Joseph Jemsek v. Janelle Rhyne , 662 F. App'x 206 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1420
JOSEPH JEMSEK, M.D.,
Plaintiff – Appellant,
v.
JANELLE R. RHYNE, M.D.; ROBERT MOFFATT, M.D.; H. ARTHUR
MCCULLOCH, M.D.; ALOISIUS P. WALSH; E. K. FRETWEEL, M.D.;
MICHAEL E. NORINS, M.D.; GEORGE L. SAUNDERS, M.D.;
SARVARESH SATHIRAJU, M.D.; DICKY S. WALIA; RALPH LOOMIS,
M.D.; DON JABLONSKI, M.D.; PAUL S. CAMNITZ, MD, M.D.;
CHERYL WALKER-MCGILL, M.D.; PASCAL UDEKWU, M.D.; HELEN
DIANE MEELHEIM, FNP-BC; SUBHASH GUMBER, M.D., Ph.D.;
TIMOTHY E. LIETZ, M.D.; DEBRE A. BOLICK, M.D.; ELANOR E.
GREENE, M.D.; A. WAYNE HOLLOMAN; THELMA C. LENNON; MICHAEL
J. ARNOLD, M.B.A.; BARBARA E. WALKER, D.O.,
Defendants – Appellees,
and
STATE OF NORTH CAROLINA; NORTH CAROLINA MEDICAL BOARD,
Defendants.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:14-cv-00504-B0)
Argued: September 22, 2016 Decided: October 13, 2016
Before WILKINSON, DUNCAN, and WYNN, Circuit Judges.
Affirmed by unpublished opinion. Judge Duncan wrote the
opinion, in which Judge Wilkinson and Judge Wynn joined.
ARGUED: Jacques G. Simon, JACQUES G. SIMON ATTORNEY AT LAW,
Merrick, New York, for Appellant. Stephen Daniel Feldman, ELLIS
& WINTERS LLP, Raleigh, North Carolina, for Appellees. ON
BRIEF: Matthew W. Sawchak, Steven A. Scoggan, ELLIS & WINTERS
LLP, Raleigh, North Carolina, for Appellees Moffatt, McCulloch,
Walsh, Fretwell, Norins, Saunders, Sathiraju, Loomis, Jablonski,
Camnitz, Walker-McGill, Udekwu, Meelheim, Gumber, Lietz, Bolick,
Greene, Walker, Holloman, Lennon, and Arnold. Andrew H.
Erteschik, POYNER SPRUILL LLP, Raleigh, North Carolina, for
Appellee Rhyne. Ronald H. Garber, BOXLEY, BOLTON, GARBER &
HAYWOOD, L.L.P., Raleigh, North Carolina, for Appellee Walia.
Unpublished opinions are not binding precedent in this circuit.
2
DUNCAN, Circuit Judge:
Dr. Joseph Jemsek filed suit seeking declaratory and
injunctive relief against the State of North Carolina, the North
Carolina Medical Board (“NCMB” or “Board”), and former and
current Board members, alleging that a conflict of interest
infected Board disciplinary proceedings that sanctioned Jemsek,
thereby violating his Fourteenth Amendment right to procedural
due process. The district court dismissed Jemsek’s complaint
because he lacked standing to sue the former Board members and
Defendants were otherwise immune from suit under the Eleventh
Amendment. Jemsek appealed the district court’s dismissal.
Finding no error, we affirm.
I.
A.
Jemsek is a licensed physician who previously practiced
medicine in North Carolina. 1 Since opening his practice in 1979,
Jemsek focused on infectious disease. In 2001, he began
treating individuals with chronic Lyme disease by prescribing
antibiotics long-term, although this course of treatment did not
comport with the model prescribed by the Infectious Disease
Society of America.
1 We draw all facts from Jemsek’s complaint.
3
Jemsek submitted claims to Blue Cross Blue Shield of North
Carolina (“BCBSNC”) on behalf of insured patients for care that
included long-term antibiotic treatment. Although BCBSNC
initially accepted Jemsek’s claims, in 2003, it began to examine
more closely those claims that included long-term antibiotic
use. In 2005, BCBSNC stopped accepting such claims altogether.
In 2005, BCBSNC insureds treated by Dr. Jemsek also filed
several complaints with the NCMB concerning his use of long-term
antibiotic treatments.
The Board investigated Jemsek, formally charged him with
professional misconduct, conducted disciplinary hearings, and
ultimately sanctioned him. In an order dated August 21, 2006
(“2006 order”), the Board suspended Jemsek’s medical license for
one year but stayed the suspension provided that (1) Jemsek
develop an informed consent form approved by the Board, (2) if
Jemsek’s diagnosis of patients was not supported by Center for
Disease Control criteria, then those patients must receive a
consultation or second opinion before Jemsek could treat them,
(3) Jemsek’s treatment of Lyme disease with long-term
antibiotics be included in a formal research protocol with
institutional review board supervision, and (4) any
complications of treatment be addressed immediately.
In 2008, the Board launched another investigation into
Jemsek’s treatment of patients with chronic Lyme disease through
4
the use of hyperbaric chambers. During this investigation, NCMB
investigators informed Jemsek that, if he allowed his North
Carolina medical license to become inactive, the Board would end
the investigation. Jemsek agreed, and the investigation ended
with the Board issuing a public letter of concern dated June 23,
2008 (“2008 letter”). Dr. Janelle A. Rhyne, then-president of
the Board, signed the 2008 letter.
B.
In 2012, Jemsek began a campaign of unsuccessful litigation
before the Board and in state court seeking a declaration that
the 2006 order was null, void, and illegal. 2 Jemsek first
petitioned the Board to revoke the 2006 order on April 27, 2012.
After the Board denied his request for a declaratory ruling,
Jemsek sought judicial review of the Board’s final order in
North Carolina state court pursuant to the state’s statutory-
review scheme. The North Carolina Superior Court dismissed
Jemsek’s petition with prejudice by order dated January 16,
2013. The North Carolina Court of Appeals affirmed on May 20,
2014.; In re Jemsek, 234 N.C. App. 115, 761 S.E.2d 755 (2014).
On June 4, 2014, Jemsek filed a petition for discretionary
review with the Supreme Court of North Carolina.
2
Although Jemsek mentioned due process violations during
the state litigation, he did not base his claims on the
allegations presented to us. It does not appear that Jemsek
challenged the 2008 letter in the state litigation.
5
During June of 2014, while his petition for discretionary
review was pending, Jemsek learned that Rhyne may have had a
conflict of interest when she participated in the disciplinary
process that led up to the 2006 order and the 2008 letter.
Rhyne was, at the same time, a paid consultant to BCBSNC.
Jemsek did not bring this fact to the attention of the Supreme
Court of North Carolina through a procedural mechanism available
to him.
C.
With his petition for discretionary review still pending in
state court, on September 9, 2014, Jemsek filed the instant suit
in federal district court against the State of North Carolina,
the Board, and former and current Board members in their
official and individual capacities (collectively, “Defendants”).
The complaint alleged that bias infected the state medical
license disciplinary proceedings in violation of his due process
right to an impartial tribunal. Jemsek sought declaratory
relief under 28 U.S.C. § 2201 that the 2006 order and 2008
letter were unconstitutional and an injunction under 42 U.S.C. §
1983 rescinding them. In October and November of 2014,
Defendants moved to dismiss Jemsek’s federal complaint.
On December 18, 2014, the Supreme Court of North Carolina
denied Jemsek’s petition for discretionary review, thus ending
6
the state court litigation. In re Jemsek, 367 N.C. 789, 766
S.E.2d 623 (2014).
Subsequently, on March 20, 2015, the district court granted
the Defendants’ motions to dismiss in the instant suit. The
district court found that Jemsek lacked standing to sue the
former Board members because they could not redress his
injuries; they had no authority to comply with an injunction to
rescind a Board order and a declaratory judgment would have no
legal effect as to these individuals. The district court also
found that the Eleventh Amendment otherwise barred Jemsek’s
claims because Jemsek alleged past violations of his due process
rights and did not seek prospective relief. Jemsek timely
appealed on April 16, 2015.
D.
Jemsek’s arguments have narrowed on appeal. Jemsek now
concedes that the Eleventh Amendment bars his claims against the
State of North Carolina and the NCMB, and he has abandoned those
claims. Appellant’s Br. at 9; ECF Nos. 22, 25.
It appears that Jemsek has also abandoned his claims
against current and former Board members in their individual
capacities. He clarifies in his opening brief that he is only
suing former Board members in their official capacities.
Appellant’s Br. at 44–45. As for current Board members, Jemsek
only states that he seeks injunctive relief against them in
7
their official capacities. Id. at 46. It could not be
otherwise. Any effort to seek declaratory relief from the
current Board members in their individual capacities would fail
to state a claim because such a declaration would have no legal
effect on those individuals. We therefore agree with the
district court’s conclusion that Jemsek withdrew any individual
capacity claims, and proceed to address his arguments involving
current and former Board members in their official capacities.
II.
The issues of standing and Eleventh Amendment immunity,
including the Ex parte Young exception, raise questions of law
that we review de novo. See Cooksey v. Futrell, 721 F.3d 226,
234 (4th Cir. 2013) (lack of standing); Hutto v. S.C. Ret. Sys.,
773 F.3d 536, 542 (4th Cir. 2014) (Eleventh Amendment immunity);
CSX Transp., Inc. v. Bd. of Pub. Works of State of W. Va.,
138 F.3d 537, 541 (4th Cir. 1998) (Ex parte Young exception). 3
A.
As we explain below, we conclude that the district court
correctly dismissed Jemsek’s claims for injunctive and
3 Defendants argued below that the district court should
abstain under Younger v. Harris, 401 U.S. 37 (1971). The
district court did not address this argument. Because we affirm
on the alternative, dispositive grounds of Article III standing
and Eleventh Amendment immunity, we need not address this issue.
8
declaratory relief against the former Board members for lack of
standing.
For Article III standing, “[t]he party invoking federal
jurisdiction bears the burden of establishing” (1) injury in
fact, (2) causation, and (3) redressability. Lujan v. Defenders
of Wildlife, 504 U.S. 555, 561 (1992). For an injury to satisfy
the redressability prong, “it must be ‘likely,’ as opposed to
merely ‘speculative,’ that the injury will be ‘redressed by a
favorable decision.’” Id. (quoting Simon v. Eastern Ky. Welfare
Rights Org., 426 U.S. 26, 38 (1976)). We have held that “[b]y
itself, a declaratory judgment cannot be the redress that
satisfies the third standing prong. Rather, plaintiffs must
identify some further concrete relief that will likely result
from the declaratory judgment.” Comite de Apoyo a los
Trabajadores Agricolas (CATA) v. U.S. Dep’t of Labor, 995 F.2d
510, 513 (4th Cir. 1993).
Here, whatever authority the former Board members had at
the time of the 2006 order and the 2008 letter, they have none
now. Jemsek acknowledges that injunctive relief cannot be
enforced against the former Board members. Appellant’s Br.
at 38, 45–46. Having identified no other relief besides a
declaratory judgment that the former Board members can provide,
Jemsek thus effectively concedes that he lacks standing to sue
them.
9
B.
The district court also correctly concluded that Jemsek’s
claims do not fit within the Ex parte Young exception to the
Eleventh Amendment.
The Eleventh Amendment bars suits in federal court by
citizens against unconsenting states and state agencies. 4 See
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100
(1984). Eleventh Amendment immunity extends to state officers
sued in their official capacities. See id. at 101–02. “This
jurisdictional bar applies regardless of the nature of the
relief sought.” Id. at 100.
The doctrine of Ex parte Young, 209 U.S. 123 (1908),
provides a “critical exception” to Eleventh Amendment immunity:
“[F]ederal courts may exercise jurisdiction over claims against
state officials by persons at risk of or suffering from
violations by those officials of federally protected rights, if
(1) the violation for which relief is sought is an ongoing one,
and (2) the relief sought is only prospective.” Republic of
4The Eleventh Amendment provides: “The Judicial power of
the United States shall not be construed to extend to any suit
in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.” U.S. Const. amend. XI. Despite
these express terms, the Supreme Court has interpreted this
amendment also to preclude citizens from bringing suits in
federal court against their own states. Hans v. Louisiana,
134 U.S. 1, 13 (1890).
10
Paraguay v. Allen, 134 F.3d 622, 627 (4th Cir. 1998). The
theory behind this exception is that a state cannot authorize
its officers to violate federal law, so those officers are
stripped of sovereign immunity: thus, “a federal court,
consistent with the Eleventh Amendment, may enjoin state
officials to conform their future conduct to the requirements of
federal law.” Id. (quoting Quern v. Jordan, 440 U.S. 332, 337
(1979)). “In determining whether the doctrine of Ex parte Young
avoids an Eleventh Amendment bar to suit, a court need only
conduct a ‘straightforward inquiry into whether [the] complaint
alleges an ongoing violation of federal law and seeks relief
properly characterized as prospective.’” Verizon Md., Inc. v.
Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002) (quoting
Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 296
(1997)). “[T]he exception is narrow: It applies only to
prospective relief, [and it] does not permit judgments against
state officers declaring that they violated federal law in the
past . . . .” P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy,
Inc., 506 U.S. 139, 146 (1993). “[C]onjecture regarding
discrete future events” does not suffice to create an ongoing
violation. DeBauche v. Trani, 191 F.3d 499, 505 (4th Cir.
1999).
Jemsek argues that because the 2006 order and 2008 letter
remain on the record, there is an ongoing violation such that a
11
declaratory judgment voiding those documents, and an injunction
rescinding them, would qualify as prospective relief. This
contention fails under our established precedent.
In Paraguay, this court held that the Eleventh Amendment
barred a claim based on a treaty violation because the
plaintiff, the Republic of Paraguay, sought, through an
injunction and declaratory judgment, “the voiding of a final
state conviction and sentence” for one of its citizens.
134 F.3d at 628. Paraguay complained that state officials
violated federal law by failing to inform a Paraguayan citizen
convicted of a capital offense of his consular rights under a
treaty and to notify Paraguayan officials of that person’s
arrest, conviction, and sentence. We found that even though
Paraguay couched its request for relief in terms of a
declaratory judgment and injunction, this “d[id] not alter the
inescapable fact that its effect would be to undo accomplished
state action.” Id. The same is true here.
Jemsek asserts that the continued existence and
“publication” of the 2006 order and 2008 letter amount to an
ongoing constitutional violation. See Appellant’s Br. at 23,
25. But the 2006 order would only have suspended his license
for one year, even if the Board had not immediately stayed it.
Meanwhile, the 2008 letter was a one-time reprimand, and Jemsek
voluntarily allowed his medical license to become inactive.
12
That these disciplinary actions may have continuing consequences
(although, as we note below, Jemsek fails to concretely identify
them) is unfortunate from his perspective. But, like the
conviction at issue in Paraguay, even though the consequences of
any past violation may persist, invoking those effects does not
transform past state action into an ongoing violation. Rather,
it is an attempt “to avoid the obvious fact that the actual
violation alleged is a past event that is not itself
continuing.” 134 F.3d at 628.
Regardless of whether the allegations are true, the Board
is not continuing to violate Jemsek’s rights. Jemsek admitted
at oral argument he has not sought reinstatement of his North
Carolina medical license as the Board’s rules allow. 21 N.C.
Admin. Code 32B.1350. Jemsek has not plausibly alleged that the
Board is “continuing to prevent [him], either by action or non-
action, from” seeking to resume his medical practice in the
state. Paraguay, 134 F.3d at 628. To the extent that Jemsek
suggests that the Board may subject him to discipline if he
returns to the state, see Appellant’s Br. at 4, 37, “[m]ere
conjecture is insufficient to transform a one-time event into a
continuing governmental practice or an ongoing violation.”
DeBauche, 191 F.3d at 505. The disciplinary actions were one-
13
time events, and the alleged due process violations occurred
“entirely in the past.” Id. 5
The Supreme Court has acknowledged that “the difference
between the type of relief barred by the Eleventh Amendment and
that permitted under Ex parte Young will not in many instances
be that between day and night.” Edelman v. Jordan, 415 U.S.
651, 667 (1974). But a “straightforward inquiry” reveals that
Jemsek’s claims are purely historical, not ongoing violations.
Verizon Md., 535 U.S. at 645. Accordingly, we hold that the
Eleventh Amendment bars his claims.
Finally, we note that this is not a case in which
allegations of constitutional violations might escape judicial
review entirely. Jemsek claims he discovered Rhyne’s alleged
5 Jemsek’s case differs from one in which this court has
found that termination of an employee counts as an “ongoing
violation” for Ex parte Young purposes. In Coakley v. Welch,
877 F.2d 304 (4th Cir. 1989), the plaintiff sought the
injunctive remedy of reinstatement. In granting the relief, we
reasoned that the alleged official conduct, “while no longer
giving [the plaintiff] daily attention, continues to harm him by
preventing him from obtaining the benefits of [state agency]
employment.” Id. at 307. Jemsek alleges no similar, current
impact. He seeks an injunction rescinding past state action--
the 2006 order and the 2008 letter--that does not circumscribe
his current conduct. The NCMB did not terminate his license;
Jemsek allowed his North Carolina medical license to become
inactive before the NCMB issued the 2008 letter. The NCMB
merely conducted investigations that led to a suspended
disciplinary order and a one-time letter of reprimand. Although
Jemsek characterizes the documents as “license disciplinary
restrictions,” Appellant’s Br. at 25, they did not revoke his
license, nor do they prohibit him from seeking to resume his
medical practice in North Carolina.
14
conflict of interest in June of 2014. At that time, his
petition for discretionary review with the Supreme Court of
North Carolina was still pending. Jemsek could have raised his
current claims in the state court litigation pursuant to
Rule 60(b)(6) of the North Carolina Rules of Civil Procedure.
N.C. Gen. Stat. § 1A–1, Rule 60(b). North Carolina allows a
state trial court to rule on a Rule 60(b) motion while an appeal
is pending and, if it is denied, allows consideration of that
claim on appeal as well. Hall v. Cohen, 628 S.E.2d 469, 471
(N.C. Ct. App. 2006). This court has recognized that North
Carolina Rule of Civil Procedure 60(b), which is substantially
similar to the federal rule, may provide an adequate remedy for
redressing constitutional violations. See Leonard v. Hammond,
804 F.2d 838, 840 (4th Cir. 1986) (finding that habeas
petitioner could have presented federal due process claim and
sought relief in state court pursuant to Rule 60(b) and thus
failed to exhaust state remedies).
Jemsek had an opportunity to raise his claims of
unconstitutional bias in state court. He may apply for
reinstatement with the Board. And if unsuccessful, he may seek
redress of any unfavorable action in state court. “Under [our]
system of dual sovereignty, we have consistently held that state
courts . . . are . . . presumptively competent . . . to
adjudicate claims” of federal right. Tafflin v. Levitt,
15
493 U.S. 455, 458 (1990). The federal courts are not the proper
forum for the claims Jemsek presents.
III.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
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