F I L E D

United States Court of Appeals

Tenth Circuit

JAN 24 2001

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROBERT A. WEITZEL, M.D.,

Plaintiff - Appellant,

v.

DIVISION OF OCCUPATIONAL

AND PROFESSIONAL LICENSING

OF THE DEPARTMENT OF

COMMERCE OF THE STATE OF

UTAH, A. GARY BOWEN, Director

of the Division of Occupational and

Professional Licensing, in both his

official and individual capacities, and

JOHN DOES I through X, in their

official and individual capacities,

Defendants - Appellees.

No. 99-4214

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

(D. Ct. No. 99-CV-670-K)

Peter Stirba (John Warren May, with him on the briefs), Stirba & Hathaway, Salt

Lake City, Utah, appearing for the Appellant.

Brent A. Burnett, Assistant Attorney General (Jan Graham, Attorney General, and

Nancy L. Kemp, Assistant Attorney General, on the brief), Office of the Attorney

General of the State of Utah, Salt Lake City, Utah, appearing for the Appellee.

Before TACHA, Chief Judge, McWILLIAMS and MURPHY, Circuit Judges.
1Federal courts of appeal have jurisdiction pursuant to § 1291 of a district

court’s abstention from exercising jurisdiction over a matter because it is a “final

decision” that puts the litigants “effectively out of court.” Quackenbush v.

Allstate Ins. Co., 517 U.S. 706, 713 (1996) (internal quotation marks omitted).

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TACHA, Chief Judge.

Plaintiff appeals the district court’s abstention under the doctrine of 

Younger v. Harris, 401 U.S. 37 (1971). We exercise jurisdiction pursuant to 28

U.S.C. § 1291 and affirm.1

I. Facts

Prior to August 24, 1999, the appellant, Robert A. Weitzel, M.D., was

licensed to practice psychiatry by the appellee, Division of Occupational and

Professional Licensing (the Division), a division of the Department of Commerce

of the State of Utah. The Division had authorized Dr. Weitzel to practice

medicine and to prescribe and administer controlled substances within the State

of Utah.

The Division filed two licensing petitions on April 29, 1999, seeking orders

revoking or suspending Dr. Weitzel’s licenses to practice medicine and prescribe

and administer controlled substances in the state of Utah. These petitions were

based on Dr. Weitzel’s alleged conduct before and during 1997.
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On August 13, 1999, Division Director A. Gary Bowen initiated an

evaluation proceeding pursuant to Utah Code Ann. § 58-67-601(4) by ordering

Dr. Weitzel to submit to a psychological examination for the purpose of

determining Dr. Weitzel’s capability of practicing medicine with “reasonable skill

regarding the safety of his patients.”

Six days later, Dr. Weitzel’s counsel delivered to the Division a letter

requesting that the Division conduct a review of the examination order to

determine whether it complied with Utah law, including the Utah Administrative

Procedures Act (“UAPA”), Utah Code Ann. §§ 63-46b-0.5 to 22, and the

Department of Commerce Administrative Procedures Act Rules, Utah Admin.

Code R151-46b. The Division denied the relief sought in this letter on August

23, 1999 because, among other reasons, it determined that the UAPA did not

apply to evaluation orders issued pursuant to Utah Code Ann. § 58-67-601(4).

On August 24, 1999, Dr. Weitzel faxed a letter to Director Bowen

indicating Dr. Weitzel’s intent to appeal the denial of the review request and

requesting that the Division stay any suspension actions until Dr. Weitzel had an

opportunity to exhaust his administrative remedies. 

That same day, Dr. Weitzel served the Executive Director of the Utah

Department of Commerce with a letter appealing the Division’s denial of review.

Later that day, Director Bowen issued an order suspending Dr. Weitzel’s
2Utah Code Ann. § 58-67-601(4)(c)(i) states: “Failure of a physician to

submit to the examination ordered under this section is a ground for the division’s

immediate suspension of the physician’s license by written order of the director.”

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license to practice medicine and to prescribe and administer controlled substances

in the State of Utah pursuant to Utah Code Ann. § 58-67-601(4)(c)(i).2

 

Dr. Weitzel initiated an action in federal court on August 30, 1999, seeking

(1) declaratory relief in the form of an order declaring Utah Code Ann. § 58-67-

601(4) unconstitutional on its face and as applied through the issuance of the

evaluation and suspension orders; (2) damages from Director Bowen for

violations of 42 U.S.C. § 1983 in issuing the evaluation and suspension orders

and depriving Dr. Weitzel of adequate agency review; (3) damages from the

Division, Director Bowen, and other presently unnamed individuals for violations

of Dr. Weitzel’s liberty and property interests; and (4) damages from the

individual defendants in their individual capacities for denial of fundamental

fairness. Additionally, Dr. Weitzel sought injunctive relief against the Division

ordering the Division to reinstate his licenses as well as damages, including

punitive damages, attorney’s fees, and costs.

On October 4, 1999, the district court held that the Younger abstention

doctrine prevented it from adjudicating Dr. Weitzel’s claims. The court found

that Dr. Weitzel’s pending appeal to the Executive Director of the Department of

Commerce was an ongoing state action that provided an adequate forum for Dr.
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Weitzel to assert his claims. Consequently, the court dismissed Dr. Weitzel’s

claims without prejudice. Dr. Weitzel appeals to this court. 

II. Discussion

The district court’s abstention pursuant to Younger is subject to de novo

review. Amanatullah v. Colo. Bd. of Med. Exam’rs, 187 F.3d 1160, 1163 (10th

Cir. 1999). Under the Younger abstention doctrine, federal courts should not

“interfere with state court proceedings by granting equitable relief – such as

injunctions of important state proceedings or declaratory judgments regarding

constitutional issues in those proceedings –” when a state forum provides an

adequate avenue for relief. Rienhardt v. Kelly, 164 F.3d 1296, 1302 (10th Cir.

1999). “Younger abstention is non-discretionary;” the district court must abstain

once the conditions are met, “absent extraordinary circumstances.” Amanatullah,

187 F.3d at 1163. As this court stated in Amanatullah:

A federal court must abstain from exercising jurisdiction when: (1)

there is an ongoing state criminal, civil, or administrative

proceeding, (2) the state court provides an adequate forum to hear the

claims raised in the federal complaint, and (3) the state proceedings

“involve important state interests, matters which traditionally look to

state law for their resolution or implicate separately articulated state

policies.”

 Id. (quoting Taylor v. Jaquez, 126 F.3d 1294, 1297 (10th Cir. 1997)). 

Dr. Weitzel argues that the district court erred in abstaining under Younger
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because the relief sought would not interfere with any ongoing state action. 

Alternatively, Dr. Weitzel argues that this case falls within exceptions to the

Younger abstention doctrine. 

A. Applicability of Younger Abstention

Dr. Weitzel argues that the Younger abstention doctrine is inapplicable to

his motion for preliminary injunction because he is not seeking to enjoin the

Division from investigating his competency to practice medicine and prescribe

and administer controlled substances. Rather, he argues that the injunctive relief

he seeks is a declaration that the suspension order is unconstitutional and an

opportunity to challenge the psychological evaluation order without the continued

suspension of his license.

While we find this argument unpersuasive and agree with the district

court’s Younger analysis in light of the facts then available, subsequent

developments cast doubt on whether the appeal to the Executive Director of the

Department of Commerce provided an adequate forum for Dr. Weitzel to assert

his claims.

Approximately six weeks after the district court’s abstention, the Executive

Director of the Department of Commerce issued its order in response to Dr.

Weitzel’s appeal. The Executive Director concluded that he lacked jurisdiction to
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review the constitutionality of state statutes:

“[T]he defendant Department of Business Regulation (now

Commerce), as an administrative agency, does not determine the

constitutionality of statutes.” Clayton v. Bennett, 298 P.2d 531

(Utah 1956). The constitutionality of a statute must be determined in

a court of law and cannot be addressed by the Executive Director.

The Executive Director, in considering this appeal, is only able

to look at whether the Division strictly complied with and followed

the procedures established by the legislature and cannot question

whether in following such procedures the Division may have

deprived Petitioner of any constitutionally protected right.

In re Robert Allan Weitzel, No. DOPL Misc., at 4 (Utah Dep’t Commerce, Nov.

17, 1999). In light of the Executive Director’s order, we cannot agree with the

district court that the appeal to the Executive Director provided Dr. Weitzel with

an adequate forum to assert his constitutional claims.

This, however, does not conclude our analysis. On December 2, 1999, Dr.

Weitzel filed a complaint in the Utah Third District Court seeking relief identical

to that sought in federal district court. This action is still pending. 

This court is “‘free to affirm a district court decision on any grounds for

which there is a record sufficient to permit conclusions of law, even grounds not

relied upon by the district court.’” United States v. Sandia, 188 F.3d 1215, 1217

(10th Cir. 1999) (quoting Medina v. City & County of Denver, 960 F.2d 1493,

1495 n.1 (10th Cir. 1992)). Although Younger abstention may have been

inappropriate prior to the filing of Dr. Weitzel’s action in state court, it is

appropriate now. Clearly the pending state proceeding is an ongoing state action. 
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It is also beyond dispute that the Utah state judiciary provides an adequate forum

for Dr. Weitzel to assert his constitutional claims. See, e.g., Allen v. McCurry,

449 U.S. 90, 105 (1980) (citing Stone v. Powell, 428 U.S. 465, 493-94 n.35

(1976), for its “emphatic reaffirmation . . . of the constitutional obligation of the

state courts to uphold federal law, and its expression of confidence in their ability

to do so”). Furthermore, “there is no question that the licensing and discipline of

physicians involve[] important state interests, matters which traditionally look to

state law for their resolution, or implicate separately articulated state policies.” 

Amanatullah, 187 F.3d at 1164-65. Indeed, the Younger doctrine is particularly

applicable in a case such as this where the pending state proceeding may rectify

any constitutional violations. See, e.g., Pennzoil Co. v. Texaco, Inc., 481 U.S. 1,

12 (1987) (noting that Younger abstention “‘offers the opportunity for narrowing

constructions that might obviate the constitutional problem and intelligently

mediate federal constitutional concerns and state interests’” (quoting Moore v.

Sims, 442 U.S. 415, 429-30 (1979))).

We find that the federal courts are required to abstain under the Younger

doctrine from adjudicating Dr. Weitzel’s claims.

B. Exceptions to Younger Abstention

Dr. Weitzel argues that, even if the Younger abstention doctrine is
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applicable, the Division’s conduct brings this case within the exceptions to

abstention. The Younger abstention doctrine is inapplicable “‘in cases of proven

harassment or prosecutions undertaken by state officials in bad faith without hope

of obtaining a valid conviction and perhaps in other extraordinary circumstances

where irreparable injury can be shown.’” Amanatullah, 187 F.3d at 1165 (quoting

Perez v. Ledesma, 401 U.S. 82, 85 (1971)). 

We first address Dr. Weitzel’s argument that he faces irreparable injury. 

The “‘threat to the plaintiff’s federally protected rights’ is only irreparable if it

‘cannot be eliminated by . . . defense against a single prosecution.’” Phelps v.

Hamilton, 122 F.3d 885, 889 (10th Cir. 1997) (omission in original) (quoting

Younger, 401 U.S. at 46 (1971)). Dr. Weitzel’s pending state court action may

resolve any violation which may have occurred to his protected rights. 

Accordingly, this is not one of the extraordinary circumstances where irreparable

injury can be shown. This exception is therefore inapplicable.

Dr. Weitzel also argues that the Division’s action against him was

commenced in bad faith. This court looks to three factors in determining whether

a state action was commenced in bad faith or was intended to harass:

(1) whether it was frivolous or undertaken with no reasonably

objective hope of success; (2) whether it was motivated by

defendant’s suspect class or in retaliation for the defendant’s

exercise of constitutional rights; and (3) whether it was conducted in

such a way as to constitute harassment and an abuse of prosecutorial

discretion, typically through the unjustified and oppressive use of
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multiple prosecutions.

Id. “[I]t is the plaintiff’s ‘heavy burden’ to overcome the bar of Younger

abstention by setting forth more than mere allegations of bad faith or

harassment.” Phelps, 122 F.3d at 889.

Dr. Weitzel does not contend that the Division’s action was motivated by

his class or was in retaliation for his exercise of constitutionally protected rights. 

Thus, only the first and third factors are at issue. We find Dr. Weitzel’s

arguments that the Division acted in bad faith to be without merit. The Division

acted pursuant to state law. Although Dr. Weitzel maintains that the law was

unconstitutional, this argument falls short of meeting his “heavy burden” of

showing bad faith. Assuming arguendo that the statute is unconstitutional, we

cannot say that it is so patently unconstitutional that the Division’s actions could

be considered frivolous or without reasonable hope of success.

Dr. Weitzel also argues that the Division’s three actions constitute

harassment and an abuse of prosecutorial discretion. We disagree. The Division

has demonstrated a reasonable basis for each of the three actions. One action was

for Dr. Weitzel’s failure to submit to a psychological evaluation pursuant to Utah

Code Ann. § 58-67-601(4). Another action was brought for surrendering a license

to practice medicine in California in violation of Utah Admin. Code R156-1-

502(1). A third action was brought for failing to keep required records regarding
3The Division notified this court by submitting supplemental authority

pursuant to Rule 28(j) of the Federal Rules of Appellate Procedure that Dr.

Weitzel had been convicted in state court of a number of felonies stemming from

the same conduct alleged in this action. In response, Dr. Weitzel filed a motion

with this court to strike the Division’s supplemental authority and for attorneys’

fees and costs. 

We acknowledge that the Division’s purpose in submitting this

supplemental material was legitimate and relevant to the reasonableness of its

actions. Nevertheless, we choose not to rely upon it. Dr. Weitzel’s motion to

strike the convictions is granted. His motion for attorneys’ fees and costs is

denied.

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the disposition of controlled substances in violation of Utah Admin. Code R156-

37-602, prescribing controlled substances in excess of necessary amounts in

violation of Utah Code Ann. § 58-37-8(2)(a), demonstrating incompetence or

negligence in the practice of medicine in violation of Utah Code Ann. § 58-1-

501(2)(g), and sexual exploitation of a patient in violation of Utah Code Ann. §

58-1-501(2)(k).3

 

In alleging that these three actions constitute an abuse of discretion or

harassment, Dr. Weitzel has offered nothing more than his own assertions. Given

the state’s justifications for these three actions, Dr. Weitzel’s argument that the

Division’s conduct constituted harassment or an abuse of discretion is without

merit. We find, therefore, that this exception to the Younger abstention doctrine

is inapplicable.

III. Conclusion
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We hold that abstention under the Younger doctrine is appropriate. We

also hold that the exceptions to Younger abstention are inapplicable to this case. 

Because we hold that abstention is proper, we will not address the merits of Dr.

Weitzel’s claims. See Griffin v. Davies, 929 F.2d 550, 554 (10th Cir. 1991) (“We

will not undertake to decide issues that do not affect the outcome of a dispute.”).

Accordingly, we AFFIRM.