## 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 brie fs), Stirba & Hathaway, Salt Lake City, Utah, appearing for the Appellant. Brent A. Burnett, Assistant Attorney General (Jan G raham, Attorney General, and Nancy L. Kemp, Assistant Attorney General, on the b rief), 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.1 Federal courts of appeal have jurisdiction pursuantto § 1291 of a district

court’s abstention from exercising jurisdiction ove r 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 mark s omitted). -2- TACHA , Chief Judge.

Plaintiff appeals the district court’s abstention u nder the doctrine of Younger v. Harris , 401 U.S. 37 (1971). We exercise jurisdiction pur suant 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, Di vision of Occupational and Professional Licensing (the Division), a division o f 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 o f Utah. These petitions were based on Dr. Weitzel’s alleged conduct before and d uring 1997.-3-

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 examinatio n 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 th e examination order to determine whether it complied with Utah law, includ ing the Utah Administrative Procedures Act (“UAPA”), Utah Code Ann. §§ 63-46b-0 .5 to 22, and the Department of Commerce Administrative Procedures Ac t Rules, Utah Admin. Code R151-46b. The Division denied the relief soug ht in this letter on August 23, 1999 because, among other reasons, it determine d 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 D irector Bowen indicating Dr. Weitzel’s intent to appeal the denia l of the review request and requesting that the Division stay any suspension ac tions until Dr. Weitzel had an opportunity to exhaust his administrative remedies. That same day, Dr. Weitzel served the Executive Dir ector of the Utah Department of Commerce with a letter appealing the Division’s denial of review. Later that day, Director Bowen issued an order susp ending Dr. Weitzel’s2 Utah Code Ann. § 58-67-601(4)(c)(i) states: “Failur e of a physician to

submit to the examination ordered under this sectio n is a ground for the division’s immediate suspension of the physician’s license by written order of the director.” -4- license to practice medicine and to prescribe and a dminister controlled substances in the State of Utah pursuant to Utah Code Ann. § 5 8-67-601(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 decl aring 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 evalu ation and suspension orders and depriving Dr. Weitzel of adequate agency review ; (3) damages from the Division, Director Bowen, and other presently unnam ed individuals for violations of Dr. Weitzel’s liberty and property interests; an d (4) damages from the individual defendants in their individual capacitie s for denial of fundamental fairness. Additionally, Dr. Weitzel sought injunct ive 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 th e Youngerabstention 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.-5-

Weitzel to assert his claims. Consequently, the co urt dismissed Dr. Weitzel’s claims without prejudice. Dr. Weitzel appeals to t his court.

II. Discussion The district court’s abstention pursuant to Youngeris subject to de novo review. Amanatullah v. Colo. Bd. of Med. Exam’rs , 187 F.3d 1160, 1163 (10th Cir. 1999). Under the Youngerabstention doctrine, federal courts should not “interfere with state court proceedings by granting equitable relief – such as injunctions of important state proceedings or decla ratory 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 Amanatul lah : A federal court must abstain from exercising jurisd iction when: (1) there is an ongoing state criminal, civil, or admin istrative proceeding, (2) the state court provides an adequat e forum to hear the claims raised in the federal complaint, and (3) the state proceedings “involve important state interests, matters which t raditionally look to state law for their resolution or implicate separat ely 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-6-

because the relief sought would not interfere with any ongoing state action. Alternatively, Dr. Weitzel argues that this case fa lls within exceptions to the Youngerabstention doctrine.

A. Applicability of Younger Abstention Dr. Weitzel argues that the Youngerabstention doctrine is inapplicable to his motion for preliminary injunction because he is not seeking to enjoin the Division from investigating his competency to pract ice medicine and prescribe and administer controlled substances. Rather, he a rgues that the injunctive relief he seeks is a declaration that the suspension orderis unconstitutional and an opportunity to challenge the psychological evaluati on order without the continued suspension of his license. While we find this argument unpersuasive and agree with the district court’s Youngeranalysis in light of the facts then available, sub sequent developments cast doubt on whether the appeal to th e Executive Director of the Department of Commerce provided an adequate forum f or 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 o rder in response to Dr. Weitzel’s appeal. The Executive Director concluded that he lacked jurisdiction to-7-

review the constitutionality of state statutes: “[T]he defendant Department of Business Regulation (now Commerce), as an administrative agency, does not de termine the constitutionality of statutes.” Clayton v. Bennett , 298 P.2d 531 (Utah 1956). The constitutionality of a statute mu st be determined in a court of law and cannot be addressed by the Execu tive Director. The Executive Director, in considering this appeal, is only able to look at whether the Division strictly complied w ith and followed the procedures established by the legislature and c annot question whether in following such procedures the Division m ay have deprived Petitioner of any constitutionally protect ed 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 or der, we cannot agree with the district court that the appeal to the Executive Dir ector provided Dr. Weitzel with an adequate forum to assert his constitutional clai ms. This, however, does not conclude our analysis. On December 2, 1999, Dr. Weitzel filed a complaint in the Utah Third Distric t Court seeking relief identical to that sought in federal district court. This act ion is still pending. This court is “‘free to affirm a district court dec ision on any grounds for which there is a record sufficient to permit conclu sions 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 o f Denver , 960 F.2d 1493, 1495 n.1 (10th Cir. 1992)). Although Youngerabstention may have been inappropriate prior to the filing of Dr. Weitzel’s action in state court, it is appropriate now. Clearly the pending state proceed ing is an ongoing state action.-8-

It is also beyond dispute that the Utah state judic iary 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 th e constitutional obligation of the state courts to uphold federal law, and its express ion 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 Youngerdoctrine 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 Youngerabstention “‘offers the opportunity for narrowing constructions that might obviate the constitutional problem and intelligently mediate federal constitutional concerns and state i nterests’” (quoting Moore v. Sims , 442 U.S. 415, 429-30 (1979))). We find that the federal courts are required to abs tain under the Younger doctrine from adjudicating Dr. Weitzel’s claims.

B. Exceptions to Younger Abstention Dr. Weitzel argues that, even if the Youngerabstention doctrine is-9-

applicable, the Division’s conduct brings this case within the exceptions to abstention. The Youngerabstention doctrine is inapplicable “‘in cases of proven harassment or prosecutions undertaken by state offi cials in bad faith without hope of obtaining a valid conviction and perhaps in othe r extraordinary circumstances where irreparable injury can be shown.’” Amanatulla h , 187 F.3d at 1165 (quoting Perez v. Ledesma , 401 U.S. 82, 85 (1971)). We first address Dr. Weitzel’s argument that he fac es irreparable injury. The “‘threat to the plaintiff’s federally protected rights’ is only irreparable if it ‘cannot be eliminated by . . . defense against a si ngle prosecution.’” Phelps v. Hamilton , 122 F.3d 885, 889 (10th Cir. 1997) (omission in o riginal) (quoting Younger , 401 U.S. at 46 (1971)). Dr. Weitzel’s pending st ate court action may resolve any violation which may have occurred to hi s protected rights. Accordingly, this is not one of the extraordinary c ircumstances where irreparable injury can be shown. This exception is therefore i napplicable. 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 in tended to harass: (1) whether it was frivolous or undertaken with no reasonably objective hope of success; (2) whether it was motiv ated 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 o ppressive use of-10-

multiple prosecutions. Id. “[I]t is the plaintiff’s ‘heavy burden’ to overco me the bar of Younger abstention by setting forth more than mere allegati ons of bad faith or harassment.” Phelps , 122 F.3d at 889. Dr. Weitzel does not contend that the Division’s ac tion 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 b e without merit. The Division acted pursuant to state law. Although Dr. Weitzel maintains that the law was unconstitutional, this argument falls short of meet ing his “heavy burden” of showing bad faith. Assuming arguendo that the stat ute 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 a ctions 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 psychologi cal evaluation pursuant to Utah Code Ann. § 58-67-601(4). Another action was broug ht 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 regarding3 The Division notified this court by submitting supp lemental authority

pursuant to Rule 28(j) of the Federal Rules of Appe llate Procedure that Dr. Weitzel had been convicted in state court of a numb er of felonies stemming from the same conduct alleged in this action. In respon se, Dr. Weitzel filed a motion with this court to strike the Division’s supplement al authority and for attorneys’ fees and costs. We acknowledge that the Division’s purpose in submi tting this supplemental material was legitimate and relevant t o 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. -11- the disposition of controlled substances in violati on 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), demons trating 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 th an 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 abu se of discretion is without merit. We find, therefore, that this exception to the Youngerabstention doctrine is inapplicable.

III. Conclusion-12-

We hold that abstention under the Youngerdoctrine is appropriate. We also hold that the exceptions to Youngerabstention 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 aff ect the outcome of a dispute.”). Accordingly, we AFFIRM.