## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-3557

___________ Sam L. Beavers, * * Appellant, * * v. * * Arkansas State Board of Dental * Examiners; Judith A. Safly, * Director, Individually and in her * Official Capacity; J. Walker Loyd, * President, Individually and in his * Official Capacity; Robert H. Burch, * Member of the Arkansas Board of * Dental Examiners, Individually and * in his Official Capacity; J. David * Alford, Member of the Arkansas * Appeal from the United States Board of Dental Examiners, * District Court for the Individually and in his Official * Eastern District of Arkansas Capacity; R. Lester Barrett, * Member of the Arkansas Board of * Dental Examiners, Individually and * in his Official Capacity; Cindy A. * Johnson, Member of the Arkansas * Board of Dental Examiners, * Individually and in her Official * Capacity; H. Fletcher Sullards, * Member of the Arkansas Board of * Dental Examiners, Individually and * in his Official Capacity; James A. * Burgess, Jr., Member of the Arkansas *The Honorable Pasco M. Bowman succeeded the Ho norable Richard S. Arnold 1 as Chief Judge of the United States Court of Appeals for the Eighth Circuit at the close of business on April 17, 1998. The Hono rable Joseph E. Stevens, Jr., United States District Judge for th e 2 Western District of Missouri, sitting by designation. TheHonorable Henry Woods, United States District Judge for the Eastern 3 District of Arkansas. -2- Board of Dental Examiners, Individually * and in his Official Capacity; David E. * Walker, Member of the Arkansas Board * of Dental Examiners, Individually and * in his Official Capacity; Connie E. Cox, * Member of the Arkansas Board of * Dental Examiners, Individually and * in her Official Capacity, * * Appellees. *

___________ Submitted: November 20, 1997 Filed: August 6, 1998

___________ Before RICHARD S. ARNOLD, Chief Judge, McMILLIAN, Circuit Judge, an d 1 STEVENS, District Judge.

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___________ McMILLIAN, Circuit Judge.

Sam L. Beavers appeals from a final order entered in the United States District Court for the Eastern District of Arkansa s abstaining from exercising jurisdiction over 3The rules an d regulations of the Arkansas Board of Dental Examiners must be 4 properly noticed and filed wit h the Secretary of State, the Arkansas State Library, and the Bureau of Legislative Research pursuant to t he Arkansas Administrative Procedure Act, Ark. Code Ann. § 25-15-204(a)–(d)(1) (1997). If the rules and regulations that Beavers challenges were not properly noticed an d filed, they are not enforceable under -3- hi s claims under the First and Fourteenth Amendments and 42 U.S.C. § 1983 against the Ark ansas State Board of Dental Examiners and its nine constituent member s (collectively, the “Board”)

. Beavers v. Arkansas State Bd. of DentalExam’rs , No. LRC-95-162 (E.D. Ark. Sept. 12, 1 996) (“slip op.”) (citing Railroad Comm’n v. Pullman Co. , 312 U.S. 496 (1941) ( Pullman )). The district court had proper jurisdiction over this matter pursuant to 28 U.S.C. § 1331. Beavers timely file d a notice of appeal under Rule 4( a) of the Federal Rules of Appellate Procedure which invoked this court’ s jurisdiction under 28 U.S.C. § 1291.

Forre versal, Beavers contends that the district court erred in applying th e Pullman abstention d octrine because the challenged state regulations are (1) clear and unambigu ous and (2) not subject to an interpretation that would obviate the federa l consti tutionalquestion. For the reasons discussed below, we affirm the order of th e district court.

Th e following material facts are undisputed on appeal

. Beavers practice s dentistry in Little Rock, Arkansas, and wishes to advertise in Arkansas in order t o promote his practice. The Board is an agency created by the Arkansas Stat e Legislat ure pursuant to Ark. Code Ann. § 17-82-201. The Board possesses statutory authori ty to regulate dental advertising under Ark. Code Ann. § 17-82-208(a) and i s charged with the task of preventing advertising that is “fraudulent or misleading.” See id. § 17-82- 106. To this end, the Board has promulgated a series of rules an d regul ations regarding the advertisement of dental services, the naming of denta l facilities, and the announc ement of specializations. See generally Dental Practice Act (Rules and Regulations) (the “Act”), Articles V-VII. Beavers brought the instant 4Arkansas law. See id. § 25-15-203(b).

The word “family” may be substit uted for the word “general.” Dental Practice 5 Act (Rules and Regulations), Article V, E. Beavers’s ame nded complaint, which the district court granted leave to file on 6 April 8, 1996, appears to supplement rather than replace his original complaint. -4- federal suit contending that some of these rules and regulations violate hi s constitutional rights under the First and Fourteenth Amendments. B eavers challenges Articles V, VI, and V II of the Act as facially overbroad on the ground that, taken as a whole, the y restrict advertising that is not fraudulent or misleading. Complaint ¶ 16.

For example, with respect to Article V, Beavers challenges subparts C.1 & E, which require dentist s to include the words “general practice” or “general dentistry,” 5
se parate and apart from the name of the dentist, in all advertisements announcin g general dental services; subparts C.1– .2, which restrict the announcement of general dentistry or spec ialty services to typeface that is less bold and smaller in size than the smallest lettering in the statement “general dentist”; and subpart E, which restricts the specialty services that may be advertised to those recognized by the American Dental Association. See id. ¶¶ 11–13, 15. With respect to Article VI, Beavers challenge s subp art A, which requires dentists to use their surnames in all advertisements an d correspondenc e and as part of any fictitious name approved by the Board. Brief o f Ap pellant at 7. In addition, Beavers challenges Ark. Code Ann. § 4-29-405 to th e extent that it requires that the corporate name of a dental practice contain the names of one or more sharehol ders and Ark. Code Ann. § 17-82-305(c) & (e) to the extent that they prohibit licensed dentists from announcing or advertising specialty services other than those recognized by the American Dental Association. Amended Complaint ¶ 1. 6 Beavers also lodges an apparent Fourteenth Amendment claim again st the Board on the ground t hat “other professions, such as attorneys, are allowed to, and do, advertis e services without advertising that they are generalists.” Complaint ¶ 14.-5-

As an agency of the State, the Board is subject to the Arkansas Administrative Pro cedure Act (the AAPA) as codified in Ark. Code Ann. § 25-15-202 et seq. Th e AAPA permits persons who allege injury or threat of injury to their person, business, or propert y, by any rule or its threatened application, to seek declaratory judgment of the validity or applicability of that rule in the circuit courts of Arkansas. Ark. Cod e Ann. § 25-15-207. The Board has not taken any action against Beavers. Nor is there a pending state court action in this case. Relying on the Pullman

abstention doctrine, the district court h eld that abstention
was p roper on the ground that Arkansas state courts could rule on state statutory grounds and avoid the First Amendment question entirely. Slip op. at 4-5. The district court reasoned that a state court ruling that the Board’s regulations are “onerous and excessive” obviates any federal constitutional question. Id. at 4. We agree.

Beavers argues that Pullman abstention is inappropriate because the Boar d necessaril yviolated the First Amendment if it exceeded its statutory authority i n regulating commercial speech. In other words, Beavers co ntends that a finding that the regulations are “onerous and excessive” is tantamount to a finding that they violate the FirstAmendment, and thus the federal constitutional question cannot be avoided

. Beavers further contends that the Board’s statutory authority to prohibit “fraudulent and misleading” dental advertising mirrors the constitutional standard of scrutiny applied to limitations o n commercial speech. See, e.g. , Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n , 447 U.S. 557, 563-64 (1980); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc. , 425 U.S. 748, 771& n. 24 (1976).
The Board argues that the district court di d not abuse its discretion in abstaining bec ause “[a]bstention by Federal Courts is very appropriate when there are difficul t questions of state law b earing on policy problems of substantial public import.” Brief for Appellee at 10 (citing Louisiana Power & Light Co. v. City of Thibodaux , 360 U.S.See, e.g. , Colorado River Water Conservation Dist. v. United States , 424 U.S. 800 7 (1976) (t o avoid duplicative litigation); Younger v. Harris , 401 U.S. 37 (1971) (to avoi d intrusion on state enforcement of state laws in state courts); Burfo rd v. Sun Oil Co. , 319 U.S. 315(1 943) (to avoid needless conflict in the administration of state affairs)

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-6- 25 (1959)). In addition, the Board points out that there are state remedies available to Beavers under the AAPA.

We review the district court’s decision to ab stain for an abuse of discretion. See, e.g. , National City Lines, Inc. v. LLC Corp. , 687 F.2d 1122, 1126 (8 Cir. 1982) (citing th Harman v. Forssenius , 380 U.S. 528, 537 (1965) (apply ing abuse of discretion standard to Pullman

abstention decision)). “The underlying legal quest ions, however, are subject to plenary review.” Sheerb onnet, Ltd. v. American Express Bank Ltd. , 17 F.3d 46, 48 (2d Cir. 1994); accord Grode v. Mutual Fire, Marine & Inland Ins. Co. , 8 F.3d 953, 957 (3d Cir. 1993).

As a ge neral rule, federal courts have a “virtually unflagging obligation” t o exe rcise their jurisdiction in proper cases. Colorado River Water Conservation Dist

. v. United States , 424 U.S. 800, 817 (1976). This obligation notwithstanding, federal courts may abstain from deciding an issue in order to preserve “traditional principles of equity, comity, and federalism .” Alleghany Corp. v. McCartney , 896 F.2d 1138, 1142 (8 Cir. 1990). The Pullman abstention d octrine is one of several limited doctrines that th permit district courts to preserve such principles. 7

Pullman abstention requires consideration of (1) the effect abstention would have
o n the rights to be protected by considering the nature of both the right and necessary
re medy; (2) available state remedies; (3) whether the challenged state law is unclear ; (4) whether the challenged state law is fairly susceptible to an interpretation that would avoid any federal constitutional question; and (5) whether abstention will avoidThis factor incorporates two distinct considerations: (1) whether there is a 8 pending state action that wi ll be disrupted, and (2) whether federal intervention would interferewith state procedures and policies in areas of special state interest. George v. Parratt , 602 F.2d 818, 822 (8 Cir. 1979). th
-7- unnecessary federal interference in state operations. George v. Parratt , 602 F.2d 818, 8 820-22 (8 Cir. 1979) ( George ). In Lake Carriers’ Association v. M acMullan , 406 U.S.

th 498, 510-11 (1972), the Supreme Court defined the proper context for Pullman abstention:
The paradigm case for a

bstention arises when the challenged state statute is su sceptible of “a construction by the state courts that would avoid o r modif ythe [federal] constitutional question.” . . . More fully, we hav e explained: “Where resolution of the federal constitutional question i s dependent upon, or may be materially altered by, the determination of an uncert ainissue of state law, abstention may be proper in order to avoi d unnecessary friction i n federal-state relations, interference with important state functions, tentative decisions on questions of state law, an d premature constitutional adjudication. . . . The doctrine . . . contemplates that deference to state court adjudication only be made where the issue of state law is uncertain.” Harma n v. Forssenius , 380 U.S. 528, 534 (1965).
Id. (other citations omitted).
In li ght of these factors, the district court correctly determined that this case i s fairly su bject to a determination by the Arkansas courts that the Board exceeded it s authority under Ark. Code Ann. § 17-82-106, thereby obviating federal constitutional inquiry. M oreover, as the district court further noted, the AAPA expressly permit s challenges to state rules and regulations in the circuit courts of Arkansas. Slip op. at 4. Beavers, therefore, has an ade quate state remedy available to him. Furthermore, while Pul lman abstention has generally been disfavored in the context of First Amendmen t claims where state statutes have been faciallychallenged under the federal constitution, see, e.g. , City of Houston v. Hill , 482 U.S. 451, 467 (1987); Dombrowski-8-

v. Pfis ter , 380 U.S. 479, 489-90 (1965); George , 602 F.2d at 820, Pullman abstention has noneth eless been upheld in some cases in the interest of comity and federalism

. See, e.g. , Babbitt

v. United Farm Workers Nat’l Union , 442 U.S. 289, 307-12 (1979); Harrison v. NAACP , 360 U.S. 167, 176-78 (1959).
In light of the foregoing, we hold that the district court did not abus e its discretion in abstaining from exercising jurisdiction over Beavers’s claims under the Pullman abstention doctrine. Accordingly, we affirm the order of the district court.

A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.