Petition for Writ of Certiorari — Flowers v. Seki

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Supreme Court of the United States

ROBERT S. FLOWERS, M.D.,

Petitioner,

SHERRIE T. SEKI, CYNTHIA S. NAKAMURA, IRENE

NAKANO, and OWEN TAMAMOTO, individually and in

their official capacities as attorneys for the Regulated

Industries Complaints Office, Department of Commerce

and Consumer Affairs, State of Hawaii; EARL HARADA,

individually and in his official capacity as investigator for

the Regulated Industries Complaints Office, Department

of Commerce and Consumer Affairs, State of Hawaii;

KATHRYN MATAYOSHLI, in her official capacity as

Director of the Department of Commerce and Consumer

Affairs, State of Hawaii; and SHARON ON LENG, in her

official capacity as Complaints and Enforcement Officer of

the Regulated Industries Complaints Office, Department

of Commerce and Consumer Affairs, State of Hawaii,

Respondents.

On Petition For A Writ Of Certiorari To The United

States Court Of Appeals For The Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

Peter VAN Name ESSER

Counsel of Record

Davip L. Turk

Suite 400, Seven Waterfront Plaza

500 Ala Moana Boulevard

Honolulu, Hawaii 96813

(808) 538-3636

Attorneys for Petitioner

Robert S. Flowers, M.D.

OCTOBER 1999

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

16) ey

0 Se Se a oe ae

QUESTIONS PRESENTED

A. DID THE DISTRICT COURT AND A NINTH CIRCUIT

PANEL DISREGARD ANOTHER PANEL’S FINDING OF

SUBJECT MATTER JURISDICTION IN A PRIOR APPEAL,

IN VIOLATION OF THE LAW OF THE CASE DOCTRINE

DESCRIBED IN CHRISTIANSON V. COLT INDUSTRIES?

B. DID PETITIONER, A PHYSICIAN, STATE A CLAIM

FOR INJUNCTIVE RELIEF UNDER 42 U.S.C. § 1983 AND

YOUNGER V. HARRIS AGAINST RESPONDENTS, STATE

OFFICIALS, BY ALLEGING THEY FILED A BAD FAITH

MEDICAL LICENSE PROCEEDING AGAINST HIM WITH

NO HOPE OF OBTAINING A REVOCATION?

C. DID THIS COURT’S PLURALITY OPINION IN

ALBRIGHT V. OLIVER REGARDING PROSECUTIONS

WITHOUT PROBABLE CAUSE, OVERRULE YOUNGER V.

HARRIS AND ELIMINATE FEDERAL INJUNCTIONS

AGAINST BAD FAITH STATE PROSECUTIONS?

TABLE OF CONTENTS

Page

QUESTIONS PRMOMICTEDD «sci. cs ccs e cee eee eeeeerees i

TABLE OF CONTENTS ....-----s007000 7007 ii

TABLE OF AUTHORITIES ...--------ss7 0707 iv

PETITION FOR WRIT OF CERTIORARI ....-.------> 1

OPINIONS BELOW .....5ssnsnenereeerr te 2

JURISDICTION o.oo. 039 5d eRe RRR 2

STATUTES... os cs s0s 0008 semen eee nee 2

STATEMENT OF THE CASE . iis 2

STATEMENT OF FACTS ....------s secret 10

ARGUMENT

A. THE SECOND DISTRICT COURT JUDGE AND

THE SECOND THREE-JUDGE PANEL

DISREGARDED LAW OF THE CASE.....----:: 18

B. THIS COURT'S NARROW PLURALITY IN

ALBRIGHT DISALLOWING CLAIMS BASED ON

PROSECUTION WITHOUT PROBABLE CAUSE,

DID NOT OVERRULE YOUNGER OR ELIMINATE

FEDERAL INJUNCTIVE RELIEF AGAINST BAD

FAITH PROSECUTIONS. ....-----+2252000000 24

CONCLUSION «. .<..04caeseenesenenegnes eemanent 30

APPENDICES:

A. APRIL 6, 1999, NINTH CIRCUIT

MEMORANDUM OPINION. ....--++- 2555577 App. 1

8. FEBRUARY 13, 1998, ORDER GRANTING

SECOND MOTION TO DISMISS.....----->- App. 4

C. JULY 7, 1999, NINTH CIRCUIT ORDER

DENYING REHEARING. ....-----2-:5555007 App. 37

iil

TABLE OF CONTENTS - Continued

Page

D. MAY 13, 1994, ORDER DENYING PRELIMINARY

I ee ...App. 39

E. MAY 19, 1994, ORDER DENYING FIRST

PE MEe BAP EMOMOUBS. oko ccdcceec., App. 56

F. jUNE 7, 1996, NINTH CIRCUIT MEMORANDUM

SERS Die aie as et ae App. 58

G. TEXT OF CITED FEDERAL AND HAWAII

dd hs a Ni ea a kcal na bd a wc App. 65

TABLE OF AUTHORITIES

Page

CASES

Albright v. Oliver, 510 U.S. 266 (1994) .......55.- passim

Al Tech Specialty Steel v. Allegheny International

Credit, 104 F.3d 601 (3d Cir. 1997).....-.--++0++55> 19

Arizona v. California, 460 U.S. GOS (1963) .....+<-- 19, 20

Bishop v. State Bar of Texas, 736 F.2d 292 (Sth Cir.

MRD rr mrrr et che a aie 8k 28

Black v. Lane, 22 F.3d 1395 (8th Cir. 1994)......--.-- 20

Buckley v. Fitzsimmons, 20 F.3d 789 (7th Cir. 1994)..... 6

Cameron v. Johnson, 390 U.S. 611 COORD i icc kun sewes 24

Christianson v. Colt Industries, 486 U.S 800 (1988)

re pe ct See y Mee OOe AMER ADRS Ne ee 1, 18, 19, 20, 24

Collins v. County of Kendall, Illinois, 807 F.2d 95

7, 4’ Serre ire ee ee aaa 28

County of Sacramento v. Lewis, 523 U.S. 833 (1998) .... 29

Dickinson v. Petroleum Conv. Corp., 338 U.S. 507

CUE cca ca ve kaedennd RASPES rte ns Serene ats 23

Dombrowski v. Pfister, 380 U.S. 479 (1965)

i vcd Sg d aes Wk Ca aE 1, 24, 25, 26, 29

Eichman v. Fotomat, 880 F.2d 149 (9th Cir. 1989) ...... 8

Ex Parte Young, 209 U.S. 123 Ce rrerrr res 24, 26

Ferreira v. Borja, 93 F.3d 671 (9th Cir. 1996), cert.

denied, 520 U.S. 345 (1997) ...----eeeerrereeeee 19, 20

Fitzgerald v. Peek, 636 F.2d 943 (Sth Cir.), cert.

denied, 452 U.S. 916 (1981) ..-----eeeee rete ttre: 28

Fogel v. Chestnutt, 668 F.2d 100 (2d Cir. 1981)......-- 20

Page

Gibson v. Berryhill, 411 U.S. 564 Gremeb easiness as 24

Harlow v. Fitzgerald, 457 U.S. 800 SOR kisi aaly nu 8

Haupt v. Dillard, 17 F.3d 285 (9th Cir. TDS eka se 6

In re Memorial Estates, 950 F.2d 1364 (7th Cir.

1991), cert. denied, 504 U.S. 986 2. SURE Se aaa ee 20

Jeffries v. Wood, 114 F.3d 1484 (9th Cir. 1997) (en

saan SEE ea em Bn 20, 24

Krahm v. Graham, 461 F.2d 703 (9th Cir. ot: ee 28

Kugler v. Helfant, 421 U.S. 117 CUI s ok oss cout na ia 24

LaShawn v. Barry, 87 F.3d 1389 (D.C.Cir. 1996) (en

banc), cert. denied, 521 U.S 567 (1997).. 18, 19, 20, 21

Leslie Salt v. United States, 55 F.3d 1388 (9th Cir.),

cert. denied, 515 U.S. 678 i, Gag eee eae MN 19

Maggio v. Zeitz, 333 U.S. 56 (1948) .................. 23

Mishler v. Nevada State Board of Medical Examiners,

896 F.2d 408 (9th Cir. 1990)................... 4, 6,7

Parker v. King, 935 F.2d 1174 (11th Cir. | 20

Paul v. Davis, 424 U.S. 693 (1976)............... 4,6,7

Perez v. Ledesma, 402 U.S. 82 big ARE nae 24, 29

Pizzolato v. Perez, 524 F.Supp. 914 (E.D.La. 1981). .27, 28

Privitera v. California Bd. of Quality Medical Assur.,

926 F.2d 890 (9th Cir. 1991).............. > 8. 26, .27

TABLE OF AUTHORITIES - Continued

Page

Shaw v. Garrison, 328 F.Supp. 390 (E.D.La. 1971),

aff’d, 467 F.2d 113 (Sth Cir.), cert. denied, 409

U.S. 1026 CISTZ)... 2 cc sccsennasccsesseccsensess passim

Sheridan v. Garrison, 415 F.2d 699 (Sth Cir. 1969)..... 28

Siegert v. Gilley, 500 U.S. 226 CID91). 2... ccseeess 4, 6,7

South Carolina State Port Authority v. Silver Anchor,

23 F.3d 842 (4th Cir. 1994) ......--- eee cece er eeeces 20

Taylor v. F.D.I.C., 132 F.3d 753 (D.C.Cir. 1997) ....--- 23

Textile Mills v. Commissioner, 314 U.S. 326 (1941) .... 21

Trans World Airlines v. Mattox, 897 F.2d 773 (Sth Cir.

BGOO). vc ccsscvccseeccuscons@seGeee ee Seeeemnrnan. 22

Trans World Airlines v. Morales, 949 F.2d 141 (5th

Cae, 19DE) coc c cc ceccccnassccesenssdessensanenes 20, 22

Trainor v. Hernandez, 431 U.S. 434 (C1977)... 2c casesee 24

Universal Amusement v. Texas, 404 F.Supp. 33

(SD. Ten. 2978) ...o. 000005 ds ents th eta ae eee eeer ee ne? 28

U.S. ex rel. Robinson v. Johnson, 316 U.S. 649 (1941) .... 23

U.S. v. Local 560 (I.B.T.), 974 F.2d 315 (3rd Cir.

ROOD). . os canes cans s0iceseneneasseeneseenes a. 2a, 22

Ward v. Jones, [1966] Q.B. 273, 294 (C.A.) ...----+++> 18

Westin v. Michael, 760 F.Supp. 1563 (M.D.Ga.),

aff’d., 949 F.2d 1163 (11th * 38: 0) eee 28

Younger v. Harris, 401 U.S 37 1) See passim

Vil

TABLE OF AUTHORITIES - Continued

Page

STATUTES

United States Code

WO Oy a Go VEN a bce o oceudads ai, 21

Se Ee WED ied hdc ede eden east Dene 2

ee hn cg ne se eee 2

a SR ne eR ReNry CLO g 2

ee ee Ss eo pee eee ere Cae tae 2

PO Ad o 2k Sian wie oebkiedS eo eh 2

ME i a i hike od ne ee 2, 3, 7, 9, 26, 29

Hawaii Revised Statutes

St hac RE ET Eee AE EN ech OREM A 16

vsecraiacsrsptiosacs sits CE TE er ee Sree ines 2

Court RuLes

Federal Rules of Civil Procedure

aesecrlte og Se EE Or Te Fane aR tee en 4

MISCELLANEOUS

Goelz and Watts, Rutter Group Practice Guide: Fed-

eral Ninth Circuit Civil Appellate Practice, V. II,

a | ee 21

Harian, Justice, “Manning the Dyke,” 13 Record of

N.Y.C. Bar Ass’n, 541, 552 (1958).................. 23

Moore, Lucas and Currier, Moore’s Federal Practice,

V.1B, Section 0.404[1] (1984) ...................... 19

Vill

TABLE OF AUTHORITIES - Continued

Page

Stern, R. L., Supreme Court Practice, Section 4.6 (6th

Se eeeewrrrrer rerrrre rer ee cee eee 23

Ulrich, Kessler and Anger, Federal Appellate Prac-

tice Guide; Ninth Circuit, Section 8-19 (1994)....... 21

Wright, Miller and Cooper, Federal Practice and Pro-

cedure, V. 18, Section 4478 (1982) ...........-.--5: 19

PETITION FOR WRIT OF CERTIORARI

Petitioner Robert S. Flowers, M.D., prays that a writ of

certiorari issue to review two rulings of the Ninth Circuit

Court of Appeals entered in this proceeding on June 7, 1996,

and April 6, 1999. While Petitioner seeks review of

unpublished opinions, and the dismissal of claims filed by an

individual surgeon practicing 5000 miles from this Court, the

history of this case raises fundamental questions regarding

law of the case, the abuse of government power, and the

viability of a century-old federal remedy used to enjoin bad

faith state prosecutions.

Two Ninth Circuit panels weighed identical jurisdictional

questions in this case. Respondents, state officials charged

with prosecuting a bad faith medical license revocation pro-

ceeding, twice sought dismissal of Petitioner’s claims under

Albright v. Oliver, 510 U.S. 266 (1994), insisting this 1994

ruling disallowing claims to enjoin prosecution without prob-

able cause similarly barred claims to enjoin bad faith prosecu-

tions under Younger v. Harris, 401 U.S. 37 (1971).

In 1996 a Ninth Circuit panel rejected Respondents’

Albright arguments, recognized a claim under Younger, and

ordered a preliminary injunction and $41,000 in fees.

In 1999 a second Ninth Circuit panel disregarded the

1996 ruling, embraced Respondents’ Albright arguments, and

dismissed this lawsuit for failure to state a claim.

The second panel erred. “The prior decision should be

followed unless [it] is clearly erroneous and its enforcement

would work a manifest injustice[.]” Christianson v. Colt

Industries, 486 U.S. 800, 819 (1988). “Perpetual litigation on

any issue — jurisdictional or nonjurisdictional — delays, and

therefore threatens to deny, justice.” Jd. at 816 n.5.

On the merits, “the threats to enforce the statutes against

appellants [were] not made with any expectation of securing

valid convictions[.]” Dombrowski vy. Pfister, 380 U.S. 479,

482 (1965). “These circumstances sufficiently establish the

kind of irreparable injury, above and beyond that associated

with the defense of a single prosecution brought in good faith,

that has always been considered sufficient to justify federal

intervention.” Younger, 401 U.S. at 48.

OPINIONS BELOW

The April 6, 1999, decision of the Ninth Circuit in

Flowers v. Seki, No. 98-15440 (Appendix A), and the Febru-

ary 13, 1998, district court order which it affirmed,

CV-91-00616 DAE (Appendix B), are not reported. The June

7, 1996, decision of the Ninth Circuit in Flowers v. Seki, No.

94-16039 (Appendix F), and the May 13 and 19, 1994, district

court orders in CV-91-00616 HMF which it reversed (Appen-

dices D and BE), are not reported.

JURISDICTION

The judgment in No. 98-15440 was filed on April 6, 1999

(Appendix A). A timely petition for rehearing and suggestion

for rehearing en banc was denied on July 9, 1999 (Appendix

C). The district court had jurisdiction under 28 U.S.C.

§§ 1331, 1343 and 1346, and 42 U.S.C. § 1983. The Ninth

Circuit had jurisdiction under 28 U.S.C. § 1291. This Court’s

jurisdiction is timely invoked under 28 U.S.C. § 1254(1).

STATUTES

The text of Federal and Hawaii statutes cited in the

petition are provided in Appendix G.

STATEMENT OF THE CASE

Petitioner is an internationally renowned, board-certified,

plastic and reconstructive surgeon, who has practiced medi-

cine in Hawaii for 29 years. Respondents are lawyers, investi-

gators, and other officials working for Hawaii’s Department

of Commerce and Consumer Affairs, in Honolulu.

On December 17, 1993, Respondents filed Jn re Robert S.

Flowers, M.D., MED Nos. 90-90-L et seq., a license revoca-

tion proceeding charging Petitioner with gross negligence

under Haw. Rev. Stat. Section 453-8. ER 1.

On March 9, 1994, Petitioner filed Flowers v. Seki,

CV-00190-DAE, in the District Court for the District of

Hawaii, claiming Respondents were violating his civil rights

under 42 U.S.C. § 1983 by pursuing a license revocation

proceeding in bad faith against him without a reasonable

expectation of success. ER 2. Their actions reduced his

patient load, denied him hospital privileges, increased his

insurance premiums, disqualified him from a medical school

professorship, barred him from practicing medicine in other

States, and violated his constitutional rights. Jd. Petitioner

requested injunctive relief against all Respondents and dam-

ages against some in their individual capacity. /d.

On March 9, 1994, Petitioner filed a motion for prelimi-

nary injunction. ER 3. He cited Younger, supra, Shaw v.

Garrison, 467 F.2d 113 (5th Cir.), cert. denied, 409 U.S. 1024

(1972), and Privitera v. California Bd. of Medical Quality

Assur., 926 F.2d 890 (9th Cir. 1991), asking the court to stop

the bad faith prosecution against his license. /d.

On March 24, 1994, Respondents filed their opposition to

this motion requesting abstention under Younger, supra. ER

50 at 1. They also argued Petitioner “asserts no federal right

giving rise to jurisdiction in the first instance.” Jd. at 2.

“Plaintiff has asserted no claim for which relief can be

granted under 42 U.S.C. § 1983,” insisted Respondents:

Plaintiff’s claim is the civil equivalent of Albright

v. Oliver, [510 U.S. 266] (1994). In Albright, the

petitioner asked the Supreme Court to recognize a

substantive right under the Due Process Clause of

the Fourteenth Amendment to be free from criminal

prosecution except upon probable cause.

ER 50 at 2, 5. “Here,” said Respondents:

the State has initiated a process which may, or may

not, lead eventually to disciplinary sanctions

against Dr. Flowers, including possible revocation

or limitation of his license to practice.

ER 50 at 3 (emphasis added). Respondents declared:

Plaintiff claims a federal constitutional right to

judicial review or oversight of the decision to pros-

ecute administrative disciplinary proceedings

against his medical license. Given the Supreme

Court’s refusal to require such review in criminal

matters, and its refusal in Albright to recognize a

substantive due process right to be free from pros-

ecution except upon probable cause, there can be no

federal oversight of state administrative proceed-

ings involving no present impact upon a protected

property or liberty interest.

ER 50 at 4. Respondents cited Paul v. Davis, 424 U.S. 693

(1976) and Siegert v. Gilley, 500 U.S. 226 (1991), and argued

Petitioner does not have a “protected interest in reputation.”

Id. They also cited Mishler v. Nevada State Board of Medical

Examiners, 896 F.2d 408 (9th Cir. 1990), and insisted Peti-

tioner had not yet been deprived of his right to practice

medicine. ER 50 at 5.

On March 31, 1994, Respondents filed a motion to dis-

miss under Fed. R. Civ. P. Rule 12(b), again declaring, “the

complaint cites no claim upon which relief can be granted.”

ER 51 at 2. “There is no allegation of a recognized federal

right.” /d. at 2-8.

On May 13, 1994, the late District Judge Harold M. Fong

denied Petitioner’s motion for preliminary injunction, ab-

staining under Younger. See Appendix D. Before reaching the

abstention issue, however, Judge Fong expressly addressed

and rejected Respondents’ Albright claims:

[Respondents] assert that the court lacks jurisdiction

over this matter because plaintiff asserts no federal right

that would give rise to jurisdiction. [They] rely on a

Supreme Court case, Albright v. Oliver, [510 U.S. 266]

(1994), in which the Court declined to recognize a

substantive due process right “to be free from criminal

prosecution except upon probable cause.”

Appendix D. “In the instant action,” wrote Judge Fong, “plain-

tiff has asserted a specific constitutional right — the right to be

free from bad faith prosecution.” Jd. Said the court:

ee nnn mem

If plaintiff successfully establishes that the prosecu-

tion itself is proceeding in bad faith, then the due

process safeguards of the prosecution are of no

avail to plaintiff's immediate and ongoing injury.

While Albright stands for the principle that there is

no constitutional right to be free from prosecution

without good cause, the constitutional right to be

free from bad faith prosecutions is well established.

Appendix D at 8. “[I]t is clear that the court has jurisdiction

over this § 1983 action on the basis of plaintiff’s allegation of

bad faith.” /d. at 9.

On May 16, 1994, Judge Fong heard Respondents’ first

motion to dismiss. ER 56. Respondents cited Albright:

I would like to again urge the Court and point out to

the Court that in the Albright v. Oliver case which

we have cited and rely upon extensively, the court

rejected of course the proposition that there is a

substantive due process right to be free from crimi-

nal prosecution [except] upon probable cause.

ER 56 at 4-5. “Shaw,” insisted Respondents, “is superceded

by Albright.” Id. at 6.

On May 19, 1994, Judge Fong denied Respondents’ first

motion to dismiss. See Appendix E. “As the court held in

ruling on plaintiff’s motion for injunctive relief,” wrote Judge

Fong, “plaintiff has alleged a specific federal constitutional

right — the right to be free from bad faith prosecution.” /d. at

2. “Contrary to [Respondents’] assertions, the court thus has

jurisdiction over this matter.” /d.

On June 9, 1994, Petitioner appealed Judge Fong’s

denial of a preliminary injunction in No. 94-16039. ER 58.

On December 12, 1994, Respondents filed an answering

brief explaining their reasons for prosecuting Petitioner:

Society has long frowned on cosmetic surgery of

the type typically practiced by Dr. Flowers, not only

because it drains millions if not billions of dollars

of government and private subsidies from medical

procedures that demonstrably save lives, but

because that surgery is “sold” to the some [sic] of

the most psychologically vulnerable individuals in

our society[.]

Appendix F at 6, quoting, ER 59 at 25. “Society would be

wholly within its rights,” Respondents declared, “to outlaw

what Dr. Flowers does as a crime.” /d. (emphasis in original).

Respondents reiterated their position that the court lacked

jurisdiction under Albright:

Dr. Flowers complains of the defamatory impact of

the state proceedings, a complaint that does not

state a constitutional violation “at all.” Seigert v.

Gilley, 500 U.S. 226, 232 (1991) (discussing Paul v.

Davis, 424 U.S. 693 (1976)). Plaintiff does not

assert that he will not be given notice or an oppor-

tunity to be heard, e.g., Mishler v. Nevada State

Board, 896 F.2d 408, 409 (9th Cir. 1990), or that the

Board is biased against him. The rest of Plaintiff’s

complaint does nothing more than raise (ineffec-

tively, we think) malicious prosecution, and, as this

Court stated recently, “[t]he constitutional founda-

tion for a claim of malicious prosecution under

§ 1983 is a matter of dispute.” Haupt v. Dillard, 17

F.2d [sic] 285, 290 n.4 (9th Cir. 1994). As the

Seventh Circuit has squarely held in light of Albr-

ight v. Oliver, [510 U.S. 266] (1994), “the institu-

tion of a prosecution is not an independent

constitutional tort.” Buckley v. Fitzsimmons, 20 F.3d

789, 798 (7th Cir. 1994). All of the cases relied on

by Dr. Flowers are no longer good law in light of

Albright and its reasoning[.]

ER 59 at 34. Further, in their restated questions on appeal,

Respondents included the following:

3. Whether, in light of Albright v. Oliver, [510 U.S.

266] (1994), Appellant, who faces no interlocutory

burdens on his ability to practice medicine, other

than the asserted defamatory impact of the pen-

dency of state regulatory proceedings against him,

has any federal cause of action under § 1983?

ER 59 at 2.

On June 7, 1996, Ninth Circuit Judges Schroeder, Nelson

and Kozinski filed an opinion reversing Judge Fong, ordering

a preliminary injunction “barring the RICO defendants from

pursuing their disciplinary action,” and awarding $41,357 in

fees and costs. See Appendix F at 6. The panel declared:

The RICO defendants have demonstrated in their

brief a substantial bias against both Dr. Flowers and

his profession. They assert speculative claims for

which they have failed to demonstrate any basis

regarding the motives for his professional activities,

his income, the psychological profiles of his

patients, and the social value of cosmetic surgery[.]

Appendix F at 5. “These bald assertions suggest a harassing

motivation irrespective of the evidence and belie defendants’

claim of good faith.” Jd. at 6. “We find that Dr. Flowers has

demonstrated that the RICO defendants are prosecuting him

in bad faith.” /d. at 3.

The June 7, 1996, opinion did not refer directly to

Respondents’ Albright claims, but declared:

[E]vidence alone, even if it arises to the level of

probable cause, will not bar a finding of bad faith.

Appendix F at 3. The 1996 panel implicitly overruled Respon-

dents’ arguments that Albright, Siegert, Paul, and/or Mishler

required dismissal of Petitioner’s claims. /d.

On July 25, 1996, the parties appeared before District

Court Judge David Alan Ezra, who replaced Judge Fong after

the latter’s untimely death. ER 61 at 1. “[T]he Ninth Circuit

has made a finding here for which this court is bound,” said

Judge Ezra, “it’s the law of the case.” Jd. at 3. “[T]he Ninth

Circuit — and I think quite properly — reversed.” /d. at 7.

“[T]hey make a specific finding of bad faith,” noted Judge

Ezra, “I think there’s very little left here to litigate.” /d. at 9.

On August 15, 1996, Petitioner filed a motion to have

certain issues recognized as law of the case. ER 63.

On October 4, 1996, Magistrate Judge Barry N. Kurren

granted Petitioner’s motion finding, “Albright v. Oliver is

inapposite to this case.” ER 66. The magistrate rejected

Respondents’ argument that the three-judge panel did not

address jurisdiction in its 1996 opinion:

“[t]he doctrine of law of the case encompasses a

court’s explicit decisions as well as those issues

decided by necessary implication.”

ER 66 at 4, quoting, Eichman v. Fotomat, 880 F.2d 149, 151

(9th Cir. 1989). “By proceeding to address the merits of the

appeal, the Ninth Circuit implicitly agreed with Judge Fong’s

determination of jurisdiction.” /d.

On January 30, 1997, Judge Ezra adopted the magis-

trate’s ruling. ER 67 at 8. “[The State’s] interpretation of

Albright,” said Judge Ezra, “is overexpansive.” Jd. at 7. “The

court agrees with the magistrate’s conclusion that Albright

does not control{.}” /d. “Plaintiff has, in fact alleged a viola-

tion of a specific constitutional right[.]” Jd. at 4-5.

On October 30, 1997, Respondents filed a second motion

to dismiss, claiming absolute immunity for some Respondents

and qualified immunity for all. ER 72. Respondents reiterated

their Albright arguments and claimed “no violation of clearly

established statutory or constitutional rights.” Jd. at 21, cit-

ing, Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In

Opposition, Petitioner argued that Respondents violated

“clearly established constitutional rights” under Shaw and

Privitera when they filed a bad faith proceeding, and reiter-

ated rulings by Judge Fong, the Ninth Circuit, Magistrate

Kurren, and Judge Ezra himself rejecting Respondents’

Albright arguments. ER 74. Petitioner opposed claims of

absolute immunity by showing that Respondents acted as

investigators during the Flowers probe. /d.

On February 13, 1998, Judge Ezra surprised both parties

with a 34-page order dismissing the complaint. See Appendix

B. He paid little attention to immunity, focusing instead on

er ee

“the more significant issue [of] whether Plaintiff has in fact

stated a federal claim.” Appendix B at 6 n.1. Relying on

Albright, Judge Ezra found the Ninth Circuit had not consid-

ered jurisdiction in its 1996 opinion, and “grant[ed] Defen-

dants’ motion to dismiss Plaintiff’s claims under 42 U.S.C.

§ 1983 for failure to state a claim[.]” Jd. at 34. “[T]hé Ninth

Circuit clearly found that the state court proceeding fell

within the bad faith exception to Younger extension,” he said:

[but] neither the Ninth Circuit, nor this court has

held that Plaintiff properly alleged a cause of action |

under § 1983 for violation of Plaintiff’s right to be

free from bad faith prosecution.

Appendix B at 25.

On March 12, 1998, Petitioner appealed again. ER 80,

81. On April 9, 1999, Ninth Circuit Judges Sneed, Tashima

and Silverman affirmed. See Appendix A. “Neither this

court’s prior memorandum decision nor the district court’s

prior rulings,” ruled the new panel, “constituted law of the

case and precluded the dismissal of Flowers’s [sic] amended

complaint.” /d. at 2. “In the previous appeal,” they wrote:

a panel of this court held only that abstention under

Younger v. Harris, 401 U.S. 37 (1971), was inap-

propriate given evidence of the appellees’ bad faith.

The panel however, did not explicitly or implicitly

find that Flowers alleged a sufficient injury to state

a claim under § 1983 or even consider the issue.

Moreover, although the district court previously had

stated in general terms that the right to be free from

bad faith prosecution was protected by the Constitu-

tion, it had not determined that Flowers’s [sic] spec-

ific cause of action was cognizable under § 1983.

Thus, the law of the case doctrine did not bar

consideration of the sufficiency of Flowers’s [sic]

amended complaint.

Appendix A at 3 (emphasis added).

STATEMENT OF FACTS

Petitioner has chaired plastic surgery departments at

Hawaii’s largest hospitals, and taught surgery at the Univer-

sity of Hawaii. ER 4, 6. He has lectured at Stanford, UCLA

and Duke medical schools, and performed surgical demonstra-

tions at symposia in England, Canada, Australia, Japan,

France, Germany, Italy, Mexico, Thailand, Russia and Brazil.

Id. Petitioner has published over fifty scholarly articles and

edited a medical treatise in his field. Jd. He holds an interna-

tional reputation as a brilliant plastic surgeon. ER 42, 44, 45.

In 1983 a patient of Petitioner died one week after

surgery. ER 4, 10, 11. Respondents filed a disciplinary pro-

ceeding against Petitioner because of this death. ER 2. Three

years later he settled without acknowledging misconduct,

agreeing to seek accreditation by the American Association of

Accreditation of Ambulatory Plastic Surgery Facilities

(“AAAAPSF”), maintain adequate records, refrain from keep-

ing patients overnight, and have a plastic surgeon monitor his

practice for 18 months. ER 7.

AAAAPSF inspector and plastic surgeon Dr. Charles A.

Vinnik visited Petitioner’s clinic in 1988 and 1991. ER 8, 48.

“I have found in all respects these facilities to be exemplary,”

he said, “and meet or exceed all of the standards[.]” ER 48 at

3. Plastic surgeon Dr. Marco Rizzo monitored Petitioner for

18 months and reported, “the care administered by Flowers

and his clinic [is] superior to the standard of care adminis-

tered in this community.” ER 9.

On June 19, 1991, Respondents declared, “Dr. Flowers

meets all the conditions of the Board’s Final Order of Febru-

ary 17, 1988.” ER 14-at 6. “[T]here are no other conditions

against his medical license.” /d.

On October 4, 1990, Petitioner performed surgery on

Patient 1, a Vietnamese national. ER 2, 4, 10, 25. After

surgery Petitioner prescribed pain medication and discharged

Patient | to her husband’s care. /d. The next day Patient |

died of an overdose of pain medication. /d. An autopsy

conducted by Honolulu Medical Examiner Dr. Kanthi Gun-

itilake found “[c]ombined toxic effects of oxycodone and

flurazapam” to be the cause of death. ER 11. “The doctor’s

actions are not involved in this death,” said Gunitilake,

“everything he did was proper[.]” ER 28. “The cosmetic

surgery played no part in her death[.]” /d.

Nevertheless, Respondents filed a “staff-initiated” com-

plaint charging Petitioner with gross negligence in the treat-

ment of Patient 1. ER 12. Four months later they “closed” this

case, writing Petitioner, “this office has concluded that there

is insufficient evidence to show that your treatment of

[Patient 1] violated this State’s laws[.]” ER 13.

In April 1992 Respondents received a complaint from

Petitioner’s fired office manager Linda Sains. ER 25. Accord-

ing to Sains, Petitioner used an unlicensed nurse during sur-

gery on Patients 1 and 2, and kept Patient 3 overnight. /d.

Sains was fired for mismanagement and embezzlement. /d. A

1992 audit by CPA Lawrence Turner showed Sains embezzled

$211,000 from Petitioner. ER 29.

Respondents re-opened their inquiry of Patient 1’s death

and began investigating Patient 2. /d. Their investigator told

local physicians that Petitioner “lost five patients from sur-

gery under suspicious circumstances in the past five years,”

“three died in his office,” and Petitioner “admitted” he was

“on narcotics” during surgery. /d. These statements were lies.

ER 25, 46.

On February 25, 1993, Petitioner told Respondents he’d

been offered a professorship at a Kentucky medical school,

but officials in that state would not license him because of the

Hawaii inquiry. ER 25, 31, 32. In September 1993 the school

withdrew its offer because the Hawaii inquiry was still unre-

solved. ER 25, 32. Petitioner lost funding for a new clinic in

1993 when his bank declined financing for the same reason.

ER 52, Exhibit 42.

An April 1992 Honolulu Advertiser headline declared,

“Charges of Doctor Abuse Called Rare Here.” ER 23.

“Hawaii ranks low among states,” reported the Advertiser,

“for the number of disciplinary actions taken against doctors

for negligence.” /d. A similar headline in the Honolulu Star

Bulletin declared, “Watchdog Group Finds Fault With Isles’

Medical System.” ER 24. “The State Medica! Board is

accused,” said the Bulletin, “of ignoring errant docs.” Id. Two

of Petitioner’s patients had died of unknown causes, and he

settled a disciplinary action involving a third. His fired office

manager offered false testimony. Respondents could rid

Hawaii of a “bad doctor,” and no longer “rank low among the

states for the number of disciplinary actions.” ER 23.

On December 13, 1993, Respondents filed a petition

listing nine charges of gross negligence concerning Patients |

and 2, who died, Patient 3, who recovered without incident,

and Patients 4 and 5, who were never treated. /d. Petitioner

was charged with an improper overnight stay, an unlicensed

nurse, an improper refund policy, inadequate drug knowledge,

poor record-keeping, and a death rate “exceeding the active

plastic surgery community for Hawaii[.]” /d.

Petitioner submitted his patient records to four prominent

physicians for review. See ER 42, 44, 45, 48. In affidavits

filed with his March 1994 motion for preliminary injunction,

these doctors called Respondents’ claims “utter fantasy,”

“fabrications,” “horrifying” and “absurd,” reflecting “little or

no medical training and no regard for the truth.” /d.

Dr. Victor Hay-Roe is a board-certified plastic surgeon at

Honolulu Medical Group with 31 years’ experience. ER 44 at

1. He serves on HMG’s review board and “regularly evaluates

the work of other physicians[.]” /d. Dr. Hay-Roe declared:

This disciplinary petition is unwarranted in its

entirety. If the allegations regarding the record-

keeping, use of anesthetics, use of personnel or

refund practices are valid, then every plastic sur-

geon in the State of Hawaii is in danger of losing

his license. The petition is therefore an attack on

the entire profession.

ER 44 at 5.

Dr. Judson McNamara is Hawaii’s most prominent tho-

racic surgeon. ER 45 at 1. As Chairman of the Department of

Surgery at the University of Hawaii’s Medical School, he

trains plastic surgeons. Jd. Dr. McNamara declared:

I do not believe that any fair-minded, reasonable

person with even a modicum of medical training or

access to medical expertise, could conclude that the

allegations in the petition are true and that they

merit disciplinary action. It is particularly outra-

geous that Dr. Flowers should be subjected to this

prosecution because the many serious factual errors

in the allegations are readily refutable by anyone

with medical knowledge who conducts even a cur-

sory review of the records.

ER 45 at 13. “If anyone is guilty of gross negligence, profes-

sional misconduct, incompetence, or manifest incapacity in

the profession,” he said, “it is the persons who have failed in

their duty to investigate complaints fairly and prosecute disci-

plinary actions only when appropriate.” /d.

Dr. Robert K. Childs is a prominent anesthesiologist who

teaches at Burns Medical School and is Chief Anesthesiolo-

gist at Queen’s Hospital. ER 42. “[A]ny person who reviewed

the records and told RICO there was a case against him

should be made to pay for whatever cost and inconvenience

he has suffered.” Jd. at 12.

Finally, Dr. Charles A. Vinnik inspected Petitioner’s

clinic for AAAAPSF after the 1987 settlement. ER 48. He sits

on its Board of Directors, chairs the Surgery Committee of the

American Society of Plastic and Reconstructive Surgeons,

and authored the textbook, Fundamentals of Plastic Surgery.

Id. Dr. Vinnik declared:

One would have to conclude that the persons who

undertook the investigation and prepared this peti-

tion either have little or no understanding or they

have decided without basis that Dr. Flowers.is a

wrongdoer whose Hawaii license should be

revoked, and they have attempted to buttress that

conclusion with falsehoods, fabrications and misin-

terpretations of the records.

ER 48 at 13.

Sr ee

Respondents charged Petitioner with failing to inform

Patient | of the proper dosage for pain pills. ER 1 at 2. They

claimed she “did not speak english [sic] as a first language.”

Id. The accusation is absurd. While Patient 1 and her husband

were Vietnamese, they spoke English “fluently.” ER 28. Hon-

olulu Medical Examiner Gunitilake absolved Petitioner from

any responsibility for Patient 1’s death. ER 11, 28.

Respondents claimed Patient 1’s records “do not indi-

cated [sic] whether oxygen was administered,” which is false.

ER | at 2. Following convention, the oxygen line was left

blank, which means none was given. ER 10: see also, ER 42

at 3 (Dr. Childs) (“[t]he person who reviewed the medical

records Clearly either does not understand medical notation or

recklessly failed to review the relevant part”); ER 44 at 2 (Dr.

Hay-Roe) (“[t]he records clearly indicate that oxygen was not

administered.”)

Respondents claimed Petitioner’s records “show no signs

and symptoms assessment during surgery,” which is false. ER

| at 2-3; see ER 42 at 2-3 (Dr. Childs) (“to seek disciplinary

sanctions against Dr. Flowers for allegedly not recording

Signs and symptoms is totally outrageous”); ER 45 at 5 (“a

disciplinary petition against Dr. Flowers for failure to record

signs and symptoms based on this record is outrageous.”)

Respondents claimed Petitioner did not record Lidocaine

levels. ER 1 at 2. According to Dr. Hay-Roe, physicians do

not record them, and “[s]uch an omission is clearly not a

proper basis of disciplinary proceedings.” ER 44 at 2; see

also, ER 45 at 2 (Dr. McNamara) (“I administer Lidocaine

directly into the chests of patients without recording the

measurements.”’)

Respondents claimed Patient 1’s blood oxygen saturation

levels were lower on discharge than at admission. ER 1 at 2.

According to Dr. Childs, “the levels were all within the

normal range.” ER 42 at 4. According to Dr. Hay-Roe, “‘it is

absolutely clear that the patient’s blood Oxygen Saturation

level had nothing to do with her death.” ER 44 at 3.

Respondents claimed Petitioner took “no discharge crite-

ria prior to discharge” of Patient 1. ER 1 at 2-3. “All standard

discharge criteria are included in the discharge note,” insisted

Dr. Childs, “[iJt is entirely false for the petition to allege that

Dr. Flowers’ record on Patient 1 lacked discharge criteria.”

ER 42 at 3.

Respondents charged Petitioner with “violation of the

1987 settlement agreement” by allowing Patient 3 to remain

overnight, which is false. ER 1| at 4. First, Petitioner had no

license restrictions in 1992. ER 14, 15, 16, 17. Second, “there

was a terrible storm that day,” with high winds, traffic adviso-

ries, and no ambulance service. ER 25 at 6. Third, his patient

felt weak and unable to travel, which took precedence over

any settlement agreement. See ER at 8 (Dr. McNamara) (“Dr.

Flowers did what was best for the patient”); ER 44 at 4 (Dr.

Hay-Roe) (“I cannot believe that a setthement agreement

would ever require a doctor to put a patient in jeopardy.”)

Respondents claimed Petitioner’s records on Patient 3

“are ambiguous as to the amount of Narcan administered,”

which is false. ER 1 at 3. “The chart is not ambiguous,” said

Dr. Childs, “Narcan was authorized as necessary, but it was

not needed; for that reason no quantity was recorded.” ER 42

at 6; see also, ER 44 at 5 (Dr. Hay-Roe) (“[t]here is no

ambiguity[;] Narcan was not used.”)

Respondents claimed Patient 3 was “excessively sleepy”

after surgery. ER 1 at 4. “Anesthetics work differently for

different patients,” explained Dr. Childs, “[t]he choice of

anesthetics and other medications, their use, and the quan-

tities administered, were entirely appropriate.” ER 42 at 7;

see also, ER 44 at 4 (Dr. Hay-Roe) (“[i]f the petition intends

this as a basis of a disciplinary charge, it is without founda-

tion”); ER 45 at 8 (Dr. McNamara) (‘absolutely no cause

whatsoever for disciplinary action.”)

Respondents claimed Petitioner used “unlicensed nurse-

anesthetist Marilyn Andrade” on Patients 2 and 3. ER 1 at 4.

First, Andrade was a superb nurse who had worked for Peti-

tioner twenty years and was a past President of the Hawaii

Association of Nurse Anesthetists. ER 25, ER 41. Second,

Petitioner did not administer general anesthesia and

“AAAAPSF standards do not require a nurse anesthetist [to] be

employed [unless] general anesthesia is used.” ER 48 at 10.

Third, Petitioner supervised Andrade at all times during sur-

gery, and Haw. Rev. Stat. Section 453-2 exempts from licensure

nurses who perform “services rendered under the direction and

control of a physician[.]”

Respondents claimed Petitioner’s refund practices were

improper, which is false. ER 1 at 5-6. Petitioner did not refuse

any refunds, but if he had, he would have been within the law.

His contracts provide for forfeited deposits when patients can-

cel less than 14 days before surgery, which is standard. ER 33,

34. Patient 4 cancelled nine days before and Patient 5 cancelled

on the day of surgery. /d. “I know of no ethical rule of either

the AMA or the HMA,” said Dr. Hay-Roe, “that would prohibit

retaining the deposits[.]” ER 44 at 5.

Respondents accused Petitioner of poor record-keeping in

violation of the 1987 settlement agreement, which is false. ER

1 at 4. AAAAPSF inspector Dr. Vinnik declared, “no outpatient

plastic surgery facility keeps more complete records[.]” ER 48

at 3. Dr. Rizzo catled them, “very concise and down to the

point, with precise evaluation on each case[.]” ER 26 at 1.

Respondents charged Petitioner with “inconsistent mon-

itoring of oxygen saturation levels” during surgery on Patient

3, which is false. ER 1 at 4. Dr. McNamara declared:

The blood-oxygen saturation level is clearly

recorded all across each of the three pages of the

anesthesia record and one page of the recovery

record, with a series of 42 numbers, each in the 90s

or 100, each one recording the oxygen saturation

level for each quarter-hour of Surgery and each quar-

ter hour during the two hours of recovery.

ER 45 at 6. “Dr. Flowers’ accusers must have been hallucinat-

ing or under anesthesia themselves.” /d.

Respondents claimed Petitioner’s “use of certain drugs

indicates that he has not kept up with current practices,” which

is false. ER 1 at 4. “The types of medications, dosages, and

combinations,” said Dr. Child, “were not inappropriate, exces-

sive, or dangerous.” ER 42 at 8. “Whoever is responsible for

se Ae ne oe lai

writing this paragraph,” said Dr. Vinnik, “is totally ignorant of

anesthetic practice in an outpatient plastic surgery facility.” ER

48 at 10.

Respondents claimed Petitioner’s “electrocardiogram

strips were unreadable,” which is false. ER 1 at 4. Dr. Childs

called this, “untrue and irrelevant to the standard of care.” ER

42 at 9. “His EKG strips are entirely readable to me,” and

“they are rarely [used] in outpatient plastic surgery.” /d.

Respondents claimed Petitioner’s “immediate post-opera-

tive death rate” was “unusually high.” ER 1 at 4. Deaths occur

after surgery; they do not prove or even suggest negligence:

I am gravely concerned that the petition seeks to

impose severe disciplinary sanctions on Dr. Flowers

on the basis of, at best, a gross death rate without

any regard whatever to the underlying factors.

ER 45 at 12-13 (Dr. McNamara); see also, ER 42 at 11 (Dr.

Childs) (“it does not prove negligence[.]’’)

On May 13, 1994, after reviewing these uncontested affi-

davits, Judge Fong found, “this prosecution was brought with

rather weak evidence and without a strong basis to expect to

prevail.” Appendix D at 16. “[D]efendants have conducted

their investigation in a lackluster and unprofessional manner,”

declared Judge Fong, “and the tactics of their investigator are

highly questionable, to say the least[.]” /d.

On June 7, 1996, after reviewing these uncontested affi-

davits, the Ninth Circuit ordered Judge Fong to file a prelmin-

ary injunction. See Appendix F. “We agree with the district

court’s analysis,” wrote Judges Schroeder, Nelson and

Kozinski, “[w]Je disagree, however, with the court’s conclusion

that Dr. Flowers failed to demonstrate bad faith[.]” /d. at 4.

“Dr. Flowers has introduced undisputed evidence that effec-

tively negates each charge leveled against him by [Respon-

dents].” /d. “[They] have no reasonable expectation of

success.” /d. “Dr. Flowers has demonstrated that [Respondents]

are prosecuting him in bad faith[.]” /d. at 3.

ARGUMENT

A. THE SECOND DISTRICT COURT JUDGE

AND THE SECOND THREE-JUDGE PANEL

DISREGARDED LAW OF THE CASE.

“Inconsistency is the antithesis of the rule of law,” D.C.

Circuit Judge Randolph wrote recently, “the most basic princi-

ple of jurisprudence is that we must act alike in all cases of

like nature.” LaShawn v. Barry, 87 F.3d 1389, 1393 (D.C.Cir.

1996) (en banc), cert. denied, 521 U.S. 567 (1997), citing,

Ward v. Jones, [1966] Q.B. 273, 294 (C.A,) (quoting Lord

Mansfield in John Wilkes’ case, Rex v. Wilkes, 98 Eng. Rep.

327, 335 (1770)).

Two trial judges and two appellate panels issued conflict-

ing rulings in this case. Judges Fong, Schroeder, Nelson and

Kozinski found Flowers stated a claim for injunctive relief

against state officials prosecuting him in bad faith. Judges

Ezra, Sneed, Tashima and Silverman dismissed identical

charges for failure to state a claim.

The jurisdictional dispute — whether this Court's plurality

in Albright regarding prosecutions without probable cause now

bars injunctions of bad faith prosecutions authorized by Youn-

ger — has never been addressed by this Court. Regardless, the

conflict reflected in these rulings has undermined, “the finality

and efficiency of the judicial process[.]” Christianson v. Colt

Industries, 486 U.S. 800, 816 (1988).

Without en banc review or intervening authority from this

Court regarding Albright’s impact on Younger, and without

finding that prior determinations of jurisdiction were clearly

erroneous, One trial and three appellate judges blatantly disre-

garded the law of the case.

In 1988 this Court’s unanimous holding in Christianson

made clear that law of the case applies to repetitive jurisdic-

tional claims raised before multiple panels in the same case:

“As most commonly defined, the doctrine of the law

of the case posits that when a court decides upon a

rule of law, that decision should continue to govern

the same issues in subsequent stages of the same

with,

ere eee eT a eS eee ee eee

Pe Res a me

case.” Arizona v. California, 460 U.S. 605, 618

(1983) (dictum). This rule of practice promotes the

finality and efficiency of the judicial process by

“protecting against the agitation of settled issues.”

1B J. Moore, J. Lucus, & T. Currier, Moore’s Federal

Practice Section 0.404[1], p. 118 (1984).

Christianson, 486 U.S. at 815-816. “That the [first panel] did

not explicate its rationale is irrelevant,” declared the Court:

for the law of the case turns on whether a court

previously “decide[d] upon a rule of law” — which

the [first panel] necessarily did — not on whether or

how well, it explained the decision.

486 U.S. at 816 (emphasis added); see also, Al Tech Specialty

Steel v. Allegheny International Credit, 104 F.3d 601, 605 (3d

Cir. 1997) (“applies both to matters expressly decided and to

those decided by necessary implication”); Leslie Salt v. United

States, 55 F.3d 1388, 1392 (9th Cir.), cert. denied, 515 U.S.

678 (1995) (“even where the first panel’s holding was cryptic

and somewhat ambiguous”); Wright, Miller & Cooper, Federal

Practice and Procedure, V. 18, Section 4478 at 789 (1982)

(“when a court concludes that an issue was resolved implicitly

despite the lack of any explicit statement.”)

The Christianson decision made clear that law of the case

extends to jurisdictional questions. “{T]here is no reason to apply

law of the case principles less rigorously,” said nine justices of this

Court, “[to] decisions that implicate the [court’s] jurisdiction.” 486

U.S. at 816 n.5. “Perpetual litigation on any issue — jurisdictional

Or nonjurisdictional — delays, and therefore threatens to deny,

justice.” Id.; see also, LaShawn y. Barry, supra, 87 F.3d at 1394

(“the Supreme Court specifically rejected any jurisdictional ques-

tion exception to the law of the case doctrine”); Ferreira v. Borja,

93 F.3d 671, 674 (9th Cir. 1996), cert. denied, 520 U.S. 345 (1997)

(“jurisdictional reconsiderations can be as wasteful as any other

kind.”’)

Finally, while “the law of the case doctrine merely

expresses the practice of courts to refuse to reopen what has

been decided, not a limit to their power,” the Christianson

Court made clear that:

courts should be loathe to do so in the absence of

extraordinary circumstances such as where the initial

decision was “clearly erroneous and would work a

manifest injustice.” Arizona v. California, supra, 460

U.S. at 618 n.8[.]

486 U.S. at 817. This rule “is a heavy deterrent to vacillation

on arguable issues,” the Court cautioned, “such reversals

should be exceptional.” 486 U.S. at 819. “The law of the case

will be disregarded only when the court has a clear conviction

of error.” /d., quoting, Fogel v. Chestnutt, 668 F.2d 100, 109

(2d Cir. 1981); see also Jeffries v. Wood, 114 F.3d 1484, 1489

(9th Cir. 1997) (en banc) (“[t]he prior decision should be

followed unless [it] is clearly erroneous[.]’’)

Virtually every circuit — including the Ninth — has cited

and applied the Christianson doctrine to jurisdictional ques-

tions resolved in prior appeals in the same case:

Surely a court that has decided it has jurisdiction is

not duty-bound to entertain thereafter a series of

repetitive motions to dismiss for lack of jurisdiction.

Jurisdictional reconsiderations can be as wasteful as

any other kind. See Christianson, 486 U.S. at 816-17

n.5. In this case, for example, Mafnas vigorously

presented her jurisdictional argument in the prior

appeal and the issue was decided against her. A

decision was reached on the merits and a remand

followed, as did further proceedings in the CNMI

Supreme Court. The current appeal is not the place

to redetermine what was decided on the prior appeal.

Ferreira v. Borja, supra, 93 F.3d at 674.!

' See also, LaShawn v. Barry, supra, 87 F.3d at 1393; South Carolina

State Ports Authority v. Silver Anchor, 23 F.3d 842, 847 (4th Cir. 1994):

Black v. Lane, 22 F.3d 1395, 1405 (8th Cir. 1994); U.S. v. Local 560

(1.B.T.), 974 F.2d 315, 330 (3rd Cir. 1992); In re Memorial Estates, 950

F.2d 1364, 1367 (7th Cir. 1991), cert. denied, 504 U.S. 986 (1992); Trans

World Airlines v. Morales, 949 F.2d 141, 143 (Sth Cir. 1991); Parker y.

King, 935 F.2d 1174, 1177 (11th Cir. 1991).

As Judge Randolph noted in LaShawn, law of the case as

applied to courts of appeal necessarily implicates the related

doctrine of intracircuit stare decisis. “Courts of appeals sit in

panels, or divisions, of not more than three judges,” he wrote,

“pursuant to the authority granted in 28 U.S.C. § 46(c).” 87

F.3d at 1395. “The decision of a division is the decision of the

court.” /d., citing, Textile Mills v. Commissioner, 314 U.S. 326

(1941). “Were matters otherwise,” declared the D. C. court en

banc, “the finality of our appellate decisions would yield to

constant conflicts within the circuit.” /d. “One three-judge

panel, therefore, does not have the authority to overrule

another three-judge panel of the court.” /d. “[T]he same issue

presented a second time in the same court should lead to the

same result.” Id. at 1393 (emphasis in original). “When there

are multiple appeals taken in the course of a single piece of

litigation, law of the case holds that decisions rendered on the

first appeal should not be revisited on later trips to the appel-

late court.” /d.

Intracircuit conflicts and law of the case are matters of

special concern in the Ninth Circuit, the largest of the courts of

appeal. See 28 U.S.C. § 44. “The Ninth Circuit’s 28 judges can

be combined into 3276 different three-judge panels,” notes a

practice guide discussing intracircuit conflicts:

The principal way that the Ninth Circuit avoids hav-

ing these shifting three-judge panels issue conflict-

ing decisions is to follow a rule of intracircuit stare

decisis: panel decisions bind subsequent panels

except in certain narrow situations[.]

Ulrich, Kessler and Anger, Federal Appellate Practice Guide:

Ninth Circuit, Section 8-19 at 8-35 (1994); see also, Goelz and

Watts, Rutter Group Practice Guide: Federal Ninth Circuit

Civil Appellate Practice, Vol. Il, Section 12:350 at 12-48.2

(1999) (“an appellate panel will not reconsider issues previ-

ously decided by another panel on the same case.”)

Law of the case applied here. Judge Fong clearly found

Petitioner stated a claim for injunctive relief under Younger in

his 1994 rulings. See Appendices D and E. The Ninth Circuit

similarly rejected Respondents’ Albright arguments in 1996

before reaching the merits, reversing Judge Fong’s abstention

ruling, and ordering a preliminary injunction. See Appendix F.

In Trans World Airlines v. Morales, supra, a district judge

granted a preliminary injunction in favor of four airlines

against the attorneys general of 24 states, overruling objections

that the airlines failed to state a claim. 949 F.2d at 143. The

Fifth Circuit affirmed in Trans World Airlines v. Mattox, 897

F.2d 773 (Sth Cir. 1990), without addressing jurisdiction,

although challenged by the states. When the district court later

entered a permanent injunction, the 24 states again appealed

and again challenged jurisdiction:

Defendants’ arguments on this issue are substantially

the same as made in the prior appeal. While the prior

opinion does not explicitly discuss it. the necessary

assumption is that the prior panel found subject

matter jurisdiction present. Otherwise, the panel

would not have reached the merits and affirmed the

preliminary injunction.

949 F.2d at 144 (emphasis added). “Defendants’ arguments in

the prior appeal on this issue were substantially the same and

the panel implicitly found subject matter jurisdiction.” Jd.

Similarly, in U.S. v. Local 560 (1.B.T.), supra, the Third

Circuit confirmed jurisdiction adopted in a preliminary appeal:

A trial court, in deciding whether to grant permanent

relief, is not bound by its decision or the appellate

court's decision about preliminary relief. The burden

of proof on a moving plaintiff is different on a

motion for preliminary injunction. [Citation omit-

ted]. When, however, a party seeking a preliminary

injunction files its complaint in a procedurally defec-

tive way that would require dismissal of the suit,

either because the court lacks jurisdiction or for

some other reason, and the defendant raises the

objection on appeal, the appellate court's rejection

of that argument on appeal becomes law of the case.

Unlike merits questions, on which there is a different

standard of proof in the preliminary phase and the

permanent phase, the procedural question is the same

in both phases. If a procedural defect would require

dismissal of the suit, the merits are irrelevant, and

the court has no power to issue any relief, prelimi-

nary or otherwise. Because Sciarra raised these pre-

cise procedural arguments during his appeal from

: the preliminary injunction, by affirming and refusing

to dismiss the suit we rejected these arguments,

4 establishing the law of the case.

974 F.2d at 330 (emphasis added). “When an appellate court

decides a legal issue, that decision governs all subsequent

proceedings in the same case.” /d. at 329. “Had we found any

merit in any of the three arguments just mentioned,” observed

the court, “we would have been compelled to vacate the pre-

liminary injunction[.]” /d. “By affirming, we rejected those

arguments, all actually pressed, on the merits, and our decision

is the law of the case.” /d. at 330.

hime Chart Tiras Sebati bitte

“Ordinarily,” acknowledges Petitioner, “a conflict between

decisions rendered by different panels of the same court of

appeals is not a sufficient basis for granting a writ of cer-

tiorari.” Stern, R. L., Supreme Court Practice, Section 4.6 at

176 (6th ed. 1986). “[S]uch differences of view are deemed an

intramural matter to be resolved by the court of appeals itself.”

Id., quoting Justice Harlan, “Manning the Dikes,” 13 Record of

N.Y.C. Bar Ass'n 541, 552 (1958).2

The primary issue here, however, is law of the case. See

Taylor v. F.D.1.C., 132 F.3d 753, 761 (D.C.Cir. 1997) (“[lJaw of

the case, yes; law of the circuit, no.”) “An appellate court

cannot efficiently perform its duty to provide expeditious jus-

tice to all,” said a Ninth Circuit en banc panel in a similar case:

if a question once considered and decided were to be

litigated anew in the same case upon any and every

subsequent appeal.

* Certiorari has been granted, however, because of intracircuit

conflicts. See, e.g., Dickinson v. Petroleum Conv. Corp., 338 U.S. 507, 508

(1950); Maggio v. Zeitz, 333 U.S. 56, 59 (1948); Scarborough v. U.S., 431

U.S. 563, 567 n.4 (1977); U.S. ex rel. Robinson v. Johnson, 316 U.S. 649,

649 (1941) (“[i]n view of the conflict of views which has arisen among the

judges of the Ninth Circuit with respect to the decision in this case.’’)

Jeffries v. Wood, supra, 114 F.3d at 1489. “[W]hen a court

decides upon a rule of law, that decision should continue to

govern the same issues in subsequent stages in the same case.”

Christianson v. Colt Industries, supra, 486 U.S. at 816.

B. THIS COURT’S NARROW PLURALITY IN

ALBRIGHT DISALLOWING CLAIMS BASED

ON PROSECUTION WITHOUT PROBABLE

CAUSE, DID NOT OVERRULE YOUNGER OR

ELIMINATE FEDERAL INJUNCTIVE RELIEF

AGAINST BAD FAITH PROSECUTIONS.

For nearly a hundred years, this Court has recognized a

federal remedy against bad faith state prosecutions. See Ex

Parte Young, 209 U.S. 123, 156 (1908). “[I]n cases of proven

harassment or prosecutions undertaken by state officials in bad

faith without hope of obtaining a valid conviction,” said this

Court in 1971, “federal injunctive relief against pending state

prosecutions [is] appropriate.” Perez v. Ledesma, 402 U.S. 82,

85 (1971). “These circumstances,” said this Court in Younger v.

Harris, 40! U.S. 37 (1971):

sufficiently establish the kind of irreparable injury,

above and beyond that associated with the defense of

a single prosecution brought in good faith, that has

always been considered sufficient to justify federal

intervention.

401 U.S. at 48.

Contrary to Judge Ezra’s 1998 ruling, bad faith is not

Synonymous with prosecution without probable cause. “Bad

faith” describes a prosecution “brought without a reasonable

expectation of obtaining a valid conviction.” See Appendix F at

4, quoting, Kugler v. Helfant, 421 U.S. 117, 126 n.6 (1973);

see also, Trainor v. Hernandez, 431 U.S. 434, 442 n.7 (1977)

(“prosecutions undertaken by state officials in bad faith with-

out hope of obtaining a valid conviction”); Gibson v. Berryhill,

411 U.S. 564, 574 (1973) (“special circumstances suggesting

bad faith”); Cameron v. Johnson, 390 U.S. 611, 619 (1968)

(“the statute was enforced against them .. . in bad faith

. with no expectation of obtaining convictions”); Dom-

browski v. Pfister, 380 U.S. 479, 482 (1965) (“threats to

enforce the statutes against appellants are not made with any

expectation of securing valid convictions.”)

“[T]he court is persuaded,” said Judge Fong in May 1994,

“that this prosecution was brought with rather weak evidence

and without a strong basis to expect to prevail.” Appendix D at

16. “We are persuaded,” declared the Ninth Circuit in June

1996, “that the RICO defendants have no reasonable expecta-

tion of success.” Appendix F at 4. “Plaintiff also alleges,”

conceded Judge Ezra in 1998, “that Defendants violated his

civil rights under 42 U.S.C. § 1983 because the petition was

filed in bad faith without a reasonable chance of success.”

Appendix B at 3. “[A]bstention under Younger,” acknowledged

the Ninth Circuit in 1999, “was inappropriate given evidence

of appellees’ bad faith.” Appendix A at 2.

So how did Petitioner fail to state a claim?

According to Judge Ezra, this Court’s holding in Younger

“did not create a cause of action for bad faith.” Appendix A at

25. According to Judge Ezra:

Plaintiff alleges that the type of bad faith discussed

in Younger is sufficient to allege a federal cause of

action. While Younger, and the cases following it,

discuss bad faith, they do not create a cause of action

for bad faith. Instead, they discuss whether the case

before the court falls into the bad faith exception

under Younger, and whether, based upon this, the

federal court should decline to abstain, and instead

allow the federal case to proceed, and stay the state

proceedings.

ER 78 at 25. “[NJeither the Ninth Circuit nor this court has

held,” said Judge Ezra, “that Plaintiff properly alleged a cause

of action under § 1983 for violation of Plaintiff’s constitutional

right to be free from bad faith prosecution.” /d.

Judge Ezra is wrong. In 1994 Judge Fong rejected identi-

cal arguments in Respondents’ first motion to dismiss:

Defendants rely on a recent Supreme Court case,

Albright v. Oliver [510 U.S. 266] (1994), in which

the court declined to recognize a substantive due

process right “to be free from criminal prosecution

without probable cause.” The Court held that plain-

tiff could not sustain a § 1983 action without identi-

fying a specific constitutional right which was

infringed.

Appendix D at 7. “In the instant action, however,” said Judge

Fong, “plaintiff has asserted a specific constitutional right -

the right to be free from bad faith prosecution[.]” /d. “While

Albright stands for the principle that there is no constitutional

right to be free from prosecution without probable cause,”

noted Judge Fong, “the constitutional right to be free from bad

faith prosecutions is well established.” /d. at 8.

Judge Fong quoted Shaw v. Garrison, 467 F.2d 113 (Sth

Cir). cert. denied, 409 U.S. 1024 (1972), the seminal Fifth

Circuit decision that came down shortly after Younger:

a showing of bad faith or harassment is equivalent to

a showing of irreparable injury for purposes of the

comity restraints defined in Younger, because there

is a federal right to be free from bad faith prosecu-

tions.

Appendix D at 8, quoting, Shaw, 467 F.2d at 129 (emphasis by

Judge Fong). Judge Fong made clear that the constitutional tort

of bad faith did not begin with Younger or Shaw:

The power of the federal courts to enjoin bad faith

prosecutions predates Shaw. See Dombrowski v. Pfis-

ter, 380 U.S. 479, 486 (1965): Ex Parte Young, 209

U.S. 123 (1908). Moreover, the Ninth Circuit has

specifically found that federal courts have jurisdic-

tion over a physician’s § 1983 action to enjoin pend-

ing license revocation proceedings. See Privitera v.

California Board of Medical Quality Assurance, 926

F.2d 890 (1991).

ER 55 at 9. “While there remains the question of whether the

court should abstain, the court has jurisdiction over this § 1983

action on the basis of plaintiff’s allegation of bad faith.” /d.

In Shaw, supra, a man charged with involvement in the

assassination of President John F. Kennedy alleged that he:

ELT Tein ee WA LINAS PG DS AAT Vee PT NE: A PD ILE DSL Ae RO

suffered grave and irreparable injury as a result of

the state perjury prosecution brought in bad faith and

in furtherance of [New Orleans Prosecutor Jim] Gar-

rison’s scheme of harassment and intimidation of

Shaw.

467 F.2d at 115. Shaw claimed Garrison utilized “the state’s

legal machinery” to prosecute him “with no hope of success in

obtaining a conviction.” Shaw v. Garrison, 328 F.Supp. 390,

392 (E.D.La. 1971). He did not claim denial of due process or

equal protection, or prosecution without probable cause. Shaw

obtained injunctive relief under Younger because Garrison used

his office to bring a prosecution “with no hope of success.” /d.

“Ordinarily a pending state prosecution provides the

accused a fair and sufficient opportunity for vindication of

federal constitutional rights,” explained the same court in Piz-

zolato v. Perez, 524 F.Supp. 914 (E.D.La. 1981), “{but where]

the element of bad faith or harassment exists, the above pre-

sumptions cease to operate.” 524 F.Supp. at 920-921. “The

effect of showing a bad faith prosecution is equivalent to a

showing of irreparable injury.” /d.

Judge Fong cited Privitera v. California Board of Medical

Quality Assurance, supra, which recognized a physician’s

claim for injunctive relief under Younger against a bad faith

State medical license revocation proceeding:

Privitera’s complaint seeks to enjoin the revocation

proceeding, which he alleges represents the culmina-

tion of a pattern of unjust harassment in violation of

his federal constitutional rights.

926 F.2d at 892. “Privitera’s whole claim for relief,” declared

the Ninth Circuit, “is based on the alleged violation of his

constitutional rights because of [the state’s] harassing prosecu-

tion.” /d. at 898. “[I]t is difficult to see how Privitera has failed

to demonstrate any likelihood of success on the merits if he has

in fact shown that proceeding was brought in bad faith[.]” /d.

“The Court in Younger suggested that a prosecution brought in

bad faith or for harassment could cause irreparable injury

sufficient to justify an injunction.” /d., citing, Bishop v. State

Bar of Texas, 736 F.2d 292, 294 (Sth Cir. 1984) (“irreparable

injury under Younger is established by a sufficient showing of

retaliatory or bad faith prosecution”) and Fitzgerald v. Peek,

636 F.2d 943, 944 (Sth Cir.), cert. denied, 422 U.S. 916 (1981)

(“injury independent of bad faith need not be established.”)

By instigating a license revocation which, in their own

words, “may, or may not, lead eventually to disciplinary sanc-

tions,” Respondents charged Petitioner “with no reasonable

belief that a conviction will follow.” Pizzolato, 524 F.Supp at

922; see also, Sheridan v. Garrison, 415 F.2d 699, 796 (Sth Cir.

1969) (“using or threatening to use prosecutions regardless of

their outcome”); Westin v. McDaniel, 760 F.Supp. 1563, 1571

(M.D.Ga.), aff'd. 949 F.2d 1163 (11th Cir. 1991) (“undertaken

with no valid hope of conviction”); Universal Amusement vy.

Texas, 404 F.Supp. 33, 48 (S.D.Tex. 1978) (“the authorities

could not believe, however, that Dexter would ultimately be

convicted.”)

“The harm posed by bad faith prosecution is both immedi-

ate and great.” Collins v. County of Kendall, Illinois, 807 F.2d

95, 98 (7th Cir. 1980). “[I]t can put the plaintiffs out of

business without ever convicting them of anything.” Krahm vy.

Graham, 461 F.2d 703, 705 (9th Cir. 1972). “The right under

Shaw is to be free from bad faith charges and proceedings, not

to endure them until their speciousness is eventually recog-

nized.” Bishop, supra, 736 F.2d at 294.

According to Respondents, “Shaw is superseded by

Albright.” ER 56 at 6. Judge Ezra agreed:

The right to be free from bad faith or malicious

prosecution, while important, can be protected

through other procedural safeguards. It is not gener-

ally the type of right which has historically been

offered protection through the substantive due pro-

cess clause.

Appendix B at 11. “Plaintiff’s claim here is a claim for mali-

cious or wrongful prosecution,” said Judge Ezra, “substantive

due process may not furnish the constitutional peg on which to

hang a tort for malicious prosecution.” /d. at 13 n.2, quoting

Albright.

Judge Ezra mischaracterized Petitioner’s claims.

First, he treated bad faith under Younger interchangeably

with malicious prosecution under Albright, which misconstrued

the complaint and misinterpreted Younger and Albright.

Second, Judge Ezra “ignores the issue of bad faith.”

Appendix D at 8. Neither Albright nor any cases citing this

four-page, four-justice plurality have discussed, limited, or

analyzed “the constitutional right to be free from bad faith

prosecutions.” If “Shaw is superseded by Albright,” then why

didn’t Albright discuss Younger, Shaw, or bad faith prosecu-

tions filed without hope of obtaining a conviction?

Third, Judge Ezra cited no authority for his ipse dixit

holding that “the right to be free of bad faith” can “be pro-

tected through other available procedural safeguards.” /d. at

11. The cases suggest the opposite. Younger and Dombrowski

protect federal plaintiffs from trial “where there is no reason-

able hope of obtaining a conviction.” Perez. 401 U.S. at 118

n.ll. “The threat itself is a constitutiona! deprivation,”

explained Justice Brennan in Perez, “since it subjects a person

to a burden of criminal defense which he should not have to

bear.” /d. at 118.

Finally, the 1999 Ninth Circuit panel declares:

The district court was correct in concluding that

Flowers’s [sic] claim of bad faith prosecution was

insufficient to state a claim under § 1983. He had not

alleged a violation of procedural due process. And

his allegations of bad faith prosecution did not fall

within the ambit if the right to substantive due pro-

cess. In analyzing executive, as opposed to legisla-

tive, action in the context of substantive due process,

“only the most egregious official conduct can be said

to be arbitrary in the constitutional sense.” County of

Sacramento v. Lewis, [S23 U.S. 833, 846] (1998).

Appendix A at 2. “None of Flowers’s [sic] allegations rises [sic] to

the level of egregious conduct,” concludes the panel, “against

which the Due Process Clause provides protection.” /d.+

The 1996 panel 1) rejected identical arguments, 2) found, “a

harassing motivation irrespective of the evidence,” 3) declared, “[a]

prosecution is brought in bad faith if it is brought without a

reasonable expectation of obtaining a valid conviction,” and 4)

said, “[w]e are persuaded that [Respondents] have no reasonable

expectation of success.” Appendix F at 4.

This Court should reinstate the earlier opinion.

CONCLUSION

Petitioner respectfully requests certiorari, vacate the April 6,

1999, opinion, reverse the February 13, 1998, dismissal, restore the

preliminary injunction, and remand for trial.

Respectfully submiited,

Peter VAN NAME EsSER

Counsel of Record

Davip L. Turk

Suite 400, Seven Waterfront Plaza

500 Ala Moana Boulevard

Honolulu, Hawaii 96813

(808) 538-3636

Attorneys for Petitioner

Robert S. Flowers, M.D.

OCTOBER 1999.

3 The panel's reliance on Lewis is misplaced. Lewis, like Albright, is

not a bad faith case. See 523 U.S. at 855 (“there is no reason to believe that

they were tainted by an improper or malicious motive.”) The “shock the

conscience” test described in Lewis does not apply when state officials act

in “bad faith.”

App. 1

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT S. FLOWERS, M.D., No. 98-15440

Plaintiff-Appellant,

SHERRIE T. SEKI, CYNTHIA S.

NAKAMURA, individually and

in their official capacities as

attorneys for the Regulated

Industries Complaints Office,

Department of Consumer

Affairs, State of Hawaii;

CLIFFORD K. HIGA, in his

official capacity as Director of

)

) .D.C. No.

)

the Department of Commerce

)

CV-94-00190-DAE

MEMORANDUM*

(Filed Apr. 6, 1999)

and Consumer Affairs, State of

Hawaii, SHARON ON LENG,

in her official capacity as

Complaints and Enforcement

Officer of the Regulated

Industries Complaints Office,

Department of Consumer

Affairs, State of Hawaii and

JOHN DOES 1-20; IRENE

NAKANO, OWEN TAMAMOTO;

individually and in their

official capacity as attorneys

for the Regulated Industries

“This disposition is not appropriate for publication and may not

be cited to or by the courts of this circuit except as provided by

9th Cir. R. 36-3.

App. 2

Complaints Office, Department

of Consumer Affairs, State of

Hawaii; EARL HARADA

individually and in his official

capacity as investigator for the

Regulated Industries Complaints

Office, Department of Consumer

Affairs, State of Hawaii;

KATHRYN MATAYOSHI,

individually and in her official

capacity as Director of the

Department of Commerce and

Consumer Affairs, State of

Hawaii,

me ee ee ee ee ee ee ee ee ee”

Defendants-Appellees.

Appeal from the United States District Court

for the District of Hawaii

David A. Ezra, District Judge, Presiding

Argued and Submitted January 12, 1999

San Francisco, California

Before SNEED, TASHIMA, and SILVERMAN, Circuit

Judges.

Robert S. Flowers, M.D., appeals the district court's

dismissal of his amended complaint alleging that the

appellees violated 42 U.S.C. § 1983 by investigating him

in bad faith in medical license revocation proceedings.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

affirm.

Neither this court’s prior memorandum decision nor

the district court’s prior rulings constituted law of the

case and precluded the dismissal of Flowers’s amended

complaint. In the previous appeal, a panel of this court

App. 3

held only that abstention under Younger v. Harris, 401 U.S.

37 (1971), was inappropriate given evidence of the appel-

lees’ bad faith. The panel, however, did not explicitly or

implicitly find that Flowers alleged a sufficient injury to

state a claim under section 1983 or even consider the

issue. Moreover, although the district court previously

had stated in general terms that the right to be free from

bad faith prosecution was protected by the Constitution,

it had not determined that Flowers’s specific cause of

action was cognizable under section 1983. Thus, the law

of the case doctrine did not bar consideration of the

sufficiency of Flowers’s amended complaint. See Milgard

Tempering, Inc. v. Selas Corp. of Am., 902 F.2d 703, 715 (9th

Cir.1990).

The district court was correct in concluding that

Flowers’s claim of bad faith prosecution was insufficient

to state a claim under section 1983. He had not alleged a

violation of procedural due process. And his allegations

of bad faith prosecution did not fall within the ambit of

the right to substantive due process. In analyzing execu-

tive, as opposed to legislative, action in the context of

substantive due process, “only the most egregious official

conduct can be said to be ‘arbitrary in the constitutional

sense.” County of Sacramento v. Lewis, 118 S.Ct. 1708,

1716 (1998) (quoting Collins v. Harker Heights, 503 U.S. 115,

129 (1992)). The Supreme Court has explained that “for

half a century now we have spoken of the cognizable

level of executive abuse of power as that which shocks

the conscience.” Id. at 1717. None of Flowers’s allegations

rises to the level of egregious conduct against which the

Due Process Clause provides protection.

AFFIRMED.

App. 4

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

CV. NO.

94-00190DAE

ROBERT S. FLOWERS, M.D.,

Plaintiff,

(Filed Feb. 13,

1998)

VS.

)

SHERRIE T. SEKI, CYNTHIA S. __?

NAKAMURA, IRENE M. )

NAKANO, OWEN K. TAMAMOTO, ?

individually and in their official —?

capacities as attorneys for the )

Regulated Industries Complaint )

Office, Department of Consumer )

Affairs, State of Hawaii; EARL )

HARADA, individually and in his )

official capacities as investigator )

for the Regulated Industries )

Complaint Office, Department of )

Consumer Affairs, State of Hawaii; )

KATHRYN S. MATAYOSHI, in her?

official capacity as Director of )

the Department of Commerce and )

Consumer Affairs, State of Hawaii; )

and SHARON ON LENG, in her)

official capacity as Complaints )

and Enforcement Officer of the )

Regulated Industries Complaints )

Office, Department of Consumer )

Affairs, State of Hawaii; and )

JOHN DOES 1-20,

)

Defendants.

San

App. 5

ORDER GRANTING DEFENDANTS’ MOTION TO

DISMISS OR FOR SUMMARY JUDGMENT

The court heard Defendants’ Motion on January 5,

1998. David L. Turk, Esq., appeared at the hearing on

behalf of Plaintiff; Kenneth S. Robbins, Esq., and Deputy

Attorney General David A. Webber, appeared at the hear-

ing on behalf of Defendants. After reviewing the motion

and the supporting and opposing memoranda, the court

GRANTS Defendants’ Motion to Dismiss for failure to

state a claim.

BACKGROUND

This case has a tortured and extended history.

Because the instant motion is dispositive, and this court

has issued previous orders cited by the parties, and rele-

vant hereto, a discussion in some detail of the back-

ground of the case is necessary.

This case arises from a Hawaii state license revoca-

tion proceeding charging Plaintiff, a plastic surgeon, with

gross negligence and manifest incapacity under Hawaii

Revised Statutes Chapter 453. Defendants are officials

and employees of the State of Hawaii who investigate

and prosecute complaints against those with licenses

issued by the State of Hawaii. Specifically, Defendants are

employees in some capacity of the Department of Com-

merce and Consumer Affairs (“DCCA”). The controversy

in the instant proceeding is based upon an investigation

and petition filed by the attorneys at the Regulated

Industries Complaints Office (“RICO”), a division of

DCCA. Each of the Defendants is alleged to be in some

App. 6

manner involved in the proceedings pending against

Plaintiff.

Defendants Seki, Nakano and Tamamoto are staff

attorneys employed by RICO. Defendant Nakamura is a

supervising attorney employed by RICO, and Defendant

On Leng is the Complaints and Enforcement Officer, and

heads RICO. Defendant Harada is an investigator

employed by DCCA, working in the RICO division. And

finally, Defendant Matayoshi heads DCCA, and as Direc-

tor she presides over RICO. While the Board of Medical

Examiners is the State agency that adjudicates the com-

plaints over physicians within the State of Hawaii, the

investigative as well as charging authority for the com-

plaints is delegated to RICO.

The first RICO investigation into Plaintiff’s profes-

sional activities was the result of earlier charges lodged

against Plaintiff. After some discussion, Plaintiff and

RICO entered into a Settlement Agreement in 1988. The

Settlement Agreement restricted Plaintiff’s practice and

required RICO monitoring and individualized reporting.

After the 1988 Settlement, more complaints were filed

against Plaintiff, and a new investigation was commenced

in February 1991. On December 17, 1993, Defendant Seki

filed a petition in the Office of Administrative Hearings,

so that a hearing could be conducted on the new com-

plaints. On March 9, 1994, Plaintiff filed the above-enti-

tled action, requesting declaratory and injunctive relief,

as well as damages. Plaintiff also alleges that Defendants

violated his civil rights under 42 U.S.C. § 1983 because

the petition was investigated and filed in bad faith with-

out a reasonable expectation of success. Plaintiff contends

that Defendants conspired to violate his constitutional

Bi ii ahead Wi eatin

WE DAA CI ate ESI Balai Rtchl aaa POR PC ai

;

App. 7

rights, and that the supervising Defendants were deliber-

ately indifferent to such violations. Plaintiff asserts state

law claims of intentional and negligent infliction of emo-

tional distress, negligent supervision, and defamation.

On the same day that Plaintiff filed this complaint, he

filed a preliminary injunction requesting emergency

relief. The late District Court Judge Harold M. Fong

determined that abstention pursuant to Younger v. Harris,

401 U.S. 37 (1971), was appropriate, and denied the

Motion for Preliminary Injunction staying the federal

proceedings pending the outcome of the state administra-

tive action.

The Ninth Circuit reversed Judge Fong’s Order,

vacated the stay, and instructed the district court to enter

a preliminary injunction. In its memorandum opinion, the

Ninth Circuit found that Defendants were prosecuting

Plaintiff in bad faith, and that abstention under Younger

was therefore inappropriate. Pursuant to the Ninth Cir-

cuit’s opinion, this court granted Plaintiff’s Motion for

Preliminary Injunction.

On October 30, 1997, Defendants filed the instant

Motion to Dismiss or for Summary Judgment alleging

Plaintiff failed to state a federal claim, and various

defenses to Plaintiff’s claims. While Defendants focus on

whether they are entitled to immunity, Defendants also

claim that Plaintiff failed to state a federal cause of action.

Plaintiff filed his Opposition on December 18, 199’, and

Defendants replied on December 23, 1997.

App. 8

STANDARD OF REVIEW

A motion to dismiss will be granted where the plain-

tiff fails to state a claim upon which relief can be granted.

Fed. R. Civ. P. 12(b)(6). For the purposes of a 12(b)(6)

motion, “[r]leview is limited to the contents of the com-

plaint.” Clegg v. Cult Awareness Network, 18 F.3d 752, 755

(9th Cir. 1994).

A complaint should not be dismissed “unless it

appears beyond doubt that plaintiff can prove no set of

facts in support of [her] claim which would entitle [her]

to relief.” Buckey v. County of Los Angeles, 968 F.2d 791, 794

(9th Cir. 1992) (quoting Love v. United States, 915 F.2d

1242, 1245 (9th Cir. 1989)) (further citations omitted). All

allegations of material fact are taken as true and con-

strued in the light most favorable to the plaintiff. Id. Civil

rights complaints are to be liberally construed. Id. (citing

Gobel v. Maricopa County, 867 F.2d 1201, 1203 (9th Cir.

1989)).

To the extent, however, that “matters outside the

pleadings are presented to and not excluded by the court,

the motion shall be treated as one for summary judg-

ment.” Fed. R. Civ. P. 12(b); Del Monte Dunes at Monterey,

Ltd. v. Monterey, 920 F.2d 1496, 1507 (9th Cir. 1990).

DISCUSSION

I. Rule 56(f) Continuance.

Plaintiff requested a continuance under Federal Rule

of Civil Procedure 56(f). Plaintiff contends that he was

unable to depose Defendants Seki and Nakamura regard-

ing their roles in the Flowers investigation, or the scope

ow tance eel

App. 9

of their duties at RICO. Plaintiff's Opp. at 40. Based upon

the following discussion, the court finds that additional

discovery will not cure the deficiencies present in Plain-

tiff’s federal claim or assist Plaintiff in defending against

this motion.

Il. 42 U.S.C. § 1983.

Plaintiff alleges a cause of action under 42 U.S.C.

§ 1983, against each of the Defendants. The court will

consider this cause of action first as it forms the basis for

federal jurisdiction.! Plaintiff contends that he is entitled

to damages from Defendants Seki, Nakamura, Tamamoto,

and Harada under § 1983 “for instituting and/or main-

taining an ongoing bad faith prosecution and investiga-

tion in violation of Dr. Flowers’ constitutional rights

under the privileges and immunities clause of the United

States Constitution and the Fifth and Fourteenth Amend-

ments to the United States Constitution.” First Amended

Complaint at { 201. Plaintiff also alleges that Defendants

Nakamura, Nakano, Tamamoto, and Harada conspired to

violate his constitutional rights. Id. at J 204. Plaintiff

asserts that Defendants Nakamura and Matayoshi, were

deliberately indifferent, and knew or should have known,

that “Defendants Seki, Nakano, Tamamoto, and Harada

' The court notes that the majority of the moving and

opposing papers focus on immunity, however, the court finds

that the more significant issue is whether Plaintiff has in fact

stated a federal claim. The court addressed such a query to both

parties at oral argument, and indicated its concern at that time

that a federal claim may not be alleged on these facts. The court

again concentrates on this inquiry in this Order.

App. 10

were engaged and continue to engage in a bad faith

prosecution and investigation of Dr. Flowers,” and failed

to properly supervise Defendants Seki, Nakano, Tam-

amoto, and Harada, thus adopting or ratifying their

actions. First Amended Complaint at ¥ 207. Section 1983

is the basis for each of Plaintiff’s federal claims. Hence, to

remain in federal court, Plaintiff must properly allege a

violation of 42 U.S.C. § 1983 upon which relief can be

granted.

To assert a claim under 42 U.S.C. § 1983, Plaintiff

must allege that he was deprived of a specific constitu-

tional right by Defendants, who are unquestionably state

actors. Siegert v. Gilley, 500 U.S. 226, 132 (1991). In deter-

mining jurisdiction, this court previously characterized

Plaintiff’s constitutional right in this case as a substantive

due process right, and stated that “Plaintiff's relief

depends upon establishing the applicability and validity

of his claims under the Fourteenth Amendment.” January

30, 1997 Order Adopting Magistrate’s Findings and Rec-

ommendations that Plaintiff’s Motion to have the Appel-

late Court’s Finding of Bad Faith to be Law of the Case be

Granted in Part and Denied in Part at 4-5. At this time the

court is compelled to review Plaintiff's federal claim

again to determine if it can survive a motion to dismiss.

Thus, it being clear that Defendants are state actors, the

court will focus its discussion on whether Plaintiff has

alleged a deprivation of a specific constitutional right.

A. Substantive Due Process.

At the outset it must be noted that it is difficult to

determine what Plaintiff asserts as the basis for his

App. 11

substantive due process right, and thus his § 1983 claim.

It appears Plaintiff is asserting a federal constitutional

right to be free from bad faith prosecution. Plaintiff

makes a conclusory allegation that he “need not show

independent harm from this license revocation proceed-

ing because he has a constitutional right to be free from

bad faith investigation and prosecution.” Plaintiff’s Opp.

at 32. In a footnote Plaintiff insists that “Judge Harold

Fong made this ruling in his May 13, 1994, [sic] order

denying Dr. Flowers’ motion for preliminary injunc-

tion . . . (“[i]f plaintiff successfully establishes that the

presecution [sic] itself is proceeding in bad faith, then the

due process safeguards of the prosecution are of no

avail[.]”).” Id.

Plaintiff analogizes his cause of action to that in

Mishler v. Nevada State Board of Medical Examiners, 896 F.2d

408 (9th Cir. 1990). In Mishler the Ninth Circuit held that

the plaintiff stated a cause of action under 42 U.S.C.

§ 1983 for deprivation of his property without due pro-

cess. Mishler, 896 F.2d 408, 409 (1990). The Ninth Circuit

there found that “an essential element of a professional

license, part of the property comprising the license, is the

right to have one’s good standing in the profession certi-

fied by the agency that has issued the license.” Id. at 410.

Plaintiff compares his constitutional claims to those of the

plaintiff in Mishler, stating that Plaintiff has “a cloud over

his license [as a result of the license revocation proceed-

ings} that has reduced his practice and denied him hospi-

tal privileges.” Plaintiff's Opp. at 33. However, more

importantly, Plaintiff distinguishes his claim from that of

the plaintiff in Mishler by stating:

App. 12

In Mishler the physician claimed only a denial of

due process, which requires deprivation of a

protected interest for an action under Section

1983. . . . In contrast, Dr. Flowers has charged

Defendants with bad faith, and filing a Petition

“without a reasonable expectation of obtaining a

valid conviction.”

Plaintiff’s Opp. at 34. Thus, Plaintiff is not asserting a

deprivation of property, and is instead claiming that he

has a constitutional right to be free from bad faith pros-

ecution. Defendants contest the existence of such a right,

and Plaintiff has failed to point to any case which estab-

lishes its existence as a substantive due process right in

the Ninth Circuit. On a motion to dismiss, the court must

consider whether such a right exists, and whether Plain-

tiff has stated a claim upon which relief can be granted

for deprivation of that right.

Substantive due process refers to certain actions that

the government may not engage in, no matter how much

process is afforded. Blaylock v. Schwinden, 862 F.2d 1352,

1354 (9th Cir. 1988). The United States Supreme Court has

found “certain rights associated with the family have

been accorded shelter under the Fourteenth Amend-

ment’s Due Process Clause.” Moore v. City of East Cleve-

land, 431 U.S. 494, 502-03 (1977). Some of the rights given

protection as substantive due process include freedom of

choice with respect to child bearing, parental rights,

rights as to child rearing and living arrangements. See Id.;

Roe v. Wade, 410 U.S. 113 (1973); Stanley v. Illinois, 405 U.S.

645 (1972). Limits on substantive due process come from

App. 13

“respect for the teachings of history [and], solid recogni-

tion of the basic values that underlie our society.” Gris-

wold v. Connecticut, 381 U.S. 479, 501 (1965) (Harlan, J.

concurring.). While the standards established to identify

a substantive due process right are somewhat unclear, it

is well settled that official conduct that “offend[s] those

canons of decency and fairness which express the notions

of justice of English-speaking peoples even toward those

charged with the most heinous offenses[,]” amounts to a

substantive due process violation. Rutherford v. City of

Berkeley, 780 F.2d 1444, 1446 (9th Cir. 1986) (quoting

Rochin v. California, 342 U.S. 165, 169 (1952)).

Essentially, Plaintiff alleges that the right to be free

from bad faith prosecution is a right guaranteed by sub-

stantive due process, and a right actionable through

§ 1983. The court disagrees. The Supreme Court indicated

that the “[s]ubstantive due process clause has at times

been a treacherous field.” Moore, 431 U.S. at 502. The

Court has recognized that rights guaranteed by the sub-

stantive due process clause represent “a realm of per-

sonal liberty which the government may not enter.”

Armendariz v. Penman, 75 F.3d 1311, 1319 (9th Cir. 1996)

(internal quotations and citations omitted). “There are

risks when the judicial branch gives enhanced protection

to certain substantive liberties without the guidance of

the more specific provisions of the Bill of Rights.” Id. In

Blaylock, the Ninth Circuit declined to provide protection

under the substantive due process clause to the plaintiffs’

claim for failure to properly administer the Montana

Workers’ Compensation Act. 862 F.2d 1352, 1354 (9th Cir.

1988). The Ninth Circuit there found that the plaintiffs

App. 14

had not alleged a substantive due process right. Id. Plain-

tiff here has also failed to allege a right protected by the

substantive due process clause. The right to be free from

bad faith or malicious prosecution, while important, can

be protected through other available procedural safe-

guards. It is not generally the type of right which has

historically been offered protection through the substan-

tive due process clause.

In Johnson v. Barker, 799 F.2d 1396, 1398 (9th Cir.

1986), the plaintiffs were given criminal citations as they

hiked down Mt. St. Helens during its eruption in 1984.

The plaintiffs were alleged to have been in a restricted

vone on the mountain. Id. The Sheriff that issued the

citation was in a helicopter, and refused to give the

plaintiffs a ride down the mountain. Id. As a result of this

the plaintiffs were forced to spend another night on the

mountain, and the volcano erupted during that night. Id.

A helicopter had to come up the mountain to get them

the next day, as they were unable to get down of their

own accord. Id. Counsel for the plaintiffs notified the

Skamania County Deputy Prosecutor that the plaintiffs

were never within the restricted zone on the mountain.

Id. The Sheriff’s office still pushed for prosecution and

after months of delay, the charges were dismissed. The

plaintiffs were then charged with attempting to violate

the executive order which restricted certain parts of the

mountain. Id. No trial was held on these charges as a Writ

of Prohibition was entered by the Washington Superior

Court on the ground that the plaintiffs were not granted

the right to a speedy trial. Id.

App. 15

The plaintiffs later filed a civil rights action, alleging

malicious prosecution of constitutional proportions on

several basis [sic]. Id. at 1399-1400. The plaintiffs asserted:

First, that the prosecutors hesitated to drop the

initial charges, even after they were discovered

to be baseless, because the sheriff wanted to

prosecute appellants for “political” reasons. Sec-

ond, that the prosecutors tried to make a case

against appellants by arguing that they had

entered a broader restricted zone, when in fact

that zone had not been sufficiently publicized.

Third, that after finally dismissing the first

charges, the prosecutors filed a new complaint

against appellants charging them with “attempt-

ing” to enter the known restricted areas. Fourth,

that prosecutor Hansen misrepresented to

appellants’ counsel that the Army helicopter

pilot would testify at trial, when in fact Hansen

knew the witness would be unavailable. Finally,

that the prosecutors sought and received a con-

tinuance based on that unavailability and subse-

quently failed to bring appellants to trial before

the Writ of Prohibition was granted.

Id. at 1400. The Ninth Circuit found that even given these

facts, the conduct by the government officials was not “so

egregious as to ‘shock the conscience.’” Id. (quoting

Rochin v. California, 342 U.S. 165, 169 (1952)). Thus, the

court there held that the actions taken by the government

officials did not violate substantive due process. Id.

The action taken by the government officials in John-

son is similar to the activity that Plaintiff alleges to have

occurred here. Plaintiff asserts that Defendants continued

to investigate and prosecute the proceedings against him

even though they were aware that the allegations had no

App. 16

merit. While the court agrees that some of Defendants’

activities are questionable, as in Johnson, they are not so

egregious as to shock the conscience, and do not rise to

the level of a substantive due process violation.

Given the history of substantive due process, and the

Supreme Court’s reluctance to extend protection through

the substantive due process clause, while the court is

concerned about the actions allegedly taken against

Plaintiff, the court finds that Plaintiff cannot receive pro-

tection through the substantive due process clause.?

B. Procedural Due Process.

As discussed earlier, Plaintiff has gone to great

lengths to explain that he has not asserted a violation of

his procedural due process rights as a basis for his § 1983

claim, and has instead asserted “the constitutional right

to be free from bad faith prosecution.” Plaintiff's Opp. at

31. In response to Defendants’ assertions that Plaintiff has

failed to demonstrate deprivation of a protected interest,

Plaintiff explains that he

has provided uncontested evidence that he was

- and is being - harmed by Defendants’ bad

faith investigation and prosecution. Second,

2 Furthermore, the United States Supreme Court in Albright

v. Oliver, 510 U.S. 266, 270-71 n.4 (1994), held that “substantive

due process may not furnish the constitutional peg on which to

hang” a tort for malicious prosecution. See Perez-Ruiz v. Guillen,

25 F.3d 40, 42 (1st Cir. 1994) (finding that the Supreme Court in

Albright “virtually . . . foreclose[d] reliance on substantive due

process as the basis for a viable malicious prosecution claim

under section 1983”).

App. 17

regardless, Dr. Flowers need not show indepen-

dent harm from this license revocation proceed-

ing because he has a constitutional right to be

free from bad faith investigation and prosecu-

tion.

Plaintiff’s Opp. at 32. Nonetheless, Plaintiff alleges that

he was unable to accept an offer for full professorship

from a University in Kentucky, that the offer has since

been withdrawn, and that he was therefore harmed by

Defendants’ actions. Id. As mentioned earlier, Plaintiff

also discusses the existence of a “cloud over his license

that has reduced his practice and denied him hospital

privileges.” Id. at 33. However, Plaintiff never specifically

avers that as a result of the state administrative proceed-

ings and the bad faith prosecution, he was denied his

property without procedural due process. Thus, every

indication from Plaintiff in his Amended Complaint and

his opposition in this proceeding, is that he is not alleging

a procedural due process violation.%

However, the court notes that Plaintiff does not make

his allegations entirely clear. Plaintiff contradicts himself

in some sense as he explains the relationship of the facts

in Mishler to his case. He initially asserts that “Dr.

Flowers claims just such a deprivation[,]” as the plaintiff

’ The court recognizes that in pro se cases the court is

required to consider a plaintiff’s complaint liberally, and often

times aid the plaintiff in the proper assertion of his rights.

However, where, as here, a plaintiff is represented by competent

counsel and has chosen to pursue a particular avenue for his

claim, federal courts cannot and should not recharacterize the

plaintiff’s claim, thus becoming a second advocate for the

plaintiff.

App. 18

in Mishler, then he later contrasts his claims with that of

the plaintiff in Mishler and states: “In contrast [to the

deprivation alleged in Mishler], Dr. Flowers has charged

Defendants with bad faith.” Plaintiff's Opp. at 33-34. Asa

result of Plaintiff’s inconsistency, the court must consider

whether Plaintiff has in fact alleged facts to support a

similar deprivation as the plaintiff in Mishler.

In Mishler, the Ninth Circuit held that because the

State of Nevada delayed, for over seventeen months,

certifying to the Ohio Medical Board that the plaintiff

held a valid license to practice medicine in the State of

Nevada, the plaintiff could properly allege a claim for

malicious taking of his property by the Nevada Medical

Board. Mishler, 896 F.2d at 410-11. The property that the

plaintiff was deprived of in Mishler was the “right to have

one’s good standing in the profession certified by the

agency that has issued the license.” Id. at 410. Plaintiff

asserts that in his case RICO’s pending investigation

against him barred him from obtaining a Kentucky medi-

cal license, and thus employment in Kentucky. Plaintiff's

Opp. at 33. Yet, Plaintiff does not allege that the Kentucky

Medical Board ever contacted the State of Hawaii to

obtain certification. In fact, Plaintiff states that he wrote

the State of Hawaii alerting RICO about his offer of

employment in Kentucky, and explaining to RICO that

the pending investigation would bar him from obtaining

a Kentucky license. Id. In essence, Plaintiff wanted the

pending investigation dismissed, not a certification of his

good standing. His claim is, therefore, not the same as the

Plaintiff in Mishler, as the State of Hawaii licensing

agency did not deprive him of his property interest in

having his good standing to practice medicine certified

Bae AM i ae i Bad SO

App. 19

by the State licensing agency. If the State of Hawaii had

refused to certify Plaintiff's good standing to the Ken-

tucky Medical Board, then Plaintiff would be able to

make the same claim as the plaintiff in Mishler. On these

facts, as pled by Plaintiff, Plaintiff has not alleged a

protected property interest which was deprived without

due process of law. RICO’s decision not to dismiss the

civil proceeding pending against Plaintiff in response to

his letter, does not amount to a deprivation of a constitu-

tionally protected property interest in the Ninth Circuit.

Furthermore, malicious prosecution itself does not

constitute a due process violation unless the plaintiff

demonstrates that the malicious prosecution was done for

the purpose of denying the plaintiff equal protection of

the laws, or depriving the plaintiff of another constitu-

tional right. Freeman v. City of Santa Ana, 68 F.3d 1180,

1189 (9th Cir. 1995). The Ninth Circuit, when discussing

malicious prosecution, is referring to prosecution in the

criminal context. While Plaintiff’s claim here is a claim

for malicious cr wrongful prosecution in the civil or

administrative context, it is nonetheless akin to a claim

for malicious criminal prosecution, and thus, the court

looks to the cases regarding malicious prosecution for

guidance.*

For example, in Cline v. Brusett, 661 F.2d 108, 112 (9th

Cir. 1981), the Ninth Circuit explained that while the

* As pointed out by Defendants, the Restatement of Torts

2d, discusses the civil counterpart to malicious prosecution, that

being wrongful institution of civil proceedings. Defendants’

Motion at 15-16.

App. 20

general rule is that malicious prosecution “does not con-

stitute a deprivation of life, liberty or property without

due process of law . . . [iJn this case an interest in liberty

was impaired under circumstances in which appellant's

allegations strongly suggest that a post-deprivation hear-

ing under state law would not afford him constitutionally

required due process.” In Cline, the plaintiff filed a com-

plaint pursuant to 42 U.S.C. § 1983, alleging that the

defendants conspired to have the plaintiff convicted of

“groundless charges,” and deny him his right to fair trials

by bribing witnesses, and presenting false evidence and

perjured testimony to the juries. Cline, 661 F.2d at 110.

The plaintiff was eventually convicted with the use of the

false evidence and perjured testimony, and was sent to

prison. The court found that he was deprived of his

liberty without due process, and thus that the malicious

prosecution was conducted with the intent to deny the

plaintiff his constitutional right to liberty. Id. at 112. The

plaintiff's claim for malicious prosecution fell within the

noted exception, and therefore could serve as the basis

for his claim under 42 U.S.C. § 1983. Id. at 112. Plaintiff’s

case here is distinguishable from the circumstances in

Cline. The plaintiff in Cline asserted a deprivation of a

specific constitutional right, whereas Plaintiff in this case

has failed to do so.

Since, as discussed above, Plaintiff has not asserted a

denial of a constitutional right, he “must bring his com-

mon law tort claim [malicious prosecution] . . . within the

scope of section 1983, under the exception for a malicious

prosecution intended to deprive someone of the equal

protection of the laws.” Id. at 561. As noted, in his

Amended Complaint Plaintiff alleges a cause of action

App. 21

under 42 U.S.C. § 1983 “for instituting and/or maintain-

ing an ongoing bad faith prosecution and investigation in

violation of Dr. Flowers’ constitutional rights under the

privileges and immunities clause of the United States

Constitution and the Fifth and Fourteenth Amendments

to the United States Constitution.” Amended Complaint

at $201. Plaintiff does not specifically allege that the

administrative proceedings were wrongfully instituted

with the intent to deprive him of his right to equal

protection of the laws. However, because Plaintiff alleged

a violation of the Fourteenth Amendment, which encom-

passes the Equal Protection Clause, the court will assume

that Plaintiff is making this legal argument.

In order to properly assert an equal protection viola-

tion, Plaintiff must show that similarly-situated classes

received different treatment. Christian Gospel Church v.

City and County of San Francisco, 896 F.2d 1221, 1225 (9th

Cir. 1990). Therefore, “[a]n equal protection argument

requires the existence of at least two classifications of

persons which are treated differently under the law.” Id.,

(quoting United States v. Horton, 601 F.2d 319, 323-4 (7th

Cir. 1979)). Merely treating two groups differently does

not necessarily violate the Equal Protection Clause. Bon-

ner v. Lewis, 857 F.2d 559, 565 (9th Cir. 1988). The record

before the court is devoid of factual allegations that sug-

gest that the civil proceeding was instituted against Plain-

tiff in an attempt to deprive him, based upon his

membership in a certain class, equal protection of the

laws. Thus, Plaintiff failed to bring his common law tort

claim for bad faith prosecution into the scope of a claim

under 42 U.S.C. § 1983, by alleging that the bad faith

App. 22

proceedings were instituted against him in an attempt to

deprive him of equal protection of the laws.

Even construing Plaintiff's Amended Complaint in

the light most favorable to him, Plaintiff has not stated a

federal cause of action under 42 U.S.C. § 1983. Upon

careful review of the Amended Complaint and Plaintiff’s

Opposition to this motion, the court is unable to point to

any facts or allegations that satisfy the pleading require-

ments for a cause of action for bad faith prosecution of an

administrative proceeding. As noted, Plaintiff has failed

to allege that the civil administrative proceedings were

instituted as an attempt to deny him equal protection of

the laws, or any other constitutional right, such as his life,

liberty or property. While Plaintiff indicates that his pro-

fessional reputation has been injured as a result of the

pending proceedings, the Supreme Court has indicated

that “injury to reputation by itself [is] . . . not a “liberty”

interested protected under the Fourteenth Amendment.”

Siegert v. Gilley, 500 U.S. 226, 233 (1991).° Thus, given the

above discussion, Plaintiff has not stated a claim for a

procedural due process violation based upon bad faith

institution of civil proceedings. The court recognizes, that

Plaintiff is not restrained from bringing a state law claim

for wrongful institution of civil proceedings in state

court. Thus, process is available at the state level in order

to protect Plaintiff’s interests.

5 The United States Supreme Court, in Paul v. Davis, 424

U.S. 693, 708-09 (1976), rejected the plaintiff’s contention that

the actions of state officials stigmatized his reputation and

impaired his future employment opportunities, thus depriving

him of a constitutionally protected liberty interest.

eT A

aii ts es ww 09

App. 23

C. Constitutional Tort of Malicious Prosecution.

The United State Supreme Court recognized, in Al-

bright v. Oliver, 510 U.S. 266, 271 n.4 (1994), the existence

of a diversity of opinion regarding whether a claim for

malicious prosecution is independently actionable under

§ 1983. In Albright, the Court indicated that substantive

due process would not afford the plaintiff relief for mali-

cious prosecution, and the Court instead looked to the

most analogous constitutional amendment, which in that

case was the Fourth Amendment. /d. at 274. As discussed

in Albright, some circuits allow a cause of action under 42

U.S.C. § 1983, for malicious prosecution, essentially mak-

ing such a claim a constitutional tort. See Lee v. Mihalich,

847 F.2d 66, 70 (3d Cir. 1988) (holding the elements for

constitutional tort of malicious prosecution under § 1983

are the same as for the common law tort); Wheeler v.

Cosden Oil and Chemical Co., 734 F.2d 254, 258 (5th Cir.

1984) (“there is a federal right to be free from bad faith

prosecutions.”).

The Ninth Circuit, however, has not recognized mali-

cious prosecution as a constitutional tort. In fact, the

Ninth Circuit has clearly held, “the general rule is that a

claim of malicious prosecution is not cognizable under 42

U.S.C. § 1983 if process is available within the state

judicial system to provide a remedy.” Usher v. City of Los

Angeles, 828 F.2d 556, 561 (9th Cir. 1987) (citing Bretz v.

Kelman, 773 F.2d 1026, 1031 (9th Cir. 1985) (en banc)); see

also Karim-Panahi v. Los Angeles Police Department, 839 F.2d

621, 624 (9th Cir. 1988). The Ninth Circuit however has

recognized an exception to the general rule if a malicious

prosecution is “conducted with the intent to deprive a

person of equal protection of the laws or is otherwise

App. 24

intended to subject a person to a denial of constitutional

rights.” Id. at 562 (internal quotations and citations omit-

ted). Essentially, this is the same exception discussed

above in the portion of this Order regarding procedural

due process. Significantly, Plaintiff has failed to allege the

requisite constitutional deprivations, either of equal pro-

tection, or a separate constitutional right, and thus has

not stated a federal claim for bad faith prosecution to

serve as the basis for a claim under 42 U.S.C. § 1983.

The court has reviewed the Ninth Circuit’s earlier

decision in this matter several times. This is an unfortu-

nate case. On appeal the State of Hawaii took a position

which was uncalled for and out of line. In its decision, the

Ninth Circuit aptly noted concern about the State’s posi-

tion and the possible improprieties of the state adminis-

trative proceedings. This court is also wary of the tactics

taken in the investigation against Plaintiff. However,

when the court takes a careful, reasoned view of the

allegations and assertions in this case, it simply cannot

find that Plaintiff has stated a federal claim.® Plaintiff's

allegations, as pled in his Complaint and explained in his

Opposition, do not constitute a claim for malicious pros-

ecution that would rise over and above the general state

law tort, to a constitutional deprivation.

6 This court is aware that the Ninth Circuit Panel was

understandably incensed by the nature and tone of the

arguments made by the then Deputy Attorney General handling

this case. But this court, and any subsequent Ninth Circuit Panel

must step back from that unfortunate episode, and review the

facts and law of this case dispassionately.

EAN he AT SAR

App. 25

D. Privileges and Immunities.

Plaintiff indicates that Defendants’ actions violated

the Privileges and Immunities clause of the Constitution.

See Complaint at {201. Nevertheless, based upon the facts

presented to the court, Plaintiff cannot rely on the Privi-

leges and Immunities clause of the Constitution as a

predicate to his § 1983 cause of action. Discrimination on

the basis of out-of-state residency is a necessary element

for a claim under the Privileges and Immunities Clause.

Giannini v. Real, 911 F.2d 354, 357 (9th Cir. 1990). Plaintiff

fails to assert that he was discriminated against or treated

differently because of the status of his residency. The

court is at a loss to understand, and Plaintiff has failed to

demonstrate, the relationship that the Privileges and

Immunities Clause has to his § 1983 claim.

III. Younger Abstention and Bad Faith.

In his opposition, to support his allegations that there

is a federal constitutional right to be free from bad faith

prosecution, Plaintiff relies on Younger v. Harris, 401 U.S.

37 (1971), and its progeny. The Supreme Court, in Youn-

ger, articulated a doctrine of abstention, establishing that

a federal court should decline to enjoin state proceedings

out of concerns for comity and federalism. Younger

abstention embodies “a strong federal policy against fed-

eral-court interference with pending state judicial pro-

ceedings, absent extraordinary circumstances.” Middlesex

County Ethics Comm. v. Garden State Bar Association, 457

U.S. 423, 431 (1982).

In determining whether to abstain under Younger, the

Ninth Circuit applies the three-pronged test outlined by

App. 26

the United States Supreme Court in Middlesex: abstention

is appropriate where (1) the state proceedings are ongo-

ing; (2) the proceedings implicate important state inter-

ests; and (3) the state proceedings provide an adequate

opportunity to raise federal questions. Fresh International

Corp. v. Agricultural Labor Relations Board, 805 F.2d 1353

(9th Cir. 1987) (citing Middlesex, 457 U.S. at 432).

There is, however, a recognized exception to Younger

abstention for state proceedings brought in bad faith or

for purposes of harassment. Younger, 401 U.S. at 49. Bad

faith has been defined in this context as any “prosecution

[that] has been brought without a reasonable expectation

of obtaining a valid conviction.” Kugler v. Helfant, 421

U.S. 117, 126 n.6 (1993). If the state official prosecutes

with knowledge that there is no lawful basis for the

prosecution, then the prosecution is in bad faith. See

Nobby Lobby, Inc. v. City of Dallas, 970 F.2d 82, 88 (5th Cir.

1992) (full awareness that prosecution was invalid on the

basis of judicial decision satisfied bad faith requirement).

It is this exception to Younger that Plaintiff appears to rely

on as a basis for his federal right to be free from bad faith

prosecution.

Upon further review of Plaintiff's opposition, the

court notes that Plaintiff alleges that the type of bad faith

discussed in Younger is sufficient to allege a federal cause

of action. While Younger, and the cases following it, dis-

cuss bad faith, they do not create a cause of action for bad

faith. Instead, they discuss whether the case before the

court falls into the bad faith exception under Younger, and

whether, based upon this, the federal court should

decline to abstain, and instead allow the federal case to

proceed, and stay the state proceedings. Here, the Ninth

App. 27

Circuit clearly found that the state court proceeding fell

within the bad faith exception to Younger abstention,

however, neither the Ninth Circuit, nor this court has

held that Plaintiff properly alleged a cause of action

under § 1983 for violation of Plaintiff’s constitutional

right to be free from bad faith prosecution. As it stands

today, without more, such a constitutional tort does not

exist in the Ninth Circuit.

IV. This Court’s January 30, 1997 Order.

Plaintiff continually refers to this court’s January 30,

1997 Order Adopting Magistrate’s Findings and Recom-

mendation that Plaintiff’s Motion to have the Appellate

Court’s Finding of Bad Faith Determined to be Law of the

Case be Granted in Part and Denied in Part. In that Order,

this court discussed whether it had subject matter juris-

diction over Plaintiff's complaint. The court explained

that Defendants objected to the Magistrate’s Findings and

Recommendations because “Defendants claim that this

court does not have subject matter jurisdiction over this

case if the court finds that Defendants are entitled to

immunity.” January 30, 1997 Order at 4. The court further

addressed Defendants’ claim that Plaintiff failed to iden-

tify the deprivation of a specific constitutional right. Id.

Significantly, the court, at that time, was not reviewing

the Amended Complaint on a motion to dismiss, and was

merely determining whether to adopt the Magistrate's

Findings and Recommendations regarding jurisdiction.

Now, the court has a proper motion to dismiss before it,

and is given the opportunity to completely review the

entire Amended Complaint to determine if a claim under

42 U.S.C. § 1983 is properly stated. After careful review

App. 28

and reflection, the court holds that Plaintiff has not dem-

onstrated and properly supported his allegations under

42 U.S.C. § 1983, and based upon the facts before the

court, Plaintiff cannot do so. Accordingly, the court is

compelled to dismiss Plaintiff's claim brought under 42

U.S.C. § 1983 for failure to state a cause of action.”

V. State Law Claims.

As the court has dismissed Plaintiff’s only federal

causes of action, the remaining claims are solely based

upon state law. The court exercised supplemental juris-

diction over the state law claims. Given that federal juris-

diction is now lacking, the court, in its discretion,

DISMISSES Plaintiff’s remaining state law claims WITH-

OUT PREJUDICE.

VI. Immunity for Claims Brought Under 42 U.S.C.

§ 1983.

The court notes that even if Plaintiff had properly

stated a federal claim under 42 U.S.C. § 1983, Defendants

are protected by either absolute or qualified immunity at

least as to the claims for damages alleged against them in

their individual capacities.

7 Plaintiff also claims that Defendants conspired to violate

his constitutional rights, and that Defendant supervisors were

deliberately indifferent to the activity taken against Plaintiff

that allegedly deprived him of his constitutional rights. Since

the court has found that Plaintiff did not properly allege a

constitutional deprivation, Plaintiff has also failed to state a

clair under these causes of action.

App. 29

Defendants each claim either absolute or qualified

immunity for their actions which allegedly resulted in

deprivation of Plaintiff’s constitutional rights. While

immunity applies to those claims for monetary damages

asserted against Defendants in their individual capacities,

immunity does not protect Defendants from claims made

against them for injunctive relief in their official capaci-

ties.

A. Absolute Immunity.

Defendants Seki and Nakamura assert that they are

entitled to absolute prosecutorial immunity regarding the

preparation and filing of the Petition. Defendants Seki,

Nakamura, Tamamoto, and Nakano also insist that they

are entitled to absolute prosecutorial immunity regarding

their work after the filing of the Petition in preparation

for the presentation of the case at a contested hearing

before the Office of Administrative Hearings.

For actions brought under 42 U.S.C. § 1983, the

United States Supreme Court has been hesitant to recog-

nize absolute immunity for state actors. Although the

language of § 1983 purports to offer no immunities,® the

8 42 U.S.C. § 1983 sets forth a civil cause of action for

deprivation of constitutional rights. The statute provides that

“[e]very person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State .. . subjects, or causes

to be subjected, any citizen of the United States . . . to the

deprivation of any rights, privileges, or immunities secured by

the Constitution and laws, shall be liable to the party injured in

an action at law, suit in equity, or other proper proceedings for

redress.” 42 U.S.C. § 1983 (West 1994).

App. 30

courts have found that § 1983 “is to be read in harmony

with general principles of tort immunities and defenses

rather than in derogation of them.” Imbler v. Pachtman,

424 U.S. 409, 418 (1976). Thus, the United States Supreme

Court in Imbler, found “the threat of § 1983 suits would

undermine performance of [a prosecutor’s] . . . duties,”

and recognized the need for absolute immunity for prose-

cutors in suits brought under 42 U.S.C. § 1983. Id. at 424.

However, the Court has made clear that not every

action taken by a prosecutor is entitled to absolute immu-

nity. Absolute prosecutorial immunity is not conferred on

individuals based merely on their status as prosecutors.

To determine if absolute immunity applies, the court has

to look at “the nature of the function performed, not the

identity of the actor who performed it.” Forrester v. White,

484 U.S. 219, 229 (1988). The official seeking the protec-

tion of absolute immunity “bears the burden of showing

that such immunity is justified for the function in ques-

tion.” Burns v. Reed, 500 U.S. 478, 486 (1991). The United

States Supreme Court has made clear that the common

law rationale behind absolute prosecutorial immunity

offers protection only for those activities that are “inti-

mately associated with the judicial phase of the criminal

process.” Imbler, 424 U.S. at 430; see also Kalina v. Fletcher,

__ US. __, 118 S. Ct. 502, 1997 WL 756635 (1997) (Find-

ing a prosecutor’s conduct in connection with the prepa-

ration and filing of charging document is protected by

absolute immunity, however, her actions in executing cer-

titication for determination of probable cause were too far

removed from her role as an advocate in judicial proceed-

ings and were not entitled to absolute immunity.)

a a)

App. 31

The Supreme Court explained in Buckley v. Fitzsim-

mons, 509 U.S. 259, 273-74 (1993),

There is a difference between the advocate’s role

in evaluating evidence and interviewing wit-

nesses as he prepares for trial, on the one hand,

and the detective’s role in searching for the

clues and corroboration that might give him

probable cause to recommend that a suspect be

arrested, on the other hand. When a prosecutor

performs the investigative functions normally

performed by a detective or police officer it is

“neither appropriate nor justified that, for the

same act, immunity should protect the one and

not the other.” . . . Thus, if a prosecutor plans

and executes a raid on suspected weapons

cache, he “has no greater claim to complete

immunity than activities of police officers

allegedly acting under his direction.”

(citations omitted). Therefore, a prosecutor’s actions as an

advocate will be protected by absolute immunity, while

actions that are not closely associated with judicial pro-

ceedings are guaranteed only qualified immunity. When a

prosecutor herself conducts an investigation to determine

if a suspect can be arrested, absolute immunity may not

protect this activity. Buckley, 509 U.S. at 275. It is clear that

even if, at a later date, any evidence turned up by the

prosecutor is used before a grand jury for example,

the investigatory work is not “retroactively trans-

formed[ed] . . . from the administrative into the pros-

ecutorial.” Id. at 276. It is now clear that “[a] prosecutor

may not shield his investigative work with the aegis of

absolute immunity merely because . . . that work may be

retrospectively described as ‘preparation’ for a possible

trial.” Id. Admittedly, the line is not clearly delineated,

App. 32

however, the individual claiming absolute prosecutorial

immunity must demonstrate the activity performed was

not administrative or investigative in nature, and was

instead closely associated with the judicial proceedings

and his role as an advocate.?

Finally, in Butz v. Eonomou [sic], 438 U.S. 478, 515

(1978), the Supreme Court held that agency officials “per-

forming certain functions analogous to those of a pros-

ecutor should be able to claim absolute immunity with

respect to such acts.” The Court reasoned that agency

officials acting in such a capacity are often vested with

similar discretion as prosecutors in determining whether

to proceed with an administrative case. Id. at 516; see also

Demery v. Kupperman, 735 F.2d 1139 (9th Cir. 1984) (hold-

ing that a deputy attorney general should be granted

absolute immunity with regard to administrative disci-

plinary proceeding against a doctor).

To bolster their argument for absolute immunity,

Defendants urge that “[n]o competent attorney would

consider proceeding with a case without personally eval-

uating the documentary evidence and potential testimony

of witnesses . . . both as part of preparing a civil or

criminal complaint, and as part of preparing for hearings

or discovery subsequent to initiation of proceedings.”

Defendants’ Motion at 9-10. Defendants explain that each

° The Hawaii Supreme Court has also followed this

distinction. In Reed v. City and County of Honolulu, 76 Haw. 219,

873 P.2d 98 (1994), the Hawaii Supreme Court limited the

application of absolute prosecutorial immunity in § 1983 actions

to quasi-judicial acts taken by county prosecutors.

App. 33

of the attorneys - Seki, Nakamura, Nakano, and Tam-

amoto —- “were intimately involved in the evaluation and

preparation of the administrative petition (Seki and

Nakamura) or in the post-petition development of the

administrative case for presentation at a contested hear-

ing (Seki, succeeded by Tamamoto, assisted early in 1996

for a few months by Nakano, and supervised by

Nakamura).” Id. at 10. Plaintiff disagrees with this blan-

ket characterization of Defendants’ work.

The difficulty here is that Plaintiff is not complaining

about particular actions taken by Defendants. Rather he

is complaining about the entire process, from the investi-

gation to the filing of the Petition, and the other actions

taken to date.

At the outset, the court finds that it is clear that any

work performed by Defendants Seki, Tamamoto,

Nakamura, and Nakano in the actual preparation and

filing of the initial Petition on December 17, 1993, and the

Amended Petition in 1994, is protected by absolute

immunity. The actions taken to prepare and file the Peti-

tion are closely associated with judicial proceedings, and

are the functional equivalent of a prosecutor filing crimi-

nal charges against a defendant. Likewise, the activity

performed by Defendants in the preparation of the case

for a hearing on the merits is also protected by absolute

prosecutorial immunity.

The court recognizes, however, that there are actions

taken by Defendants Seki, Nakamura, Tamamoto, and

Nakano that are not so easily defined as activities that

would be protected by absolute immunity. The line

between investigatory/administrative work, and the

App. 34

work done in preparation for a prosecutor’s case is not as

black and white as most would like. Because of this,

instead of deciding the difficult question of absolute

immunity for the remainder of the activities, the court

will assume, as Plaintiff argues, that the activities do not

fit squarely within the realm of absolute immunity and

instead analyze them under the doctrine of qualified

immunity.

B. Qualified Immunity.

The doctrine of qualified immunity provides that

“state and local officials are entitled to qualified immu-

nity if ‘their conduct [did] not violate clearly established

statutory or constitutional rights of which a reasonable

person would have known.’ ” Manhattan Beach Police Offi-

cers Assoc., Inc. v. City of Manhattan, 881 F.2d 816, 818 (9th

Cir. 1989) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). “ ‘The contours of the right must be sufficiently

clear that a reasonable officer would understand that

what he is doing violates that right. This is not to say that

an official action is protected by qualified immunity

unless the very action in question has previously been

held unlawful, . . . but it is to say that in the light of the

pre-existing law the unlawfulness must be apparent.’ ” Id.

(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

The doctrine protects state and local officials from their

exercise of poor judgment, and only fails to protect those

that are “plainly incompetent or those who knowingly

violate the law.” Malley v. Briggs, 475 U.S. 335, 343 (1986).

App. 35

The Ninth Circuit has articulated a three-step anal-

ysis to determine whether an official is entitled to quali-

fied immunity. The court must consider:

(1) whether the plaintiff has identified a speci-

fic federal statutory or constitutional right that

has been allegedly violated, (2) whether that

right as so clearly established as to alert a rea-

sonable official to its parameters and (3)

whether a reasonable officer could have

believed his or her conduct was lawful.

Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1388 (9th Cir.

1997). Initially, the plaintiff has the burden of proof to

show that the right was clearly established. Id. Further-

more, the right must be “ ‘clearly established at the time

of the challenged actions.’ ” Id. (quoting Mitchell v. For-

syth, 472 U.S. 511, 528 (1985)). The plaintiff “ ‘must show

that the particular facts of his case support a claim of

clearly established right.’ ” Id. at 1389 (quoting Backlund

v. Barnhart, 778 F.2d 1386, 1389 (9th Cir. 1985)).

As explained above, Plaintiff has not asserted a speci-

fic constitutional or statutory right that is clearly estab-

lished, and thus Plaintiff cannot overcome the first step in

the analysis of qualified immunity. Thus, because Plaintiff

has not demonstrated that the right alleged by him was

clearly established in the Ninth Circuit at the time of the

acts complained of, Defendants enjoy the protection of

qualified immunity as to Plaintiff’s claims under 42

U.S.C. § 1983.

Consequently, even if the court did not find that

Plaintiff failed to state a federal claim, claims against

Defendants in their individual capacity under 42 U.S.C.

App. 36

§ 1983, and would be barred by either absolute or quali-

fied immunity.

CONCLUSION

For the reasons stated above, the court GRANTS

Defendants’ Motion to Dismiss Plaintiff’s claims under 42

U.S.C. § 1983 for failure to state a claim, and DISMISSES

Plaintiff’s state law claims WITHOUT PREJUDICE.

IT IS SO ORDERED.

DATED: Honolulu, Hawaii, FEB 13 1998.

/s/ David Alan Ezra |

DAVID ALAN EZRA

UNITED STATES DISTRICT JUDGE

App. 37

APPENDIX C

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT S. FLOWERS, M.D.,

Plaintiff-Appellant,

) No. 98-15440

)

SHERRIE T. SEKI, CYNTHIA S. ak ae

NAKAMURA, individually and in DAE

their official capacities as attorneys

for the Regulated Industries

Complaints Office, Department of

Consumer Affairs, State of Hawaii; ORDER

CLIFFORD K. HIGA, in his official

capacity as Director of the

Department of Commerce and (Filed

Consumer Affairs, State of Hawaii, Jul. 9, 1999)

SHARON ON LENG, in her official

capacity as Complaints and

Enforcement Officer of the

Regulated Industries Complaints

Office, Department of Consumer

Affairs, State of Hawaii and JOHN

DOES 1-20; IRENE NAKANO,

OWEN TAMAMOTO; individually

and in their official capacity as

attorney for the Regulated

Industries Complaints Office,

Department of Consumer Affairs,

State of Hawaii; EARL HARADA

individually and in his official

capacity as investigator for the

Regulated Industries Complaints

Office, Department of Consumer

Affairs, State of Hawaii;

}

)

App. 38

KATHRYN MATAYOSHI;

individually and in her official

capacity as Director of the

Department of Commerce and

Consumer Affairs, State of Hawaii,

Defendants-Appellees.

ee eee eee ee ee ee

Before: SNEED, TASHIMA, AND SILVERMAN, Circuit

Judges.

The panel has voted to deny applicant’s petition for

rehearing. Judges Tashima and Silverman have voted to

reject the suggestion for rehearing en banc, and Judge

Sneed so recommended.

The full court has been advised of the suggestion for

rehearing en banc, and no active judge has requested a

vote on whether to rehear the matter en banc.

The petition for rehearing is denied, and the sugges-

tion for rehearing en banc is rejected.

App. 39

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

ROBERT S. FLOWERS, CIV. NO.

M.D., 94-00190 HMF

Plaintiff, (Filed May 13, 1994)

vs.

SHERRIE T. SEKI and

CYNTHIA S.

)

NAKAMURA, individually )

and in their official )

capacities as attorneys for )

the Regulated Industries

Complaints Office, )

Department of Consumer

Affairs, State of Hawaii; )

CLIFFORD K. HIGA, in)

his official capacity as )

Director of the )

Department of Commerce

and Consumer Affairs, )

State of Hawaii; SHARON )

ON LENG, in her official

capacity as Complaints )

and Enforcement Officer

of the Regulated )

Industries Complaints )

Office, Department of )

Consumer Affairs, State of ?

Hawaii; and JOHN DOES )

1-20, )

)

Defendants.

App. 40

ORDER DENYING PLAINTIFF’S MOTION FOR

PRELIMINARY INJUNCTION

INTRODUCTION

On April 11, 1994, the court heard arguments on

plaintiff Robert S. Flowers, M.D.’s (“Flowers”) motion for

preliminary injunction. Flowers alleges that state disci-

plinary proceedings against him are proceeding in bad

faith.

BACKGROUND

Plaintiff Robert S. Flowers, M.D., a plastic surgeon,

brought this action seeking to enjoin defendants Sherrie

T. Seki, Cynthia S. Nakamura, Clifford K. Higa, and

Sharon On Leng from proceeding with administrative

disciplinary prosecutions pending against him. Flowers

alleges that these proceedings are being prosecuted

against him in bad faith and without cause in violation of

his constitutional right to due process.

Deferdants made little attempt to refute the central

factual allegations of Flowers in their pleadings or at the

hearing. The court is thus left with little choice but to

accept the facts as alleged by plaintiff. Flowers alleges

that the original complaint upon which the ongoing pros-

ecution is based was filed by a disgruntled former

employee who embezzled from Flowers, was fired, and

filed a complaint with the Regulated Industries Com-

plaints Office (“RICO”) in retaliation. Flowers responded

by writing to the State Board of Medical Examiners (“the

Board”) in March 1993. The Board forwarded the letter to

RICO, whose duty it was to investigate the merit of the

charges against Flowers.

App. 41

RICO initiated an investigation into the Flowers com-

plaint. Flowers alleges that the RICO investigator spread

slanderous lies to potential witnesses from the outset. (PI.

Exh. 18). Flowers asserts that the investigator made the

statements without any factual basis in order to influence

witnesses and destroy his reputation.

Counsel for plaintiff asserts that defendant Sherrie T.

Seki, who was conducting the investigation, broke her

promise to him to proceed without bias and to give him a

reasonable opportunity to provide information in

response to any potential charges before she prepared a

petition. Seki apparently breached this promise by failing

to contact him until she had prepared and filed a disci-

plinary petition in December 1993. Seki contacted

Flowers to offer a settlement proposal requiring a five-

year suspension of his license, permanent limitations on

his future right to practice in "lawaii, and admissions of

guilt on the charges against him. Despite her original

promise, Seki refused to withdraw the complaint without

prejudice to her right to re-file it.

Flowers asserts that the charges against him were

brought for improper purposes. He suggests that he is a

scapegoat for political pressure upon RICO to discipline

doctors! because two of his patients had died and he had

previously settled a disciplinary action with RICO.

Defendant Sherrie T. Seki filed the disciplinary peti-

tion against Flowers with the Hearings Officer of RICO

1 Flowers relies on several Hawaii newspaper articles

detailing the rarity of disciplinary proceedings against doctors

in Hawaii.

App. 42

on December 17, 1993. The petition seeks action against

Flowers’ medical license: revocation, suspension, or lim-

itation, as well as other sanctions. The charges against

Flowers are that: (1) his treatment of two patients

resulted in their deaths; (2) he violated a previous agree-

ment with the Board by having a patient stay overnight at

his clinic in January 1992; (3) he kept inadequate records;

(4) his use of drugs has not kept up with current prac-

tices; (5) he used an unlicensed nurse anesthetist; and (6)

he wrongfully withheld funds from patients who had

canceled their surgeries. Flowers asserts that all charges

are without merit.

Flowers asserts that the contents of the RICO petition

are false, misleading, and irrelevant. Several physicians

have reviewed the petition and other relevant documents

and have condemned the petition as meritless. These

physicians are: (1) Dr. Victor Hay-Roe, a plastic surgeon

at Honolulu Medical Group, (2) Dr. Judson McNamara, a

thoracic surgeon who chairs the surgery department of

the University of Hawaii medical school, (3) Dr. Robert

Childs, an anesthesiologist who chairs the Peer Review

Committee of the Honolulu County Medical Society, and

(4) Dr. Charles Vinnik, a plastic surgeon who chairs the

Standards Committee of the American Association for the

Accreditation of Ambulatory Plastic Surgery Facilities.

All of these physicians have submitted affidavits stating

that, after review of the disciplinary petition, they con-

clude that it is replete with false allegations and that the

charges against plaintiff are without merit. Defendants

make no effort to rebut the statements of these physi-

cians.

App. 43

Flowers addresses the merits of the charges against

him in detail. The most serious charges against Flowers

are that his treatment caused the death of two patients. In

the first case, a patient died as a result of an overdose of

pain medication. The petition implies that Flowers failed

to instruct the patient and her husband - for both of

whom English was a second language - properly with

regard to usage of the medication. A previous RICO

investigation ended with a finding of “insufficient evi-

dence” of malpractice. Flowers asserts that both patient

and husband spoke fluent English and that the County

Coroner found evidence of a possible homicide by the

patient’s husband.

In the second case, a patient died of a sudden-onset

cardiac disease which the attending cardiologist found

had no known etiology. The attending cardiologist stated

that the death was not caused by Flowers’ treatment or

medication of the patient.

Pri tend Atak 2 se A

With regard to the impropriety of his overnight

patient, Flowers acknowledges that the patient stayed

overnight at his clinic but disputes that this violated any

conditions on his right to practice. Moreover, Flowers

asserts that he was acting in the patient’s best interests at

the time, an assertion supported by other doctors.

Flowers disputes the charge that he is guilty of inade-

quate record-keeping in violation of the 1988 settlement

agreement. Flowers points out that the plastic surgeon

appointed by the Board to monitor Flowers’ record-keep-

ing after the 1988 settlement agreement over an eighteen

month period reported no defects in Flowers’ record-

keeping and, in a final evaluation, stated that Flowers’

CS Aun + wr

App. 44

records “could have been used as a model for teaching

cases to Plastic Surgical Residents.”

Flowers disputes that his drug use has not kept up

with current practices. Dr. Vinnik, who submitted an

affidavit in support of Flowers, refutes this charge, stat-

ing that it ignores the potential danger in newer, faster-

acting anesthetics.

Flowers acknowledges that he did have an

unlicensed nurse anesthetist working for him during two

operations in January 1992, but states that he had

employed her as a licensed nurse-anesthetist for over

twenty years and did not know that she had put her

license on inactive status when she moved to the main-

land several months before. Flowers thus asserts that he

lacks intent to have “aided and abetted” an unlicensed

practitioner.

With regard to the two patients from whom he is

accused of wrongfully withholding funds, Flowers asserts

that, in both cases, he did not learn that either wanted a

refund until long after their cancellations. He promptly

refunded their money after learning that they desired

refunds.

Flowers has been a practicing plastic surgeon in

Hawaii for over two decades. He asserts that the investi-

gation has damaged his professional reputation in the

community and resulted in the retraction of at least one

offer of employment (by the University of Louisville

laa eres,

App. 45

Medical School) and the evaporation of other potential

offers.2

Defendants argue that the court lacks jurisdiction

and, even if the court had jurisdiction, the court should

abstain. Defendants make no attempt to rebut any of

plaintiff’s central factual allegations. The court is puzzled

by defendants’ nearly lackadaisical advocacy. In any

event, the questions before the court are (1) whether the

court has jurisdiction over this matter; (2) if so, whether

the court should nonetheless abstain from ruling on the

motion at this time in light of the ongoing state proceed-

ings; and (3) if not, whether plaintiff has established

prima facie entitlement to injunctive relief.

DISCUSSION

!. THE COURT HAS JURISDICTION OVER THIS MAT-

TER BASED ON THE ALLEGATION OF BAD FAITH.

Defendants assert that the court lacks jurisdiction

over this matter because plaintiff asserts no federal right

which would give rise to jurisdiction. Defendants rely on

a recent Supreme Court case, Albright v. Oliver, __ US.

—_ 114 S. Ct. 807 (1994), in which the Court declined to

recognize a substantive due process right “to be free from

criminal prosecution except upon probable cause.” The

Court held that plaintiff could not sustain a § 1983 action

without identifying a specific constitutional right which

* According to counsel for United States, he requested that

Seki prepare to discuss the issues before the Kentucky medical

board (so that Flowers’ application could proceed). Seki

delayed, and, ultimately, the offer was withdrawn in late 1993.

App. 46

was infringed. Id. at 811-12 (citing Graham v. Connor, 490

U.S. 386, 394 (1989)). In the instant action, however, plain-

tiff has asserted a specific constitutional right - the right

to be free from bad faith prosecution — which the state is

allegedly infringing.

Defendants assert that plaintiff is being afforded due

process in the ongoing state administrative proceeding

and that the proceeding may or may not lead to eventual

sanctions.* Before a final administrative order is entered,

defendants assert, plaintiff will have been afforded

adversarial proceedings before a disinterested officer and

the Board as well as rights of appeal. Plaintiff’s license to

practice will not be effected unless and until the state

meets the burden upon it in this context.

Defendants’ arguments ignore the issue of bad faith.

If plaintiff successfully establishes that the prosecution

itself is proceeding in bad faith, then the due process

safeguards of the prosecution are of no avail to plaintiff's

immediate and ongoing injury. While Albright stands for

the principle that there is no constitutional right to be

free from prosecution without good cause, the constitu-

tional right to be free from bad faith prosecutions is well

established. In Shaw v. Garrison, 467 F.2d 113, 120 (5th

* Defendants also point out that plaintiff has no

constitutionally protected interest in reputation. See Paul v.

Davis, 424 U.S. 693, 712 (1976) (holding that defamatory

publications do not implicate a due process property or liberty

interest); see also Siegert v. Gilley, 500 U.S. 226 (1991) (holding

that no constitutional right was implicated where the malicious,

defamatory statements of a government official substantially

hindered plaintiff’s efforts to obtain other employment).

App. 47

Cir.), cert. denied, 409 U.S 1024 (1972), the Fifth Circuit

held that

a showing of bad faith or harassment is equiva-

lent to a showing of irreparable injury for pur-

poses of the comity restraints defined in

Younger, because there is a federal right to be free

from bad faith prosecutions.

The power of federal courts to enjoin bad faith pros-

ecutions predates Shaw. See Dombrowski v. Pfister, 380 U.S.

479, 486 (1965); Ex parte Young, 209 U.S. 123 (1908). More-

over, the Ninth Circuit has specifically found that federal

courts have jurisdiction over a physician’s § 1983 action

to enjoin pending license revocation proceedings. See

Privitera v. California Board of Medical Quality Assur., 926

F.2d 890 (1991). In Privitera, a physician sought injunctive

relief against pending state license revocation proceed-

ings under 42 U.S.C. § 1983. Id. at 891. The district court

denied the injunction but stayed the action pending reso-

lution of state issues in state court because those issues

“would either moot the constitutional issues or impact

their disposition.” The Ninth Circuit reversed, holding

that the district court improperly abstained, and

remanded for consideration on the merits of injunctive

relief. In spite of the ongoing proceedings (and the seem-

ing lack of exhaustion of state administrative remedies),

the court held that jurisdiction was appropriate.

While there remains the question of whether the

court should abstain and stay (or dismiss) these proceed-

ings, it is clear that the court has jurisdiction over this

§ 1983 action on the basis of plaintiff’s allegation of bad

faith.

App. 48

Il. ABSTENTION IS INAPPROPRIATE IF THE COURT

FINDS EVIDENCE OF BAD FAITH.

In Privitera, the Ninth Circuit held that abstention

was inappropriate where plaintiff sought injunctive relief

against ongoing state medical license revocation proceed-

ings. 926 F.2d at 896. Privitera establishes that Pullman

and Colorado River abstention are inappropriate under the

circumstances of this case.+ The only remaining question

* Under Railroad Comm'n v. Pullman, 312 U.S. 496, 501

(1941), a federal court will use its discretion to abstain from

deciding constitutional claims if resolution of state law issues

might mean that “the constitutional issue does not arise.”

Pullman abstention is intended to “avoid both unnecessary

adjudication of federal questions and ‘needless friction with

state policies. ...° ” Hawaiian Housing Auth. v. Midkiff, 467 U.S.

229, 238 (1984). Pullman abstention is appropriate if (1) the

complaint involves “a sensitive area of social policy” which

federal courts ought to avoid where possible, (2) a “definitive

ruling on the state issue” could make constitutional

adjudication unnecessary by terminating the controversy; and

(3) the possibly determinative issue of state law is doubtful. See

Privitera, 926 F.2d at 895 (citing Canton v. Spokane School Dist. No.

81, 498 F.2d 840, 845 (9th Cir. 1974)).

In Privitera, the Ninth Circuit held that whether the

physician was harassed did not touch a sensitive area of social

policy. 926 F.2d at 895. The resolution of the physician’s claim

would have no effect on any social policy, the court ruled,

because it would affect only the parties to the case. Id.

Additionally, the court held that Pullman abstention was

inappropriate because the general principles of Pullman -

allowing states to interpret their statutes to avoid unconstitu-

tionality - was not implicated by a “highly individualized”

claim based on personal harassment. Id. at 896. In light of

Privitera, Pullman abstention is inappropriate in the instant case.

Under Colorado River Water Conservation Dist. v. United

App. 49

which Privitera leaves unanswered is when Younger

abstention is appropriate.

Under Younger v. Harris, 401 US. 37 (1971), a federal

court will decline to enjoin state proceedings out of con-

cerns for comity and federalism. Although Younger ini-

tially applied only to state criminal proceedings, it has

been extended by the Supreme Court to civil and admin-

istrative proceedings as well. See Middlesex County Ethics

Committee v. Garden State Bar Ass'n, 457 U.S. 423 (1982)

(civil judicial proceedings); Ohio Civil Rights Comm'n v.

Dayton Christian Schools, Inc., 477 U.S. 619 (1986) (state

administrative proceedings).

There is, however, a recognized exception to Younger

abstention for state proceedings brought in bad faith or

for harassment. Younger, 401 U.S. at 49. Because the Privi-

fera court found evidence of bad faith, it found that

Younger abstention was inappropriate. Similarly, if the

court finds that plaintiff makes a sufficient showing of

bad faith or harassment in the case at bar, then this

exception should be invoked and Younger abstention is

inappropriate.

States, 424 U.S. 800, 817 (1976), a federal court will abstain in

order to avoid duplicative litigation which is “unrelated to

considerations of proper constitutional adjudication.” Colorado

River abstention is appropriate where there are concurrent state

proceedings and the interests of efficient judicial administration

dictate staying the federal action. In the instant case, it appears

that state proceedings have not yet advanced to a stage where

wasted judicial resources are an issue. See Herrington v. County

of Sonoma, 706 F.2d 938, 939-40 (9th Cir. 1983). Colorado River

abstention is thus inappropriate.

App. 50

If, alternatively, the court finds insufficient evidence

of bad faith, then Younger abstention would be appropri-

ate. As noted above, the purpose of Younger abstention is

to further the policies of comity and federalism. These

policies are implicated in the instant case: state adminis-

trative proceedings in this matter have been pending

since the December 1993 filing of the RICO petition for

disciplinary action against plaintiff’s medical license. In

light of the “strong federal policy against federal-court

interference with pending state judicial proceedings

absent extraordinary circumstances,” abstention would

be appropriate in these circumstances. Middlesex County

Ethics Comm’‘n v. Garden State Bar Ass'n, 457 U.S. 423, 431

(1982).

There are three requirements for Younger abstention

to be appropriate: (1) ongoing state judicial or adminis-

trative state proceedings, (2) important state interests are

implicated, and (3) state proceedings provide a reason-

able opportunity to raise federal questions. Mission Oaks

Mobile Home Park v. City of Hollister, 989 F.2d 359, 360-61

(9th Cir. 1993). All three prongs of this test are met in the

instant case: (1) there are, obviously, ongoing state

administrative proceedings, (2) the state has an interest

(of profound importance, it asserts) in regulating the

medical profession and protecting the public, and (3)

plaintiff may raise any relevant issue in the course of

these proceedings or on appeal from those proceedings.

The court must thus decide the issue of whether bad

faith exists in this case. If the court finds that there is

insufficient evidence of bad faith, then Younger abstention

is appropriate.

App. 51

II. PLAINTIFF HAS NOT ESTABLISHED HIS RIGHT

TO A PRELIMINARY INJUNCTION.

A. Preliminary Injunction Standard.

As the Supreme Court has stated,

[i]t goes without saying that an injunction is an

equitable remedy. It ‘is not a remedy which

issues as of course,’ or ‘to restrain an act the

injurious consequences of which are merely tri-

fling.’ An injunction should issue only where

the intervention of a court of equity ‘is essential

in order effectually to protect property rights

against injuries otherwise irremediable.

Weinberger v. Romero-Barcelo, 454 U.S. 305, 311, 102 S. Ct.

1798, 1803, 72 L.Ed.2d 91 (1982) (citations omitted).

The court will not consider granting a preliminary

injunction unless two things are shown: an irreparable

injury and the inadequacy of legal remedies. Id. The court

then engages in a balancing test:

Where plaintiff and defendant present compet-

ing claims of injury, the traditional function of

equity has been to arrive at a ‘nice adjustment

and reconciliation’ between the competing

claims. In such cases, the court ‘balances the con-

veniences of the parties and possible injuries to them

according as they may be affected by granting

or withholding of the injunction.’

Id. (citations omitted) (emphasis added).

The Ninth Circuit has held that a party seeking pre-

liminary injunctive relief must satisfy one of two balanc-

ing tests. Under the first test, a court may issue a

preliminary injunction if it finds that:

ee eee ea ee ee ee =

App. 52

(1) the [moving party] will suffer irreparable

injury if injunctive relief is not granted, (2) the

[moving party] will probably prevail on the

merits, (3) in balancing the equities, the [non-

moving party] will not be harmed more than

[the moving party] is helped by the injunction,

and (4) granting the injunction is in the public

interest.

Martin v. International Olympic Committee, 740 F.2d 670,

674-75 (9th Cir. 1984); Los Angeles Memorial Coliseum Com-

mission v. National Football League, 634 F.2d 1197, 1201 (9th

Cir. 1980).

Alternatively, the court may issue a preliminary

injunction if the moving party demonstrates either “the

probability of success on the merits and the possibility of

irreparable injury or that serious questions are raised and

the balance of hardships tips sharply in his favor.” Half

Moon Bay Fishermans’ Marketing Ass’n v. Carlucci, 857 F.2d

505, 507 (9th Cir. 1988) (citing Hoopa Valley Tribe v. Chris-

tie, 812 F.2d 1097, 1102 (9th Cir. 1986)) (emphasis added).

The critical element in determining the test to be applied

is the relative hardship to the parties. Half Moon at 507

(citing Benda v. Grand Lodge of Int'l Ass'n of Machinists, 584

F.2d 308, 315 (9th Cir. 1978), cert. dismissed, 441 U.S. 937,

99 S. Ct. 2065 (1979)). “If the balance of harm tips

decidedly toward the plaintiff, then the plaintiff need not

show as robust a likelihood of success on the merits as

when the balance tips less decidedly.” Id.

To obtain injunctive relief, injury or threat of injury

must be shown to be real and immediate, not merely

conjectural or hypothetical. See Orantes-Hernandez v.

Thornburgh, 919 F.2d 549, 557 (9th Cir. 1990) (citing Los

App. 53

Angeles v. Lyons, 461 U.S. 95, 101-02, 103 5S. Ct. 1660,

1664-65 (1983)). A showing of a few instances of viola-

tions by defendants, without a showing of a deliberate

policy of such violations, does not provide a basis for

equitable relief. Id. at 557-58. However, injunctive relief is

available to combat a persistent pattern of misconduct

violative of plaintiff’s rights. Id. at 558.

B. Bad Faith.

The success of this motion hinges on bad faith. Youn-

ger suggests that a finding of bad faith will Satisfy the

irreparable injury requirement. In Younger, the Court

found no irreparable injury because the criminal prosecu-

tion had been brought in good faith. 401 U.S. at 49-50.

The Court held that an injury must be “ ‘both great and

immediate’ ” to be irreparable; “[c]ertain types of injury,

in particular, the cost, anxiety, and inconvenience of hav-

ing to defend against a single criminal prosecution, could

not by themselves be considered ‘irreparable’ in the spe-

cial legal sense of that word.” Id. at 46. In other words,

the injuries which a defendant being prosecuted faces do

not rise to the level of being irreparable if the hearing is

Proceeding in good faith. Bad faith, then, is the sine qua

non of irreparable injury in this context.

Bad faith has been defined in this context as any

“prosecution [that] has been brought without a reason-

able expectation of obtaining a valid conviction.” Kugler

v. Helfant, 421 U.S. 117, 126 n.6 (1993). If the State official

Prosecutes with knowledge that there is no lawful basis

for the prosecution, then the Prosecution is in bad faith.

See Nobby Lobby, Inc. v. City of Dallas, 970 F.2d 82, 88 (9th

App. 54

Cir. 1991) (full awareness that prosecution was invalid on

the basis of judicial decision satisfied bad faith require-

ment). Bad faith generally takes one of four guises: (1)

retaliation for the exercise of constitutional rights; (2)

institution of a serious prosecution for a relatively minor

offense, when selective prosecution can be found; (3)

prosecution without a reasonable basis of obtaining a

conviction; and (4) prosecution motivated by the prosecu-

tor’s desire for personal or political gain. See Pizzolato v.

Perez, 524 F. Supp. 914, 921 (E.D. La. 1981).

Under the facts asserted by plaintiff, the court is

persuaded that this prosecution was brought with rather

weak evidence, and without a strong basis to expect to

prevail. Defendants have made little effort to rebut plain-

tiff’s allegations, choosing instead to assert that they do

not rise to the level of bad faith. Plaintiff has presented

evidence that (1) he is a distinguished and renowned

plastic surgeon; (2) that defendant Seki, the attorney in

charge of the RICO investigation, breached a promise to

allow plaintiff to respond to potential charges before a

disciplinary petition was prepared; (3) that Mr. Harada,

the Board investigator, conducted the investigation in a

biased and slanderous manner; (4) that the petition

against plaintiff is replete with false allegations and fac-

tual inaccuracies; (5) that the charges brought against

plaintiff are without merit; and (6) that leading physi-

cians in the community, after review of the petition and

the underlying facts, roundly condemn the petition as

unwarranted.

Even if plaintiff may have alleged convincing facts to

establish that he should prevail in the state proceedings

App. 55

against him by a showing that defendants have con-

ducted their investigation in a lackluster and unprofessio-

nal manner and the tactics of their investigator are highly

questionable, to say the least, the court is unpersuaded

that plaintiff has established that defendants are proceed-

ing in bad faith. The state does have some evidence to

support its case against plaintiff. The fact that plaintiff

can explain away this evidence in a manner which justi-

fies his conduct does not negate the existence of the.

evidence itself. Even though the case against plaintiff

may appear to be weak, the court is unable to conclude

that this amounts to bad fhith. Accordingly, the court

must abstain under Younger.

CONCLUSION

For the reasons given, the court DENIES plaintiff's

motion for a preliminary injunction. This denial is with-

out prejudice to plaintiff’s right to renew this motion if

more evidence of bad faith emerges.

IT IS SO ORDERED.

DATED: Honolulu, Hawaii, MAY 13 1994

/s/ Harold M. Fong

UNITED STATES

DISTRICT JUDGE

App. 56

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

ROBERT S. FLOWERS, M.D.,

Plaintiff,

CIV. NO.

94-00190 HMF

VS.

SHERRIE T. SEKI and

CYNTHIA S. NAKAMURA,

individually and in their

official capacities as attorneys

for the Regulated Industries

Complaints Office, Department

of Consumer Affairs, State of

Hawaii; CLIFFORD K. HIGA,

in his official capacity as

)

) (Filed May 19,

)

Director of the Department of

)

1999)

Commerce and Consumer

Affairs, State of Hawaii;

SHARON ON LENG, in her

official capacity as

Complaints and Enforcement

Officer of the Regulated

Industries Complaints Office,

Department of Consumer

Affairs, State of Hawaii; and

JOHN DOES 1-20,

Defendants.

ORDER STAYING PROCEEDINGS

On May 16, 1994, the court heard arguments on a

motion to dismiss plaintiff’s complaint filed by defen-

dants Sherrie T. Seki, Cynthia S. Nakamura, Clifford K.

App. 57

Higa, and Sharon On Leng. On May 13, 1994, the court

had denied plaintiff's =. ion seeking injunctive relief

against ongoing state ~eaical license revocation proceed-

ings.

Plaintiff had alleged that defendants were proceed-

ing in bad faith. The court, finding insufficient evidence

of bad faith, abstained on the basis of Younger v. Harris,

401 U.S. 37 (1971).

Defendants now move for dismissal of plaintiff's

complaint on the ground that the court lacks jurisdiction

because plaintiff asserts no federal right which would

give rise to jurisdiction. As the court held in ruling on

plaintiff’s motion for injunctive relief, though, plaintiff

has alleged a specific federal constitutional right — the

right to be free from bad faith prosecution. See Shaw v.

Garrison, 467 F.2d 113, 120 (Sth Cir.), ceri. denied, 409 U.S.

1024 (1972). Contrary to defendants’ assertions, the court

thus has jurisdiction over this matter.

Accordingly, the court DENIES defendants’ motion to

dismiss for lack of jurisdiction and STAYS these proceed-

ings pending the outcome of ongoing state proceedings

or until such time as plaintiff may produce further proba-

tive evidence of bad faith.

IT IS SO ORDERED.

DATED: Honolulu, Hawaii, MAY 19, 1994.

/s/ Harold M. Fong

UNITED STATES DISTRICT

JUDGE

App. 58

APPENDIX F

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT S. FLOWERS, M.D., ) NO. 94-16039

Plaintiff-Appellant, .

vs. DC NO.

SHERRIE T. SEKI, CYNTHIA S. CV-94-00190-HMF

NAKAMURA, individually and

in their official capacities as

attorneys for the Regulated

Industries complaints office,

Department of Consumer

Affairs, State of Hawaii;

CLIFFORD K. HIGA, in his

official capacity as Director of

the Department of Commerce

and Consumer Affairs, State of

Hawaii; SHARON ON LENG,

in her official capacity as

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