                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 15-1420


JOSEPH JEMSEK, M.D.,

                 Plaintiff – Appellant,

           v.

JANELLE R. RHYNE, M.D.; ROBERT MOFFATT, M.D.; H. ARTHUR
MCCULLOCH, M.D.; ALOISIUS P. WALSH; E. K. FRETWEEL, M.D.;
MICHAEL E. NORINS, M.D.; GEORGE L. SAUNDERS, M.D.;
SARVARESH SATHIRAJU, M.D.; DICKY S. WALIA; RALPH LOOMIS,
M.D.; DON JABLONSKI, M.D.; PAUL S. CAMNITZ, MD, M.D.;
CHERYL WALKER-MCGILL, M.D.; PASCAL UDEKWU, M.D.; HELEN
DIANE MEELHEIM, FNP-BC; SUBHASH GUMBER, M.D., Ph.D.;
TIMOTHY E. LIETZ, M.D.; DEBRE A. BOLICK, M.D.; ELANOR E.
GREENE, M.D.; A. WAYNE HOLLOMAN; THELMA C. LENNON; MICHAEL
J. ARNOLD, M.B.A.; BARBARA E. WALKER, D.O.,

                 Defendants – Appellees,

           and

STATE OF NORTH CAROLINA; NORTH CAROLINA MEDICAL BOARD,

                 Defendants.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:14-cv-00504-B0)


Argued:   September 22, 2016                 Decided:   October 13, 2016


Before WILKINSON, DUNCAN, and WYNN, Circuit Judges.
Affirmed by unpublished opinion.        Judge Duncan wrote   the
opinion, in which Judge Wilkinson and Judge Wynn joined.


ARGUED: Jacques G. Simon, JACQUES G. SIMON ATTORNEY AT LAW,
Merrick, New York, for Appellant. Stephen Daniel Feldman, ELLIS
& WINTERS LLP, Raleigh, North Carolina, for Appellees.        ON
BRIEF: Matthew W. Sawchak, Steven A. Scoggan, ELLIS & WINTERS
LLP, Raleigh, North Carolina, for Appellees Moffatt, McCulloch,
Walsh, Fretwell, Norins, Saunders, Sathiraju, Loomis, Jablonski,
Camnitz, Walker-McGill, Udekwu, Meelheim, Gumber, Lietz, Bolick,
Greene, Walker, Holloman, Lennon, and Arnold.          Andrew H.
Erteschik, POYNER SPRUILL LLP, Raleigh, North Carolina, for
Appellee Rhyne.    Ronald H. Garber, BOXLEY, BOLTON, GARBER &
HAYWOOD, L.L.P., Raleigh, North Carolina, for Appellee Walia.


Unpublished opinions are not binding precedent in this circuit.




                                2
DUNCAN, Circuit Judge:

     Dr.     Joseph       Jemsek    filed        suit    seeking        declaratory        and

injunctive relief against the State of North Carolina, the North

Carolina    Medical       Board    (“NCMB”       or     “Board”),       and     former     and

current    Board    members,       alleging       that       a   conflict     of    interest

infected Board disciplinary proceedings that sanctioned Jemsek,

thereby violating his Fourteenth Amendment right to procedural

due process.        The district court dismissed Jemsek’s complaint

because he lacked standing to sue the former Board members and

Defendants were otherwise immune from suit under the Eleventh

Amendment.        Jemsek     appealed    the       district         court’s     dismissal.

Finding no error, we affirm.



                                            I.

                                            A.

     Jemsek    is     a    licensed   physician          who     previously        practiced

medicine in North Carolina. 1           Since opening his practice in 1979,

Jemsek    focused     on    infectious       disease.              In   2001,      he    began

treating individuals with chronic Lyme disease by prescribing

antibiotics long-term, although this course of treatment did not

comport    with    the     model   prescribed           by   the    Infectious          Disease

Society of America.


     1   We draw all facts from Jemsek’s complaint.


                                            3
       Jemsek submitted claims to Blue Cross Blue Shield of North

Carolina (“BCBSNC”) on behalf of insured patients for care that

included       long-term        antibiotic            treatment.         Although        BCBSNC

initially accepted Jemsek’s claims, in 2003, it began to examine

more    closely       those     claims      that       included    long-term       antibiotic

use.    In 2005, BCBSNC stopped accepting such claims altogether.

In    2005,     BCBSNC       insureds       treated       by     Dr. Jemsek       also   filed

several complaints with the NCMB concerning his use of long-term

antibiotic treatments.

       The Board investigated Jemsek, formally charged him with

professional         misconduct,       conducted          disciplinary      hearings,      and

ultimately sanctioned him.                  In an order dated August 21, 2006

(“2006 order”), the Board suspended Jemsek’s medical license for

one    year    but     stayed    the     suspension        provided      that     (1)    Jemsek

develop an informed consent form approved by the Board, (2) if

Jemsek’s diagnosis of patients was not supported by Center for

Disease Control criteria, then those patients must receive a

consultation or second opinion before Jemsek could treat them,

(3)     Jemsek’s        treatment        of       Lyme         disease     with     long-term

antibiotics       be    included       in     a       formal    research    protocol      with

institutional           review         board          supervision,         and     (4)     any

complications of treatment be addressed immediately.

       In     2008,    the    Board      launched        another     investigation        into

Jemsek’s treatment of patients with chronic Lyme disease through

                                                  4
the use of hyperbaric chambers.                During this investigation, NCMB

investigators       informed     Jemsek   that,         if    he   allowed     his   North

Carolina medical license to become inactive, the Board would end

the investigation.          Jemsek agreed, and the investigation ended

with the Board issuing a public letter of concern dated June 23,

2008 (“2008 letter”).            Dr. Janelle A. Rhyne, then-president of

the Board, signed the 2008 letter.

                                          B.

       In 2012, Jemsek began a campaign of unsuccessful litigation

before the Board and in state court seeking a declaration that

the   2006   order    was     null,    void,    and      illegal. 2        Jemsek    first

petitioned the Board to revoke the 2006 order on April 27, 2012.

After the Board denied his request for a declaratory ruling,

Jemsek     sought    judicial    review    of      the       Board’s   final    order   in

North Carolina state court pursuant to the state’s statutory-

review     scheme.      The    North    Carolina         Superior      Court   dismissed

Jemsek’s     petition     with   prejudice         by    order     dated    January     16,

2013.      The North Carolina Court of Appeals affirmed on May 20,

2014.; In re Jemsek, 234 N.C. App. 115, 761 S.E.2d 755 (2014).

On    June   4,   2014,   Jemsek      filed    a    petition       for     discretionary

review with the Supreme Court of North Carolina.

       2
       Although Jemsek mentioned due process violations during
the state litigation, he did not base his claims on the
allegations presented to us.     It does not appear that Jemsek
challenged the 2008 letter in the state litigation.


                                          5
        During June of 2014, while his petition for discretionary

review was pending, Jemsek learned that Rhyne may have had a

conflict of interest when she participated in the disciplinary

process that led up to the 2006 order and the 2008 letter.

Rhyne    was,   at       the   same    time,       a   paid    consultant      to    BCBSNC.

Jemsek did not bring this fact to the attention of the Supreme

Court of North Carolina through a procedural mechanism available

to him.

                                             C.

       With his petition for discretionary review still pending in

state court, on September 9, 2014, Jemsek filed the instant suit

in federal district court against the State of North Carolina,

the    Board,      and    former      and   current       Board      members    in     their

official and individual capacities (collectively, “Defendants”).

The    complaint     alleged       that     bias       infected     the   state      medical

license disciplinary proceedings in violation of his due process

right    to   an    impartial         tribunal.         Jemsek      sought     declaratory

relief under 28 U.S.C. § 2201 that the 2006 order and 2008

letter were unconstitutional and an injunction under 42 U.S.C. §

1983     rescinding       them.        In    October          and   November    of     2014,

Defendants moved to dismiss Jemsek’s federal complaint.

       On December 18, 2014, the Supreme Court of North Carolina

denied Jemsek’s petition for discretionary review, thus ending



                                               6
the state court litigation.                    In re Jemsek, 367 N.C. 789, 766

S.E.2d 623 (2014).

        Subsequently, on March 20, 2015, the district court granted

the Defendants’ motions to dismiss in the instant suit.                                      The

district       court     found      that    Jemsek    lacked    standing       to     sue    the

former       Board      members       because       they    could      not    redress        his

injuries; they had no authority to comply with an injunction to

rescind a Board order and a declaratory judgment would have no

legal effect as to these individuals.                         The district court also

found    that      the       Eleventh      Amendment       otherwise    barred      Jemsek’s

claims because Jemsek alleged past violations of his due process

rights       and   did       not    seek    prospective      relief.         Jemsek    timely

appealed on April 16, 2015.

                                               D.

        Jemsek’s arguments have narrowed on appeal.                             Jemsek now

concedes that the Eleventh Amendment bars his claims against the

State of North Carolina and the NCMB, and he has abandoned those

claims.       Appellant’s Br. at 9; ECF Nos. 22, 25.

        It    appears        that    Jemsek     has    also    abandoned       his     claims

against current and former Board members in their individual

capacities.           He clarifies in his opening brief that he is only

suing        former     Board       members     in    their     official       capacities.

Appellant’s Br. at 44–45.                   As for current Board members, Jemsek

only states           that    he    seeks    injunctive      relief     against       them    in

                                                7
their    official     capacities.       Id.       at 46.         It    could    not    be

otherwise.     Any     effort   to    seek    declaratory         relief       from   the

current Board members in their individual capacities would fail

to state a claim because such a declaration would have no legal

effect   on   those    individuals.          We    therefore          agree    with   the

district court’s conclusion that Jemsek withdrew any individual

capacity claims, and proceed to address his arguments involving

current and former Board members in their official capacities.



                                       II.

     The    issues    of   standing   and     Eleventh      Amendment          immunity,

including the Ex parte Young exception, raise questions of law

that we review de novo.         See Cooksey v. Futrell, 721 F.3d 226,

234 (4th Cir. 2013) (lack of standing); Hutto v. S.C. Ret. Sys.,

773 F.3d 536, 542 (4th Cir. 2014) (Eleventh Amendment immunity);

CSX Transp., Inc. v. Bd. of Pub. Works of State of W. Va.,

138 F.3d 537, 541 (4th Cir. 1998) (Ex parte Young exception). 3

                                       A.

     As we explain below, we conclude that the district court

correctly     dismissed      Jemsek’s        claims        for        injunctive      and


     3 Defendants argued below that the district court should
abstain under Younger v. Harris, 401 U.S. 37 (1971).          The
district court did not address this argument. Because we affirm
on the alternative, dispositive grounds of Article III standing
and Eleventh Amendment immunity, we need not address this issue.


                                        8
declaratory relief against the former Board members for lack of

standing.

       For     Article    III   standing,       “[t]he    party    invoking     federal

jurisdiction bears the burden of establishing” (1) injury in

fact, (2) causation, and (3) redressability.                      Lujan v. Defenders

of Wildlife, 504 U.S. 555, 561 (1992).                   For an injury to satisfy

the redressability prong, “it must be ‘likely,’ as opposed to

merely ‘speculative,’ that the injury will be ‘redressed by a

favorable decision.’”             Id. (quoting Simon v. Eastern Ky. Welfare

Rights Org., 426 U.S. 26, 38 (1976)).                     We have held that “[b]y

itself,      a   declaratory       judgment      cannot    be     the   redress     that

satisfies the third standing prong.                      Rather, plaintiffs must

identify some further concrete relief that will likely result

from     the     declaratory       judgment.”           Comite    de    Apoyo   a   los

Trabajadores Agricolas (CATA) v. U.S. Dep’t of Labor, 995 F.2d

510, 513 (4th Cir. 1993).

       Here, whatever authority the former Board members had at

the time of the 2006 order and the 2008 letter, they have none

now.      Jemsek     acknowledges        that    injunctive       relief   cannot     be

enforced       against    the   former    Board    members.         Appellant’s      Br.

at 38,    45–46.         Having    identified      no    other    relief   besides     a

declaratory judgment that the former Board members can provide,

Jemsek thus effectively concedes that he lacks standing to sue

them.

                                           9
                                           B.

      The district court also correctly concluded that Jemsek’s

claims do not fit within the Ex parte Young exception to the

Eleventh Amendment.

      The   Eleventh     Amendment      bars      suits    in    federal    court    by

citizens against unconsenting states and state agencies. 4                          See

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100

(1984).     Eleventh Amendment immunity extends to state officers

sued in their official capacities.                 See id. at 101–02.             “This

jurisdictional     bar      applies     regardless       of     the   nature   of   the

relief sought.”       Id. at 100.

      The   doctrine     of    Ex   parte       Young,    209    U.S.    123   (1908),

provides a “critical exception” to Eleventh Amendment immunity:

“[F]ederal courts may exercise jurisdiction over claims against

state     officials    by     persons      at    risk     of    or    suffering     from

violations by those officials of federally protected rights, if

(1) the violation for which relief is sought is an ongoing one,

and   (2)   the   relief    sought    is    only    prospective.”        Republic    of


      4The Eleventh Amendment provides: “The Judicial power of
the United States shall not be construed to extend to any suit
in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.” U.S. Const. amend. XI. Despite
these express terms, the Supreme Court has interpreted this
amendment also to preclude citizens from bringing suits in
federal court against their own states.     Hans v. Louisiana,
134 U.S. 1, 13 (1890).


                                           10
Paraguay v. Allen, 134 F.3d 622, 627 (4th Cir. 1998).                                        The

theory behind this exception is that a state cannot authorize

its   officers       to    violate     federal       law,   so    those       officers       are

stripped       of    sovereign         immunity:       thus,      “a        federal     court,

consistent       with      the    Eleventh       Amendment,           may     enjoin      state

officials to conform their future conduct to the requirements of

federal law.”         Id. (quoting Quern v. Jordan, 440 U.S. 332, 337

(1979)).       “In determining whether the doctrine of Ex parte Young

avoids an Eleventh Amendment bar to suit, a court need only

conduct a ‘straightforward inquiry into whether [the] complaint

alleges an ongoing violation of federal law and seeks relief

properly characterized as prospective.’”                         Verizon Md., Inc. v.

Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002) (quoting

Idaho    v.    Coeur      d’Alene      Tribe    of    Idaho,      521       U.S.   261,       296

(1997)).        “[T]he       exception     is    narrow:         It    applies        only    to

prospective relief, [and it] does not permit judgments against

state officers declaring that they violated federal law in the

past . . . .”             P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy,

Inc.,    506     U.S.      139,    146    (1993).           “[C]onjecture          regarding

discrete future events” does not suffice to create an ongoing

violation.          DeBauche      v.   Trani,    191    F.3d     499,        505   (4th      Cir.

1999).

      Jemsek argues that because the 2006 order and 2008 letter

remain on the record, there is an ongoing violation such that a

                                            11
declaratory judgment voiding those documents, and an injunction

rescinding      them,       would       qualify         as    prospective         relief.      This

contention fails under our established precedent.

      In Paraguay, this court held that the Eleventh Amendment

barred     a    claim       based        on    a    treaty        violation         because       the

plaintiff,          the     Republic          of    Paraguay,       sought,          through       an

injunction and declaratory judgment, “the voiding of a final

state    conviction             and     sentence”        for     one        of    its     citizens.

134 F.3d       at    628.        Paraguay          complained      that          state    officials

violated federal law by failing to inform a Paraguayan citizen

convicted of a capital offense of his consular rights under a

treaty    and       to    notify      Paraguayan             officials      of     that    person’s

arrest, conviction, and sentence.                             We found that even though

Paraguay       couched          its     request         for     relief       in     terms    of     a

declaratory judgment and injunction, this “d[id] not alter the

inescapable fact that its effect would be to undo accomplished

state action.”            Id.    The same is true here.

      Jemsek         asserts          that         the        continued          existence        and

“publication” of the 2006 order and 2008 letter amount to an

ongoing constitutional violation.                            See Appellant’s Br. at 23,

25.     But the 2006 order would only have suspended his license

for one year, even if the Board had not immediately stayed it.

Meanwhile, the 2008 letter was a one-time reprimand, and Jemsek

voluntarily         allowed       his    medical         license       to    become       inactive.

                                                   12
That these disciplinary actions may have continuing consequences

(although, as we note below, Jemsek fails to concretely identify

them)    is   unfortunate    from    his     perspective.         But,   like    the

conviction at issue in Paraguay, even though the consequences of

any past violation may persist, invoking those effects does not

transform past state action into an ongoing violation.                      Rather,

it is an attempt “to avoid the obvious fact that the actual

violation     alleged   is    a      past    event        that   is   not    itself

continuing.”      134 F.3d at 628.

     Regardless of whether the allegations are true, the Board

is not continuing to violate Jemsek’s rights.                     Jemsek admitted

at oral argument he has not sought reinstatement of his North

Carolina medical license as the Board’s rules allow.                        21 N.C.

Admin. Code 32B.1350.        Jemsek has not plausibly alleged that the

Board is “continuing to prevent [him], either by action or non-

action,   from”    seeking   to     resume   his     medical     practice   in   the

state.    Paraguay, 134 F.3d at 628.                To the extent that Jemsek

suggests that the Board may subject him to discipline if he

returns to the state, see Appellant’s Br. at 4, 37, “[m]ere

conjecture is insufficient to transform a one-time event into a

continuing     governmental       practice     or    an     ongoing   violation.”

DeBauche, 191 F.3d at 505.            The disciplinary actions were one-




                                       13
time events, and the alleged due process violations occurred

“entirely in the past.”      Id. 5

     The   Supreme   Court   has     acknowledged   that     “the   difference

between the type of relief barred by the Eleventh Amendment and

that permitted under Ex parte Young will not in many instances

be that between day and night.”              Edelman v. Jordan, 415 U.S.

651, 667 (1974).     But a “straightforward inquiry” reveals that

Jemsek’s claims are purely historical, not ongoing violations.

Verizon Md., 535 U.S. at 645.              Accordingly, we hold that the

Eleventh Amendment bars his claims.

     Finally,   we   note    that     this    is   not   a   case   in   which

allegations of constitutional violations might escape judicial

review entirely.      Jemsek claims he discovered Rhyne’s alleged

     5  Jemsek’s case differs from one in which this court has
found that termination of an employee counts as an “ongoing
violation” for Ex parte Young purposes.     In Coakley v. Welch,
877 F.2d 304 (4th Cir. 1989), the plaintiff sought the
injunctive remedy of reinstatement. In granting the relief, we
reasoned that the alleged official conduct, “while no longer
giving [the plaintiff] daily attention, continues to harm him by
preventing him from obtaining the benefits of [state agency]
employment.”    Id. at 307.   Jemsek alleges no similar, current
impact.    He seeks an injunction rescinding past state action--
the 2006 order and the 2008 letter--that does not circumscribe
his current conduct.    The NCMB did not terminate his license;
Jemsek allowed his North Carolina medical license to become
inactive before the NCMB issued the 2008 letter.        The NCMB
merely conducted investigations that led to a suspended
disciplinary order and a one-time letter of reprimand. Although
Jemsek characterizes the documents as “license disciplinary
restrictions,” Appellant’s Br. at 25, they did not revoke his
license, nor do they prohibit him from seeking to resume his
medical practice in North Carolina.


                                      14
conflict      of    interest          in    June    of     2014.      At   that     time,         his

petition      for       discretionary          review      with    the    Supreme       Court      of

North Carolina was still pending.                         Jemsek could have raised his

current       claims      in     the       state        court    litigation       pursuant        to

Rule 60(b)(6) of the North Carolina Rules of Civil Procedure.

N.C. Gen. Stat. § 1A–1, Rule 60(b).                              North Carolina allows a

state trial court to rule on a Rule 60(b) motion while an appeal

is pending and, if it is denied, allows consideration of that

claim on appeal as well.                       Hall v. Cohen, 628 S.E.2d 469, 471

(N.C. Ct. App. 2006).                      This court has recognized that North

Carolina Rule of Civil Procedure 60(b), which is substantially

similar to the federal rule, may provide an adequate remedy for

redressing constitutional violations.                            See Leonard v. Hammond,

804   F.2d      838,       840       (4th      Cir.      1986)     (finding      that        habeas

petitioner could have presented federal due process claim and

sought relief in state court pursuant to Rule 60(b) and thus

failed to exhaust state remedies).

      Jemsek        had     an        opportunity          to     raise    his     claims          of

unconstitutional           bias       in       state     court.       He    may     apply         for

reinstatement with the Board.                      And if unsuccessful, he may seek

redress of any unfavorable action in state court.                                 “Under [our]

system of dual sovereignty, we have consistently held that state

courts    .    .    .    are     .    .    .   presumptively        competent       .    .    .    to

adjudicate         claims”       of       federal       right.       Tafflin       v.    Levitt,

                                                   15
493 U.S. 455, 458 (1990).   The federal courts are not the proper

forum for the claims Jemsek presents.



                               III.

     For the foregoing reasons, the judgment of the district

court is

                                                        AFFIRMED.




                                16
