Gonzalez-Droz v. Gonzalez-Colon

United States Court of Appeals
For the First Circuit

No. 10-1881

DR. EFRAÍN GONZÁLEZ-DROZ ET AL.,

Plaintiffs, Appellants,

v.

DR. LUIS R. GONZÁLEZ-COLÓN ET AL.,

Defendants, Appellees.

[Hon. Salvador E. Casellas, U.S. District Judge]

Before

Boudin, Selya and Dyk**, Circuit Judges.

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.

September 16, 2011

*
Of the Federal Circuit, sitting by designation.
 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.

1
The parties treat the terms "cosmetic surgery," "cosmetic
medicine," and "aesthetic medicine" as rough equivalents. We do
the same.

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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

2
The plaintiff's wife and their conjugal partnership are
named as additional plaintiffs. The district court dismissed their
claims for lack of standing. González-Droz, 717 F. Supp. 2d at
205-06. That ruling has not been challenged on appeal.
Accordingly, we treat Dr. González-Droz as the sole plaintiff.
3
On August 1, 2008, the Puerto Rico legislature passed a
statute dissolving the Board. A successor entity, the Medical
Discipline and Licensure Board, was created in its place. See P.R.
Laws Ann. tit. 20, §§ 131-135j. It also has the power to
promulgate regulations. Id. § 132e(b). Notwithstanding these
changes, the regulation at issue remains in full force and effect.

-3-
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

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 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.

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 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.

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 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

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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). Summary judgment is appropriate

4
We say "essentially" because the court, after jettisoning
the plaintiff's claims, nonetheless ordered the Board to hold a new
license suspension hearing. González-Droz, 717 F. Supp. 2d at 216.
In view of the fact that the parties present no arguments touching
upon this seeming anomaly, we need not probe its ramifications.

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only if the record, read in the prescribed manner, "reveals that

there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law." Estate

of Hevia v. Portrio Corp., 602 F.3d 34, 40 (1st Cir. 2010).

Appellate review of summary judgment orders is de novo.

Houlton Citizens' Coal., 175 F.3d at 184. This review is not

cabined by the lower court's rationale; rather, the court of

appeals may affirm on any independent ground made evident by the

record. Id.

Here, the district court's single-minded emphasis on

immunity issues put the cart before the horse. In the

circumstances of this case, no combination of immunity doctrines

can obviate the need to decide the question of the

constitutionality of the Regulation. We take a different approach.

Refined to their essence, the plaintiff's claims (we leave to one

side the antitrust claim, which is not pursued on appeal) present

a more clear-cut series of dispositive issues. Where, as here, the

district court does not decide the dispositive issues presented in

fully briefed motions for summary judgment, we may elect in our

discretion either to remand or to decide the issues. See Singleton

v. Wulff, 428 U.S. 106, 120-21 (1976); N.H. Motor Transp. Ass'n v.

Flynn, 751 F.2d 43, 52 (1st Cir. 1984). In this instance, the

issues are purely legal and the outcome is clear. We proceed,

therefore, to the merits.

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 As we envision it, the proper decisional matrix in this

case presents three sets of issues. First, we decide whether the

Regulation withstands equal protection and due process challenges.

We then decide whether the actions undertaken to suspend the

plaintiff's medical license offended procedural due process.

Finally, we determine whether the suspension itself is open to

attack on either substantive due process or First Amendment

(retaliation) grounds. We address these matters below.

A. The Regulation.

The plaintiff launches two constitutional challenges

against the validity of the Regulation. We address them

separately.

1. Rational Basis. With considerable assistance from

the amicus, the plaintiff charges that limiting the practice of

cosmetic medicine to board-certified plastic surgeons and

dermatologists transgresses the Equal Protection and Due Process

Clauses. U.S. Const. amend. XIV, § 1. In mounting this argument,

the plaintiff does not allege either that he is a member of a

suspect class or that the Regulation infringes a fundamental right.

Consequently, we take the measure of the Regulation under rational

basis review. See Medeiros v. Vincent, 431 F.3d 25, 29 (1st Cir.

2005); Baker v. City of Concord, 916 F.2d 744, 755 (1st Cir. 1990).

Rational basis review "is a paradigm of judicial

restraint." FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 314 (1993).

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"The general rule is that legislation is presumed to be valid and

will be sustained if the classification drawn . . . is rationally

related to a legitimate state interest." City of Cleburne v.

Cleburne Living Ctr., Inc., 473 U.S. 432, 440 (1985). The

challenger has the devoir of persuasion and must negate any and all

conceivable bases upon which the challenged regulation might

appropriately rest. Bd. of Trs. of Univ. of Ala. v. Garrett, 531

U.S. 356, 367 (2001); Heller v. Doe, 509 U.S. 312, 320 (1993). If

any such ground exists to support the classification employed, the

regulation must be upheld even if it is drawn from "rational

speculation unsupported by evidence or empirical data." Beach

Commc'ns, 508 U.S. at 315.

In this instance, the interests that the Regulation

purposes to serve are unarguably legitimate. States — and Puerto

Rico is for this purpose the functional equivalent of a state, see

Exam'g Bd. of Eng'rs, Architects & Surveyors v. Flores de Otero,

426 U.S. 572, 600-01 (1976) — have a profound interest in assuring

the health of the public and, thus, in regulating the practice of

medicine. See, e.g., Hillsborough Cnty. v. Automated Med. Labs.,

Inc., 471 U.S. 707, 719 (1985); Bigelow v. Virginia, 421 U.S. 809,

827 (1975). As a corollary of this proposition, states may act to

safeguard "the integrity and ethics of the medical profession" and

to protect "vulnerable groups . . . from abuse, neglect, and

-11-
mistakes" at the hands of medical practitioners. Washington v.

Glucksberg, 521 U.S. 702, 731 (1997).

The plaintiff strives to convince us that the Regulation

is not rationally related to these salutary purposes but, instead,

draws an arbitrary distinction that is useless in promoting safe

and effective health care. He begins this effort by pointing out

that cosmetic medicine deals with the achievement of aesthetic

ideals, whereas plastic surgery and dermatology deal with medically

indicated needs for treatment and reconstruction. But this

argument, which depends on oversimplification and unproven

generalities, fails to demonstrate the absence of a rational basis.

Rational basis review requires only that the state could

rationally have concluded that the challenged classification might

advance its legitimate interests. See Minnesota v. Clover Leaf

Creamery Co., 449 U.S. 456, 466 (1981). The Board's decision to

limit access to the practice of cosmetic medicine by reference to

board certification in plastic surgery and dermatology satisfies

this standard. In adopting the certification requirement, the

Board repeatedly remarked upon the dangers attendant to cosmetic

procedures and the need to guide patients to qualified

practitioners.

The Board thought that a general license to practice

medicine is not enough to ensure competence in this field and

decided to use as a proxy for competence two closely related

-12-
specialty boards. The plaintiff's arguments against that choice

emphasize the lack of perfect symmetry between those specialties

and cosmetic medicine. But perfect symmetry is not required: as

long as the premises underlying the state's reasoning are at least

"arguable," the state's judgment about a matter subject to rational

basis review is protected from constitutional attack. Beach

Commc'ns, 508 U.S. at 320. In this case, there is no accredited

specialty board for cosmetic medicine, and certification in the

closely related fields of plastic surgery and dermatology arguably

could be seen as a surrogate.5 To pass rational basis review, it

is enough that the classification falls within the universe of

reasonable alternatives that might serve to foster improved patient

care and safety. The Regulation achieves this benchmark.

We reject the plaintiff's insistence that the selection

of this alternative is wholly arbitrary. During their specialized

residency training, both plastic surgeons and dermatologists are

exposed to procedures that are indigenous to cosmetic medicine.

They develop a skill set compatible with that practice area.

Perhaps more important, both plastic surgeons and dermatologists

are trained in general concepts that advance their abilities to

5
Although the plaintiff rails against the use of board
certification in plastic surgery and dermatology, he does not
identify any other accredited specialty board that is more closely
aligned with cosmetic medicine. His point seems to be that none of
the existing board certifications should be required in this
practice area.

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understand and perform cosmetic procedures. It was not arbitrary

for the Board to conclude that such training would, on the whole,

contribute to improved patient care and safety in this rapidly

evolving field. See Maguire v. Thompson, 957 F.2d 374, 377 (7th

Cir. 1992).

The fact that the actual practice of any particular

plastic surgeon or dermatologist may not include performance of

cosmetic procedures does not undercut this conclusion. The

training needed to obtain board certification in these specialties

overlaps substantially with the knowledge needed to practice

cosmetic medicine safely and effectively. That is enough, as a

constitutional matter, to justify the Board's solution.

The plaintiff complains that a classification based on

board certification in other specialties is an ineffective way to

foster patient choice and safety. He notes that residency programs

and other prerequisites for certification in plastic surgery and/or

dermatology do not encompass all, or even most, cosmetic medicine

procedures; yet under the Regulation, a board-certified plastic

surgeon or dermatologist may practice cosmetic medicine without

proof of any additional training. In contrast, other doctors (who

may have undergone additional procedure-specific training) cannot.

This plaint is unavailing. In conducting rational basis

review, courts are not tasked with deciding whether a better or

more effective means of classification exists. See Clover Leaf

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Creamery, 449 U.S. at 470. "It is enough that there is an evil at

hand for correction, and that it might be thought that the

particular legislative measure was a rational way to correct it."

Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 488 (1955).

While the Regulation may draw an imperfect line, that circumstance

alone does not render it unconstitutional. The wisdom of the

Board's choice is not within the judiciary's purview. See Beach

Commc'ns, 508 U.S. at 313-14.

The plaintiff seeks to derive sustenance from the fact

that no other state has adopted a similar limitation with respect

to the practice of cosmetic medicine. That is true as far as it

goes — but it does not provide much nourishment to the plaintiff's

argument. Differences in classifications among the several states,

without more, do not betoken irrationality. See Nat'l Ass'n for

Adv. of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043,

1053 (9th Cir. 2000). "[W]here individuals in the group affected

by a law have distinguishing characteristics relevant to interests

the State has the authority to implement, the courts have been very

reluctant, as they should be in our federal system and with our

respect for the separation of powers, to closely scrutinize

legislative choices as to whether, how, and to what extent those

interests should be pursued." City of Cleburne, 473 U.S. at 441-

42; see Vance v. Bradley, 440 U.S. 93, 97 (1979).

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 The plaintiff's next argument is misdirected. He insists

that, by virtue of both training and experience, he is superbly

qualified to practice cosmetic medicine. That may be so — and the

Board could, if it so chose, conduct a case-by-case assessment of

each physician's qualifications in cosmetic medicine as a

prerequisite to permitted practice in that field. But the

Constitution does not demand so specific a decisional matrix. See

Williamson, 348 U.S. at 489. The state may paint with a broader

brush as long as the criteria that it chooses are rationally

related to some legitimate governmental purpose. Board

certification, as a practice criterion, satisfies this

requirement.6 See Am. Med. Ass'n, State Medical Licensure

Requirements and Statistics 128 (2011). Although the point may be

debatable, see, e.g., id. at 167 (discussing conflicting views

among national professional organizations over precise value of

board certification), the Board's decision to limit the practice of

cosmetic medicine to physicians who have achieved board

certification in closely related fields represents a permissible

choice. See Clover Leaf Creamery, 449 U.S. at 469.

6
The amicus contends that the Board's reliance on
certification is inconsistent with a federal regulation prohibiting
hospitals from awarding staff privileges on the basis of board
certification alone. See 42 C.F.R. § 482.12(a)(7). This argument
was not raised below, and we repeatedly have held that "[w]hile
amicus briefs are helpful in assessing litigants' positions, an
amicus cannot introduce a new argument into a case." United States
v. Sturm, Ruger & Co., 84 F.3d 1, 6 (1st Cir. 1996); accord Lane v.
First Nat'l Bank of Boston, 871 F.2d 166, 175 (1st Cir. 1989).

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 In sum, the Board, acting within the scope of its

delegated authority, settled upon a regulatory classification that

bears a rational relationship to the legitimate objective of

promoting safe and effective medical care. Consequently, the

Regulation does not contravene the Equal Protection or Due Process

Clauses.

2. Vagueness. The plaintiff also claims that the

Regulation is unconstitutionally vague because it does not clearly

define its limitations. This claim need not detain us.

"It is a basic principle of due process that an enactment

is void for vagueness if its prohibitions are not clearly defined."

Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). This does

not mean, however, that a law or a regulation must be precise to

the point of pedantry. See Barr v. Galvin, 626 F.3d 99, 107 (1st

Cir. 2010). Where a profession-specific regulation affords

sufficient indicia of its meaning and application to those of

ordinary intelligence in the profession, it is not subject to

invalidation on vagueness grounds. See Doyle v. Sec'y of HHS, 848

F.2d 296, 301 (1st Cir. 1988).

In this instance, the Regulation identifies the covered

procedures as those "commonly marketed" as "aesthetic medicine" and

defines them with reference to plastic surgery and dermatology.

This is enough to avoid a general charge of vagueness. It may be

that a particular procedure exists on the margin that would leave

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a physician of ordinary intelligence to wonder whether that

procedure is covered by the Regulation. But no such uncertainty

plagued the plaintiff in this case (or, if it did, he has not

offered an example). For aught that appears, the plaintiff's

practice consisted of liposuction, breast augmentation, and other

procedures that fell squarely within the compass of the Regulation.

There could be no doubt among medical professionals that the

Regulation reaches those procedures. See id. Accordingly, the

plaintiff's vagueness challenge fails.

B. The Suspension.

Taking aim at a different target, the plaintiff assails,

on constitutional grounds, both the procedures used to suspend his

license and the suspension itself. The Due Process Clause

prohibits a state from depriving a person of "life, liberty, or

property, without due process of law." U.S. Const. amend. XIV,

§ 1. "This guarantee has both substantive and procedural

components." Pagán v. Calderón, 448 F.3d 16, 32 (1st Cir. 2006).

The plaintiff's broadside, and our ensuing analysis, implicate both

theories. We also address under this rubric the plaintiff's claim

of retaliation.

1. Procedural Due Process. The plaintiff contends that

the actions undertaken to effect the suspension of his license

violated his procedural due process rights. We think not.

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 To establish a procedural due process violation, the

plaintiff "must identify a protected liberty or property interest

and allege that the defendants, acting under color of state law,

deprived [him] of that interest without constitutionally adequate

process." Aponte-Torres v. Univ. of P.R., 445 F.3d 50, 56 (1st

Cir. 2006) (alterations, internal quotation marks, and citations

omitted). Because the Board stripped the plaintiff of his license

(and, thus, took away a means of earning his livelihood), he has

made the necessary showing of a deprivation of a constitutionally

protected property interest. See FDIC v. Mallen, 486 U.S. 230, 243

(1988); Beauchamp v. De Abadia, 779 F.2d 773, 775 (1st Cir. 1985).

The question, then, is whether the process leading to that

deprivation passes constitutional muster.

The basic guarantee of procedural due process is that,

"before a significant deprivation of liberty or property takes

place at the state's hands, the affected individual must be

forewarned and afforded an opportunity to be heard 'at a meaningful

time and in a meaningful manner.'" Amsden v. Moran, 904 F.2d 748,

753 (1st Cir. 1990) (quoting Armstrong v. Manzo, 380 U.S. 545, 552

(1965)). No rigid taxonomy exists for evaluating the adequacy of

state procedures in a given case; rather, "due process is flexible

and calls for such procedural protections as the particular

situation demands." Morrissey v. Brewer, 408 U.S. 471, 481 (1972).

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 In this case, the plaintiff identifies the lack of a pre-

deprivation hearing, the brevity of the notice afforded in advance

of the hearing, and the nature of the hearing itself as hallmarks

of a constitutional shortfall. We examine this asseverational

array.

In order to determine both when a pre-deprivation hearing

is compulsory and what process is due, an inquiring court must

balance a myriad of factors, including the private and public

interests involved, the risk of an erroneous deprivation inherent

in the procedures employed by the state, and the likely benefit

that might accrue from additional procedural protections. Mathews

v. Eldridge, 424 U.S. 319, 335 (1976). Whether the deprivation

was, in fact, justified is not an element of the procedural due

process inquiry. See Carey v. Piphus, 435 U.S. 247, 266 (1978).

The plaintiff first upbraids the defendants for their

vote to suspend his license, albeit provisionally, without an

antecedent hearing. To begin, it is difficult to imagine what

value there would have been in a pre-deprivation hearing. The

plaintiff does not challenge the Board's key finding that

precipitated its action: their determination that the plaintiff was

practicing cosmetic medicine in violation of the Regulation. The

lack of any dispute over that key finding is telling. See Codd v.

Velger, 429 U.S. 624, 627-28 (1977) (per curiam) (finding no pre-

deprivation hearing necessary when there was no factual dispute);

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Barbian v. Panagis, 694 F.2d 476, 488 (7th Cir. 1982) (similar).

Although the plaintiff implies that he would have challenged the

constitutionality of the Regulation at the hearing, that is a

question for adjudication by the courts, not the Board. Of course,

the plaintiff could have contested the Board's other factual

conclusions or appeared personally to plead that he should not lose

his license despite the violation; thus, we proceed to assess his

procedural due process claim.

The plaintiff's criticism overlooks that due process does

not invariably require a hearing before the state can interfere

with a protected property interest. A key datum is whether "some

form of hearing is [provided] before an individual is finally

deprived of [the] interest." Mathews, 424 U.S. at 333 (emphasis

supplied); see Herwins v. City of Revere, 163 F.3d 15, 18 (1st Cir.

1998). Considering that the license suspension was at that point

provisional (not final), that the balance of the private and public

interests involved favored immediate action, and that the risk of

an erroneous deprivation was very small, we conclude that a prompt

post-deprivation hearing was constitutionally adequate.

In working this calculus, we give great weight to the

proposition that when the state reasonably determines that a

license-holder poses a risk to patient safety, pre-deprivation

process typically is not required. See Patel v. Midland Mem'l

Hosp. & Med. Ctr., 298 F.3d 333, 339-40 (5th Cir. 2002). In these

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circumstances, moreover, the need for a pre-deprivation hearing is

further diminished by the state's strong interest in upholding "the

integrity of [a] state-licensed profession[]." Amsden, 904 F.2d at

755. The Board's concern that González-Droz "may harm patients"

because he lacks the "training required by the [Regulation] to

carry out such procedures" provided a sufficient basis for a

founded conclusion that no pre-deprivation hearing was

constitutionally compelled. See Nnebe v. Daus, 644 F.3d 147, 158-

59 (2d Cir. 2011); Patel, 298 F.3d at 339-41.

Neither the possible risk of an erroneous deprivation nor

the possible benefit of additional safeguards shifts the balance.

Especially in cases involving public health and safety and the

integrity of professional licensure, the force of these factors is

significantly diminished by the ready availability of prompt post-

deprivation review. See Nnebe, 644 F.3d at 159; Amsden, 904 F.2d

at 755. In this case, the provisional suspension did not take

effect until May 2, 2007. The plaintiff was afforded a hearing

roughly two weeks later (prior to the Board's decision to make the

suspension final). Given this chronology, we do not believe that

the lack of a pre-deprivation hearing offended due process. See,

e.g., Nnebe, 644 F.3d at 151, 158-59 (finding provision of a post-

deprivation hearing within a similar time frame sufficiently

prompt).

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 The plaintiff's assault on the adequacy of the notice

provided in advance of the post-deprivation hearing is easily

repulsed. The plaintiff focuses with tunnel vision on the summons

that he received on May 14 to support an allegation that he had

only a few hours' notice of the May 15 hearing. This is sheer

persiflage. In reality, the notice afforded to the plaintiff and

his opportunity to prepare were much greater. The plaintiff was

aware more than five months earlier that his continued practice of

cosmetic medicine flew in the teeth of the Regulation and placed

his medical license in jeopardy. The suit that he filed in

December of 2006 attests to this awareness. Moreover, the

resolution that the Board delivered to the plaintiff in hand on May

2 advised him that a hearing would be held within fifteen days.

Taken together, these facts demonstrate that the plaintiff had

ample notice of the hearing, a fair indication of when it would

occur, and a sufficient opportunity to prepare for it.7 See, e.g.,

Cepero-Rivera v. Fagundo, 414 F.3d 124, 127, 134-35 (1st Cir. 2005)

(finding sixteen days' notice of hearing sufficient); O'Neill v.

Baker, 210 F.3d 41, 44-45, 48-49 (1st Cir. 2000) (finding six days'

notice sufficient when plaintiff understood the nature of the

charges three months earlier).

7
It is difficult to discern what additional safeguards might
have benefitted the plaintiff. The resolution unambiguously stated
that a hearing would occur within fifteen days, yet the plaintiff
elected to return to California.

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 If more were needed — and we doubt that it is — the

resolution explained that if the plaintiff was unable to attend the

hearing or to proceed, he could request a continuance. He eschewed

that opportunity, instead telling the defendants that the issues

should be resolved through litigation. This steadfast insistence

on boycotting the hearing further erodes the plaintiff's claim of

inadequate notice. See, e.g., Luellen v. City of East Chicago, 350

F.3d 604, 616 (7th Cir. 2003); Conward v. Cambridge Sch. Comm., 171

F.3d 12, 24 (1st Cir. 1999).

What remains is to determine whether the hearing itself

offered adequate safeguards. The plaintiff's contrary claim rests

primarily on an assertion that defendant José Jiménez-Rivera

(Jiménez), the Board's investigative officer and the de facto

prosecutor at the May hearing, infected the proceeding with a risk

of bias because the plaintiff had named him months earlier as a

defendant in this suit.

Certainly, "a biased decisionmaker [is] constitutionally

unacceptable." Withrow v. Larkin, 421 U.S. 35, 47 (1975). But

Jiménez's duties as the Board's investigative officer do not

involve decisionmaking. A person who investigates and presents an

agency's case, unlike a decisionmaker, does not have to be neutral.

See Marshall v. Jerrico, Inc., 446 U.S. 238, 248 (1980).

In a further attack on the conduct of the hearing, the

plaintiff asserts that the Board failed to demand sufficient

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evidence in connection with the patient grievances to which it

referred in its suspension decision. Here, however, the plaintiff

had the opportunity to engage counsel and present rebuttal evidence

at the hearing, see P.R. Laws Ann. tit. 3, § 2151. He could have

submitted his patient files for consideration but did not do so.

Given this tactical decision, he hardly can complain about the

Board's reference to the dissatisfied patients' unopposed

testimony, and we do not, in any event, read the Board's decision

as resolving the issue of the patient grievances.

That ends this aspect of the matter. The plaintiff had

notice, an opportunity to be heard, a right to counsel, and a right

to present evidence to his own behoof. The Board's provision of

these safeguards sufficed to meet the demands of due process. See,

e.g., Torres-Rosado v. Rotger-Sabat, 335 F.3d 1, 10-11 (1st Cir.

2003).

2. Substantive Due Process. The constitutional

guarantee of substantive due process "functions to protect

individuals from particularly offensive actions on the part of

government officials." Pagán, 448 F.3d at 32. In other words, "a

substantive due process claim implicates the essence of state

action rather than its modalities." Amsden, 904 F.2d at 753. The

plaintiff bears the burden of showing that the challenged actions

were "so egregious as to shock the conscience." Pagán, 448 F.3d at

32. To sink to this level, the challenged conduct must be "truly

-25-
outrageous, uncivilized, and intolerable." Hasenfus v. LaJeunesse,

175 F.3d 68, 72 (1st Cir. 1999).

The plaintiff claims that the suspension of his license

was so heavy-handed as to work a denial of substantive due process.

We reject this claim out of hand. In this case, neither the

Board's actions nor the result of those actions (the license

suspension) remotely approach the level of a substantive due

process violation. Consequently, summary judgment was inevitable

on this claim.

3. Retaliation. The plaintiff has one more shot in his

sling. He argues that the suspension of his license cannot stand

because the Board's decision was in retaliation for filing this

suit and his testimony in favor of another physician in a separate

2005 license-suspension case. This claim is without merit.

Citizens have a First Amendment right to engage in

certain kinds of speech, including the filing of civil actions,

see, e.g., Bill Johnson's Rests., Inc. v. NLRB, 461 U.S. 731, 752

(1983), and testifying at administrative hearings, see, e.g.,

Johnston v. Harris Cnty. Flood Control Dist., 869 F.2d 1565, 1576-

78 (5th Cir. 1989). Government actors offend the First Amendment

when they retaliate against an individual for constitutionally

protected speech. Hartman v. Moore, 547 U.S. 250, 256 (2006). A

party seeking to establish a claim of retaliation under the First

Amendment must show that the conduct in which he engaged was a

-26-
"substantial" or "motivating factor" in the challenged decision.

Centro Medico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1,

10 (1st Cir. 2005) (quoting Mt. Healthy City Sch. Dist. Bd. of

Educ. v. Doyle, 429 U.S. 274, 287 (1977)). This showing

necessitates proof of a causal connection between the allegedly

protected speech and the allegedly retaliatory response. Davignon

v. Hodgson, 524 F.3d 91, 106 (1st Cir. 2008).

In the case at hand, the plaintiff insists that the

suspension decision followed two instances of protected speech and

that this temporal proximity, without more, supports a conclusion

that a causal connection exists between these events. Temporal

proximity alone may, in certain circumstances, support an inference

of retaliation. See Philip v. Cronin, 537 F.3d 26, 33 (1st Cir.

2008). Here, however, neither of the described incidents forges

the necessary causal link.

We start with the plaintiff's suit. The Board made its

decision to suspend the plaintiff's license on December 12, 2006.

This occurred before the plaintiff filed the original complaint on

December 18 and, thus, cannot plausibly be viewed as an act of

retaliation.

The plaintiff rejoins that the record does not contain

any minutes for a December 12 meeting of the Board and that this

gap raises a genuine issue of material fact as to whether any

decision was actually made on that date. This is whistling past

-27-
the graveyard: the Board's written resolution, which is a matter of

record, states that the vote was taken on December 12. The

plaintiff offers nothing to controvert this evidence. In the face

of uncontradicted evidence, a party cannot rely on sheer

speculation to deflect a motion for summary judgment. See Ahern v.

Shinseki, 629 F.3d 49, 58 (1st Cir. 2010).

This leaves the plaintiff's testimony in another

physician's case. The testimony occurred in October of 2005 (more

than a year before the Board voted provisionally to suspend the

plaintiff's license). In order to raise an inference of causation,

temporal proximity must be close. See id. (holding that a "gap of

several months" between protected speech and allegedly retaliatory

conduct was insufficient to prove retaliation in Title VII

context); Mesnick v. Gen. Elec. Co., 950 F.2d 816, 828 (1st Cir.

1991) (finding insufficient temporal proximity in the age

discrimination context when nine months had elapsed between

protected conduct and alleged retaliation); see also Rosenfeld v.

Egy, 346 F.3d 11, 15-17 (1st Cir. 2003). With no other evidence of

causation, an interval of this magnitude cannot establish the

necessary linkage between protected speech and some challenged

action.

At any rate, a defendant may avoid liability in a

retaliation case by showing that it would have reached the same

decision absent the protected speech. Powell v. Alexander, 391

-28-
F.3d 1, 17 (1st Cir. 2004). The plaintiff does not dispute that

his actions (continuing to advertise and perform cosmetic surgery)

contravened the Regulation. The Board's decision was based on

those actions (which under the Regulation constituted illegal

practice). It is, therefore, clear beyond hope of contradiction

that the Board would have reached the same conclusion regardless of

the plaintiff's 2005 testimony.

III. CONCLUSION

We need go no further. For the reasons elucidated above,

we uphold the entry of summary judgment for the defendants on all

claims.

Affirmed.

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