Health Law Daily Wrap Up, GENERAL HEALTH CARE NEWS—5th Cir.: District Court erred in dismissing doctors’ free speech case with no leave to amend complaint, (Jun 7, 2024)

By Jeffrey H. Brochin, J.D.

Physicians who faced specialty decertification after speaking critically of Dr. Fauci, lockdowns, mask mandates, Covid vaccination, and abortion, sufficiently pleaded injury to establish First Amendment standing at the pleading stage.

The United States Court of Appeals for the Fifth Circuit has reversed in part, and affirmed with modification in part, the ruling of a Texas District Court that dismissed the Complaint of the Association of American Physicians and Surgeons Educational Foundation (AAPS) in a lawsuit brought by them against the American Board of Internal Medicine (ABIM or Board). The Complaint alleged that ABIM expressly threatened to strip certification from otherwise qualified physicians who expressed views deemed “misinformation, disinformation, and malinformation” regarding Dr. Fauci, lockdowns, mask mandates, Covid vaccination, and abortion. The appellate panel found that the District Court erred in finding that the AAPS lacked standing to sue, and, they further erred in applying a local rule that denied leave to amend the Complaint even once as generally permitted under Federal Rule of Civil Procedure 15 (Association of American Physicians and Surgeons Educational Foundation v. American Board of Internal Medicine, No. 23-40423 (5th Cir. June 3, 2024)).

Censorship and chilling campaign. The AAPS filed suit against the ABIM and Alejandro Mayorkas, as Secretary of the U.S. Department of Homeland Security (Department) alleging that they coordinated to censor and chill the speech of physicians--including some associated with AAPS—who spoke critically of positions taken by Dr. Anthony Fauci, lockdowns, mask mandates, Covid vaccination, and abortion. Some examples of chilling by the Board included sending letters to all certified physicians expressly threatening to strip them of their invaluable certification for making statements concerning abortion and contraception, or for warning pregnant women that the Covid vaccine could have negative side effects. The Complaint alleged that this was and continued to be done by labeling dissenting views as misinformation, disinformation, and malinformation.

The Complaint further alleged that the Board colluded with the Biden Administration, imposing such censorship to promote the Administration’s political preferences in exchange for government endorsement of the physicians’ certifications. The letters sent by the Board Defendants were, according to AAPS, sent nearly simultaneously and with similar terminology as part of a broader campaign by the Biden Administration to advance its particular partisan agenda concerning Covid-19 and abortion. The Complaint alleged the collusion resulted in censorship and chilling of speech, infringed on its First Amendment protections and interfered with its ability to participate in the marketplace. According to AAPS, the ABIM’s efforts to censor and punish physicians on issues of public concern harmed, and continued to harm AAPS.

Dismissal by District Court. The District Court dismissed all of AAPS’s claims with prejudice, reasoning that it lacked standing to assert its claims against the Board, and that the Department mooted claims against it by dissolving the Disinformation Governance Board (DGB), which AAPS alleged was responsible for censorship. It also denied AAPS the ability to amend its complaint— even once—under Galveston Division Local Rule 6, with no analysis for doing so. AAPS then filed the instant appeal.

Standing for First Amendment claims. The District Court had dismissed the First Amendment claims on standing grounds, after determining that AAPS met none of the doctrine’s requirements as to (1) suffering an injury in fact, (2) that is fairly traceable to the action of ABIM and the Department, and (3) that would likely be redressed by a favorable decision. The Appeals Court began its review by noting that standing rules are relaxed for First Amendment cases so that citizens whose speech might otherwise be chilled by fear of sanction can prospectively seek relief.

As to suffering an injury-in-fact, AAPS based its case on ABIM’s infringement of its right to hear speakers who would speak but for the Board’s chilling actions, as its conferences and publications rely on robust debate. The Appeals court agreed, observing that the First Amendment protects the right to hear as well as to speak, and that when one silences a willing speaker, this also works a constitutional injury against the hearer. Although ABIM argued that AAPS was required to identify such a willing speaker at the pleading stage, the Appeals Court disagreed, finding that it was error for AAPS’s Complaint to be dismissed before they could engage in meaningful (if any) discovery, and not be afforded even a single opportunity to amend its Complaint. The Appeals Court further found the injury to be traceable to ABIM, and, that the claims were subject to redress. Accordingly, they reversed the District Court’s ruling as to standing.

State action issue remanded. Although the government cannot abridge free speech, private parties typically bear no such burden because, a “private entity is not ordinarily constrained by the First Amendment because the private entity is not a state actor.” But sometimes private entities may be considered state actors, becoming subject to the prohibition against abridging free speech in the process. Here, the Appeals Court declined to address the issue as to whether the actions constituted state action, and remanded that issue to the District Court.

Galveston Division Local Rule 6. As noted above, the District Court dismissed all of AAPS’s claims without granting it leave to amend even once, citing Galveston Division Local Rule 6. That rule provides in pertinent part: “Once the motion to dismiss is filed, the non-movant shall not be allowed to amend its pleading until disposition of the motion to dismiss and upon leave from the court.” The Appeals Court restated the notion that local rules must be consistent with—but not duplicate—federal statutes and rules, and that FRCP 15(a) governs leave to amend, which “the court should freely give leave when justice so requires.”

Here, AAPS was wrongly denied an opportunity to amend for two reasons: first, Galveston Division Local Rule 6 inverted how FRCP 15 operates in practice, by demanding amendment “before entertaining a Rule 12(b) motion to dismiss;” and, second, by the District Court’s failure to give any explicit--much less meaningful--explanation as to why it refused leave to amend beyond a citation to Galveston Division Local Rule 6. Accordingly, the Appeals Court reversed the District Court’s ruling as to denial of leave to amend.

Mootness of claims against the Department. At the time the Department created the DGB, they issued a press release in May 2022, directing the Homeland Security Advisory Counsel (HSAC) to “make recommendations for how the Department can most effectively and appropriately address disinformation that poses a threat to the homeland, while protecting free speech and other fundamental rights.” The DGB announcement prompted a massive public backlash with 20 State Attorneys General issuing a letter three days later stating that “the existence of the DGB will inevitably have a chilling effect on free speech” because “Americans will hesitate before they voice their constitutionally protected opinions, knowing that government’s censors may be watching.” The Department subsequently disbanded the DGB in August, 2022. However, according to AAPS, the DGB’s agenda of retaliating against speech disfavored by the Biden Administration continues to be imposed by the Board and HSAC.

Although a case becomes moot when the issues presented are no longer “live” or the parties lack a legally cognizable interest in the outcome, one exception is the ‘voluntary cessation’ exception. That triggers the court’s examination of the motives for the voluntary-induced mootness. Normally, voluntary conduct does not moot a case unless a defendant demonstrates that “it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” However, the government enjoys a “good faith” carveout, which the Appeals Court found to apply here, and accordingly affirmed the dismissal as to the Department.

Partially dissenting opinion. In his partially dissenting opinion, Circuit Judge James Ho wrote that AAPS’s claims were “…alarming allegations. After all, these issues are far from scientifically settled as Defendants claim. They should remain the subject of open and rigorous discussion—not self-censorship and cancellation.” He further opined: “I agree with the majority that the district court erred. I would simply go further, and accordingly dissent in part. I would remand this case for further proceedings on all of the association’s claims—including those against the government officials sued here, which the majority dismisses as moot.”

The case is No. 22-0437.

Judge: Bland, J.

Attorneys: Andrew Layton Schlafly (Andrew Layton Schlafly, Attorney at Law) for Association of American Physicians and Surgeons Educational Foundation, AAPS. Paul Lantieri, III (Ballard Spahr, L.L.P.) for American Board of Internal Medicine, ABIM. April Elizabeth Lucas (McGinnis Lochridge, L.L.P.) for American Board of Obstetrics & Gynecology, ABOG. Cassie J. Dallas (Thompson, Coe, Cousins & Irons, L.L.P.) for American Board of Family Medicine, ABFM. Daniel Bentele Hahs Tenny, U.S. Department of Justice, for Alejandro Mayorkas.

Companies: Association of American Physicians and Surgeons Educational Foundation, AAPS; American Board of Internal Medicine, ABIM; American Board of Obstetrics & Gynecology, ABOG; American Board of Family Medicine, ABFM

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