Russell Kiser v. Lili Reitz

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 14a0209p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

RUSSELL KISER, ┐

Plaintiff-Appellant, │

│

│ No. 13-3956

v. │

>

│

LILI REITZ et al., │

Defendants-Appellees. │

┘

Appeal from the United States District Court

for the Southern District of Ohio at Columbus

No. 2:12-cv-00574 —Algenon L. Marbley, District Judge.

Argued: May 8, 2014

Decided and Filed: August 27, 2014

Before: MOORE and ROGERS, Circuit Judges; NIXON, District Judge.*

_________________

COUNSEL

ARGUED: Todd W. Newkirk, FRANK R. RECKER & ASSOCIATES, Columbus, Ohio, for

Appellant. Katherine J. Bockbrader, OFFICE OF THE OHIO ATTORNEY GENERAL,

Columbus, Ohio, for Appellees. ON BRIEF: Todd W. Newkirk, FRANK R. RECKER &

ASSOCIATES, Columbus, Ohio, for Appellant. Katherine J. Bockbrader, OFFICE OF THE

OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees.

*

The Honorable John T. Nixon, Senior United States District Judge for the Middle District of Tennessee,

sitting by designation.

1

No. 13-3956 Kiser v. Reitz et al. Page 2

_________________

OPINION

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KAREN NELSON MOORE, Circuit Judge. Dr. Russell Kiser is trained as a general

dentist and as an endodontist specializing in root canal procedures. The Ohio State Dental Board

(the “Board”), of which the Defendants are members, promulgated regulations that restrict his

ability to advertise as a specialist in endodontics while also practicing as a general dentist. Kiser

asserts that the regulations are unconstitutional because they chill his exercise of his First

Amendment commercial speech rights. On this appeal, we must determine whether Kiser has

adequately demonstrated that he has standing to bring his claim under the Supreme Court’s

recent opinion in Susan B. Anthony List v. Driehaus, No. 13-193, 2014 WL 2675871 (U.S. June

16, 2014). Because Kiser has alleged facts demonstrating that he faces a credible threat that the

Board’s advertising regulations will be enforced against him in the future, we conclude that

he has standing to assert his pre-enforcement challenge to the regulations. Accordingly, we

REVERSE the district court’s dismissal of Kiser’s complaint for lack of subject-matter

jurisdiction and REMAND for further proceedings.

I. BACKGROUND

Dr. Russell Kiser is a licensed dentist practicing in Mansfield, Ohio. R. 2 (Compl. ¶ 19)

(Page ID #9). He is thus subject to the regulation of the Ohio State Dental Board, which is

authorized by statute to regulate the dental profession in Ohio by promulgating rules,

investigating violations of the rules, and administering discipline. Ohio Rev. Code §§ 4715.02

and 4715.03. One regulation promulgated by the Board relates to dentists’ advertising: it

provides that if a dentist chooses to advertise as a “specialist” in a recognized field, he may not

practice or advertise services outside the scope of that specialty. Ohio Admin. Code §§ 4715-5-

04, 4715-13-05. Kiser completed an accredited post-doctoral program in endodontics and he is a

Diplomate of the American Board of Endodontics. He accordingly may be recognized as a

“specialist” in endodontics pursuant to Ohio Administrative Code § 4715-5-04(B)(3) and (4). R.

2 (Compl. ¶ 20) (Page ID #10).

No. 13-3956 Kiser v. Reitz et al. Page 3

Kiser opted to advertise himself as a specialist in endodontics, but he also continued to

perform general dentistry services. On August 17, 2009, the Board issued a written warning to

Kiser for practicing “outside the scope” of his declared specialty in endodontics, in violation of

Ohio Administrative Code § 4715-5-04(B)(2). Id. ¶ 22 (Page ID #10–11); R. 8-1 (Warning Ltr.)

(Page ID #88–89). In relevant part, the letter stated as follows:

The Ohio State Dental Board (Board) recently concluded an investigation

regarding the treatment rendered by you to a particular patient. Based on

information received during the course of the investigation, and information that

the Board had received previous thereto, concerns have arisen regarding the scope

of your practice as an endodontist.

...

[A]s a specialist, one can only advertise services associated with the

specialty declared.

...

You have limited your license to the specialty of endodontics. Although you

are qualified to perform procedures outside the scope of endodontics, you are

NOT permitted to perform procedures that are not part of the specialty training of

an ADA [American Dental Association] accredited program in endodontics.

Therefore, if you wish to continue to declare yourself as a specialist in

endodontics, you must advertise accordingly, and limit your practice per the

ADA’s definition. If you would prefer to practice in areas outside the scope of

endodontics, you may do so by no longer holding yourself out as a specialist in

endodontics. You can be a general dentist, and then advertise and perform

specialty services you are qualified to perform, so long as you also state you are a

general dentist.

R. 8-1 (Warning Ltr.) (Page ID #88–89). The Board did not take any further action at that time.

In May 2012, Kiser requested that the Board approve proposed signage for his office,

which included the terms “endodontist” and “general dentist.” R. 2 (Compl. ¶ 23) (Page ID #11).

The Board neither approved nor rejected Kiser’s proposed signage. Instead, on May 24, 2012,

the Board sent Kiser a second letter recommending that he consult legal counsel. Id. Enclosed

with the letter were a copy of the regulations at issue and a copy of the first warning letter. Id.

Kiser filed a complaint in the United States District Court for the Southern District of

Ohio pursuant to 42 U.S.C. § 1983 alleging that the provisions of the Ohio Administrative Code

regulating dentists’ advertising unconstitutionally restrict his First Amendment rights by limiting

No. 13-3956 Kiser v. Reitz et al. Page 4

his truthful advertisement of the full range of services for which he is licensed.1 He sought

injunctive and declaratory relief. On the Board’s motion, the district court dismissed Kiser’s

complaint for lack of subject matter jurisdiction because “the Board has not yet enforced the

regulations at issue against Dr. Kiser, [and] his claim is not ripe for adjudication.” Kiser v. Reitz,

No. 2:12-cv-574, 2013 WL 4080734, at *3 (S.D. Ohio Aug. 13, 2013). The district court

explained that Kiser’s challenge to the regulations was not ripe because “[i]t is uncertain whether

the Dental Board will ever initiate any formal charges against Dr. Kiser, and if it does, there are

mechanisms in place at the administrative level for Dr. Kiser to challenge the Board’s

disciplinary action.” Id. at *4. Kiser timely appealed the district court’s dismissal of his

complaint.

II. STANDARD OF REVIEW

We review de novo a district court’s grant of a motion to dismiss for lack of subject

matter jurisdiction. McCormick v. Miami Univ., 693 F.3d 654, 658 (6th Cir. 2012). When

considering a challenge to a complaint based on lack of subject-matter jurisdiction, we “must

take the material allegations of the [complaint] as true and construe[] [them] in the light most

favorable to the nonmoving party.” United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). It

is the plaintiff’s burden, however, to prove that this court has jurisdiction over his claim, Rogers

v. Stratton Indus., Inc., 798 F.2d 913, 915 (6th Cir. 1986), and that the complaint contains

sufficient factual matter to state a claim for relief that is plausible on its face, see Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–57 (2007).

III. STANDING

The jurisdiction of federal courts is limited by Article III of the Constitution to “Cases”

and “Controversies.” U.S. Const. art. III, § 2. The standing doctrine delineates the boundary

between justiciable cases and controversies and those disputes that are not appropriately resolved

through judicial process. Although “the core component of standing is an essential and

unchanging part of the case-or-controversy requirement of Article III,” the Supreme Court has

1

Kiser made additional constitutional claims in his complaint, but he has not raised those issues on appeal.

Accordingly, we will not consider whether those claims are ripe for adjudication. Robinson v. Jones, 142 F.3d 905,

906 (6th Cir. 1998).

No. 13-3956 Kiser v. Reitz et al. Page 5

recognized that “some of [the standing doctrine’s] elements express merely prudential

considerations that are part of judicial self-government.” Lujan v. Defenders of Wildlife, 504

U.S. 555, 560 (1992). The ripeness doctrine is one of several justiciability doctrines “drawn both

from Article III limitations on judicial power and from prudential reasons for refusing to exercise

jurisdiction.” Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n.18 (1993). The “basic

rationale” of ripeness doctrine “is to prevent the courts, through avoidance of premature

adjudication, from entangling themselves in abstract disagreements . . . and also to protect . . .

from judicial interference until a[] . . . decision has been formalized and its effects felt in a

concrete way by the challenging parties.” Abbott Labs. v. Gardner, 387 U.S. 136, 148–49

(1967). In addition, “[a] claim is not ripe for adjudication if it rests upon contingent future

events that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States,

523 U.S. 296, 300 (1998) (internal quotation marks omitted).

Although the ripeness doctrine traditionally incorporates both constitutional and

prudential elements, the Supreme Court has recently suggested that prudential justiciability

doctrines are “in some tension with . . . the principle that a federal court’s obligation to hear and

decide cases within its jurisdiction is virtually unflagging.” Lexmark Int’l, Inc. v. Static Control

Components, Inc., 134 S. Ct. 1377, 1386 (2014) (internal quotation marks omitted). Thus, the

Supreme Court has cast into some doubt “the continuing vitality” of the long-established

prudential aspects of the ripeness doctrine, specifically the aspects that concern hardship to the

parties and fitness of the dispute for resolution. Susan B. Anthony List v. Driehaus, No. 13-193,

2014 WL 2675871, at *11 (U.S. June 16, 2014). Instead, the Court addressed the constitutional

component of ripeness in terms of standing. Id. at *5 n.5. Accordingly, we will address Kiser’s

claim, which was dismissed as unripe by the district court, using the constitutional standing

framework.2

2

The “prudential” ripeness factors—hardship to the parties and fitness of the record for review—are also

satisfied in the instant case. Kiser will suffer continuing injury every day that he is unable to engage in

constitutionally protected commercial speech. See Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The loss of First

Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”).

Moreover, we would not benefit from allowing the factual record to develop further because this case presents a

purely legal question. The regulations are not subject to refinement on a case-by-case basis: either a dentist’s

advertisement conforms to the regulations or it does not. Compare Abbott Labs., 387 U.S. at 152 (concluding that a

challenge to regulations relating to the labeling of pharmaceuticals did not need further factual development because

the regulations were “clear-cut” and not subject to further agency discretion or refinement), with Ohio Forestry

Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 735 (1998) (concluding that immediate judicial review would interfere

No. 13-3956 Kiser v. Reitz et al. Page 6

A plaintiff must demonstrate that he has standing to pursue his claim in federal court by

showing three elements: (1) that he has suffered an “injury in fact,” (2) that there is a “causal

connection between the injury and the conduct complained of,” and (3) that it is “likely, as

opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan,

504 U.S. at 560–61 (internal citations and quotation marks omitted). In a pre-enforcement

challenge, whether the plaintiff has standing to sue often turns upon whether he can demonstrate

an “injury in fact” before the state has actually commenced an enforcement proceeding against

him. “In the context of a free-speech overbreadth challenge like this one, [however,] a relaxed

ripeness standard applies to steer clear of the risk that the law ‘may cause others not before the

court to refrain from constitutionally protected speech or protection.’” Carey v. Wolnitzek,

614 F.3d 189, 196 (6th Cir. 2010) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973));

see also Laird v. Tatum, 408 U.S. 1, 11 (1972) (“[C]onstitutional violations may arise from the

deterrent, or ‘chilling,’ effect of governmental regulations that fall short of a direct prohibition

against the exercise of First Amendment rights.”).

A plaintiff suffers an “injury in fact” when his legally protected interest has been invaded

and the injury is both “concrete and particularized” and “actual or imminent, not ‘conjectural’ or

‘hypothetical.’” Lujan, 504 U.S. at 560 (citations omitted). Although most federal claims assert

allegations that the plaintiff has suffered a past injury, “[a]n allegation of future injury may

suffice if the threatened injury is certainly impending, or there is a substantial risk that the harm

will occur.” SBA List, 2014 WL 2675871, at *5 (internal quotation marks omitted). A plaintiff

satisfies this requirement when he alleges “an intention to engage in a course of conduct

arguably affected with a constitutional interest, but proscribed by a statute, and there exists a

credible threat of prosecution thereunder.” Babbitt v. United Farm Workers Nat’l Union,

442 U.S. 289, 298 (1979). When a plaintiff has engaged in a course of conduct and the state has

instructed him to stop or face disciplinary action, we may infer a threat of prosecution that is

neither “chimerical,” Steffel v. Thompson, 415 U.S. 452, 459 (1974) (internal quotation marks

omitted), nor “imaginary or wholly speculative,” Babbitt, 442 U.S. at 302. Under such

with administrative efforts to refine logging policies because the agency’s regulations called for administrative

approval of site-specific proposals). Accordingly, the prudential ripeness factors do not pose a barrier to judicial

review of Kiser’s claim.

No. 13-3956 Kiser v. Reitz et al. Page 7

circumstances, a plaintiff has adequately alleged a concrete and imminent harm sufficient to

meet the “injury in fact” requirement.

In the instant case, Kiser alleges that he has been harmed by the Board’s “unlawful[]

restrict[ion] [of his] First Amendment commercial free speech rights.” R. 2 (Compl. ¶ 34) (Page

ID #14). He asserts that the Board’s threatened enforcement of its regulations has “exert[ed] a

chilling effect on his attempt to advertise” because he “would . . . like to advertise that he

performs [general dentistry] services, but is prohibited from doing so by the [Board’s]

regulation[s].” Id. ¶¶ 23, 26 (Page ID #11–12). Because the Board has not yet enforced its

regulations in a disciplinary action against Kiser, he cannot demonstrate past injury. However,

Kiser has alleged a credible threat of future prosecution sufficient to demonstrate that he is

suffering an injury in fact.

First, Kiser has alleged “an intention to engage in a course of conduct arguably affected

with a constitutional interest.” Babbitt, 442 U.S. at 298. Kiser alleged that he has advertised

both general dentistry and endodontic services in the past and that he intends to do so in the

future. Although advertisements and other commercial speech enjoy less rigorous First

Amendment protection than other forms of expression, see United States v. Edge Broadcasting

Co., 509 U.S. 418, 426 (1993), commercial speech is nonetheless constitutionally protected so

long as it “concerns lawful activity and is not misleading,” Thompson v. W. States Med. Ctr.,

535 U.S. 357, 367 (2002). Therefore, Kiser’s intended advertisement of his general dentistry and

endodontic services—both of which he is licensed and qualified to perform—implicates a

constitutional interest. See Elrod v. Burns, 427 U.S. 347, 373 (1976) (concluding that First

Amendment freedoms are affected when speech is “either threatened or in fact being impaired at

the time relief [is] sought”).

Second, Kiser’s intended conduct is “arguably . . . proscribed by” the regulations issued

by the Board. Babbitt, 442 U.S. at 298. The Board’s regulations provide that a dentist may

practice and advertise either as a generalist or as a specialist; however, if the dentist chooses to

“seek[] specialty recognition,” his practice and advertising “must be limited exclusively to the

indicated specialty area(s).” Ohio Admin. Code § 4715-5-04(B)(2). Kiser wishes to advertise

himself as a specialist in endodontics while also advertising and performing general dentistry

No. 13-3956 Kiser v. Reitz et al. Page 8

procedures. This is the same speech that the Board has in the past warned Kiser that it considers

a violation, “[a]nd, there is [thus] every reason to think that similar speech in the future will

result in similar proceedings.” SBA List, 2014 WL 2675871, at *9. Accordingly, Kiser’s

intended conduct arguably violates the Board’s regulations.

Finally, Kiser has alleged that a credible threat of prosecution under the regulations

exists. A plaintiff asserting standing to challenge a law before it has been enforced against him

must show a “credible fear” that the state or its agents will in fact enforce the law in his case.

Norton v. Ashcroft, 298 F.3d 547, 554 (6th Cir. 2002). A threat of future enforcement may be

“credible” when the same conduct has drawn enforcement actions or threats of enforcement in

the past. See Steffel, 415 U.S. at 459. Such a threat is considered especially substantial when the

administrative agency “ha[s] not disavowed enforcement if [the plaintiffs] make similar

statements in the future.” SBA List, 2014 WL 2675871, at *10; see also Holder v. Humanitarian

Law Project, 561 U.S. 1, 16 (2010). Moreover, the threat need not stem from a criminal action:

“[A]dministrative action, like arrest or prosecution, may give rise to harm sufficient to justify

pre-enforcement review.” SBA List, 2014 WL 2675871, at *10 (noting that the threat of

administrative proceedings was “a substantial one” but declining to “decide whether that threat

standing alone gives rise to an Article III injury”); see also Ohio Civil Rights Comm’n v. Dayton

Christian Schs., Inc., 477 U.S. 619, 625–26 n.1 (1986) (“If a reasonable threat of prosecution

creates a ripe controversy, we fail to see how the actual filing of the administrative action

threatening sanctions in this case does not.”).

Here, Kiser has alleged that the Board has in the past threatened to enforce the

regulations against him when he advertised or practiced general dentistry services in addition to

endodontic specialty services. On one occasion, the Board sent a letter to Kiser explaining that it

had investigated his practice and determined that his advertising or services were “outside the

scope” of his specialty, and thus in violation of the regulations. R. 2 (Compl. ¶¶ 22–23) (Page

ID #10–11); R. 8-1 (Warning Ltr.) (Page ID #88–89). On a second occasion, after Kiser sought

approval of proposed signage for his office, the Board reiterated its warning that Kiser was

advertising beyond the scope of his specialty, and recommended that Kiser seek the advice of

counsel. R. 2 (Compl. ¶ 23) (Page ID #11). Although these letters did not commence an official

No. 13-3956 Kiser v. Reitz et al. Page 9

enforcement action, they may fairly be read to threaten implicitly enforcement of the regulations

if Kiser persisted in practicing or advertising outside the scope of his specialty. Moreover, the

Board has not represented that it will decline to enforce the regulations against Kiser should he

continue to advertise as both an endodontist and a general dentist. Thus, the Board’s warning

regarding Kiser’s past advertisements and its response to the signage that he wishes to display in

the future together constitute a credible threat that Kiser will be subject to an enforcement action.

Furthermore, the injury Kiser would suffer from an enforcement action is not

insubstantial merely because it is not accompanied by a threat of criminal sanctions. An

administrative action carries significant consequences for Kiser: the Board is empowered to

suspend or revoke Kiser’s license to practice dentistry in the State of Ohio, see Ohio Rev. Code

§ 4715.03(B)(1), and thus Kiser faces a threat to his livelihood should he persist in flouting the

Board’s regulations. The potential administrative sanctions are therefore serious enough on their

own, absent any potential criminal penalties, to create a constitutional injury in fact.

We conclude that Kiser has alleged facts demonstrating that he has suffered an injury in

fact because he faces a credible threat that the regulations will be enforced against him in

violation of his First Amendment right to engage in commercial speech. He has also alleged a

causal connection between his injury and the allegedly unconstitutional regulations—it is the

threatened enforcement of the regulations that chills his truthful advertisement of his services.

Finally, Kiser has alleged that it is likely that his “injury will be redressed by a favorable

decision.” Lujan, 504 U.S. at 561 (internal quotation marks omitted). If warranted, the court

may issue a declaratory judgment that the regulations are unconstitutional or it may enjoin

enforcement of the regulations against Kiser. Accordingly, Kiser’s claim is ripe for adjudication,

and he has standing to assert his claim in federal court.

IV. CONCLUSION

For the foregoing reasons, we REVERSE the district court’s dismissal of Kiser’s

complaint and REMAND for further proceedings consistent with this opinion.