González-Droz v. González-Colón

• Citation: 660 F.3d 1
• Decision Date: 16 September 2011
• Docket Number: No. 10–1881.,10–1881.
• Parties: Dr. Efraín GONZÁLEZ–DROZ et al., Plaintiffs, Appellants, v. Dr. Luis R. GONZÁLEZ–COLÓN et al., Defendants, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

660 F.3d 1

Dr. Efraín GONZÁLEZ–DROZ et al., Plaintiffs, Appellants,

v.Dr. Luis R. GONZÁLEZ–COLÓN et al., Defendants, Appellees.

No. 10–1881.

United States Court of Appeals, First Circuit.

Heard July 26, 2011.Decided Sept. 16, 2011.

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.Before BOUDIN, SELYA and DYK ^*, Circuit Judges.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.

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 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 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.

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.

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 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)....