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Opinion Issued by U.S. Fifth Circuit Court of Appeals

Opinion Issued by U.S. Fifth Circuit Court of Appeals

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Vacates dismissal and remands suit back to district court. Issued December 2, 2010
Vacates dismissal and remands suit back to district court. Issued December 2, 2010

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No. 09-50953 ASSOCIATION OF AMERICAN PHYSICIANS & SURGEONS INC,Plaintiff – Appellantv.TEXAS MEDICAL BOARD, (TMB); ROBERTA M. KALAFUT, Individually andin her Official Capacity; LAWRENCE L. ANDERSON, Individually and in hisOfficial Capacity; MICHAEL ARAMBULA, Individually and in his OfficialCapacity; JULIE K. ATTEBURY, Individually and in her Official Capacity;JOSE BENAVIDES, Individually and in his Official Capacity; PATRICIA S.BLACKWELL, Individually and in her Official Capacity; MELINDA S.FREDRICKS, Individually and in her Official Capacity; MANUAL G.GUARJARDO, Individually and in his Official Capacity; AMANULLAH KAHN,Individually and in his Official Capacity; MELINDA MCMICHAEL, Individuallyand in her Official Capacity; MARGARET MCNEESE, Individually and in herOfficial Capacity; CHARLES E. OSWALT, Individually and in his OfficialCapacity; LARRY PRICE, Individually and in his Official Capacity; ANNETTEP. RAGGETT, Individually and in her Official Capacity; PAULETTE BARKERSOUTHARD, Individually and in her Official Capacity; TIMOTHY J. TURNER,Individually and in his Official Capacity; TIMOTHY WEBB, Individually and inhis Official Capacity; IRVIN E. ZEITLER, Individually and in his OfficialCapacity; DONALD PATRICK, Individually and in his Official Capacity; JOHNDOES 1-10, Who are working for the TMB, Individually and in their OfficialCapacities,Defendants – Appellees Appeal from the United States District Courtfor the Western District of Texas
United States Court of AppealsFifth Circuit
December 2, 2010Lyle W. CayceClerk
No. 09-50953Before JONES, Chief Judge, and REAVLEY and HAYNES, Circuit Judges.EDITH H. JONES, Chief Judge:The Association of American Physician and Surgeons (“AAPS”) sued theTexas State Board of Medical Examiners (“the Board”) under 42 U.S.C. § 1983for declaratory and injunctive relief against alleged constitutional violationsincluding the Board’s use of anonymous complaints and retaliatory actionsagainst physicians. The district court dismissed the case based on AAPS’s lackof standing, noting an absence of “Fifth Circuit authority directly on point for thetypes of claims raised in this cause.”Weighing in on this issue, we conclude that AAPS has standing to bringthis suit on behalf of its members. The judgment is therefore vacated and thecase remanded for further proceedings.
 AAPS is a not-for-profit membership organization incorporated under thelaws of Indiana and headquartered in Tucson, Arizona. Its membership includesthousands of physicians in nearly every state, including Texas. AAPS assertsthat part of its mission is to protect its members from arbitrary and unlawfulgovernmental action.The Board “is an agency of the executive branch of state government withthe power to regulate the practice of medicine.T
§ 152.001. TheBoard consists of nineteen members appointed by the governor – twelvephysicians and seven members of the public.
§ 152.002. At the time this casewas filed, Dr. Roberta Kalafut was the Board’s president, and Lawrence Anderson was chair of the Disciplinary Process Review Committee. The othernamed and unnamed defendants were Board members and employees. TheBoard has statutory authority to discipline physicians for misconduct.
See, e.g.
§ 164.001.2
No. 09-50953 AAPS sued the Board on behalf of its members for what it describes aspervasive and continuing violations of members’ constitutional rights. AAPSalleged first that the Board manipulated anonymous complaints. Illustratively,Kalafut targeted physicians using anonymous complaints filed by her husband,and anonymous complaints allegedly were filed by a New York insurancecompany seeking to avoid paying a physician for claims. Second, AAPS allegedthat the Board knew that the former chairman of its Disciplinary ProcessReview Committee, Keith Miller, was operating with a significant conflict of interest, but it took no corrective action and failed to disclose the conflict to thepublic or the physicians subject to discipline. Dr. Miller was allegedly an expertwitness for plaintiffs in up to fifty malpractice cases during his tenure as chairof the committee and generated business for himself as an expert by improperlydisciplining physicians.Third, AAPS alleged that the Board arbitrarily rejected a decision in favorof a doctor by an administrative law judge from the State Office of  Administrative Hearings, and then issued a sanction that damaged thephysician’s reputation. Fourth, AAPS asserted that the Board violated AAPSmembers’ privacy by releasing unproven facts and records concerningdisciplinary cases. Finally, AAPS alleged that the Board has retaliated againstphysicians who have complained about the Board by subjecting them todisciplinary proceedings and derogatory public comments. AAPS allegedviolations of the confrontation clause and the due process, equal protection, andfree speech provisions of the Constitution, and violation of federal statutoryprivacy requirements.
The Board’s answer included a number of affirmative defenses and soughtdismissal under Fed. Rule Civ. Pro. 12(b)(1), arguing that AAPS lacked standing
AAPS’s complaint cites the Health Insurance Portability and Accountability Act
(HIPPA), codified at 29 U.S.C. § 1181
et seq

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