              Case: 19-13275    Date Filed: 02/05/2020   Page: 1 of 4


                                                         [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 19-13275
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 0:18-cv-62593-DPG



FEDERAL TRADE COMMISSION,

                                                 Plaintiff - Appellee,

versus

SIMPLE HEALTH PLANS, LLC,
a Florida Limited Liability Company, et al.,

                                                 Defendants,

STEVEN J. DORFMAN,
individually and as an officer, member or manager
of Simple Health Plans LLC, Health Benefits One LLC,
Health Center Management LLC, Innovative Customer Care LLC,
Simple Insurance Leads LLC and Senior Benefits One LLC,

                                                 Defendant - Appellant.
               Case: 19-13275     Date Filed: 02/05/2020    Page: 2 of 4


                            ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          ________________________

                                  (February 5, 2020)



Before ROSENBAUM, EDMONDSON, and MARCUS, Circuit Judges.



PER CURIAM:



      In this enforcement action filed by the Federal Trade Commission (“FTC”),

Steven Dorfman appeals the district court’s denial of his motion to dissolve a

preliminary injunction entered against Dorfman and against six companies

controlled by Dorfman. Dorfman contends that dissolution of the preliminary

injunction is required -- pursuant to section 13(b) of the FTC Act, 15 U.S.C. §

53(b) -- because the FTC failed to initiate an administrative proceeding within 20

days after the preliminary injunction issued. The FTC has moved for summary

affirmance and a stay of the briefing schedule.

      Summary disposition is appropriate where “the position of one of the parties

is clearly right as a matter of law so that there can be no substantial question as to

the outcome of the case, or where, as is more frequently the case, the appeal is
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frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

An appeal is frivolous if it lacks “arguable merit either in law or fact.” See Napier

v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002).

      We review a district court’s denial of a motion to dissolve a preliminary

injunction under an abuse-of-discretion standard. Tefel v. Reno, 180 F.3d 1286,

1295 (11th Cir. 1999). We review de novo questions of law. Id.

      Section 13(b) of the FTC Act authorizes the FTC to bring suit to enjoin acts

or practices it has reason to believe are unlawful under the FTC Act. See 15

U.S.C. § 53(b). The statute contains two provisos about the issuance of

preliminary relief:

      [A] temporary restraining order or a preliminary injunction may be
      granted without bond: [1] Provided, however, That if a complaint is
      not filed within such period (not exceeding 20 days) as may be
      specified by the court after issuance of the temporary restraining order
      or preliminary injunction, the order or injunction shall be dissolved by
      the court and be of no further force and effect: [2] Provided further,
      That in proper cases the Commission may seek, and after proper
      proof, the court may issue, a permanent injunction.

Id.

      The issue raised by Dorfman in this appeal has already been decided. In

FTC v. U.S. Oil & Gas Corp., the defendant -- as Dorfman has in this case --

moved the district court to dissolve a preliminary injunction on grounds that

section 13(b) required the FTC to file an administrative complaint within 20 days
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after entry of a preliminary injunction. 748 F.2d 1431, 1433 (11th Cir. 1984). The

district court denied the motion; we affirmed the denial on appeal. We concluded

that -- incident to the district court’s express statutory authority to issue a

permanent injunction under section 13(b)’s second proviso -- the district court had

authority to order preliminary relief during the pendency of an action for

permanent injunctive relief. Id. at 1443-44.

      Neither the Supreme Court nor this Court sitting en banc has issued a

decision overruling U.S. Oil & Gas, Corp. or undermining it to the point of

abrogation. Accordingly, U.S. Oil & Gas, Corp. remains good law. We are bound

by that decision. See EEOC v. Exel, Inc., 884 F.3d 1326, 1332 (11th Cir. 2018)

(“Under the prior panel precedent rule, a prior panel’s holding is binding on all

subsequent panels unless and until it is overruled or undermined to the point of

abrogation by the Supreme Court or by this court sitting en banc.” (alteration

omitted)).

      Because no substantial question exists for the outcome of this appeal,

summary affirmance is appropriate. See Groendyke Transp., Inc., 406 F.2d at

1162. The FTC’s motion for summary affirmance is GRANTED, and the FTC’s

motion to stay the briefing schedule is DENIED as moot.

      AFFIRMED.

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