United States Court of Appeals
For the First Circuit
Nos. 08-1437, 08-2189
EFRAÍN GONZÁLEZ-DROZ, ET AL.
Plaintiffs, Appellants,
v.
LUIS R. GONZÁLEZ-COLON, ET AL.,
Defendants, Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Lynch, Chief Judge,
Leval* and Lipez, Circuit Judges.
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.
July 23, 2009
_____________________
* Of the United States Court of Appeals for the Second
Circuit, sitting by designation.
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
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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,
1
Amicus curiae American Academy of Cosmetic Surgery describes
cosmetic surgery as "a medical specialty exclusively dedicated to
the enhancement of appearance toward some aesthetic ideal through
surgical and medical techniques directed at all areas of the head,
neck, and body."
2
Plastic surgery is dedicated to the "repair, reconstruction,
or replacement of physical defects of form or function involving
the skin, musculoskeletal system, craniomaxillofacial structures,
hand, extremities, breast and trunk, external genitalia or cosmetic
enhancement of these areas of the body." The American Board of
Plastic Surgery, Inc., Description of Plastic Surgery,
https://abplsurg.org/ModDefault.aspx?section=AboutDPS (last visited
June 29, 2009).
3
Dr. González-Droz's wife and their conjugal partnership were
also plaintiffs in the suit. For convenience, and because the
derivative claims are not at issue here, we refer to Dr.
González-Droz as the sole "plaintiff" or "appellant."
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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
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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
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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
4
The Board did not actually issue its final ruling on this
matter until April 2008.
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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
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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
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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 unaccompanied by
any continuing, present adverse effects." Id. (quotation marks and
citations omitted). Finally, "[t]he burden of demonstrating that
a denial of interim relief is likely to cause irreparable harm
rests squarely upon the movant." Charlesbank Equity Fund II, 370
F.3d at 162.
A. The First Denial of Injunctive Relief
The appeal from the district court's denial of the first
request for a preliminary injunction is moot. The only explicit
request for preliminary injunctive relief in appellant's first
motion 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." It has now been two years
since the Board held the hearing that Dr. González-Droz sought to
prevent. Additionally, the summary suspension underlying his
request that the court reinstate his medical license has been
replaced with the final, five-year suspension that he challenges in
his second appeal. Accordingly, there is no live controversy to
adjudicate with respect to his first request for injunctive relief,
and we therefore dismiss that appeal (No. 08-1437) as moot. See,
e.g., Guillemard-Ginorio v. Contreras Gomez, 161 F. App'x 24, 26-27
(1st Cir. 2005) (per curiam) (dismissing as moot appeal from the
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entry of a preliminary injunction restraining Puerto Rico insurance
commissioner from revoking plaintiffs' license pending the
completion of a hearing because the hearing had already been held
by the time of oral argument).56
B. The Second Denial of Injunctive Relief
The district court based its denial of the second motion
for injunctive relief on its conclusion that Dr. González-Droz
failed to make the requisite showing of irreparable injury. We
agree.
Asserting in his second motion that he had moved to
California because of the Notice, appellant attached to his motion
an "Unsworn Statement Under Penalty of Perjury." In it, he
described the considerable expenses and efforts he had taken to
rebuild his cosmetic medicine practice there. He stated that he
had lost income as a result of this move and that he had been
5
We stated in Guillemard-Ginorio:
Contreras's challenge to the preliminary injunction
stumbles over a fundamental issue-the existence of a live
controversy. . . . Both sides agreed that the hearing had
been held two months before argument, that the sanction
had been reduced to a six-month suspension and a $200,000
fine, and that Lone Star plaintiffs had appealed the
decision in the Puerto Rico court system. As the
preliminary injunction's function was purely to prevent
the revocation of . . . plaintiffs' license pending the
administrative hearing and decision, the appeal therefore
is moot.
161 F. App'x at 26-27.
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harmed by "the temporary inability to pursue a profession that
requires its constant practice." He also made his only explicit
argument on the record about irreparable injury:
Because of its particular nature, medicine is
a profession that requires the physician to
constantly and continuously engage in its
active practice. Otherwise, the physician
would see her skills diminish due to
inactivity. In the past 18 months, plaintiff
González Droz has approved 150 credits of
continuing medical education. That has helped
him keep his mind busy and should help him in
the continuing development of his career, but
does not and could not compensate for his
professional inactivity during those 18
months.
That inactivity is only part of the
irreparable harm suffered by plaintiffs at the
expense of defendants and of their arbitrary
and unconscionable actions. Besides, as the
Supreme Court has held, "[n]o later hearing
and no damage award can undo the fact that the
arbitrary taking that was subject to the right
of procedural due process has already
occurred." Fuentes v. Shevin, 407 U.S. 67, 82
(1972).
This argument is unpersuasive. First, all of the facts
appellant marshals in an effort to demonstrate irreparable harm
related to harm the plaintiff had already suffered, rather than to
harm he would suffer if the preliminary injunction were not
granted. When he filed the second motion for a preliminary
injunction, he had already expended a substantial amount of time
and resources in relocating his practice as a result of the Board's
actions. These expenses, as well as the period of professional
inactivity that he describes, were already behind him at the time
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of the district court's second injunction ruling. The motion thus
rests on an assertion that he had been "injured by an unlawful
practice" or that he had suffered "[p]ast exposure to illegal
conduct." Steir, 383 F.3d at 16. If he succeeds on the merits,
appellant may be entitled to compensation for these past harms.6
But he did not "demonstrate the prospect of future harm, the
essential prerequisite for equitable relief." Id.7
Moreover, by the time he submitted his second motion, Dr.
González-Droz could only have been harmed in the future if he
returned to Puerto Rico and was unable to practice medicine. But
the plaintiff asserted that he had moved to California and he made
no showing (or even allegation) that he would have resumed the
practice of medicine in Puerto Rico if his medical license were
restored. He did not allege any ongoing detriment to his practice
in California from the Board's decision in Puerto Rico. Nor did he
assert that the suspension of his license inflicted a serious
6
This assumes, of course, that the Eleventh Amendment does
not preclude such damages. Because of our disposition of these
appeals, and because neither party raises this immunity issue, we
need not reach it.
7
Appellant's reliance on Fuentes is inapposite. If indeed
appellant is correct and the administrative proceedings against him
were deficient under Fuentes, he may well be able to establish his
entitlement to damages. But the failure to afford him the
procedural protection to which he may have been constitutionally
entitled does not establish irreparable harm. Indeed, we have
stated specifically that "[t]he alleged denial of procedural due
process, without more, does not automatically trigger" a finding of
irreparable harm. Pub. Serv. Co. v. Town of W. Newbury, 835 F.2d
380, 382 (1st Cir. 1987).
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continuing reputational injury, notwithstanding the relocation of
his practice to another jurisdiction. See, e.g., Ross-Simons of
Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 20 (1st Cir. 1996).
Therefore, we do not consider harm to his reputation in making our
irreparable harm determination.
III.
Our decision will allow this litigation to proceed to a
trial on the merits, where Dr. González-Droz can pursue his
challenges to the administrative suspension of his license and to
the Notice issued by the Board restricting the practice of cosmetic
surgery to board-certified plastic surgeons and dermatologists.
Our decision to deny Dr. González-Droz's appeal from the denial of
his requests for preliminary injunctions does not intimate in any
way approval of the Notice that he challenges. The district
court's observation as to the merits, that the "Board has the power
to regulate who can practice cosmetic medicine and . . . did so,"
in no way addressed the plaintiff's central allegation that, in
exercising its undisputed power to regulate, the Board acted
irrationally and arbitrarily, and therefore unconstitutionally.
The merits of the challenge will require careful consideration in
the future proceedings.
The appeal in No. 08-1437 is hereby dismissed as moot.
In No. 08-2189, we affirm the judgment of the district court
denying the request for a preliminary injunction.
So ordered.
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