Seventh Circuit Criticizes District Court’s Delay in Issuing Its Merits Opinion Months After Ordering Dismissal of the Case, Citing Fed. R. App. P. 4(a)(7)(A)(ii)

In The Association of American Physicians & Surgeons v. American Board of Medical Specialties, No. 20-3072 (7th Cir. Oct. 10., 2021), affirming dismissal of an antitrust complaint brought under § 1 of the Sherman Act, the Seventh Circuit criticizes the district court’s delay in issuing the final opinion—a practice that in other circumstances cold “risk[] catastrophe for litigants.”

“The Association of American Physicians & Surgeons, or AAPS, is a nonprofit membership organization of physicians and surgeons. The American Board of Medical Specialties, which we call the Board, is a nonprofit provider of medical certification services and itself an umbrella organization for 24 member boards, each dedicated to a particular medical practice area. The Board deems physicians who meet its requirements to be ‘Board certified.’”

The AAPS alleged that Board was engaged in a monopolistic practice, conspiring with hospitals and insurers to restrict certification of specialists to doctors willing to “comply with the Board’s Maintenance of Certification (or MOC) program and the annual continuing-education requirements that come with it.” AAPS also alleged “negligent misrepresentation under state law, claiming that a host of statements on the Board’s website ‘create the false impression that [the MOC program] is indicative of the medical skills of physicians’ and that physicians who do not participate in the MOC program ‘are likely to be less competent.’”

The case, though filed in 2014, dragged on for years, eventually being re-assigned to a newly appointed judge. The district court granted AAPS’s first motion to dismiss for failure to state a plausible claim under Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). “The original district judge granted that motion, but not until September 30, 2017—more than three years later—and then only for ‘the reasons stated in the Memorandum Opinion to follow.’ That opinion did not follow until December 13, 2017.” The district court gave plaintiff leave to refile, but even the amended complaint fell short by the court’s lights.  

The Seventh Circuit affirms the dismissal. “[T]he amended complaint does not plausibly allege an agreement between the Board, hospitals, and insurers. Mere legal conclusions, the Supreme Court has underscored, are ‘not entitled to be assumed true’ at the pleading stage. Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009). Yet, having taken our own careful look at AAPS’s amended complaint, all we see are conclusory allegations—that the Board ‘agreed,’ ‘conspired,’ ‘colluded,’ or ‘induced’ agreement, conspiracy, or collusion. Repetition cannot substitute for factual allegations.”

Winding up, the panel also criticizes the district court’s delay in docketing a final opinion in the case. “We have condemned this practice in the past and do so again today. This approach may have the benefit of ticking a case off a list of outstanding motions, but it risks catastrophe for litigants. Under Federal Rule of Appellate Procedure 4(a)(7)(A)(ii), judgment is deemed to be entered ‘on the earlier of the Rule 58 judgment or 150 days after a dispositive order is entered on the civil docket’. . . . Those 150 days start running when the district court actually dismisses the case—here, September 30—not when it later issues its reasoned opinion. If the opinion does not follow for more than 180 days—150 days plus the ordinary 30 days for an appeal—the appeal may be barred, ‘spell[ing] disaster for a litigant not versed in the appellate rules’ . . . . The delay here was 75 days, so no such disaster ensued. But we reaffirm what we [have] emphasized . . . . [that] unless extenuating circumstances require the ‘speedy announcement of the outcome, the opinion should accompany the decision’” (quoting Walker v. Weatherspoon, 900 F.3d 354, 356 (7th Cir. 2018)).

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