# Petition for Writ of Certiorari — Williams v. Government of the Virgin Island Board of Medical Examiners > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1841%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2010 - **Citation:** 560 U.S. 965 ## Text 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 Saker SOF MOE 6 Bi as banish cies endear 1] BRR ate CO GARIN Be ES ois 8 cccscis vik ccesndcevasessansaeantn ill 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 i as saa kab on dod wedekandsbeaautanavsanienevio 2 nc. 5s vednw dai bacsaenawaseudaseabakianeseen 2,3 aca uh neck saaavheaoveuennnakcd iene enss 2 TABLE OF AUTHORITIES — Continued Page Be Ose EE giao occ basen than bcacsesdansenetnipclaniad ie 2 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 wh [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1841%3A1. Public record. Not legal advice.