Am. Acad. of Implant Dentistry v. Parker

• Decision Date: 19 June 2017
• Docket Number: No. 16-50157,16-50157
• Citation: 860 F.3d 300
• Parties: AMERICAN ACADEMY OF IMPLANT DENTISTRY; American Society of Dentist Anesthesiologists; American Academy of Oral Medicine; American Academy of Orofacial Pain ; Jay E. Elliott, D. D. S.; Monty Buck, D. D. S.; Jarom C. Heaton, D. D. S.; Michael A. Huber, D. D. S.; Edward F. Wright, D. D. S., M. S., Plaintiffs–Appellees v. Kelly PARKER, in her official capacity as Executive Director of the Texas State Board of Dental Examiners, Tamela L. Gough, D. D. S., M. S., in her official capacity as a Member of the Texas Board of Dental Examiners; Steve Austin, D. D. S., in his official capacity as a Member of the Texas Board of Dental Examiners; Tim O'Hare, in his official capacity as a Member of the Texas Board of Dental Examiners; Kirby Bunel, Jr., D. D. S., in his official capacity as a Member of the Texas Board of Dental Examiners; William R. Birdwell, D. D. S., in his official capacity as a Member of the Texas Board of Dental Examiners; Emily A. Christy, in her official capacity as a Member of the Texas Board of Dental Examiners; James W. Chancellor, D. D. S., in his official capacity as a Member of the Texas Board of Dental Examiners; Rodolfo G. Ramos, Jr., D. D. S., in his official capacity as a Member of the Texas Board of Dental Examiners; Lewis White, in his official capacity as a Member of the Texas Board of Dental Examiners; Whitney Hyde, in her official capacity as a Member of the Texas Board of Dental Examiners; Renee Cornett, R. D. H., in her official capacity as a Member of the Texas Board of Dental Examiners; D. Bradley Dean, D. D. S., in his official capacity as a Member of the Texas Board of Dental Examiners; Christie Leedy, D. D. S., in her official capacity as a Member of the Texas Board of Dental Examiners; Lois Palermo, R. D. H., in his official capacity as a Member of the Texas Board of Dental Examiners; Evangelia Mote, in her official capacity as a Member of the Texas Board of Dental Examiners, Defendants–Appellants
• Court: U.S. Court of Appeals — Fifth Circuit

860 F.3d 300

AMERICAN ACADEMY OF IMPLANT DENTISTRY; American Society of Dentist Anesthesiologists; American Academy of Oral Medicine; American Academy of Orofacial Pain ; Jay E. Elliott, D. D. S.; Monty Buck, D. D. S.; Jarom C. Heaton, D. D. S.; Michael A. Huber, D. D. S.; Edward F. Wright, D. D. S., M. S., Plaintiffs–Appellees

v.Kelly PARKER, in her official capacity as Executive Director of the Texas State Board of Dental Examiners, Tamela L. Gough, D. D. S., M. S., in her official capacity as a Member of the Texas Board of Dental Examiners; Steve Austin, D. D. S., in his official capacity as a Member of the Texas Board of Dental Examiners; Tim O'Hare, in his official capacity as a Member of the Texas Board of Dental Examiners; Kirby Bunel, Jr., D. D. S., in his official capacity as a Member of the Texas Board of Dental Examiners; William R. Birdwell, D. D. S., in his official capacity as a Member of the Texas Board of Dental Examiners; Emily A. Christy, in her official capacity as a Member of the Texas Board of Dental Examiners; James W. Chancellor, D. D. S., in his official capacity as a Member of the Texas Board of Dental Examiners; Rodolfo G. Ramos, Jr., D. D. S., in his official capacity as a Member of the Texas Board of Dental Examiners; Lewis White, in his official capacity as a Member of the Texas Board of Dental Examiners; Whitney Hyde, in her official capacity as a Member of the Texas Board of Dental Examiners; Renee Cornett, R. D. H., in her official capacity as a Member of the Texas Board of Dental Examiners; D. Bradley Dean, D. D. S., in his official capacity as a Member of the Texas Board of Dental Examiners; Christie Leedy, D. D. S., in her official capacity as a Member of the Texas Board of Dental Examiners; Lois Palermo, R. D. H., in his official capacity as a Member of the Texas Board of Dental Examiners; Evangelia Mote, in her official capacity as a Member of the Texas Board of Dental Examiners, Defendants–Appellants

No. 16-50157

United States Court of Appeals, Fifth Circuit.

FILED June 19, 2017

Renea Hicks, Law Office of Renea Hicks, Austin, TX, Frank R. Recker, Frank R. Recker & Associates, Co., L.P.A., Cincinnati, OH, for Plaintiffs–Appellees.

Bill L. Davis, Assistant Attorney General, Office of the Attorney General, Office of the Solicitor General, Austin, TX, for Defendants–Appellants.

Amy Lynne Rudd, Senior Litigating Attorney, Dechert, L.L.P., Austin, TX, for Texas Academy of Pediatric Dentistry, Texas Association of Orthodontists, Texas Society of Oral & Maxillofacial Surgeons.

Before ELROD, SOUTHWICK, and GRAVES, Circuit Judges.

LESLIE H. SOUTHWICK, Circuit Judge:

The plaintiffs challenge a provision in the Texas Administrative Code regulating advertising in the field of dentistry. The district court held that the provision violated the plaintiffs' First Amendment right to engage in commercial speech. It therefore enjoined enforcement of the provision as applied to the plaintiffs. The defendants appealed. We AFFIRM.

FACTUAL AND PROCEDURAL BACKGROUND

Texas law prohibits dentists from advertising as specialists in areas that the American Dental Association ("ADA") does not recognized as specialties. See TEX. ADMIN. CODE § 108.54. The plaintiffs seek to enjoin enforcement of Section 108.54, as they wish to advertise in areas recognized as specialties by other dental organizations but not by the ADA. They argue the First and Fourteenth Amendments give them the right to do so.

This appeal involves several plaintiffs. The organizational plaintiffs include the American Academy of Implant Dentistry, the American Society of Dental Anesthesiologists, the American Academy of Oral Medicine, and the American Academy of Orofacial Pain. These organizations are national organizations with member dentists. The purpose of each organization is to advance the interests of dentists practicing in the organization's respective practice area. Each organization sponsors a credentialing board and offers credentials to members who demonstrate expertise in their respective field.

The individual plaintiffs are five dentists, three of whom are in private practice and two of whom are professors at the University of Texas Health Science Center School of Dentistry. The individual plaintiffs limit their practice to one of the following practice areas: implant dentistry, dental anesthesiology, oral medicine, and orofacial pain. Each of the individual plaintiffs has been certified as a "diplomate" by one of the organizational plaintiffs' credentialing boards, indicating that the plaintiff has achieved that board's highest honor by meeting certain requirements set by the board "including training and experience beyond dental school."

The Texas Occupations Code provides that the Texas State Board of Dental Examiners may "adopt and enforce reasonable restrictions to regulate advertising relating to the practice of dentistry...." See TEX. OCC. CODE § 254.002(b). The plaintiffs take issue with one of the Board's regulations, Texas Administrative Code Section 108.54. Section 108.54 provides:

A dentist may advertise as a specialist or use the terms "specialty" or "specialist" to describe professional services in recognized specialty areas that are: (1) recognized by a board that certifies specialists in the area of specialty; and (2) accredited by the Commission on Dental Accreditation of the American Dental Association.

TEX. ADMIN. CODE § 108.54(a). Part (b) lists the ADA's nine recognized specialty areas as the ones that meet the requirements of part (a).¹ The Board does not itself certify specialties but instead relies exclusively on the ADA for that purpose. Section 108.54 also requires certain ADA-related education or board-certification qualifications in order to advertise as a specialist. See TEX. ADMIN. CODE § 108.54(c).

Section 108.54 prohibits the individual plaintiffs from advertising as specialists or referring to their practice areas as specialties because their practice areas are not recognized as such by the ADA. The ADA has considered whether to grant specialty recognition to the plaintiffs' respective practice areas, but thus far it has denied that recognition. Nevertheless, the plaintiffs are not completely forbidden from advertising their practice areas. In 2012, two of the individual plaintiffs in this case and the American Academy of Implant Dentistry challenged a separate provision of the Texas Administrative Code that restricted the plaintiffs from advertising their credentials and holding themselves out as specialists in implant dentistry. The Board responded by revising an existing regulation and adding another. See TEX. ADMIN. CODE §§ 108.55, 108.56. Section 108.55 allows general dentists who do some work related to the specialty areas listed in Section 108.54(b) to advertise those services as long as they include a disclaimer that they are a general dentist and do not imply specialization. Section 108.56 provides that dentists may advertise "credentials earned in dentistry so long as they avoid any communications that express or imply specialization...." See also TEX. ADMIN. CODE § 108.57 (prohibiting false, misleading, or deceptive advertising).

Under the current regulations, the plaintiffs may advertise credentials they have earned and the services they provide only if they clearly disclose that they are a "general dentist" and do not "imply specialization." See TEX. ADMIN. CODE §§ 108.55, 108.56. The plaintiffs complain that this regime prevents them from truthfully holding themselves out as "specialists" in their fields.

In March 2014, the plaintiffs brought this action against the executive director and members of the Board in their official capacities. The plaintiffs challenged Section 108.54 on First and Fourteenth Amendment grounds, and the parties eventually filed cross-motions for summary judgment. The district court granted summary judgment to the plaintiffs in part, concluding that Section 108.54 "is an unconstitutional restriction on Plaintiffs' First Amendment right to free commercial speech." The court enjoined the defendants "from enforcing Texas Administrative Code § 108.54 to the extent it prohibits Plaintiffs from advertising as specialists or using the terms ‘specialty’ or ‘specialist’ to describe an area of dentistry not recognized as a specialty by the American Dental Association, or any other provision of Texas law inconsistent with [the district court's] opinion." The court determined the plaintiffs' "remaining Fourteenth Amendment claims are without merit" and granted summary judgment to the defendants on those claims. The defendants appealed.

DISCUSSION

We review a judgment on cross-motions for summary judgment de novo "with evidence and inferences taken in the light most favorable to the nonmoving party." White Buffalo Ventures, LLC v. Univ. of Texas at Austin , 420 F.3d 366, 370 (5th Cir. 2005). Summary judgment is proper when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a).

This case involves commercial speech, which is protected by the First Amendment. See Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc. , 425 U.S. 748, 761–62, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). "Commercial expression not only serves the economic interest of the speaker, but also assists consumers and furthers the societal interest in the fullest possible dissemination of information." Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of New York , 447 U.S. 557, 561–62, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980).

Though commercial speech is protected by the First Amendment, courts give to it "lesser protection ... than to other constitutionally guaranteed expression." Id. at 563, 100 S.Ct. 2343. A four-part test applies:

At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful

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