June 3, 2024, opinions

Posted on by tadbartlett

Designated for publication

  • Association of American Physicians & Surgeons Educational Foundation v. American Board of Internal Medicine, 23-40423, appeal from S.D. Tex.
    • Engelhardt, J. (King, Ho, Engelhardt), Ho, J., dissenting in part; First Amendment, antitrust, standing, mootness, amendment
    • In First Amendment and antitrust claims by physicians’ professional association against governing boards and against the Secretary of the Department of Homeland Security arising from labeling as misinformation or disinformation of some physicians’ views on Covid lockdowns, vaccinations, mask mandates, and abortion, and from threats to strip certifications from otherwise qualified physicians, reversing dismissal of First Amendment claims on standing grounds, reversing denial of motion to amend complaint, vacating dismissal of antitrust claims, and modifying dismissal of claims against Department on mootness grounds to be a dismissal without prejudice.
    • As to standing by the association to assert First Amendment claims against the Board defendants, the Court summarized, “(1) AAPS asserts an injury-in-fact through the Board Defendants’ infringement on its right to hear ‘willing speakers,’ and it is premature to require AAPS to name specific ‘willing speakers’ at the pleading stage; (2) AAPS can trace its injuries back to the Board Defendants’ actions because physicians would likely ‘react predictably’ when confronted with a threat of decertification: they would choose self-censorship over professional self-immolation; and (3) AAPS’s injuries are redressable, as a ruling in its favor would allow for physicians to attend and speak at AAPS events (and thus allow AAPS to exercise its right to hear) without fear of decertification.” The Court, however, did not rule on the question of whether the Board defendants’ action qualified as state action, leaving that question for the District Court to determine in the first instance.
    • As to the association’s antitrust claims against the Board defendants, the Court vacated the dismissal, holding that the plaintiff should have been afforded an opportunity to amend, because “the District Court’s cant invocation of futility, undue prejudice, and undue delay falls well short of the analysis we require in denying an opportunity to amend.”
    • And as to dismissal of claims against the Department on mootness grounds after the Department disbanded its misinformation/disinformation review section, the Court held that the dismissal on jurisdictional grounds such as mootness should be without prejudice, and therefore amended the mootness dismissal as modified.
    • Judge Ho dissented in part. He “would simply go further” and allow the claims against the Department to go forward rather than be deemed to be moot. Ultimately, because the majority opinion allows the association to amend to further state claims against the Department, he felt the disagreement may not be of much substance, but dissented to further emphasize his views as to the First Amendment. “In America, we don’t fear disagreement—we embrace it. We persuade—we don’t punish. We engage in conversation—not cancellation. We know how to disagree with one another without destroying one another. Or at least that’s how it’s supposed to work. As the Supreme Court recently reminded us, our Constitution is premised on our firm conviction that ‘viewpoint discrimination is uniquely harmful to a free and democratic society.’ NRA v. Vullo, 602 U.S. , (2024). Intolerance of differing views contradicts our Founding principles.”

Unpublished

  • U.S. v. Roberson, 23-10623, appeal from N.D. Tex.
    • per curiam (Southwick, Haynes, Graves), criminal, supervised release
    • On revocation sentence after defendant was convicted for a second time of a crime involving GHB, the Court modified the supervised release conditions to conform the weekly reporting requirement in the written judgment to the less-onerous orally-pronounced requirement that the probation office would be permitted to set a reporting frequency, but affirmed as not plainly erroneous a condition that allowed the probation officer to determine whether limitations should be placed on the defendant’s driving privileges.
  • U.S. v. Koen, 23-10717, appeal from N.D. Tex.
    • per curiam (Wiener, Stewart, Douglas), criminal, sentencing
    • Affirming conviction of sexual exploitation of a child and attempted obstruction of an official proceeding, and affirming sentence with modification of supervised release conditions to conform to the orally pronounced conditions.
  • U.S. v. Wilson, 23-11150, appeal from N.D. Tex.
    • per curiam (Smith, Higginson, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Regino-Villanueva, 23-40624, appeal from S.D. Tex.
    • per curiam (Barksdale, Engelhardt, Wilson), criminal, sentencing
    • Affirming 60-month sentence on conviction of illegal reentry.
  • U.S. v. Bustillo, 23-40704, appeal from S.D. Tex.
    • per curiam (King, Haynes, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Pole v. Shearer, 23-60368, appeal from S.D. Miss.
    • per curiam (Elrod, Duncan, Ramirez), Bivens claim
    • Affirming dismissal of Bivens claim against FBI supervisor arising from raid of plaintiff’s home.
  • Pace v. Cirrus Design Corp., 23-60465, appeal from S.D. Miss.
    • per curiam (Smith, Wiener, Douglas), personal tort, personal jurisdiction
    • Affirming dismissal of claims arising from aircraft crash, but reversing with-prejudice dismissal as to certain defendants and remanding with instructions to dismiss without prejudice.
  • U.S. v. Winters, 23-60487, appeal from N.D. Miss.
    • per curiam (Barksdale, Engelhardt, Wilson), criminal, sentencing
    • Affirming 210-month sentence on conviction of distribution of child pornography.