentistry since 1981, sought a license to practice dentistry in Louisiana. In 1983 Neuwirth was granted a restricted license by the Louisiana State Board of Dentistry pursuant to La. Rev.Stat.Ann. § 37:752(3) (West 1974).³ On three separate occasions, Neuwirth applied for a general special license by reciprocity pursuant to La.Rev.Stat.Ann. § 37:768 (West 1974). All three applications were denied by the Board. Each time, Neuwirth was informed that his application was denied because it was the Board’s policy to grant regular dental licenses only through the examination process. Each time, Neuwirth was also given the opportunity to present his case before the Board.

In February 1986, Neuwirth filed this action against the Louisiana State Board of Dentistry and J. Roy Chustz, D.D.S., the President of the Board of Dentistry, alleging that the denials of his applications “are without rational basis, contrary to state law and ... arbitrary and capricious.” Chustz was sued only in his official capacity. Neuwirth requested the district court to (1) enter a judgment declaring that his constitutional and statutory rights were violated; (2) order the defendants to grant him a full license by reciprocity or issue reasons why he has not been granted a license and give him the opportunity to contest those reasons; and (3) award him attorney’s fees and costs. Neuwirth filed a motion for summary judgment alleging that the defendants’ policy of not granting general licenses by reciprocity violates the due process clause of the fourteenth amendment.

As noted, the district court granted defendants’ motion for summary judgment.

Neither the parties nor the trial court suggested that the eleventh amendment may bar the federal court’s jurisdiction to hear this case. Appellees, however, raised the issue at oral argument before us and by a letter a few days prior thereto. We may properly consider the issue even at this stage of the proceeding, because of the strong federalism concerns behind the amendment. See Voisin’s Oyster House, Inc. v. Guidry, 799 F.2d 183, 188-89 (5th Cir.1986); McKay v. Boyd Const. Co., 769 F.2d 1084, 1086 (5th Cir.1985).⁴

The Eleventh Amendment provides:

The judicial power of the United States shall not be construed to extend to any suit in law or in equity, commenced or prosecuted against one of the United States by Citizens or Subjects of any Foreign State.

This language has been construed to bar actions brought in federal court against state governments by anyone other than the federal government or another state. See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 97-102, 104 S.Ct. 900, 906-09, 79 L.Ed.2d 67 (1984). Absent a waiver or consent by the state or an express negation of immunity by act of Congress, the eleventh amendment prohibits a federal court from awarding either legal or equitable relief against the state. Papasan v. Allain, 478 U.S. 265, 106 S.Ct. 2932, 2939, 92 L.Ed.2d 209 (1986). However, an exception to this rule first announced in Ex Parte Young,5 enables a federal court to entertain a suit for prospective relief against a defendant state officer upon allegations that he violated federal law, based on the legal fiction that a state officer cannot then be acting pursuant to state authority. Papasan, 106 S.Ct. at 2939-40. Whether the Louisiana Board of Dentistry or Dr. Chustz is entitled to eleventh amendment immunity are distinct issues.

We consider first the dental board. The “State” for eleventh amendment purposes includes state agencies, Mt. Healthy City School District Bd. of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), appeal after remand 670 F.2d 59 (6th Cir.1982), but not “political subdivisions” of the state. Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 401-02, 99 S.Ct. 1171, 1178-79, 59 L.Ed.2d 401 (1979).

In Minton v. St. Bernard Parish School Bd., 803 F.2d 129, 131 (5th Cir.1986), this Court set forth six factors for determining whether a particular entity is entitled to eleventh amendment immunity:

(1) whether state statutes and case law characterize the agency as an arm of the state; (2) the source of funds for the entity; (3) the degree of local autonomy the entity enjoys; (4) whether the entity is concerned primarily with local, as opposed to statewide problems; (5) whether the entity has authority to sue and be sued in its own name; and (6) whether the entity has the right to hold and use property.

Applying these factors the Court in Darlak v. Bobear, 814 F.2d 1055, 1060 (5th Cir.1987), held that the Louisiana Department of Health and Human Resources (DHHR) and Charity Hospital of Louisiana at New Orleans, which is a part of the DHHR, are entitled to eleventh amendment immunity.

The Board of Dentistry is also part of the DHHR. La.Rev.Stat.Ann. § 37:753A (West Supp.1986). The Board consists of twelve members appointed by the Governor and is concerned with statewide issues, i.e., the regulation of the practice of dentistry in Louisiana. La.Rev.Stat. Ann. §§ 37:753B, 37:760 (West Supp.1986). In addition, the Board receives its funding from the state and any judgment against the Board would be paid with state funds. Darlak, 814 F.2d at 1059. Although the Board has authority to sue and be sued, La.Rev.Stat.Ann. §§ 37:785, 37:786, 37:791 (West Supp.1986), the existence of the other factors demonstrates that the Board is the alter ego of the State of Louisiana. Because § 1983 does not negate a state’s eleventh amendment immunity, Pennhurst, 465 U.S. at 99, 104 S.Ct. at 907; Voisin’s, 799 F.2d at 186, and the Board is the alter ego of the State of Louisiana, which has not consented to suit,⁶ see Fireman’s Fund Ins. Co. v. Dept. of Transp. and Development, State of Louisiana, 792 F.2d 1373, 1375-76 (5th Cir.1986), relief is barred against the Board.

Neuwirth’s claim for injunctive relief against Dr. Chustz is more problematic. The primary issue is whether the claim falls within the Ex Parte Young exception to immunity in light of recent decisions favoring its narrow construction⁷. In Pa-pasan, the Supreme Court described Young as applying to situations “where the underlying authorization upon which the named (state) official acts is asserted to be illegal.” 106 S.Ct. at 2940 (citing Cory v. White, 457 U.S. 85, 102 S.Ct. 2325, 72 L.Ed.2d 694 (1982)). The Court further stated that Young

... does not foreclose an Eleventh Amendment challenge where the official actions are asserted to be illegal as a matter of state law alone (citation omitted). In such a case, federal supremacy is not implicated because the state official is acting contrary to state law only.

Id. (emphasis added).

Another way of articulating this point is that the exception “allows federal courts to hear suits against state officials if the suit seeks to force them to conform their conduct to federal law,” but does not apply to “suits which would seek to have federal judges order state officials to conform their conduct to state law.” Rotunda, Nowak, & Young, Constitutional Law: Substance and Procedure, Vol. 1 § 2:12 at 89 (1986); see also Pennhurst, 465 U.S. at 89, 104 S.Ct. at 900; County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 105 S.Ct. 1245, 84 L.Ed.2d 169 (1985), rehearing denied 471 U.S. 1061, 105 S.Ct. 2173, 85 L.Ed.2d 491 (1985).

Dr. Neuwirth’s right to relief in federal court thus depends on whether his claim implicates a constitutional violation, as contrasted with a violation of state law alone. In cases like this, where our jurisdiction and appellant’s right to relief on the merits are intertwining issues, it is our practice usually to discuss and resolve the issues jointly. “When the basis of federal jurisdiction is intertwined with the plaintiffs federal cause of action, the court should assume jurisdiction over the case and decide it on the merits.” Eubanks v. McCotter, 802 F.2d 790, 792-93 (5th Cir.1986). As will be seen, despite Dr. Neuwirth’s valiant efforts to persuade us, we do not perceive his lawsuit as raising any issue other than an arguable violation of state law.

The due process clause of the fourteenth amendment protects a person from deprivation of life, liberty or property without due process of law. Whether “due process” has been accorded a plaintiff is not material unless he demonstrates that state action deprived him of a constitutionally protected interest. Dr. Neuwirth’s claim founders on this first hurdle — he has not elevated his state law grievance to the deprivation of a property or liberty interest protected by the constitution.

It is settled that, “Although the underlying substantive interest is created by ‘an independent source such as state law,’ federal constitutional law determines whether that interest rises to the level of a ‘legitimate claim of entitlement’ protected by the Due Process Clause.” Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 9, 98 S.Ct. 1554, 1560, 56 L.Ed.2d 30 (1978) (quoting Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972)). The applicable Louisiana statute provides that “[t]he board [of Dentistry] may issue a license without exam” on reciprocal terms. La.R.S. 37:768 (emphasis added). The Board admittedly refused ever to issue any reciprocal license without examination to a dentist qualified outside of Louisiana. Dr. Neuwirth contends that the statute gave him an “expectation” of being admitted to practice on a reciprocal basis and that the Board’s refusal to exercise the statutorily founded discretion arbitrarily and capriciously deprived him of “fair” treatment under the law. His constitutional “interests” thus purportedly rest upon the statute and upon a general right to be treated “fairly” by a state administrative agency.⁸ We reject these claims.

Dr. Neuwirth's major complaint about the adverse district court ruling is that the trial court ignored La.R.S. 37:768 and the entitlement it confers on him to be considered for an examination-free reciprocal license. Our brief response is that the court did not ignore the statute, and the statute does not obviously confer such a right. As the district court observed, the statute provides that the Dentistry Board “may” grant reciprocal licenses to qualified dentists from out of state by waiving the exam requirements. Use of the word “may” as opposed to mandatory language as “shall” has been found to indicate a legislature’s intention to bestow discretion on the state agency charged to apply the statute. See Scales v. Mississippi State Parole Bd., 831 F.2d 565, 565 (5th Cir.1987); Board of Pardons v. Allen, — U.S. -, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987); Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). In Scales, this court, finding that a Mississippi parole statute created no constitutionally protected liberty interest, stated: “The distinction between whether a prisoner shall or may be given parole critically differentiates his expectation of release, and hence his rights under the due process clause of the fourteenth amendment.” 831 F.2d at 566. Similar precatory language in this Louisiana statute necessarily leads to the conclusion that absolute discretion over Louisiana’s reciprocity policy has been conferred on the Dentistry Board.⁹ The statute gives rise to no constitutionally protected interests enforceable by Dr. Neuwirth.

This result harmonizes with Leis v. Flynt, 439 U.S. 438, 99 S.Ct. 698, 58 L.Ed.2d 717 (1979), in which the Supreme Court found no constitutionally protected right of an attorney to appear pro hac vice in a state in which he was not licensed to practice law. The Court responded that even if the petitioning attorneys had “reasonable expectations of professional service,” these did not rise to the level of mutual, explicit understanding with the state necessary to create a constitutional entitlement, because the Ohio Supreme Court rules consigned the authority to permit pro hac vice appearances to the trial court’s discretion. 439 U.S. at 443-44, 99 S.Ct. at 701.

Appellant embellishes upon his basic argument, however. He contends that the Board’s decision never to grant reciprocal licenses without examinations, in the face of a statute requiring them to exercise discretion, is an arbitrary and irrational abuse of discretion that violates his right to be treated “fairly” by the state.

To the extent this argument depends on our finding a violation of state law, neither the purported violation nor the argument it supports is compelling. The issue of Louisiana law is whether in stating that the Dentistry Board “may” grant reciprocal licenses without an examination, and thus in conferring discretion on the Board to evaluate reciprocal license applications, the legislature also intended to say the Board may elect not to do so in every case. We have already indicated that the Board appears to have absolute discretion in these matters. Even on the dubious assumption that the Board violated Louisiana law, that “is neither a necessary nor a sufficient condition for a finding of a due process violation.” Stern v. Tarrant County Hospital Dist., 778 F.2d 1052, 1059 (5th Cir.1985) (en banc), cert. denied 476 U.S. 1108, 106 S.Ct. 1957, 90 L.Ed.2d 365 (1986). The appropriate standard is one of federal law.

In advocating a “fairness” standard, Dr. Neuwirth suggests that he is entitled to receive substantive due process, i.e., fairness of result, in connection with his application for an examination-free license. The contours of substantive due process are not starkly etched, to say the least. See, e.g., discussion in Brennan v. Stewart, 834 F.2d 1248, 1248-49, (5th Cir.1988). We can affirm, however, that Dr. Neuwirth’s plea for a “fairness” standard is not within those contours for two reasons. First, the foregoing analysis demonstrated that he has no constitutionally protected interest in practicing dentistry in Louisiana without taking an examination. Such constitutionally protected interests are a prerequisite to asserting a substantive due process violation. See, e.g., Regents of University of Michigan v. Ewing, 474 U.S. 214, 223 and n. 8., 106 S.Ct. 507, 512 and n. 8, 88 L.Ed.2d 523; Brennan v. Stewart, 834 F.2d at 1257-58.

Second, even if he had such an interest, the Supreme Court has gauged the constitutional protection of “non-fundamental” rights by rationality of outcome, not fairness. If state action is so arbitrary and capricious as to be irrational, its infringement on a constitutionally protected interest may violate substantive due process rights. See Regents of University of Michigan v. Ewing, 474 U.S. 214, 106 S.Ct. , 88 L.Ed.2d 523 (state university’s dismissal of student was not arbitrary);¹⁰ Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 98 S.Ct. 2207, 57 L.Ed.2d 91 (1978) (regulation of retail gasoline market found rational). We part company here with the gravamen of Dr. Neuwirth’s attack on the Dentistry Board, because we find that the Board’s denial of an examination-free license to Dr. Neuwirth was not irrational. As the district court observed, it is ironic that Dr. Neuwirth should characterize a consistent policy of requiring all applicants to take a professional dentistry examination as arbitrary and capricious.

Schware v. Board of Bar Examiners of the State of New Mexico, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957), although cited in Dr. Neuwirth’s behalf, does not support his proffered “fairness” rule. In Schware, the appellant had been denied the right to take the New Mexico bar examination largely because he had been a member of the Communist party some years earlier and for this reason was said not to fulfill New Mexico’s character requirement for prospective attorneys. Abundant, uncon-tradicted evidence of Schware’s law-abiding conduct, honorable military record and good character for over ten years immediately preceding his application appeared in the record. The Supreme Court held that New Mexico did not act rationally in excluding Schware from the bar exam and thus denied Schware due process. The Court emphasized, however, that a state can require high standards of qualification for the practice of law so long as such standards have a rational connection to an appellant’s fitness and are not invidiously discriminatory. Not only does Schware comport with a rationality standard of review of the state’s action, but it was also a case in which the effect of New Mexico’s action was to prevent Schware from practicing law in New Mexico. The Dentistry Board, by contrast, has imposed no disabling restriction on Dr. Neuwirth, who, the district court found, actively practices dentistry under a restricted license. The Dentistry Board only asks and requires him to pass a licensing examination in order to obtain a full license.¹¹

We do not demean in the slightest Dr. Neuwirth’s impressive professional credentials. If we were on the Dentistry Board, and were given discretion to decide which practitioners licensed out-of-state should be admitted to practice in Louisiana without passing the professional examination, Dr. Neuwirth would probably be among our first candidates for such a waiver. But the point of our decision is that we are not on the Dentistry Board, nor have we been selected by the governmental authorities of Louisiana to determine who should practice dentistry.¹² To set up a firm policy of requiring all would-be Louisiana dentists to pass an examination, irrespective of professional background, does not strike us as arbitrary, capricious or irrational. This is particularly so in the absence of any discriminatory motive. It is not our function to be the court of last resort for all those dissatisfied with the outcome of state agency action. Dr. Neuwirth’s case, although sympathetic, does not represent that affront to common notions of decency, see, e.g., Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), or infringe one of the “fundamental interests” that previously have been viewed as implicitly protected by the constitution. Regents of University of Michigan v. Ewing, 474 U.S. at 229, 230, 106 S.Ct. at 516 (Powell, J., concurring).

The judgment of the district court is AFFIRMED.

1 . 42 U.S.C. § 1983.

2 . Dr. Neuwirth practiced dentistry in Illinois from 1938 until 1980, except for a period of two years of active service in the U.S. Army, before moving to Louisiana to teach at LSU’s dental school.

3 . Section 37:768 was repealed by the Louisiana legislature in 1986. See La.Rev.Stat.Ann. § 37:768 (West Supp.1986). We do not agree with appellee’s contention that this amendment moots the case. If Dr. Neuwirth had a constitutionally protected liberty or property interest under the statute before its amendment, the Dentistry Board’s action might arguably have violated that interest. The injury from that violation remains despite a change in the law.

4 . See also Whiting v. Jackson State University, 616 F.2d 116, 127 n. 8 (5th Cir.1980); Charley’s Taxi Radio Dispatch Corp. v. Sida of Hawaii, Inc., 810 F.2d 869, 873 (9th Cir.1987); but see Patsy v. Board of Regents of State of Florida, 457 U.S. 496, 515-16, 102 S.Ct. 2557, 2567-68, 73 L.Ed.2d 172 (1982).

5 . 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).

6 . The fact that the Board has appeared in this case and did not raise below an eleventh amendment defense can not be construed as a waiver. A state’s waiver of its immunity must be express and unequivocal. Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 1361, 39 L.Ed.2d 662; Clark v. Barnard, 108 U.S. 436, 2 S.Ct. 878, 27 L.Ed. 780 (1883).

7 . See, e.g., Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Chiz's Motel and Restaurant, Inc. v. Miss. State Tax Com'n, 750 F.2d 1305, 1308 (5th Cir.1985); Pennhurst, 465 U.S. at 89, 104 S.Ct. at 900; Papasan, 478 U.S. 265, 106 S.Ct. 2932, 92 L.Ed.2d 209.

8 . Dr. Neuwirth acknowledges that he has no general, abstract constitutional interest in practicing dentistry in Louisiana without passing the examination.

9 . The dissent suggests that our interpretation of "may" in R.S. 37:768 must be qualified by reference to 24 specific and, impliedly, exclusive grounds for nonissuance, suspension or revocation of a dental license, enumerated in R.S. 37:776. The latter provision, according to the dissent, "strongly suggests that the exercise of discretion to deny a license should be tailored to the particular application." We disagree. Two far more significant differences in terminology outweigh the impact of R.S. 37:776 upon the granting of reciprocal licenses without examinations. First, La.R.S. 37:760 and 761 together provide for the award of dental licenses to applicants who pass an examination, and satisfy other criteria, without using the precatory "may" contained in the reciprocal license provision. This comparison "strongly suggests" that the legislature knew how to grant very broad discretion over reciprocal licenses while withholding such discretion by framing objective criteria for local applicants and those who pass an exam. Moreover, even if the criteria of § 776 must be imported into any reciprocal licensing scheme the Board might establish, their existence does not suggest that the Board lacks discretion to decline all reciprocal licensing without examination, as the “may” in § 768 indicates. Second, the dissent overlooks the emphasis of the Supreme Court in Board of Pardons v. Allen, — U.S. -, 107 S.Ct. 2415, upon use of the word "shaU" for purposes of creating a constitutionally-protected liberty interest. — U.S. -, 107 S.Ct. 2418, 2419, 2420, 96 L.Ed.2d 303. "Shall" and "may” are simply not for present purposes, as the dissent would imply, interchangeable or synonymous depending upon syntax.

10 .The majority of the Court in Ewing did not specifically hold that a student has a constitutionally protected right to remain at a state university, but it assumed the existence of such a right and proceeded to decide that the state had not arbitrarily withdrawn it from Ewing. 474 U.S. at 214, 106 S.Ct. at 512; see also Justice Powell’s concurrence, suggesting that no substantive due process rights were implicated in Ewing's case. 474 U.S. at 228-29, 106 S.Ct. at 515-16. Our Court has noted the existence of a split among the circuits over the extent of due process protections for property rights after Ewing. Schaper v. City of Huntsville, 813 F.2d 709, 717 n. 8 (5th Cir.1987). Schaper held that a substantive due process right exists in continued state employment but does not affect pretermin-ation procedure. Schaper does not govern a case like this one, which deals with a prospect of a professional license in which, as we have found, there was no constitutionally enforceable right.

11 . Dr. Neuwirth does not, nor could he deny that Louisiana has a vital interest in assuring the qualifications of its dentists. See, e.g., Allen v. Louisiana State Board of Dentistry, 835 F.2d 100, 102-103 (5th Cir.1988).

12 . The dissent’s argument rests on two propositions: that Dr. Neuwirth had a ‘‘legitimate claim of entitlement” to a reciprocal license under La.R.S. 37:768, without having to take an exam; and that he was entitled to "individualized" procedural due process from the Board when it reviewed his application. If this were the sum of his constitutional case, Dr. Neuwirth would be entitled to no more than another hearing before the Board, because that is the remedy for due process violations. In asserting that Dr. Neuwirth may be entitled to more relief — i.e. to the issuance of a license — the dissent seems to confuse substantive due process with procedural due process and would impose this court's result on the state in addition to this court’s procedural requirements. Such an application of substantive due process ignores the rationality test for judging the constitutionality of most state actions. More fundamentally, it flies in the face of our en banc decision in Stern v. Tarrant County, supra, holding that fourteenth amendment violations are decided by federal standards rather than by a simplistic tautology with any state law violation.