and 08-4039 PHILIP GETSON, D.O. v. State of New Jersey

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 08-3261 and 08-4039
PHILIP GETSON, D.O.,
Appellant
v.
STATE OF NEW JERSEY; ANNE MILGRAM, New Jersey Attorney General
in her official capacity; STEPHEN B. NOLAN, Acting Director of
the New Jersey Division of Consumer Affairs, in his official capacity;
SHANON JOYCE, Esq., AAG, in her official capacity; SANDRA Y. DICK,
Sr. D.A.G., in her official capacity; KATHY STROH MENDOZA, ESQ. DAG,
in her official capacity; EDWARD TUMMINELLO, Chief of Enforcement
Bureau, New Jersey Board of Medical Examiners in his official capacity;
WILLIAM ROEDER, as Executive Director of The New Jersey Board
of Medical Examiners, in his official capacity; NEW JERSEY
BOARD OF MEDICAL EXAMINERS; MARY BANKS, M.D.;
MAHMOOD CHEEMA, M.D.; GEORGE J. CHIECHANOWSKI, M.D.;
ANN C. CLEMECY KOHLER, M.D.; MARIO A. CRISCITO, M.D.;
KAREN KRISS, R.N.; JACQUELINE A. DEGREGORIO, Esq.;
BASSAM HADDAD, M.D.; PAUL JORDAN, M.D.; KATHRYN LAMBERT, D.O.;
STEVEN LAMAZOW, M.D.; PAUL MENDELOWITZ, M.D.;
PETER NUSSBAUM, M.D.; SINDY PAUL, M.D.; JOSEPH RICHMAN, M.D.;
DEBBIE SALAS LOPEZ, M.D.; GEORGE SCOTT, D.P.M., D.O.;
WILLIAM STANLEY, M.D.; CALVIN STRAND, M.D.;
KEVIN WALSH, P.A.; DANIEL WEISS; DOUGLAS WHEELER, ESQ.,
the last twenty one defendants being members of The New Jersey
Board of Medical Examiners who are sued herein collectively
and individually in their official capacities; NEW JERSEY OFFICE OF
ADMINISTRATIVE LAW; JOSEPH F. MARTONE, Administrative Law Judge
in his official capacity; SANDRA DESARNO HLATSKY,
deputy clerk New Jersey Office of Administrative Law in her official capacity;
PEGGY HARRIS, Assistant Executive Director of New Jersey
Board of Medical Examiners

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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Civil No. 07-cv-03509)
District Judge: Honorable Joseph A. Greenaway
Submitted Under Third Circuit LAR 34.1(a)
November 18, 2009
Before: RENDELL, BARRY and CHAGARES, Circuit Judges
(Opinion Filed: November 23, 2009)
OPINION
BARRY, Circuit Judge
The Attorney General of the State of New Jersey filed an administrative complaint
against Philip Getson, D.O., seeking the suspension or revocation of his medical license.
Dr. Getson filed a complaint in federal court, asking the District Court to enjoin the state
administrative proceeding and declare that it violated his due process rights. The District
Court dismissed the complaint based on Younger abstention. Younger v. Harris, 401 U.S.
37 (1971). We will affirm.
I.
A. The Administrative Complaint Against Dr. Getson
On July 12, 2005, the Attorney General filed an administrative complaint against

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Dr. Getson, alleging that he had committed gross negligence, multiple acts of negligence,
and professional misconduct, in violation of N.J. Stat. Ann. § 45:1-21(c), (d), and (e);
violated regulations of the Board of Medical Examiners, in violation of N.J. Stat. Ann.
§ 45:1-21(h); and engaged in the use of dishonesty, fraud, deception, misrepresentation,
false promise, or false pretense, in violation of N.J. Stat. Ann. § 45:1-21(b), by: (1)
repeatedly deviating from acceptable medical standards and failing to follow applicable
requirements for written prescriptions; (2) failing to properly supervise his Advanced
Practice Nurse; (3) making and maintaining medical records that failed to meet regulatory
standards; and (4) repeatedly miscoding services when billing. The Attorney General
sought the suspension or revocation of Dr. Getson’s medical license, as well as civil
penalties and costs. The administrative complaint was supported by two expert reports –
a lengthy report involving a review of the medical records for nine of Dr. Getson’s
patients, and a brief report which concluded that one of his patients had not been treated
in accordance with the applicable standards of care. Dr. Getson submitted a rebuttal
expert report by Albert Talone, D.O. Dr. Talone noted that he had reviewed the medical
records for seven of Dr. Getson’s patients and concluded that Dr. Getson “met the
applicable standards of care for the treatment” of these patients. (App. at 223.)
In January 2006, Steven Lomazow, M.D., a member of the Board of Medical
Examiners, contacted Dr. Talone and made “derogatory remarks” about Dr. Getson and

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Because we are reviewing the District Court’s Rule 12(b)(6) dismissal of Dr.1
Getson’s complaint, we must accept his factual allegations as true. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 572 (2007).
Dr. Getson states that the Attorney General’s Office “has simply ignored [his] bias2
complaints and conducted no such inquiry.” (Appellant’s Br. at 29; App. at 57.)
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“negative comments” about Dr. Talone’s participation in Dr. Getson’s case. (Id. at 52-1
53.) Dr. Talone refused to talk to Dr. Lomazow about Dr. Getson. Dr. Getson’s attorney
notified the Board of this conversation, and Dr. Lomazow recused from any participation
in Dr. Getson’s case. The Attorney General’s Office later informed Dr. Getson’s counsel
that the other Board members all confirmed that none of them had spoken to Dr.
Lomazow about the substance of Dr. Getson’s case.
The following month, Dr. Talone received another phone call, this time from a
“lobbyist who was advised by a prominent elected official (the identity of whom was
withheld by [Dr. Getson’s] attorney) that the official knew that there was a ‘problem
between Dr. Lomazow and Dr. Tallone [sic].’” (Id. at 54-55.) Dr. Getson’s attorney
informed the Attorney General’s Office of this contact and stated that Dr. Talone felt
“intimidated and pressured to cease serving as an expert for Dr. Getson.” (Id. at 240.) By
letter dated March 13, 2006, an Assistant Attorney General informed Dr. Getson’s
attorney that these allegations had been referred to the Division Ethics Officer for
review.2
A plenary hearing on the administrative complaint against Dr. Getson before
Administrative Law Judge (“ALJ”) Joseph Martone has been rescheduled several times,

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and it appears that no hearing has yet been held. After the ALJ conducts the hearing, he
will issue a decision containing his recommended findings of fact and conclusions of law.
N.J. Stat. Ann. § 52:14B-10(c). The Board of Medical Examiners will then accept, reject,
or modify the ALJ’s decision, but must clearly state its reasons for doing so. Id. Dr.
Getson may appeal the Board’s decision to the Appellate Division. N.J. Ct. R. 2:2-
3(a)(2).
B. Dr. Getson’s Federal Complaint
On July 30, 2007, Dr. Getson filed a ninety-nine page complaint in the District of
New Jersey against the State of New Jersey, the Attorney General of the State of New
Jersey, and a host of other defendants, including the New Jersey Board of Medical
Examiners and each of its members, and ALJ Martone in his official capacity. Dr. Getson
alleged that the defendants violated his due process rights under the Fourteenth
Amendment to the U.S. Constitution, his civil rights pursuant to 42 U.S.C. § 1983, and
several New Jersey statutes, including the Administrative Procedures Act, N.J. Stat. Ann.
§ 52:14B-1 et seq., and the Civil Rights Act, N.J. Stat. Ann. § 10:6-2. He sought a
declaratory judgment and an injunction prohibiting the ALJ and the Board from holding
any hearings, deliberating, or taking any other action with respect to his medical license.
The defendants moved to dismiss the complaint pursuant to Rule 12(b)(6), arguing
that the Younger abstention doctrine prevented the District Court from enjoining the
pending state administrative proceeding. Fed. R. Civ. P. 12(b)(6). The District Court

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granted the motion. This timely appeal followed.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291. “We review the District
Court's decision to abstain for abuse of discretion. We exercise plenary review, however,
over the underlying legal determinations of whether the abstention requirements have
been met.” Zahl v. Harper, 282 F.3d 204, 208 (3d Cir. 2002) (citations omitted). Rule
12(b)(6) dismissal orders are subject to de novo review. Phillips v. County of Allegheny,
515 F.3d 224, 230 (3d Cir. 2008).
III.
A. The Younger Abstention Doctrine
“Younger abstention is a legal doctrine granting federal courts discretion to abstain
from exercising jurisdiction over a claim when resolution of that claim would interfere
with an ongoing state proceeding.” Kendall v. Russell, 572 F.3d 126, 130 n.3 (3d Cir.
2009) (citing Younger v. Harris, 401 U.S. 37 (1971)). “Abstention is appropriate when:
(1) there is a pending state judicial proceeding; (2) the proceeding implicates important
state interests; and (3) the state proceeding affords an adequate opportunity to raise
constitutional challenges.” Zahl v. Harper, 282 F.3d 204, 209 (3d Cir. 2002) (citing
Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982)).
The District Court correctly concluded that these requirements had been met, and Dr.
Getson does not dispute that conclusion.

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Zahl is very much on point. In Zahl, the plaintiff (a licensed anesthesiologist)
sought to restrain the New Jersey Board of Medical Examiners from proceeding with a
pending administrative complaint against him, arguing that two of the administrative
counts – those alleging Medicare fraud – were preempted by the Medicare statutes. The
District Court abstained pursuant to Younger, and we affirmed. We found, first, that the
state administrative proceeding was “clearly judicial in nature,” given that it was being
conducted pursuant to New Jersey statutory and regulatory authority with a right to appeal
the administrative decision to the state courts. Zahl, 282 F.3d at 209 (citations omitted).
Second, we noted that “New Jersey has a heavy and traditional interest in regulating the
practice of medicine within its borders,” and that such regulation is an important element
of the state’s police power. Id. at 209, 210-11. Third, we concluded that the plaintiff
could raise his federal constitutional claim in the course of the state administrative
proceeding and before the Appellate Division of the Superior Court on appeal. Id. at 209-
10 (citation omitted).
B. Exceptions to Younger Abstention
Even when these requirements are met, it is inappropriate to abstain under Younger
if the plaintiff establishes that “(1) the state proceedings are being undertaken in bad faith
or for purposes of harassment or (2) some other extraordinary circumstances exist, such
as proceedings pursuant to a flagrantly unconstitutional statute, such that deference to the
state proceeding will present a significant and immediate potential for irreparable harm to

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The cases on which Dr. Getson relies are inapposite. See Herz v. Degnan, 648 F.2d3
201, 209-10 (3d Cir. 1981) (the bad faith exception may apply where a psychologist’s
license was revoked by the Attorney General in blatant non-compliance with applicable
statutes); Chiropractic Alliance of New Jersey v. Parisi, 854 F. Supp. 299, 306-07 (D.N.J.
1994) (the bad faith exception may apply where plaintiff alleged that state-actor
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the federal interests asserted.” Schall v. Joyce, 885 F.2d 101, 106 (3d Cir. 1989) (citing
Middlesex County Ethics Comm., 457 U.S. at 435). Dr. Getson argues that both
exceptions to Younger abstention are applicable here.
1. Bad Faith
A prosecution or proceeding is conducted in “bad faith” for abstention purposes
when it is brought “without hope” of success. Perez v. Ledesma, 401 U.S. 82, 85 (1971);
see also Dombrowski v. Pfister, 380 U.S. 479, 482 (1965) (plaintiffs alleged that threats
to enforce anti-communism statutes were “not made with any expectation of securing
valid convictions” but rather to harass and discourage the assertion of civil rights).
Whether or not Dr. Getson ultimately prevails in the state administrative proceeding, there
can be little question that that proceeding was not instituted by the Attorney General
without any expectation of success. Dr. Schapiro opined that Dr. Getson deviated from
the applicable standards of medical care at least forty-five times in a variety of ways. Dr.
Getson, of course, challenges the merits of these conclusions, and argues that the statutes
cited in the expert reports and administrative complaint do not support the allegations
against him. These contentions do not, however, establish that the administrative
proceeding was brought in bad faith. Notably, Dr. Getson has not suggested that the3

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defendants were attempting extortion); Wichert v. Walter, 606 F. Supp. 1516, 1521-22
(D.N.J. 1985) (declining to abstain where teacher disciplinary proceeding was brought to
harass and retaliate against plaintiff for making political comments).
The District Court did not, as Dr. Getson suggests, improperly resolve any factual4
disputes to reach this conclusion, and instead found that Dr. Getson had not pled
sufficient facts to state a claim of bad faith so as to preclude application of Younger.
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administrative complaint was brought to retaliate against him or to discourage him from
exercising his constitutional rights. See Diamond “D” Constr. Corp. v. McGowan, 282
F.3d 191, 199 (2d Cir. 2002) (bad faith exception applicable only when plaintiff shows
“that the state proceeding was initiated with and is animated by a retaliatory, harassing, or
other illegitimate motive”).
Because it cannot be said that the administrative complaint was brought “without
hope” of success and because there is no other indication of bad faith, the District Court
correctly concluded that Dr. Getson did not allege facts sufficient to support his claim that
this exception to the Younger abstention doctrine was applicable.4
2. Extraordinary Circumstances
Dr. Getson also argues that the Board of Medical Examiners is biased against him,
constituting an “extraordinary circumstance” warranting a federal court’s intervention.
The Supreme Court has stated that “such circumstances 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.” Kugler v.

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As an example, the Supreme Court has indicated that a “flagrantly and patently”5
unconstitutional statute would qualify as an “extraordinary circumstance.” Kugler, 421
U.S. at 125 n.4 (quoting Younger v. Harris, 401 U.S. 37, 53-54 (1971)). No such
allegation is made here.
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Helfant, 421 U.S. 117, 125 (1975). The state agency or court must be “incapable of5
fairly and fully adjudicating the federal issues before it” for this exception to apply. Id. at
124.
In Kugler, the plaintiff (a municipal court judge) alleged that he had been coerced
by members of the Supreme Court of New Jersey to testify before a grand jury in
violation of his Fifth Amendment rights. The plaintiff sought to enjoin the resulting
criminal proceedings against him, arguing that the justices’ involvement constituted
“extraordinary circumstances” that compromised the fairness of the state court
proceedings. The Supreme Court disagreed, concluding that “the objectivity of the entire
New Jersey court system has [not] been irretrievably impaired.” 421 U.S. at 127.
Instead, the Supreme Court stressed as a remedy the possible disqualification of biased
judges, provided for by court rule. Id. at 127-28 (citing N.J. Ct. R. 1:12-1 to 1:12-3); see
also Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 822 (1986) (due process violation may
occur when judge has a “direct, personal, substantial, pecuniary interest” in the
proceedings) (internal quotations and citation omitted).
Dr. Getson has alleged only that Dr. Lomazow is biased against him, and that this
animus has tainted the entire Board of Medical Examiners. Dr. Lomazow recused from

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participating in Dr. Getson’s case, however, just days after his conversation with Dr.
Talone. The other members of the Board have represented that they did not talk to Dr.
Lomazow about Dr. Getson’s case, and Dr. Getson has not suggested to the contrary.
Although Dr. Getson argues that the phone call from the “lobbyist” to Dr. Talone
regarding the “prominent elected official” is further evidence of the Board’s bias, this call
related solely to Dr. Lomazow and not to the other Board members.
While we must accept Dr. Getson’s factual allegations as true, he must provide
more than “an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007)). Dr. Getson’s “naked assertion” of bias was clearly insufficient to
withstand the motion to dismiss. Id. (quoting Twombly, 550 U.S. at 557). He did not and
does not allege facts supporting his claim that he will not receive fair treatment before the
Board, particularly given the recusal of Dr. Lomazow. Cf. Gibson v. Berryhill, 411 U.S.
564, 578-79 (1973) (district court properly did not abstain where board members “were
incompetent by reason of bias to adjudicate the issues before it” because of personal
financial interests in the proceeding). There are simply no “extraordinary circumstances”
warranting federal court intervention into this pending state proceeding.
IV.
We will affirm the order of the District Court.

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