United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
MICHAEL W. MOSMAN CHIEF UNITED STATES DISTRICT JUDGE.
matter comes before me on a Motion for Summary Judgment 
filed by the Oregon Board of Optometry ("the
Board"), several Board members, and the executive
director of the Board (together the "OBO
Defendants"). No. party requested oral argument. For the
reasons below, I GRANT in part the OBO Defendants' Motion
for Summary Judgment, and, with only state law claims
remaining, REMAND this case to Multnomah County Circuit
Undisputed factual background
Events of Fall 2015-March 2016
plaintiff Dr. David Biggar has been an optometrist since
2006. Abrams Decl.  Ex. A (hereinafter "Biggar
Depo.") at 9-10. In 2012, he opened Eyes of Oregon LLC,
with an office in Lake Oswego and an office in Tillamook.
Biggar Depo. at 9-10. In 2015, Dr. Biggar and his wife
divorced, and she retained custody of their children. Biggar
Depo. at 73. In the months after the divorce, Dr. Biggar
cried in front of patients and physically collapsed at the
office. Biggar Depo., Ex. 110. Dr. Biggar stopped practicing
optometry temporarily for about three months in Fall 2015 and
checked himself into a mental health facility for five days
in November 2015. Biggar Depo. at 73.
Joan Miller, an optometrist, former friend of Dr. Biggar, and
previous defendant in this lawsuit, became concerned in early
2016 about Dr. Biggar's conduct. From January to March
2016, Dr. Biggar told Dr. Miller he wanted to have his organs
harvested and thereby commit suicide, sent threatening emails
to a prospective buyer of his clinic, Dr. Kim Clark, and
failed to complete treatment records. Biggar Depo. at 72-73;
id, Ex. 107. In light of this conduct, Dr. Miller
reported Dr. Biggar in an email to the Board on March 23,
Biggar's colleague, Dr. Scott Iburg, also reported Dr.
Biggar to the Board on March 28, 2016, detailing Dr.
Biggar's suicidal thoughts, his threats to hit or kill
Dr. Clark, an incident in which Dr. Biggar screamed and swore
at an employee while a patient was in the office, and
harassing emails Dr. Biggar sent after Dr. Iburg resigned.
Biggar Depo., Ex. 110. Dr. Iburg forwarded the Board an email
on March 24 in which Dr. Biggar stated, "Alot [sic] of
guys would have picked up a machine gun and gone dancing at
the mall by now." Biggar Depo., Ex. 109. Dr. Iburg
supplemented his report on March 29, 2016, to express his
concerns that Dr. Biggar was not properly completing glaucoma
charts. Biggar Depo., Ex. 111.
March 2016 Board Actions
March 30, 2016, the Board met at a specially called meeting
to discuss the allegations against Dr. Biggar. Sneed Decl.
 ¶ 2. For this meeting, the Board gave notice to the
general public and specific notice to a list of people who
previously requested notice of specially called meetings.
Sneed Decl.  ¶ 3. The Board directed its Executive
Director, Defendant Shelley Sneed, to communicate with Dr.
Biggar to obtain further information, but did not make any
final decisions at the time. Sneed Decl.  ¶ 2.
Sneed then wrote two letters to Dr. Biggar on March 31, 2016.
The first letter (Letter A) stated that because of
"reports of inability to practice and making threats of
harm to yourself and others, the Oregon Board of Optometry
has opened an investigation into your fitness to
practice." Biggar Depo., Ex. 112. Letter A also gave Dr.
Biggar 48 hours to sign an Interim Consent Order by which he
would have to agree to "stop practicing optometry until
[his] mental health [was] assessed, a treatment plan [was]
written by a professional, and [he] show[ed] a willingness
and commitment to follow the treatment plan." Biggar
Depo., Ex. 112. Otherwise, Letter A warned, the Board would
undertake an emergency suspension of his Oregon optometry
license. Biggar Depo., Ex. 112.
second letter (Letter B) did not mention the Interim Consent
Order or an emergency suspension. Biggar Depo., Ex. 113.
Letter B requested Dr. Biggar send information about certain
glaucoma records within 21 days of the letter. Biggar Depo.,
Ex. 113. Letter B also stated that Dr. Biggar would not hear
from the Board right away, as the next Board meeting was not
until May 6. Biggar Depo., Ex. 113.
Biggar declined to sign the Interim Consent Order included in
Letter A, but did meet with Dr. Les Goldmann, a clinical
psychologist, to have his mental health assessed. After a
three-hour evaluation on April 1, Dr. Goldmann issued a
report on April 4, stating that it was his opinion,
"based upon the seriousness of the complaints, Dr.
Biggar's inconsistent reporting as well as his lack of
insight," that Dr. Biggar was not fit to practice
optometry, at least in the "very short term."
Biggar Depo., Ex. 114 at 7.
April 2016 Emergency Orders
next day, the Board issued an Order of Emergency Suspension
(Emergency Order), detailing the allegations against Dr.
Biggar and prohibiting him from practicing optometry until
further notice from the Board. Biggar Depo., Ex. 115. Some of
these specific allegations included Dr. Biggar's use of
profanity in the office, his collapse in September 2015, and
his failure to properly complete glaucoma charts. Biggar
Depo., Ex. 118.
Emergency Order stated that Dr. Biggar had a right to demand
a hearing in front of an administrative law judge:
Licensee has a right to demand that a hearing be held as soon
as practicable to contest the emergency suspension order.
Such a request must be made in writing and must be received
in the Board's office no more than 90 days after the
effective date of this order. If not so received,
Licensee's right to a hearing under ORS chapter 183 will
be waived. . . . Licensee may mail a request for hearing to
Oregon Board of Optometry, 1500 Liberty St SE, Suite 210,
Salem, OR 97302 or fax a request to 503.399.0705.
Depo., Ex. 115 at 4-5. The Emergency Order also warned Dr.
Biggar: "[i]f you request a hearing, but later withdraw
your request for hearing, fail to appear at the hearing, or
notify the Board or the administrative law judge that you do
not intend to appear at the hearing, you will have waived
your right to a hearing." Biggar Depo., Ex. 115 at 5. On
April 15, the Board issued an Amended Emergency Order, which
added a sentence requesting that Dr. Biggar pay the costs of
the disciplinary proceedings but otherwise did not alter the
content from the original Emergency Order. Biggar Depo., Ex.
Biggar responded on April 5 via email to Ms. Sneed and
others, proposing several plans for his reinstatement. In the
alternative, he wrote, "I would welcome an emergency in-
person meeting with the Board[']s Legal Counsel, myself,
and my own legal representation, at your office in Salem, if
this is convenient for your team, and prior to April 6 @
9am." Biggar Depo., Ex. 116. Although Dr. Biggar's
operative Complaint alleges he asked for a hearing on April
13 on the phone and in an email, these allegations do not
appear in the record. Other than the April 5 email, Dr.
Biggar testified that he does not recall asking for a hearing
in writing. Biggar Depo. at 155.
May 2016 Consent Order and Aftermath
Biggar signed a Consent Order on May 5, 2016, after advice
from legal counsel. Biggar Depo., Ex. 118. The Consent Order
required Dr. Biggar to seek mental health treatment and
suspended him from practice until cleared by a mental health
professional. Biggar Depo., Ex. 118. It also stated:
"Licensee, aware of his right to a hearing and judicial
review, does hereby waive those rights and agrees to the
entry of this Consent Order." Biggar Depo., Ex. 118 at
2. Finally, the Consent Order noted, "[t]he Emergency
Order is withdrawn and this Consent Order replaces all
previous Board orders, including the Emergency Order."
Biggar Depo., Ex. 118 at 5. After signing the Consent Order,
Dr. Biggar did not attend the Board meeting scheduled on May
6, 2016. Biggar Depo. at 152-53. Dr. Biggar complied with the
Consent Order and was allowed to resume practice on June 20,
2016. Biggar Depo. at 166-67.
24, 2016, Dr. Biggar, via counsel, asked Ms. Sneed to take
down the Amended Emergency Order from the Board website.
Sneed Decl.  ¶ 8. Ms. Sneed replied that she had no
authority to do so, but that the Board would address the
issue at the next meeting. Sneed Decl.  ¶ 8. The
Board then did so at a September 6, 2016 meeting, and voted
to take down the Amended Emergency Order. Sneed Decl. 
¶ 9. Additionally, at the September 2016 Board meeting,
the Board voted to require Dr. Biggar to complete 18 hours of
glaucoma education by his license renewal date of November 1,
2017. Biggar Depo., Ex. 119.
Biggar's Lake Oswego practice closed in May 2017, and the
Tillamook practice closed in October 2017. Biggar Depo. at
45. Dr. Biggar did not complete the required 18 hours of
glaucoma education and let his license lapse on November 1,
2017. Biggar Depo. At 179. Although it appears Dr.
Biggar's license had expired, the Board also suspended
his license on November 13, 2017 for failure to complete the
required classes. Sneed Decl. , Ex. C.
Biggar filed this suit in state court in March 2017 and
Defendants removed to this court in May 2017. Notice of
Removal . In his Third Amended Complaint (TAC) (filed in
November 2017 when he was still represented by counsel), Dr.
Biggar alleges nine claims for relief against the Board and
nine individual defendants: Ms. Sneed, six board members
(Webber, Lynch, Cardenal, ...