Gonzalez-Droz v. Gonzalez-Colon ( 2011 )

United States Court of Appeals
For the First Circuit
No. 10-1881
DR. EFRAÍN GONZÁLEZ-DROZ ET AL.,
Plaintiffs, Appellants,
v.
DR. LUIS R. GONZÁLEZ-COLÓN ET AL.,
Defendants, Appellees.
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Boudin, Selya and Dyk**, Circuit Judges.
Roberto Ariel Fernández-Quiles for appellants.
Peter A. Gaido, with whom Gaido & Fintzen were on brief, for
American Academy of Cosmetic Surgery, amicus curiae.
Gloria Robison-Guarch, Assistant Solicitor General,
Commonwealth of Puerto Rico, with whom Irene Soroeta-Kodesh,
Solicitor General, Leticia Casalduc-Rabell and Zaira Giron-Anadon,
Deputy Solicitors General, were on brief, for appellees.
September 16, 2011
*
Of the Federal Circuit, sitting by designation.
SELYA, Circuit Judge. For many years, all licensed
physicians in Puerto Rico could perform cosmetic surgery.1 The
landscape changed in 2005, when the Puerto Rico Board of Medical
Examiners (the Board) promulgated a first-in-the-nation regulation
that limited the practice of cosmetic medicine to particular
classes of medical specialists. In due course, the Board enforced
the regulation against a physician who, though generally licensed
to practice medicine, did not possess the required specialty board
certification.
This litigation arises in consequence of that enforcement
effort. The operative pleading, the second amended complaint,
challenges the constitutionality of both the regulation and the
license suspension. Faced with cross-motions for summary judgment,
the district court disposed of these challenges on the primary
ground that the defendants (the members of the Board and the
Board's investigative officer) enjoyed various kinds of immunity.
González-Droz v. González-Colón, 717 F. Supp. 2d 196, 206-16
(D.P.R. 2010). The court did not reach the underlying
constitutional questions. Although our reasoning and approach
differ sharply from those of the court below, we affirm the entry
of judgment for the defendants.
1
The parties treat the terms "cosmetic surgery," "cosmetic
medicine," and "aesthetic medicine" as rough equivalents. We do
the same.
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I. BACKGROUND
Many of the background facts are set forth in our earlier
opinion affirming the denial of preliminary injunctive relief in
this case. See González-Droz v. González-Colón, 573 F.3d 75, 77-79
(1st Cir. 2009). We assume the reader's familiarity with that
account.
We start with the dramatis personae. The plaintiff (the
appellant here) is Efraín González-Droz, a physician licensed to
practice in Puerto Rico.2 The defendants are the members of the
Board and its investigative officer. The Board, acting under the
authority of the Puerto Rico Department of Health, is responsible
for medical licensure in the Commonwealth. At the times relevant
hereto, it was empowered to promulgate regulations relating to the
practice of medicine. See P.R. Laws Ann. tit. 20, § 37 (repealed
2008).3
After graduating from medical school, the plaintiff
obtained board certification in obstetrics and gynecology. He
2
The plaintiff's wife and their conjugal partnership are
named as additional plaintiffs. The district court dismissed their
claims for lack of standing. González-Droz, 717 F. Supp. 2d at
205-06. That ruling has not been challenged on appeal.
Accordingly, we treat Dr. González-Droz as the sole plaintiff.
3
On August 1, 2008, the Puerto Rico legislature passed a
statute dissolving the Board. A successor entity, the Medical
Discipline and Licensure Board, was created in its place. See P.R.
Laws Ann. tit. 20, §§ 131-135j. It also has the power to
promulgate regulations. Id. § 132e(b). Notwithstanding these
changes, the regulation at issue remains in full force and effect.
-3-
began practicing that specialty in Puerto Rico in 1995. While
practicing, he took a number of continuing medical education
courses and gradually shifted the focus of his endeavors toward
cosmetic medicine. As time went by, procedures such as liposuction
and breast augmentation came to dominate his practice.
The plaintiff's odyssey was not unique. In the same time
frame, other doctors began to extend their practices to include
cosmetic procedures. Concerned by this trend and by the lack of
any recognized specialty accreditation in cosmetic medicine, the
Board looked into the matter. On October 19, 2005, it issued a
public notice — in effect, a regulation — explaining that it had
conducted research into and analysis of the field of aesthetic
medicine and had determined that:
1. The majority of professionals that market
their services as "aesthetic medicine" are, in
reality, general physicians that have no
formal training supervised at a duly
accredited institution able to offer the same,
in the skills that are purportedly offered to
the public.
2. There is no medical field that goes by the
name of "aesthetic medicine", according to the
"American Board of Medical Specialties" and it
is not, and never has been a recognized
specialty.
3. The procedures commonly marketed as
"aesthetic medicine" in reality are
competencies of specialties recognized by the
American Board of Medical Specialties and the
[Board], to wit, dermatology and plastic
surgery . . . .
4. In reality, the so called "aesthetic
medicine" is but a group of techniques and
procedures belonging to dermatology and
plastic surgery that is conducted by
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physicians lacking in the training required
for such specialties that are required for the
certification of professionals as qualified
for the safe practice of said techniques for
the benefit of the patient.
5. It will be deemed to be illegal practice
of medicine [when] any person . . .
advertises, practices or purports to practice
the procedures that only fall under the
competence of dermatologists or plastic
surgeons without possessing the certification
in the corresponding specialty.
The plaintiff is not board-certified in either plastic
surgery or dermatology. Thus, the new rule, which we shall call
"the Regulation," barred him from the practice of cosmetic
medicine. Despite this impediment and notwithstanding that the
Regulation survived a constitutional challenge in the local courts,
see Sociedad Puertorriqueña de Medicina Estética, Inc. v. Tribunal
Examinador de Médicos de P.R., Civ. No. KPE2005-4139(907), 2006 WL
4059283 (P.R. Cir. Dec. 14, 2006) (English translation
unpublished), the plaintiff continued to advertise and perform
cosmetic procedures.
The Board did not take the plaintiff's actions lightly;
on December 12, 2006, it voted to suspend his medical license
provisionally pending a hearing. At around the same time, the
plaintiff (apparently unaware of this vote) moved to California and
opened an office there. He did not, however, lose sight of the
Regulation: on December 18, 2006, he filed suit in the United
States District Court for the District of Puerto Rico, challenging
its constitutionality.
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On May 2, 2007, while visiting Puerto Rico, the plaintiff
received a copy of the Board's written resolution memorializing its
decision provisionally to suspend his license. The resolution
recounted that, after the promulgation of the Regulation, the
plaintiff had continued to "overtly advertise[] to the public the
performance of Cosmetic Surgery," that two of his patients had
filed grievances about injuries resulting from cosmetic procedures
performed by him, that another patient may have died as a result of
"cosmetic interventions performed by [him]," and that he had "been
practicing the specialty of Plastic Surgery without being certified
as a Plastic Surgeon." The resolution further stated that, because
the plaintiff had engaged in the "illegal practice of medicine" and
his conduct posed a risk of "harm [to] patients," the Board had
suspended his license pending a hearing. It "admonished [him] to
refrain from the practice of the profession until a formal
administrative hearing is held."
The suspension took effect upon the plaintiff's receipt
of the resolution, with a hearing to be held within fifteen days
thereafter. The plaintiff was invited to appear at the hearing
(with or without counsel) and present evidence. If he was unable
to attend on the date designated by the Board, he could request an
extension; without such a request, the hearing would proceed in his
absence.
-6-
Instead of responding to the resolution, on May 11, 2007,
the plaintiff — who had by then returned to California — moved in
the federal court to enjoin the hearing. Three days later (May
14), the plaintiff received a summons dated May 10, setting the
hearing for the afternoon of May 15. He responded through counsel
that he would not attend because the matter should be pursued
through the courts, "not in a kangaroo 'administrative hearing.'"
He did not request a continuance.
The district court refused to grant an injunction, and
the hearing proceeded as scheduled. The Board reserved decision
and, on April 4, 2008, issued a final decision, suspending the
plaintiff's license for five years and fining him $5,000. The
plaintiff asked the district court to enjoin enforcement of the
suspension and fine, but the court demurred. On an interlocutory
appeal, this court affirmed the denial of injunctive relief.
González-Droz, 573 F.3d at 79-82.
The plaintiff repaired to the district court and, on
October 30, 2009, filed a second amended complaint. In it, he
asserted that the Regulation transgressed both the Fourteenth
Amendment and federal antitrust law, that the suspension of his
medical license took place without due process, and that the
suspension was prompted by a retaliatory animus.
Following the completion of pretrial discovery, the
plaintiff moved for partial summary judgment. The defendants
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cross-moved for summary judgment on all of the claims. On June 15,
2010, the district court denied the plaintiff's motion and
essentially granted the defendants' cross-motion. González-Droz,
717 F. Supp. 2d at 216.4 The court rejected the plaintiff's
antitrust claim on predictable grounds. See id. at 214-15. It
rejected the remaining claims on immunity grounds. See id. at 207-
16. It stated, however, that it considered the Regulation to be a
proper exercise of the Board's authority to promulgate restrictions
anent the practice of medicine. Id. at 216. This timely appeal
ensued.
II. ANALYSIS
A court inquiring into the propriety vel non of summary
judgment must take the facts and all reasonable inferences
therefrom in the light most hospitable to the nonmoving party.
Houlton Citizens' Coal. v. Town of Houlton, 175 F.3d 178, 183-84
(1st Cir. 1999). This perspective does not vary when cross-motions
for summary judgment are brought. In that event, the court must
view each motion separately, perusing the record through the
standard summary judgment prism. See Alliance of Auto. Mfrs. v.
Gwadosky, 430 F.3d 30, 34 (1st Cir. 2005); Blackie v. Maine, 75
F.3d 716, 721 (1st Cir. 1996). Summary judgment is appropriate
4
We say "essentially" because the court, after jettisoning
the plaintiff's claims, nonetheless ordered the Board to hold a new
license suspension hearing. González-Droz, 717 F. Supp. 2d at 216.
In view of the fact that the parties present no arguments touching
upon this seeming anomaly, we need not probe its ramifications.
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only if the record, read in the prescribed manner, "reveals that
there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law." Estate
of Hevia v. Portrio Corp., 602 F.3d 34, 40 (1st Cir. 2010).
Appellate review of summary judgment orders is de novo.
Houlton Citizens' Coal., 175 F.3d at 184. This review is not
cabined by the lower court's rationale; rather, the court of
appeals may affirm on any independent ground made evident by the
record. Id.
Here, the district court's single-minded emphasis on
immunity issues put the cart before the horse. In the
circumstances of this case, no combination of immunity doctrines
can obviate the need to decide the question of the
constitutionality of the Regulation. We take a different approach.
Refined to their essence, the plaintiff's claims (we leave to one
side the antitrust claim, which is not pursued on appeal) present
a more clear-cut series of dispositive issues. Where, as here, the
district court does not decide the dispositive issues presented in
fully briefed motions for summary judgment, we may elect in our
discretion either to remand or to decide the issues. See Singleton
v. Wulff, 428 U.S. 106, 120-21 (1976); N.H. Motor Transp. Ass'n v.
Flynn, 751 F.2d 43, 52 (1st Cir. 1984). In this instance, the
issues are purely legal and the outcome is clear. We proceed,
therefore, to the merits.
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As we envision it, the proper decisional matrix in this
case presents three sets of issues. First, we decide whether the
Regulation withstands equal protection and due process challenges.
We then decide whether the actions undertaken to suspend the
plaintiff's medical license offended procedural due process.
Finally, we determine whether the suspension itself is open to
attack on either substantive due process or First Amendment
(retaliation) grounds. We address these matters below.
A. The Regulation.
The plaintiff launches two constitutional challenges
against the validity of the Regulation. We address them
separately.
1. Rational Basis. With considerable assistance from
the amicus, the plaintiff charges that limiting the practice of
cosmetic medicine to board-certified plastic surgeons and
dermatologists transgresses the Equal Protection and Due Process
Clauses. U.S. Const. amend. XIV, § 1. In mounting this argument,
the plaintiff does not allege either that he is a member of a
suspect class or that the Regulation infringes a fundamental right.
Consequently, we take the measure of the Regulation under rational
basis review. See Medeiros v. Vincent, 431 F.3d 25, 29 (1st Cir.
2005); Baker v. City of Concord, 916 F.2d 744, 755 (1st Cir. 1990).
Rational basis review "is a paradigm of judicial
restraint." FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 314 (1993).
-10-
"The general rule is that legislation is presumed to be valid and
will be sustained if the classification drawn . . . is rationally
related to a legitimate state interest." City of Cleburne v.
Cleburne Living Ctr., Inc., 473 U.S. 432, 440 (1985). The
challenger has the devoir of persuasion and must negate any and all
conceivable bases upon which the challenged regulation might
appropriately rest. Bd. of Trs. of Univ. of Ala. v. Garrett, 531
U.S. 356, 367 (2001); Heller v. Doe, 509 U.S. 312, 320 (1993). If
any such ground exists to support the classification employed, the
regulation must be upheld even if it is drawn from "rational
speculation unsupported by evidence or empirical data." Beach
Commc'ns, 508 U.S. at 315.
In this instance, the interests that the Regulation
purposes to serve are unarguably legitimate. States — and Puerto
Rico is for this purpose the functional equivalent of a state, see
Exam'g Bd. of Eng'rs, Architects & Surveyors v. Flores de Otero,
426 U.S. 572, 600-01 (1976) — have a profound interest in assuring
the health of the public and, thus, in regulating the practice of
medicine. See, e.g., Hillsborough Cnty. v. Automated Med. Labs.,
Inc., 471 U.S. 707, 719 (1985); Bigelow v. Virginia, 421 U.S. 809,
827 (1975). As a corollary of this proposition, states may act to
safeguard "the integrity and ethics of the medical profession" and
to protect "vulnerable groups . . . from abuse, neglect, and
-11-
mistakes" at the hands of medical practitioners. Washington v.
Glucksberg, 521 U.S. 702, 731 (1997).
The plaintiff strives to convince us that the Regulation
is not rationally related to these salutary purposes but, instead,
draws an arbitrary distinction that is useless in promoting safe
and effective health care. He begins this effort by pointing out
that cosmetic medicine deals with the achievement of aesthetic
ideals, whereas plastic surgery and dermatology deal with medically
indicated needs for treatment and reconstruction. But this
argument, which depends on oversimplification and unproven
generalities, fails to demonstrate the absence of a rational basis.
Rational basis review requires only that the state could
rationally have concluded that the challenged classification might
advance its legitimate interests. See Minnesota v. Clover Leaf
Creamery Co., 449 U.S. 456, 466 (1981). The Board's decision to
limit access to the practice of cosmetic medicine by reference to
board certification in plastic surgery and dermatology satisfies
this standard. In adopting the certification requirement, the
Board repeatedly remarked upon the dangers attendant to cosmetic
procedures and the need to guide patients to qualified
practitioners.
The Board thought that a general license to practice
medicine is not enough to ensure competence in this field and
decided to use as a proxy for competence two closely related
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specialty boards. The plaintiff's arguments against that choice
emphasize the lack of perfect symmetry between those specialties
and cosmetic medicine. But perfect symmetry is not required: as
long as the premises underlying the state's reasoning are at least
"arguable," the state's judgment about a matter subject to rational
basis review is protected from constitutional attack. Beach
Commc'ns, 508 U.S. at 320. In this case, there is no accredited
specialty board for cosmetic medicine, and certification in the
closely related fields of plastic surgery and dermatology arguably
could be seen as a surrogate.5 To pass rational basis review, it
is enough that the classification falls within the universe of
reasonable alternatives that might serve to foster improved patient
care and safety. The Regulation achieves this benchmark.
We reject the plaintiff's insistence that the selection
of this alternative is wholly arbitrary. During their specialized
residency training, both plastic surgeons and dermatologists are
exposed to procedures that are indigenous to cosmetic medicine.
They develop a skill set compatible with that practice area.
Perhaps more important, both plastic surgeons and dermatologists
are trained in general concepts that advance their abilities to
5
Although the plaintiff rails against the use of board
certification in plastic surgery and dermatology, he does not
identify any other accredited specialty board that is more closely
aligned with cosmetic medicine. His point seems to be that none of
the existing board certifications should be required in this
practice area.
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understand and perform cosmetic procedures. It was not arbitrary
for the Board to conclude that such training would, on the whole,
contribute to improved patient care and safety in this rapidly
evolving field. See Maguire v. Thompson, 957 F.2d 374, 377 (7th
Cir. 1992).
The fact that the actual practice of any particular
plastic surgeon or dermatologist may not include performance of
cosmetic procedures does not undercut this conclusion. The
training needed to obtain board certification in these specialties
overlaps substantially with the knowledge needed to practice
cosmetic medicine safely and effectively. That is enough, as a
constitutional matter, to justify the Board's solution.
The plaintiff complains that a classification based on
board certification in other specialties is an ineffective way to
foster patient choice and safety. He notes that residency programs
and other prerequisites for certification in plastic surgery and/or
dermatology do not encompass all, or even most, cosmetic medicine
procedures; yet under the Regulation, a board-certified plastic
surgeon or dermatologist may practice cosmetic medicine without
proof of any additional training. In contrast, other doctors (who
may have undergone additional procedure-specific training) cannot.
This plaint is unavailing. In conducting rational basis
review, courts are not tasked with deciding whether a better or
more effective means of classification exists. See Clover Leaf
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Creamery, 449 U.S. at 470. "It is enough that there is an evil at
hand for correction, and that it might be thought that the
particular legislative measure was a rational way to correct it."
Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 488 (1955).
While the Regulation may draw an imperfect line, that circumstance
alone does not render it unconstitutional. The wisdom of the
Board's choice is not within the judiciary's purview. See Beach
Commc'ns, 508 U.S. at 313-14.
The plaintiff seeks to derive sustenance from the fact
that no other state has adopted a similar limitation with respect
to the practice of cosmetic medicine. That is true as far as it
goes — but it does not provide much nourishment to the plaintiff's
argument. Differences in classifications among the several states,
without more, do not betoken irrationality. See Nat'l Ass'n for
Adv. of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043,
1053 (9th Cir. 2000). "[W]here individuals in the group affected
by a law have distinguishing characteristics relevant to interests
the State has the authority to implement, the courts have been very
reluctant, as they should be in our federal system and with our
respect for the separation of powers, to closely scrutinize
legislative choices as to whether, how, and to what extent those
interests should be pursued." City of Cleburne, 473 U.S. at 441-
42; see Vance v. Bradley, 440 U.S. 93, 97 (1979).
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The plaintiff's next argument is misdirected. He insists
that, by virtue of both training and experience, he is superbly
qualified to practice cosmetic medicine. That may be so — and the
Board could, if it so chose, conduct a case-by-case assessment of
each physician's qualifications in cosmetic medicine as a
prerequisite to permitted practice in that field. But the
Constitution does not demand so specific a decisional matrix. See
Williamson, 348 U.S. at 489. The state may paint with a broader
brush as long as the criteria that it chooses are rationally
related to some legitimate governmental purpose. Board
certification, as a practice criterion, satisfies this
requirement.6 See Am. Med. Ass'n, State Medical Licensure
Requirements and Statistics 128 (2011). Although the point may be
debatable, see, e.g., id. at 167 (discussing conflicting views
among national professional organizations over precise value of
board certification), the Board's decision to limit the practice of
cosmetic medicine to physicians who have achieved board
certification in closely related fields represents a permissible
choice. See Clover Leaf Creamery, 449 U.S. at 469.
6
The amicus contends that the Board's reliance on
certification is inconsistent with a federal regulation prohibiting
hospitals from awarding staff privileges on the basis of board
certification alone. See 42 C.F.R. § 482.12(a)(7). This argument
was not raised below, and we repeatedly have held that "[w]hile
amicus briefs are helpful in assessing litigants' positions, an
amicus cannot introduce a new argument into a case." United States
v. Sturm, Ruger & Co., 84 F.3d 1, 6 (1st Cir. 1996); accord Lane v.
First Nat'l Bank of Boston, 871 F.2d 166, 175 (1st Cir. 1989).
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In sum, the Board, acting within the scope of its
delegated authority, settled upon a regulatory classification that
bears a rational relationship to the legitimate objective of
promoting safe and effective medical care. Consequently, the
Regulation does not contravene the Equal Protection or Due Process
Clauses.
2. Vagueness. The plaintiff also claims that the
Regulation is unconstitutionally vague because it does not clearly
define its limitations. This claim need not detain us.
"It is a basic principle of due process that an enactment
is void for vagueness if its prohibitions are not clearly defined."
Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). This does
not mean, however, that a law or a regulation must be precise to
the point of pedantry. See Barr v. Galvin, 626 F.3d 99, 107 (1st
Cir. 2010). Where a profession-specific regulation affords
sufficient indicia of its meaning and application to those of
ordinary intelligence in the profession, it is not subject to
invalidation on vagueness grounds. See Doyle v. Sec'y of HHS, 848
F.2d 296, 301 (1st Cir. 1988).
In this instance, the Regulation identifies the covered
procedures as those "commonly marketed" as "aesthetic medicine" and
defines them with reference to plastic surgery and dermatology.
This is enough to avoid a general charge of vagueness. It may be
that a particular procedure exists on the margin that would leave
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a physician of ordinary intelligence to wonder whether that
procedure is covered by the Regulation. But no such uncertainty
plagued the plaintiff in this case (or, if it did, he has not
offered an example). For aught that appears, the plaintiff's
practice consisted of liposuction, breast augmentation, and other
procedures that fell squarely within the compass of the Regulation.
There could be no doubt among medical professionals that the
Regulation reaches those procedures. See id. Accordingly, the
plaintiff's vagueness challenge fails.
B. The Suspension.
Taking aim at a different target, the plaintiff assails,
on constitutional grounds, both the procedures used to suspend his
license and the suspension itself. The Due Process Clause
prohibits a state from depriving a person of "life, liberty, or
property, without due process of law." U.S. Const. amend. XIV,
§ 1. "This guarantee has both substantive and procedural
components." Pagán v. Calderón, 448 F.3d 16, 32 (1st Cir. 2006).
The plaintiff's broadside, and our ensuing analysis, implicate both
theories. We also address under this rubric the plaintiff's claim
of retaliation.
1. Procedural Due Process. The plaintiff contends that
the actions undertaken to effect the suspension of his license
violated his procedural due process rights. We think not.
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To establish a procedural due process violation, the
plaintiff "must identify a protected liberty or property interest
and allege that the defendants, acting under color of state law,
deprived [him] of that interest without constitutionally adequate
process." Aponte-Torres v. Univ. of P.R., 445 F.3d 50, 56 (1st
Cir. 2006) (alterations, internal quotation marks, and citations
omitted). Because the Board stripped the plaintiff of his license
(and, thus, took away a means of earning his livelihood), he has
made the necessary showing of a deprivation of a constitutionally
protected property interest. See FDIC v. Mallen, 486 U.S. 230, 243
(1988); Beauchamp v. De Abadia, 779 F.2d 773, 775 (1st Cir. 1985).
The question, then, is whether the process leading to that
deprivation passes constitutional muster.
The basic guarantee of procedural due process is that,
"before a significant deprivation of liberty or property takes
place at the state's hands, the affected individual must be
forewarned and afforded an opportunity to be heard 'at a meaningful
time and in a meaningful manner.'" Amsden v. Moran, 904 F.2d 748,
753 (1st Cir. 1990) (quoting Armstrong v. Manzo, 380 U.S. 545, 552
(1965)). No rigid taxonomy exists for evaluating the adequacy of
state procedures in a given case; rather, "due process is flexible
and calls for such procedural protections as the particular
situation demands." Morrissey v. Brewer, 408 U.S. 471, 481 (1972).
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In this case, the plaintiff identifies the lack of a pre-
deprivation hearing, the brevity of the notice afforded in advance
of the hearing, and the nature of the hearing itself as hallmarks
of a constitutional shortfall. We examine this asseverational
array.
In order to determine both when a pre-deprivation hearing
is compulsory and what process is due, an inquiring court must
balance a myriad of factors, including the private and public
interests involved, the risk of an erroneous deprivation inherent
in the procedures employed by the state, and the likely benefit
that might accrue from additional procedural protections. Mathews
v. Eldridge, 424 U.S. 319, 335 (1976). Whether the deprivation
was, in fact, justified is not an element of the procedural due
process inquiry. See Carey v. Piphus, 435 U.S. 247, 266 (1978).
The plaintiff first upbraids the defendants for their
vote to suspend his license, albeit provisionally, without an
antecedent hearing. To begin, it is difficult to imagine what
value there would have been in a pre-deprivation hearing. The
plaintiff does not challenge the Board's key finding that
precipitated its action: their determination that the plaintiff was
practicing cosmetic medicine in violation of the Regulation. The
lack of any dispute over that key finding is telling. See Codd v.
Velger, 429 U.S. 624, 627-28 (1977) (per curiam) (finding no pre-
deprivation hearing necessary when there was no factual dispute);
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Barbian v. Panagis, 694 F.2d 476, 488 (7th Cir. 1982) (similar).
Although the plaintiff implies that he would have challenged the
constitutionality of the Regulation at the hearing, that is a
question for adjudication by the courts, not the Board. Of course,
the plaintiff could have contested the Board's other factual
conclusions or appeared personally to plead that he should not lose
his license despite the violation; thus, we proceed to assess his
procedural due process claim.
The plaintiff's criticism overlooks that due process does
not invariably require a hearing before the state can interfere
with a protected property interest. A key datum is whether "some
form of hearing is [provided] before an individual is finally
deprived of [the] interest." Mathews, 424 U.S. at 333 (emphasis
supplied); see Herwins v. City of Revere, 163 F.3d 15, 18 (1st Cir.
1998). Considering that the license suspension was at that point
provisional (not final), that the balance of the private and public
interests involved favored immediate action, and that the risk of
an erroneous deprivation was very small, we conclude that a prompt
post-deprivation hearing was constitutionally adequate.
In working this calculus, we give great weight to the
proposition that when the state reasonably determines that a
license-holder poses a risk to patient safety, pre-deprivation
process typically is not required. See Patel v. Midland Mem'l
Hosp. & Med. Ctr., 298 F.3d 333, 339-40 (5th Cir. 2002). In these
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circumstances, moreover, the need for a pre-deprivation hearing is
further diminished by the state's strong interest in upholding "the
integrity of [a] state-licensed profession[]." Amsden, 904 F.2d at
755. The Board's concern that González-Droz "may harm patients"
because he lacks the "training required by the [Regulation] to
carry out such procedures" provided a sufficient basis for a
founded conclusion that no pre-deprivation hearing was
constitutionally compelled. See Nnebe v. Daus, 644 F.3d 147, 158-
59 (2d Cir. 2011); Patel, 298 F.3d at 339-41.
Neither the possible risk of an erroneous deprivation nor
the possible benefit of additional safeguards shifts the balance.
Especially in cases involving public health and safety and the
integrity of professional licensure, the force of these factors is
significantly diminished by the ready availability of prompt post-
deprivation review. See Nnebe, 644 F.3d at 159; Amsden, 904 F.2d
at 755. In this case, the provisional suspension did not take
effect until May 2, 2007. The plaintiff was afforded a hearing
roughly two weeks later (prior to the Board's decision to make the
suspension final). Given this chronology, we do not believe that
the lack of a pre-deprivation hearing offended due process. See,
e.g., Nnebe, 644 F.3d at 151, 158-59 (finding provision of a post-
deprivation hearing within a similar time frame sufficiently
prompt).
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The plaintiff's assault on the adequacy of the notice
provided in advance of the post-deprivation hearing is easily
repulsed. The plaintiff focuses with tunnel vision on the summons
that he received on May 14 to support an allegation that he had
only a few hours' notice of the May 15 hearing. This is sheer
persiflage. In reality, the notice afforded to the plaintiff and
his opportunity to prepare were much greater. The plaintiff was
aware more than five months earlier that his continued practice of
cosmetic medicine flew in the teeth of the Regulation and placed
his medical license in jeopardy. The suit that he filed in
December of 2006 attests to this awareness. Moreover, the
resolution that the Board delivered to the plaintiff in hand on May
2 advised him that a hearing would be held within fifteen days.
Taken together, these facts demonstrate that the plaintiff had
ample notice of the hearing, a fair indication of when it would
occur, and a sufficient opportunity to prepare for it.7 See, e.g.,
Cepero-Rivera v. Fagundo, 414 F.3d 124, 127, 134-35 (1st Cir. 2005)
(finding sixteen days' notice of hearing sufficient); O'Neill v.
Baker, 210 F.3d 41, 44-45, 48-49 (1st Cir. 2000) (finding six days'
notice sufficient when plaintiff understood the nature of the
charges three months earlier).
7
It is difficult to discern what additional safeguards might
have benefitted the plaintiff. The resolution unambiguously stated
that a hearing would occur within fifteen days, yet the plaintiff
elected to return to California.
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If more were needed — and we doubt that it is — the
resolution explained that if the plaintiff was unable to attend the
hearing or to proceed, he could request a continuance. He eschewed
that opportunity, instead telling the defendants that the issues
should be resolved through litigation. This steadfast insistence
on boycotting the hearing further erodes the plaintiff's claim of
inadequate notice. See, e.g., Luellen v. City of East Chicago, 350
F.3d 604, 616 (7th Cir. 2003); Conward v. Cambridge Sch. Comm., 171
F.3d 12, 24 (1st Cir. 1999).
What remains is to determine whether the hearing itself
offered adequate safeguards. The plaintiff's contrary claim rests
primarily on an assertion that defendant José Jiménez-Rivera
(Jiménez), the Board's investigative officer and the de facto
prosecutor at the May hearing, infected the proceeding with a risk
of bias because the plaintiff had named him months earlier as a
defendant in this suit.
Certainly, "a biased decisionmaker [is] constitutionally
unacceptable." Withrow v. Larkin, 421 U.S. 35, 47 (1975). But
Jiménez's duties as the Board's investigative officer do not
involve decisionmaking. A person who investigates and presents an
agency's case, unlike a decisionmaker, does not have to be neutral.
See Marshall v. Jerrico, Inc., 446 U.S. 238, 248 (1980).
In a further attack on the conduct of the hearing, the
plaintiff asserts that the Board failed to demand sufficient
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evidence in connection with the patient grievances to which it
referred in its suspension decision. Here, however, the plaintiff
had the opportunity to engage counsel and present rebuttal evidence
at the hearing, see P.R. Laws Ann. tit. 3, § 2151. He could have
submitted his patient files for consideration but did not do so.
Given this tactical decision, he hardly can complain about the
Board's reference to the dissatisfied patients' unopposed
testimony, and we do not, in any event, read the Board's decision
as resolving the issue of the patient grievances.
That ends this aspect of the matter. The plaintiff had
notice, an opportunity to be heard, a right to counsel, and a right
to present evidence to his own behoof. The Board's provision of
these safeguards sufficed to meet the demands of due process. See,
e.g., Torres-Rosado v. Rotger-Sabat, 335 F.3d 1, 10-11 (1st Cir.
2003).
2. Substantive Due Process. The constitutional
guarantee of substantive due process "functions to protect
individuals from particularly offensive actions on the part of
government officials." Pagán, 448 F.3d at 32. In other words, "a
substantive due process claim implicates the essence of state
action rather than its modalities." Amsden, 904 F.2d at 753. The
plaintiff bears the burden of showing that the challenged actions
were "so egregious as to shock the conscience." Pagán, 448 F.3d at
32. To sink to this level, the challenged conduct must be "truly
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outrageous, uncivilized, and intolerable." Hasenfus v. LaJeunesse,
175 F.3d 68, 72 (1st Cir. 1999).
The plaintiff claims that the suspension of his license
was so heavy-handed as to work a denial of substantive due process.
We reject this claim out of hand. In this case, neither the
Board's actions nor the result of those actions (the license
suspension) remotely approach the level of a substantive due
process violation. Consequently, summary judgment was inevitable
on this claim.
3. Retaliation. The plaintiff has one more shot in his
sling. He argues that the suspension of his license cannot stand
because the Board's decision was in retaliation for filing this
suit and his testimony in favor of another physician in a separate
2005 license-suspension case. This claim is without merit.
Citizens have a First Amendment right to engage in
certain kinds of speech, including the filing of civil actions,
see, e.g., Bill Johnson's Rests., Inc. v. NLRB, 461 U.S. 731, 752
(1983), and testifying at administrative hearings, see, e.g.,
Johnston v. Harris Cnty. Flood Control Dist., 869 F.2d 1565, 1576-
78 (5th Cir. 1989). Government actors offend the First Amendment
when they retaliate against an individual for constitutionally
protected speech. Hartman v. Moore, 547 U.S. 250, 256 (2006). A
party seeking to establish a claim of retaliation under the First
Amendment must show that the conduct in which he engaged was a
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"substantial" or "motivating factor" in the challenged decision.
Centro Medico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1,
10 (1st Cir. 2005) (quoting Mt. Healthy City Sch. Dist. Bd. of
Educ. v. Doyle, 429 U.S. 274, 287 (1977)). This showing
necessitates proof of a causal connection between the allegedly
protected speech and the allegedly retaliatory response. Davignon
v. Hodgson, 524 F.3d 91, 106 (1st Cir. 2008).
In the case at hand, the plaintiff insists that the
suspension decision followed two instances of protected speech and
that this temporal proximity, without more, supports a conclusion
that a causal connection exists between these events. Temporal
proximity alone may, in certain circumstances, support an inference
of retaliation. See Philip v. Cronin, 537 F.3d 26, 33 (1st Cir.
2008). Here, however, neither of the described incidents forges
the necessary causal link.
We start with the plaintiff's suit. The Board made its
decision to suspend the plaintiff's license on December 12, 2006.
This occurred before the plaintiff filed the original complaint on
December 18 and, thus, cannot plausibly be viewed as an act of
retaliation.
The plaintiff rejoins that the record does not contain
any minutes for a December 12 meeting of the Board and that this
gap raises a genuine issue of material fact as to whether any
decision was actually made on that date. This is whistling past
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the graveyard: the Board's written resolution, which is a matter of
record, states that the vote was taken on December 12. The
plaintiff offers nothing to controvert this evidence. In the face
of uncontradicted evidence, a party cannot rely on sheer
speculation to deflect a motion for summary judgment. See Ahern v.
Shinseki, 629 F.3d 49, 58 (1st Cir. 2010).
This leaves the plaintiff's testimony in another
physician's case. The testimony occurred in October of 2005 (more
than a year before the Board voted provisionally to suspend the
plaintiff's license). In order to raise an inference of causation,
temporal proximity must be close. See id. (holding that a "gap of
several months" between protected speech and allegedly retaliatory
conduct was insufficient to prove retaliation in Title VII
context); Mesnick v. Gen. Elec. Co., 950 F.2d 816, 828 (1st Cir.
1991) (finding insufficient temporal proximity in the age
discrimination context when nine months had elapsed between
protected conduct and alleged retaliation); see also Rosenfeld v.
Egy, 346 F.3d 11, 15-17 (1st Cir. 2003). With no other evidence of
causation, an interval of this magnitude cannot establish the
necessary linkage between protected speech and some challenged
action.
At any rate, a defendant may avoid liability in a
retaliation case by showing that it would have reached the same
decision absent the protected speech. Powell v. Alexander, 391
-28-
F.3d 1, 17 (1st Cir. 2004). The plaintiff does not dispute that
his actions (continuing to advertise and perform cosmetic surgery)
contravened the Regulation. The Board's decision was based on
those actions (which under the Regulation constituted illegal
practice). It is, therefore, clear beyond hope of contradiction
that the Board would have reached the same conclusion regardless of
the plaintiff's 2005 testimony.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
we uphold the entry of summary judgment for the defendants on all
claims.
Affirmed.
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