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            Stephen RINDLEY, D.D.S., Plaintiff-Appellant, v. Thomas
         GALLAGHER, et al., Defendants-Appellees, Marshall
Brothers,                            D.D.S., et al., Defendants

                                  No. 89-6186

           UNITED STATES COURT OF APPEALS FOR THE  ELEVENTH CIRCUIT


                    929 F.2d 1552; 1991 U.S. App. LEXIS 7561


                                 April 30, 1991

PRIOR HISTORY:   [**1]

Appeal from the United States District Court for the Southern
District of Florida. No. 88-761-CIV-SMA; Aronovitz, Judge.

DISPOSITION: Reversed And Remanded.

COUNSEL: Karen C. Amlong, Ft. Lauderdale, Florida.

   Betsy E. Gallagher, Gail Leverett (f/k/a Kniskern), Miami,
Florida.

   For Ferris, et al: J. Terrell Williams, Tallahassee, Florida.

   For Secy., GALLAGHER & LAMB: M. Stephen Smith III, Lee S.
Miller, Amy Uber, Miami, Florida.

JUDGES: Hatchett and Edmondson, Circuit Judges, and Robert F.
Peckham, * Senior District Judge.

   * Honorable Robert F. Peckham, Senior U.S. District Judge for
the Northern District of California, sitting by designation.

OPINIONBY: HATCHETT

OPINION:   [*1553]

   HATCHETT, Circuit Judge

   In this lawsuit filed by a dentist undergoing disciplinary
proceedings, we reverse the district court's dismissal of the
lawsuit through the application of doctrines of abstention. 719 F.
Supp. 1076 .

   FACTS AND PROCEDURAL HISTORY

   Stephen Rindley is an advertising dentist who alleges that non-advertising dentists, as well as non-dentists who are economically
dependent on non-advertising dentists, conspired with the Florida
Department of Professional Regulation (DPR) to implement a policyof selective enforcement of the disciplinary statutes regulating
the practice of dentistry against those dentists who engage in
commercial advertising.
                           PAGE   58               929 F.2d 1552,
*1553; 1991 U.S. App. LEXIS 7561, **1

   Rindley filed this lawsuit in the district court against present
and former members of the Florida Board of Dentistry (the board),
the Secretary of the DPR, two DPR attorneys, two dentists who had
worked as consultants  [**2]   for the DPR and the board, the East
Coast Dental Society (the society), one of its officers, and two of
its employees. According to Rindley, the DPR is more likely to
require field investigations of advertising dentists and desk
investigations of non-advertising dentists in matters involving
similar allegations of incompetence or misconduct. In addition,
according to Rindley, the DPR is more likely to recommend, and the
board through its "probable cause" panels is more likely to find,
that probable cause exists to believe a violation of the statutes
has occurred when reviewing an advertising dentist's conduct than
when reviewing a non-advertising dentist's similar conduct. Rindley
also alleges that the board and the DPR, through its disciplinary
procedure of issuing "letters of guidance" without providing for
notice and a hearing, have violated his due process rights.

   Rindley sought declaratory and injunctive relief, as well as
damages, pursuant to 42 U.S.C. @ 1983 for the alleged violation of
his rights guaranteed under the first, fifth, and fourteenth
amendments to the Constitution. Specifically, Rindley sought
injunctive relief to prevent selective enforcement of laws against
advertising  [**3]   dentists (Count I), damages for selective
enforcement of laws (Count II), damages for conspiracy to
selectively enforce the laws   [*1554]   (Count III), injunctive
relief to prevent the further use of letters of guidance pursuant
to Florida Statutes @ 455.225(3) (1983) (Count IV), damages for the
improper use of letters of guidance (Count V), and declaratory and
injunctive relief against the appellees' interpretation of Florida
Statutes @ 455.225(9) (1983) (Count VI). n1

- - - -  - -Footnotes- - - - - - - - - - - - - - - - - -

   n1 The 1989 amendment to section 455.225 renumbered former
subsections (3) through (11) as subsections (4) through (12).
Fla.Stat.Ann. @ 455.225 historical note (West Supp.1990).

- - - - - - - -  -End Footnotes- - - - - - - - - - - - - - - - -
   All appellees filed motions to dismiss the complaint. The
district court granted the motions to dismiss Rindley's complaint
based on the Pullman and the Burford abstention doctrines. Railroad
Comm'n v. Pullman Co.,  312 U.S. 496,  61 S. Ct. 643, 85 L. Ed. 971
(1941); Burford v. Sun Oil Co., 319 U.S. 315, 63 S. Ct. 1098, 87 L.
Ed. 1424 (1943).   [**4]   The court also stated that a prima facie
case for abstention under Younger v. Harris, 401 U.S. 37, 91 S. Ct.
746, 27 L. Ed. 2d 669 (1971), had been made, but that it did not
rely upon this ground for dismissal. The district court made noother determination of the merits of the case or of any other
ground for dismissal.

   CONTENTIONS

   Rindley contends that neither the Pullman, Burford, nor Younger
abstention doctrines apply to Counts I through V of his complaint.
n2

- - -Footnotes- - - - - - - - - - - - - - - - - -
   n2 Rindley concedes that Count VI of his amended complaint is
properly subject to Pullman abstention.
    PAGE   59               929 F.2d 1552, *1554; 1991 U.S. App.
LEXIS 7561, **4

 - - - -End Footnotes- - - - - - - - - - - - - - - - -
   The DPR (other appellees present similar contentions) contends
that the district court correctly applied Pullman and Burford
abstention, and that Rindley's action is also barred by the Younger
abstention doctrine.

   The society members contend that Rindley's section 1983 claim
against them should be dismissed because they did not act under
color of state law.

   The board members contend that the  [**5]   section 1983 claim
for monetary damages against them is barred by eleventh amendment
and quasi-judicial immunity.

   ISSUES

   The issues are: (1) whether the district court correctly
determined that the Pullman doctrine applies to this action; (2)
whether the district court correctly determined that the Burford
doctrine applies to this action; and (3) whether Rindley's action
is barred by the Younger abstention doctrine.

   DISCUSSION

   In the  Eleventh Circuit,  a district court's decision to
abstain will only be reversed upon a showing of abuse of
discretion. Casines v. Murchek, 766 F.2d 1494, 1502 ( 11th Cir.
1985) (district court's decision to refrain from Pullman abstention
is subject to abuse of discretion standard of review); Southern Ry.
Co. v. State Bd. of Equalization, 715 F.2d 522 ( 11th Cir. 1983)
(district court's decision to abstain under the Burford doctrine is
subject to abuse of discretion standard of review), cert. denied,
465 U.S. 1100, 104 S.Ct. 1593, 80 L.Ed.2d 125 (1984); High Ol'
Times, Inc. v. Busbee, 621 F.2d 135, 138 (5th Cir.1980) (Pullman
abstention  [**6]   by district court is subject to abuse of
discretion standard of review). n3

- - - -Footnotes- - - - - - - - - - - - - - - - - -
   n3 Decisions of the former Fifth Circuit Court of Appeals filed
before October 1, 1981, constitute binding precedent in the
Eleventh Circuit.  Bonner v. City of Prichard, 661 F.2d 1206, 1209
( 11th Cir. 1981).
 - - - -End Footnotes- - - - - - - - - - - - - - - - -

   I. Pullman Abstention

Under the Pullman abstention doctrine, "a federal district court is
vested with discretion to decline to exercise or to postpone the
exercise of its jurisdiction in deference to state court resolution
of underlying issues of state law." Harman v. Forssenius, 380 U.S.528, 534, 85 S. Ct. 1177, 1181, 14 L. Ed. 2d 50 (1965) (citing
Railroad Comm'n v. Pullman Co.,  312 U.S. 496,  61 S. Ct. 643, 85
L. Ed. 971 (1941)). Two criteria have been established for
application of the Pullman doctrine: (1) the case presents an
unsettled question of state law, and (2) the question of state law
 [*1555]   is dispositive of the case  [**7]   or would avoid, or
substantially modify, the constitutional question presented. Duke
v. James, 713 F.2d 1506, 1510 ( 11th Cir. 1983).

PAGE   60   929 F.2d 1552, *1555; 1991 U.S. App. LEXIS 7561, **7

If a case presents such an issue, it is incumbent on the court to
exercise discretion in deciding whether to abstain. Duke, 713 F.2d
at 1510. Because it is "severely circumscribed to constitutional
challenges posing 'special circumstances,' . . . [Pullman
abstention] is therefore the exception rather than the rule." High
Ol' Times, 621 F.2d at 139 (quoting Zwickler v. Koota, 389 U.S.
241, 248, 88 S. Ct. 391, 395, 19 L. Ed. 2d 444 (1967)).

   Section 455.225(4) provides in pertinent part:


   If the probable cause panel finds that probable cause exists, it
shall direct the [DPR] to send the licensee a letter of guidance or
to file a formal complaint against the licensee. . . . If directed
to do so, the [DPR] shall file a formal complaint against the
[subject] and prosecute that complaint pursuant to the provisions
of chapter 120.


   Fla.Stat.Ann. (West Supp.1990). Rindley argues that the state's
current use of this section violates his due process rights.

   A question  [**8]   of state law is "unsettled" if it is "fairly
subject to an avoiding construction." Duke, 713 F.2d at 1510. The
district court found that Rindley's claims directly presented
unsettled issues of state law. In reaching this conclusion, the
district court addressed its entire discussion of Pullman
abstention to the lack of judicial interpretation of section
455.225(4) and other sections relating to issuance of letters of
guidance, possible "avoiding constructions," and available state
court means to obtain a judicial interpretation of the section.

   In Counts I, II, and III of the amended complaint, the issuance
of letters of guidance are but two of ten categories of conduct
with regard to which Rindley alleges he and other advertising
dentists are treated differently than their non-advertising
colleagues. Moreover, in these counts, Rindley does not question
the constitutionality of Florida's statutes, but rather their
selective enforcement. Thus, the constitutional questions presented
in Counts I, II, and III would remain unanswered regardless of any
interpretation placed on the statutes by the Florida Supreme Court.

   In regard to Counts IV and V which seek declaratory  [**9]   andinjunctive relief concerning the state's alleged improper use of
letters of guidance, the district court determined that federal
constitutional questions concerning section 455.225(4) could be
avoided depending on state court construction of that section in
relation with (1) section 455.208, Florida Statutes (1988), and (2)
the Administrative Procedure Act, Florida Statutes, chapter 120
(1988).

   Section 455.208 allows the DPR and the board to advise
licensees, through the publication of a newsletter, of information
of interest to the industry. Fla.Stat.Ann. (West Supp.1990).
Although section 455.225(4) states that letters of guidance shall
be sent to the licensee, the DPR and the board published letters of
guidance to Rindley in such a newsletter. The district court
posited that the dissemination of letters of guidance through the
newsletter is not authorized by section 455.208, and that such a
conclusion could moot the federal constitutional questions because
Rindley's due process might not be violated if the letters of
guidance were not so publicized.
    PAGE   61               929 F.2d 1552, *1555; 1991 U.S. App.
LEXIS 7561, **9

   The district court's proposed interpretation of section 455.208
does not substantially avoid Rindley's due process claims. In
[**10]   Buxton v. City of Plant City, Florida, 871 F.2d 1037 (
11th Cir. 1989), we held that placing stigmatizing information into
the public record by including it in a public employee's personnel
file or in an internal affairs report constitutes sufficient
publication to implicate liberty interests requiring procedural due
process protection. Regardless, therefore, of whether publication
of the letters of guidance in a state newsletter is authorized by
section 455.208, because the probable cause finding makes the
letter part of the public record, the publication alleged in
Rindley's complaint raises a federal constitutional question to
which the   [*1556]   interpretation of section 455.208 is
immaterial. n4

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n4 The issuance of a letter of guidance becomes part of the
public record pursuant to section 455.225(9), which has at all
times material to this action provided that:


   the complaint and all information obtained pursuant to the
department's investigation shall be exempt from [public disclosure
under] s.119.07 until ten days after probable cause has been found
to exist by the probable cause panel or by the department, or until
the regulated professional or subject of the investigation waives
his privilege of confidentiality, whichever occurs first.

   Fla.Stat.Ann. (West 1981).

- - - -- -End Footnotes- - - - - - - - - - - - - - - - -[**11]

   The second avoiding construction advanced by the district court
involves the issue of whether a notice and hearing are required
before a letter of guidance is issued or publicized. The district
court suggested that although the language of section 455.225(4)
suggests that letters of guidance are not subject to the notice and
hearing due process safeguards found in chapter 120, a Florida
court might find that Rindley is entitled to notice and hearing
before the letters of guidance are issued because section 120.57
provides for notice and a hearing and applies "in all proceedings
in which the substantial interests of a party are determined by an
agency," and section 120.68 provides that a "party who is adversely
affected by final agency action is entitled to judicial review."
Fla.Stat. Ann. (West Supp.1990). According to the district court,
whether letters of guidance are matters of "substantial interest"
or "final actions" are questions fairly subject to interpretations
which could avoid federal constitutional analysis.
   Rindley argues that Florida law weighs against the conclusion
that these statutes are "fairly subject" to any such inter-pretation. In Northwest Florida Home Health Agency v. Merrill, 469
So. 2d 893 (Fla. 1st DCA 1985),   [**12] the court noted that the
right to notice and hearing under chapter 120 arises only after the
filing of a formal complaint. Model Rule 28-5.110, Florida
Administrative Code (1990). Under the plain language of section
455.225(4), letters of guidance are issued at a point prior to, and
as an alternative to, the filing of administrative complaints.

PAGE   62  929 F.2d 1552, *1556; 1991 U.S. App. LEXIS 7561, **12

   We agree with Rindley that Pullman abstention is improper
because no unsettled question of state law exists which, if
decided, would substantially avoid the federal constitutional
questions involved in Rindley's claims.

   II. Burford Abstention

Burford abstention is appropriate when "exercise of federal review
of the question in a case and in similar cases would be disruptive
of state efforts to establish a coherent policy with respect to a
matter of substantial public concern." Colorado River Water
Conservation Dist. v. United States, 424 U.S. 800, 814, 96 S. Ct.
1236, 1245, 47 L. Ed. 2d 483 (1976) (citing Burford, 319 U.S. 315,
63 S.Ct. 1098) , 87 L. Ed. 1424 .

   Applying this doctrine, the district court found that Florida
has a significant interest  [**13]   in regulating the competency
of dentists practicing within the state. See Oshins v. York, 150
Fla. 690, 8 So. 2d 670, 672 (1942); Allen v. Louisiana State Bd. of
Dentistry, 835 F.2d 100, 103 (5th Cir.1988). The district court
then concluded that review by federal courts in this area would not
only have a disruptive effect on the state's regulation of
dentistry, but also on all other professions and occupations
falling under the ambit of Florida Statutes Title XXXII, Regulation
of Professions and Occupations, chapters 454-93.

   Rindley acknowledges that he is asking the federal courts to
construe section 455.225(4). Nevertheless, even if the exercise of
jurisdiction results in a declaration that letters of guidance
cannot be issued without notice and hearing, "there is, of course,
no doctrine requiring abstention merely because resolution of a
federal question may result in the overturning of a state policy."
Zablocki v. Redhail, 434 U.S. 374, 380, n. 5, 98 S. Ct. 673, 678,
n. 5, 54 L. Ed. 2d 618 (1978).

   In BT Investment Managers v. Lewis, 559 F.2d 950 (5th Cir.1977),
the court [**14]   considered a challenge to a Florida statute that
prohibited certain persons from operating an "investment advisory"
service in   [*1557]   Florida. Its analysis in declining to
exercise Burford abstention is relevant to the case at bar:

   Although the challenged statutes are part of a large and perhaps
complex regulatory scheme -- i.e., the Florida Banking Code -- . .
. appellants focus their attack upon a single statute [footnote
omitted] whose possible invalidation could scarcely be expected to
disrupt Florida's entire system of banking regulation. In this
context, we discern no overriding state interest, special state
competence, or threat to Florida's administration of its own
affairs that would warrant denying appellants access to their
chosen federal forum and relegating their various federal claims to
the courts of Florida.

   BT Inv. Managers, 559 F.2d at 955.

   In response, the appellees contend that the complexity of the
regulatory scheme established in this case distinguishes this case
from the holding of BT Inv. Managers. Although chapter 455 does
affect more than one industry, a ruling declaring the Florida
letter of guidance procedure unconstitutional will be

PAGE   63     929 F.2d 1552, *1557; 1991 U.S. App. LEXIS 7561, **14

[**15]   no more disruptive than in any case where a federal
district court declares a state statute unconstitutional. The
letter of guidance procedure is simply one option that supplements
the longer disciplinary procedure of filing a formal complaint and
prosecution of that complaint pursuant to the provisions of chapter
120 that Rindley concedes provides due process of law. The state of
Florida's ability to regulate professionals will not be seriously
affected if the letter of guidance procedure is declared
unconstitutional. n5 Nor do the appellees explain in what manner
the regulatory system would be disrupted should it be determined
that notice and hearing are constitutionally required before the
issuance of letters of guidance.

- - - -Footnotes- - - - - - - - - - - - - - - - - -
   n5 The issuance of letters of guidance was not even statutorily
authorized prior to 1983, see 1983 Fla.Laws c. 83-329, and it is
difficult to imagine how federal court determination that use of
this additional disciplinary measure is constitutionally
impermissible and would fatally disrupt the regulation of Florida's
professions and occupations.

-- - -End Footnotes- - - - - - - - - - - - - - - - -[**16]

   No overriding state interests or special competence or threat to
administrative integrity is implicated by Rindley's requested
invalidation or modification of section 445.225(4) that warrants
denying him access to federal court.


   III. Younger Abstention

Because the district court stated that the appellees had shown a
prima facie basis for the application of Younger abstention to thiscase, we will briefly address the issue. In Younger v. Harris, 401
U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), the Supreme Court
held that federal courts should abstain from enjoining ongoing
criminal proceedings absent a showing of bad faith prosecution,
harassment, or extraordinary instances of irreparable harm. The
Younger doctrine, based upon the principle of comity, has
subsequently been extended to civil proceedings, but "has been
limited to those civil actions in aid of criminal jurisdiction or
involving enforcement-type proceedings in which vital interests of
the state qua state are involved." Cate v. Oldham, 707 F.2d 1176,
1183 ( 11th Cir. 1983). See, e.g., Pennzoil Co. v. Texaco, 481 U.S.
1, 107 S. Ct. 1519, 95 L. Ed. 2d 1 (1987)   [**17]   (state
interest in execution of state judgments); Middlesex County Ethics
Comm'n v. Garden State Bar Ass'n, 457 U.S. 423, 102 S. Ct. 2515, 73
L. Ed. 2d 116 (1982) (important state interest in maintaining and
assuring the professional conduct of attorneys it licenses).

   In Middlesex County, the Supreme Court approved abstention when,
instead of responding to the formal complaint brought against him
by a state disciplinary committee, a lawyer sought an injunction in
federal court against prosecution of those charges. The Court
considered whether the plaintiff had an adequate opportunity in the
state proceedings to raise his constitutional challenges. 457 U.S.
at 432, 102 S.Ct. at 2521. The Court concluded that the attorney
had "abundant opportunity to present his constitutional challenges
in   [*1558] state disciplinary proceedings." 457 U.S. at 436, 102
S.Ct. at 2523.
    PAGE   64              929 F.2d 1552, *1558; 1991 U.S. App.
LEXIS 7561, **17

   The appellees strongly contend that the disciplinary system
challenged by Rindley in this case warrants Younger abstention like
the disciplinary proceedings in Middlesex County. Rindley argues
that  [**18]   he does not have an adequate opportunity to present
his constitutional claims to the state administrative or judicial
systems. According to Rindley, the DPR has repeatedly investigated
him, sent him letters of guidance, charged him, and sometimes
litigated complaints, but has not offered him an administrative
hearing from which judicial review and the presentation of
constitutional claims is possible. Because the district court did
not rely on Younger abstention, it did not make findings, did not
reach conclusions, or otherwise treat this issue in such a manner
as to render it fit for appellate review. On remand, Younger
abstention may be further explored.

   CONCLUSION

   Because we determine that the district court should not have
dismissed Rindley's claims based upon the theories of abstention
relied upon, we reverse and remand for proceedings consistent with
this opinion. n6
- - - - - --Footnotes- - - - - - - - - - - - - - - - - -
   n6 In light of our conclusion that the district court should not
have relied upon Pullman and Burford abstention doctrines as a
basis for dismissing Rindley's action, and the fact that the
district court did not address any other ground for dismissal, we
do not decide whether Rindley's claims against the society or his
claims for monetary damages against the board should be dismissed.

- - - - - --End Footnotes- - - - - - - - - - - - - - - - -[**19]

   REVERSED AND REMANDED.