On August 15, 2016, United States District Judge Robert Pitman denied the motion of the Texas Medical Board (“TMB”) to certify order for an immediate appeal of the court’s decision not to dismiss the Teladoc case. The court previously denied the TMB’s attempt to have the case against it dismissed, which was brought by Teladoc challenging the TMB’s adoption of a rule requiring physicians prescribing certain medications to first see patients face to face.
The TMB appealed Judge Pitman’s order declaring that the TMB could not claim sovereign immunity as an agent of the state to the Fifth Circuit earlier this year, where the parties are currently in the briefing stage. The TMB based its appeal on the collateral order doctrine, which allows a party to appeal an order that doesn’t conclude the litigation if the order conclusively decides an issue different from the actual merits of the claim and that would effectively be unreviewable if the parties waited for a final judgment. However, an amicus brief filed by the American Antitrust Institute arguing that the Fifth Circuit does not have jurisdiction in the case because the collateral order doctrine can’t be used to review an order that deals with a substantive legal issue such as state action immunity, prompted the TMB to return to Judge Pitman to request he certify a Fifth Circuit appeal.
In his order, Judge Pitman determined that since the TMB’s motion to certify appeal was made nearly seven months after entry of the interlocutory order, and because the TMB has already appealed the court’s order, requested and received three extensions of time in that appeal, and filed their opening brief with the Fifth Circuit, their motion for certification to the District Court is untimely. Additionally, because Teladoc is in the midst of drafting its response in the appeal, which is due August 19, 2016, the TMB’s request for certification now places a burden on Teladoc as it creates uncertainty for Teladoc whether or not to address the jurisdiction issue in their brief while there is uncertainty as to whether an independent basis for appeal will be created. Judge Pitman stated “that uncertainty, and the burden it creates, can only be eliminated by the denial of [the TMB’s] motion.” As such, the procedural posture of the case, in the middle of appellate briefing, resulted in Judge Pitman’s denial of the TMB’s motion.