Opposition Brief — Le Bup Thi Dao v. Board of Medical Quality Assurance of California

OF THE

JOSEPH F. SPANIOL, JR.

CLERK

United States

J OCTOBER TERM, 1990

Le Bup Tu! Dao, et al.,

Petitioners,

VS.

BOARD OF MEDICAL QUALITY ASSURANCE

OF THE STATE OF CALIFORNIA, et al.,

Respondents.

On Petition for a Writ of Certiorari to the Court of Appeal of

the State of California, First Appellate District

.

>

7

BRIEF FOR THE

BOARD OF MEDICAL QUALITY ASSURANCE, et al.

IN OPPOSITION

JOHN K. VAN De Kamp,

Attorney General of the

State of California

PAUL V. BISHOP

Deputy Attorney General

4 (Counsel of Record)

VIVIEN HARA HERSH

SUSAN K. MEADOWS

Deputy Attorneys General -

DEPARTMENT OF JUSTICE

STATE OF CALIFORNIA

OFFICE OF THE ATTORNEY

GENERAL

1515 “K” Street, Suite 511

Sacramento, CA 94244-2550

Telephone: (916) 324-5337

Counsel for Respondents

September 14, 1990

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ee eee eS eee

TABLE OF CONTENTS

EO EE Pere re ere ee ner Pere

wr as in tk a haa cad ola 654 awe ek

AEE Se ETT CTT CETTE

a nar A i inn <A a ae ena

ans

Since the state Court of Appeal, in its unpublished opinion,

properly interpreted and applied this Court’s holding in

Jett v. Dallas Indep. Sch. Dist., 109 S.Ct. 2702 (U.S., June

22, 1989), certiorari should not be granted on that issue

A.

B.

CG.

4

Jett does not create a cause of action at law for

violations of section 1981.................00000.

Cases prior to Jett and after Atascadero made it clear

that no damages remedy exists under section 1981

Plaintiffs are not entitled to a Bivens type action ...

The holding in Jett is not limited to municipalities —

Plaintiffs are also not entitled to relief because their

action under section 1981 is not based upon the

making and enforcement of contracts.............

II

The Court of Appeal correctly applied the holding in Will v.

Michigan Dept. of State Police, 109 S.Ct. 2304 (U.S. June

te. OP OY 6 ee

A.

The Court of Appeal did not reach the issue of

qualified immunity because it found no liability ... .

No qualified immunity analysis is warranted because

plaintiffs presented no evidence to raise a triable issue

of fact as to defendants’ violation of their federal

RITE Tr Teer

6

ae i es ok ena ea

1]

12

13

14

15

16

17

17

20

23

ii

TABLE OF AUTHORITIES

Cases

Anderson v. Creighton, 483 U.S. 635 (1987) ............ 20

Atascadero State Hospital v. Scanlon 473 U.S. 234 (1985)

Bivens v. Six Unknown Named Agents of the Federal

Bureau of Narcotics, 403 U.S. 388 (1971) ........... 14,15

BV Engineering v. U.C.L.A., 858 F.2d 1394 (9th Cir. 1988). 14

Courtney v. Canyon Television Appliance Rental, 899 F.2d

OOS, DOP Gi Ge, CU 5 06 K5660 sdb scccceeenas cuss 16

Delimuth v. Muth, 109 S.Ct. 2397 (1989) ............. 13,14

Foulks v. Ohio Department of Rehabilitation and Correction,

FED Fae Tr Gee ee I wks heh hooks dcanannecsc. 18

Freeman v. Michigan Dept. of State, 808 F.2d 1174 (6th

GU, GUD Wc COGNa eR Seta aNe aes cnvetcs 14

Georgia v. Rachel, 384 U.S. 780 (1966) ................ 16

Harlow v. Fitzgerald, 457 U.S. 800 (1982)............. 18, 20

Jack v. Wood 258 Cal.App.2d 639 1968 ................ 18

Jackson v. Hayakawa, 682 F.2d 1344, 1350 (9th Cir. 1982) 22

Jett v. Dallas Independent School District, 109 S.Ct. 2702

ee re en 11, 12, 13, 14, 15, 16, 17

Jones v. Alfred H. Mayer Co., 392 U.S. 409, 436 (1968) 16

Kolb v. State of Ohio Department of Mental Retardation

and Developmental Disabilities, 721 F.Supp.885 (N.D.

Rie, BOD os sive ccuscctcnngiscnandssaeuacnsnass: 19,20

Little v. City of Seattle, 863 F.2d 681 (9th Cir. 1988).... 18

Malone v. Schenk, 638 F.Supp. 423 (C.D. Ill, 1985) ..... 14

Mitchell v. L.A. Comm. College Dist. 861 F.2d 198 (9th

CO SOD oi on ski ca ds i ecanemeneccbessesnstiasa> 14

National Association for the Advancement of Colored Peo-

ple v. State of California, 511 F.Supp. 1244, 1250 (1981) 22

Overby v. Chevron USA, Inc., 884 F.2d 470 (9th Cir. 1989) 16

Patterson v. McLean Credit Union, 109 S.Ct. 2363 (1989) 16

Property Controllers, Inc. v. Shewfelt, 245 Cal.App.2d 755

CRU non 30h 3 Kc cake OGRE EU a Rate t Rea a kbauers cs 17

Pyne v. Meese, 172 Cal.App.3d 392 (1985) ............. 22

Ramon v. Moran, 201 Cal.App.3d 431 (1988) ........... 1]

iii

TABLE OF AUTHORITIES

CASES

Page

Reich v. Yow, 249 Cal.App.2d 12 (1967)............... 17

Scheuer v. Rhodes, 416 U.S. 232 (1973) ............... 18

Will v. Michigan Department of State Police, 109 S.Ct. 2304

Naa aia wean beh 44 6b a KN 00 6 14, 17, 19, 22

Williams v. National R.R. Passenger Corp., 716 F.Supp. 49

RN ee er nt gon a HD EOS bo oe x ks 16

Constitution, Statutes and Regulations

California Business and Professions Code:

oe Se Ie ee 6

Serer ee ee eras aie ns 4s oe aes 6

EG ET OO re 7

Nites carries ya adas kb Re +k wha 90 2xce 7

eta haa fad A Gad eo RAS we oo os 6,7

eR ae on vena owe ek Wek R ewe cea ed 6, 7

NE i PGCE sks cea eee eid dsave nea 11

California Code of Civil Procedure § 437c .............. 3,17

California Rules of Court Rule 977 .................... 11

Civil Rights Act of 1866—§ 1981...................... 11

Civil Rights Act of 1871—§ 1983...................... 1]

re 20

ON os oc eo reek whe sedeeparteavescucs 2

re 3, 11, 12, 13, 14, 15, 16, 17

ee 3, 11, 12, 14, 15, 18, 19, 22

Ga na rar ee a a 3

ee ey pela es a bb ks sawed sa aus see 3

9, Witkin, Cal. Procedure (3d ed.) Appeal, §625........ 2

Statutory Appendix

I

California Business and Professions Code:

§ 2005. Division of licensing; responsibilities. .......... la

$2080. Application of afticie ....................... la

§ 2081. Application blanks; verification ............... la

§ 2082. Contents and attached document ............. 2a

iv

TABLE OF AUTHORITIES -

STATUTORY APPENDIX

Page

See. - CO os ids an kab aneeauesas 2a

Fe ane 2a

§ 2085. Graduates from special medical school programs

of approved medical schools; failure to meet spec-

ified curriculum requirements; provisions for ap-

plicant approval; presumption.............. 3a-4a

§ 2086. Evaluation of curricula of medical schools; medi-

cal consultants and investigators .............. 4

§ 2087. Court action in event of disapproval or rejection of

IE ee ce eh eee ees ie sceaes ss caes Sa

§ 2088. Premedical educational requirements .......... Sa

§ 2089. Medical training requirements. .............. Sa-6a

§ 2089.5 Clinical instruction; adequacy ............... 7a-8a

§ 2122. Faculty-in-exile committee; University of Saigon,

Vietnam, medical school adniittees; licensure; du-

ee Es au sok eck bee weds 9a

II

California Code of Civil Procedure:

§ 437c. Grounds for and effect of summary judgment;

IE OE Ci cccscoctaadenwaa 10a-13a

Ill

Title 42 of the United States Code:

§ 1981. Equal rights under the law.................... l4a

§ 1983. Civil action for deprivation of rights............ l4a

§ 1985. Conspiracy to interfere with civil rights preventing

officer from performing duties................. l4a

§ 1986. Action for neglect to prevent............... 15a-16a

Appendice A—First Order Re: Defendants’ Motion for

Surnmary Judgment and Alternative

Motion for Summary Adjudication....... A-1

Order Re Summary Adjudication of Issues

Appendice B—Court of Appeal Opinion ................ B-1

Appendice C—Plaintiffs’ Response to Defendants’ State-

ment of Undisputed Facts .............. C-]

No. 90-303

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1990

LE Bup THI DAo, et al.,

Petitioners,

VS.

BOARD OF MEDICAL QUALITY ASSURANCE

OF THE STATE OF CALIFORNIA, et al.,

Respondents.

On Petition for a Writ of Certiorari to the Court of Appeal of

the State of California, First Appellate District

BRIEF FOR THE

BOARD OF MEDICAL QUALITY ASSURANCE, et al.

IN OPPOSITION

OPINIONS BELOW

The opinion of the Court of Appeal (Pet. App. I, 1-14) is not

reported. The opinion appended to petitioners’ brief at Petitioners’

Appendix II is not properly before this Court since it was

withdrawn and superseded by the opinion set forth in Petitioners’

Appendix I.' Since the Court of Appeal has issued a peremptory

writ of mandate to the Superior Court of the State of California,

' The Court of Appeal Opinion dated January 5, 1990, Pet. App. II,

was withdrawn by the Court of Appeal when it decided to reconsider the

matter. The only opinion of the Court of Appeal in effect in this matter

is the opinion filed February 26, 1990, Pet. App. I. Therefore, the

January 5, 1990 opinion being withdrawn, all matters therein are

2

County of San Francisco in its case no. AO46101 and has denied

the writ of mandate filed by petitioners in its case no. AO461 32,

the judgment of the Superior Court, although not directly subject

to judicial review by this Court, is arguably properly appended as

Petitioners’ Appendix III. However, the petitioners have failed to

append the entire judgment of the Superior Court, and so the

entirety of said judgment appears in this brief as Respondents’

Appendix A.

JURISDICTION

The judgment of the Court of Appeal was entered on February

26, 1990. The Supreme Court of the State of California denied

petitioners’ petition for hearing on May 17, 1990. The petition for

a writ of certiorari was filed on August 15, 1990. The jurisdiction

of this Court is invoked under 28 U.S.C. section 1257(a).

STATEMENT OF THE CASE

The action under review herein is a petition for writ of mandate

to the Court of Appeal of the State of California in its Case No.

AO46101. Defendants/respondents’ herein sought review of a

partial summary judgment order againsi defendants by the Supe-

rior Court of San Francisco County in Case No. 876321 entitled

Dao, et al. v. Board of Medical Quality Assurance, et al. The case

also concerns the denial of a petition for writ of mandate to the

Court of Appeal of the State of California in its Case No.

AO46132. Therein, plaintiffs/petitioners sought review of the

Superior Court’s partial summary judgment order against plain-

tiffs. A copy of the full order of the Superior Court appears as

Respondents’ Appendix A, and a copy of the opinion of the Court

of Appeal appears as Respondents’ Appendix B. The defendants

considered vacated and nullified with no force or effect. 9 Witkin, Cal.

Procedure (3d ed.), Appeal, section 625, pp. 606-607.

For clarity as to the parties involved, petitioners herein, Le Bup Thi

Dao, et al., will be referred to in this brief as “plaintiffs” and respondents

herein, Board of Medical Quality Assurance (as of January 1, 1990,

known as the Medical Board of California), et al. will be referred to as

“defendants.”

3

herein are individuals acting in their official capacities and state

agencies.

The First Amended Complaint of Course in this case was filed

on or about November 24, 1987.? The complaint alleged ten

causes of action requesting damages and injunctive and declara-

tory relief on behalf of all plaintiffs. Included in the causes of

action were federal actions for damages for violations of plaintiffs’

Federal Constitutional rights under 42 U.S.C. sections 1981,

1983, 1985 and 1986.* Defendai‘s timely filed their answer to the

complaint December 18, 1987. Aiter answer and discovery, a trial

date was set for March 20, 1989, but the matter was set over to

June 5, 1989.

On April 4, 1989, defendants filed a timely motion for summary

judgment or in the alternative summary adjudication of issues

with points and authorities and a statement of undisputed facts

under California Code of Civil Procedure section 437c (See Resp.

Stat. App.). That motion is the focus of the instant petition.

Plaintiffs’ opposition papers were filed on April 21, 1989 and April

28, 1989. Defendants filed their reply memorandum on May 5,

1989. Hearing was held before the Honorable Stuart Pollak on

May 8, 1989. On May 10, 1989, pursuant to the court’s concerns,

defendants filed a Supplemental Pleading Indexing Facts to

Issues and plaintiffs filed a Statement of Issues for Decision.

>There were no references in the complaint filed by plaintiffs to

individual conduct violative of plaintiffs’ civil rights. In fact, the conduct

complained of was the Medical Board’s denial of licensure due to

alleged racial animus. Licenses cannot be denied by any individual

member of the Division of Licensing; therefore, racial animus must be

shown to be the primary motivation for each member of the group who

voted against licensure. It should also be pointed out that in the

complaint, plaintiffs admit that pre-1975 graduates of the University of

Saigon Medical School were routinely licensed, and only some post-

1975 graduates, like themselves, had their licensure delayed. That very

acknowledgement demonstrates that those delays of licensure did not

have anything to do with racial animus.

* All statutes referred to herein, with the exception of any which are

set forth in full in the text of this brief, appear in Respondents’ Statutory

Appendix.

4

On May 11, 1989, 2 further hearing was held before the

Superior Court, and the matter was taken under submission after

the court requested that plaintiffs draft a partial order. On May

19, 1989, the order prepared by plaintiffs and the order re:

summary adjudication of issues were filed (Resp. App. A).

On May 26, 1989, Defendants filed a petition for writ of

mandate in Case No. AO46101 before the Court of Appeal of the

State of California, First Appellate District, seeking review of the

Superior Court order on various grounds. Said petition was

summarily denied on May 31, 1989. On June 2, 1989, defendants

filed a petition for review before the Supreme Court of California,

and the Supreme Court granted a stay of the trial date of June 5,

1989 pending review of the petition. Requests for judicial notice

of recent United States Supreme Court cases were subsequently

filed.

On June 2, 1989, plaintiffs filed a petition for writ of mandate

in Case No. AO046132 before the Court of Appeal of the State of

California, First Appellate District, and on June 2, 1989, said

petition was summarily denied.

On June 13, 1989 plaintiffs filed an answer to defendants’

petition for review to the Supreme Court and included therein a

request for review of the Court of Appeal’s summary denial of

their action also. On July 13, 1989, the Supreme Court of

California granted both petitions for review and remanded each

case to the Court of Appeal ordering issuance of alternative writs

in each case. Alternative writs were issued by the Court of Appeal

and served by August 4, 1989.

Oral arguments were held before the Court of Appeal on

December 11, 1989, and on or about January 5, 1990, the court

issued a proposed decision. On February 5, 1990, the Court of

Appeal granted rehearing on its own motion, denying petitions for

rehearing filed by both parties as moot.

On February 26, 1990, the Court of Appeal issued its opinion

granting defendants’ petition for writ of mandate and denying

plaintiffs’ petition for writ of mandate. This opinion appears in

Petitioners’ Appendix I and also appears herein as Respondents’

5

Appendix B. It is this opinion that is the subject of the instant

matter.

Plaintiffs did not challenge the findings of fact in the Court of

Appeal decision, but on or about April 6, 1990, plaintiffs filed a

petition for review before the California Supreme Court. On or

about April 30, 1990, defendants filed an answer to that petition

for review. On May 17, 1990, the Supreme Court of the State of

California issued its order denying plaintiffs’ petition for review.

On July 12, 1990, the Court of Appeal issued its peremptory

writ of mandate in Case No. AO46101 ordering the Superior

Court to vacate its previous order and enter a new order in

conformity with the opinion. The instant petition-for writ of

certiorari was filed before this Court by plaintiffs on August 15,

1990.

STATEMENT OF FACTS

Plaintiffs’ / Petitioners’ explication of the factual background for

this action is so completely skewed and unsupported by any

evidence in the record that defendants feel compelled to set forth

their own statement, which is based upon the record before both

the trial court and the Court of Appeal.

On or about April 30, 1975 the government in South Vietnam

was overthrown by the communist government of North Vietnam.

Prior to the capital, Saigon, being captured by the North

Vietnamese there was a school there known as the University of

Saigon Medical School. That school had a curriculum that was

accepted by some licensing agencies in the various states to be

equivalent to the curriculum used by medical schools in the

United States. Accordingly, people who demonstrated by official

documentation that they were graduates of that school and that

they had completed the course of study required by law were

eligible to take the required tests and to become licensed to

practice medicine in those states.

However, after South Vietnam was overthrown by the commu-

nists, it became difficult to obtain official documentation or other

reliable records frorm that country. Therefore, the American

ADAMI ENN AEE TEE ATARI TTELT LIE, ESR

6

Medical Association developed and sponsored a Faculty Counsel

In Exile (FCIE) which consisted of University of Saigon Medical

School faculty who had fled South Vietnam just prior to its

collapse. The purpose of this FCIE was to review all the available

evidence presented by refugees from Vietnam to determine

whether they had properly completed the required courses of

study at the University of Saigon Medical School prior to 1975. If

the FCIE found the applicant had completed the required course

of study, it would so certify and that certification was accepted by

some of the states’ licensing agencies as official documentation to

establish that such person was a graduate of the University of

Saigon Medical School.

The Board of Medical Quality Assurance (now Medical Board

of California), Division of Licensing, is the licensing agency

responsible for determining an applicant’s eligibility for licensure

as a physician and surgeon in California (Cal. Bus. & Prof. Code

§ 2005; See Resp. Stat. App.). In order to be eligible to be

licensed to practice medicine in California, an applicant must, by

law, provide official documents or other satisfactory evidence to

the Division of Licensing that he or she has either been graduated

from an approved medical school in the United States or Canada

or a foreign medical school that provided an equivalent medical

education (Bus. & Prof. Code §§ 2089 & 2089.5; See Resp. Stat.

App.). The applicant must also provide satisfactory evidence that

he or she has completed the statutorily required courses of study

in medicine and pass a written examination known as the Federal

Licensing Examination (FLEX). After passing that examination

an applicant must complete a period of post-graduate training. To

be eligible for such training in California, an applicant must have

a current letter from the Division of Licensing authorizing him or

her to participate in a residency program in California. Once the

postgraduate training is completed, an applicant who is otherwise

qualified must also take and pass an oral examination (Bus. &

Prof. Code § 2080 ff; See Resp. Stat. App.).

Commencing in 1976, the Division of Licensing accepted

certifications from the FCIE as official documentation that an

applicant had been graduated from the University of Saigon

Medical School. By 1984, approximately 400 applicants were

7

licensed to practice medicine in California based upon the FCIE

certifications. However, in late 1983 the staff of the Board of

Medical Quality Assurance and the Division of Licensing con-

ducted a review of the state’s licensing policy and questions were

raised concerning the validity of FCIE certifications. Further-

more, certifications not authorized previously by the FCIE were

being received. Therefore, in 1984, an investigation of FCIE was

begun. The initial investigation revealed that FCIE members did

not have sufficient evidence to support many of the certificatioris

it was providing for applicants.

During 1984 and 1985, the Division of Licensing was over-

whelmed by allegations of fraud perpetrated by various foreign

medical schools and alleged graduates of medical schools. There-

fore, because there were then no present applicants claiming to be

graduates of the University of Saigon Medical School who were

near eligibility for licensing, the investigation into the FCIE was

not pursued vigorously until the Board of Medical Quality Assur-

ance resources could be redirected.

Legislation specifying minimum educational requirements and

limiting the discretion of the Division of Licensing became

effective on January 1, 1986 (Bus. & Prof. Code §§ 2084, 2085,

2089 & 2089.5; See Resp. Stat. App.). At a regularly scheduled

meeting on January 30, 1986, staff advised the members of those

changes. The members of the Division of Licensing were also

formally advised of the staff's concerns about various United

States and foreign medical education programs. They were also

advised about staff concerns with the credentials presented by

applicants from Vietnamese schools and of the investigation of

FCIE which had begun in 1984. At that time, decisions were

made to disapprove several medical programs that did not comply

with the new law and to suspend any further processing of

applications from graduates of some medical programs under

investigation. That suspension included applications from persons

who claimed to be graduates of medical schools in Vietnam until

the FCIE investigation was completed.

In 1982, plaintiffs Dao, Le, and Nguyen passed the FLEX

examination and in 1984, plaintiff Tran passed it. However, none

of them had submitted the required documentation of their

8

medical education and training. After completing the necessary

postgraduate training, plaintiffs Dao and Nguyen took and passed

the required oral examination in January 1986. Before the previ-

ously mentioned January 1986 decision to suspend further

processing was communicated to the clerical staff of the Division

of Licensing, letters were mailed to plaintiffs Dao and Nguyen

advising them that they were eligible to be licensed. However,

they were subsequently advised in June 1986 that they would not

be licensed until they provided adequate evidence that they had

completed the undergraduate medical education required for

licensure in California.

In May 1986, after reviewing applications of several individuals

allegedly graduated from Vietnam medical schools, the Division

of Licensing formally decided to suspend the processing of appli-

cations from Vietnam medical schools pending completion of the

FCIE investigation. Thereafter, all applicants from Vietnamese

medical schools were advised by letter as to their stats. All of the

applicants were advised they must await completion of the FCIE

investigation if they were relying on it to certify their records.

Those claiming to have graduated after 1975 were advised that

they were required to substantiate their post-1975 education with

official documents or other acceptable evidence to prove they met

the minimum statutory requirements for licensure in California.

In June 1986, the FCIE investigation was completed. The

conclusion, based on that investigation, was that for persons

graduated from the University of Saigon Medical School prior to

1975, the FCIE was properly carrying out its duty to investigate

and certify only those persons who had attended and completed

the required studies in those schools prior to 1975. However, all of

the members of the FCIE had left Vietnam prior to the takeover

in 1975 and were not authorized to attest to anything that

happened thereafter.

Applicants alleging that they were graduates from medical

schools in Vietnam after 1975 were advised that to be eligible for

licensure in California they would be required to supply the

Division of Licensing with adequate official or verifiable docu-

mentation that would establish their claims. At that time, July

1986, only 32 of the pending 147 applicants from Vietnam

9

medical schools were persons who claimed to have been gradu-

ated after 1975. However, the staff of the Division of Licensing

tried to assist them to obtain the necessary information by

compiling evidence about the medical school after the govern-

ment collapsed in Saigon.

A proposal was made to the Division of Licensing to establish a

second FCIE composed of ex-faculty members who had taught at

the University of Saigon Medical School between 1975 and 1980.

Pursuant to that proposal, the second FCIE would certify both as

to the adequacy of the medical education at that school and,

based on documents, records, and personal knowledge, the com-

pletion of that education by the various applicants.

During August, September, and October of 1986, information

concerning the medical school and faculty members was obtained

by the staff of the Division of Licensing. Stephen Wilford, the

staff member responsible for analyzing that proposal, became ill

and died without completing that analysis. However, Marc

Grimm, the Program Manager, reviewed that proposal and rec-

ommended that it be rejected.

In November 1986, plaintiffs Dao and Nguyen requested both

a formal administrative hearing on their applications and recon-

sideration by the Division of Licensing’s Credentials Committee.

They were advised by staff that they had to make a choice of one

or the other. After conferring with counsel, they withdrew their

requests for a formal administrative hearing and sought reconsid-

eration by the Credentials Committee.

In December 1986, the Credentials Committee reviewed the

new applications of plaintiffs Dao and Nguyen and concluded that

they had again failed to provide satisfactory evidence to establish

the necessary undergraduate medical education to qualify for

licensure. As it had done previously in August 1986, the Division

of Licensing notified the applicants of their decision. In the notice

to plaintiff Dao, the Division further suggested a way in which she

might satisfy the requirements and complete her medical educa-

tion. That suggestion was rejected by plaintiff Dao, who then

requested a formal administrative hearing as well as further

10

reconsideration by the Credentials Committee. In June 1987, her

application was again rejected.

In January 1987, plaintiff Tran applied for an updated letter for

residency so he could become eligible for ranking for a residency

program in California. That application was rejected in April 1987

because before an applicant can obtain such a letter, he must

provide adequate evidence that he had completed the undergrad-

uate medical education necessary for licensure in California.

In April 1987, plaintiff Le’s application to take the required

oral examination was rejected because he failed to provide ade-

quate evidence that he had completed the undergraduate medical

education necessary for licensure in California.

In May of 1987, staff members from the Division of Licensing

together with a representative from the Attorney General’s Office

interviewed several ex-faculty members from the University of

Saigon Medical School who had for a while remained in Saigon

after the government there had collapsed. Some of those ex-

faculty members had prepared declarations and certifications

concerning the curriculum of the medical school and the comple-

tion of that curriculum by various applicants. However, when

interviewed, they told conflicting stories and admitted certifying

as to the accuracy of some applicants’ alleged medical education

even though they had no personal knowledge thereof.

When the Division of Licensing received the report of the staff

concerning those interviews with the ex-faculty members, it

reaffirmed its decision to refuse to accept credit for the medical

education allegedly received at the University of Saigon Medical

School after 1975 unless the applicant could establish evidence,

satisfactory to the Division of Licensing, that they had in fact

obtained such training and had satisfied the requirements of

California law.

In September of 1987, legislation was enacted which required

the Division of Licensing to appoint a Faculty-in-Exile Commit-

tee (similar to the FCIE) to establish what the curriculum was at

the University of Saigon Medical School after 1975, and to review

the files of applicants who claimed to have been admitted to the

University of Saigon Medical School before 1975 and graduated

1]

during the years 1975 to 1980. After that review, the committee

was empowered to make recommendations concerning licensing

to the Division of Licensing. That legislation, codified as Business

and Professions Code section 2122, now requires the Division of

Licensing to accept the recommendation of that committee and

license those individuals unless it finds that the committee’s

recommendation is not based upon substantial evidence (Bus. &

Prof. Code § 2122; See Resp. Stat. App.). Accordingly, the

Division has accepted those recommendations and licensed those

applicants, including the individual plaintiffs in this case.

ARGUMENT

I

SINCE THE STATE COURT OF APPEAL, IN ITS UNPUB-

LISHED OPINION,’ PROPERLY INTERPRETED AND

APPLIED THIS COURT’S HOLDING IN JETT v. DALLAS

INDEP. SCH. DIST., 109 S.Ct. 2702 (U.S., June 22, 1989),

CERTIORARI SHOULD NOT BE GRANTED ON THAT

ISSUE

The issue in Jett v. Dallas Independent School District, 109

S.Ct. 2702 (U.S., June 22, 1989) was whether a municipality

may be held vicariously liable for its employee’s violations of 42

U.S.C. section 1981 on the theory of respondeat superior. In order

to reach the analysis of this problem, this Court examined the

interrelation between section 1981, which was initially part of the

Civil Rights Act of 1866 and 42 U.S.C. section 1983 of the Civil

Rights Act of 1871, which provided for actions at law against

state actors for constitutional violations where the violations were

committed under color of state law.

> We should be reminded that as an opinion not certified for publica-

tion by the Court of Appeal, the opinion itself has no precedential value.

California Rules of Court, Rule 977 states, in pertinent part: “(a) An

opinion that is not ordered published shall not be cited or relied upon by

a court or a party in any other action or proceeding... .” See also,

Ramon v. Moran, 201 Cal.App.3d 431, 437, fn. 4; 247 Cal. Rptr. 117,

119, fn. 4 (Ct. App. CA, 1988).

12

Jett's holding with respect to governmental entities was that

since section 1983 provides the exclusive remedy at law against

state actors for violations of section 1981, respondeat superior

liability is not available under section 1981 because it is not

available under section 1983. Jd. at 2723-2724. This Court neces-

sarily analyzed the statutory history of both sections and their

interrelation to reach its conclusion. In the course of its analysis,

the Court announced its holding as to section 1983 being the

exclusive damage remedy against state actors for section 1981

violations, since 1983 specifically provides for an action at law and

because it encompasses the rights set forth in 1981. Jd. at 2722.

A. Jett Does Not Create a Cause of Action at Law for

Violations of Section 1981

Plaintiffs have sought to confuse this issue by giving their own

“spin” to the opinion in Jett. Plaintiffs have inappropriately

attempted to characterize that case as implying a right of action

in damages for plaintiffs under 42 U.S.C. section 1981 against

state actors such as the individual defendants herein, by quoting

Justice O’Connor’s opinion out of context.

In the context of the quotation from Jett on page 15 of

petitioner’s brief, concerning the application of section 1981 to

private actors, this Court was referring only to actions for racial

discrimination against private individuals who were, in fact, not

acting “under color of state law” within the terms of section 1983.

Id., at 2720. Because section 1983 does not provide a damages

remedy under those circumstances, a remedy was implied under

section 1981. The Court goes on to say, at p. 2720:

“That is manifestly not the case here [in an action against a

governmental entity] and whatever the limits of judicial

power to imply or create remedies, it has long been the law

that such power should not be exercised in the face of an

express declaration by Congress concerning the scope of

remedies available under a particular statute. {Citations

Omitted ]”

Plaintiffs’ action against defendants is most assuredly an action

against state actors. The individually named defendants herein

13

were acting as members of the Board of Medical Quality Assur-

ance at the time that plaintiffs’ licensure were delayed. Under the

facts of this case, there is no way that they can be characterized as

individuals acting in their private capacities who did not act under

color of state law.®

B. Cases Prior to Jett and After Atascadero Made it Clear

that No Damages Remedy Exists Under Section 1981

Petitioners contend that the Court of Appeal committed error

by expanding the holding in Jett v. Dallas Independent School

District, supra, at 2722 to preclude a cause of action for damages

against a state or its agencies under 42 U.S.C. section 1981. That

contention is a fortiori without merit because after this Court’s

announcement of a stringent rule of construction as to Congres-

sional intent to abrogate sovereign immunity in Atascadero State

Hospital v. Scanlon, 473 U.S. 234, 242 (1985), courts have

uniformly found that section 1981 does not create a cause of

action against states or state entities. In Dellmuth v. Muth, 109

S.Ct. 2397, 2401 (U.S., June 15, 1989) this Court definitively

reaffirmed the federal rule of construction announced in

Atascadero:

“Our opinion in Atascadero should have left no doubt that

we will conclude Congress intended to abrogate sovereign

immunity only if its intention is ‘unmistakeably clear in the

language of the statute,’ Atascadero, supra at 242. Lest

Atascadero be thought to contain any ambiguity, we reaffirm

today that in this area of the law, evidence of congressional

intent must be both unequivocal and textual.” (emphasis

added)

* Appearing as Respondents’ Appendix C is a true and correct copy of

plaintiffs’ reply to defendants’ Statement of Undisputed Facts, Fact No.

24, wherein plaintiffs admit not only that the individual respondents are

state officials acting under color of state law, but also that they were at

all times material to this matter, acting in their official capacities. This

document was part of the record before the Court of Appeal and before

the trial court.

14

In the case of Freeman v. Michigan Dept. of State, 808 F.2d

1174 (6th Cir. 1987), the Sixth Circuit Court of Appeals applied

that rule of construction in interpreting section 1981. After a

careful analysis of the law, the court specifically held that section

1981 did mot create a cause of action against state entities. A

federal district court in Malone v. Schenk, 638 F.Supp. 423, 429

(C.D. Ill. 1985), had previously applied the rule and reached the

same conclusion. Also see BV Engineering v. U.C.L.A., 858 F.2d.

1394 (9th Cir. 1988) and Mitchell v. LA. Comm. College Dist.,

861 F.2d. 198 (9th Cir. 1988).

Plaintiffs apparently contend in their petition that this Court,

by its statements in Jett concerning the fashioning of a remedy

under section 1981 against private actors, somehow reversed the

holdings in Atascadero and Dellmuth. This is patently absurd. Jett

itself did not deal with sovereign immunity; it only concerned

whether an action at law was available under section 1981. The

law with respect to section 1981 and sovereign immunity has been

settled since Atascadero because it is obvious that Congress

expressed no unequivocal intention to abrogate sovereign immu-

nity in section 1981, or in section 1983. (See Will v. Mich. Dept.

of State Police, 109 S.Ct. 2304, 2312 (U.S., June 15, 1989)).

C. Plaintiffs are Not Entitled to a Bivens Type Action

Plaintiffs also apparently imply by their quotation at page 15 of

their brief that since sovereign immunity bars an action against a

state or state officials acting in their official capacities by reason of

Will v. Michigan Department of State Police, 199 S.Ct. 2304

(U.S., June 15, 1989) (See discussion, infra) and because Jett

precludes a remedy under section 1981, this Court should imply a

remedy under the Fourteenth Amendment itself. Bivens v. Six

Unknown Named Agents of the Federal Bureau of Narcotics, 403

U.S. 388 (1971). We must first be mindful that Bivens implied a

right of action against Federal actors, and so sovereign immunity

was not even an issue.

If indeed, this is what plaintiffs imply, they are mixing two

mutually exclusive concepts. The whole purpose of sovereign

immunity would be defeated if such an action were implied.

Plaintiffs are asking this Court to find a way to circumvent the

15

sovereign immunity of the various states by implying a civil

damages action against the state and state officials acting in their

official capacities under the Fourteenth Amendment.

Defendants point out that in Jett, this Court flatly rejected a

similar invitation to judicially upset the federal balance of power.

In response to the petitioner's request for a Bivens-type action

implied directly from the Fourteenth Amendment, this Court

responded: .

“We can find no good logic nor sound legal basis for this

view; accord {citations omitted]. Given our repeated recog-

nition that the Fourteenth Amendment was intended in large

part to embody and expand the protections of the 1866 Act

as against state actors, we believe that the logic of these

decisions applies with equal force to peiitioner’s invitation to

this Court to create a damages remedy broader than section

1983 from the declaration of rights now found in section

1981.” Jett v. Dallas Indep. Sch. Dist., supra, at 2722.

D. The Holding in Jett is Not Limited to Municipalities

Finally, plaintiffs’ attempt to characterize the Jett case as

limited solely to actions brought under section 1981 against local

government entities is without merit. The case itself concerns the

creation of sections 1981 and 1983 and the interaction of the two

Statutes; the analysis concerns whether Congress intended to

create a right to a damages action under section 1981 as to state

actors, not just against local government entities. The holding is

not limited to local government entities, but states very clearly:

“We hold that the express ‘action at law’ provided by section

1983 for the ‘deprivation of any rights, privileges, or immuni-

ties secured by the Constitution and laws,’ provides the

exclusive federal damages remedy for the violation of the

rights guaranteed by section 1981 when the claim is pressed

against a state actor.” (emphasis added). Jett v. Dallas

Indep. Schooi Dist., supra, at 2722.

The phrase “pressed against a state actor” is obviously meant to

distinguish the situation in which the acts proscribed under

16

section 1981 were undertaken by a private individual not acting

under color of state law.

Therefore, certiorari should not be granted based upon the

Court of Appeal’s claimed erroneous interpretation of the holding

in Jett v. Dallas Independent School District, supra, at 2722 with

respect to a damages remedy under section 1981 because the

court below in fact correctly stated and applied the holding in that

case.

E. Plaintiffs are Also Not Entitled to Relief Because Their

Action Under Section 1981 is Not Based Upon the

Making and Enforcement of Contracts

In Patterson v. McLean Credit Union, 109 S.Ct. 2363, 2372

(U.S. June 15, 1989) this Court held: “The most obvious feature

of the provisions [of 42 U.S.C. section 1981] is the restriction of

its scope to forbidding discrimination in the ‘mak[{ing] and

enforce[ment]’ of contracts alone. Where an alleged act of

discrimination does not involve the impairment of one of these

specific rights, section 1981 provides no relief.” Patterson has

been extensively followed by other courts. Courtney v. Canyon

Television Appliance Rental, 899 F.2d 845, 849 (9th Cir. 1990);

Overby v. Chevron USA, Inc., 884 F.2d. 470, 472 (9th Cir. 1989);

Williams v. National R.R. Passenger Corp., 716 F.Supp. 49, 50-

52 (D.D.C. 1989). In fact, as the case itself indicates, this reading

of section 1981 predated Patterson. Jones v. Alfred H. Mayer Co.,

392 U.S. 409, 436 (1968); Georgia v. Rachel, 384 U.S. 780, 791

(1966).

In light of this Court’s determination in Patterson, it is clear

under the facts of this case that plaintiffs would have no cause of

action under 42 U.S.C. section 1981, whether or not a damages

remedy could be implied under that section. The application to a

medical board for a license to practice medicine involves no

contractual obligation on the part of any party. There is simply no

contractual basis for the damages action that plaintiffs brought

against defendants under section 1981.

The Patterson holding was briefed before the Court of Appeal,

but that court did not reach Patterson because of this Court's

holding as to a damages remedy under section 1981 in Jett v.

17

Dallas Independent School District, supra, at 2722. Thus, even

assuming, arguendo, that the Court of Appeal was in error in its

unpublished opinion concerning Jett, plaintiffs would still have no

remedy under section 1981.

THE COURT OF APPEAL CORRECTLY APPLIED THE

HOLDING IN WILL ». MICHIGAN DEPT. OF STATE

POLICE, 109 S.Ct. 2304 (U.S. June 15, 1989) TO THE

FACTS OF THIS CASE

Plaintiffs’ arguments that certiorari should be granted to clarify

the applicability of the qualified immunity doctrine to defendants

sued in their individual capacities are without merit because

under the facts of this case, the issue of qualified immunity is not

properly before this Court. Furthermore, it is unnecessary to grant

certiorari to review the doctrine of qualified immunity in this case

because that issue was mever reached by the Court of Appeal

below.

A. The Court of Appeal Did Not Reach the Issue of

Qualified Immunity Because It Found No Liability

As previously set forth above, the undisputed evidence before

the court below was that the individually named defendants were

at all times material to this matter acting solely in their official

capacities. If plaintiffs disagreed with defendants’ Statement of

Undisputed Facts, Fact No. 24 (See Resp. App. C), then it was

incumbent upon them to dispute this fact at the trial court level

under California Code of Civil Procedure section 437c (b) (See

Resp. Stat. App.), which governs the procedures for summary

judgment motions.’ Instead, plaintiffs agreed with defendants’

’“The purpose served by the summary judgment procedure is to

expedite litigation by avoiding neediess trials . . . It permits the court to

pierce the allegations of the pleadings to ascertain whether a genuine

cause of action in fact exists or whether the complaint is sham or

feigned.” (emphasis added). Property Controllers, Inc. v. Shewfelt, 245

Cal.App.2d 755, 761; 54 Cal. Rptr. 218, 221 (Ct. App. CA, 1966);

Reich v. Yow, 249 Cal.App.2d 12, 14; 57 Cal. Rptr. 117, 119 (Ct. App.

18

Statement that all of the alleged conduct complained of was

official conduct and never provided the superior court or the

Court of Appeal with any evidence to indicate otherwise. There-

fore, the Court of Appeal found that there was “considerable,

uncontradicted evidence that an undisputed material fact was that

the ‘individual defendants ... were at all times material to this

matter state officials acting in their official capacities under color

of State Law.’” (Resp. App. B, at 8).

Plaintiffs contend that the use of a simple pleading device

alleging that individual defendants are sued in their individual as

well as their official capacities defeats a finding on summary

judgment that the individual defendants were at all times acting

in their official capacities. They contend that in spite of a finding

that no federal tort occurred, these officials are still “persons” for

purposes of suit under section 1983 simply because they were also

sued in their individual capacities.

It has been held that acts which violate another’s constitutional

rights cannot be found to be official acts. On the other hand,

official conduct that does not violate federal law is official action.

Harlow v. Fitzgerald, 457 U.S. 800 (1982); Scheuer v. Rhodes,

416 U.S. 232, 237-248 (1973); Little v. City of Seattle, 863 F.2d

681 (9th Cir. 1988); Foulks v. Ohio Department of Rehabilitation

and Correction, 713 F.2d 1229, 1232-1233 (6th Cir. 1983); Kolb

v. State of Ohio Department of Mental Retardation and Develop-

mental Disabilities, 721 F.Supp. 885, 897 (N.D. Ohio 1989). The

findings of the Court of Appeal, after reviewing the evidence in

this summary judgment motion de novo, were that the individual

defendants herein were acting solely in their officia) capacities

(Resp. App. B, at 8-9). Therefore, after an analysis of the

evidence before it, the Court of Appeal determined that there was

no evidence that the individual defendants herein had acted with

racial animus when the delays in licensure occurred. The court

below was not stating that the defendants were not sued in their

individual capacities but rather it was stating that in a motion for

summary judgment (as opposed to a motion for judgment on the

CA, 1967); Jack v. Wood, 258 Cal.App.2d 639; 65 Cal. Rptr. 856, 860

(Ct. App. CA, 1968).

19

pleadings), where evidence is in fact presented, there was no

evidence that a constitutional tort was committed.

A summary judgment motion is a review of the evidence to see

whether a2 triable issue of fact exists. The Court of Appeal found

no tnable issue of fact existed concerning any federal tort and

concluded that defendants’ conduct was official action. In Will v.

Michigan Department of State Police, supra, at 2312, this Court

held tiat-a state official acting in his or her official capacity is not

a person for purposes of suit under section 1983. Plaintiffs’

contention that a pleading tactic can defeat a summary judgment

motion, where extensive evidence was reviewed, is in direct

conflict with the purpose for which summary judgment motions

were created: to determine whether a triable issue of fact exists. If

a state official sued in both his individual and official capacities is

found to have committed no unofficial act (i.e., no constitutional

tort) on summary judgment, he is entitled to the designation that

he is a state official acting in his official capacity and therefore not

Ry person for purposes of suit under section 1983, as set forth in

Will.

Plaintiffs’ citation to the Kolb case, supra, is not supportive of

their contention. The Kolb case was based on a summary judg-

ment motion. After a review of the evidence, the trial court found

that one defendant had arguably fired the petitioner therein based

upon racial considerations and so ordered that this was a triable

issue. As to two other individual defendants, the court found no

evidence of a federal tort and granted summary judgment. /d. at

905-906. In its judgment, the Kolb court made no analysis

whatsoever as to whether the individual defendants were entitled

to qualified immunity or any kind of immunity. The Kolb court’s

* Basically, the trial court, in its decision, agreed with the Court of

Appeal in finding that there was no evidence that any of the defendants

based any of their actions on impermissible racial or ethnic factors

(Resp. App. A at 10). Instead of finding that the individual defendants

were not persons under section 1983, however, the trial court analyzed

whether the defendants were therefore entitled to qualified immunity.

Essentially, however, the trial court found that the individual defendants

had committed no constitutional tort. The trial court issued its ruling

prior to the publication of this Court’s decision in Will.

Vv ————

20

analysis of Eleventh Amendment immunity in federal courts

points out only that a state official acting under color of state law

who commits a constitutional tort cannot be shielded by the

Eleventh Amendment from liability; (1) if the case against the

official as an individual actor is properly pleaded and (2) there is

substantial evidence presented that such a tort was, in fact,

committed. Jd. at 895-898. The fact that the Court of Appeal in

the instant case phrased its finding in terms of official capacity,

because the issue was presented as such, instead of phrasing it in

terms of lack of a triable issue of fact, as the Kolb court did, is a

distinction without a difference.

In any case, it is plain that no qualified immunity analysis

applies when there is a finding of no liability.

B. No Qualified Immunity Analysis is Warranted Because

Plaintiffs Presented No Evidence to Raise A Triable

Issue of Fact As to Defendants’ Violation of Their

Federai Constitutional Rights

The issue of qualified immunity arises only if an official in fact

does violate a plaintiffs rights while acting under color of state

law. If such an official can demonstrate that the violation was a

good faith mistake, i.e., that his actions did not contravene clearly

established statutory or constitutional nights of which a reasonable

official would have known, then that official is entitled to qualified

immunity, which absolves him of liability. Anderson v. Creighton,

483 U.S. 635; 107 S.Ct. 3034, 3038 (1987); Harlow v. Fitzgerald,

supra, at 818. Since there is no finding anywhere in the instant

case that any of the individual defendants herein violated any of

plaintiffs’ constitutional rights under section 1981 or section 1983,

qualified immunity is simply not an issue.

If piaintiffs had in fact presented evidence in the trial court or

the Court of Appeal that their federal mghts had been violated by

the individual defendants purporting to act under color of state

law, then it would have become necessary to determine whether

these defendants were entitled to qualified immunity. However, in

this case, no such evidence was ever properly presented to the trial

court or made part of the record before the Court of Appeal. The

statement of facts set forth in petitioners’ brief is largely unsup-

21

ported by the record, and the alleged facts argued on pages 17 and

25 to 27 of their brief are totally unsupported by the record.

Furthermore, the allegation contained in Petitioners’ Brief at p.

24, fn. 14 is simply false. This case has been extensively briefed

and argued, and no court has found evidence of unlawful motiva-

tion on the part of any of the individual defendants.

Although the record is voluminous, a thorough investigation

reveals that the conduct of the defendants in delaying the issu-

ance of licenses to individual applicants who failed to establish

minimum state eligibility requirements was reasonable and

proper. There simply was no evidence that any of the defendants’

conduct was motivated by impermissible racial or ethnic factors.

Even Marc Grimm, who served as counsel for the plaintiffs and

who is prominently mentioned in Petitioners’ brief, admitted in a

sworn statement which is part of the record, that there was no

evidence of racial discrimination by any of the defendants in this

case.

The record reflects that the defendants granted licensure, as

physicians and surgeons, to hundreds of persons who were edu-

cated and trained by the University of Saigon Medical School

without any consideration of racial or ethnic factors. The only

licenses which were delayed were those for the four individual

plaintiffs, and a few other similarly situated applicants. Those

delays occurred because of the inability to determine education

and training, not because the applicants were Vietnamese. When

the plaintiffs were able to establish that they met the require-

ments for licensure, they were licensed. Thus, the initial delays

were made by the individual defendants solely in their official

* Defendants supported their motion for summary judgment with

volumes of official documents concerning the processing of plaintiffs’

applications, portions of depositions taken in the case (including one

wherein a plaintiff admitted that there was no evidence of racial or

ethnic prejudice in the delays of licensure), and affidavits from virtually

every percipient witness setting forth the facts and documenting the

conduct of each individual defendant with respect to the applications

involved and the actions taken. In fact, the evidence revealed that some

of the individual defendants named were not even members of the

Division of Licensing at the time the alleged violations took place.

22

Capacities and not otherwise and were necessary and proper to

Carry out the board members’ duty to protect the public safety by

ensuring that licensees have the proper education and training.

In summation, despite this Court’s clear holding in Will, that

“neither a State nor its officials acting in their official capacities

are ‘persons’ under section 1983,” Jd. at 2312, and petitioners’

own factual admissions (Resp. App. C), plaintiffs contend that

Will only applies to those cases where state officials are “sued” in

their official capacities and not where officials are allegedly sued

in both their individual and official capacities. This limited and

contorted interpretation of Will is based upon a purely semantic

distinction between individuals “acting” in their official capacities

and being “sued” in their official capacities. Such a limited

interpretation would render the Court’s holding in Wil/ meaning-

less because a plaintiff who sued a state official could circumvent

the holding in Will simply by engaging in creative pleading. In

addition, of course, plaintiffs’ contention would hold the entire

summary judgment procedure meaningless if pleading could over-

come evidence.

The facts of the instant case fall squarely within the holding of

Will."° Plaintiffs cannot circumvent the clear holding in Will

simply by pleading that defendants are being sued in their official

and individual capacities; the undisputed facts of this case show

that defendants were at all times acting as state officials in their

official capacities, and not otherwise. Therefore, given the facts of

this case, it was unnecessary for the Court of Appeal to even

reach the question of qualified immunity; and, accordingly, this

Court should not grant certiorari upon an issue which is not

appropriately before it.

'° The Court’s holding in Will that state officials are not subject to suit

under section 1983 is consistent with Ninth Circuit case law and

California case law on the subject. See Jackson v. Hayakawa, 682 F.2d

1344, 1350 (9th Cir. 1982); National Association for the Advancement

of Colored People v. State of California, 511 F.Supp. 1244, 1250

(1981); Pyne v. Meese, 172 Cal.App.3d 392, 402-403; 218 Cal. Rptr. 87,

91-92 (Ct. App. CA, 1985).

23

CONCLUSION —

For the foregoing reasons, the petition for writ of certiorari in

this matter should be denied.

Respectfully submitted,

JOHN K. VAN DE Kamp,

Attorney General of the

State of California

PAUL V. BISHOP

Deputy Attorney General

(Counsel of Record)

VIVIEN HARA HERSH

SUSAN K. ME¢DOWS

Deputy Attorneys General

Counsel for Respondents

September 1990