     Case: 13-50663      Document: 00512540301         Page: 1    Date Filed: 02/21/2014



           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-50663                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                         February 21, 2014
JOSE A. PEREZ; NANCY C. PEREZ,                                             Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiffs-Appellants,
v.

TEXAS MEDICAL BOARD; MARI ROBINSON,

                                                 Defendants-Appellees.



                   Appeal from the United States District Court
                        for the Western District of Texas
                           USDC No. 1:13-CV-00152-SS


Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
       Pro se appellants are Jose Perez, a Texas licensed physician assistant,
and Nancy Perez, his wife. Appellants seek to enjoin the Texas Medical Board
(TMB) from filing causes of action against them in response to a patient’s
complaint against Mr. Perez submitted to the Texas Physician Assistant Board
(PAB). The PAB investigated the complaint and filed a formal complaint
against Mr. Perez at the State Office of Administrative Hearings (SOAH). Mr.
Perez refused to cooperate in the investigation and he failed to attend an



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 13-50663
informal settlement conference. After the informal settlement conference, the
matter was referred to SOAH for a contested case proceeding. Mr. Perez failed
to appear at a hearing on the merits at SOAH and the administrative law judge
dismissed the proceeding from SOAH’s docket on a default basis. The file was
returned to the TMB for disposition but the PAB has not taken up Mr. Perez’s
matter and his disciplinary proceeding is still pending. Appellants brought
suit in district court and the district court dismissed the suit pursuant to the
Younger abstention doctrine. We AFFIRM.
                                       I.
      This court reviews de novo the grant of a Federal Rule of Civil Procedure
12(b)(1) motion to dismiss for lack of subject matter jurisdiction. Life Partners
Inc. v. United States, 650 F.3d 1026, 1029 (5th Cir. 2011). The party asserting
jurisdiction bears the burden of proof on a 12(b)(1) motion to dismiss. Randall
D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 762 (5th Cir. 2011). We take
as true all of the allegations of the complaint and the facts set out by the
plaintiff. Ass’n of Am. Physicians & Surgeons, Inc. v. Tex. Med. Bd., 627 F.3d
547, 553 (5th Cir. 2010). The dismissal will not be affirmed “unless it appears
certain that the plaintiff[s] cannot prove any set of facts in support of [their]
claim which would entitle [them] to relief.” Hobbs v. Hawkins, 968 F.2d 471,
475 (5th Cir. 1992) (alterations in original) (internal quotation marks omitted).
      TMB argues that the Younger abstention doctrine bars this suit, and we
agree. See Younger v. Harris, 401 U.S. 37 (1971). Younger abstention applies
when three criteria are met: “(1) the dispute should involve an ‘ongoing state
judicial proceeding;’ (2) the state must have an important interest in regulating
the subject matter of the claim; and (3) there should be an ‘adequate
opportunity in the state proceedings to raise constitutional challenges.’”
Wightman v. Tex. Supreme Court, 84 F.3d 188, 189 (5th Cir. 1996). Each of
these criteria is met in this case.
                                       2
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                                 No. 13-50663
      First, there is an ongoing state judicial proceeding. The matter was
dismissed by the SOAH administrative law judge pursuant to Texas
Administrative Code § 155.501(d) and Texas Government Code § 2001.056,
which allow for a dismissal of an administrative proceeding on a default basis.
The matter is then returned to the referring agency for informal disposition on
a default basis in accordance with Texas Government Code § 2001.056. The
PAB has not yet taken up Mr. Perez’s matter and his disciplinary proceeding
is still pending there. The Supreme Court has expanded the Younger doctrine
to encompass state administrative proceedings. See Middlesex County Ethics
Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982). Second, as the
district court noted, the State of Texas has a strong interest in protecting the
public through the regulation and oversight of those practicing medicine in the
state. See Tex. Occ. Code § 151.003 (“[T]he practice of medicine is a privilege
and not a natural right of individuals and as a matter of public policy it is
necessary to protect the public interest through enactment of this subtitle.”).
Third, Appellants can raise constitutional challenges in the state courts. Texas
law provides for judicial review of the administrative decision in the state
courts. Tex. Gov’t Code. § 200.171. The Younger abstention therefore applies.
      We AFFIRM the district court. Appellees’ Motion to Dismiss Appeal as
Frivolous is MOOT.




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