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 Honorable 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 Honorable Joseph E. Stevens, Jr., United States District Judge for the

2

Western District of Missouri, sitting by designation.

The Honorable Henry Woods, United States District Judge for the Eastern

3

District of Arkansas. 

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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. *

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 Submitted: November 20, 1997

 Filed: August 6, 1998

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Before RICHARD S. ARNOLD, Chief Judge, McMILLIAN, Circuit Judge, and

1

STEVENS, District Judge. 2

___________

McMILLIAN, Circuit Judge.

Sam L. Beavers appeals from a final order entered in the United States District

Court for the Eastern District of Arkansas abstaining from exercising jurisdiction over 3
The rules and regulations of the Arkansas Board of Dental Examiners must be 4

properly noticed and filed with the Secretary of State, the Arkansas State Library, and

the Bureau of Legislative Research pursuant to the 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 and filed, they are not enforceable under

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his claims under the First and Fourteenth Amendments and 42 U.S.C. § 1983 against

the Arkansas State Board of Dental Examiners and its nine constituent members

(collectively, the “Board”). Beavers v. Arkansas State Bd. of Dental Exam’rs, No. LRC-95-162 (E.D. Ark. Sept. 12, 1996) (“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 filed 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.

For reversal, Beavers contends that the district court erred in applying the

Pullman abstention doctrine because the challenged state regulations are (1) clear and

unambiguous and (2) not subject to an interpretation that would obviate the federal

constitutional question. For the reasons discussed below, we affirm the order of the

district court. 

The following material facts are undisputed on appeal. Beavers practices

dentistry in Little Rock, Arkansas, and wishes to advertise in Arkansas in order to

promote his practice. The Board is an agency created by the Arkansas State

Legislature pursuant to Ark. Code Ann. § 17-82-201. The Board possesses statutory

authority to regulate dental advertising under Ark. Code Ann. § 17-82-208(a) and is

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 and

regulations regarding the advertisement of dental services, the naming of dental

facilities, and the announcement of specializations. See generally Dental Practice Act

(Rules and Regulations) (the “Act”), Articles V-VII. Beavers brought the instant 4
Arkansas law. See id. § 25-15-203(b). 

The word “family” may be substituted for the word “general.” Dental Practice 5

Act (Rules and Regulations), Article V, E.

Beavers’s amended complaint, which the district court granted leave to file on 6

April 8, 1996, appears to supplement rather than replace his original complaint. 

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federal suit contending that some of these rules and regulations violate his constitutional

rights under the First and Fourteenth Amendments. Beavers challenges Articles V, VI,

and VII of the Act as facially overbroad on the ground that, taken as a whole, they

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 dentists to include the words “general practice” or “general dentistry,”5

separate and apart from the name of the dentist, in all advertisements announcing

general dental services; subparts C.1– .2, which restrict the announcement of general

dentistry or specialty 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 challenges

subpart A, which requires dentists to use their surnames in all advertisements and

correspondence and as part of any fictitious name approved by the Board. Brief of

Appellant at 7. In addition, Beavers challenges Ark. Code Ann. § 4-29-405 to the

extent that it requires that the corporate name of a dental practice contain the names of

one or more shareholders 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 against the Board on the

ground that “other professions, such as attorneys, are allowed to, and do, advertise

services without advertising that they are generalists.” Complaint ¶ 14.
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As an agency of the State, the Board is subject to the Arkansas Administrative

Procedure Act (the AAPA) as codified in Ark. Code Ann. § 25-15-202 et seq. The

AAPA permits persons who allege injury or threat of injury to their person, business,

or property, 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. Code

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 held that abstention

was proper 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 Board

necessarily violated the First Amendment if it exceeded its statutory authority in

regulating commercial speech. In other words, Beavers contends that a finding that the

regulations are “onerous and excessive” is tantamount to a finding that they violate the

First Amendment, 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 on 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 did not abuse its discretion in abstaining

because “[a]bstention by Federal Courts is very appropriate when there are difficult

questions of state law bearing 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) (to avoid duplicative litigation); Younger v. Harris, 401 U.S. 37 (1971) (to avoid

intrusion on state enforcement of state laws in state courts); Burford v. Sun Oil Co., 319 U.S.

315(1943) (to avoid needless conflict in the administration of state affairs).

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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 abstain 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) (applying abuse of discretion standard

to Pullman abstention decision)). “The underlying legal questions, however, are subject

to plenary review.” Sheerbonnet, 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 general rule, federal courts have a “virtually unflagging obligation” to

exercise 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 doctrine 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

on the rights to be protected by considering the nature of both the right and necessary

remedy; (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 avoid
This factor incorporates two distinct considerations: (1) whether there is a

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pending state action that will be disrupted, and (2) whether federal intervention would

interfere with state procedures and policies in areas of special state interest. George

v. Parratt, 602 F.2d 818, 822 (8 Cir. 1979). th

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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. MacMullan, 406 U.S. th

498, 510-11 (1972), the Supreme Court defined the proper context for Pullman

abstention: 

The paradigm case for abstention arises when the challenged state statute

is susceptible of “a construction by the state courts that would avoid or

modify the [federal] constitutional question.” . . . More fully, we have

explained: “Where resolution of the federal constitutional question is

dependent upon, or may be materially altered by, the determination of an

uncertain issue of state law, abstention may be proper in order to avoid

unnecessary friction in federal-state relations, interference with important

state functions, tentative decisions on questions of state law, and

premature constitutional adjudication. . . . The doctrine . . . contemplates

that deference to state court adjudication only be made where the issue of

state law is uncertain.” Harman v. Forssenius, 380 U.S. 528, 534 (1965).

Id. (other citations omitted).

In light of these factors, the district court correctly determined that this case is

fairly subject to a determination by the Arkansas courts that the Board exceeded its

authority under Ark. Code Ann. § 17-82-106, thereby obviating federal constitutional

inquiry. Moreover, as the district court further noted, the AAPA expressly permits

challenges to state rules and regulations in the circuit courts of Arkansas. Slip op. at 4.

Beavers, therefore, has an adequate state remedy available to him. Furthermore, while

Pullman abstention has generally been disfavored in the context of First Amendment

claims where state statutes have been facially challenged under the federal constitution,

see, e.g., City of Houston v. Hill, 482 U.S. 451, 467 (1987); Dombrowski
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v. Pfister, 380 U.S. 479, 489-90 (1965); George, 602 F.2d at 820, Pullman abstention

has nonetheless 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 abuse 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.