Petition for Writ of Certiorari — Williams v. Government of the Virgin Island Board of Medical Examiners

Supreme Court US.

No. 091225 APR 9- 2010

OFFICE OF THE CLERK

Inu The

Supreme Court of the Anited States

WILBERT WILLIAMS,

Petitioner,

V.

GOVERNMENT OF THE VIRGIN ISLANDS BOARD

OF MEDICAL EXAMINERS; THELMA R. WATSON;

FRANK A. ODLUM; JOSEPH DEJAMES,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Third Circuit

PETITION FORA WRIT OF CERTIORARI

JOEL H. HOLT

Counsel for Petittoner

2132 Company Street

Christiansted, St. Croix

U.S. Virgin Islands, 00820

(340) 773-8709

Holtvi@aol.com

COCKLE LAW BRIEF PRINTING CC (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED FOR REVIEW

Did the Third Circuit err in disregarding the

Supreme Court’s holding in Ohio Bureau of Em-

ployment v. Hodory, 431 U.S. 471, 480 (1977) by

not addressing the Petitioner’s argument that

Respondents waived any entitlement to absten-

tion under the Younger doctrine pursuant to

equitable principles of waiver, when Respondents

first consented to the district court’s jurisdiction

and then only raised abstention after (1) an

adverse ruling against it and (2) after it was too

late for the Petitioner to seek relief under the

“state remedies” that would have been available

had a timely Younger motion been filed?

Did the Third Circuit err in (1) concluding that

the Petitioner (a medical doctor) failed to raise

the bad faith exception recognized in Younger v.

Harris, 401 U.S. 37, 56 (1971) when this issue

was expressly identified and fully briefed in the

Petitioner’s opening brief and (2) thus not ad-

dressing this issue based on the facts presented,

including the drastically increased penalty given

to the Petitioner after the second hearing (life-

time license revocation) without any explanation

for doing so, where the Petitioner had success-

fully challenged the first order (one year sus-

pension) on constitutional grounds requiring the

second hearing?

LIST OF PARTIES

The caption of the case lists all parties.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ........ i

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TABLE OF AUT ERORE LD LOO visscssvesicccoccsesecarssncneees vl

CPP eB RES OF ons ncedcansiaseciedeseseeusees acavesncmennes 1

BASIS FOR JURISDICTION IN THIS

CPOE © seks ccnicsavecsssaii eskoeesse eee 2

CONSTITUTIONAL PROVISIONS, TREATIES,

STATUTES, ORDINANCES, AND REGU-

LPI TE RIE BE occas sssniccuessace sss centnevvacanrneve

STATE DREN © OP TEE CAR. 0 oicecssssccsicnsescnssvecess

ARGUMENT FOR GRANTING THE WRIT .......

I. The Court should grant the petition

because the Third Circuit erred in not

recognizing this Court’s holding in Ohio

Bureau of Employment v. Hodory, 431

U.S. 471, 480 (1977), thus failing to ad-

dress the facts relevant to this holding

raised in the record regarding the Re-

spondents’ waiver of any claim for comity

under the Younger abstention doctrine.....

11

1V

TABLE OF CONTENTS — Continued

Page

II. The Third Circuit erred in concluding

that the Petitioner failed to raise the

issues regarding the bad faith exception

to Younger and then not addressing these

issues based on the facts presented, in-

cluding the drastically increased penalty

given to the Petitioner after the second

MMI oleh csun via -nesinuie ab aasensatar is iecsarsacasee rents 17

eR i ans carry cn centee ies onan dabadenn pecetaereceess 24

APPENDIX

Opinion and Judgment dated January 12, 2010,

the United States Court of Appeals for the

Third Circuit (affirming the District Court’s

RI TONE) ik es ied icecccscndiccctiave es App. 1

District Court of the Virgin Islands Opinion

and Judgment Dated December 8, 2008

(dismissing case pursuant to the Younger

EP NG fkixiecscscs mia coeneseaeees App. 11

Virgin Islands Medical Board’s June 17, 2005,

Suspension Order For Dr. Wilbert Williams

(one year suspension from the practice of

GN oo in sn snincscecnsspcsn cdanteee re oe, App. 42

District Court of the Virgin Islands July 12,

2005 TRO Opinion and Order Enjoining

Medical Board’s Suspension Order ............... App. 48

Virgin Islands Medical Board’s July 14, 2005,

Letter (Re: New Disciplinary Hearing)......... App. 60

TABLE OF CONTENTS — Continued

Page

District Court of the Virgin Islands July 22,

2005, Order Making TRO a Permanent In-

PATIO CIOT TOOT CBG onsen cecssnccsvescicvnsccsseesvssns App. 63

District Court of the Virgin Islands August 4,

2005, Order Reopening Case......................... App. 65

Virgin Islands Medical Board’s January 26,

2006, Revocation of License Order (Revoking

BPE. PRARIIE TROOTABE) 6. cie ciieccccdiccivecesccacccccases App. 67

District Court of the Virgin Islands March 10,

2006 TRO Order and Opinion Enjoining

Medical Board’s License Revocation Order...App. 83

District Court of the Virgin Islands March 24,

‘2006, Order Extending TRO Order............... App. 93

Transcript of March 30, 2006, Stipulation in

the District Court of the Virgin Islands Mak-

ing TRO Order a Preliminary Injunction ..... App. 95

Appellant’s Third Circuit Opening Brief.......... App. 98

Excerpts from the September 12, 2005 Board

II cc post jnaiisnas chance Sonchiivdansenuuommneeraets App. 148

Excerpts from the June 14, 2007, District

I RINNE i555 ccceriusccaseecsdulscctoeteasicnesces App. 152

Excerpts from the November 17, 2008 Board

I 2055 ern) ea gosvnaebasusedoiinusavevancanieguienerrati App. 165

Bill No. 28-0198 Adopted by the Legislature of

the Virgin Islands on December 22, 2009 .... App. 169

v1

TABLE OF AUTHORITIES

Page

CASES

Cradle of Liberty Council, Inc. v. City of Phila-

delphia, 2009 WL 3921140 (E.D.Pa. 2009)

reconsideration denied at 2010 WL 68874............. 12

Gibson v. Berryville, 411 U.S. 564 (1973)...... 20, 21, 24

Herz v. Degnan, 648 F. 2d 201 (3rd Cir. 1981)........... 12

Middlesex County Ethics Comm. v. Garden

State Bar Ass’n, 457 U.S. 423 (1982)......0.0000... 6, 7

North Carolina v. Pearce, 395 U.S. 711 (1969).....20, 21, 25

Norton v. Town of Islip, 239 F. Supp. 2d 264

eg sca sun a weuknseiiespousmecsateassvike 12

Ohio Bureau of Employment Services v. Hodory,

Ny EE BME FP ivaceicin vesnccincccedcissscsaesosccvanens passim

O’Neill v. Coughlan, 511 F. 3d 638 (6th Cir.

oul te orcas ews cienesaeredancdannotuscehs 12

Sharkey’s, Inc. vu. City of Waukesha, 265

B. Se, BG BSE (E.DD. Wik. ZOOS) os.sccccrersccosvescccsoves 12

Williams v. Government of the Virgin Islands,

et al., 2008 WL 5142181 (D.V.I. 2008)................ 2,11

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

STATUTES

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nc. 5s vednw dai bacsaenawaseudaseabakianeseen 2,3

aca uh neck saaavheaoveuennnakcd iene enss 2

TABLE OF AUTHORITIES — Continued

Page

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Se GF BGs SOE. Kevisvaseciesiwiccvcsees eal eeiniaenis vecuecrscwecaenans 2

ee Ss Oe EE hic bier cuca ey doce ban dana besganvigtana se ceateaeeteeaens 2

ee ee Oe veakiccdvcnnseneninesasrcsedn eraasieenn 6

OPINIONS BELOW

The Petitioner is a doctor who had his medical

license suspended for one year by the Virgin Islands

Board of Examiners (“Board”) on June 17, 2005. App.

40. The Petitioner sought relief, including injunctive

relief, from the District Court of the Virgin Islands.

The court found that the Board’s actions were taken

in violation of the Petitioner’s due process rights and

granted a temporary restraining order on July 12,

2005, enjoining the Board from enforcing its order.

App. 48. The Board decided not to contest that find-

ing, agreeing to the entry of an injunction (App. 63),

and then setting the matter for a new hearing. App.

60.

After holding another hearing, the Board revoked

the Petitioner’s license (as opposed to its earlier one

year suspension) on January 26, 2006 (App. 80-81),

though its order was not served on the Petitioner

until March 7, 2006. The Petitioner promptly asked

the District Court (in the same proceedings that were

still pending) to again enjoin the Board from enforc-

ing this new order because once again his due process

rights were violated by the Board’s conduct, despite

the clear guidelines previously provided by the Dis-

trict Court in its first opinion.

The District Court found that the Board had still

violated the Petitioner’s due process rights in its pro-

ceedings and entered a new temporary restraining

order on March 10, 2006, enjoining the Board from

enforcing its revocation order. App. 83. Rather than

2

challenge this finding, the Board agreed to the entry

of a preliminary injunction on March 30, 2006. App.

95. However, it subsequently moved to dismiss the

case for lack of jurisdiction based on the abstention

doctrine established by this Court in Younger v. Har-

ris, 401 U.S. 37 (1971). After several hearings over

the next several years, the District Court dismissed

the case based upon the Younger doctrine on Decem-

ber 8, 2008, which is reported at Williams v. Govern-

ment of the Virgin Islands et al., 2008 WL 5142181

(D.V.I. 2008). App. 11. An appeal was taken to the

Third Circuit, which affirmed the District Court’s

decision on January 12, 2010, in an unpublished opin-

ion. App. 1.

BASIS FOR JURISDICTION IN THIS COURT

This action was filed in the United States Dis-

trict Court of the Virgin Islands based upon several

federal jurisdictional statutes, including 28 U.S.C.

§1331, 28 U.S.C. §2201, 42 U.S.C. §1983 and 15

U.S.C. §1. Upon entry of the final judgment dismiss-

ing the case a timely appeal was filed to the United

States Court of Appeals for the Third Circuit, which

has jurisdiction over appeals from the District Court

of the Virgin Islands pursuant to 28 U.S.C. §1291 and

§1294(3). This petition is timely filed under Supreme

Court Rule 13(1) and this Court has jurisdiction pur-

suant to 28 U.S.C. §1254(1). Pursuant to Supreme

Court Rule 14(e), Petitioner provides the following

specific information:

3

G) Date of judgment sought to be re-

viewed: January 12, 2010, issued by the

United States Court of Appeals for the

Third Circuit

Gi) Date of any order respecting rehearing/

extension of time: Not applicable, as

none was sought

(iii) Rule 12.5 considerations: Not applicable

to this Petition

(iv) Statutory Provision conferring jurisdic-

tion: 28 U.S.C. §1254(1)

(v) Rule 29.4 statement: Not applicable to

this Petition

CONSTITUTIONAL PROVISIONS,

TREATIES, STATUTES, ORDINANCES

AND REGULATIONS INVOLVED

This case involves the abstention doctrine that is

the judicially created exception to mandatory federal

jurisdiction, as enunciated by the Supreme Court in

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

*

STATEMENT OF THE CASE

Dr. Wilbert Williams was licensed to practice

medicine in the Virgin Islands in 1983, where he has

resided with his wife and children since 1981. He

practiced Family Medicine on St. Croix for over 20

4

years without any problems with or complaints by the

Virgin Islands Medical Board (“Board”). In May of

2005, he had a complaint filed against him by an

anonymous person that resulted in a hearing before

the Board.

On June 17, 2005, the Board subsequently

suspended Dr. Williams’ license to practice medicine

for one year as a result of their findings regarding his

treatment of the patient in question. App. 40. Dr.

Williams believed that the notice of the hearing had

neither advised him of the charges against him nor

the potential consequences thereof, thus violating his

due process rights. As such, he sought relief from this

order by filing an action in the United States District

Court of the Virgin Islands.

The District Court reviewed the application for a

temporary restraining order and granted it on July

12, 2005, finding that Dr. Williams’ due process rights

had been violated by the Board based on the deficient

notice it gave him before his hearing. App. 48. In its

opinion, the court declined to give any weight to the

findings of the Board because they had been entered

without affording Dr. Williams due process in its

proceedings. However, the court explained what due

process was required before it could suspend Dr.

Williams’ medical license and then expressly stated

that its ruling did not “impede the Board from taking

further action against Dr. Williams after affording

him reasonable notice and an opportunity to be

heard.”

On

A hearing on the preliminary injunction was then

set. The Board decided not to contest the court’s find-

ing that it had violated Dr. Williams’ due process

rights, deciding instead that it would hold another

hearing, which it promptly noticed. App. 60. As such,

it consented to the court issuing a permanent in-

junction enjoining it from enforcing the one year

suspension.’ App. 63.

The Board then held another hearing. On Janu-

ary 26, 2006, the Board subsequently revoked Dr.

Williams’ medical license based on the same incident,

rather than just suspending his license for one year

as had been done after the first hearing. App. 80-81.

Because the Board still failed to follow the court’s

instructions regarding the required due process, Dr.

Williams filed another request for a temporary re-

straining order from the District Court regarding this

revocation order in the same pending case. The

District Court again found that the Board had failed

to provide Dr. Williams with the required due process,

despite its earlier admonitions, and issued a tempo-

rary restraining order on March 10, 2006." App. 83.

The court extended this TRO once and scheduled a

' The court initially ordered the file to be closed but

promptly reopened it once it realized there were other issues

that were still unresolved. App. 65.

* The court again discounted the Board’s findings in con-

sidering whether to grant the TRO, noting that those findings

had been made without affording Dr. Williams’ due process in its

proceedings

6

hearing on the preliminary injunction for March 30,

2006. At the scheduled hearing the Board stipulated

to the preliminary injunction being entered. App. 95.

The Board subsequently filed a motion challeng-

ing the court’s jurisdiction on multiple grounds, which

included an abstention argument. Of course, by now

the time to file any challenge to the Board’s adminis-

trative order under the local territorial procedures of

the Virgin Islands had expired. See 5 V.1.C. §1421 et

seq. and Rule 15 of the Superior Court of the United

States Virgin Islands. Thereafter, the court held sev-

eral hearings over the next two years to determine

whether the case should be dismissed based on the

abstention doctrine set forth in this Court’s decision

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

The Petitioner argued that the exceptions to

Younger applied here, identified in Younger as being

“bad faith, harassment, or any other unusual circum-

stance that would call for equitable relief.” Jd. at 56.

Subsequent decisions have reiterated these excep-

tions. In Middlesex County Ethics Comm. v. Garden

State Bar Ass’n, 457 U.S. 423 (1982), this Court

stated in part as follows:

The importance of the state interest in the

pending state judicial proceedings and in the

federal case calls Younger abstention into

play. So long as the constitutional claims of

respondents can be determined in the state

proceedings and so long as there is no show-

ing of bad faith, harassment, or some other

extraordinary circumstance that would make

7

abstention inappropriate, the federal courts

should abstain. Jd. at 435.

The Petitioner then presented evidence in the District

Court to support his contention that these exceptions

applied here based in part on the following facts:

1)

2)

3)

4)

The Board drastically increased the pen-

alty given to Dr. Williams after the sec-

ond hearing based on the same charges,

revoking his license rather than just is-

suing a one year suspension;

The Board relied on evidence received

after the hearing (without notice to Dr.

Williams) after representing to Dr. Wil-

liams at the hearing that no such addi-

tional evidence would be considered;

The Board found that Dr. Williams had

“lied” about his ACLS certification when

he testified that his ACLS certification

was current, when in fact the hearing

transcript confirmed that his testimony

had been truthful, as he had testified

that his ACLS certification was not cur-

rent;

The Board found that Dr. Williams did

not have a license when he treated the

patient in question, when he in fact did

have a valid license, as evidenced by the

documentation given to him by the Board

and signed by a Board member;

The Board had a member who was in

direct competition with Dr. Williams, but

8

failed to even consider removing her de-

spite Dr. Williams’ objection prior to the

hearing.

This evidence presented to the District Court sup-

porting these facts was undisputed as confirmed by

the record below as follows:

1) The increased penalty is undisputed as

noted by the revocation order issued

after the second hearing, which dras-

tically increased the Board’s initial one

year suspension after the first hearing.

App. 40 and 80-81.

2) At the outset of the Board’s second hear-

ing, counsel for Dr. Williams specifically

inquired whether records from pharma-

cies, pharmaceutical companies or other

sources would be considered as part of

the charges against Dr. Williams since

he had not been provided any such docu-

ments, to which counsel for the Board

said they would not be considered. App.

148-149. Notwithstanding this fact, the

Board Chairperson admitted at the

District Court hearing that such records

were subsequently obtained == and

considered by the Board, even though

Dr. Williams was never notified about

these documents or given an opportunity

to respond to these items. App. 153-156.

3) While the Board’s decision found that

Dr. Williams had lied at the second hear-

ing by stating he was ACLS certified, the

4)

9

Board Chairperson acknowledged at the

District Court hearing that the hearing

transcript (App. 150-151) confirmed that

he had in fact testified that he was not

ACLS certified at the time of the

hearing. App. 161-164.

While the Board’s decision found that

Dr. Williams did not have a current li-

cense when he treated the patient in

question, the Board Chairperson acknow]-

edged at the District Court hearing that

Dr. Williams had had his license re-

newed prior to treating the patient and

that the Board had issued documen-

tation to him to this effect. App. 157-158.

She then tried to explain the Board’s

findings by stating that Dr. Williams

should not have been given the docu-

mentation in question because he was

late in providing certain paperwork

needed for his annual license renewal.

However, when questioned further the

Chairperson admitted that many doctors

in the Virgin Islands are routinely late

in providing this renewal paperwork, yet

they are routinely allowed to practice

while this paperwork is being obtained

and submitted for their annual license

renewal. More importantly to the “bias”

issue in this case, the Chairperson then

admitted that at the time period relative

to Dr. Wilhams’ treatment of the patient

in question, the Board’s practice was to

allow doctors to practice while this

paperwork was being processed, meaning

10

the Board’s finding that Dr. Williams did

not have a license when he treated the

patient was a retroactive “rule” uniquely

created to apply solely to Dr. Williams.

App. 158-161.

5) Dr. Williams also provided detailed in-

formation explaining why one of the

Board members was in direct competi-

tion to him, which the District Court

found to be insufficient to warrant a

finding of bias even though the Board

member in question did not testify or

provide any information to refute this

fact. App. 34n.1.”

While a full review of the record is not possible in this

petition, the foregoing analysis presents sufficient in-

formation for this Court to understand the evidence

and arguments presented in the District Court in

order to address this petition.

* The District Court only made a finding regarding this last

point as will be discussed further herein. Regarding the conflict

of the one Board member, Dr. Dizon, the court first acknowl-

edged that 80% of Dr Williams’ practice was the same as that of

Dr. Dizon, who is an endocrinologist. The court suggested this

figure was inflated, however, because it included Dr. Williams’

treatment of diabetes, it somehow eliminated this conflict. App.

34n 1. However, as the Board’s Chairperson testified, the treat-

ment of diabetes is one of the areas of an endocrinologist’s

practice (App. 168). Thus, the court’s finding that there was no

conflict made no sense, an issue raised on appeal (App. 134-136),

which the Third Circuit summarily disposed of by deferring to

the District Court’s finding. App 7

11

The District Court subsequently held on Decem-

ber 8, 2008, that the Younger abstention doctrine

required dismissal of the case and that none of the

Younger exceptions applied. App. 11. That decision

is reported at Williams v. Government of the Virgin

Islands et al., 2008 WL 5142181 (D.V.I. 2008).* An

appeal was then taken to the Third Circuit, which

affirmed the District Court in an unpublished deci-

sion issued on January 12, 2010. App. 1.

+

ARGUMENT FOR GRANTING THE WRIT

I. The Court should grant the pctition

because the Third Circuit erred in not

recognizing this Court’s holding in Ohio

Bureau of Employment v. Hodory, 431 U.S.

471, 480 (1977), thus failing to address the

facts relevant to this holding raised in the

record regarding the Respondents’ waiver

of any claim for comity under the Younger

abstention doctrine.

The Petitioner raised the issue of whether the

Respondents waived its right to assert comity under

the Younger doctrine, citing Ohio Bureau of Employ-

ment v. Hodory, 431 U.S. 471, 480 (1977), and arguing

that the Board’s conduct in this case constituted such

* That ruling dissolved the preliminary injunction that had

allowed Dr Williams to practice medicine during the three plus

years while the case was pending

2

a waiver. The Third Circuit noted this argument, but

then stated “Williams offers no authority for this

waiver argument.” App. 8. The Third Circuit did dis-

tinguish one of its other holdings cited by Williams,

Herz v. Degnan, 648 F.2d 201, 209-210 (8rd Cir.

1981), which held that one factor to consider in deny-

ing a Younger motion is whether substantial litigation

had already taken place in the district court. How-

ever, the Third Circuit failed to even acknowledge

this Court’s holding in Hodory. App. 7-8.

The failure of the Third Circuit to even acknowl-

edge that a party can waive its ability to raise a

Younger issue constitutes clear error. Indeed, other

courts have had no problem in recognizing this waiv-

er issue. See, e.g., O'Neill v. Coughlan, 511 F. 3d 638,

641-644 (6th Cir. 2008) (both parties recognized that

a state can waive the application of Younger); Cradle

of Liberty Council, Inc. v. City of Philadelphia, 2009

WL 3921140 at *4 (E.D.Pa. 2009), reconsideration de-

nied, 2010 WL 68874 at *3-4; Sharkey’s, Inc. v. City of

Waukesha, 265 F. Supp. 2d 984, 988 (E.D. Wis. 2003);

Norton v. Town of Islip, 239 F.Supp. 2d 264, 275

(E.D.N-Y. 2003).

Hodory noted that while Younger is concerned in

an “equitable setting” with the principles of “comity

and federalism,” a state can waive Younger abstention

even after initially raising the issue. Jd. at 477-481.

As this Court noted, “liJf the State voluntarily chooses

to submit to a federal forum, principles of comity do

not demand that the federal court force the case back

into the State’s system.” Jd. at 480.

13

The “waiver” question that is raised here is

whether the state, after consenting to the federal

court’s jurisdiction but then deciding that it did not

like that court’s decision, can then raise a Younger

abstention argument. After all, once the District Court

found that the Board’s order should be enjoined for

violating the Petitioner’s due process, what else would

a subsequent state/territorial court do except to

second guess the District Court’s ruling? Indeed, how

could the Respondents even seek a different ruling

when they stipulated to entry of the preliminary in-

junction finding that they had violated the Peti-

tioner’s due process rights? Clearly, the principles of

equity and comity do not allow such “forum shopping”

so that abstention must be deemed waived under

such circumstances.

In this case, the Respondents accepted the Dis-

trict Court’s initial decision and the exercise of its

jurisdiction after the first TRO, deciding to hold a

new hearing and stipulating to a permanent injunc-

tion regarding its first decision. However, after the

District Court enjoined its second decision almost a

year later, the Board changed its mind and decided it

did not like being before the District Court. While the

Board did not contest the merits of this second ruling,

which found that it had violated Dr. Williams’ due

process rights, it then raised an abstention argument,

moving to dismiss the case for lack of jurisdiction.

More importantly, and in further support of the

Petitioner’s Hodory argument, the Board’s motion to

dismiss was filed after the time had expired for Dr.

14

Williams to challenge his license revocation within

the judicial process under the Virgin Islands judicial

system. The District Court discussed this fact, noting

that the time to invoke the “state-judicial remedy”

under the local Virgin Islands rules had expired,

which would effectively leave Dr. Williams with no

remedy to address his license revocation, even though

it is undisputed that the Board’s decision had been

made in violation of Dr. Williams’ due process rights.”

App. 18-20n.4.

Thus, the question arises as to whether the Re-

spondents are entitled to the principles of comity and

equity that are the foundation of the Younger absten-

tion doctrine, as the Respondents’ delay in raising the

issue only after an adverse finding allows it the bene-

fit of not being subject to the “state-judicial remedy”

that could have otherwise been invoked had the Re-

spondents not delayed in raising this issue.° Indeed,

the Respondents’ acceptance of the first TRO, stipu-

lating to it becoming an injunction, certainly justified

° Indeed, the District Court even suggested a_ possible

procedural solution to this problem. App. 20 Of course, the

Petitioner immediately filed an action in the Superior Court of

the Virgin Islands after the District Court’s dismissal, raising

multiple reasons why the case should be deemed timely,

including reliance in part on 28 U.SC. § 1367(d), but the local

court rejected those arguments and dismissed the claim as un-

timely An appeal is pending in the Supreme Court of the Virgin

Islands, which has heard oral arguments, but no decision has

been rendered, so Dr. Williams’ practice remains closed.

* This was the precise waiver issue before the Third Circuit.

App. 121-126.

15

any reliance by the Petitioner that the Respondents

had agreed to the District Court’s jurisdiction in this

case.

While Hodory involved a case where the state

clearly agreed to waive the abstention argument,

nothing in that decision limits the waiver argument

to the circumstances of that case. Instead, while

Hodory explained some of the possible reasons why a

state might refrain from arising an abstention argu-

ment, the State of Ohio did not explain its motives in

that case.

Indeed, because the abstention from the exercise

of jurisdiction is the exception, not the rule, based on

the equitable (and common sense) principles of comity

and equity, clearly a state should not be allowed to

invoke this doctrine at any stage of the proceedings

after consenting to the court’s jurisdiction just be-

cause it no longer likes the decisions of a federal

court. In fact, Younger specifically counseled against

abstention when there is “any other unusual circum-

stance that would call for equitable relief.”

' Indeed, if a governmental entity is allowed to engage in

such conduct, then the Board could have taken the same tactic

after the first TRO, waiting for the appeal tume under the local

law to expire and then enforce its one year suspension after pre-

vailing 1n a Younger motion. It obviously did not want to pursue

that path as it wanted to further punish Dr Williams for in-

voking the judicial process, as will be discussed in Argument II

herein.

16

Clearly, it is only equitable (and certainly not a

violation of the principles of comity) to find that a

waiver also occurs when the doctrine is raised only

after an adverse decision has been rendered, particu-

larly when an otherwise timely “state appeal” that

could have been filed is now time barred. In short a

“waiver” can occur where clear “forum shopping” or

prejudicial “litigation tactics” are the state’s motiva-

tion in belatedly raising an abstention issue rather

than preserving comity.

Indeed, in Hodory the constitutionality of the

statute in question was still ripe for resolution through

the state judicial system had the state chosen to

invoke the abstention doctrine. In this case, that op-

tion no longer existed due to the Respondents’ calcu-

lated delay in making this decision after it received

an adverse ruling from the District Court. As such,

the Respondents should be found to have waived

their claim for comity under Younger, a finding per-

mitted by this Court’s ruling in Hodory, which the

Third Circuit chose not to recognize.

Alternatively, since the Third Circuit refused to

consider this argument based on the facts before it, it

is respectfully submitted this matter should at least

be remanded to it for consideration of this issue.

17

Il. The Third Circuit erred in concluding

that the Petitioner failed to raise the is-

sues regarding the bad faith exception to

Younger and then not addressing these

issues based on the facts presented, in-

cluding the drastically increased penalty

given to the Petitioner after the second

hearing.

The crux of the Petitioner’s argument that the

District Court should have recognized the Younger

exceptions relied on several critical facts arising out

of the Board’s second hearing, as noted in the State-

ment of Facts. The District Court addressed some,

but not all of these facts. Most importantly, the Dis-

trict Court totally ignored the critical facts related to

the Board’s bias and bad faith, including the dras-

tically increased penalty after the second hearing.

In his brief to the Third Circuit, the Petitioner

specifically raised the issue of whether the Younger

exceptions applied in this case, listing this issue at

the outset of the brief as well in the body of the

argument. App. 101 and 126. The Petitioner’s bnef

then spent the next seventeen pages discussing why

the specific facts in this case, as discussed herein, met

the legal standard justifying the application of these

recognized Younger exceptions, repeatedly arguing

that the District Court should not have abstained in

this case because of these facts. Indeed, the issue

related to the drastically increased penalty was dis-

cussed at length. App. 112-113, 130-131, 140, 143-144.

18

Notwithstanding the express statement of the

issues and the lengthy argument that followed in the

brief, the Third Circuit only addressed one of the fac

tual arguments raised by the Petitioner — the conflict

of interest of another Board member who was in

direct competition with Dr. Williams (App. 7) — but

then summarily dismissed all of the remaining other

factual arguments in a footnote by incredibly stating

as follows (App. 7):

In his brief, Williams argues that the district

court abused its discretion by not making

any findings regarding all of his other claims

of the Board’s bias. William’s (sic) Br. at 38-

43). However, those issues were raised by

Williams in his claim in the district court

that the Board acted in bad faith and, there-

fore, abstention was not appropriate under

the bad faith exception to Younger. As noted,

the district court rejected Williams’ conten-

tion that it should not abstain under the bad

faith exception to Younger. Williams does

not challenge the district court’s hold-

ing on the bad faith exception in his

appeal. (emphasis added).

This finding is clear error as the Petitioner’s brief

expressly raised this issue in its Statement of the

Issues and again in the Argument section of his brief

filed with the Third Circuit. Indeed, this issue was

thoroughly briefed. In short, no fair reading of the

Petitioner’s Third Circuit brief could possibly limit

the issue on appeal regarding the application of the

Younger exceptions solely to the conflict of interest

19

issue related to the one Board member.”

Of course, not only did the Petitioner raise this

issue, but the pages in the Petitioner’s brief cited by

the Third Circuit (pp. 38-43 at App. 140-144), con-

tained one of the Petitioner’s primary points being

raised — that the District Court had “simply made no

findings regarding the bulk of the facts submitted by Dr.

Williams to support his claim of bias....” (App. 140),

which then specifically listed the most critical aspects of

Dr. Williams’ arguments as follows (App. 140):

1)

2)

3)

The Board drastically increased the pen-

alty given to Dr. Williams after the sec-

ond hearing based on the same charges,

revoking his license rather than just

issuing a one year suspension;

The Board’s reliance on evidence re-

ceived after the hearing (without notice

to Dr. Williams) after representing to Dr.

Williams at the hearing that no such

additional evidence would be considered;

The Board’s finding of lying regarding

the ACLS certification when the trans-

cript revealed he testified truthfully

when asked about this certification.

* In fact, the Third Circuit had no trouble in finding that

Dr. Williams had raised the “waiver” argument, even though that

issue was only listed in the Argument section of the brief rather

than in the initial Statement of Issues, unlike the Younger ex

ceptions argument that was listed both places

20

Thus, it is completely incomprehensible how the Third

Circuit can then describe these factual issues as

having been considered by the District Court (when it

did not do so) and then further state that the Peti-

tioner did not raise these factuai matters on appeal!

Indeed, neither the District Court nor the Third

Circuit ever addressed the glaring issue raised by the

increased penalty imposed by the Board after the

second hearing.” In this regard, this Court held in

North Carolina v. Pearce, 395 U.S. 711 (1969), that

vindictiveness is presumed when a defendant receives

a harsher sentence after a successful constitutional

challenge to his first conviction absent an express ar-

ticulated reason for imposing a harsher sentence.

Notwithstanding this significant Supreme Court deci-

sion, cited to both the District Court and the Third

Circuit, neither court addressed its implications to

the facts of this case.

In this regard, this Court has held that one of the

Younger exceptions is found where the evidence dem-

onstrates that the state administrative agency is

incompetent by its reason of bias to adjudicate the

issues pending before it, holding in Gibson v. Berry-

ville, 411 U.S. 564 (1973) as follows:

* The District Court specifically identified this issue as one

of Dr. Williams’ primary contentions 1n support of his argument

that the Younger exceptions applied (App. 24), but then never

addressed it.

21

Here the predicate for a Younger v. Harris

dismissal was lacking, for the appellees al-

leged, and the District Court concluded, that

the State Board of Optometry was incom-

petent by reason of bias to adjudicate the

issues pending before it. .If the District

Court’s conclusion was correct in this regard,

it was also correct that it need not defer to

the Board. Nor, in these circumstances, would

a different result be required simply because

judicial review, de novo or otherwise, would

be forthcoming at the conclusion of the ad-

ministrative proceedings. Id. at 577.

The failure of both the District Court and the Third

Circuit to address this critical issue of bias based on

this Court’s holding in Pearce is grounds for granting

this writ (or remanding this case for further findings),

as the imposition of an increased penalty after a suc-

cessful constitutional challenge to a prior proceeding

without some justification for the increased penalty

violates the due process clause. Why? Because it is

presumed to be evidence of vindictiveness and is

certainly evidence of actual bias absent such an ex-

planation.

Indeed on this record one has to ask why the

Board agreed to a new hearing after the TRO

enjoining the one year suspension rather than simply

raising the Younger abstention doctrine at that point?

Based on the Board’s subsequent actions it reason-

ably appears that it wanted to teach Dr. Williams a

lesson for challenging its authority. Whether the

Board was biased against Dr. Williams for asserting

22

his legal rights, making the Board look unprofes-

sional since this Court reversed the Board’s initial

findings, or for standing up to the Board, so that a

message had to be sent to other doctors that such

insubordination would not be tolerated is not known.”

Regardless of why it imposed a far more severe

penalty, what is clear is that no justification has ever

been given for the increased penalty imposed upon

Dr. Williams, resulting in a lifetime revocation of his

medical license. More important to this Petition, nei-

ther the District Court nor the Third Circuit even

attempted to find if there was any justification for the

Board’s action despite this point being repeatedly

raised by the Petitioner. As such, it is respectfully

submitted that this question involving the presumed

bias of the Board alone justifies issuing the writ in

this case.

Moreover, the failure of either court to address

the other facts asserted in support of the finding of

bias, bad faith and exceptional circumstances also

supports the granting of the writ in this case. For

example, if the Board affirmatively tells Dr. Williams

that it will not be considering any other evidence and

10

Indeed, the Board has also ignored Dr. Williams’ applica-

tion for reinstatement, even though the Legislature has adopted

a resolution which was then approved by the Governor calling

for the Board to consider his reinstatement because of his multi-

ple contributions and services provided to the citizens of the

Virgin Islands for over 29 years and to grant him due process.

App. 169-171.

23

then it subsequently does so without providing him

an opportunity to respond to that evidence, there is a

question of bias. Likewise, if the Board finds that Dr.

Williams lied at the hearing when the transcript

clearly shows otherwise, there is a question of bias.

Indeed, if the Board decides to enact a new standard

for determining when a license has been renewed just

to apply this new standard retroactively only to Dr.

Williams (without telling him), there is clearly evi-

dence of bias.”

Add these individual facts together, none of which

are in dispute as admitted by the testimony of the

Board’s Chairperson, with the fact that a drastically

increased penalty was imposed and it reasonably ap-

pears that the Board had prejudged the outcome of

the second hearing, going through the process simply

to make sure Dr. Williams would never practice medi-

cine again. This result is of course the danger that

exists where the Board is its own investigator and

expert witness as well as being the adjudicator, as

was the case here.”

As the District Court and the Third Circuit erred

in failing to even consider these undisputed facts in

deciding whether to apply the exceptions recognized

The District Court noted each of these factual arguments

in 1ts opinion (App. 24), but then never addressed the merits of

any of them.

‘ The Board acknowledged that it acted as its own investi-

gator and expert witness in these proceedings. App 166-167.

24

in Younger, Gibson and other subsequent decisions, it

is respectfully submitted that this Court should grant

the petition for certiorari to consider these Younger

issues or then remand this case with instructions for

the Third Circuit to address these issues that were

clearly raised, contrary to the Third Circuit’s opinion.

¢

CONCLUSION

For the reasons set forth herein, it is respectfully

submitted that the petition should be granted in this

case to insure that the Third Circuit follows the clear

holdings established by this Court. The District Court

found that the Respondents violated the Petitioner’s

due process in its proceedings that revoked his li-

cense, a finding the Respondents accepted. However,

the Respondents then used the judicially created ab-

stention doctrine adopted in Younger to avoid the

court’s jurisdiction after this adverse finding.

Clearly abstention doctrines were never intended

to be used as a litigation tool to avoid the court’s

jurisdiction simply because the governmental entity

no longer lked being in federal court. Under the

circumstances found in this case, a finding of waiv-

er, an equitable remedy, certainly falls within the

guidelines established in both Younger and Hodory.

Otherwise, a decision revoking the Petitioner’s medi-

cal license that was undisputedly issued in violation

of the Petitioner’s due process rights will be allowed

25

to go unchallenged due to the belated and inequitable

application of an abstention doctrine.

Equally important, this Court has established

precedents that prevent the use of the Younger princi-

ples where there is “bad faith” or “other unusual

circumstance that would call for equitable relief.”

While the contours of these rules are impossible to

completely define, clearly the imposition of a much

harsher penalty after a successful constitutional chal-

lenge to the first finding constitutes one such basis

for finding bias absent an explanation for the in-

creased penalty. In this case, the Petitioner has

presented several additional undisputed facts that

further support the Petitioner’s position that the

Respondents were biased and acted in bad faith so

that abstention is not appropriate under Younger.

Finally, while this Court has many important

matters to deal with, from time to time it still needs

to address the proper administration of justice by the

circuit courts. In this case, Dr. Williams had his

medical license revoked for life after he successfully

asserted his constitutional rights in order to get a

new hearing. This subsequent drastically increased

penalty implicates another important constitutional

issue under this Court’s holding in Pearce. Notwith-

standing this fact, both the District Court and the

Third Circuit failed to address this constitutional

issue even though it was clearly raised. As such, this

Court should also exercise its Supervisory powers in

this case by granting the petition to insure that the

26

circuit courts properly carry out their functions by

addressing these important constitutional questions.

Respectfully submitted,

JOEL H. HOLT

Counsel for Petitioner

2132 Company Street

Christiansted, St. Croix

U.S. Virgin Islands, 00820

(340) 773-8709

Holtvi@aol.com

Dated: April 9, 2010

App. 1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 08-4795

WILBERT WILLIAMS,

Appellant

V.

GOVERNMENT OF THE VIRGIN ISLANDS

BOARD OF MEDICAL EXAMINERS; THELMA R.

WATSON; FRANK A. ODLUM; JOSEPH DEJAMES

Appeal from the District Court

of the Virgin Islands

(Civ. No. 1-05-cv-00097)

District Judge: Hon. Curtis V. Gomez

Submitted pursuant to Third Circuit LAR 34.1(a)

December 1, 2009

Ketore: McKEE and FUENTES,

and NYGAARD, Circuit Judges,

(Opinion filed: January 12, 2010)

OPINION

McKEE, Circuit Judge.

Wilbert Williams appeals the district court’s

dismissal of his complaint pursuant to the abstention

principles articulated in Younger v. Harris, 401 U.S.

37 (1971), and its progeny. Williams filed the com-

plaint against the Virgin Islands Board of Medical

Examiners and three of its members (hereinafter the

“Board”), after the Board suspended his license to

App. 2

practice medicine. For the reasons that follow, we will

affirm the district court’s decision to abstain pursuant

to Younger: '

I.

Because we write primarily for the parties who

are familiar with the underlying facts and procedural

history, we need not recite either here.

“Abstention is a judicially created doctrine under

which a federal court will decline to exercise its

jurisdiction so that a state court or agency will have

the opportunity to decide the matters at issue.”

Kentucky West Virginia Gas Co. v. Pennsylvania Public

Utility Commission, 791 F.2d 1111, 1114 (3d Cir. 1986)

(citation omitted). The doctrine is rooted in concerns

for the maintenance of the federal system and “repre-

sents an extraordinary and narrow exception to the

‘virtually unflagging obligation of the federal courts

to exercise the jurisdiction given them.’” /d. (quoting

Colorado River Water Conservation Dist. v. United

States, 424 U.S. 800, 817 (1976)). Consequently, ab-

stention is justified “only in the exceptional cir-

cumstances where the order to the parties to repair to

the State court would clearly serve an important

' “In reviewing the district court’s abstention, the under-

lying legal questions are subject to plenary review, but the deci-

sion to abstain 1s reviewed for an abuse of discretion.” Grode v.

Mutual Fire, Marine and Inland Ins. Co., 8 F 8d 953, 957 (8d

Cir. 1993) (citation omitted).

App. 3

countervailing interest.” Jd. (citation omitted). In other

words, “lalbstention from the exercise of federal

jurisdiction 1s appropriate only under certain limited

circumstances.” Chez Sez HI Corp. v. Township of

Union, 945 F.2d 628, 630 (3d Cir. 1991) (citation

omitted). Those circumstances “are loosely gathered

under discrete concepts of abstention named after

leading Supreme Court cases,” Chiropractic America

v. Lavecchia, 180 F.3d 99, 103 (8d Cir. 1999), viz.,

“Pullman” (Railroad Comm’n of Texas v. Pullman,

312 U.S. 496 (1941)), “Burford” (Burford v. Sun Oil

Co., 319 U.S. 315 (1941), “Younger” (Younger uv.

Harris, 401 U.S. 37 (1971), and “Colorado River”

(Colorado River Water Conservation Dist. v. United

States, 424 U.S. 800 (1976). As we have noted, this

appeal involves Younger abstention.

In Younger, the district court enjoined the Los

Angeles County District Attorney from prosecuting

the defendant under a constitutionally-suspect state

statute. The Supreme Court reversed, finding the in-

junction “a violation of the national policy forbidding

federal courts [from] stayling] or enjoin[ing] pending

state court proceedings except under special circum-

stances.” Younger, 401 U.S. at 41. “Although Younger

involved a state court criminal proceeding, the

national policy against enjoining pending state court

proceedings has since been extended to noncriminal

proceedings,” including administrative proceedings.

Zahl v. Harper, 282 F.3d 204, 208 (3d Cir. 2002)

(citations omitted). The Supreme Court has set out a

three-part test for determining whether Younger

App. 4

abstention is appropriate. “Abstention is appropriate

when: (1) there is a pending state judicial proceeding;

(2) the proceeding implicates important state in-

terests; and (3) the state proceeding affords an ade-

quate opportunity to raise constitutional challenges.”

Id. at 209 (citing Middlesex County Ethics Comm. v.

Garden State Bar Ass’n, 457 U.S. 423, 482 (1982)).

However, even if the Younger test is met, abstention

is not appropriate in all circumstances. A federal

court may interfere with a state proceeding “in cer-

tain exceptional circumstances — where irreparable

injury is ‘both great and immediate,’ where the state

law is ‘flagrantly and patently violative of express

constitutional prohibitions, or where there is a

showing of ‘bad faith, harassment, or ... other

unusual circumstances that would call for equitable

relief.” Mitchum v. Foster, 407 U.S. 225, 230 (1972)

(quoting Younger, 401 U.S. at 46-54).

III.

In holding that the Younger test was met, the

district court found: (1) that the Board’s proceedings

are ongoing and judicial in nature; (2) that the Board

has a “significant interest ... in regulating the prac-

tice of medicine with an eye toward improving the

public health;” and (3) that Williams has an adequate

opportunity to raise his constitutional claims because

he can assert his due process claims during the

territorial forum’s review of the Board’s decision.

2008 WL 5142181 at *3-5. The district court also

rejected William’s contention that abstention is not

App. 5

appropriate under the Younger bad faith and extra-

ordinary circumstances exceptions. /d. at *5-10.

In his appeal, Williams does not challenge the

district court’s holding that the Younger test was met.

Instead, he contends that there are extraordinary cir-

cumstances present in his case that make abstention

inappropriate. The extraordinary circumstances ex-

ception is part of the Younger “bad faith, harassment

or any other unusual circumstance that would call for

equitable relief” exception. Diamond “D” Construc-

tion Corp. v. McGowan, 282 F.3d 191, 201 (2nd Cir.

2002). In Kugler v. Helfant, 421 U.S. 117 (1975), the

Supreme Court explained the extraordinary circum-

stances exception:

Only if “extraordinary circumstances” render

the state court incapable of fairly and fully

adjudicating the federal issues before it, can

there be any relaxation of the deference to be

afforded to the state criminal process. The

very nature of “extraordinary circumstances,”

of course, makes it impossible to anticipate

and define every situation that might create

a sufficient threat of such great, immediate,

and irreparable injury as to warrant inter-

vention in state criminal proceedings. But

whatever else is required, such circum-

stances must be “extraordinary” in the sense

of creating an extraordinarily pressing need

for immediate federal equitable relief, not

merely in the sense of presenting a highly

unusual factual situation.

App. 6

Id. at 124-25 (footnote omitted). Although Kugler

spoke in the context of criminal prosecutions, the

same standard applies in the civil context. Moore uv.

Sims, 442 U.S. 415 (1979).

As the Second Circuit noted in Diamond “D”, the

Supreme Court has found extraordinary circum-

stances present on only two occasions: (1) “when a

state statute is flagrantly and patently violative of

express constitutional prohibitions in every clause,

sentence and paragraph, and in whatever manner

and against whomever an effort might be made to

apply it”; and (2) “when the state administrative

agency was incompetent by reason of bias to

adjudicate the issues pending before it.” 282 F.3d at

201 (citations and internal quotations omitted).

Williams contends that abstention is inappro-

priate because of the Board’s bias against him. “Bias

exists where a court has prejudged, or reasonably

appears to have prejudged, an issue.” Kenneally uv.

Lundgren, 967 F.2d 329, 333 (9th Cir. 1992) (citation

omitted). “[T]he baseline showing of bias necessary to

trigger Younger’s escape mechanism requires the

plaintiff to offer some evidence that abstention will

jeopardize his due process right to an impartial

adjudication.” Brooks v. New Hampshire Supreme

Court, 80 F.3d 633, 640 (1st Cir. 1996) (citations

omitted). “To implicate due process, claims of general

institutional bias must be harnessed to a further

showing, such as a potential conflict of interest, or a

pecuniary stake in the outcome of the litigation.” Jd.

App. 7

To support his claim of bias, Williams contended

in the district court that he was in direct competition

with Michelle Dizon, a medical doctor and a member

of the Board during the disciplinary proceedings

against him. He further contended that the Board

overlooked or ignored that conflict and permitted

Dizon to participate in those proceedings. However,

the district court rejected Williams’ contentions. It

found that “Williams has presented little, if any,

persuasive evidence that Dizon and he are in

competition with each other or that Dizon has even a

slight pecuniary interest in the outcome of the Board’s

proceedings against Williams.” 2008 WL 5142181 at *9.

Upon our review of the record, we agree with the

district court that Williams did not present any

persuasive evidence of bias on the part of the Board.

Accordingly, his bias claim is without merit.’

Williams also argues that the Board waived its

right to assert any Younger abstention because the

Board stipulated to a permanent injunction on July

22, 2005, enjoining the Board from enforcing its June

2

In his bnef, Williams argues that the district abused its

discretion by not making any findings regarding all of his other

claims of the Board’s bias. William’s Br. at 38-43. However, those

issues were raised by Williams in his claim in the district court

that the Board acted in bad faith and, therefore, abstention was

not appropriate under the bad faith exception to Younger As

noted, the district court rejected Williams’ contention that it

should not abstain under the bad faith exception to Younger.

Williams does not challenge the district court’s holding on the

bad faith exception in his appeal.

App. 8

17, 2005, suspension of Williams’ license. However,

Willams offers absolutely no authority for this

waiver argument. He does cite to lerz v. Degnan, 648

F.2d 201, 209-210 (3d Cir. 1981), which he claims

stands for the proposition that “Younger issues raised

after substantial litigation had taken place in the

district court should not deprive a plaintiff oi bis or

her chosen forum.” Williams’ Br. at 24. While we do

not agree with Williams’ characterization of our

holding in Herz, we note that Herz has nothing to do

with the waiver of a party’s ability to raise a Younger

abstention issue. Rather, in Herz, we simply affirmed

the district court’s decision to not abstain under

Younger under the facts of that case.

IV.

For all of the above reasons, we will affirm the

district court.

App. 9

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 08-4795

WILBERT WILLIAMS,

Appellant

sf

GOVERNMENT OF THE VIRGIN ISLANDS

BOARD OF MEDICAL EXAMINERS; THELMA R.

WATSON; FRANK A. ODLUM; JOSEPH DEJAMES

Appeal from the District Court

of the Virgin Islands

(Civ. No. 1-05-cv-00097)

District Judge: Hon. Curtis V. Gomez

Before: McKEE and FUENTES, Circuit Judges

and NYGAARD, Senior Circuit Judge

JUDGMENT

(Filed Jan. 12, 2010)

This cause came on to be heard on the record

from the District Court of the Virgin Islands and was

submitted pursuant to Third Circuit LAR 34.1(a) on

December 1, 2009.

On consideration whereof, it is now here

ORDERED AND ADJUDGED by this Court that the

order of the said District Court entered December 8,

2008, be, and the same is hereby affirmed. Costs

taxed against appellant. All of the above in accor-

dance with the opinion of this Court.

App. 10

ATTEST:

/s/_ Marcia M. Waldron

Clerk

Dated: January 12, 2010

App. 11

FOR PUBLICATION

IN THE DISTRICT COURT

OF THE VIRGIN ISLANDS

DIVISION OF ST. CROIX

WILBERT WILLIAMS, M.D.,

Plaintiff,

Ve

GOVERNMENT OF THE

VIRGIN ISLANDS, BOARD

OF MEDICAL EXAMINERS:

THELMA R. WATSON,

FRANK A. ODLUM, AND

JOSEPH DeJAMES,

Defendants.

ATTORNEYS:

Joel H. Holt, Esq.

St. Croix, U.S.V.I.

For the plaintiff.

)

)

)

)

)

)

)

)

)

)

)

Civil No. 2005-97

Aquannette Y. Chinnery-Montell, Esq.

Tamika Archer, Esq.

Terrlyn Smock, Esq.

Carol Thomas-Jacobs, Esq.

St. Thomas, U.S.V.I.

For the defendants.

App. 12

MEMORANDUM OPINION

(Filed Dec. 8, 2008)

GOMEZ, C.J.

In this matter, the Court must determine

whether to abstain in accordance with the doctrine

articulated by the Supreme Court in Younger uv.

Harris, 401 U.S. 37 (1971) (“Younger”).

I. FACTUAL AND PROCEDURAL BACKGROUND

The plaintiff, Wilbert Williams (“Williams”), has

been a family medical doctor on St. Croix, U.S. Virgin

Islands since 1983.

On April 15, 2005, Williams treated Lydia Ventura

for general body aches and weakness. Several days

after seeing Williams, Ventura died.

On May 31, 2005, defendant the Virgin Islands

Board of Medical Examiners (the “Board”) sent

Williams a notice. The notice recounted the Board’s

receipt of a letter of concern regarding Williams’ treat-

ment of Ventura. The notice also requested Williams’

appearance at a show-cause hearing before the Board

on June 9, 2005. On June 17, 2005, the Board sus-

pended Williams’ medical license for one year.’

' In its decision, the Board found that Williams had acted

negligently by, among other things, administering inappropnate

medication to Ventura and afterward destroying all traces of

that medication. The Board imposed several conditions prece-

dent to the reinstatement of Williams’ license.

App. 13

Thereafter, Williams commenced this. action

against the Board and three of its members (together,

the “Defendants”), alleging that the proceedings

against him were procedurally inadequate. Counts

One and Two of the complaint assert due process

violations. Count Three seeks a declaration that the

Defendants must adopt reasonable rules and regula-

tions in accordance with Virgin Islands law. Count

Four alleges an illegal monopoly in restraint of trade

or commerce. Count Five requests a temporary re-

straining order (“TRO”) and injunctive relief.

On July 12, 2005, the Court granted Williams’

motion for a TRO and enjoined the Board from en-

forcing its suspension of Williams’ license. The Court

also scheduled a hearing on Williams’ motion for a

preliminary injunction for August 5, 2005.

On July 14, 2005, two days after the Court issued

the TRO, the Board sent Williams another notice, in-

dicating that it was initiating new disciplinary pro-

ceedings. Thereafter, the Board held another hearing,

after which it revoked Williams’ medical license for

life.

Williams then applied for another TRO. The

Court granted that application. The Court issued

another ‘'RO on March 10, 2006, enjoining the Board

from enforcing its revocation of Williams’ license. The

Court also noted that the TRO would expire within

ten days, as per Rule 65(b) of the Federal Rules of

App. 14

Civil Procedure.” On March 24, 2006, the Court

extended the TRO for another ten days. At a subse-

quent hearing on March 30, 2006, the parties stip-

ulated on the record to an extension of the TRO until

further order of the Court. The Court approved the

parties’ stipulation.°

The Court thereafter scheduled an evidentiary

hearing for April 20, 2007 to determine whether

Younger mandates dismissal of this matter. On the

Defendants’ motion, the hearing was continued to

June 14, 2007. During the testimony of the first wit-

ness, the district judge initially assigned to this case

called a recess and subsequently recused himself. The

case was reassigned to the undersigned.

On November 17, 2008, the Court held an eviden-

tiary hearing to determine whether Younger requires

the Court to abstain and, if so, whether any exception

to Younger applies." The parties have filed pre-

hearing and post-hearing briefs.

* Fed. R. Civ. P. 65(b)(2) provides, in part, that a TRO “ex-

pires at the time after entry — not to exceed 10 days — that the

court sets[.]”

* TROs that are extended by stipulation of the parties

become, in effect, preliminary injunctions. See United States v.

Bayshore Assocs., Inc., 934 F.2d 1391, 1397 (6th Cir 1991)

* Four witnesses testified on behalf of Williams: defendants

Thelma R. Watson and Frank A. Odlum; Wilhams himself; and

Williams’ wife and longtime office manager, Iris Milagros

Williams No witnesses testified on behalf of the Deicendants.

App. 15

Il. DISCUSSION

“Abstention is a judicially created doctrine under

which a federal court will decline to exercise its juris-

diction so that a state court or agency will have the

opportunity to decide the matters at issue.” Kentucky

West Virginia Gas Co. v. Pennsylvania Public "'tility

Commission, 791 F.2d 1111, 1114 (8d Cir. 1986)

(citation omitted). “The doctrine is rooted in concerns

for the maintenance of the federal system and repre-

sents an extraordinary and narrow exception to the

virtually unflagging obligation of the federal courts to

exercise the jurisdiction given them.” Hi Tech Trans,

LLC v. New Jersey, 382 F.3d 295, 303 (3d Cir. 2004)

(quotation marks and citations omitted). “Conse-

quently, abstention is justified ‘only in the exceptional

circumstances where the order to the parties to repair

to the State court would clearly serve an important

countervailing interest.’” Jd. (quoting Colorado River

Water Conservation Dist. v. United States, 424 U.S.

800, 817 (1976)). “In other words, ‘abstention from the

exercise of federal jurisdiction is appropriate only

under certain limited circumstances.’” Jd. (quoting

Chez Sez II Corp. v. Township of Union, 945 F.2d

628, 630 (3d Cir. 1991)). “Those circumstances ‘are

loosely gathered under discrete concepts of abstention

named after leading Supreme Court Cases[.]’” (cita-

tion omitted). One such case is Younger v. Harris, 401

U.S. 37 (1971).

In Younger, the Supreme Court held that, absent

extraordinary circumstances, federal courts must ab-

stain from interfering with pending state criminal

App. 16

prosecutions. The Court based its decision on “the

longstanding public policy against federal court inter-

ference with state court proceedings.” 401 U.S. at 43.

While Younger involved a state criminal prosecution,

“the national policy against enjoining pending state

court proceedings has since been extended to non-

criminal judicial proceedings.” Zahl v. Harper, 282

F.3d 204, 208 (3d Cir. 2002). The Supreme Court has

explained the rationale animating Younger absten-

tion:

The notion of “comity” includes a proper re-

spect for state functions, a recognition of the

fact that the entire country is made up of a

Union of separate state governments, and a

continuance of the belief that the National

Government will fare best if the States and

their institutions are left free to perform

their separate functions in their separate

ways. Minimal respect for the state proc-

esses, of course, precludes any presumption

that the state courts will not safeguard fed-

eral constitutional rights.

Middlesex County Ethics Committee v. Garden State

Bar Assoctation, 457 U.S. 423, 431 (1982) (quotation

marks and citations omitted).

Abstention is appropriate under Younger where

“(1) there are ongoing state proceedings that are

judicial in nature; (2) the state proceedings implicate

important state interests; and (3) the state pro-

ceedings afford an adequate opportunity to raise the

federal claims.” Schall v. Joyce, 885 F.2d 101, 106 (3d

App. 17

Cir. 1989); see also Middlesex, £57 U.S. at 432; Ken-

tucky West Virginia Gas Co. v. Pennsylvania PUC,

791 F.2d 1111, 1116 (3d Cir. 1986).

Even if the Younger test is met, however, absten-

tion is not appropriate in all circumstances. A federal

court may interfere with a state proceeding if any one

of four exceptions is met: (1) irreparable injury is both

great and immediate; (2) the state law is flagrantly

and patently violative of express constitutional prohi-

bitions; (3) there is a showing of bad faith or harass-

ment; or (4) other unusual circumstances call for

equitable relief. Mitchum v. Foster, 407 U.S. 225, 230

(1972) (citing Younger, 401 U.S. at 46-54).

{il. ANALYSIS

The first Younger factor asks whether the Board’s

proceedings are ongoing and judicial in nature. This

factor is really a two-step inquiry.

In a technical sense, the Board’s proceedings are

not “ongoing” because the Board has already ren-

dered a final decision regarding Williams’ license.

However, “for Younger purposes, the State’s trial-and-

appeals process is treated as a unitary system, and

for a federal court to disrupt its integrity by inter-

vening in midprocess would demonstrate a lack of

respect for the State as sovereign.” New Orleans Pub.

Serv., Inc. v. Council of City of New Orleans, 491 U.S.

350, 369 (1989). Thus, a state proceeding is “ongoing”

App. 18

where a coercive administrative proceeding

has been initiated by the State in a state

forum, where adequate state-court judicial

review of the administrative determination

is available to the federal claimants, and

where the claimants have chosen not to

pursue their state-court judicial remedies,

but have instead sought to invalidate the

State’s judgment by filing a federal action.

O’Neill v. City of Philadelphia, 32 F.3d 785, 791 (3d

Cir. 1994).

Williams has not sought a writ of review of, or

otherwise challenged, the Board’s decision. See V.I.

CopE ANN. tit. 5, § 1421 (describing the procedure

for seeking a writ of review). As a consequence, the

Board’s proceedings against Williams are ongoing

within the meaning of Younger. See, e.g., Zahl, 282

F.3d at 209 (finding a proceeding ongoing because the

plaintiff “has the right to appellate review by state

courts if he wishes to challenge the final decision of

the [state disciplinary board]”); O'Neill, 32 F.3d at

793 (holding that the first Younger prong was met

where a state administrative proceeding was “was a

judicial proceeding which may be deemed ‘pending’ as

a result of [the appellants’] failure to take advantage

of the [state] appellate remedies which were available

to them”).”

° In O'Neill v City of Philadelphia, the plaintiffs received

several parking tickets during the late 1980s and the early

1990s but did not pay their fines. Instead, they challenged their

(Continued on following page)

App. 19

tickets before a municipal adjudicative body. On August 30,

1991, that body rejected the plaintiffs’ objections to the tickets

On October 30, 1991, the plaintiffs sued in federal court, alleg-

ing that their constitutional and state-law rights were violated

by the administrative body’s actions. On March 29, 1993, the

district court found that the plaintiffs’ due process rights had

been violated. The City of Philadelphia appealed. The United

States Court of Appeals for the Third Circuit found that the

district court should have abstained. With respect to the second

Younger factor, the court noted the plaintiffs had failed to seek

state-court judicial review of the admimstrative body’s order,

opting instead to sue in federal court. To determine whether the

state proceedings were nevertheless ongoing, the court framed

the question as follows. “whether a state proceeding is ‘pending,’

and Younger abstention proper, where the adjudicatory process

has become final as a result of the federal claimant’s failure to

pursue state-court judicial review of an unfavorable state

administrative determination?” 32 F.3d at 790 (citation omitted).

The court answered that question affirmatively, reasoning that

“(wle have been given no reason why a litigant in a state ad-

ministrative proceeding should be permitted to forego state-

court judicial review of the agency’s decision in order to apply for

relief in federal court” Jd. at 790-91 The Third Circuit’s main

yround for so deciding was “considerations of comity[ ]” Jd. at

793

In O'Neill, the dissent noted that by the time the plaintiffs

had filed their federal suit, “the state administrative process

was over|,|. . and any effort the plaintiffs might have made to

return there to revive and pursue their administrative proceed-

ings would have been rejected as time-barred.” Jd. at 796 (Lewis,

J, dissenting) The dissent further noted that the effect of the

majority's ruling was that plaintiffs who allege that a state

administrative body has violated their constitutional rights,

“cannot pursue a § 1983 claim in federal court — even after the

administrative process is no longer pending, and even when they

no longer have any recourse within the state system ”Jd at 802

(footnoted omitted)

(Continued on following page)

App. 20

While there are no bright-line rules for deter-

mining the second step of the first Younger factor,

whether a proceeding is judicial in nature depends

not on the form of the proceeding but on its nature

and effect. See District of Columbia Court of Appeals

v. Feldman, 460 U.S. 462, 481 (1983). A proceeding

is judicial in nature if it “investigates, declares and

enforces liabilities as they stand on present or past

facts and under laws supposed already to exist.” See

Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226

(1908). The fact that a proceeding is not presided over

by a judicial officer or that a full range of due process

The situation described by the dissent 1n O’Nezll/ is precisely

the one presented in this matter. It may well be that Williams no

longer has any remedy in the Virgin Islands courts. See Super.

Ct. R. 15(a) (requiring that a petition for a writ of review be filed

within thirty days of the challenged decision). As in O’Neill, the

potential unavailability of such review, however, 1s the fruit of

Williams’ own choice not to pursue his constitutional claims in

the Superior Court. Indeed, Williams did file suit in that court,

only to voluntarily dismiss 1t later in favor of his suit before this

Court. Under the O’Neill majority’s reasoning — which this Court

is bound to follow — the potential unavailability of such renew

on statute-of-limitations grounds does not inform the Court’s

abstention inquiry. That reasoning has been described as the

“majority view” among the federal courts of appeals See Maymo-

Melendez v. Alvarez-Ramirez, 364 F.3d 27, 35 (1st Cir. 2004).

Recognizing the possibly harsh result of the application

of O'Neill, this Court notes that Williams is not necessarily

without any form of relief. Although a writ of review action may

be time-barred, he may well be able to raise his allegations of

constitutional injury in the Superior Court by way of a regular

civil action. See V.I. CODE ANN. tit. 5, § 31(2)(A) (imposing a ten-

year limitations period on “la|n action for any cause not other-

wise provided for in this section”).

App. 21

rights is not afforded is not dispositive. Feldman, 460

U.S. at 476-79. Courts have found proceedings to be

judicial in nature where they “provide the type of

procedural safeguards found in formal court pro-

ceedings,” Alleghany Corp. v. Haase, 708 F. Supp.

1507, 1528-29 (W.D. Wis. 1988), or have “trial-like

trappings,” Telco Communications, Inc. v. Carbaugh,

885 F.2d 1225, 1228 (1st Cir. 1989).

The Board’s proceedings are clearly judicial in

nature because they are coercive territorial enforce-

ment proceedings.” Those proceedings are precisely

the type that have been considered judicial in nature

for Younger purposes. See, e.g., Zahl, 282 I.3d at 209;

see also Green v. Benden, 281 F.3d 661, 666 (7th Cir.

2002); Majors v. Engelbrecht, 149 F.3d 709, 712 (7th

Cir. 1998). Because the Board’s proceedings are

* Furthermore, the Board’s enabling legislation sets forth

rules and procedures governing proceedings before it Those

procedures bear “trial-like trappings.” Virgin Islands law pro-

vides, in re evant part:

The procedural provisions must provide for investi-

gation of charges by the Board; notice of charges to

the accused; an opportunity for a fair and impartial

hearing for the accused before the Board; an

opportunity for representation of the accused by

counsel; the presentation of testimony, evidence and

argument; subpoena power and attendance of wit-

nesses; a record of proceedings; and judicial review by

the courts in accordance with the standards estab-

lished by the jurisdiction for such review.

V.I. Cope. ANN. tit. 27, § 9(b).

App. 22

ongoing and judicial in nature, the first Younger

factor is met.

The second Younger factor is likewise satisfied.

The very conduct of the Board in the wake of the

complaint regarding Ventura’s death, indicates the

significant interest the Board has in regulating the

practice of medicine with an eye toward improving

public health. Without dwelling on the issue, the

Court has little doubt that the Virgin Islands has an

overriding interest in the regulation of its medical

professionals. See, eg., Zahl, 282 F.3d at 209

(affirming the district court’s decision to abstain and

agreeing with the district court’s determination that

“important to the public as a whole is regulation of

the practice of medicine”) (quotation marks omitted);

Doe v. Conn., Dep’t of Health Servs., 75 F.5d 81, 85 (2d

Cir. 1996) (stating that “Connecticut’s legislative

scheme for disciplining doctors serves important and

obvious public health objectives.”); Bettencourt v. Bd.

of Registration in Med., 904 F.2d 772, 778 (1st Cir.

1990) (holding that the enforcement of appropriate

medical licensing standards “obviously implicates

important state interests”).

The third Younger factor asks whether Williams

has an adequate opportunity to raise his constitu-

tional claims in the territorial forum. This factor “is

satisfied in the context of a state administrative

proceeding when the federal claimant can assert his

constitutional claims during state-court judicial

review of the administrative determination.” O’Neill,

32 F.3d at 792 (citing Ohio Civil Rights Comm’n v.

App. 23

Dayton Christian Sch., Inc., 477 U.S. 619, 629 (1986);

Middlesex, 401 U.S. at 436)). “Moreover, ‘when a

litigant has not attempted to present his federal

claims in related state-court proceedings, a federal

court should assume that state procedures will afford

an adequate remedy, in the absence of unambiguous

authority to the contrary.’” Jd. (quoting Pennzoil Co.

v. Texaco, Inc., 481 U.S. 1, 15 (1987)).

Williams has not challenged the Board’s actions

in the Superior Court. The availability of an adequate

territorial forum to review the Board’s decision satis.

fies the third Younger prong. See, e.g., Zahl, 282 F.3d

at 210 (finding the third Younger factor met because

the plaintiff could “assert his federal preemption

claim in the state administrative proceeding” and

“appeal to the Appellate Division of the Superior

Court of New Jersey, ... which is capable of re-

viewing [the plaintiff’s] federal claims”); O’Neill, 32

F.3d at 792-93 (“In the present case, [neither of the

appellants] attempted to raise his federal claims in

the state proceedings. Accordingly, we would be well-

justified in assuming that, had they done so, they

would have been afforded an adequate remedy.”).

Because the Court finds that the three Younger

factors are met, the Court next considers Williams’

contention that the circumstances of the Board’s

proceedings implicate any one of several Younger

exceptions. Specifically, Williams argues that the

App. 24

Board’s bad faith as well as extraordinary circum-

stances require this Court’s consideration.’

First, Williams asserts that the Board, after

having been temporarily restrained on July 12, 2005

from enforcing its suspension decision, issued a new

notice to him on July 14, 2005 and subsequently

revoked his license for life. In its revocation order, the

Board found, among other things, that Williams had

(1) lied by stating that he was ACLS-certified®; (2)

violated Drug Enforcement Administration regula-

tions; and (3) did not have a valid medical license at

the time he treated Ventura. Williams contends that

the Board knew these findings to be untrue.

Second, Williams asserts that the Board’s bad

faith is evidenced by the Board’s imposition of the

dramatically more oncrous sanction of revocation for

life from the practice of medicine after its second

hearing. Williams further asserts that the Board, in

imposing that sanction, relied on substantially the

same evidence it had used in suspending Williams’

license for one year.

‘ At a previous hearing in this matter, Wilhams also

appeared to claim that he would suffer irreparable injury absent

this Court’s review. The irreparable injury exception may be

collapsed into the third exception See Collins v. County of

Kendall, 807 F.2d 95, 98 (7th Cir. 1986) (“A showing of a bad

faith ... is equivalent to a showing of irreparable injury for

purposes of the comity restraints defined in Younger.”)

(alteration omitted) (quoting Wilson v. Thompson, 593 F.2d 1375,

1382 (5th Cir. 1979))

" ACLS is the acronym for Advanced Cardiac Life Support

App. 25

“A plaintiff asserting [a] bad faith [proceeding] as

an exception to Younger abstention must allege spe-

cific facts to support an inference of bad faith.”

Collins, 807 F.2d at 98. “The Younger rule . . . requires

more than a mere allegation and more than a ‘conclu-

sory finding to bring a case within the harassment

exception.” Grandco Corp. v. Rochford, 536 F.2d 197,

203 (7th Cir. 1976). “This specific evidence must show

that [the] state [proceeding] ‘was brought in bad faith

for the purpose of retaliating for or deterring the

exercise of constitutionally protected rights.’” Collins,

807 F.2d at 98 (quoting Wilson, 593 F.2d at 1383). The

plaintiff thus bears a heavy burden in making out a

case of bad faith or harassment. Phelps v. Hamilton,

122 F.3d 885, 889 (10th Cir. 1997) (citation omitted).

“(T)he subjective motivation of the state authority in

bringing the proceeding is critical to, if not deter-

minative of, this inquiry.” Diamond “D” Constr. Corp.

v. McGowan, 282 F.3d 191, 199 (2d Cir. 2002) (cita-

tions omitted). “A state proceeding that is legitimate

in its purposes, but unconstitutional in its execution —

even when the violations of constitutional rights are

egregious — will not warrant the application of the

bad faith exception.” Jd. (citation omitted). Bad faith

“generally means that a prosecution has been brought

without a reasonable expectation of obtaining a valid

conviction.” Kugler v. Helfant, 421 U.S. 117, 126 n.6

(1975).

In Williams v. Red Bank Bd. of Educ., 662

F.2d 1008 (3d Cir. 1981), the United States Court

of Appeals for the Third Circuit illustrated the

App. 26

stringency of the bad faith exception. In that case, the

plaintiff was a tenured school teacher whose dis-

missal was sought by the local board of education

after the teacher made statements criticizing the

board. While the dismissal proceeding was pending,

the teacher sued in federal district court, alleging

that “the filing of the administrative charges against

her had violated her rights under the first and

fourteenth amendments.” /d. at 1011. The Third

Circuit agreed with the district court that Younger’s

bad faith exception did not apply:

[The teacher] has also argued that this case

falls within the “bad faith” exception to

Younger abstention, claiming that “(govern-

mental) actions in retaliation for exercise of

First Amendment rights necessarily involve

bad faith and harassment.” This argument

rests on an erroneous reading of an exception

to Younger. For the district court to find “bad

faith,” [the teacher] would have had to allege

something akin to a series of prosecutions

brought in bad faith “with(out) any expec-

tation of securing a valid conviction;” or a

prosecution brought under a statute “fla-

grantly and patently violative of express

constitutional prohibitions in every clause,

sentence and paragraph, and in whatever

manner and against whomever an effort

might be made to apply it.” [The teacher’s]

complaint makes no such allegations, as the

district court pointed out, and accordingly we

App. 27

find no error in the district court’s rejection

of her argument.

Id. at 1022 n.14 (emphasis supplied; citations

omitted).

Here, Williams has not even alleged, much less

adduced any quantum of evidence, that he has ever

before been pursued by the Board in his approx-

imately two-and-one-half decades of practicing

medicine in the Virgin Islands. Nor has Williams

provided any evidence tending to show that the

Board’s actions were fueled by nefarious motives.

Instead, Williams merely contends that “he is the

only doctor in the ... Virgin Islands to have been

subjected to a lhcensing requirement that did not

apply to any other doctor at the time of the 2005

hearing.” (Pl.’s Abstention Br. 10.) That contention,

even if accepted as true, is unsubstantiated by

evidence that the Board knew of other doctors’ similar

alleged wrongdoing and did not pursue those doctors

as it did Williams.” See, e.g., Pincham v. Illinois

* Testimony at the November 17, 2008, hearing indicated

that no other Virgin Islands medical doctor has been disciplined

by the Board as a result of the death of a patient. However, that

same testimony also indicated that Williams’ case is among the

only in which the Board has been affirmatively notified of such a

death via a letter of complaint. (One other doctor who was the

sabject of such a letter elected not to defend himself before the

Board). The fact that the Board has not investigated other

doctors whose patients have died while in their care is consis-

tent with Virgin Islands law governing the functioning of the

Board. See V.I. Code Ann. tit. 27, § 3(d)(9) (“The Board ... shall

have, at a minimum, the following powers and responsibilities:

(Continued on following page)

App. 28

Judicial Inquiry Bd., 872 F.2d 1341, 1350 (7th Cir.

1989) (“Even if we accept Justice Pincham’s allega-

tion that other judges engaged in activity equivalent

to his and were not disciplined, we refuse to conclude

that there was ‘bad faith’ absent allegations that the

state agencies had some awareness of the other

judges’ activities and treated them more favorably

than Justice Pincham... .”); see also United States uv.

Smith, 231 F.3d 800, 810 (11th Cir. 2000).

Because Williams has failed to allege specific

facts, supported by competent evidence, demon-

strating that the Board singled him out for disci-

plinary proceedings or sought to retaliate against

him, Williams has fallen short of his burden of

establishing the Board’s bad faith. See, e.g., Diamond

“D” Constr. Corp., 282 F.3d at 200 (finding the bad

faith exception inapplicable where there was no

evidence that either the investigation was “driven by

... Receive, review and investigate complaints against practi-

tioners for whose licensure they are responsible. . . .”) (emphasis

supphed).

Wilhams also presented testimony that the Board did not

specifically investigate any of the emergency medical tech-

nicians or other doctors at the hospital who cared for Ventura

immediately before her death. To the extent Williams relies on

that testimony to show that he was singled out for disciplinary

action, that reliance is misplaced. That testimony also reflects

that the Board took evidence from everyone involved in

Ventura’s medical treatment and carefully considered everyone’s

role on an individual basis. What Williams characterizes as

singling out is really an expression of his disagreement with the

Board’s conclusion about his particular role in Ventura’s death.

App. 29

a retaliatory motive or by some other nefarious

purpose” or that the plaintiff had been “singled ...

out for adverse treatment”); Schlagler v. Phillips, 166

F.3d 439, 443-44 (2d Cir. 1999) (holding that because

the prosecution was not animated by a retaliatory

motive and was merely “a straightforward enforce-

ment of the laws of New York, [the] case does not fall

within the bad faith exception[.]”).

Williams also contends that abstention is unwar-

ranted because of the extraordinary circumstances of

this case.

In Kugler v. Helfant, 421 U.S. 117 (1975), the

Supreme Court fleshed out the extraordinary circum-

stances exception:

Only if ‘extraordinary circumstances’ render

the state court incapable of fairly and fully

adjudicating the federal issues before it, can

there be any relaxation of the deference to be

accorded to the state criminal process. The

very nature of ‘extraordinary circumstances,’

of course, makes it impossible to anticipate

and define every situation that might create

a sufficient threat of such great, immediate,

and irreparable injury as to warrant inter-

vention in state criminal proceedings. But

whatever else is required, such circum-

stances must be ‘extraordinary’ in the sense

of creating an extraordinarily pressing need

for immediate ederal equitabie relief, not

merely in the sense of presenting a highly

unusual factual situation.

App. 30

Id. at 124. “While Kugler spoke in the context of

criminal prosecutions, the same standard applies in

the civil context.” Diamond “D”, 282 F.3d at 201

(citing Moore v. Sims, 442 U.S. 415, 433 (1979)). The

Supreme Court has found extraordinary circum-

stances to exist on only two occasions: (1) “when a

state statute is flagrantly and patently violative of

express constitutional prohibitions in every clause,

sentence and paragraph, and in whatever manner

and against whomever an effort might be made to

apply it”; and (2) “when the state administrative

agency was incompetent by reason of bias to adju-

dicate the issues pending before it[.]” Zd. (quotation

marks and citations omitted).

Williams does not invoke the first example of

an exceptional circumstance articulated in Kugler.

Instead, Williams claims that the Board is biased

against him.”

“Bias exists where a court has prejudged, or

reasonably appears to have prejudged, an issue.”

Kenneally v. Lungren, 967 F.2d 329, 333 (9th Cir.

10

In fact, Williams collapses his bias argument into the bad

faith exception. Courts, however, generally fold bias into the

extraordinary circumstance exception. See Kugler, 421 U.S.

(recognizing bias as an example of the “exceptional circum-

stances” warranting federal intervention); Esso Std. Orl Co. v.

Lopez-Freytes, 522 F 3d 136, 143 (1st Cir 2008) (“Among those

extraordinary circumstances are cases 1n which extreme bias

completely renders a state adjudicator incompetent and inflicts

irreparable harm upon the petitioner.”). In accordance with

these decisions, this Court adopts a similar approach

App. 31

1992) (quotation marks and citation omitted). “[T]he

baseline showing of bias necessary to trigger Younger’s

escape mechanism requires the plaintiff to offer some

evidence that abstention will jeopardize his due

process right to an impartial adjudication.” Brooks v.

New Hampshire Supreme Court, 80 F.3d 633, 640

(lst Cir. 1996) (citations omitted). “To implicate due

process, claims of general institutional bias must be

harnessed to a further showing, such as a potential

conflict of interest, or a pecuniary stake in the

outcome of the litigation[.]” Jd. (internal citations

omitted). Furthermore, a litigant alleging bias

must overcome a presumption of honesty and

integrity in those serving as adjudicators;

and [he] must convince [the court] that,

under a realistic appraisal of psychological

tendencies and human weakness, conferring

investigative and adjudicative powers on the

same individuals poses such a risk of actual

bias or prejudgment that the practice must

be forbidden if the guarantee of due process

is to be adequately implemented.

Withrow v. Larkin, 421 U.S. 35, 47 (1975).

In support of his bias claim, Williams contends

that he is in direct competition with Michelle Dizon

(“Dizon”), another St. Croix medical doctor and a

member of the Board during the disciplinary pro-

ceedings against him. Williams argues that the Board

overlooked or ignored that conflict and improperly

permitted Dizon to participate in those proceedings.

App. 32

Williams relies on the Supreme Court’s decision in

Gibson v. Berryhill, 411 U.S. 564 (1973).

In Gibson, the Alabama Optometric Association

(the “AOA”) filed charges against various optome-

trists with the Alabama Board of Optometry (the

“ABO”), the statutory body with authority to issue,

suspend, and revoke licenses for the practice of

optometry. The AOA alleged that the optometrists

had engaged in unprofessional conduct, as defined by

Alabama statute, and therefore were practicing their

profession unlawfully. The AOA noticed a hearing on

the allegations. Before the hearing date, the

optometrists sued the ABO and the AOA in federal

district court, alleging 42 U.S.C. § 1983 violations and

seeking injunctive relief on the ground that the

statutory scheme regulating the practice of optometry

was unconstitutional. At bottom, the optometrists

alleged that the Board was biased.

A three-judge district court panel held that

Younger abstention was inappropriate because “the

administrative process was so defective and inade-

quate as to deprive the plaintiffs of due process of

law.” Gibson, 411 U.S. at 570. Specifically, the district

court first found that the ABO, “which acts as both

prosecutor and judge in delicensing proceedings, had

previously brought suit against the plaintiffs on

virtually identical charges in the state courts.” /d. at

571. Second, the district court found that ABO

members would receive a windfall in business if

the plaintiff optometrists were delicensed. In other

words, the district court found that the ABO

App. 33

members’ personal financial stake disfavored absten-

tion. Finally, the district court regarded the ABO “as

a suspect adjudicative body ... , because only mem-

bers of the [AOA] could be members of the [ABO}, and

because the [AOA] excluded from membership optom-

etrists such as the plaintiffs who were employed by

other persons or entities.” Jd. Thus, in the district

court’s view, “to require the Plaintiffs to resort to the

protection offered by state law in these cases would

effectively deprive them of their property, that is,

their right to practice their professions, without due

process of law and that irreparable injury would

follow in the normal course of events.” Jd. (citation

omitted).

The Supreme Court affirmed, agreeing with the

district court that the ABO “was incompetent by

reason of bias to adjudicate the issues pending before

it.” Id. at 577. The Court based its decision on the

ABO members’ personal financial stake, reasoning

that “those with substantial pecuniary interest in

legal proceedings should not adjudicate these dis-

putes” and noting as well that “most of the law con-

cerning disqualification because of interest applies

with equal force to ... administrative adjudicators.”

Id. at 579 (alteration in original; quotation marks and

citations omitted).

The Gibson Court rooted its conclusion of uncon-

stitutional bias in its finding that the ABO members

all had a “substantial pecuniary interest” in the

outcome of proceedings in which they served as

adjudicators. 411 U.S. at 579. In contrast, Williams |

App. 34

has presented little, if any, persuasive evidence that

Dizon and he are in competition with each other or

that Dizon has even a slight pecuniary interest in the

outcome of the Board’s proceedings against Williams.

Williams’ reliance on Gibson is therefore unavailing. ''

See, e.g., Hammond v. Baldwin, 866 F.2d 172, 177

(6th Cir. 1989) (holding that because the plaintiffs

“have alleged no personal pecuniary interest on the

part of any particular officials who were to preside

over their claims... , Gibson simply is inapposite”).

In addition to his claim of bias, Williams charac-

terizes his inability to practice medicine as another

exceptional circumstance triggering the need for

federal intervention. Williams does not allege that he

has been precluded from practicing medicine or from

seeing patients. Rather, Williams has _ presented

evidence that he cannot submit insurance claims for

reimbursement, resulting in a loss of income.

In Diamond “*D” Constr. Corp. v. McGowan, the

Second Circuit declined to answer the question

whether the threat to the viability of the plaintiff’s

business could constitute an extraordinary circum-

stance under Younger. See Diamond “D”, 282 F.3d at

Williams is a family medicine practitioner while Dizon is

an endocrinologist. Williams testified that endocrinology consti-

tutes approximately eighty percent of his business. Williams

included his treatment of diabetes in arriving at that figure.

Neither Williams nor the Defendants called Dizon as a witness.

Significantly, Williams’ test ony on this point docs not estab-

lish the sort of direct pecuniary interest that Gibson requires.

App. 35

201-02. Instead, the court observed that the

plaintiff’s argument that its business would suffer

injury because of the sluggishness of the state

proceeding was severely undercut by the plaintiff’s

election not to file a mandamus proceeding in state

court to compel the state administrative body to

provide expeditious review. See id. at 202. The court

reiterated that “where such state remedies are avail-

able, ‘a federal court should assume that state proce-

dures will afford an adequate remedy, in the absence

of unambiguous authority to the contrary.’” /d.

(quoting Pennzoil, 481 U.S. at 15).

Here, like the plaintiff in Diamond “D”, Williams

has offered no reason why he has not challenged the

Board’s actions in the local courts. His failure to do so

undermines his argument that this matter manifests

an “extraordinarily pressing need,” Kugler, 421 U.S.

at 124, for this Court’s immediate review.

To the extent Williams premises his exceptional

circumstances argument on the Board proceedings’

supposed lack of procedural safeguards, he still falls

outside the broad definition of exceptional circum-

stances articulated in Kugler. Williams’ mere asser-

tion that the Board’s proceedings are arbitrary and

capricious, and consequently deprived him of due

process, does not suffice on its own to warrant federal

intervention. See, e.g., Gray v. Pagano, No. 07-3433,

2008 U.S. App. LEXIS 16235 (3d Cir. July 23, 2008)

(not precedential) (noting that “(t]he Constitution

does not guarantee that the decision of state courts

App. 36

shall be free from error, or require that _ pro-

nouncements shall be consistent” and thus that “we

do not construe the alleged misapplication of state

law as violative of substantive federal due process”)

(citations omitted); see also Engle v. Isaac, 456 U.S.

107, 121 n.21 (1982) (“We have long recognized that

a mere error of state law is not a denial of due

process.... If the contrary were true, then every

erroneous decision by a state court on state law would

come |to the federal courts] as a federal constitutional

question.”) (quotation marks and citation omitted).

While the Board’s proceedings may not have been

executed with procedural perfection, the public inter-

est was very much at the fore of those proceedings.

Indeed, given the Virgin Islands’ prevailing interest

in the supervision of medical practitioners in the

territory, what Williams depicts as the Board’s flawed

governance is best left to oversight by the local

authorities.

IV. CONCLUSION

For the foregoing reasons, the Court will abstain

from hearing this matter under the Younger doctrine

and will dismiss this case.'” An appropriate judgment

follows.

'* “(A) district court, when abstaining from adjudicating a

claim for injunctive relief, should stay and not dismiss accom-

panying claims for damages... .” Williams v. Hepting, 844 F.2d

138, 144-45 (3d Cir. 1988). Here, Williams seeks only equitable

relief. Therefore, dismissal with prejudice, rather than a stay, is

(Continued on following page)

App. 37

/s/

CURTIS V. GOMEZ

Chief Judge

appropriate. See Nivens v Gulchrist, 444 F.3d 237, 247 (4th Cir

2006) (““([W]hen a district court abstains from a case based on

Younger, 1t should typically dismiss the case with prejudice; not

on tne merits.”) (citations omitted); Luz v. Comm’n on Adult

Entm't of Del., 369 F.3d 319, 327 (3d Cir. 2004) (holding that “a

Younger abstention stay requires a dismissal with prejudice of

the federal suit”).

App. 38

FOR PUBLICATION

IN THE DISTRICT COURT

OF THE VIRGIN ISLANDS

DIVISION OF ST. CROTX

WILBERT WILLIAMS, M.D.,

Plaintiff,

vV.

GOVERNMENT OF THE

VIRGIN ISLANDS, BOARD

OF MEDICAL EXAMINERS:

THELMA R. WATSON,

FRANK A. ODLUM; and

JOSEPH DeJAMES,

Defendants.

Civil No. 2005-97

i ee ee ee a a a ed

ATTORNEYS:

Joel H. Holt, Esq.

St. Croix, U.S.V.I.

For the plaintiff.

Aquannette Y. Chinnery-Montell, Esq.

Tamika Archer, Esq.

Terrlyn Smock, Esq.

Carol Thomas-Jacobs, Esq.

St. Thomas, U.S.V.I.

For the defendants.

App. 39

JUDGMENT

(Filed Dec. 3, 2008)

GOMEZ, C.J.

In this matter, the Court must determine whether

to abstain in accordance with the doctrine articulated

by the Supreme Court in Younger v. Harris, 401 U.S.

37 (1971). For the reasons more fully stated in the

Memorandum Opinion of even date, it is here} »

ORDERED that the Court will abstain from

hearing this matter: it is further

ORDERED that all pending motions are DE-

NIED as moot; it is further

ORDERED that the claims of the plaintiff are

DISMISSED with prejudice; and it is further

ORDERED that the Clerk of Court shall

CLOSE this case.

S\

CURTIS V. GOMEZ

Chief Judge

App. 40

[LOGO]

GOVERNMENT OF THE

VIRGIN ISLANDS OF THE UNITED STATES

~~

DEPARTMENT OF HEALTH

#48 SUGAR ESTATE, ST. THOMAS, U.S.V.I. 00802

June 17, 2005

VIRGIN ISLANDS Ph. 340-776-8311 x 5074

BOARD OF MEDICAL Fax: 340-777-4001

EXAMINERS Direct Line: 340-774-01

Wilbert Williams, Jr., M.D.

252 Glynn

RR 16196

Kingshill, St. Croix, V. I. 00850

Dear Dr. Williams:

It is the unanimous decision of the Virgin Islands

Board of Medical Examiners that your license to prac-

tice medicine in the United States Virgin Islands is

hereby suspended effective immediately for a period

of one year. (The attached document provides details,

which lead to this decision.) Re-instatement of your

license will be contingent on the following conditions

being met:

1. Attendance at a Family Practice Board re-

view course (approved by the Board of Med-

ical Examiners).

2. Successful completion of the V. I. SPEX ex-

amination (administered in May and Novem-

ber of each year).

App. 41

3. Successful completion of an American Heart

Association Basic Life Support course.

4. Successful completion of an American Heart

Association Advanced Cardiac Life Support

Course.

5. An oral interview with the Board of Medical

Examiners after the above 1-4 has been suc-

cessfully completed.

Failure to comply with the above terms and condi-

tions within the period of one year shall result in the

complete revocation of your license to practice in the

United States Virgin Islands.

Sincerely,

/s/ Thelma R. Watson

Thelma R. Watson, M.D.

Chairperson

V.I. Board of Medical Examiners

xc: Commissioner of Health

App. 42

[LOGO]

GOVERNMENT OF THE

VIRGIN ISLANDS OF THE UNITED STATES

=

DEPARTMENT OF HEALTH

#48 SUGAR ESTATE, ST. THOMAS, U.S.V.I. 00802

June 17, 2005

VIRGIN ISLANDS Ph. 340-776-8311 x 5074

BOARD OF MEDICAL Fax: 340-777-4001

EXAMINERS Direct Line: 340-774-01

BEFORE THE BOARD OF MEDICAL

EXAMINERS FOR THE TERRITORY OF

THE UNITED STATES VIRGIN ISLANDS

IN THE MATTER OF

WILBERT WILLIAMS, JR., M.D.

ACTION TO SHOW CAUSE

DECISION

The Board of Medical Examiners (hereafter “Board”),

pursuant to Title 27 V.I.C.§§1,2, and 33 convened a

Show Cause Hearing on June 9, 2005 to consider and

investigate a complaint of negligence against Dr. Wil-

bert Williams, a physician practicing on St. Croix,

Virgin Islands. Dr. Wilbert Williams was notified of

the hearing in a letter dated May 31, 2005. Dr. Wil-

bert Williams appeared at the hearing on June Q,

2005 and was represented by counsel, Attorney Amelia

Joseph.

App. 43

The Board, after reviewing the testimony of wit-

nesses, analyzing documents, medical records and

autopsy reports, finds as follows:

a

The SOAP office note does not include any in-

dication of past medical history, medications,

review of systems, etc., which would be important

in the scenario of a patient that had not been

seen recently. From the testimony, only a cursory

examination was made and a decision to admin-

ister IV morphine and IV fluids followed.

Diagnosis of R/O viral syndrome, R/O hemor-

rhagic cystitis, severe headache, and fever of

unknown origin should not warrant intravenous

morphine administration, especially in view of

only a cursory history and physical examination.

This is especially true since the patient was not

monitorec’, and blood pressure and temperature

appear on the SOAP note only one time over an

almost 4 hour office visit. There is no mention of

pulse and respiratory rate — very important when

administering a medication that can cause cardio-

respiratory depression.

There is no mention of the patient being de-

hydrated. However, 1500mls of IV fluid were

administered over 3 hours. Once again, there is

no further monitoring aside from only one entry

for blood pressure and temperature. There is also

no mention of any urinary output, which is im-

portant in the face of such aggressive fluid

administration. In fact, when asked during the

hearing, Dr. Williams stated that the patient was

not dehydrated.

App. 44

The EMS daily operations log shows a call to

them at 9:22 pm. The office records state a call to

EMS being placed at 8:45 pm. The medical rec-

ords mention patient being unresponsive to ver-

bal and painful stimuli. Once again, there is no

mention of any vital signs. There is no indica-

tions that the patient’s respiratory status and/or

circulation were evaluated when she was noted to

be unresponsive. In fact, when questioned at the

hearing, Dr. Williams admitted that these were

not assessed.

There was continuous mention, by Dr. Williams,

of the patient being “pink” as the sole means of

assessing breathing and pulse. The patient’s

daughter testified that the patient was lying on

the bed not breathing. EMS records and testi-

mony indicate that the patient was cyanotic upon

their arrival. Dr. Williams repeatedly testified

that a cardiac monitor was necessary to deter-

mine the status of a patient’s pulse. There is no

testimony by Dr. Williams, documentation in

neither notes, nor indication by family or EMS

that any evaluation was made by Dr. Williams as

to the patient’s airway and breathing. There was

testimony by family and documentation by EMS

that no CPR was being performed in the office

prior to EMS’ arrival.

EMS documentation mentions patient was found

to be cyanotic on their arrival. EMS documenta-

tion mentions patient being transferred to a long

board. Family mentions that EMS had applied a

breathing mask while the patient was being

taken to the ambulance. EMS testimony revealed

that the patient was coded once it was discovered

/ pp. 45

that the patient was a full code. It is customary

that intubation and ACLS protocols be instituted

in the back of the ambulance.

The EMS log and testimony show a detailed

description of what was done to resuscitate the

patient in the ambulance. Dr. Williams’ testi-

mony seemed to try to place blame on EMS for

not placing the monitor on the patient imme-

diately in his office.

Review of the Medical Examiner’s report reveals

cause of death as severe bilateral broncho-

pneumonia with myocarditis and pericarditis.

This was precipitated by anoxic brain injury,

which would have been due to apnea, which was

caused by levels of morphine that were three

times the upper level of its therapeutic range. Dr.

Williams’ testified and reported that he used

morphine due to less side effects of nuusea and

also because of its greater efficacy when com-

pared to Meperidine. Dr. Williams’ also testified

that he has only used morphine maybe (4) four

times in his 25 year career. Dr. Williams’ could

not verbalize where he obtained the morphine.

Additionally, Dr. Williams’ stated that he de-

stroyed all of the morphine in his office the night

of April 15, 2005.

Dr. Williams’ note describes, 2 doses of 2.5 milli-

grams of morphine given to the patient one hour

and twenty minutes apart. Upon questioning Dr.

Williams there was a lot of hesitation and

uncertainty about the concentration of Morphine

and volume in each vial. He finally stated that

each vial contained 2 mg. of Morphine in 1 ml

App. 46

solution. When asked about the number of vials

used for each dose, there was a great deal of

uncertainty. Administration of a total dose of

§ milligrams of morphine could not cause the

high level of free morphine found on the medical

examiner's report.

In conclusion, the Board finds that Dr. Wilbert Wil-

liams acted negligently in the treatment of this

patient by administering inappropriate medication

and treatment to this patient in his office. Further-

more, there was no evidence of any monitoring of the

patient’s vital signs. When the patient became

unresponsive, the physician failed to demonstrate

that he possessed basic medical proficiency. Because

there was no evaluation of this patient by standard

basic life support protocols and no basic resuscitative

measures initiated, this patient deteriorated to the

point of being found cyanotic and in full cardiac

arrest upon EMS’ arrival.

Additionally, Dr. Williams cannot verify, either

through testimony or records, the actual amount of

the drug Morphine that was administered to the pa-

tient. Also, Dr. Williams could not recall where he

obtained or purchased the Morphine and immediately

after the crisis in his office, he destroyed all traces of

the Morphine, including vials and labels. Dr. Wil-

liams also testified that he has used Morphine no

more than four times in the last twenty-four years of

practicing medicine, which clearly indicates an un-

familiarity with the use of the medication.

App. 47

Based on the above findings of fact, it is the unani-

mous decision of the Board of Medical Examiners

that the license to practice medicine of Dr. Wilbert

Williams in the United States Virgin Islands is here-

by suspended effective immediately for a period of

one year. Re-instatement will be contingent on the

following conditions being met:

1. Attendance at a Family Practice Board re-

view course (approved by the Board of Med-

ical Examiners).

nN

Successful completion of the V. I. SPEX ex-

amination (administered in May and Novem-

ber of each year)

3. Successful completion of an American Heart

Association Basic Life Support course.

4. Successful completion of an American Heart

Association Advanced Cardiac Life Support

Course.

5 An oral interview with the Board of Medical

Examiners after 1-4 above has been suc-

cessfully completed.

Failure to comply with the above terms and con-

ditions within the period of one year shall result in

the complete revocation of the license to practice in

the United States Virgin Islands.

App. 48

NOT PRECEDENTIAL — NOT FOR PUBLICATION

IN THE DISTRICT COURT

OF THE VIRGIN ISLANDS

DIVISION OF ST. CROIX

WILBERT WILLIAMS, MD,

Plaintiff,

Vv.

GOVERNMENT OF THE

VIRGIN ISLANDS, BOARD

OF MEDICAL EXAMINERS:

COMMISSIONER OF

HEALTH, DARLENE CARTY,

THELMA R. WATSON,

Defendants.

CIVIL NO.

2005/0097

MEMORANDUM OPINION

(Filed Jul. 12, 2005)

Finch . J

THIS MATTER comes before the Court on the

Motion for a Temporary Restraining Order filed by

Defendant Wilbert Williams, M.D. Dr. Williams seeks

the immediate reinstatement of his medical license,

which was suspended by Defendant Government of

the Virgin Islands Board of Medical Examiners on

June 17, 2005. A hearing was held on the temporary

restraining order application on July 12, 2005.

App. 49

Ss Jurisdiction

Dr. Williams alleges that his constitutional right

to a procedural due process guaranteed under the

Fourteenth Amendment was violated by Defendant

the Board of Medical Examiners, which is an

administrative body of the Government of the Virgin

Islands, see 3 V.I.C. § 415, by depriving him of his

property interest in his medical license. This suffices

to state a claim for violation of 42 U.S.C. § 1983. The

Court has original jurisdiction under 28 U.S.C. § 1331

over all civil actions arising under the laws of the

United States. Defendants have not contested this

Court’s jurisdiction.

Il. Standard for Issuing Temporary Restrain-

ing Order

This Court may grant a temporary restraining

order

only if (1) it clearly appears from specific

facts shown by affidavit or by the verified

complaint that immediate and irreparable

injury, loss, or damage will result to the

applicant before the adverse party or that

party’s attorney can be heard in opposition,

and (2) the applicant’s attorney certifies to

the court in writing the efforts, if any, which

have been made to give the notice and the

reasons supporting the claim that notice

should not be required.

Fed. R. Civ. P. 65(b).

App. 50

The Court applies the same standard for issuing

a temporary restraining order as it does for issuing a

preliminary injunction. Bieros v. Nicola, 857 F. Supp.

445, 446 (E.D. Pa. 1994): see also Nutrasweet Co. v.

Vit-Mar Enterprises, Inc., 112 F.3d 689, 693 (3d Cir.

1997) (“[A] temporary restraining order continued

beyond the time permissible under rule 65 must be

treated as a= preliminary injunction, and must

conform to the standards applicable to preliminary

injunctions.”). “([TJo obtain a preliminary injunction,

plaintiffs must show bota (1) that they are likely to

experience irreparable harm without an injunction

and (2) that they are reasonably likely to succeed on

the merits.” Adams v. Freedom Forge Corp., 204 F.3d

475, 484 (3d Cir. 2000). The Court must also consider

whether granting preliminary relief will result in

even greater harm to the nonmoving party and

whether granting the preliminary relief will be in the

public interest. Council of Alternative Political Parties

v. Hlooks, 121 F.3d 876, 879 (3d Cir. 1997).

lil. Notice to Defendants

Defendants argue that the Court should not

consider Dr. Williams’ application for a temporary

restraining order because they have not been

properly served. However, insufficiency of process is

not a basis for denying a temporary restraining order.

Indeed, Rule 65(b) contemplates the issuance of

temporary restraining orders even absent any notice

to the opposing party. In this case, Defendants had

App. 51

notice and appeared, through counsel, at the hearing

on the motion for a temporary restraining order.

IV. The Merits of the Application

A. Irreparable Harm

Dr. Williams submitted a declaration in support

of his motion for a temporary restraining order

stating that he will suffer irreparable harm for any

period of time that he is unable to practice his

profession. He avers that he will suffer tmmediate

financial harm, as well as future harm, as a result of

the damage of his reputation. A consequence of being

forced to suspend his practice of medicine is that he

will not be able to support his family which includes

seven children some of whom are in college.

Although monetary injury is_ generally an

insufficient ground for injunctive relief, Dr. Williams,

if ultimately vindicated, may have no apparent action

to recover the monetary loss sustained during his

suspension. See Greene v. Bowen, 639 F. Supp. 554,

563 (E.D. Cal. 1986). Thus, the monetary deprivation

that Dr. Williams will experience during his suspension

is irreparable.

“(Ijrreparable harm is presumed to flow from a

constitutional violation which is not fully compensable

by monetary damages.” Bordelon v. Chicago School

Reform Bd. of Trustees, 8 F.Supp.2d 779, 789 (N.D.

Ill. 1998). Dr. Williams will suffer non-economic damages

that are not fully compensable through a monetary

App. 52

award. Dr. Williams losses are “intangible and

nebulous, for they are bound up with such benefits as

job satisfaction, professional growth and develop-

ment, service to the community and professional

advancement.” Jd. For every day that Dr. Williams’

license is suspended he is “denied the opportunity to

perform his chosen profession.” Jd. the non-economic

damages suffered by Dr. Williams during the period

of his suspension are, therefore, also irreparable.

The Court finds that the first criteria for granting a

temporary restraining order has been met. Dr.

Williams will suffer irreparable harm if the Court

does not take immediate action.

B. Likelihood of Success

“The case law clearly recognizes a _ protected

property interest in a physician’s license to practice

medicine.” Lowe v. Scott, 959 F.2d 323, 339 (1st Cir.

1992). “The fourteenth amendment prohibits state

deprivations of life, liberty, or property without due

process of law.” Unger v. National Residents Matching

Program, 928 F.2d 1392, 1395 (3d Cir. 1991).

Dr. Williams contends that his physician’s license

was suspended without due process inter alia in that

he was not advised of the charges against him or the

nature of the form of the sanctions that the Court

would consider imposing. The only notification that

Dr. Williams received was a letter from the chair-

person of the Virgin Islands Board of Medical

App. 53

Examiners dated May 31, 2005, which he state> that

he received on June 3, 2005, stating, in its entirety:

Dear Dr. Williams:

The Virgin Islands Board of Medical Exam-

iners received a letter of concern regarding

the care you administered to patient Lydia

Ventura on April 15, 2005. Based on the

preliminary information reviewed by the

Board at its May 26, 2005 meeting, the

Board is hereby requesting the following:

e Submission of a written report by you

detailing Lydia Ventura’s medical treat-

ment on April 15, 2005, with any and all

patient records attached thereto, to the

V.I. Board of Medical Examiners within

five days of receipt of this letter.

e Your appearance before the V.I. Board of

Medical Examiners for a Show Cause

Hearing on June 9, 2005 at 8:30 a.m. at

the Commissioner of Health Conference

Room #3030 — Charles Harwood Memorial

Complex, Christiansted, St. Croix.

Your failure to comply with any of the above

may result in the summary suspension of

your V.J. Medical license, until a complete

investigation is completed.

Your cooperation is appreciated.

Dr. Williams explained his interpretation of this

letter in his declaration:

App. 54

When I received the letter ..., I had no idea

that there would be a hearing where dis-

ciplinary action might be taken against me,

as I thought the Board was simply engaging

in a fact finding process in trying to under-

stand what happened since they simply asked

me to produce my records and attend the

meeting. Indeed, I thought the only way I

could be disciplined was by not attending the

hearing as indicated in the ietter.

The Court finds Dr. Williams’s conclusion that

the Show Cause Hearing was a preliminary hearing

to be reasonable particularly in light of the reference

to the undertaking of a complete investigation in the

last sentence.

The Third Circuit in reviewing the suspension of

three attorneys’ suspensions from the practice of law

in the Virgin Islands cautioned:

The party against whom sanctions are being

considered is entitled to notice of the legal

rule on which the sanctions would be based,

the reasons for the sanctions, and the form of

the potential sanctions. Without such notice,

the opportunity to be heard would be mean-

ingless; only with this information can a

party respond to the court’s concerns in an

intelligent manner. In other words, a party

cannot adequately defend himself against

the imposition of sanctions unless he or she

is aware of the issues that must be addressed

to avoid the sanctions.

App. 55

In re Tutu Wells Contamination Litigation, 120 F.3d

368, 379 (3d Cir. 1997) (citations and quotations

omitted). The Court believes that these same contours

of process is due in the context of the suspension of a

physician’s license.

Dr. Williams was not notified of the legal rule

permitting the Board of Medical Examiners to sanction

him, of the reasons for the sanctions or the form of the

potential sanctions. Therefore, Dr. Williams was

denied the opportunity to respond to the Board’s

concerns in an intelligent manner so as to address the

issues necessary to avoid the sanctions. The Court

concludes that Dr. Williams has shown that he has a

strong likelihood of success on the merits.

C. Balancing of the Harm

Defendants claim that the public will be harmed

if Dr. Williams is allowed to continue to practice

medicine at present. Dr. Williams responds that he

has successfully practiced medicine in St. Croix for

over 25 years and has taken training suggest by the

Board. The Board does not refute Dr. Williams’ argu-

mert except to refer the Court to the findings issued

after the hearing conducted without adequate notice

to Dr. Williams. Because, as discussed, it is likely

that the hearing was conducted in violation of Dr.

Williams’ fourteenth amendment rights, the Court

will not rely on the Board’s findings in considering

the balance of the harm. Thus, the Court considers

that Dr. Williams has prevailed in demonstrating

App. 56

that the balancing of the harm weighs in favor of

issuing a temporary restraining order.

D. The Public Interest

The public interest points strongly to the issuance

of a temporary restraining order. The Fourteenth

Amendment prohibits state interference with pro-

tected property interests without due process of law.

It is the role of the Court to uphold the Fourteenth

Amendment so that people will be secure in their

fundamental rights.

V. Conclusion

Dr. Williams motion for a temporary restraining

order is meritorious. Dr. Williams has demonstrated

that he will suffer irreparable harm if his physician’s

license is not properly restored. He has shown a

strong likelihood of success on the merits. The

balancing of harm tilts in favor of the issuance of a

temporary restraining order as does the _ public

interest. Accordingly, the Court will enjoin the Board

of Medical Examiners from enforcing its June 17,

2005 decision, suspending Dr. Willams’ physician’s

license and imposing conditions for its restoration.

However, today’s ruling does not impede the Board of

Medical Examiners from taking any future action

against Dr. Williams after affording him reasonable

notice and an opportunity to be heard.

App. 57

ENTER:

DATE: July 12,2005 /s/ Raymond L. Finch

Raymond L. Finch

Chief Judge

ATTEST

Wilfredo F. Morales

/s/ Theresa S. Thomas

Deputy Clerk

App. 58

IN THE DISTRICT COURT OF THE

VIRGIN ISLANDS DIVISION OF ST. CROIX

WILBERT WILLIAMS, MD,

Plaintiff,

Vs

GOVERNMENT OF THE

VIRGIN ISLANDS, BOARD CIVIL NO.

OF MEDICAL EXAMINERS: 2005/0097

COMMISSIONER OF

HEALTH, DARLENE CARTY,

THELMA R. WATSON,

Defendants.

s oN ——, , a

ORDER

(Filed Jul. 12, 2005)

THIS MATTER comes before the Court on the

Motion for a Temporary Restraining Order filed by

Defendant Wilbert Williams, M.D. Dr. Williams seeks

the reinstatement of his medical license, which was

suspended by Defendant Government of the Virgin

Islands Board of Medical Examiners on June 17,

2005, pending the outcome of this matter. A hearing

was held on the temporary restraining order appli-

cation on July 12, 2005.

For the reasons stated in the accompanying

Memorandum Opinion it is hereby

ORDERED that the Dr. Williams’ Motion for

a Temporary Restraining Order is GRANTED;

App. 59

that Defendant Board of Medical Examiners

is ENJOINED from enforcing its June 17,

2005 decisions suspending Dr. William’s

license to practice medicine and imposing

conditions for its restoration, pending further

Order of this Court; and that a hearing on

Dr. Williams’ Motion for a _ Preliminary

Injunction will be held at 10:00 A.M. on

Friday, August 5, 2005 at the District

Court of the Virgin Islands in St. Croix.

ENTER:

DATE: July 12,2005 /s/ Raymond L. Finch

Raymond L. Finch

Chief Judge

ATTEST

Wilfredo F. Morales

/s/ Theresa S. Thomas

CC:

Deputy Clerk

Magistrate Judge George W. Cannon, Jr.

Joel H. Holt, Esq.

Melvin Evans, Jr., Esq.

Margaret Brown, Deputy Clerk

App. 60

[LOGO]

GOVERNMENT OF

THE VIRGIN ISLANDS OF THE UNITED STATES

-()-

DEPARTMENT OF HEALTH

#48 SUGAR ESTATE, ST. THOMAS U.S.V.I. 00802

VIRGIN ISLANDS Ph. 340-776-8311 x 5074

BOARD OF MEDICAL EXAMINERS Pax: 340-777-4001

Direct Line: 340-774-01

July 14, 2005

VIA HAND DELIVERY

Wilbert Williams, Jr., MD

Agape Management Inc.

RR1 6196

Kingshill, VI 00850

RE: Notice of Show Cause Hearing for Disciplinary

Purpose

Dear Dr. Williams:

Pursuant to Title 27, Chapter 1, Section 2 of the

Virgin Islands Code, the Board of Medical Examiners

has the power and duty to fully investigate any and

all complaints against practitioners for whose licensure

they are responsible, and take appropriate disci-

plinary action, including censure, probation, suspension

or revocation of license when facts are substantiated

to support such action. The Board received a letter of

inquiry regarding the treatment of Lydia Ventura in

your office. (A copy is attached herewith), As a result

App. 61

the Board has been investigating the treatment

administered by you to patient Lydia Ventura on

April 15, 2005.

The Board of Medical Examiners is requiring that

you appear before the body on Monday, August 1,

2005 at 8:30 A.M. at the Commissioner of Health

Conference Room #3030, Charles Harwood Memorial

Complex, Christiansted, St. Croix. As authorized by

the laws of the Virgin Islands, the Board will convene

the Show Cause Hearing to take whatever disci-

plinary action it deems reasonable based on the facts

obtained by the Board.

As a consequence of the facts obtained, the Board

may censure, suspend or revoke your license to

practice medicine in the United States Virgin Islands

or take any other action that it deems reasonable

under the circumstances if the Board finds that your

treatment of the patient did not meet acceptable

standards of care.

You are advised that you must bring to the hearing

any and all original records, documents, registers or

other information regarding your evaluation and

treatment of patient Lydia Ventura on April 15, 2005.

The Board further requests that you also bring the

entire medical record of patient Lydia Ventura

including treatment records prior to April 15, 2005.

At this hearing you may be represented by counsel

and bring witnesses. Additionally, you will be

required to answer questions concerning the treat-

ment of patient Lydia Ventura. By July 25, 2005

App. 62

please submit vour list of witnesses and a written

report, by you, detailing Lydia Ventura’s medical

treatment on April 15, 2005 to the Board of Medical

Examiners.

Your failure to appear or comply with any require-

ments of the Board shall result in the immediate

suspension of your Virgin Islands Medical license.

Your cooperation is appreciated

Sincerely,

s/ Thelma R. Watson, MD

Thelma R. Watson. MD

Chairperson

App. 63

IN THE DISTRICT COURT

OF THE VIRGIN ISLANDS

DIVISION OF ST. CROIX

WILBERT WILLIAMS, MD, )

Plaintiff, (

| )

GOVERNMENT OF THE ) ee

VIRGIN ISLANDS, BOARDOF ) CIVIL NO.

MEDICAL EXAMINERS: ) 2005/009%

COMMISSIONERS OF HEALTH,’

DARLENE CARTY, THELMA R. ?

WATSON,

Defendants.

ORDER

(Filed Jul. 22, 2005)

Since the parties having stipulated to a perma-

nent injunction on the record and there is no further

relief sought in this matter, it is hereby

ORDERED that this case is CLOSED.

ENTER:

DATE: July 22, 2005 's/ Raymond L. Finch

Raymond L. Finch

Chief Judge

ATTEST

Wilfredo F. Morales

/s/ Theresa S. Thomas _

Deputy Clerk |

cc: Magistrate Judge George W. Cannon, Jr.

Joel H. Holt, Esq.

Melvin Evans, Jr., Esq.

[/s/ K.R. 7/22/05)

App. 65

IN THE DISTRICT COURT

OF THE VIRGIN ISLANDS

DIVISION OF ST. CROIX

WILBERT WILLIAMS, MD

)

Plaintiff, )

v. CIVIL NO.

GOVERNMENT OF THE ,

VIRGIN ISLANDS, BOARD) ACTION FOR

OF MEDICAL EXAMINERS: ) INJUNCTIVE AND

COMMISSIONERS OF ) DECLARATORY

HEALTH, DARLENE CARTY, ) RELIEF

THELMA R. WATSON,

Defendants. )

ORDER

(Filed Aug. 08, 2005)

This matter is before the Court on the plaintiffs

motion to reopen the above captioned matter pursuant

to Rules 59 and 60 of the Federal Rules of Civil

Procedure. Upon consideration of the matters before

the Court and being otherwise advised of the premises,

it is hereby

ORDERED

THAT the motion is GRANTED and the case

is hereby reopened.

Dated 8/4/05 /s/ Raymond Finch

HONORABLE JUDGE

RAYMOND FINCH

App. 66

ATTEST: WILFREDO MORALES

Clerk of Court

BY: /s/ Thamala N. Serrano _

Deputy Clerk

dist: Joel H. Holt, Esq.

Melvin Evans, Jr., Esq.

[/s/ K.K. 8/4/05]

App. 67

[LOGO]

GOVERNMENT OF THE

VIRGIN ISLANDS OF THE UNITED STATES

DEPARTMENT OF HEALTH

#48 SUGAR ESTATE, ST. THOMAS, U.S.V.I. 00802

VIRGIN ISLANDS Ph. 340-776-8311 x

BOARD OF MEDICAL

EXAMINERS

In the matter of

Wilbert Williams, JR., M.D.

Final Order

As per Title 27, chapter 1, Section 2 of the Virgin

Islands Code which describes the powers and duties

of the Board of Medical Examiners, a matter came

before the Virgin Islands Board of Medical Examiners

for investigation and for appropriate disciplinary

action should the facts substantiate such action.

Summary of Case L.V.

On April 15th 2005, patient L.V. was seen in Dr.

Williams’ office for complaints of Head ache, abdomi-

nal pain and fever. She was accompanied by her

daughter. She was treated in the office over a 3 hour

period with IV fluids and IV Morphine. During the

course of that treatment the patient became un-

responsive and suffered a cardiac arrest. EMS re-

sponded, confirmed asystole, initiated ACLS protocol

and transferred the patient to the Juan Luis Hospital.

App. 68

The patient subsequently died — Diagnosis: anoxic

brain injury.

A hearing was held on 9/12/2005

After careful review of the testimony at the hear-

ing of 9/12/05, evaluation of the attendant medical

records, and study of the submitted exhibits, the US

Virgin Islands Board of Medical Examiners finds the

following to be fact:

Ms. Lydia Ventura was hemodynamically stable when

she presented to Dr. Williams’ office. Testimony by

Ms. Ventura’s daughter states that, aside from ap-

pearing uncomfortable, she was not moaning and

groaning and was not in the fetal position. Dr. Wil-

liams stated that Ms. Ventura never became unstable

during the period of time she was at his office until

she became comatose. Dr. Williams administered

aggressive fluid resuscitation and administered mor-

phine via the IV route to treat what is described by

Dr. Williams as “intractable pain”. Dr. Williams stated

that a person can tolerate 3000ml1 of IV fluid per day

so 1500m1] over 3 hours should be well tolerated.

Dr. Williams stated that he cannot recall where or

when he obtained the morphine that was adminis-

tered to Ms. Ventura. Dr. Williams mentioned that

there were distributors and pharmacies where the

morphine could have been obtained. He named three

as the possible source of the morphine; Henry Schein,

Darby and Golden Rock Pharmacy. Dr. Williams

speculated that the morphine may have been “left

App. 69

over” from a previous patient. Dr. Williams stated

that he usually writes a prescription for morphine in

a patient’s name, the patient picks up the morphine

at the pharmacy and brings the morphine to Dr.

Williams’ office. Dr. Williams then states that he ad-

ministers the morphine to the patient. Dr. Williams’

further stated that he occasionally uses what is left

over for other patients presenting to his office. Dr.

Williams stated that he does not need to keep records

of the morphine used in his office and that he

discarded whatever morphine was left in his office

the night of Ms. Ventura’s treatment.

Aside from one entry in the chart listing Ms. Ven-

tura’s vital signs, there is no further documentation

of any other vital signs. There was testimony from Dr.

Williams and from Ms. Ventura’s daughter that Dr.

Williams did reassess Lydia Ventura’s pulse and

breathing periodically. Upon questioning, Dr. Williams

stated that, although he did not document these

findings, they were “acceptable”.

According to Dr. Williams’ note, there are entries at

8:15pm and 8:30pm that mention the patient appears

to be sleeping and snoring. At 8:45pm, Dr. Williams

enters in his record that the patient is not responsive

to verbal and painful stimuli and he calls EMS. There

is no further mention of the patient’s breathing. The

only indication of the patient’s status is that her color

was “pink”.

The EMS log shows a call from Dr. Williams’ office at

9:22pm. The EMS log lists the arrival of EMS to Dr.

App. 70

Williams’ office at 9:30 pm. The EMS report details

the specific treatment rendered to Ms. Ventura once

ACLS protocols were instituted for cardiac arrest.

The Patient was in asystole.

Review of the hospital records and laboratory find-

ings reveal that upon the patient’s arrival to the

JFLH ED, she was unresponsive but had a pulse and

blood pressure. A CT scan at the time revealed no

intracranial bleed and a platelet count of 198,000.

Physical findings upon admission were consistent

with brain death.

Review of her hospital course revealed that Ms. Ven-

tura remained in that state.

The autopsy report revealed a mild subarachnoid

hemorrhage in the parietal and occipital regions as

well as mild hemorrhage around the brain stem,

cerebellum, and inferior occipital region. It also men-

tions rupture of one of the small pontine arteries.

There were small thrombi in the tertiary vessels of

the lungs. There was also focal myocarditis and

pericarditis. The level of free morphine was obtained

on the blood drawn upon admission to the ER on

4/15/2005 and was found to be 210ng/ml. The refer-

ence lab tested the specimen using 2 methodologies

simultaneously and the result was confirmed.

Dr. Williams’ testimony stated that the treatment

rendered in his office was not a precipitating event in

the death of Lydia Ventura. Dr. Williams stated that

his use of IV fluids and IV morphine for the treat-

ment her “intractable” pain were acceptable ways of

App. 71

treating her. Dr. Williams stated that his evaluation

of Ms. Ventura, after she became unresponsive to

verbal and painful stimuli, was adequate since she

was not unstable. However, no vital signs were done

or recorded. Furthermore, the clinical description of

Ms. Ventura is consistent with a Glasgow Coma Scale

of 3 which in itself reflects instability and therefore

needed intervention (BLS/ACLS protocol). Dr. Wil-

liams, as well as the EMS personnel, stated that Dr.

Williams did not attempt to resuscitate or provide

any airway support for this patient. Dr. Williams’

testimony elaborated on the conduct of EMS upon

arrival to his office. He stated that EMS “did nothing”

on arrival to his office. Upon questioning regarding

what EMS should have done, Dr. Williams stated

“whatever EMS is supposed to do”.

Dr. Williams also stated that he was Advanced Car-

diac Life Support (ACLS) certified and held a valid

US Virgin Island medical license at the time of his

treatment of Lydia Ventura.

Dr. Williams’ defense centered around the fact that

Lydia Ventura’s demise was caused by Dengue Hem-

orrhagic Fever (DHF) and Dengue Shock Syndrome

(DSS). The defense stated that Ms. Ventura presented

with fever, headache, body aches, abdominal pain,

nausea and vomiting. The defense states that these

are all symptoms of dengue fever. The defense ex-

hibited a newspaper article that showed that DSS

also manifests in a change from fever to hypothermia,

a change in mental status and shock. The defense

App. 72

states that this is what occurred to cause Ms. Ven-

tura’s change in condition and, ultimately, her death.

Dr. Williams’ defense questioned the validity of the

free morphine level since the test was not repeated.

Dr. Williams’ defense also mentioned that his docu-

mentation is similar to other loca! practitioner’s and

that it was adequate in describing Ms. Ventura’s con-

dition.

Upon taking all of the above into consideration, the

Board finds:

Dr. Williams did not possess a valid USVI medical

license when he treated Mrs. Ventura. on 4/15/2005.

Iiis check and his renewal application were dated

4/15/2005, the date of this incident.

There are inconsistencies regarding how Ms. Ventura

presented to Dr. Williams’ office and what her condi-

tion was during the time she was there. It was deter-

mined that there was inadequate documentation in

Dr. Williams’ charting for Dr. Willams to prove that

Ms. Ventura’s condition did not deteriorate and that

her vital signs remained stable while she was in his

office. This is especially poignant considering that

Ms. Ventura was in cardiac arrest upon EMS’ arrival.

There was no objective evidence for the use of such

vigorous IV fluid administration because there was

no indication that Ms. Ventura was either hemo-

dynamically unstable or dehydrated on her arrival to

Dr. Williams’ office. In fact, her blood pressure was

above normal and Dr. Williams stated her pulse was

App. 73

between 60-100 beats per minute, although this was

not documented in his chart. Dr. Williams stated that

he used his clinical judgment in determining Ms.

Ventura’s treatment.

Although morphine is a medication that can be used

for the treatment of pain, the diagnosis of viral syn-

drome, hemorrhagic cystitis, severe headache, and

fever of unknown origin are not entities that should

be treated with morphine in an office setting, espe-

cially via the IV route. In addition when IV Morphine

is given in an acute setting, it is standard of care

to closely monitor the patient and document the

patient’s vital signs, especially when the patient does

not take morphine on a chronic basis. It is also

irregular to administer morphine without having its

antidote (naloxone) readily available. Dr. Williams

states that he did not have naloxone in his office. Dr.

Williams’ note does not adequately document Ms.

Ventura’s vital signs and testimony revealed that

aside to listening to her chest for respirations and

pulse, there was no further blood pressure monitoring

following morphine administration. In fact, the only

blood pressure recorded was on admission to the

office. Also, when Ms. Ventura was unable to be

aroused there were no vital signs done.

It is a violation of Drug Enforcement Agency regu-

lations to acquire morphine for dispensing or ad-

ministering in a private physician office without

obtaining it lawfully. Morphine for office use, can only

be obtained via ordering it through DEA form 222.

Although it may be acceptable for a physician to write

App. 74

a prescription for a patient and have that patient re-

turn to that physician’s office for administration, any

remaining morphine must be returned to the patient

or issued to a reverse distributor for disposal. Writing

a prescription for morphine in a paticnt’s name, with

the purpose of office use for other patients, is illegal.

Possession of morphine obtained in this manner is

unlawful according to Federal Regulations.

It is also a violation of DEA to destroy or discard

morphine. DEA regulations stipulate that any unused

morphine must be routed through a reverse distribu-

tor if it is not going to be used. Dr. Williams testified

that he destroyed all of the remaining morphine in

his office after this incident. It is also a violation of

DEA regulations to prescribe, administer, or dispense

controlled substances without having a valid and cur-

rent State license to practice medicine. Dr. Williams

did not possess a valid USVI license on 4/15/2005

when he prescribed and administered morphine to

Mrs. Ventura.

There is no indication via testimony or documenta-

tion that Dr. Williams performed any basic evaluation

of Ms. Ventura’s airway, breathing, or circulation (the

basics of BLS (Basic Life Support)) when she became

unresponsive. There was testimony by Paramedic

Majors that Dr. Williams stated to him that the

patient was not breathing. EMT Bryan testified that

Dr. Williams’ wife stated to EMS that the patient was

not breathing. Volunteer EMT Rhodes testified that

Dr. Williams’ wife said the patient was not breath-

ing. Therefore it was “unanimous that she was not

App. 75

breathing”. Testimony by EMS revealed that Dr. Wil-

liams was not in physical contact with the patient

upon their arrival. Therefore, for an unknown period

of time (prior to EMS’ arrival) Ms. Ventura was

apneic and nothing was being done by Dr. Williams or

his staff to provide oxygen or any airway or breathing

intervention to her.

Dr. Williams did not recognize that not responding to

verbal or painful stimuli renders a patient’s Glasgow

Coma Scale to be equal 3 (the lowest score possible)

meaning Ms. Ventura was in a coma at the time and

required life saving measures to be taken. As her

treating physician, Dr. Williams did not appropriately

treat Ms. Ventura when she became unresponsive

and, according to Ms. Ventura’s daughter’s testimony,

“Dr. Williams panicked’.

The US Virgin Islands Board of Medical Examiners

agree that dengue fever can present with fever,

muscle/joint pain, and nausea/vomiting; but so can

multiple other diseases. Following CDC guidelines,

dengue hemorrhagic fever (DHF) must also exhibit

significant thrombocytopenia, hemorrhagic manifes-

tations such as petechiae, purpura, ecchymosis;

gingival bleeding; nasal bleeding, gastrointestinal

bleeding; hematuria. This is what distinguishes DHF

from other viral syndromes. L.V. did not have any of

these except for microscopic hematuria which was

most likely caused by her urinary tract infection

which was evident on a urinalysis done in Dr. Wil-

liams’ office.

App. 76

The CDC carefully defines DHF by 4 essential criteria:

1) Fever; 2) Hemorrhagic manifestations; 3) Low

platelets — lower or equal to 100,000; and 4) Objective

evidence of leaky capillaries — increased hematocrit,

decreased albumin, pleural or other effusions. Ms.

Ventura did not meet these criteria when she pre-

sented to the ED nor to Dr. Williams’ office.

The CDC defines Dengue Shock Syndrome (DSS)

as an extension of DHF by requiring the above-

mentioned 4 essential criteria for DHF along with

rapid/weak pulse, hypotension, cold and clammy skin,

and shock. As a patient becomes more ill, they will

manifest sustained abdominal pain and persistent

vomiting which leads to further deterioration.

Review of records and testimony of the Medical

Examiner Dr. Landron, reveal that there were no

signs of external bleeding nor any signs of internal

bleeding, aside from mild subarachnoid hemorrhag-

ing which could be accounted for by cerebral anoxia

or by the process of autopsy itself. Dr. Landron also

stated that the autopsy findings are not consistent

with death by DHF or DSS. Thrombi are not signs of

bleeding. The patient’s chest x-ray on arrival to the

ED did not reveal any pleural effusions and her

platelet count was 198,000. In addition if Dr. Wiil-

liams was considering DSS as part of his differential

diagnosis, it was not documented in his record. In fact

Dr. Williams removed Ms. Ventura’s IV even though

IV fluids are the cornerstone of treatment of DSS. Dr.

Williams continually stated that Ms. Ventura’s vitals

remained stable. If she had been progressing into

App. 77

DSS her vital signs would not have remained stable,

especially her pulse and blood pressure. Dr. Williams

did not call EMS to transport her to the hospital for a

suspected case of DSS. He called EMS for a patient

that was unresponsive.

In summary, on close analysis of Ms. Ventura’s case,

the diagnosis of DIIS or DSS simply cannot be made.

The US Virgin Islands Board of Medical Examiners

accepts the laboratory’s value of the level of free mor-

phine found in Ms. Ventura’s blood, 210ng/m1, which

is 3 times the upper level of therapeutic. The refer-

ence lab analyzes specimens by using 2 simultaneous

methodologies (with final analysis of these results by

the forensic toxicologist) to determine the morphine

level in the specimen.

During our meticulous analysis and research of all of

the testimony and findings, the Board focused on

objective findings in evaluating Dr. Williams’ treat-

ment of Ms. Ventura. Although Dr. Williams docu-

mented that he administered a total of 5 milligrams

of morphine to Mrs. Ventura, he cannot prove this to

the Board since he states he does not have records of

office morphine use and actually destroyed all the

morphine and the morphine containers in his office

immediately after Ms. Ventura’s treatment. A thor-

ough investigation of Dr. Williams’ morphine ordering

practices revealed that neither Henry Schein nor

Darby had any record of morphine ever being ordered

by Dr. Williams. In order to legally order morphine

through one of these companies, a DEA form 222

App. 78

would have to have been completed and a copy is filed

with the DEA. The DEA has no record of Dr. Williams

ever filling out one of these forms to order any nar-

cotics including Morphine. Dr. Williams stated that

he gave Ms. Ventura 1'/ mls of morphine from vials

that contained 2mg/ml. Under subpoena, Golden Rock

pharmacy provided the Board with copies of prescrip-

tions written for morphine by Dr. Wilhams. None of

these. prescriptions were written for the concentra-

tion of morphine that Dr. Williams, under oath,

reports giving to the patient. The concentration of

morphine on those prescriptions far exceeded 2mg/ml.

Therefore administration of 2'/2 mls far exceeded 5

mg of morphine.

Dr. Williams’ defense states that his documentation is

similar to other local practitioners. The Board dis-

agrees in that, while Dr. Williams’ documentation

may be appropriate for a routine office visit, more

explicit and careful documentation should have been

used in a patient that was treated for over 3 hours

and was given a potentially toxic medication.

Dr. Williams’ defense stated that the US Virgin

Islands Board of Medical Examiners was prejudiced

against Dr. Williams. Dr. Williams’ defense stated

that it objected to Dr. Watson, for being the EMS

supervisor, and Dr. Dixon, for being a direct competi-

tor of Dr. Williams, forming part of the Board at the

hearing. Dr. Watson is not the EMS supervisor, and

Dr. Dixon is an endocrinologist, not a family physi-

cian.

App. 79

The defense stated that the Board was going to take

Dr. Williams license to show, regardless of the tes-

timony and evidence, who is in charge of medical

licensing.

The Virgin Islands Board of Medica] Examiners was

appointed by the people of the Virgin Islands through

their elected representatives. The primary responsi-

bility and obligation of the Board is to protect the

public as it pertains to matters relating to medical

care. The Board takes this responsibility very seri-

ously.

In Conclusion:

The US Virgin Island Board of Medical Examiners

has determined that Dr. Wilbert Williams acted negli-

gently and irresponsibly in the treatment of Lydia

Ventura, and failed to demonstrate basic life support

measures in responding to her when she became un-

responsive.

The treatment given to Ms. Ventura by Dr. Williams

was not typical for an office setting, but more im-

portantly, Dr. Williams was not equipped with the

personal knowledge nor toois to deal with the most

common complication of this treatment; namely res-

piratory depression/arrest.

Dr. Williams stated that he is currently ACLS certi-

fied, which he is not. This is considered by the Board

to be false testimony given at the hearing.

App. 80

Dr. Williams broke the law by violating DEA regula-

tions — Particularly by obtaining morphine for office

use in an unlawful manner, by not keeping records of

office morphine, and by disposing the office morphine

improperly.

Dr. Williams knowingly and willfully gave false testi-

mony about where the morphine was obtained, and

what concentration was used to treat Ms. Ventura.

Finally, at the time of Lydia Ventura’s treatment, Dr.

Williams did not have an active and valid license to

practice medicine in the US Virgin Islands. Renewal

applications are due by September 30th. Dr. Williams’

check for renewal is dated April 15, 2005, the same

day he treated Ms. Ventura. The signature page of his

application is dated April 19, 2005. The check, along

with the renewal application was mailed to the

licensing office and was received April 22, 2005.

Penalty

The Substandard care provided to patient L.V. by Dr.

Wilbert Williams Jr. directly resulted in her death.

Dr. Williams demonstrated no recognition nor insight

that he provided substandard care and denied even

the possibility that he did anything wrong, or could

have done anything better. Dr. Williams betrayed the

public’s trust and demonstrated that he lacks the

integrity and skills necessary to practice medicine in

the USVI, by:

App. 81

1) Providing substandard care to Lydia Ventura

2) Providing deliberately false answers concerning

where and when he obtained the morphine, the con-

centration and dosage of the morphine administered.

3) Providing false statements concerning his ACLS

certification status

4) Destroying the remaining morphine and vials in

his office after the incident,

5) Practicing medicine without an active license and

lying to the Board about it during the hearing.

Dr. Williams’ refusal to admit his deficiencies in the

care of L.V. demonstrates his unfitness to practice

Medicine in the United States Virgin Islands.

Wherefore, it is hereby ordered and adjudged that Dr.

Wilbert Williams, JR’s license to practice Medicine in

the Territory of the United States Virgin Islands is

hereby REVOKED.

Dated this 26th day of January, 2006

Thelma Ruth Watson, M.D., /s/ Thelma Ruth Watson

Chairman

Frank A. Odlum, M.D., /sf Frank A. Odlum

Secretary

Claudius L. Henry, M.D., /s/ Claudius L. Henry

Member

Joseph Defames, M.D., /s/ Joseph Defames"

Member

App. 82

Michelle Dixon, M.D., /s/ Michelle Dixon

Member

[SEAL]

App. 83

NOT PRECEDENTIAL —NOT FOR PUBLICATION

IN THE DISTRICT COURT OF THE VIRGIN ISLANDS

DIVISIONS OF ST. CROIX

WILBERT WILLIAMS, MD,

Plaintiff,

V.

)

)

)

)

GOVERNMENT OF THE )

VIRGIN ISLANDS, BOARD _ ? CIVIL NO.

OF MEDICAL EXAMINERS: ? 2005/0097

COMMISSIONER OF )

HEALTH, DARLENE CARTY, ?

THELMA R. WATSON,

Defendants. )

MEMORANDUM OPINION

Finch, J.

THIS MATTER, comes before the Court on the

Motion for a Temporary Restraining Order filed by

Defendant Wilbert Williams, M.D. Dr. Williams seeks

the immediate reinstatement of his medical license,

which was revoked by a Final Order of Defendant

Government of the Virgin Islands Board of Medical

Examiners [hereinafter “the Board of Medical

Examiners”] entered January 26, 2006. Counsel for

the Board of Medical Examiners has been served with

Dr. Williams’ motion.

App. 84

I. Jurisdiction

Dr. Williams alleges that his constitutional right

to procedural due process guaranteed under the

Fourteenth Amendment was violated by the Board of

Medical Examiners, which is an administrative body

of the Government of the Virgin Islands, see V.I.C.

§ 415, by depriving him of his property interest in his

medical license. This suffices to state a claim for

violation of 42 U.S.C. § 1983. The Court has original

jurisdiction under 28 U.S.C. § 1331 over all civil actions

arising under the laws of the United States. Defen-

dants have not contested this Court’s jurisdiction.

II. Standard for Issuing Temporary Restrain-

ing Order

This Court may grant a temporary restraining

order

only if (1) it clearly appears from specific

facts shown by affidavit or by the verified

complaint that immediate and irreparable

injury, loss, or damage will result to the

applicant before the adverse party or that

party's attorney can be heard in opposition,

and (2) the applicant’s attorney certifies to

the court in writing the efforts, if any, which

have been made to give the notice and the

reasons supporting the claim that notice

should not be required.

Fed. R. Civ. P. 65(b).

App. 85

The Court applies the same standard for issuing

a temporary restraining order as it does for issuing a

preliminary injunction. Bieros v. Nicola, 857 F. Supp.

445, 446 (F.D. Pa. 1994): see also Nutrasweet Co. v.

Vit-Mar Enterprises, Inc., 112 F.3d 689, 693 (3d Cir.

1997) (“[A] temporary restraining order continued

beyond the time permissible under Rule 65 must be

treated as a preliminary injunction, and must

conform to the standards applicable to preliminary

injunctions.”). “[T]o obtain a preliminary injunction,

plaintiffs must show both (1) that they are likely to

experience irreparable harm without an injunction

and (2) that they are reasonably likely to succeed on

the merits.” Adams v. Freedom Forge Corp., 204 F.3d

475, 484 (3d Cir. 2000). The Court must also consider

whether granting preliminary relief will result in

even greater harm to the nonmoving party and

whether granting the preliminary relief will be in the

public interest. Council of Alternative Political Parties

v. Hooks, 121 F.3d 876, 879 (3d Cir. 1997).

I1I. The Merits of the Application

A. Irreparable Harm

Dr. Williams submitted a declaration in support

of his motion for a temporary restraining order

stating that he will suffer irreparable harm for any

period of time that he is unable to practice his

profession. He avers that he will suffer immediate

financial harm, as well as future harm, as a result of

the damage to his reputation. A consequence of being

App. 86

forced to suspend his practice of medicine is that he

will not be able to support his family which includes

seven children some of whom are in college.

Although monetary injury is_ generally an

insufficient ground for injunctive relief, Dr. Williams,

if ultimately vindicated, may have not apparent

action to recover the monetary loss sustained during

his suspension. See Greene v. Bowen, 639 F. Supp.

554, 563 (E.D. Cal. 1986). Thus, the monetary depri-

vation that Dr. Williams will experience during his

suspension is irreparable.

“(Ijrreparable harm is presumed to flow from a

constitutional violation which is not fully compensable

by monetary damages.” Bordelon v. Chicago School

Reform Bd. of Trustees, 8 F.Supp.2d 779, 789 (N.D.

ll. 1998). Dr. Williams will suffer non-economic

damages that are not fully compensable through a

monetary award. Dr. Williams losses are “intangible

and nebulous for they are bound up with such

benefits as job satisfaction, professional growth and

development, service to the community and profes-

sional advancement.” /d. For every day that Dr.

Williams’ license is suspended he is “denied the

opportunity to perform his chosen profession.” /d. The

non-economic damages suffered by Dr. Williams

during the period of his suspension are, therefore,

also irreparable.

App. 87

B. Likelihood of Success

“The case law clearly recognizes a_ protected

property interest in a physician’s license to practice

medicine.” Lowe v. Scott, 959 F.2d 323, 339 (1st Cir.

1992). “The fourteenth amendment prohibits state

deprivations of life, liberty, or property without due

process of law.” Unger v. National Residents Matching

Program, 928 F.2d 1392, 1395 (3d Cir. 1991).

Dr. Williams contends that his physician’s license

was suspended without due process inter alia in that

he was not advised of the charges against him. Dr.

Williams was notified that “the Board has been

investigating the treatment administered by you to

patient Lydia Ventura on April 15, 2005,” that he

“will be required to answer question concerning the

treatment of patient Lydia Ventura,” and that “[als a

consequence of the facts obtained, the Board may

censure, suspend or revoke your license to practice

medicine in the United States Virgin Islands or take

any other action that it deems reasonable under the

circumstances if the Board finds that your treatment

of the patient did not meet acceptable standards of

care.”

Although Dr. Williams was not notified that he

would be charged with not having an active and valid

license to practice medicine, violating regulations of

the United States Drug Enforcement Agency, and not

being ACLS certified, Dr. Williams was forced to

respond to such allegations. The Board of Medical

Examiners revoked Dr. Williams’ license in part

App. 88

because he did not have an active and valid license,

because he “broke the law by violating DEA regula-

tions,” and he was not currently ACLS certified and

had falsely testified that he was

The party against whom sanctions are being

considered is entitled to notice of the legal

rule on which the sanctions would be based,

the reasons for the sanctions, and the form of

the potential sanctions. Without such notice,

the opportunity to be heard would be

meaningless: only with this information can

a party respond to the court’s concerns in an

intelligent manner. In other words, a party

cannot adequately defend himself against

the imposition of sanctions unless he or she

is aware of the issues that must be addressed

to avoid the sanctions.

In re Tutu Wells Contamination Litigation, 120 F.3d

368, 379 (3d Cir. 1997) (citations and quotations

omitted). The Court believes that these same contours

of process is due in the context of the revocation of a

physician’s license.

Because Dr. Williams did not receive notice of the

charges against him, Dr. Williams was denied the

opportunity to respond to the Board of Medical

Examiners’ concerns in an intelligent manner so as to

address the issues necessary to avoid the sanctions.

The Court concludes that Dr. Williams has shown

that he has a strong likelihood of success on the

merits.

App. 89

©. Balancing of the Harm

The Court assumes that the Board of Medical

Examiners would claim, as it did in the earlier

hearing in this matter, that the public will be harmed

if Dr. Williams is allowed to continue to practice

medicine at present. Dr. Williams responded that he

has successfully practiced medicine in St. Croix for

over 25 years and has taken training previously

suggest by the Board. Because, as discussed, it is

likely that the hearing was conducted in violation of

Dr. Williams’ fourteenth amendment rights, the

Court will not rely on the Board of Medical Examiners’

findings in considering the balance of harm. Thus,

the Court considers that Dr. Williams has prevailed

in demonstrating that the balancing of the harm

weighs in favor of issuing a temporary restraining

order.

D. The Public Interest

The public interest points strongly to the issuance

of a temporary restraining order. The Fourteenth

Amendment. prohibits state interference with pro-

tected property interests without due process of law.

[t is the role of the Court to uphold the Fourteenth

Amendment so that people will be secure in their

fundamental rights.

V. Conclusion

Dr. Williams motion for a temporary restraining

order is meritorious. Dr. Williams has demonstrated

App. 90

that he will suffer irreparable harm if his physician’s

license is not properly restored. He has shown a

strong likelihood of success on the merits. The

balancing of harm tilts in favor of the issuance of a

temporary restraining order as does the _ public

interest. Accordingly, the Court will enjoin the Board

of medical Examiners from enforcing its June 16,

2006 decision, revoking Dr. Williams’ physician’s

license. However, today’s ruling does not impede the

Board of Medical Examiners from taking any future

action against Dr. Williams after affording him

reasonable notice and an opportunity to be heard.

ENTER:

DATE: March 10, 2006 /s/ Raymond L. Finch _

Raymond L. Finch

Chief Judge

ATTEST

Wilfredo F. Morales

/s/ Theresa 8. Thomas_

Deputy Clerk

cc: Magistrate Judge George W. Cannon, Jr.

Joel H. Holt, Esq.

Melvin Evans, Jr., Esq.

App. 91

IN THE DISTRICT COURT OF THE VIRGIN ISLANDS

DIVISION OF ST. CROIX

WILBERT WILLIAMS, MD, _ )

Plaintiff,

Vv. )

GOVERNMENT OF THE ) ‘

VIRGIN ISLANDS, BOARD |? CIVIL NO.

OF MEDICAL EXAMINERS: ? 2005/0097

COMMISSIONER OF

HEALTH, DARLENE CARTY, ?

THELMA R. WATSON, )

)

)

Defendants.

ORDER

THIS MATTER comes before the Court on the

Motion for a Temporary Restraining Order filed by

Defendant Wilbert Williams, M.D. or Williams seeks

the reinstatement of his medical license, which has

been revoked by Defendant Government of the Virgin

Islands Board of Medical Examiners.

For the reasons stated in the accompanying

Memorandum Opinion, it is hereby

ORDERED that the Dr. Williams’ Motion for a

Temporary Restraining Order is

GRANTED;

that Defendant Board of Medical Examiners

is ENJOINED from enforcing its Fina!

Order revoking Dr. William’s license to

App. 92

practice medicine; and that pursuant to Rule

65(b) of the Federal Rules of Civil Procedure,

such Temporary Restraining Order will

expire in 10 days, “unless within [10 days],

for good cause shown, [the Temporary

Restraining Order] is extended for a like

period or unless the party against whom the

order is directed consents that it may be

extended for a longer period.”

ENTER:

DATE: March 10, 2006 /s/ Raymond L. Finch

Raymond L. Finch

Chief Judge

ATTEST

Wilfredo F. Morales

/s/ Theresa S. Thomas

Deputy Clerk

cc: Magistrate Judge George W. Cannon, Jr.

Joel H. Holt, Esq.

Melvin Evans, Jr., Esq.

App. 93

IN THE DISTRICT COURT OF THE VIRGIN ISLANDS

DIVISION OF ST. CROIX

WILBERT WILLIAMS, MD __ )

Plaintiff,

v. ) CIVIL NO.

GOVERNMENT OF THE ) SORT

VIRGIN ISLANDS, BOARD ?) ACTION FOR

OF MEDICAL EXAMINERS: ) INJUNCTIVE AND

COMMISSIONER OF ) DECLARATORY

HEALTH, DARLENE CARTY, ) RELIEF

THELMA R. WATSON,

Defendants. )

—_— ~~

This matter is before the Court on the plaintiffs

motion to extend the temporary restraining order

issued on March 10, 2006. Upon consideration of the

matters before the Court and being otherwise advised

of the premises, it is hereby

ORDERED

THAT pursuant to Rule 65(d), the motion is

GRANTED and order issued on March 10, 2006 is

hereby extended for an additional 10 day, until April

7, 2006. A hearing on the preliminary injunction is

hereby set for March 30, 2006 at 11:00 A.M.

App. 94

Date

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