Gonzalez-Droz v. Gonzalez-Colon

• Decision Date: 23 July 2009
• Docket Number: No. 08-1437.,No. 08-2189.,08-1437.,08-2189.
• Citation: 573 F.3d 75
• Parties: Efraín GONZÁLEZ-DROZ, et al., Plaintiffs, Appellants, v. Luis R. GONZÁLEZ-COLON, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

573 F.3d 75

Efraín GONZÁLEZ-DROZ, et al., Plaintiffs, Appellants, v. Luis R. GONZÁLEZ-COLON, et al., Defendants, Appellees.

No. 08-1437.

No. 08-2189.

United States Court of Appeals, First Circuit.

Heard March 3, 2009.

Decided July 23, 2009.

Roberto Ariel Fernández, with whom Juan R. González Muñoz was on brief, for appellants.

Leticia Casalduc-Rabell, Solicitor General of the Commonwealth of Puerto Rico, with whom Maite D. Oronoz-Rodríguez, Acting Solicitor General, and Ileana Oliver Falero, Acting Deputy Solicitor General, were on brief, for appellees.

Peter A. Gaido, with whom Gaido & Fintzen was on brief, for amicus American Academy of Cosmetic Surgery.

Before LYNCH, Chief Judge, LEVAL^* and LIPEZ, Circuit Judges.

LIPEZ, Circuit Judge.

We consider in this appeal the denials of two requests for preliminary injunctive relief. Appellant Dr. Efraín González-Droz sued the Puerto Rico Medical Examining Board ("the Board"), the entity responsible for overseeing the practice of medicine in the Commonwealth, in the District Court of Puerto Rico. The suit challenged, on constitutional grounds, a Board regulation restricting the practice of cosmetic surgery to a small group of specialists. Later, Dr. González-Droz amended that lawsuit to challenge the Board proceedings that led to the suspension of his medical license. His challenge to that suspension prompted two requests for preliminary injunctive relief, which were denied. The appeals from these denials were consolidated here.

After careful review of the record, we dismiss the first appeal as moot, and affirm the denial of appellant's second request for injunctive relief because he failed to make the required showing of irreparable harm.

I.

A. The Challenged Regulation

The Board of Medical Examiners of Puerto Rico is responsible for issuing licenses to practice medicine in the Commonwealth. See P.R. Laws Ann. tit. 20, § 34. The Board is also empowered to "deny, suspend, cancel or revoke any license and to issue an order fixing a probationary period for a doctor for a specific term." Id. at § 34. On October 19, 2005, the Board issued a Public Notice ("the Notice"), effective immediately, announcing and implementing new regulations on the practice of medicine in Puerto Rico. Among other things, the Notice limited the practice of cosmetic surgery¹ in Puerto Rico to physicians who had been board-certified by the American Board of Plastic Surgery² or the American Board of Dermatology.

B. The Complaint

Dr. González-Droz³ began practicing medicine in Puerto Rico in 1995, upon completing his medical residency in obstetrics and gynecology. While he originally practiced as an OB/GYN, he soon began taking continuing medical education courses in cosmetic surgery, and performing cosmetic surgery procedures. Over time, cosmetic surgery supplanted obstetrics and gynecology as the primary focus of his practice.

Because Dr. González-Droz had never obtained board-certification in plastic surgery or dermatology, the Board's October 2005 Notice rendered the majority of his medical practice illegal. After the Notice was issued, Puerto Rico's Insurance Syndicate for Medical Malpractice ("SIMED") which had been providing insurance coverage for claims arising from Dr. González-Droz's cosmetic surgery practice, informed him that it would no longer do so. On December 16, 2006, Dr. González-Droz moved to California and began the process of establishing a cosmetic medicine practice there.

On December 18, 2006, Dr. González-Droz filed a complaint in federal district court in Puerto Rico, alleging primarily that the Board's restrictions on the practice of cosmetic surgery abridged his constitutional right to pursue his occupation and were passed in a manner that did not allow him a fair opportunity to be heard, all in violation of the Due Process and Equal Protection clauses of the Fifth and Fourteenth Amendments. The complaint also alleged that the restriction constituted an unlawful restraint of trade in violation of federal antitrust laws. See 15 U.S.C. §§ 1 & 3. Dr. González-Droz stated that, as a result of the Board's actions and in order to continue his practice of cosmetic surgery, he and his family had been forced to relocate from Puerto Rico to California, where he would need to expend significant time and resources to rebuild his medical practice. He sought, inter alia, 1) a declaration that the policy set forth in the Notice was unconstitutional; 2) an injunction directing defendants to allow him to resume his practice of cosmetic surgery; 3) compensatory and punitive damages and attorneys' fees.

C. The Suspension of Dr. González-Droz's License

At the time appellant filed his complaint on December 18, 2006, he did not know that the Board had unanimously voted to summarily suspend his medical license at a meeting on December 12, 2006. In fact, the Board did not make this decision public until a Resolution was approved on April 17, 2007 (the "Resolution"). The Resolution included a finding that appellant was not certified as a plastic surgeon and that his practice of cosmetic procedures constituted the illegal practice of medicine, as well as several findings of fact that called into question the quality of care that Dr. González-Droz provided his patients. "Pursuant to [those] factual determinations as well as the legal conclusions," the Resolution summarily suspended appellant's medical license temporarily, effective from the date of its delivery, and stated that the Board would consider a more permanent suspension at a future hearing.

The pleadings suggest that Dr. González-Droz did not actually receive a copy of the Resolution until May 2, 2007, when he was served in-hand upon a return visit to Puerto Rico. Although the Board scheduled a hearing for May 15, 2007, counsel for Dr. González-Droz wrote a letter to the Board's attorneys, objecting to the form and timing of the notice and stating that Dr. González-Droz would not be attending the hearing.

D. The First Motion for Injunctive Relief

On May 11, Dr. González-Droz filed his first motion for a preliminary injunction. He asked the court to "enjoin[ ] defendants from holding a hearing on May 15, 2007, or any other date and order[ ] defendants to reinstate [his] medical license." The district court did not immediately rule on this motion, and the Board conducted a hearing in absentia on May 15, 2007, as scheduled.⁴ While waiting for the district court's decision on his preliminary injunction request, Dr. González-Droz filed an Amended Complaint in which he repeated his previous constitutional challenges to the Notice and added allegations that the summary suspension of his license violated his procedural Due Process rights.

After a hearing, the district court denied appellant's first motion for a preliminary injunction on February 7, 2008. The court concluded that because Dr. González-Droz had failed to argue that a denial of his request for a preliminary injunction would cause irreparable injury, he had failed to establish one of the required elements for relief. The court also summarily stated that Dr. González-Droz was unlikely to succeed on the merits of his substantive due process challenge to the Notice, as it was "clear[ ]" that the "Board has the power to regulate who can practice cosmetic medicine, and that it did so." A timely appeal followed.

E. The Second Motion for Injunctive Relief

On April 4, 2008, while that appeal was pending in this court, the Board issued its final decision to suspend Dr. González-Droz's medical license for five years and impose a $5,000 fine. On June 10, 2008, Dr. González-Droz filed a second motion for a preliminary injunction asking the court to order the Board to vacate that order, or at least to delay its effects pending his appeal to this court from the denial of his first request for a preliminary injunction. Although the Board did not oppose appellant's motion, the district court denied it on August 18, 2008, concluding that Dr. González-Droz had not established that the denial of the preliminary injunction would cause him irreparable harm. In explaining this ruling, the court emphasized that Dr. González-Droz had already established a new practice in California. The court did not comment on appellant's likelihood of success on the merits of his challenge to the Notice restricting the practice of cosmetic surgery to board-certified plastic surgeons and dermatologists.

II.

We review the denial of a motion for preliminary injunctive relief for abuse of discretion, Wine and Spirits Retailers, Inc. v. Rhode Island, 418 F.3d 36, 46 (1st Cir.2005), and we will "reverse [the] denial only if the district court mistook the law, clearly erred in its factual assessments, or otherwise abused its discretion." McClure v. Galvin, 386 F.3d 36, 41 (1st Cir.2004) (internal quotation marks and citation omitted).

In considering a motion for a preliminary injunction, a district court must consider: "(1) the plaintiff's likelihood of success on the merits; (2) the potential for irreparable harm in the absence of an injunction; (3) whether issuing an injunction will burden the defendants less than denying an injunction would burden the plaintiffs; and (4) the effect, if any, on the public interest." Boston Duck Tours, LP v. Super Duck Tours, LLC, 531 F.3d 1, 11 (1st Cir.2008) (quotation marks and citations omitted). The first two factors are the most important and, in most cases, "irreparable harm constitutes a necessary threshold showing for an award of preliminary injunctive relief." Charlesbank Equity Fund II v. Blinds To Go, Inc., 370 F.3d 151, 162 (1st Cir.2004). "To demonstrate the prospect of future harm, . . . a plaintiff must show more than that she has been injured. . . ." Steir v. Girl Scouts of the USA, 383 F.3d 7, 16 (1st Cir.2004). "Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if...