United States District Court, N.D. California
October 7, 2005.
AFSHIN ADIBI, et al., Plaintiffs,
CALIFORNIA STATE BOARD OF PHARMACY, et al., Defendants.
The opinion of the court was delivered by: EDWARD CHEN, Magistrate Judge
ORDER DENYING DEFENDANTS' MOTION TO DISMISS (Docket No. 8)
Plaintiffs Afshin Adibi and International Pharmaceutical
Services ("IPS") have filed suit pursuant to 42 U.S.C. § 1983
against Defendants the California State Board of Pharmacy
("Board") and its executive director Patricia Harris in her
official capacity. Plaintiffs seek (1) a declaration that
Defendants have violated the Dormant Commerce Clause by trying to
revoke or suspend Plaintiffs' pharmaceutical license and permit
and (2) an injunction barring Defendants from revoking or
suspending the same. Currently pending before the Court is
Defendants' motion to dismiss for failure to state a claim upon
which relief can be granted and for lack of subject matter
jurisdiction. Having considered the parties' briefs and
accompanying submissions, the Court hereby DENIES Defendants'
motion to dismiss.
I. FACTUAL & PROCEDURAL BACKGROUND
In their complaint, Plaintiffs allege the following facts.
The Board is the official body of the state that regulates
licensed pharmacists and licensed wholesalers of pharmaceuticals
in the State of California. See Compl. ¶ 4. Ms. Harris is the executive director of the Board. See id. Mr. Adibi has been
licensed by the Board as a pharmacist since 1991. See id. ¶ 5.
Since 1995, IPS has held a wholesaler permit issued by the Board.
See id. Mr. Adibi is the sole owner, president, and operator of
IPS. See id.
Beginning in 1995, Plaintiffs began to export pharmaceuticals
to foreign countries. See id. ¶ 6. All of the shipments were
made by IPS at the instance and direction of Mr. Adibi. See id.
Subsequently, Defendants brought an administrative proceeding
against Plaintiffs, seeking to revoke or suspend both Mr. Adibi's
license and IPS's wholesaler permit based on Plaintiffs'
exportation of pharmaceuticals. See id. ¶ 7. After Defendants
initiated the administrative proceeding against Plaintiffs,
Plaintiffs filed the instant suit, claiming that Defendants'
attempt to revoke or suspend the license and permit was a
violation of the Commerce Clause of the Constitution. See id. ¶
9 ("Defendants' assertion of disciplinary authority over
[P]laintiffs' license and permit, respectively, on the basis of
[P]laintiffs' conduct which took place entirely in foreign
commerce violates that Constitution of the United States in that
it constitutes an extraterritorial application of the laws of
California and an attempt by [D]efendants as agents of the State
of California to regulate the conduct of foreign commerce.");
see also Opp'n at 1 ("Does the Commerce Clause, or perhaps what
is called the Silent Commerce Clause, of the federal Constitution
override the disciplinary authority of the State of California
with respect to conduct which has occurred solely in the foreign
commerce of the United States and which has no separate effects
within that State?").
Based on papers filed by Defendants,*fn1 it appears that
Defendants sought to revoke or suspend Plaintiffs' license and
permit for various reasons, including but not limited to the
(1) Dispensing dangerous drugs at retail without being licensed
as a pharmacy (as opposed to a wholesaler), a violation of
California Business & Professions Code § 4110. See Cal. Bus. &
Prof. Code § 4110(a) ("No person shall conduct a pharmacy in the
State of California unless he or she has obtained a license from
the board."). (2) Failing to obtain a DEA registration to dispense and export
dangerous drugs, a violation of 21 C.F.R. § 1301.11(a), thereby
violating California Business & Professions Code § 4059.5(e).
See 21 C.F.R. § 1301.11(a) ("Every person who manufactures,
distributes, dispenses, imports, or exports any controlled
substance or who proposes to engage in the manufacture,
distribution, dispensing, importation or exportation of any
controlled substance shall obtain a registration unless exempted
by law or pursuant to §§ 1301.22-1301.26."); Cal. Bus. & Prof.
Code § 4059.5(e) ("A dangerous drug or dangerous device shall not
be transferred, sold, or delivered to a person outside this
state, whether foreign or domestic, unless the transferor,
seller, or deliverer does so in compliance with the laws of this
state and of the United States and of the state or country to
which the dangerous drugs or dangerous devices are to be
transferred, sold, or delivered.").
(3) Transferring, selling, or delivering dangerous drugs
outside of the United States to persons unauthorized by local and
international law to receive the drugs, a violation of California
Business & Professions Code § 4059.5(e). For example, Plaintiffs
allegedly exported dangerous drugs to a foreign country subject
to a trade embargo by the United States without prior government
A. Legal Standard
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a
defendant may move to dismiss for "failure to state a claim upon
which relief can be granted." Fed.R.Civ.P. 12(b)(6). In
deciding whether to dismiss, a court may consider only the facts
alleged in the complaint, documents attached as exhibits or
incorporated by reference in the complaint, and matters of which
the court may take judicial notice. See United States v.
Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) ("A court may . . .
consider certain materials documents attached to the complaint,
documents incorporated by reference in the complaint, or matters
of judicial notice without converting the motion to dismiss
into a motion for summary judgment."). The court must accept the
plaintiff's allegations in the complaint as true and construe
them in the light most favorable to the plaintiff. See Janas v.
McCracken (In re Silicon Graphics Sec. Litig.), 183 F.3d 970,
983 (9th Cir. 1999). Dismissal is improper "unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle
him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
Pursuant to Federal Rule of Civil Procedure 12(b)(1), a
defendant may also move to dismiss for "lack of jurisdiction over
the subject matter." Fed.R.Civ.P. 12(b)(1). "A Rule 12(b)(1)
jurisdictional attack may be facial or factual. In a facial
attack, the challenger asserts that the allegations contained in
a complaint are insufficient on their face to invoke federal
jurisdiction. By contrast, in a factual attack, the challenger
disputes the truth of the allegations that, by themselves, would
otherwise invoke federal jurisdiction." Safe Air v. Meyer,
373 F.3d 1035, 1039 (9th Cir. 2004). "In resolving a factual attack
on jurisdiction, the district court may review evidence beyond
the complaint without converting the motion to dismiss into a
motion for summary judgment." Id.
In their motion, Defendants ask the Court to dismiss
Plaintiff's case pursuant to both Rule 12(b)(6) and 12(b)(1).
More specifically, Defendants argue that Plaintiffs' case should
be dismissed (1) because the State has sovereign immunity under
the Eleventh Amendment; (2) because the State is not a "person"
who may be sued for a § 1983 violation; (3) because the Board and
its officers have absolute immunity from suit; (4) because
Burford abstention is applicable; and (5) because Younger
abstention is applicable. To the extent that Defendants seek
dismissal of the case based on abstention doctrines, Defendants
are not so much challenging subject matter jurisdiction
(Plaintiffs' § 1983 claim undoubtedly falls under federal
question jurisdiction) as arguing that the Court should decline
from asserting jurisdiction as a matter of equity and comity.
See Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 727-28
(1996) ("[T]he power to dismiss under the Burford doctrine, as
with other abstention doctrines, derives from the discretion
historically enjoyed by courts of equity. . . . [The] exercise of
this discretion must reflect `principles of federalism and
comity.'"); Attorney General of Guam v. Torres, 419 F.3d 1017,
(9th Cir. 2005) (stating that "evolution of the Younger
abstention doctrine has confirmed that it is based on
considerations of equity and comity").
B. Sovereign Immunity Under the Eleventh Amendment
Defendants argue first that the case should be dismissed both
against the Board and its executive director Ms. Harris, sued in
her official capacity because they are protected by sovereign
immunity pursuant to the Eleventh Amendment. "Eleventh Amendment immunity extends to state agencies and
other governmental entities that can be viewed as `arms of the
State.'" Maryland Stadium Auth. v. Ellerbe Becket, Inc.,
407 F.3d 255, 261 n. 8 (4th Cir. 2005) (citing P.R. Aqueduct & Sewer
Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993) ("[A]
State and its `arms' are, in effect, immune from suit in federal
court."). As noted by Plaintiffs, however, Defendants have not
provided any evidence nor even made any argument as to why the
Board is a State agency or arm of the State. See Fresenius Med.
Care Cardiovascular Res. Inc. v. Puerto Rico, 322 F.3d 56, 61
(1st Cir. 2003) (stating that the entity asserting Eleventh
Amendment immunity "bears the burden of showing it is an arm of
the state"); Gragg v. Ky. Cabinet for Workforce Dev.,
289 F.3d 958, 963 (6th Cir. 2002) ("[T]he entity asserting Eleventh
Amendment immunity has the burden to show that it is entitled to
immunity, i.e., that it is an arm of the state."); ITSI TV
Prods. v. Agricultural Ass'ns, 3 F.3d 1289, 1292 (9th Cir. 1993)
("[T]he public entity ought to bear the burden of proving the
facts that establish its immunity under the Eleventh
Amendment."). Accordingly, the Court denies without prejudice the
Board's claim of immunity under the Eleventh Amendment.
While sovereign immunity might protect the Board from suit,
see Cozzo v. Tangipahoa Parish Council-President Gov't,
279 F.3d 273, 280-81 (5th Cir. 2002) ("When a state agency is the
named defendant, the Eleventh Amendment bars suits for both money
damages and injunctive relief unless the state has waived its
immunity."), it does not protect Ms. Harris, even in her official
capacity, because Plaintiffs do not seek any monetary damages,
but only declaratory and injunctive relief to enjoin a violation
of federal law.
A state's sovereign immunity from suit in federal
court normally extends to suits against its officers
in their official capacities. The Supreme Court set
forth an exception, however, in Ex parte Young.
Under the Ex parte Young doctrine, a plaintiff may
maintain a suit for prospective relief against a
state official in his official capacity, when that
suit seeks to correct an ongoing violation of the
Constitution or federal law.
Cardenas v. Anzai, 311 F.3d 929
, 934-35 (9th Cir. 2002). See
generally Ex parte Young, 209 U.S. 123
, 160 (1908). Ms. Harris'
claim to immunity is therefore without merit. C. "Person" Subject to Suit Under § 1983
Defendants argue next that the Board as an arm of the State
cannot be sued pursuant to § 1983 because § 1983 actions may be
brought only against a "person" and the State does not qualify as
such. See 42 U.S.C. § 1983 (authorizing claims against "[e]very
person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to
the deprivation of any rights, privileges, or immunities secured
by the Constitution and laws").
The Supreme Court has held that "a State is not a `person'
within the meaning of § 1983." Will v. Mich. Dep't of State
Police, 491 U.S. 58, 65 (1989). However, as noted above,
Defendants have not presented any evidence or argument showing
that the Board should be considered an arm of the State. Again,
the Court rejects the Board's argument without prejudice.
As for Ms. Harris, Plaintiffs are not precluded from seeking
declaratory and injunctive relief against her in her official
capacity. The Supreme Court has held that "[s]tate officers sued
for damages in their official capacity are not `persons' for
purposes of [a § 1983] suit because they assume the identity of
the government that employs them." Hafer v. Melo, 502 U.S. 21,
27 (1991) (emphasis added). But "a state official in his or her
official capacity, when sued for injunctive relief, would be a
person under § 1983 because official-capacity actions for
prospective relief are not treated as actions against the State."
Will, 491 U.S. at 71 n. 10 (internal quotation marks omitted;
D. Absolute Immunity
Defendants claim that "another barrier" to Plaintiff's lawsuit
is Defendants' absolute immunity from suit under § 1983 more
specifically, absolute prosecutorial immunity. Mot. at 5.
Defendants cite Romano v. Bible, 169 F.3d 1182 (9th Cir. 1999),
in support. In Romano, the Ninth Circuit held, inter alia,
that the Nevada Gaming Control Board, which initiated
disciplinary proceedings against the plaintiff, was protected by
absolute prosecutorial immunity. See id. at 1187.
Romano, however, dealt with immunity from a suit for damages.
See id. at 1185 (noting that plaintiff's complaint asked for
compensatory and punitive damages). "[E]ntitlement to absolute immunity from a claim for damages . . . does not bar the granting
of injunctive relief or of other equitable relief." Shmueli v.
City of New York, No. 03-0287-pr, 2005 U.S. App. LEXIS 19773, at
*20 (2d Cir. Sept. 14, 2005); see also Valley v. Rapides Parish
Sch. Bd., 118 F.3d 1047, 1051 n. 1 (5th Cir. 1997) ("It is well
established law in this Circuit that the defenses of qualified
and absolute immunity do not extend to suits for injunctive
relief under 42 U.S.C. § 1983."); Roe v. City & County of San
Francisco, 109 F.3d 578, 586 (9th Cir. 1997) ("The individual
prosecutors' absolute immunity protects them only from damages
claims, not from suits for prospective injunctive relief.").
Defendants also suggest that they are entitled to not only
prosecutorial immunity, but also judicial immunity. See Romano,
169 F.3d at 1186 ("Judges and those performing quasi-judicial
functions are absolutely immune from damages for acts performed
within their judicial capacities."). Again, however, Romano
addressed only immunity from damages, not injunctive relief.
Defendants have not made any argument as to whether absolute
judicial immunity from injunctive relief is possible under the
provision of § 1983, which states that, "in any action brought
against a judicial officer for an act or omission taken in such
officer's judicial capacity, injunctive relief shall not be
granted unless a declaratory decree was violated or declaratory
relief was unavailable." 42 U.S.C. § 1983. However, even if this
argument had validity with respect to the Board, before whom the
administrative proceeding against Plaintiffs is taking place, Ms.
Harris appears to be acting in a prosecutorial capacity only.
See Defs.' RJN, Ex. A (asserting that Ms. Harris "brings this
Accusation solely on her official capacity as the Executive
Officer of the Board of Pharmacy"). The Court therefore denies
Defendants' claim of absolute judicial immunity without
E. Burford Abstention
Defendants contend that, even if Plaintiffs' complaint is not
dismissed for the reasons discussed above, the Court should as a
matter of equity and comity decline jurisdiction under the
Burford abstention doctrine. Under Burford abstention,
[w]here timely and adequate state-court review is
available, a federal court sitting in equity must
decline to interfere with the proceedings or orders
of state administrative agencies: (1) when there are
"difficult questions of state law bearing on policy
problems of substantial public import whose
importance transcends the result in the case then at
bar"; or (2) where the "exercise of federal review of the
question in a case and in similar cases would be
disruptive of state efforts to establish a coherent
policy with respect to a matter of substantial public
New Orleans Public Serv., Inc. v. Council of City of New
Orleans, 491 U.S. 350
, 362 (1989) [hereinafter NOPSI].
The Ninth Circuit has stated that "Burford abstention `is
concerned with protecting complex state administrative processes
from undue federal interference.'" Poulos v. Caesars World,
Inc., 379 F.3d 654, 671 (9th Cir. 2004); see also Kern-Tulare
Water Dist. v. Bakersfield, 828 F.2d 514, 516 (9th Cir. 1987)
("The purpose of Burford abstention is the avoidance of federal
intrusion into matters which are largely of local concern and
which are within the special competence of local courts."). It
has also identified three factors that must be present for
Burford abstention to apply: "(1) that the state has
concentrated suits involving the local issue in a particular
court; (2) the federal issues are not easily separable from
complicated state law issues with which the state courts may have
special competence; and (3) that federal review might disrupt
state efforts to establish a coherent policy." Tucker v. First
Md. Savs. & Loan, Inc., 942 F.2d 1401, 1495 (9th Cir. 1991);
see also Poulos, 379 F.3d at 671 (reciting same factors).
Assuming that timely and adequate state-court review is
available (an issue that is discussed below with respect to the
Younger abstention doctrine), see NOPSI, 491 U.S. at 362, the
Court concludes that Burford abstention is not applicable to
the instant case. While the State does have a relatively complex
regulatory scheme in place with respect to pharmaceutical
licensing and permitting, the question in this case is
essentially "a pure constitutional challenge" that would not
require the Court to intrude into proceedings involving that
scheme. Matson Navigation Co., Inc. v. Hawaii Public Utils.
Comm'n, 742 F. Supp. 1468, 1476 (D. Haw. 1990) (finding
Burford abstention inapplicable because "the question presented
is a pure constitutional challenge to a [Hawaii Public
Utilities Commission] order issued pursuant to a state statute
which allegedly encroaches on an area reserved solely for federal
regulation  [a] determination with respect to the facial
validity of an administrative order does not interfere with the
processes of state government, nor does it require this court to
have any local administrative expertise"). The federal
constitutional issue is "easily separable from complicated state
law issues" and presents an issue over which the state courts do
not have "special competence." Tucker, 942 F.2d at 1495. Burford
abstention is therefore inappropriate.
F. Younger Abstention
Finally, Defendants contend that, regardless of the
applicability of Burford abstention, the Court should dismiss
the case pursuant to Younger abstention. As noted above,
Younger abstention is not a jurisdictional matter but rather a
matter of equity and comity. See Attorney General of Guam,
419 F.3d 1017. "As a general matter, the federal courts' obligation
to adjudicate claims within their jurisdiction [is] virtually
unflagging," and "there are limited circumstances in which . . .
abstention by federal courts is appropriate." Meredith v.
Oregon, 321 F.3d 807, amended by 326 F.3d 1030 (9th Cir.
2003), entirety reprinted as amended in No. 01-35869, 2003 U.S.
App. LEXIS 7310, at *22-23 (9th Cir. Apr. 18, 2003) (internal
quotation marks omitted). Indeed, these "circumstances are
carefully defined and remain the exception, not the rule." Id.
at *23 (internal quotation marks omitted). "Younger abstention
is proper only when the federal relief sought would interfere in
some manner in the state court litigation." Id. at *22
(internal quotation marks omitted).
Application of Younger abstention turns on a three-part test.
Younger and its progeny generally direct federal
courts to abstain from granting injunctive or
declaratory relief that would interfere with pending
state judicial proceedings. Absent "extraordinary
circumstances," abstention in favor of state judicial
proceedings is required if the state proceedings (1)
are ongoing, (2) implicate important state interests,
and (3) provide the plaintiff an adequate opportunity
to litigate federal claims.
Hirsh v. Justices of the Supreme Court, 67 F.3d 708, 712 (9th
Cir. 1995) (citing Middlesex County Ethics Comm. v. Garden State
Bar Ass'n, 457 U.S. 423
, 432 (1982)).
Plaintiffs do not contest that the first Younger prong has
been satisfied i.e., that there are ongoing state judicial
proceedings by virtue of the administrative proceeding initiated
by Defendants against Plaintiffs. See also Ohio Civil Rights
Comm'n v. Dayton Christian Schs., Inc., 477 U.S. 619, 627 (1985)
(noting that Younger abstention has been applied to "state
administrative proceedings in which important state interests are
vindicated, so long as in the course of those proceedings the
federal plaintiff would have a full and fair opportunity to
litigate his constitutional claim"). The Court therefore focuses
on the second and third Younger prongs. 1. Important State Interests
Plaintiffs argue that the administrative proceeding before the
Board does not implicate important state interests because
Plaintiffs' actions i.e., exporting pharmaceuticals do not
affect any citizen of California: "Plaintiffs do not sell to, or
do business with, any end-consumers within the state of
California." Opp'n at 3 (emphasis in original).
When determining a state's interests, a court does not "look
narrowly to [the state's] interest in the outcome of a
particular case" but rather to "the importance of the generic
proceedings to the State." NOPSI, 491 U.S. at 365 (emphasis in
original). The proper inquiry therefore is not whether the State
has an important interest in regulating Plaintiffs for their
exporting of pharmaceuticals; rather, the issue is whether the
State has an important interest in the regulation of pharmacists,
pharmaceutical retailers, or pharmaceutical wholesalers who are
located in and licensed by the State.
Plaintiffs' argument that state interests are absent when the
activity at issue concerns only sales abroad, while superficially
appealing, is not convincing. Even if the purchasers of the
pharmaceuticals live outside the State, the pharmacists,
retailers, or wholesalers are still located in and licensed by
California. The State has an interest in maintaining the
integrity of its pharmaceutical profession, especially since the
profession profoundly touches upon public health and welfare. Any
licensee who wilfully violates clear provisions of law designed
to protect public safety presents an enhanced risk to the public
health and welfare. Moreover, the activity at issue here is not
confined to exportation in violation of federal law; it also
includes engaging in sales exceeding the scope of the California
permit for wholesale. California has a substantial interest in
limiting licensees to activities within the scope of their
permits, particularly where pharmaceutical (including controlled)
substances are involved.
Moreover, the unlawful activities of pharmacists, retailers, or
wholesalers located in California, can affect California citizens
even if their sales are out of state. For example, the
pharmacists, retailers, or wholesalers might maintain stores of
dangerous drugs in the State even if the drugs are ultimately to
be distributed abroad. Unlawful conduct by and lawsuits brought
against such pharmacists, retailers, or wholesalers in the State
could have economic repercussions within the State (e.g. damaging the reputation of California pharmacists
generally, causing loss of business income and employment, etc.).
Accordingly, the Court concludes that enforcement of the
matters asserted in the administrative proceeding against
Plaintiffs does, as a general matter, implicate important state
2. Adequate Opportunity to Litigate Federal Claim in Ongoing
The Court turns to the third Younger prong i.e., whether
the ongoing administrative proceeding against Plaintiffs provides
them with an adequate opportunity to litigate their federal
claim. "[T]he burden [is on Plaintiffs] to show `that state
procedural law bars presentation of [their] constitutional
claim.'" Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 14 (1987);
seel also Baffert v. California Horse Racing Bd., 332 F.3d 613,
619 (9th Cir. 2003) (noting the same; adding that "[w]e must
assume that state procedures afford an adequate remedy, in the
absence of unambiguous authority to the contrary").
Plaintiffs argue that they do not have an adequate opportunity
to litigate their federal claim because they cannot raise the
constitutional claim in the administrative proceeding against
them and because they may not be able to litigate the claim in
state court in a timely fashion, i.e., prior to revocation of
the license and permit. Plaintiffs are correct that they cannot
raise the federal constitutional claim in the administrative
proceeding before the Board, because the claim, if successful,
would effectively invalidate the California statutory scheme
conferring Board jurisdiction and enforcement over foreign
commerce. California Constitution Art. III, Section 3.5 precludes
the Board from adjudicating such a constitutional claim. See
Kenneally v. Lungren, 967 F. 2d 329, 332 (9th Cir. 1992)
("Article III, § 3.5 of the California Constitution prohibits
administrative bodies from declaring statutes unconstitutional or
refusing enforcement of statutes on the basis of claims that such
statutes are unconstitutional."). Thus, the only opportunity for
Plaintiffs to litigate their federal claim in a state proceeding
would be through judicial review by the California Superior Court
by way of administrative mandamus.
However, a petition for writ of mandamus and any ancillary
request for stay of an administrative order might not be heard
before the Board's revocation or suspension of Plaintiffs' license and permit takes effect. Under California Government Code
§ 11519, Defendants could immediately revoke or suspend
Plaintiffs' license and permit. The statute provides in relevant
part: "The decision [of the administrative agency] shall become
effective 30 days after it is delivered or mailed to respondent
unless: a reconsideration is ordered within that time, or the
agency itself orders that the decision shall become effective
sooner, or a stay of execution is granted." Cal. Gov't Code §
11519(a) (emphasis added). If Defendants immediately revoked or
suspended Plaintiffs' license and permit, Plaintiffs would not
have the opportunity to present their constitutional claim to the
state court for judicial review and have the claim considered
before the revocation or suspension would take effect. Defendants
have not stipulated to stay any revocation or suspension order to
permit Plaintiffs an opportunity to file a petition for writ of
mandamus and seek a stay of the order in the California Superior
Court. In short, Plaintiffs could be left without a
For Younger abstention, the adequacy of the opportunity to
litigate the federal claim in a state proceeding requires that
such opportunity be timely i.e., prior to the administrative
deprivation. This was made clear in a trilogy of Ninth Circuit
cases: Kenneally, Baffert, and Meredith.
In Kenneally, the plaintiff filed a § 1983 suit in federal
court, seeking to enjoin the California Attorney General and
members of the State medical board from holding an administrative
hearing to revoke his physician's license. See Kenneally,
967 F.2d at 330-31. The plaintiff argued that Younger abstention
was not applicable because he would not be able to litigate his
federal constitutional claims in the state administrative
proceeding due to, inter alia, the inadequacy of the
proceeding. See id. at 331. The Ninth Circuit acknowledged
that, under the California Constitution, administrative bodies
were prohibited from declaring statutes unconstitutional or
refusing enforcement of statutes on the basis of claims that such
statutes are unconstitutional. See id. at 332 (citing Article
III, § 3.5 of the California Constitution). "However, `even if a
federal plaintiff cannot raise his constitutional claims in state
administrative proceedings that implicate important state
interests, his ability to raise the claims via state judicial
review of the administrative proceedings suffices.'" Id. There
was the possibility of judicial review of the administrative
proceeding via a petition for a writ of mandate pursuant to
California Code of Civil Procedure 1094.5. See id. The Kenneally plaintiff contended, however, that he would not
have a meaningful opportunity to present his federal
constitutional claims to the state court (as part of judicial
review) "because the Board will revoke his license immediately
upon conclusion of the [administrative] hearing." Id. When the
Board stipulated that it would stay the revocation of his license
for thirty days, the plaintiff argued that this would not make
any difference because the filing of a petition for a writ of
mandate would not stay the Board's revocation order and his
constitutional claims could not be heard and resolved by the
state court within the thirty-day stay period. See id.
The Ninth Circuit rejected the plaintiff's argument because,
even though the Board's order would not be automatically stayed
pending review by the state court, the state court had the
discretion to stay the Board's order and, in exercising this
discretion, the state court under § 1094.5 had to make a
preliminary assessment of the merits of the petition. See id.
at 332-33. Thus, the Ninth Circuit concluded that "[t]he
statutory framework provides a meaningful opportunity for [the
plaintiff] to present his constitutional claims for independent
judicial review prior to the Board's decision becoming
effective." Id. at 333 (emphasis added). The court acknowledged
that the state court "may decide not to stay the Board's
administrative order beyond the 30-day stay period [stipulated to
by the Board]. But this does not mean that [the plaintiff] will
not have had an opportunity to present his constitutional claims
to the state court for its review and have those claims
considered before the Board's order takes effect. Nothing under
California law limits [the plaintiff] from presenting his claims
at the stay hearing [before the state court]." Id. (emphasis
Thus, in Kenneally, the administrative proceeding was deemed
adequate only because the medical board stipulated to a
thirty-day stay of its revocation order. This guaranteed the
plaintiff an opportunity to seek a stay from the reviewing state
court before the medical board's order would go into effect.
While, under Kenneally, a plaintiff need not be guaranteed
actual substantive review, Younger requires that the plaintiff
be afforded an opportunity to present and have considered the
merits of the federal claim before suffering the deprivation.
The importance of timely opportunity to present the federal
claim prior to deprivation was subsequently confirmed by the
Ninth Circuit in Baffert, where the court expressly
acknowledged that "there are instances in which timeliness plays a role in the
adequacy of a state forum." Baffert, 332 F.3d at 620. In
Baffert, the plaintiff challenged drug testing procedures of
the California Horse Racing Board which suspended his license.
Because the plaintiff was not attacking a statute or regulatory
scheme, but only the constitutionality of the drug testing
procedures, the agency was not barred from adjudicating his
federal claim as in Kenneally. See id. at 620. Moreover, the
suspension was in fact stayed by the state court pending appeal.
See id. at 620-21. Accordingly, the Ninth Circuit concluded
that there was no timeliness problem because the plaintiff did
not "show that he will be forced to serve his [sixty-day]
suspension before he has had a chance to adjudicate his federal
claims in the state forum. Id. at 620 (emphasis added).
In contrast, in Meredith, the Ninth Circuit held that the
plaintiff was not afforded a timely opportunity to present his
federal claim in the state proceeding. In Meredith, the
plaintiff owned a vacant parcel of property adjacent to a highway
and erected a sign on the property. See Meredith, 2003 U.S.
App. LEXIS 7310, at *2. The state initiated an enforcement action
against the plaintiff on the basis that the sign violated the
Oregon Motorist Information Act. See id. The plaintiff
challenged the constitutionality of the state statute at an
administrative hearing but the administrative law judge ("ALJ")
dismissed the claim and ordered the plaintiff to remove the sign
immediately or pay the state to remove the sign. See id. at
*2-4. The plaintiff subsequently changed the content of his sign
two times ultimately the content of the sign asserted that the
Department of Transportation violated federal and state law and
asked for a stay of further enforcement proceedings until he
could establish the legality of the new sign. See id. at *4-5.
The Department denied the request for a stay and hearing to
introduce evidence of the amended sign. See id. at *5.
Subsequently, the plaintiff filed suit in district court,
seeking a declaratory judgment that the state statute violated,
inter alia, the First Amendment and a preliminary injunction
enjoining the Department from further enforcing the statute. See
id. After the ALJ issued his final order requiring the plaintiff
to remove the sign or pay the state to remove the sign, the
plaintiff appealed the ALJ's ruling to the state court of
appeals. See id. at *5-6.
In rejecting Younger abstention, the court reiterated that
"Younger abstention `presupposes the opportunity to raise and
have timely decided by a competent state tribunal the federal
issues involved.'" Id. at *28 (emphasis in original). It then
acknowledged that, under state law, the plaintiff had "several
options for challenging the ALJ's final order and for presenting
his federal constitutional claims in state court." Id. However,
"[n]one of these options provided [the plaintiff] with `timely'
adjudication of his federal claims." Id. at *28-29.
As in Kenneally, the plaintiff did not have an opportunity to
present his federal constitutional claims (which stemmed from the
second amended sign) "before the ALJ issued his final order."
Id. at *29 (emphasis in original; citing Kenneally).
Moreover, the plaintiff "did not have a `full and fair'
opportunity to present his federal claims after the ALJ issued
the final order because [under state law] he could not obtain a
stay of enforcement of the final order within thirty days before
he was required to take down his sign." Id. at *30 (emphasis in
original). The Ninth Circuit added that it was not possible for
the plaintiff to receive a timely stay directly from the state
court of appeals. See id. at *32 (noting that the plaintiff
could not pursue denial of a request for stay with a state court
"until after he already was required to remove his sign"). Thus,
the crucial point in Meredith was that the plaintiff "never had
the opportunity, before he was required by law to remove his
sign, to have a state court consider the merits of his federal
constitutional claims." Id. at *33 (emphasis added).
In sum, Kenneally, Baffert, and Meredith establish that for
there to be an "adequate opportunity to litigate federal claims"
as required by the third prong of Younger, the plaintiff must
have an opportunity to have the federal claim considered on the
merits by the state tribunal before the adverse administrative
action takes effect.*fn2
For the reasons stated above, Plaintiffs' license and permit in
the case at bar are subject to revocation or suspension before
they have the opportunity to have their constitutional claim
considered. Because Plaintiffs will not have an "adequate
opportunity to litigate [their] federal constitutional claim,"
Younger abstention is not appropriate in the instant case. III. CONCLUSION
For the foregoing reasons, the Court denies Defendants' motion
to dismiss. Defendants shall file a response to Plaintiffs'
complaint within twenty days of the filing date of this order.
A case management conference shall be held on November 23, 2005
at 1:30 p.m. The parties shall file a joint case management
conference statement on November 16, 2005.
This order disposes of Docket No. 8.
IT IS SO ORDERED.
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