Hoeg v. Newsom

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

10

----oo0oo----

11

12 TRACY HØEG, M.D., Ph.D.; RAM No. 2:22-cv-01980 WBS AC

DURISETI, M.D., Ph.D.; AARON

13 KHERIATY, M.D.; PETE

MAZOLEWSKI, M.D.; and AZADEH

14 KHATIBI, M.D., M.S., M.P.H.,

MEMORANDUM AND ORDER RE:

15 Plaintiffs, MOTIONS TO DISMISS

16 v.

17 GAVIN NEWSOM, Governor of the

State of California, in his

18 official capacity; KRISTINA

LAWSON, President of the

19 Medical Board of California, in

her official capacity; RANDY

20 HAWKINS, M.D., Vice President

of the Medical Board of

21 California, in his official

capacity; LAURIE ROSE LUBIANO,

22 Secretary of the Medical Board

of California, in her official

23 capacity; MICHELLE ANNE BHOLAT,

M.D., M.P.H., DAVID E. RYU,

24 RYAN BROOKS, JAMES M. HEALZER,

M.D., ASIF MAHMOOD, M.D.,

25 NICOLE A. JEONG, RICHARD E.

THORP, M.D., VELING TSAI, M.D.,

26 and ESERICK WATKINS, members of

the Medical Board of

27 California, in their official

capacities; and ROB BONTA,

28 Attorney General of California,

1 in his official capacity;

2 Defendants.

3

4

LETRINH HOANG, D.O.; PHYSICIANS No. 2:22-cv-02147 WBS AC

FOR INFORMED CONSENT, a not-for

5

profit organization; and

CHILDREN’S HEALTH DEFENSE,

6

CALIFORNIA CHAPTER, a

California Nonprofit

7

Corporation;

8

Plaintiffs,

9

v.

10

ROB BONTA, in his official

capacity as Attorney General of

11

California; and ERIKA CALDERON,

in her official capacity as

12

Executive Officer of the

Osteopathic Medical Board of

13

California;

14

Defendants.

15

16 ----oo0oo----

17 Plaintiffs brought these now-related § 1983 actions

18 challenging the constitutionality of California Business &

19 Professions Code § 2270, also referred to as Assembly Bill (“AB”)

20 2098, which made it “unprofessional conduct” for doctors to

21 “disseminate misinformation or disinformation related to COVID-

22 19.” The court preliminarily enjoined enforcement of AB 2098

23 against the plaintiffs on January 25, 2023. (Høeg Docket No. 35;

24 Hoang Docket No. 30.) The California Legislature subsequently

25 repealed AB 2098, effective January 1, 2024. See Cal. Senate

26 Bill 815 (Sept. 30, 2023).

27 Before the court are defendants’ motions to dismiss.

28 (Høeg Docket No. 63; Hoang Docket No. 52.) The Høeg plaintiffs

1 oppose dismissal (Høeg Docket No. 65), while the Hoang plaintiffs

2 do not (Hoang Docket Nos. 54-55).

3 I. Mootness

4 Defendants argue that the repeal of AB 2098 moots the

5 plaintiffs’ claims in both actions insofar as they seek

6 declaratory and injunctive relief. “A private defendant’s

7 voluntary cessation of challenged conduct does not necessarily

8 render a case moot because, if the case were dismissed as moot,

9 the defendant would be free to resume the conduct.” Bd. of Tr.

10 of Glazing Health & Welfare Tr. v. Chambers, 941 F.3d 1195, 1198

11 (9th Cir. 2019). However, in the Ninth Circuit, courts “assume

12 that the repeal, amendment, or expiration of legislation will

13 render an action challenging the legislation moot, unless there

14 is a reasonable expectation that the legislative body will

15 reenact the challenged provision or one similar to it.” Id. at

16 1199. “The party challenging the presumption of mootness need .

17 . . only [show] that there is a reasonable expectation of

18 reenactment. But a determination that such a reasonable

19 expectation exists must be founded in the record . . . rather

20 than on speculation alone.” Id.

21 On February 29, 2024, the Ninth Circuit issued an

22 opinion in McDonald v. Lawson, 94 F.4th 864 (9th Cir. 2024), a

23 consolidated appeal involving two cases challenging AB 2098 from

24 the Central and Southern Districts of California. The Ninth

25 Circuit held that the repeal of AB 2098 mooted the actions and

26 remanded to the district courts with instructions to dismiss the

27 cases. See id. at 870.

28 As the Ninth Circuit held, “[b]ecause there is no

1 indication that California is reasonably likely to reenact AB

2 2098 or anything substantially similar to it, and because the

3 possibility of California enforcing AB 2098 following its repeal

4 is at best remote, there is no longer an ongoing case or

5 controversy.” Id. (internal quotation marks and citation

6 omitted). In coming to this conclusion, the Ninth Circuit relied

7 upon a statement by the Executive Director of the Medical Board

8 that its employees would not enforce AB 2098 and pointed to the

9 lack of evidence of potential reenactment in the record. See id.

10 at 869-70.

11 Despite the Ninth Circuit’s clear holding that the

12 repeal of AB 2098 moots challenges to that law, the Høeg

13 plaintiffs argue that McDonald does not dictate the same outcome

14 here because they raise arguments that were not before the Ninth

15 Circuit. But like the McDonald plaintiffs, the plaintiffs here

16 have failed to overcome the presumption of mootness, as they

17 present no allegations or evidence suggesting that the California

18 Legislature might reenact AB 2098 or similar legislation. See

19 id. at 869-70.

20 The Høeg plaintiffs point to a medical board proceeding

21 allegedly brought against a physician for advising patients not

22 to receive a COVID-19 vaccine as evidence that there is a risk of

23 enforcement or reenactment of AB 2098. (See Hoang Docket No. 39

24 at 21, ¶ 30.) This proceeding apparently commenced in June 2023.

25 (See id.) Yet there is no indication –- and plaintiffs do not

26 argue –- that this disciplinary action was initiated pursuant to

27 AB 2098. Indeed, plaintiffs’ counsel in the Hoang matter has

28 filed a separate action challenging such disciplinary actions as

1 brought under the medical boards’ pre-existing statutory

2 authority. (See Kory v. Bonta, 2:24-cv-1 WBS AC, Docket No. 1.)

3 Further, the actions of administrative agencies like the Medical

4 Board do not provide evidence that the Legislature intends to

5 reenact a similar statute. The possibility that the Board may

6 discipline doctors for “disseminating misinformation” under

7 preexisting statutory authority (as opposed to a statute brought

8 to reenact the provisions of AB 2098) does not support a

9 challenge to AB 2098. Cf. Ne. Fla. Chapter of Associated Gen.

10 Contractors of Am. v. City of Jacksonville, Fla., 508 U.S. 656,

11 662 (1993) (action was not moot where challenged ordinance had

12 been repealed, but city subsequently enacted a similar

13 ordinance).

14 Plaintiffs also point to a statement allegedly made by

15 Assemblyman Evan Low, a sponsor of AB 2098, that following the

16 repeal of the law, “the Medical Board of California will continue

17 to maintain the authority to hold medical licensees accountable

18 for deviating from the standard of care and misinforming their

19 patients about COVID-19 treatments.” (Høeg Opp’n (Docket No. 65)

20 at 6; Høeg Suppl. Brief (Høeg Docket No. 53) at 8.) This

21 purported statement does not indicate any legislative intent to

22 reenact AB 2098. On the contrary, it would appear therefrom that

23 Mr. Low has no intention of reintroducing similar legislation,

24 instead referring to the Medical Board’s preexisting statutory

25 authority. See Cal. Bus. & Prof. Code § 2234(c) (“departure from

26 the applicable standard of care” is a basis for discipline by the

27 Medical Boards). Potential disciplinary actions brought under §

28 2234 -- an entirely different statute that predates AB 2098 --

1 cannot sustain a challenge to AB 2098, particularly because the

2 court’s prior order showed the peculiar language of AB 2098 to be

3 central to its unconstitutionality. See Høeg v. Newsom, 652 F.

4 Supp. 3d 1172, 1185-91 (E.D. Cal. 2023).

5 Finally, plaintiffs rely on West Virginia v.

6 Environmental Protection Agency, 597 U.S. 697 (2022). There, the

7 Supreme Court held that a voluntary decision by the federal

8 Environmental Protection Agency (“EPA”) not to enforce a

9 challenged regulation did not moot the case because the EPA had

10 “vigorously defend[ed]” the legality of the challenged regulation

11 and “nowhere suggest[ed] that . . . it w[ould] not reimpose” a

12 similar measure. See id. at 718–20 (quotation marks omitted).

13 Plaintiffs argue that the instant case is analogous because

14 defendants have never conceded that AB 2098 is unconstitutional.

15 However, West Virginia v. EPA is inapposite (and, contrary to

16 plaintiffs’ argument, fully reconcilable with Glazing Health)

17 because it involved administrative agency action, the rulemaking

18 agency responsible for the voluntary cessation was a party to the

19 litigation, and there was evidence that a new regulation was

20 forthcoming. See id. at 718–20. Further, here, the only

21 evidence in the record of legislative intent -– the statement

22 from Assemblyman Low, discussed above -- indicates that the

23 Legislature does not intend to reintroduce similar legislation.

24 Accordingly, the court concludes that plaintiffs’

25 claims for declaratory and injunctive relief are moot and must be

26 dismissed.

27 II. Availability of Damages

28 The court next addresses the viability of plaintiffs’

1 request for nominal damages, which is not mooted by the repeal of

2 AB 2098 to the extent it seeks relief for constitutional

3 violations that occurred while the law was in effect. See

4 Uzuegbunam v. Preczewski, 141 S. Ct. 792, 797, 801–02 (2021) (“a

5 request for nominal damages satisfies the redressability element

6 of standing where a plaintiff’s claim is based on a completed

7 violation of a legal right” and thus presents a live controversy,

8 even where the corresponding claim for injunctive relief is moot

9 due to voluntary cessation); Collins v. Yellen, 141 S. Ct. 1761,

10 1780 (2021) (holding that constitutional claim was not entirely

11 moot following repeal of challenged regulation because plaintiffs

12 sought “retrospective relief”).

13 Defendants assert that they are immune from the Høeg

14 plaintiffs’ request for nominal damages to the extent they are

15 sued in their official capacity.1 The Høeg plaintiffs argue that

16 defendants have waived the sovereign immunity defense by failing

17 to timely raise it. See In re Bliemeister, 296 F.3d 858, 861

18 (9th Cir. 2002) (sovereign immunity is an “affirmative defense”

19 that “may be forfeited where the state fails to assert it,”

20 either through a “clear declaration that it intends to submit

21 itself to [federal] jurisdiction” or “conduct that is

22 incompatible with an intent to preserve that immunity”)

23 (quotation marks omitted). The court disagrees.

24 The only other motion decided by the court thus far was

25 plaintiffs’ motion for preliminary injunction. Defendants had no

26 reason to raise the issue of immunity from money damages at that

27

1 The Hoang plaintiffs do not seek damages. (See Hoang

28 Docket No. 1 at 19.)

1 juncture, as the motion only pertained to injunctive relief, and

2 raising sovereign immunity would not have disposed of the case.

3 And defendants have yet to file an answer to the complaint

4 (pursuant to the parties’ stipulation, see Høeg Docket No. 41).

5 Defendants therefore have timely raised the sovereign immunity

6 defense, as the instant motion is the first pleading filed by

7 defendants in which it would be appropriate to raise the

8 sovereign immunity defense.2 See Aholelei v. Dep’t of Pub.

9 Safety, 488 F.3d 1144, 1148 (9th Cir. 2007) (state did not

10 forfeit sovereign immunity defense where it raised it at first

11 opportunity, in answer to complaint, and did not cause any

12 delay); cf. In re Bliemeister, 296 F.3d at 862 (state forfeited

13 sovereign immunity defense by failing to assert it in motion for

14 summary judgment).

15 As the Høeg plaintiffs appear to concede, damages are

16 not available from state officials sued in their official

17 capacity under § 1983. See Hafer v. Melo, 502 U.S. 21, 22–23

18 (1991) (quoting Will v. Mich. Dep’t of State Police, 491 U.S. 58,

19 71 (1989)) (“state officials ‘acting in their official

20 capacities’ are outside the class of ‘persons’ subject to

21 liability under . . . § 1983”); Platt v. Moore, 15 F.4th 895, 910

22 (9th Cir. 2021) (quoting Kentucky v. Graham, 473 U.S. 159, 166–69

23

24 2 The court also sua sponte requested briefing on the

issue of mootness stemming from the repeal of AB 2098, though

25

later decided to defer the issue pending the filing of a

dispositive motion raising the issue. (See Høeg Docket Nos. 49,

26

58.) Defendants would have had no reason to raise the issue of

27 immunity from money damages in response to that order, yet did

raise the issue when damages were brought up during oral argument

28 on that briefing.

1 (1985)) (“‘absent waiver by the State or valid congressional

2 override,’ state sovereign immunity protects state officer

3 defendants sued in federal court in their official capacities

4 from liability in damages, including nominal damages”).

5 Plaintiffs argue that they can nonetheless maintain a

6 claim for nominal damages against defendants in their individual

7 capacity. A claim for money damages against a state official in

8 his individual capacity must allege “conduct fairly attributable

9 to the officer himself.” See Alden v. Maine, 527 U.S. 706, 757

10 (1999); see also Jones v. Williams, 297 F.3d 930, 934 (9th Cir.

11 2002) (“[i]n order for a person acting under color of state law

12 to be liable under section 1983 there must be a showing of

13 personal participation in the alleged rights deprivation”).

14 Here, there is no indication that AB 2098 was ever enforced.

15 There is therefore no basis to sue any of the Medical Board

16 defendants or the Attorney General in their individual capacity,

17 as they have not engaged in any conduct that violated the

18 plaintiffs’ rights.

19 As far as the court can see, the only affirmative

20 conduct by any defendant was Governor Gavin Newsom’s enactment of

21 AB 2098. However, a governor cannot be held liable for the

22 passage of a law, which is subject to absolute legislative

23 immunity. See Bogan v. Scott-Harris, 523 U.S. 44, 54-55 (1998)

24 (“[a]bsolute legislative immunity attaches to all actions taken

25 in the sphere of legitimate legislative activity,” and “a

26 Governor’s signing or vetoing of a bill constitutes part of the

27 legislative process”) (quotation marks omitted).

28 When questioned about their proposal to amend the

em EE IE OIE OEE IIE IER IRI OE ISI IRE OE NE OGIO OE IEE IEE ED ee

1 complaint at oral argument, plaintiffs’ counsel was unable to

2 explain to the court what facts they would allege to support a

3 claim against defendants in their individual capacity. Because

4 there does not appear to be any set of facts that plaintiffs

5 could allege to support a claim against defendants in their

6 individual capacity, the court will deny the Hgeg plaintiffs’

7 request for leave to amend as futile. See Missouri ex rel.

8 Koster v. Harris, 847 F.3d 646p, 655-56 (9th Cir. 2017).

9 IT IS THEREFORE ORDERED that defendants’ motions to

10 | dismiss both actions (Hgeg Docket No. 63; Hoang Docket No. 52)

11 be, and the same hereby are, GRANTED. The pending motion for

12 summary judgment in the Hgeg matter (Hgeg Docket No. 48) is

13 DENIED AS MOOT. The Clerk of Court is directed to close both

14 cases. : -

15 | Dated: April 2, 2024 a ew A, hh

WILLIAM B. SHUBB

16 UNITED STATES DISTRICT JUDGE

17

18

19

20

21

22

23

24

25

26

27

28

10