EDITH H. JONES, Circuit Judge:
Dr. P. Sidney Neuwirth filed this § 1983
Appellant P. Sidney Neuwirth, D.D.S., licensed to practice dentistry in the state of Illinois since 1938,
In February 1986, Neuwirth filed this action against the Louisiana State Board of Dentistry and J. Roy Chustz, D.D.S., the President of the Board of Dentistry, alleging that the denials of his applications "are without rational basis, contrary to state law and ... arbitrary and capricious." Chustz was sued only in his official capacity. Neuwirth requested the district court to (1) enter a judgment declaring that his constitutional and statutory rights were violated; (2) order the defendants to grant him a full license by reciprocity or issue reasons why he has not been granted a license and give him the opportunity to contest those reasons; and (3) award him attorney's fees and costs. Neuwirth filed a motion for summary judgment alleging that the defendants' policy of not granting general licenses by reciprocity violates the due process clause of the fourteenth amendment.
As noted, the district court granted defendants' motion for summary judgment.
Neither the parties nor the trial court suggested that the eleventh amendment may bar the federal court's jurisdiction to hear this case. Appellees, however, raised the issue at oral argument before us and by a letter a few days prior thereto. We may properly consider the issue even at this stage of the proceeding, because of the strong federalism concerns behind the amendment. See Voisin's Oyster House, Inc. v. Guidry, 799 F.2d 183, 188-89 (5th Cir.1986); McKay v. Boyd Const. Co., 769 F.2d 1084, 1086 (5th Cir.1985).
The Eleventh Amendment provides:
This language has been construed to bar actions brought in federal court against state governments by anyone other than the federal government or another state. See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 97-102, 104 S.Ct. 900, 906-09, 79 L.Ed.2d 67 (1984). Absent a waiver or consent by the state or an express negation of immunity by act of Congress, the eleventh amendment prohibits a federal court from awarding either legal or equitable relief against the state. Papasan v. Allain, 478 U.S. 265, 106 S.Ct. 2932, 2939, 92 L.Ed.2d 209 (1986). However, an exception to this rule first announced in Ex Parte Young,
We consider first the dental board. The "State" for eleventh amendment purposes includes state agencies, Mt. Healthy City School District Bd. of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), appeal after remand 670 F.2d 59 (6th Cir.1982), but not "political subdivisions" of the state. Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 401-02, 99 S.Ct. 1171, 1178-79, 59 L.Ed.2d 401 (1979).
In Minton v. St. Bernard Parish School Bd., 803 F.2d 129, 131 (5th Cir.1986), this Court set forth six factors for determining
Applying these factors the Court in Darlak v. Bobear, 814 F.2d 1055, 1060 (5th Cir.1987), held that the Louisiana Department of Health and Human Resources (DHHR) and Charity Hospital of Louisiana at New Orleans, which is a part of the DHHR, are entitled to eleventh amendment immunity.
The Board of Dentistry is also part of the DHHR. La.Rev.Stat.Ann. § 37:753A (West Supp.1986). The Board consists of twelve members appointed by the Governor and is concerned with statewide issues, i.e., the regulation of the practice of dentistry in Louisiana. La.Rev.Stat.Ann. §§ 37:753B, 37:760 (West Supp.1986). In addition, the Board receives its funding from the state and any judgment against the Board would be paid with state funds. Darlak, 814 F.2d at 1059. Although the Board has authority to sue and be sued, La.Rev.Stat.Ann. §§ 37:785, 37:786, 37:791 (West Supp.1986), the existence of the other factors demonstrates that the Board is the alter ego of the State of Louisiana. Because § 1983 does not negate a state's eleventh amendment immunity, Pennhurst, 465 U.S. at 99, 104 S.Ct. at 907; Voisin's, 799 F.2d at 186, and the Board is the alter ego of the State of Louisiana, which has not consented to suit,
Neuwirth's claim for injunctive relief against Dr. Chustz is more problematic. The primary issue is whether the claim falls within the Ex Parte Young exception to immunity in light of recent decisions favoring its narrow construction
Id. (emphasis added).
Another way of articulating this point is that the exception "allows federal courts to hear suits against state officials if the suit seeks to force them to conform their conduct to federal law," but does not apply to "suits which would seek to have federal judges order state officials to conform their conduct to state law." Rotunda, Nowak, & Young, Constitutional Law: Substance and Procedure, Vol. 1 § 2:12 at 89 (1986); see also Pennhurst, 465 U.S. at 89, 104 S.Ct. at 900; County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 105 S.Ct. 1245, 84 L.Ed.2d 169 (1985), rehearing denied 471 U.S. 1061, 105 S.Ct. 2173, 85 L.Ed.2d 491 (1985).
Dr. Neuwirth's right to relief in federal court thus depends on whether his claim implicates a constitutional violation, as contrasted with a violation of state law alone. In cases like this, where our jurisdiction
The due process clause of the fourteenth amendment protects a person from deprivation of life, liberty or property without due process of law. Whether "due process" has been accorded a plaintiff is not material unless he demonstrates that state action deprived him of a constitutionally protected interest. Dr. Neuwirth's claim founders on this first hurdle — he has not elevated his state law grievance to the deprivation of a property or liberty interest protected by the constitution.
It is settled that, "Although the underlying substantive interest is created by `an independent source such as state law,' federal constitutional law determines whether that interest rises to the level of a `legitimate claim of entitlement' protected by the Due Process Clause." Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 9, 98 S.Ct. 1554, 1560, 56 L.Ed.2d 30 (1978) (quoting Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972)). The applicable Louisiana statute provides that "[t]he board [of Dentistry] may issue a license without exam" on reciprocal terms. La.R.S. 37:768 (emphasis added). The Board admittedly refused ever to issue any reciprocal license without examination to a dentist qualified outside of Louisiana. Dr. Neuwirth contends that the statute gave him an "expectation" of being admitted to practice on a reciprocal basis and that the Board's refusal to exercise the statutorily founded discretion arbitrarily and capriciously deprived him of "fair" treatment under the law. His constitutional "interests" thus purportedly rest upon the statute and upon a general right to be treated "fairly" by a state administrative agency.
Dr. Neuwirth's major complaint about the adverse district court ruling is that the trial court ignored La.R.S. 37:768 and the entitlement it confers on him to be considered for an examination-free reciprocal license. Our brief response is that the court did not ignore the statute, and the statute does not obviously confer such a right. As the district court observed, the statute provides that the Dentistry Board "may" grant reciprocal licenses to qualified dentists from out of state by waiving the exam requirements. Use of the word "may" as opposed to mandatory language as "shall" has been found to indicate a legislature's intention to bestow discretion on the state agency charged to apply the statute. See Scales v. Mississippi State Parole Bd., 831 F.2d 565, 565 (5th Cir.1987); Board of Pardons v. Allen, 482 U.S. 369, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987); Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). In Scales, this court, finding that a Mississippi parole statute created no constitutionally protected liberty interest, stated: "The distinction between whether a prisoner shall or may be given parole critically differentiates his expectation of release, and hence his rights under the due process clause of the fourteenth amendment." 831 F.2d at 566. Similar precatory language in this Louisiana statute necessarily leads to the conclusion that absolute discretion over Louisiana's reciprocity policy has been conferred on the Dentistry Board.
This result harmonizes with Leis v. Flynt, 439 U.S. 438, 99 S.Ct. 698, 58 L.Ed.2d 717 (1979), in which the Supreme Court found no constitutionally protected right of an attorney to appear pro hac vice in a state in which he was not licensed to practice law. The Court responded that even if the petitioning attorneys had "reasonable expectations of professional service," these did not rise to the level of mutual, explicit understanding with the state necessary to create a constitutional entitlement, because the Ohio Supreme Court rules consigned the authority to permit pro hac vice appearances to the trial court's discretion. 439 U.S. at 443-44, 99 S.Ct. at 701.
Appellant embellishes upon his basic argument, however. He contends that the Board's decision never to grant reciprocal licenses without examinations, in the face of a statute requiring them to exercise discretion, is an arbitrary and irrational abuse of discretion that violates his right to be treated "fairly" by the state.
To the extent this argument depends on our finding a violation of state law, neither the purported violation nor the argument it supports is compelling. The issue of Louisiana law is whether in stating that the Dentistry Board "may" grant reciprocal licenses without an examination, and thus in conferring discretion on the Board to evaluate reciprocal license applications, the legislature also intended to say the Board may elect not to do so in every case. We have already indicated that the Board appears to have absolute discretion in these matters. Even on the dubious assumption that the Board violated Louisiana law, that "is neither a necessary nor a sufficient condition for a finding of a due process violation." Stern v. Tarrant County Hospital Dist., 778 F.2d 1052, 1059 (5th Cir.1985) (en banc), cert. denied 476 U.S. 1108, 106 S.Ct. 1957, 90 L.Ed.2d 365 (1986). The appropriate standard is one of federal law.
In advocating a "fairness" standard, Dr. Neuwirth suggests that he is entitled to receive substantive due process, i.e., fairness of result, in connection with his application for an examination-free license. The contours of substantive due process are not starkly etched, to say the least. See, e.g., discussion in Brennan v. Stewart, 834 F.2d 1248, 1248-49, (5th Cir.1988). We can affirm, however, that Dr. Neuwirth's plea for a "fairness" standard is not within those contours for two reasons. First, the foregoing analysis demonstrated that he has no constitutionally protected interest in practicing dentistry in Louisiana without taking an examination. Such constitutionally protected interests are a prerequisite to asserting a substantive due process violation. See, e.g., Regents of University of Michigan v. Ewing, 474 U.S. 214, 223 and n. 8., 106 S.Ct. 507, 512 and n. 8, 88 L.Ed.2d 523; Brennan v. Stewart, 834 F.2d at 1257-58.
Second, even if he had such an interest, the Supreme Court has gauged the constitutional protection of "non-fundamental" rights by rationality of outcome, not fairness. If state action is so arbitrary and capricious as to be irrational, its infringement on a constitutionally protected interest may violate substantive due process rights. See Regents of University of Michigan v. Ewing, 474 U.S. 214, 106 S.Ct. 507,
Schware v. Board of Bar Examiners of the State of New Mexico, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957), although cited in Dr. Neuwirth's behalf, does not support his proffered "fairness" rule. In Schware, the appellant had been denied the right to take the New Mexico bar examination largely because he had been a member of the Communist party some years earlier and for this reason was said not to fulfill New Mexico's character requirement for prospective attorneys. Abundant, uncontradicted evidence of Schware's law-abiding conduct, honorable military record and good character for over ten years immediately preceding his application appeared in the record. The Supreme Court held that New Mexico did not act rationally in excluding Schware from the bar exam and thus denied Schware due process. The Court emphasized, however, that a state can require high standards of qualification for the practice of law so long as such standards have a rational connection to an appellant's fitness and are not invidiously discriminatory. Not only does Schware comport with a rationality standard of review of the state's action, but it was also a case in which the effect of New Mexico's action was to prevent Schware from practicing law in New Mexico. The Dentistry Board, by contrast, has imposed no disabling restriction on Dr. Neuwirth, who, the district court found, actively practices dentistry under a restricted license. The Dentistry Board only asks and requires him to pass a licensing examination in order to obtain a full license.
We do not demean in the slightest Dr. Neuwirth's impressive professional credentials. If we were on the Dentistry Board, and were given discretion to decide which practitioners licensed out-of-state should be admitted to practice in Louisiana without passing the professional examination, Dr. Neuwirth would probably be among our first candidates for such a waiver. But the point of our decision is that we are not on the Dentistry Board, nor have we been selected by the governmental authorities of Louisiana to determine who should practice dentistry.
The judgment of the district court is AFFIRMED.
WISDOM, Circuit Judge, dissenting:
Dr. P. Sidney Neuwirth is a qualified and experienced dentist who practiced in the state of Illinois from 1938 until 1981 when he accepted a position to serve as an Assistant Clinical Professor at the Louisiana State University School of Dentistry. The Louisiana State Board of Dentistry has denied his requests for a license based on a reciprocity statute.
As this case has been pleaded, I agree with the majority that the eleventh amendment determines the outcome. Under this court's decision in Darlak v. Bobear,
The majority, however, ventures far beyond the principles necessary to decide this appeal. The declaratory judgment and injunction Dr. Neuwirth requests are not relief necessarily barred by the eleventh amendment.
The merits of Dr. Neuwirth's claim need not have been addressed.
It is important to emphasize that the majority does not hold that Papasan and Pennhurst bar a fourteenth amendment due process claim merely because that claim is based upon a property interest defined by state law. The Supreme Court has long recognized that determining what constitutes "property" is a matter of measuring the interest defined by state law against a fourteenth amendment yardstick. In this sense, all due process claims — including the one in Young — are premised upon a violation of state law. Reading Papasan and Pennhurst to bar them on this basis would eviscerate the due process clause.
The message Papasan and Pennhurst send is that the eleventh amendment ensures that the fourteenth does not go so far as to open the federal courts as a forum for the remedy of every state law wrong: "federal supremacy is not implicated [when] the state official is acting contrary to state law only".
But the threshold inquiry in each due process case remains whether the state law interest at stake rises to the level of constitutionally-protected "property" or "liberty". In Roth, Perry v. Sindermann,
Whether or not this innovation puts us on the right track,
With these principles in mind, I do not find it so clear as the majority that Dr. Neuwirth has no "legitimate claim of entitlement" to a reciprocal license. I agree with the majority that the place to begin the Roth inquiry is language of the statute establishing the interest. But the majority's inquiry begins and ends with construing the word "may" as conferring absolute discretion in the Board never to grant a license to a qualified dentist moving to Louisiana from another state. This view of the interest Louisiana law gives Dr. Neuwirth strikes me as myopic.
Constitutionally-protected property interests do not hang on a single word. Broad administrative discretion in the award of a benefit, indicated by precatory language in the relevant statute, does not give rise to constitutionally-protected "property".
Recently, in Board of Pardons v. Allen, the Supreme Court again explained the proper method of inquiry:
Here, the word "may" in R.S. 37:768 gives the Board discretion to grant reciprocal licenses to applicants meeting certain, specific criteria. This does not, however, give the Board "absolute discretion" to refuse all such applicants as the majority contends.
Rather, R.S. 37:776, passed at the same time and as part of the same licensing act as R.S. 37:768, sets out in great detail "causes for nonissuance, suspension, revocation, or imposition of restrictions of a dental license".
The reciprocal nature of the interest defined by R.S. 37:768 adds a distinctive twist to Dr. Neuwirth's claim of entitlement. It presents an opportunity to verify objectively the plain meaning of R.S. 37:768 and 37:776. If, on the strength of Louisiana's licensing laws, Illinois and other states have been granting reciprocal licenses to dentists from Louisiana, this would confirm that Dr. Neuwirth's expectations are a widely-shared and reasonable basis for reliance. The Supreme Court made clear in Roth that reliance is an important indicator of constitutionally-protected property.
Unfortunately, the record does not reveal whether other states honored Louisiana's offer of reciprocal licenses. The question, however, merits serious inquiry by the trial court. If the Louisiana legislature intended to offer a deal to other states and their dentists, and if that offer was accepted, what is at stake in this case is more than a "mere unilateral expectation" or "an abstract need or desire". It is much more than an "interest in practicing dentistry in Louisiana without passing an examination."
If Dr. Neuwirth has a legitimate claim of entitlement to a reciprocal license, there can be no doubt that he did not receive due process in his appearances before the Board. Due process entitles Dr. Neuwirth to an individualized decision on his application for a reciprocal license. As the Second Circuit said in Tomanio v. Board of Regents:
In this case, the Board's policy never to grant reciprocal licenses rendered any hearing Dr. Neuwirth received a sham: the Board had determined to rule against him whatever his qualifications and regardless of the requirements of R.S. 37:768 and 37:776. A Board committed to denying all such applications for reciprocal licenses cannot be "an impartial fact-finder". A statement that the Board denies all such applications is not a legitimate "reason" for denial under R.S. 37:768 and 37:776. Thus, in no sense did Dr. Neuwirth receive a genuinely individualized decision on his application. He received three opportunities to waste his time in futile efforts to convince the Board not to nullify R.S. 37:768. That is not due process.
But for Dr. Neuwirth's pleading error, this case states a due process violation and falls squarely within the parameters of Ex parte Young. As the Court in Papasan described it,
Dr. Neuwirth's contentions, undisputed by the Board, meet both of these requirements. First, they state an ongoing denial of federal due process. According to an announced policy, the Board not only denied Dr. Neuwirth a reciprocal license, but plans to deny all such applications. Second, this ongoing wrong would be ended directly by an order to the members of the Board to (1) determine whether Dr. Neuwirth — or any other applicant for a reciprocal license before R.S. 37:768 was repealed — meets the requirements of R.S. 37:768 and 37:776 and (2) if so, to issue the requested license.
Had Dr. Neuwirth joined the appropriate defendants, this court should have vacated the district court's summary judgment and remanded the cause for a trial on whether Dr. Neuwirth's expectation of a license rises to a legitimate claim of entitlement. As
478 U.S. at 278, 106 S.Ct. at 2940, 92 L.Ed.2d at 227 (emphasis added). See also Wright, Miller, and Cooper, Federal Practice and Procedure § 3524 at 196-96 & n. 141 (1984 & Supp.1987).
In Pennhurst, two considerations relevant to a definition of "property" or "liberty" underlie the Court's holding that the eleventh amendment barred relief for the undisputed failure by the state administrators in charge of the Penhurst State School and Hospital to provide the school's residents "minimally adequate habilitation". 465 U.S. at 93, 104 S.Ct. at 904. First, the Pennsylvania Mental Health and Mental Retardation Act gave the administrators so much discretion that their actions — although later found to be in violation of the Act — could not be called "ultra vires". Id. at 101 & n. 11, 109-111, 104 S.Ct. at 909 & n. 11, 912-13. Second, the officials acted in a "good faith" belief that they complied with the Act. Id. at 107, 104 S.Ct. at 911. Both considerations speak indirectly to whether the plaintiffs had a "legitimate claim of entitlement" to the particular treatment they sought: both the Court, reviewing state law after the fact, and health care administrators, acting in good faith before the fact, found the claim open to dispute.
La.Rev.Stat.Ann. § 37:776(A) (West Supp.1987). That the Board "may" refuse to issue a license to an otherwise qualified applicant for any of these twenty-four reasons, implies that it may not refuse for any other reason.