In the ruling issued today in Jensen v. Minnesota Board of Medical Practice, authored by Eighth Circuit Judge David Stras and joined by Judges James Loken and Lavenski Smith:
Prolonged probes by the Minnesota Board of Medical Practice compelled Dr. Scott Jensen to speak less and devote more time to his responses. Either development would be enough for a court to hear his case, so we reverse….
Like many others across the country, Minnesota faced a political divide during the COVID-19 crisis. Some public officials, including Governor Tim Walz, pressed for aggressive steps to “stop the spread” of the virus. Others, such as Dr. Scott Jensen, then serving as a state senator, disagreed. He opposed vaccine mandates and argued that closing businesses and schools was a mistake. He carried that message into the 2022 election as the Republican candidate for governor.
Not everyone appreciated his views. So much so that, from the pandemic’s outset until mid-2022, the Minnesota Board of Medical Practice received 18 complaints about him. The grievance was consistently the same: Dr. Jensen was “spreading misinformation” and posed a “danger to public health.” … The 18 complaints prompted four investigations. At the start of each, the Board sent a letter outlining the allegations and asked him to respond in writing, reminding him that, as a licensed practitioner, he was “required to cooperate fully.” When he did respond, he furnished the Board with hundreds of pages of material, including pandemic news reports, medical studies, and patient records.
One investigation, lasting more than a year, took on a life of its own. As with the others, it began with a notice accusing him of having “politicized public health.” He cooperated, but the Board waited until after the election to request an “in-person conference.” The notice enumerated several possible violations, such as “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 stakes: “In the Matter of the Medical License of Scott M. Jensen, M.D.” He retained counsel and spent countless hours preparing. After the conference concluded, the investigation ended as well.
Jensen sued, contending that the investigations violated the First Amendment, and the district court held that he had standing to raise the claim (even though he challenged only the investigations themselves, not any final 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 presume 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 question, however, is whether Dr. Jensen alleged a sufficiently “concrete and particularized” injury….
A “pocketbook” harm is a “classic” Article III injury. Generally, monetary harm qualifies as an injury precisely because it is both concrete and particularized. Concreteness comes from its being “real” and actually existing. And it is “particularized” because it affected Dr. Jensen “in a personal and individualized manner.” Once the Board opened the investigations, he had a duty to “cooperate fully,” including answering questions completely and promptly and “providing copies of patient medical records.”
Even a minor expenditure of “time and resources” qualifies as an injury. In this case, as the amended complaint explains, Dr. Jensen did more than a little; in the first few investigations, he spent hours responding. But the last one, which dragged on for more than a year, consumed countless hours crafting responses, gathering documents, and eventually hiring a lawyer. These steps, arising from his statutory obligation to “cooperate fully,” produced out-of-pocket costs and led to “lost revenue because he took on fewer patients.” Even if the Board believed Dr. Jensen should have taken those steps, they constitute “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 spent away from campaigning, talking to voters during the 2022 election. But given the other particularized and concrete injuries he endured, there’s no need to decide whether campaign-related harm would add another element.} …
According to the amended complaint, the investigations also caused Dr. Jensen to alter his “message to … constituents” and to decline invitations to public appearances. These broader allegations suffice to support a plausible inference that his speech was chilled, a fact he allegedly conveyed to the Board in 2020, shortly after the initial investigation began. As we have explained, one form of injury that confers Article III standing in First Amendment cases is the chilling of a plaintiff from exercising the right to free expression. It occurs when a government official’s actions would cause a person of ordinary firmness to self-censor. That is precisely the situation we have here….
In addition to the generalized claims that he changed his message and turned down multiple invitations, the amended complaint notes that he “took great care to ensure that people understood when he was speaking as a candidate and when he was speaking as a family physician,” something none of his opponents had to do. Facing professional sanctions, Dr. Jensen believed that speaking “candidly and honestly” about “COVID-19 vaccines and other government interventions in personal-health care decisions” posed 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 his place would be concerned about a looming and “credible threat of enforcement.” Ignoring that threat would have been unreasonable given the possible consequences, including the loss of his medical license.
It makes no difference that Dr. Jensen “tailored his message” rather than abandoning it. After all, altering the “when, where, and how” of speech still constitutes an injury. A chilling effect may not be as tangible as a pocketbook injury, but it remains a “concrete and particularized” harm….
The chilling effect he continues to endure also qualifies as an “ongoing” injury supporting injunctive relief. As a candidate for office, Dr. Jensen remains “active in the media” and continues to engage with “members of the public” to educate them about how current officeholders managed the pandemic. In practical terms, he is in the same position as before, seeking to engage in “substantially similar activity” without fearing potential loss of his medical license.
It is hard to imagine a more credible threat of future enforcement. After 18 complaints and four investigations, with substantial evidence of prior enforcement for the same conduct, the threat to Dr. Jensen is far from imaginary. And the fact that anyone may file a complaint makes him an easy target for political opponents. …
The court remanded the case to the district court to assess the merits: “Our 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 the plaintiffs.
