Wang v. NH Board of Reg.

• Court: Court of Appeals for the First Circuit
• Decided: June 6, 1995
• Docket: 94-1864
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



                                                     
                                 ____________________



        No. 94-1864



                                 JOHN W. WANG, M. D.,



                                Plaintiff, Appellant,



                                          v.



               NEW HAMPSHIRE BOARD OF REGISTRATION IN MEDICINE, ET AL.,



                                Defendants, Appellees.



                                                     
                                 ____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF NEW HAMPSHIRE



                    [Hon. Paul J. Barbadoro, U.S. District Judge]
                                             ___________________



                                                     
                                 ____________________


Cyr and Boudin, Circuit Judges,
                                           ______________



                             and Keeton,* District Judge.
                                          ______________



                                                     
                                 ____________________


Vincent C. Martina for appellant.
             __________________

             Daniel J.  Mullen, Senior  Assistant Attorney General,  with whom
             _________________

        Jeffrey R. Howard, Attorney General, was on brief.
        _________________


____________________



                                     June 6, 1995

                                                     
                                 ____________________


____________________



             *Of the District of Massachusetts, sitting by designation.



CYR, Circuit Judge.  John W. Wang, M.D., appeals from a
                    CYR, Circuit Judge.
                         _____________



          district court  judgment dismissing  his claims for  monetary and



          equitable  relief relating  to  certain disciplinary  proceedings



          conducted by the New Hampshire Board of Registration in Medicine,



          which  culminated in the  revocation of  his license  to practice



          medicine  in New Hampshire.   We affirm the  district court judg-



          ment.


I
                                          I



                                      BACKGROUND
                                      BACKGROUND
                                      __________



                    Wang practiced medicine for approximately sixteen years



          under   a  medical   license  issued   by  the   Commonwealth  of



          Massachusetts  in 1967, then moved  to New Hampshire  in 1983 and



          resumed  the  practice of  medicine  under  a newly-obtained  New



          Hampshire  medical  license.   On March  16,  1988, the  Board of



          Registration in  Medicine for the  Commonwealth of  Massachusetts



          ("Massachusetts  Board")  revoked   Wang's  medical  license  for



          professional misconduct.1   In  light of the  Massachusetts Board



          action against Wang, the New  Hampshire Board of Registration  in



          Medicine ("New  Hampshire Board" or  "Board") issued an  order on



          July  20,  1988, suspending  his  New  Hampshire medical  license



          pursuant to  the  New Hampshire  reciprocal revocation  statute,2

                              
          ____________________



               1The  charges and findings appear in Wang v. Board of Regis-
                                                    ____    _______________

          tration in Medicine, 537 N.E.2d 1216 (Mass. 1989).
          ___________________



               2The reciprocal  revocation statute, N.H. Rev.  Stat. Ann.  

          329:17-c (1984), in effect at the time provided:



               The  board may  summarily deny  a license  to, or  revoke or

               restrict  the license of, any  person who has been subjected



                                          2



and  allowing him  until August 26  to request  an administrative



          hearing.



                    Wang  promptly  obtained preliminary  injunctive relief



          from  a New  Hampshire superior  court, enjoining  the suspension



          order  pending  a revocation  hearing  before  the New  Hampshire



          Board.   The Board in turn  withdrew its suspension order and, on



          August 11, 1988, ordered that  Wang show cause why his  New Hamp-



          shire license  ought not  be revoked  on the  ground that  he had



          never informed the  Board of the license  revocation order issued



          by the Massachusetts  Board.  On October  5, 1988, the  New Hamp-



          shire Board  decided to investigate Wang's  New Hampshire medical



          practice.



                    Pending  investigation by the New Hampshire Board, Wang



          appealed the Massachusetts Board  license revocation order to the



          Massachusetts Supreme Judicial Court ("SJC").  Contemporaneously,



          Wang sought    and on February 23, 1989, obtained    a second New



          Hampshire superior court order, enjoining the New Hampshire Board



          from pursuing "any hearing  the result of which might  be revoca-



          tion of [Wang's] New Hampshire license based on the action of the



          Massachusetts  Board  . .  .  until such  time  as the  matter in



          Massachusetts has  been finally adjudicated  in the [SJC]."   Two



          months later     on reconsideration    the New Hampshire superior



          court vacated  its  injunction for  lack  of jurisdiction.    The



          following week,  the SJC  upheld the Massachusetts  Board license



                              
          ____________________



               to disciplinary  action related to  professional conduct  by

               the competent authority of any other jurisdiction.



                                          3



revocation order. 



                    On  May 22,  1989,  counsel was  appointed  by the  New



          Hampshire  Board  to  investigate  Wang's New  Hampshire  medical



          practice.   The investigation  took over  two years, followed  by



          hearings commencing in  July and  ending in October,  1991.   The



          Board  found that      in and  of  itself     the  unprofessional



          conduct  which had  prompted  the Massachusetts  Board to  revoke



          Wang's medical license warranted  revocation of his New Hampshire



          license.    Further, the  Board  found  that Wang's  unreasonable



          withholding of  information from the Board  during its investiga-



          tion into  his New  Hampshire medical  practice, and  his failure



          even  to  demonstrate  an  attempt to  address  the  professional



          deficiencies  in his  Massachusetts practice, combined  "not only



          [to] justify,  but [to] require reciprocal  license revocation in



          New Hampshire."  On  March 5, 1992, the Board  issued its written



          decision and order revoking Wang's New Hampshire medical license.



                    Wang  appealed  the  revocation  decision  to  the  New



          Hampshire Supreme Court, claiming deprivations of his due process



          rights under state and  federal law, including alleged violations



          of the Board's own rules,  regulations and enabling statutes, and



          asserting conflicts of interest and unfair prejudice on  the part



          of Board  members and its counsel.   On August 26,  1992, the New



          Hampshire Supreme Court summarily affirmed the license revocation



          order, finding  the New  Hampshire Board decision  neither unjust



          nor unreasonable,  and that  the appeal presented  no substantial



          question of law.


4



Meanwhile, on  November 22, 1991, before  the New Hamp-



          shire  Board's license  revocation  order ever  issued, Wang  had



          commenced  the present action against the  Board, its members and



          counsel,  in the United States District Court for the District of



          New  Hampshire.   The federal  complaint under  42 U.S.C.    1983



          asserted claims  for monetary relief and for temporary and perma-



          nent injunctive relief enjoining  further disciplinary action  by



          the Board; a  judicial declaration that the Board's  actions were



          fundamentally unfair and violative of Wang's right to due process



          of law; and an award of  attorney fees against Board members  and



          its counsel in their individual capacities.  The federal district



          court stayed  its  proceedings  pending  a decision  by  the  New



          Hampshire Supreme Court.



                    All  defendants  moved  to dismiss  the  federal action



          shortly after the New  Hampshire Supreme Court summarily affirmed



          the New Hampshire Board's license revocation order.  The district



          court  dismissed the claims for monetary relief against the Board



          and  its  members,  in  their official  capacities,  on  Eleventh



          Amendment  immunity  grounds.   Later,  the  claims for  monetary



          relief against Board members and its counsel, in their individual



          capacities,  were dismissed  on  grounds  of  absolute  immunity.



          Finally, on  July 12,  1994, the  district court entered  summary



          judgment on the claims for  injunctive relief against the  Board,



          finding that  it lacked subject matter jurisdiction to review the



          New Hampshire Supreme Court decision.  Wang appealed.


II
                                          II



                                          5



DISCUSSION
                                      DISCUSSION
                                      __________



                    On appeal, Wang contends  that the district court erred



          in dismissing  his claims for  monetary relief against  the Board



          and  its members in their  official capacities; in sustaining the



          absolute  immunity claims  interposed  by Board  members and  its



          counsel,  acting in  their individual  capacities, in  that these



          defendants had  exceeded their respective adjudicative and prose-



          cutorial roles  and  would be  entitled,  at most,  to  qualified



          immunity  under New Hampshire law;  and in ruling  that it lacked



          subject  matter jurisdiction  to  afford  prospective  injunctive



          relief.



          A.   Monetary Relief3
          A.   Monetary Relief
               _______________



               1.   The Board and Board Members (Official Capacities)
               1.   The Board and Board Members (Official Capacities)
                    _________________________________________________



                    As  it is well settled "that neither a state agency nor



          a  state official acting in his official capacity may be sued for



          damages in a section 1983 action," Johnson v. Rodriguez, 943 F.2d
                                             _______    _________



          104, 108 (1st Cir. 1991) (citing Will v. Michigan  Dep't of State
                                           ____    ________________________



          Police,  491 U.S.  58, 71  (1989)), cert.  denied, 502  U.S. 1063
          ______                              _____  ______



          (1992); see also Kaimowitz  v. Board of Trustees, Univ.  of Ill.,
                  ___ ____ _________     _________________________________



          951 F.2d  765, 767 (7th Cir. 1991)  (finding that, as neither the



          state  nor its "alter ego"  (state university) is  a "person" for



          section  1983 purposes, neither is  subject to suit under section



                              
          ____________________



               3Rule  12(b)(1)  dismissals  for  lack   of  subject  matter

          jurisdiction  are reviewed  de  novo, Hogar  Agua  y Vida  en  el
                                      __  ____  ___________________________

          Desierto,  Inc.  v. Suarez-Medina,  36  F.3d 177,  181  (1st Cir.
          _______________     _____________

          1994),  crediting all  well-pleaded allegations  and drawing  all

          reasonable  inferences favorably  to  the plaintiff.   Murphy  v.
                                                                 ______

          United States, 45 F.3d 520, 522 (1st Cir. 1995).
          _____________



                                          6



1983),  we affirm the dismissal of the claims for monetary relief



          against  the  Board and  its  members  acting in  their  official



          capacities.   



               2.   Board Members and Board Counsel (Individual Capacities)
               2.   Board Members and Board Counsel (Individual Capacities)
                    _______________________________________________________



                    Immunity claims in section 1983 actions are governed by



          federal  law.   Martinez  v. California,  444  U.S. 277,  284 n.8
                          ________     __________



          (1980).  Wang nonetheless contends that the Board members and its



          counsel, in their individual  capacities, were entitled, at most,



          to "good faith" immunity (under  New Hampshire law) from monetary



          liability under section 1983.  As we discern no material distinc-



          tion  between  the  quasi-judicial  and  prosecutorial  functions



          performed  by these  defendants  in behalf  of the  New Hampshire



          Board, and those performed  by their Massachusetts Board counter-



          parts,  the  district  court order  dismissing  these "individual



          capacity" claims was entirely  proper.  See Bettencourt v.  Board
                                                  ___ ___________     _____



          of  Registration  in Medicine,  904  F.2d 772,  782-85  (1st Cir.
          _____________________________



          1990).  



                    The  Massachusetts Board  members and  its professional



          staff were  held absolutely immune from suit  in their individual



          capacities under section 1983, on the ground that these officials



          serve in  quasi-judicial capacities "functionally  comparable" to



          those performed by a state court judge.  Id. at 783.  As with the
                                                   ___



          Massachusetts Board,  New Hampshire Board members  weigh evidence



          and  make factual  determinations, N.H.  Rev. Stat. Ann.    329:-



          17(VI),  determine sanctions,  see id.    329:17(VII),  and issue
                                         ___ ___


7



written  decisions  in disciplinary  actions.   See  id.    329:-
                                                          ___  ___



          18(III).4  



                    Although Wang attempts to differentiate between the two



          administrative  tribunals on  the ground  that the  New Hampshire



          Board assumed  an "inquisitorial  or investigative role"  in this



          case by  instigating and prosecuting the charges against him, the



          attempted  distinction is  without  legal  significance.    State



          officials  performing prosecutorial functions  -- including their



          decisions to  initiate administrative proceedings aimed  at legal



          sanctions -- are entitled to absolute immunity as well.  See Butz
                                                                   ___ ____



          v. Economou, 438 U.S. 478, 515 (1978);  see also Horwitz v. Board
             ________                             ___ ____ _______    _____



          of Medical Examiners, 822 F.2d 1508, 1515 (10th Cir.) (describing
          ____________________

                              
          ____________________



               4The New Hampshire Board  is empowered to conduct disciplin-

          ary proceedings, and discipline  licensees in appropriate  cases,

          N.H. Rev.  Stat.  Ann.    329:2(II)(b),  329:17(I),(VI),  and  to

          appoint  legal  counsel  and "such  other  assistants  as  may be

          required" in performing its administrative  responsibilities, id.
                                                                        ___

            329:2(II)(c).  It may  initiate disciplinary proceedings on its

          own  motion or  upon  a written  complaint alleging  professional

          misconduct.  See id.   329:17(I), (VI).  It may reprimand; limit,
                       ___ ___

          suspend or  revoke medical licenses; assess administrative fines;

          and order treatment, counseling, continuing medical education and

          medical practice  supervision.  Id.   329:17(VII).   Appeals from
                                          ___

          its disciplinary  rulings are taken to the  New Hampshire Supreme

          Court, id.    329(VIII), under the  procedures set forth  in N.H.
                 ___

          Rev. Stat. Ann.   541.  

               The  Massachusetts Board  adjudicatory proceedings  are con-

          ducted  by a hearing officer,  see Bettencourt, 904  F.2d at 773,
                                         ___ ___________

          who  makes all evidentiary  and procedural rulings,  and issues a

          "tentative  decision"  which  the  Massachusetts  Board  reviews,

          together with  any objection  filed by the  respondent physician,

          before  issuing its "final  decision."  See  id. at 773-74.   The
                                                  ___  ___

          Massachusetts   Board  accords  "substantial  deference"  to  all

          credibility determinations by the hearing officer, but may reject

          or revise any finding based on  conflicting evidence.  Id.  Legal
                                                                 ___

          rulings  are reviewed de novo.   Id.   Appeals from Massachusetts
                                __ ____    ___

          Board  decisions are  taken to the  SJC, which  may set  aside or

          modify  board decisions on a finding that substantial rights have

          been prejudiced.  Id. at 774.
                            ___



                                          8



Colorado  medical board officials' adjudicatory and prosecutorial



          role),  cert. denied, 484 U.S.  964 (1987).   Thus, New Hampshire
                  _____ ______



          Board counsel, like  the Massachusetts Board professional  staff,



          see Bettencourt, 904 F.2d at 785, is absolutely immune from suit,
          ___ ___________



          in his individual capacity, based on his participation in partic-



          ular cases before the Board.  See id.  
                                        ___ ___



                    Wang next  argues that the New  Hampshire Board members



          and  its counsel were  imbued with such  "overwhelming malice and



          bad faith"  that due process  was not to  be had at  their hands.



          The  allegation of malice and bad faith is founded principally on



          the  New  Hampshire  superior  court  decision      preliminarily



          enjoining  further Board action    entered  on February 23, 1989,



          and vacated for  lack of subject  matter jurisdiction two  months



          later.5



                    Even assuming  a level of  malice and bad  faith suffi-



          cient to poison the  New Hampshire Board proceedings     contrary



          to  the record  evidence, as  well as  the New  Hampshire Supreme



          Court decision     the Board members and  its counsel nonetheless

                              
          ____________________



               5In its  February 23, 1989, order enjoining the Board disci-

          plinary proceedings, the  superior court found that  Wang had not

          been  accorded due process, in  that the Board  had prejudged the

          outcome of its proceedings.  Further, the superior  court faulted

          the multiple roles assumed  by Assistant Attorney General Douglas

          Jones, as Board counsel and prosecutor.  "Under such circumstanc-

          es there could not be even the appearance of fairness," the court

          said.

               On  appeal,  Wang relies  heavily  on  these superior  court

          findings  for his claim that the Board proceedings were devoid of

          due process.  But  the superior court findings are  without legal

          effect since  the superior court lacked  subject matter jurisdic-

          tion and its findings  were implicitly rejected by the  New Hamp-

          shire  Supreme   Court  decision  affirming   the  Board's  final

          revocation order.



                                          9



would be absolutely immune from suit, in their individual capaci-



          ties,  on section  1983 claims  arising out  of their  respective



          judicial,  quasi-judicial  and/or  prosecutorial functions,  even



          though  they acted "maliciously and  corruptly."  Pierson v. Ray,
                                                            _______    ___



          386 U.S. 547,  554 (1967); Imbler v. Pachtman, 424  U.S. 409, 424
                                     ______    ________



          (1976) (extending absolute immunity  under section 1983 to prose-



          cutors acting in quasi-judicial  capacity).  Nor does  Wang claim



          that his medical  license was revoked by the Board  in the "clear



          absence of all jurisdiction."   Stump v. Sparkman, 435  U.S. 349,
                                          _____    ________



          357  (1978) (quoting Bradley v.  Fisher, 80 U.S.  (13 Wall.) 335,
                               _______     ______



          351 (1871)); see also Ricci v. Key Bancshares of Maine, Inc., 768
                       ___ ____ _____    _____________________________



          F.2d 456, 462 (1st Cir. 1985) ("The conduct in question need only



          be  more or less connected  to 'the general  matters committed by



          law to [the Board's] control or supervision'  and not 'manifestly



          or palpably beyond [the  Board's] authority.'") (quoting Spalding
                                                                   ________



          v. Vilas, 161 U.S. 483, 498 (1896)).  
             _____



                    Lastly, Wang  contends  that absolute  immunity  cannot



          insulate  Board members  and  its counsel  from  suit, since  the



          challenged  disciplinary  action  was  taken pursuant  to  a  New



          Hampshire reciprocal revocation statute, see N.H. Rev. Stat. Ann.
                                                   ___



            329:17-c (1984), unconstitutional on its face.  He reasons that



          though our decision in Bettencourt might support absolute immuni-
                                 ___________



          ty for  medical  board members  and its  counsel, provided  their



          actions   were  taken   under  adequate   procedural  safeguards,



          Bettencourt does not immunize  such officials from suit  in their
          ___________



          individual capacities for official actions summarily taken  under


10



a reciprocal revocation statute simply on the ground that another



          jurisdiction has revoked the respondent's license.



                    We  decline  the  invitation  to  provide  an  advisory



          opinion on a claim  for which there is no  evidentiary support in



          the appellate  record.  See  United States  Nat'l Bank of  Or. v.
                                  ___  _________________________________



          Independent  Ins.  Agents of  Am., Inc.,  113  S. Ct.  2173, 2178
          _______________________________________



          (1993)  ("'The exercise of judicial  power under Art.  III of the



          Constitution  depends on the existence of a case or controversy,'



          and  'a  federal  court  [lacks] the  power  to  render  advisory



          opinions.'") (citations omitted);  State of R.I. v.  Narragansett
                                             _____________     ____________



          Indian Tribe, 19 F.3d  685, 705 (1st Cir.), cert. denied,  115 S.
          ____________                                _____ ______



          Ct.  298 (1994)  (same).   Wang concedes  that the  final license



          revocation  order issued by the  New Hampshire Board  was not the
                                                                    ___



          product of a summary proceeding.   Considering that almost  three



          years  elapsed  between  the  commencement  of  the  disciplinary



          investigation and the entry  of the revocation order,  we believe



          the  concession is well  founded.  Moreover,  the Board conducted



          several hearings  at which  Wang and  his attorney  appeared; the



          proceedings were  transcribed; the  Board issued a  written deci-



          sion; and Wang was afforded    and utilized to the fullest    the



          right  to appeal  the  final Board  order  to the  New  Hampshire



          Supreme Court.   We find  no basis in fact  or law for  the claim



          that the procedural safeguards accorded Wang by the New Hampshire



          Board differed in any  significant respect from those the  Massa-



          chusetts Board afforded the  respondent in Bettencourt.   See 904
                                                     ___________    ___



          F.2d at 783.  


11



B.   Injunctive Relief 
          B.   Injunctive Relief
               _________________



                    Finally,  Wang challenges the  summary judgment entered



          against him on the claim for permanent injunctive  relief against



          the  Board.6   In  particular,  he attacks  the  federal district



          court ruling  that this claim is  "inextricably intertwined" with



          the New  Hampshire Supreme Court decision  disallowing his appeal



          from  the New  Hampshire  Board's license  revocation order  and,



          consequently,  that  the  district court  lacked  subject  matter



          jurisdiction to enjoin the present claim.  See Rooker v. Fidelity
                                                     ___ ______    ________



          Trust Co., 263 U.S.  413, 416 (1923); District of  Columbia Court
          _________                             ___________________________



          of Appeals  v. Feldman, 460 U.S. 462, 476 (1983).  Wang argued to
          __________     _______



          the New Hampshire Supreme  Court that the procedure by  which his



          medical license was revoked  failed to afford him due  process of



          law.  The New Hampshire Supreme Court rejected his claim, and its



          decision was  reviewable only by the United States Supreme Court.



          See Feldman, 460 U.S. at 482.
          ___ _______



                    Wang frivolously argues, nonetheless, that  the Rooker-
                                                                    ______



          Feldman doctrine does not  bar the constitutional claims asserted
          _______



          below in  support of his request for  permanent injunctive relief



          against  further disciplinary  proceedings by the  Board, because



          unlike  the plaintiffs in Feldman, there is no other forum avail-
                                    _______



          able to him.  He is wrong.



                              
          ____________________



               6Summary judgment rulings are  reviewed de novo to determine
                                                       __ ____

          whether  the pleadings, depositions,  answers to interrogatories,

          and admissions on  file, together  with the  affidavits, if  any,

          show that there  is no genuine issue as to  any material fact and

          that the moving party is entitled to judgment as a matter of law.

          Simon v. FDIC, 48 F.3d 53, 56 (1st Cir. 1995).
          _____    ____



                                          12



Wang  raised  the  due  process claim  before  the  New



          Hampshire  Supreme  Court,  albeit unsuccessfully,  and  may  not



          obtain  review of its decision  in federal district  court on any



          pretext.  Schneider v. Colegio de Abogados de P.R., 917 F.2d 620,
                    _________    ___________________________



          628 (1st Cir. 1990) ("[L]ower federal courts have no jurisdiction



          to hear appeals  from state  court decisions, even  if the  state
                                                        ____  __



          judgment is  challenged as unconstitutional."), cert. denied, 502
                                                          _____ ______



          U.S. 1029  (1992) (emphasis  added).  Constitutional  claims pre-



          sented to a United States district court, and found to  be "inex-



          tricably intertwined" with state court proceedings, impermissibly



          invite  the federal  district court,  "in essence,"  to review  a



          final  state  court decision.   Feldman,  460  U.S. at  483 n.16.
                                          _______



          Lower federal  courts are without subject  matter jurisdiction to



          sit  in  direct review  of state  court  decisions.   Id. (citing
                                                                ___



          Atlantic Coast Line R.R. Co. v. Brotherhood of Locomotive Eng'rs,
          ____________________________    ________________________________



          398 U.S. 281, 296 (1970)).  


III
                                         III



                                      CONCLUSION
                                      CONCLUSION
                                      __________



                    The district court judgment  dismissing all claims must



          be affirmed. 



                    Affirmed.
                    Affirmed.
                    ________


13