     Case: 14-40403   Document: 00512984139    Page: 1   Date Filed: 03/27/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals

                                No. 14-40403
                                                                          Fifth Circuit

                                                                        FILED
                                                                  March 27, 2015

RONALD S. HINES, Doctor of Veterinary Medicine,                    Lyle W. Cayce
                                                                        Clerk
                                         Plaintiff - Appellee
v.

BUD E. ALLDREDGE, JR., Doctor of Veterinary Medicine, in his official
capacity as President of the Texas State Board of Veterinary Medical
Examiners; J. TODD HENRY, Doctor of Veterinary Medicine, in his official
capacity as Vice President of the Texas State Board of Veterinary Medical
Examiners; JOE MAC KING, Doctor of Veterinary Medicine, in his official
capacity as Secretary of the Texas State Board of Veterinary Medical
Examiners; RICHARD S. BONNER, JR., in his official capacity as Member of
the Texas State Board of Veterinary Medical Examiners; JANIE
CARPENTER, in her official capacity as Member of the Texas State Board of
Veterinary Medical Examiners; JOHN D. CLADER, in his official capacity as
Member of the Texas State Board of Veterinary Medical Examiners;
MANUELA MAMIE SALAZAR-HARPER, in her official capacity as Member
of the Texas State Board of Veterinary Medical Examiners; DAVID W.
ROSBERG, JR., in his official capacity as Member of the Texas State Board
of Veterinary Medical Examiners; CHAD UPHAM, in his official capacity as
Member of the Texas State Board of Veterinary Medical Examiners,

                                         Defendants - Appellants




                Appeals from the United States District Court
                     for the Southern District of Texas


Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
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      Texas requires veterinarians to conduct a physical examination of an
animal or its premises before they can practice veterinary medicine with
respect to that animal. In this case, we must decide whether this requirement
violates the First or Fourteenth Amendment. We conclude it offends neither.
                                                 I.
                                                 A.
      Ronald Hines is a Texas-licensed veterinarian who has practiced since
the mid-1960s. He worked mainly in traditional veterinary practices until he
retired in 2002. After his retirement, he founded a website and began to post
articles about pet health and care. These general writings soon turned to more
targeted guidance and, as he acknowledged in his complaint, he began “to
provide veterinary advice to specific pet owners about their pets.” This advice
was given via email and telephone calls, and Hines “never physically
examine[d] the animals that are the subject of his advice,” though he did review
veterinary records provided by the animal owners.
      While the full scope of Hines’s advice is not entirely clear from the record,
it was “about particular animals,” and included providing “qualified veterinary
advice” to individuals who lack access to veterinary care, evaluating conflicting
diagnoses or inappropriate drug prescriptions, and referring patients to
appropriate local veterinarians. Hines charged a flat fee of fifty-eight dollars
for his veterinary advice, though he would waive this fee if a pet owner could
not afford to pay. He did, however, refuse to give advice if he felt that a
physical examination was required, and he did not prescribe medication.
      What is clear – and undisputed – is that Hines’s remotely provided
services constituted the practice of veterinary medicine. 1 This was a problem.


      1   “Practice of veterinary medicine” means:

      (A) the diagnosis, treatment, correction, change, manipulation, relief, or prevention of
      animal disease, deformity, defect, injury, or other physical condition, including the
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Under Texas law “[a] person may not practice veterinary medicine unless a
veterinarian-client-patient relationship exists.” 2 That “relationship exists if
the veterinarian:”
       (1) assumes responsibility for medical judgments regarding the
       health of an animal and a client, who is the owner or other
       caretaker of the animal, agrees to follow the veterinarian's
       instructions;
       (2) possesses sufficient knowledge of the animal to initiate at least
       a general or preliminary diagnosis of the animal's medical
       condition; and
       (3) is readily available to provide, or has provided, follow-up
       medical care in the event of an adverse reaction to, or a failure of,
       the regimen of therapy provided by the veterinarian. 3
       In order to “possess[] sufficient knowledge of the animal” the
veterinarian must have “recently seen, or [be] personally acquainted with, the
keeping and care of the animal by: (1) examining the animal; or (2) making
medically appropriate and timely visits to the premises on which the animal is
kept.” 4 That examination must be in person – the statute is explicit that “[a]
veterinarian-client-patient relationship may not be established solely by




       prescription or administration of a drug, biologic, anesthetic, apparatus, or other
       therapeutic or diagnostic substance or technique;

       (B) the representation of an ability and willingness to perform an act listed in
       Paragraph (A);

       (C) the use of a title, a word, or letters to induce the belief that a person is legally
       authorized and qualified to perform an act listed in Paragraph (A); or

       (D) the receipt of compensation for performing an act listed in Paragraph (A).

Tex. Occ. Code § 801.002(5). Hines admits that his advice meets all four criteria.
       2 Tex. Occ. Code. § 801.351(a).
       3 Id.
       4 Id. § 801.351(b).

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telephone or electronic means.” 5        We term this the “physical examination
requirement.”
      In 2012, the Texas Board of Veterinary Medical Examiners (the “Board”)
informed Hines that by providing veterinary advice without a physical
examination, he had violated Texas law. Hines eventually agreed to: abide by
the relevant state laws, including the physical examination requirement, one
year of probation; a stayed suspension of his license; a $500 fine; and to retake
the jurisprudence portion of the veterinary licensing exam.
                                            B.
      Hines filed suit in federal court, seeking declaratory and injunctive
relief. He argued that the physical examination requirement violates his First
Amendment right to free speech as well as his rights under the Due Process
and Equal Protection Clauses of the Fourteenth Amendment. 6 The Board
moved to dismiss under Federal Rule of Civil Procedure 12(b)(6).
      The district court granted the Board’s motion in part and denied it in
part. With respect to the equal protection claim, the court concluded that
because the law did not discriminate on the basis of any suspect classification,
the count was evaluated pursuant to rational basis review – and held that the
physical examination requirement passed that deferential standard. The court
dismissed Hines’s substantive due process claim for similar reasons. The
district court denied the motion to dismiss the First Amendment claims. It
recognized that states have broad power to regulate professionals, but
determined that because the physical examination requirement “regulate[s]
professional speech itself,” it is subject to the First Amendment. Relying on


      5 Id. § 801.351(c).
      6  Hines challenges only the physical examination requirement; the Board
acknowledges that to the extent that Hines wants to provide general advice without regard
to any specific animal, this would not constitute the “practice of veterinary medicine” and
would not violate section 801.351.
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                                      No. 14-40403
the Supreme Court’s decision in Planned Parenthood of Southeastern
Pennsylvania v. Casey, 7 the court concluded that “[r]egulations on speech by
licensed professionals in the context of a professional relationship must . . . be
more than merely rational, they must be ‘reasonable.’” Judged against this
standard, and assuming all allegations to be true, the district court held that
Hines had stated a plausible claim that the Board had infringed his First
Amendment rights.
       The Board moved under 28 U.S.C. § 1292(b) to certify for interlocutory
review the district court’s order granting in part and reversing in part the
motion to dismiss. The district court granted the motion and certified the
order. We granted the Board’s timely petition to hear the appeal.
                                            II.
                                            A.
       Under section 1292(b), we have appellate jurisdiction over the order
certified to the court of appeals, in this case the order addressing the Board’s
motion to dismiss; our review is not limited to the controlling question of law
formulated by the district court in its certification order. 8 We review “de novo
a district court’s grant or denial of a Rule 12(b)(6) motion to dismiss, ‘accepting
all well-pleaded facts as true and viewing those facts in the light most favorable
to the plaintiff.’” 9 If the complaint has not set forth “enough facts to state a
claim to relief that is plausible on its face,” it must be dismissed. 10
                                            B.
       We begin – and end – our First Amendment analysis by recognizing the
statute at issue in this case for what it is. The challenged state law prohibits


       7 505 U.S. 833, 884 (1992) (plurality op.).
       8 Yamah Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 204-05 (1996).
       9 True v. Robles, 571 F.3d 412, 417 (5th Cir. 2009) (quoting Stokes v. Gann, 498 F.3d

483, 484 (5th Cir. 2007)).
       10 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

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                                       No. 14-40403
the practice of veterinary medicine unless the veterinarian has first physically
examined either the animal in question or its surrounding premises. It does
not regulate the content of any speech, require veterinarians to deliver any
particular message, or restrict what can be said once a veterinary-client-
patient relationship is established.
       States have “broad power to establish standards for licensing
practitioners and regulating the practice of professions.” 11                        Texas’s
requirement that veterinarians physically examine an animal or the animal’s
premises before treating it (or otherwise practicing veterinary medicine) falls
squarely within this long-established authority, and does not offend the First
Amendment. 12
       Nor does the fact that this rule may have some impact on the
veterinarian’s speech dictate a different result. The Supreme Court has long
held that “the First Amendment does not prevent restrictions directed at
commerce or conduct from imposing incidental burdens on speech.” 13 Pursuant
to this principle, there is a robust line of doctrine concluding that state
regulation of the practice of a profession, even though that regulation may have
an incidental impact on speech, does not violate the Constitution.


       11 Gade v. Nat’l Solid Waste Mgm’t Ass’n, 505 U.S. 88, 108 (1992) (quoting Goldfarb v.
Va. State Bar, 421 U.S. 773, 792 (1975)); see also Graves v. State of Minn., 272 U.S. 425, 427
(1926); Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 584-85 (5th
Cir. 2012) (Higginbotham, J., concurring) (“The doctor-patient relationship has long been
conducted within the constraints of informed consent to the risks of medical procedures, as
demanded by the common law, legislation, and professional norms.”).
       12 See, e.g., Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456 (1978) (recognizing

power of state “to regulate commercial activity deemed harmful to the public,”
notwithstanding that “speech is a component of that activity”); Wollschlaeger v. Governor of
Fla., 760 F.3d 1195, 1221-26 (11th Cir. 2014) (recognizing broad power of state to regulate
professional conduct); see also Frederick Schauer, The Boundaries of the First Amendment: A
Preliminary Exploration of Constitutional Salience, 117 Harv. L. Rev. 1765, 1783-84 (2004)
(concluding that professional regulation has largely been seen as being beyond the scope of
the First Amendment).
       13 Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2664 (2011).

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       This principle is often linked to Justice White’s concurrence in the result
in Lowe v. Securities & Exchange Commission. 14 There, Justice White, joined
by Chief Justice Burger and Justice Rehnquist, concluded that ”[j]ust as offer
and acceptance are communications incidental to the regulable transaction
called a contract, the professional's speech is incidental to the conduct of the
profession. If the government enacts generally applicable licensing provisions
limiting the class of persons who may practice the profession, it cannot be said
to have enacted a limitation on freedom of speech or the press subject to First
Amendment scrutiny.” 15         The idea that content-neutral regulation of the
professional-client relationship does not violate the First Amendment has deep
roots, 16 and has been embraced by many circuits. 17
       Our court’s jurisprudence is consistent with this line of cases. In Daly v.
Sprague, 18 a challenge by a state-employed doctor to the temporary removal of
his clinical privileges, we held that “[s]ince the state undoubtedly possessed
the power to regulate nonspeech and nonassociation aspects of [the doctor’s]
professional actions, any incidental restrictions on his freedom of speech and
association are not constitutionally invalid.” 19 We were not clear whether that
power stemmed from the state’s role as regulator of the practice of medicine or
as the plaintiff-doctor’s employer, so this case does not control our decision
here, but the line of precedent discussed above suggests the former
explanation.


       14 472 U.S. 181, 211 (1985) (White, J., concurring in the result).
       15 Id. at 232.
       16 See Thomas v. Collins, 323 U.S. 516, 544-45 (1945) (Jackson, J., concurring).
       17 See, e.g., Moore-King v. Cnty. of Chesterfield, Va., 708 F.3d 560, 569-70 (4th Cir.

2013); Locke v. Shore, 634 F.3d 1185, 1191-92 (11th Cir. 2011); Coggeshall v. Mass Bd. of
Registration of Psychologists, 604 F.3d 658, 667 (1st Cir. 2010); Nat’l Ass’n for Advancement
of Psychoanalysis v. Cal Bd. of Psychology, 228 F.3d 1043, 1056 (9th Cir. 2000); Lawline v.
Am. Bar Ass’n, 956 F.2d 1378, 1386 (7th Cir. 1992).
       18 742 F.2d 896 (5th Cir. 1984).
       19 Id. at 899.

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                                        No. 14-40403
       Whether Hines’s First Amendment rights are even implicated by this
regulation is far from certain. In defining the permitting practice of veterinary
medicine for which its license is required, Texas only imposes a narrow
requirement upon the veterinarian.              But surely, if this restriction on the
veterinarian’s medical practice is within its scope, it is but incidental to the
constraint, and denies the veterinarian no due First Amendment right. 20
                                               C.
       The district court also dismissed Hines’s equal protection and due
process claims, concluding that the physical examination challenge is
rationally related to a legitimate government interest. We agree.
       Because Hines is not a member of a protected class, and the classification
does not infringe upon fundamental constitutional rights, we apply rational
basis review. “Under rational basis review, differential treatment ‘must be
upheld against equal protection challenge if there is any reasonably
conceivable state of facts that could provide a rational basis for the
classification.’” 21 Here, the requirement that veterinary care be provided only
after the veterinarian has seen the animal is, at a minimum, rational: it is
reasonable to conclude that the quality of care will be higher, and the risk of
misdiagnosis and improper treatment lower, if the veterinarian physically
examines the animal in question before treating it. 22 The same rationality


       20 Contrary to Hines’s assertions, two Supreme Court cases do not call this conclusion
into question. In Legal Services Corporation v. Velazquez, 531 U.S. 533 (2001), the Court
struck down an “impermissible viewpoint-based” regulation, id. at 537, which is easily
distinguishable from the content-neutral conduct regulation at issue here. Similarly, in
Holder v. Humanitarian Law Project, 561 U.S. 1 (2010), the Court focused on a law which
“regulates speech on the basis of its content,” id. at 27, and did not implicate questions of the
content-neutral regulation of the practice of medicine that are relevant to this appeal.
       21 Madriz-Alvarado v. Ashcroft, 383 F.3d 321, 332 (5th Cir. 2004) (quoting FCC v.

Beach Commc’ns, 508 U.S. 307, 313 (1993)).
       22 While not decisive, the fact that the physical examination requirement was imposed

following a change to the Model Veterinary Practice Act of the American Veterinary Medical
Association further supports the conclusion that the regulation is rational.
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standard applies to Hines’s due process claim, 23 and we reject that argument
for the same reasons.
                                              III.
      We REVERSE the district court’s denial of the defendants’ motion to
dismiss the plaintiff’s First Amendment counts and AFFIRM the district
court’s granting of the defendants’ motion to dismiss the plaintiff’s Fourteenth
Amendment counts. We REMAND for the entry of judgment in favor of the
defendants.




      23   See Dittman v. California, 191 F.3d 1020, 1031 (9th Cir. 1999).
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