Case updates this week:

Monday, June 3: The United States Court of Appeals for the Fifth Circuit in Ass'n of Am. Physicians & Surgeons Educ. Found. v. Am. Bd. of Internal Med., upheld the District Court’s dismissal of the Association of American Physicians and Surgeons Educational Foundation’s (AAPS) First Amendment and antitrust claims against the U.S. Department of Homeland Security (Department) but modified the order to be without prejudice. In addition, the Fifth Circuit reversed the District Court’s decision to dismiss the AAPS’s Complaint against the board members of a group of medical specialty certifying organizations, (“Board Defendants”), finding that the AAPS had standing to assert a First Amendment claim as “hearers” of protected speech. 

The AAPS’s claims against the Board Defendants arose from the Board Defendants expressed intent to strip the certifications of physicians who spread disinformation relating to COVID-19 mitigation measures and abortion procedures. AAPS contended that this misinformation was simply criticism, and that the Board Defendants had “conspired” with the Biden Administration to label such criticisms “disinformation, misinformation and malinformation.” The AAPS did not name, in its complaint, any speaker whose speech had been chilled. Rather, the Fifth Circuit found that AAPS had pleaded a “right to hear” potential speech that was sufficient to state a claim under the First Amendment. According to the Fifth Circuit, the AAPS’s failure to identify a “willing speaker” in its complaint did not warrant dismissal before the AAPS had a chance to engage in discovery. The District Court below had not reached the question of whether the Board Defendants’ actions could be considered state action under the 14th Amendment. The Fifth Circuit declined to consider the issue, remanding it to the District Court instead. 

With respect to the AAPS’s antitrust claims against the Board Defendants, the Fifth Circuit read Galveston Division’s Local Rule 6 to preclude plaintiffs from freely amending their complaint, in contradiction to the spirit of the Federal Rules of Civil Procedure. Local Rule 6 requires that the parties confer prior to filing a motion to dismiss and it permits either party to amend their pleadings before filing the motion. However, it prohibits either party from amending their pleadings after the motion is filed and while a decision on the motion is pending. Because the District Court dismissed the AAPS’s complaint with prejudice, the Fifth Circuit determined that Local Rule 6 gave the plaintiff no opportunity to amend their complaint. On that basis, the Fifth Circuit modified the District Court’s decision to dismiss the antitrust claims to be without prejudice to allow the AAPS to amend its complaint. 

The Fifth Circuit upheld the District Court’s decision to dismiss the AAPS’s claims against the Department as moot. The Department had dissolved the Disinformation Governance Board which the AAPS alleged was responsible for the alleged government censorship and had not sufficiently pleaded the voluntary cessation exception to the mootness doctrine. However, the Fifth Circuit modified the dismissal to be without prejudice, explaining that Local Rule 6 improperly prohibited AAPS from amending its complaint. 

Wednesday, June 12: The Federal District court for the District of Minnesota granted in part and denied in part Defendant’s motion to dismiss Plaintiff Michael Larson’s religious-discrimination, substantive and procedural due process, equal protection, and breach of contract claims in Larson v. Walz et al. The State of Minnesota enacted a policy requiring that some employees be fully vaccinated against COVID-19 or agree to occasional testing. Plaintiff submitted a religious accommodation request to his employer, the Minnesota State College Southeast (MSC). In response, MSC asked Plaintiff to propose a set of possible accommodations. The Plaintiff provided MSC with 3 proposed accommodations. MSC rejected the proposed accommodations deeming them unreasonable and then terminated the Plaintiff’s employment.   

The Plaintiff filed suit against MSC. Count I of the Complaint alleged religious discrimination against MSC for refusing to grant his accommodation. MSC moved to dismiss. The Court held that the Plaintiff had sufficiently plead his religious objections via his connection to the Roman Catholic faith. However, the Court dismissed all Defendants except MSC as MSC was the only proper defendant to the Title VII claim. 

Counts II-VI include claims for violation of substantive due process rights under Fourteenth Amendment, violation of procedural due process under the Fourteenth Amendment, violation of the Equal Protection Clause of the United States Constitution, a claim for wrongful termination, and a claim for breach of contract. Plaintiff argued that Counts II-IV fell within the Ex Parte Young exception to Eleventh Amendment sovereign immunity, because he was also seeking a prospective, declaratory judgment, even if he was precluded from recovering monetary damages for past wrongs. The Court dismissed Counts II, III, IV, V, and VI of the Amended Complaint on the grounds that the Eleventh Amendment forbids suits in federal court against a state or state agency (such as MSC) for “any kind of relief.”