Doctor/Political Candidate Has Standing to Sue Over Medical Board Investigations Related to His Public Comments about the COVID Pandemic

From today’s decision in Jensen v. Minn. Bd. of Med. Practice, written by Eighth Circuit Judge David Stras and joined by Judges James Loken and Lavenski Smith:

Years of investigations by the Minnesota Board of Medical Practice caused Dr. Scott Jensen to speak less and spend more. Either would be enough for a court to hear his case, so we reverse….

Like the rest of the country, the COVID-19 pandemic divided Minnesotans. Some public officials, including Governor Tim Walz, pushed for aggressive measures to “stop the spread” of the virus. Others like Dr. Scott Jensen, then a state senator, had a different view. He opposed vaccine mandates and believed it was a mistake to close businesses and schools. He ran on that message as the Republican nominee for governor in the 2022 election.

Not everyone liked what he had to say. So much so that, from the pandemic’s start until mid-2022, the Minnesota Board of Medical Practice received 18 complaints about him. The objection was almost always the same: Dr. Jensen was “spreading misinformation” and posed a “danger to public health.” … [T]he 18 complaints led to four investigations. At the start of each one, the Board sent him a letter detailing the allegations. Two asked him to “respond[ ] in writing[ ]” and reminded him that, “as a licensee of the Board,” he was “required to cooperate fully.” When he replied to those, he provided the Board with hundreds of pages of information, including news stories about the pandemic, medical studies, and patient records.

One, which lasted more than a year, took on a life of its own. Like the others, it began with a letter informing him that the Board was investigating an allegation that he had “politiciz[ed] public health.” He cooperated, but the Board waited until after the election to request an “in-person conference.” The notice listed multiple possible violations, including “unethical or improper conduct” and “depart[ing] from or fail[ing] to conform to the minimal standards of acceptable and prevailing medical practice.”

The subject line underscored the high stakes involved: “In the Matter of the Medical License of Scott M. Jensen, M.D.” He hired a lawyer and spent countless hours preparing. After the conference ended, so did the investigation.

Jensen sued, claiming the investigations violated the First Amendment, and the court held that he had standing to raise this claim (even though he was challenging just the investigations, and not any actually implemented disciplinary measures):

Grounded in the case-or-controversy requirement of Article III, standing ensures that the person suing—here, Dr. Jensen—has the “personal stake” necessary for a federal court to intervene. Satisfying it requires “(1) an injury in fact; (2) a causal connection between the injury and the challenged [action]; and (3) a likelihood of redressability.” …

At the motion-to-dismiss stage, “we [must] assume the allegations in the complaint are true and view them in the light most favorable to [Dr. Jensen].” Even “general factual allegations of injury resulting from the defendant’s conduct” are enough because “we presum[e] that [they] embrace those specific facts that are necessary to support the claim.” They can—and often do—lead to plausible inferences that satisfy all three standing requirements.

We have little doubt that Dr. Jensen’s complaint clears these hurdles when it comes to causation and redressability. At a minimum, the alleged “ever-present threat of further investigation,” backed by a list of past investigations, adequately connects his chilled speech and time and money spent responding to what the Board did. Money damages would redress those injuries. And to the extent these past investigations affect his present and future willingness to speak, an injunction would remedy it.

The real battle is over whether Dr. Jensen alleged a sufficiently “concrete and particularized” injury….

A “pocketbook” harm is a “classic” Article III injury. In general, monetary harm is an injury precisely because it is both concrete and particularized. Concreteness comes from the fact that it is “real” and “actually exist[s].” And it is “particularized” because it affected Dr. Jensen “in a personal and individual way.” Once the Board opened the investigations, he had an obligation to “cooperate fully,” including “fully and promptly” answering any questions and “providing copies of patient medical records.”

Even a minor expenditure of “time and resources” counts as an injury. Here, according to the amended complaint, Dr. Jensen did more, far more. For the first few investigations, he was “forced to spend hours of his time” responding. But for the last one, which went on for more than a year, he spent countless hours working on his responses, including compiling documents and eventually hiring a lawyer. These steps, arising out of his [statutory] obligation to “cooperate fully,” led to out-of-pocket expenses and resulted in “lost revenue because he took on fewer patients.” Regardless of whether the Board thinks Dr. Jensen should have taken those actions, they are “classic pocketbook injur[ies].”

{The “pocketbook injury” supports his claim for damages under both the First and Fourteenth Amendments. Arguably so does the time he lost “communicating with voters on the campaign trail” during the 2022 election. But given the other particularized and concrete injuries he suffered, there is no need to decide whether the harm to his campaign adds another.} …

According to the amended complaint, the investigations also caused Dr. Jensen to change his “message to … constituents” and “decline invitations to public[-]speaking events.” These general allegations are enough to create a plausible inference that his speech was chilled, something he allegedly told the Board in 2020, shortly after the first investigation began. As we have explained, “one type of injury that confers Article III standing” in First Amendment cases is “when a plaintiff is chilled from exercising h[is] right to free expression.” It happens when a “government official’s conduct would cause a person of ordinary firmness to self-censor.” Exactly the situation we have here….

In addition to general allegations that he changed his message and declined multiple invitations, the amended complaint mentioned that he “took great care to make certain that people understood when he was speaking as a candidate and when he was speaking as a family doctor,” something none of his opponents had to do. In the face of professional sanctions, Dr. Jensen believed the risk of speaking “candidly and honestly” about “COVID-19 vaccines and other government interventions in personal-health care decisions” presented too great a risk.

A reasonable person in his position would have reacted the same way. After a steady stream of letters from the Board, anyone in Dr. Jensen’s shoes would have been concerned about a looming and “credible threat of enforcement.” In fact, it would have been unreasonable to ignore the threat given the consequences, which included the potential loss of his medical license.

It makes no difference that Dr. Jensen “tailored his message” rather than abandoned it. After all, changing the “when, where, and how” of speech is an injury. A chilling effect may not be as tangible as a pocketbook injury, but it is still a “concrete and particularized” harm….

The chilling effect he continues to experience also qualifies as an “ongoing” injury supporting injunctive relief. Again a candidate for public office, Dr. Jensen continues to be “active in the media” and interact with “members of the public” with the goal of educating them about how current officeholders mismanaged the pandemic. In other words, he is in the same position as before, seeking to engage in “substantially similar activity” without having to worry about potentially losing his medical license.

It is hard to imagine a situation in which the “threat of future enforcement” could be more credible. After 18 complaints and four investigations, pretty “good evidence” of “past enforcement against the same conduct,” the threat against Dr. Jensen is far from “chimerical.” And the fact that anyone can file a complaint turns him into an “easy target[ ]” for “political opponents.” …

The court sent the case back down to the district court to consider the merits: “[O]ur usual approach in these circumstances is to let the district court have the first crack at them.”

Nicholas James Nelson, Douglas Seaton, and James Dickey represent plaintiffs.