American Academy of Pain Management v. Joseph, 01-15764.

• Decision Date: 02 January 2004
• Docket Number: No. 01-15764.,01-15764.
• Citation: 353 F.3d 1099
• Parties: AMERICAN ACADEMY OF PAIN MANAGEMENT, a California non-profit corporation; Arnold Fox, M.D.; B. Elliot Cole, M.D., Plaintiffs-Appellants, v. Ronald JOSEPH, in his official capacity as the Executive Director of the Medical Board of California, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1099

353 F.3d 1099

AMERICAN ACADEMY OF PAIN MANAGEMENT, a California non-profit corporation; Arnold Fox, M.D.; B. Elliot Cole, M.D., Plaintiffs-Appellants, v. Ronald JOSEPH, in his official capacity as the Executive Director of the Medical Board of California, Defendant-Appellee.

No. 01-15764.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 14, 2002 — San Francisco, California.

Filed January 2, 2004.

COPYRIGHT MATERIAL OMITTED

James J. Milam, Modesto, CA, for the plaintiffs-appellants.

Mara Faust, Deputy Attorney General, Sacramento, CA, for the defendant-appellee.

Appeal from the United States District Court for the Eastern District of California; Lawrence K. Karlton, Chief Judge, Presiding. D.C. No. CV-96-02108-LKK.

Before: JOSEPH T. SNEED, PROCTER HUG, Jr. and MARSHA S. BERZON, Circuit Judges.

OPINION

HUG, Circuit Judge:

This appeal concerns the constitutionality of a California statute that limits a physician from advertising that he or she is "board certified" in a medical speciality unless the certifying board or association meets certain requirements. The American Academy of Pain Management ("the Academy") and two of its member doctors, Dr. Arnold Fox, and Dr. B. Elliot Cole, (collectively "the Plaintiffs") brought this action for injunctive relief under 42 U.S.C. § 1983 against Ronald Joseph in his official capacity as the Executive Director of the Medical Board of California ("the Defendant"). The Plaintiffs contended (1) that the statute and regulations implementing the statute constitute an impermissible regulation of commercial speech in violation of the First Amendment; (2) that the statute and regulations are vague and over broad; (3) that the statute and the regulations deprive the members of the Academy of their First Amendment right to free association; and (4) that the action of the Medical Board of California in applying the statute denied the Plaintiffs due process. The district court granted summary judgment for the Defendant, and we affirm.

I. FACTS AND PROCEDURAL HISTORY

California Business and Professions Code § 651 generally proscribes false and misleading advertising by health care professionals licensed by the state. Section 651(h)(5)(B) specifically regulates the advertising of physicians and surgeons. It permits them to indicate fields of specialization, but prohibits them from representing that they are "board certified" unless the certifying organization (1) is a member board of the American Board of Medical Specialties ("ABMS"), (2) has requirements equivalent to those of the ABMS, as determined by the Medical Board of California, or (3) has a postgraduate training program approved by the Accreditation Council for Graduate Medical Education ("Accreditation Council") that provides "complete training" in the designated specialty. See id. at § 651(h)(5)(B). The statute specifies that a physician or surgeon licensed under Chapter 5 by the Medical Board of California who is certified by an organization other than a board or association in one of the three categories "shall not use the term `board certified' in reference to that certification" unless he or she is also licensed under Chapter 4. Id.¹ Those physicians and surgeons allowed to advertise that they are "board certified" must state the full name of the certifying organization, giving it comparable prominence with the term "board certified." Id.

Section 651(h)(5)(B) authorized the Medical Board of California to adopt regulations to administer the section. See id. These regulations are contained in Title 16 of the California Code of Regulations § 1363.5. They specify both the criteria that the Medical Board of California will use to determine whether a certifying organization possesses requirements equivalent to those of the ABMS and the procedures that govern applications for an equivalency determination by the Medical Board of California. See 16 Cal.Code Regs. § 1363.5. The regulations came into effect on February 28, 1994. See id. Certifying organizations had three years from this effective date to demonstrate their equivalency. Id. at § 1363.5(b)(8)(C).

Violation of section 651(h)(5)(B) is a misdemeanor punishable by up to six months in county jail and a fine of up to $2,500, an administrative fine of up to $10,000 per event, and possible revocation or suspension of the violator's license. Cal. Bus. & Prof.Code §§ 651(f),(g),(k), 652, & 652.5.

The Academy is a non-profit organization, incorporated in 1988, involved in developing standards enhancing education and issuing credentials for multi-disciplinary pain practitioners. Those disciplines include dentists, physicians, nurse anesthesiologists, psychologists, athletic trainers, chiropractors, counselors, social workers, physical therapists and practitioners of oriental medicine. On April 5, 1996, the Academy filed an application with the Medical Board of California, as the licensing board for physicians and surgeons, for recognition of the Academy's right to advertise by using the words "board certified." (Plaintiff's ER at 12). The Medical Board of California hired Dr. William Hamilton as a consultant to review the Academy's application and issue a report comparing the Academy's standards for certification with those of the ABMS to determine if they were equivalent.

Dr. Hamilton concluded that the Academy fell far short of equivalency. The Academy does not require its members to have any formal postgraduate training, but instead requires only two years of experience working with patients having pain. The Academy examination consists of 100 multiple choice questions and takes approximately two hours to complete. The Medical Board of California regulations require that the examinations of certifying organizations be a minimum of sixteen hours in length, which is the examination requirement of ABMS. See 16 Cal.Code Regs. § 1363.5(b)(10). Moreover, Dr. Hamilton found that, as of March of 1996, more than eighty percent of the Academy's members had not taken the exam, but had been grandfathered into the Academy.

On February 7, 1997, the Medical Board of California denied the Academy's application for equivalency status. By this time, the Plaintiffs had filed a section 1983 suit in federal district court on December 6, 1996, alleging that section 651(h)(5)(B) violated their First Amendment rights. The complaint stated that the two individual plaintiffs, Dr. Fox and Dr. Cole, had advertised by way of letterhead that each is "board certified" by the Academy. Shortly before the end of the three-year grace period provided by the regulations, the Plaintiffs sought a temporary restraining order barring the Medical Board of California from enforcing section 651(h)(5)(B). The district court issued the temporary restraining order after an expedited hearing conducted the day before the grace period ended. Subsequently, the court dissolved the temporary restraining order and denied the Plaintiffs' motion for a preliminary injunction. The Plaintiffs appealed the decision to this court, which held that the district court had not abused its discretion in denying the preliminary injunction.

Both parties moved for summary judgment. The district court granted the Defendant's summary judgment motion on the Plaintiffs' claim that (1) section 651(h)(5)(B) and its implementing regulations, on their face, violate the First Amendment's guarantee of free speech, (2) section 651(h)(5)(B) and its implementing regulations, as applied to them, violate their rights to free speech, and (3) Plaintiffs' procedural due process rights were violated. Subsequently, both parties moved for summary judgment on the Plaintiffs' remaining claims. The district court granted the Defendant's motion and denied the Plaintiffs', ruling that section 651(h)(5)(B) and its implementing regulations are not unconstitutionally overbroad or vague and do not violate the Plaintiffs' rights to free association. The district court then entered final judgment. The Plaintiffs filed a timely notice of appeal. The Plaintiffs appeal all of the district court's rulings except the court's dismissal of their as-applied free speech claim. The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1343(a)(3). We have appellate jurisdiction under 28 U.S.C. § 1291. This court reviews de novo the district court's grant of summary judgment. Delta Savings Bank v. United States, 265 F.3d 1017, 1021 (9th Cir.2001). The district court's rulings on the constitutionality of the California statute and the implementing regulations are subject to de novo review. Chamber of Commerce v. Argenbright, 226 F.3d 1049, 1054 (9th Cir. 2000).

II.

REGULATION OF COMMERCIAL SPEECH.

The California statute in issue in this case is § 651(h)(5)(B) of the California Business and Professions Code. This section regulates the permissible advertising of a physician or surgeon. It provides that:

A physician or surgeon ... may include a statement that he or she limits his or her practice to specific fields, but shall not include a statement that he or she is certified or eligible for certification by a private or public board or parent association, including but not limited to, a multidisciplinary board or association, unless that board or association is (i) an American Board of Medical Specialities Board member (ii) a board or association with equivalent requirements approved by that physician and surgeon's licensing board or (iii) a board or association with an Accreditation Council for Graduate Medical Education approved postgraduate training program that provides complete training in that specialty or subspecialty. A physician and surgeon... who is certified by an organization other than a board or association referred to in clause (i), (ii), or (iii) shall not use the term "board certified" in reference to that certification.... A physician and surgeon ... who is certified by a board or association referred to in clause ...