The doctor whom Gov. Mark Gordon sought to remove from the Wyoming Board of Medicine over the doctor’s outspoken advocacy for a ban on child sex changes has won his appeal – halfway.
Dr. Eric Cubin in August 2024 sued Gordon in the governor’s personal and official capacity for three alleged free-speech and petition violations, all stemming from Cubin’s advocacy for “Chloe’s Law” – a proposed ban on sex-change treatments for kids that ultimately became law.
Cubin, a Casper radiologist, was pushed off the board because of things he said while lobbying state lawmakers to pass Chloe’s Law while he was a member of the Board of Medicine.
This came after his multiple failed efforts to try and convince Wyoming Medical Society leadership to change its opposition to the bill.
In a letter to state legislators, Cubin called the Medical Society, of which he was a member, “woke” and taken over by “extremely liberal” members.
“I urged our legislators to be circumspect about the information they were being provided and cautious about what they allow physicians to do to kids in our state — something that is now the law across Wyoming,” Cubin said at the time.
Gordon wrote to Cubin to remove him from the Wyoming Board of Medicine.
The governor told Cubin the doctors the board governs should “have confidence that board members prosecute their responsibilities on the board in an objective and unbiased way.”
But Cubin resigned instead.
Then he sued the governor in both his official and personal capacities. For the official claims, Cubin wanted the court to make Gordon restore Cubin to his seat on the board, and to declare that Gordon had violated Cubin’s First Amendment rights.
For the personal claims, Cubin sought “monetary damages” against Gordon “in an amount to be determined at trial.”
U.S. District Court Judge Scott Skavdahl pronounced the whole lawsuit insufficient for court and dismissed it.
The judge found that Cubin had failed to show the governor unconstitutionally retaliated against him for his speech because, in Skavdahl’s view, Cubin’s speech didn’t rise to the level of “public concern” and the government’s interest in “promoting efficiency” on the board outweighed Cubin’s expressive rights.
Skavdahl also concluded that for the personal-capacity claims, Gordon has qualified immunity.
Cubin appealed that ruling.
A panel of three 10th Circuit Court of Appeals Judges disagreed, saying Cubin’s speech does rise to the level of public concern.
Their Tuesday order sends the case back down to the Wyoming-based federal court for further review – and revives Cubin’s claims against Gordon in his official capacity.
Cubin's attorney Brendan Philbin, of the Liberty Justice Center, said he and Cubin are "thrilled with the result" of the appeal.
"I think the court really nailed it on what this case is about, when they said that speech on matters of democratic debate is of paramount public importance," said Philbin. "We’re rally happy the court saw that Dr. Cubin was participating in the legislative process and really exercising the rights that we hold dear, to participate in representative government. And we’re excited now to go back to the district court and continue to seek justice for him."
Philbin also called the remand a win for Wyomingites.
Gordon’s spokeswoman Amy Edmonds said the governor remains confident that the merits of this case will show he did not infringe on Cubin’s freedom of speech.
“The Governor is confident that he will also prevail in his official capacity upon remand to the District Court,” said Edmonds.
A Matter Of Public Concern
A person is likelier to prove that his government employer retaliated against him for his speech if his speech was a matter of public concern.
Cubin’s complaints about the Wyoming Medical Society cut against that claim because that’s a private group, wrote 10th Circuit Court Judge Nancy Moritz in the Monday remand order. But he was clearly lobbying for legislation, on a matter of high public concern, the order also says – which cuts in his favor.
“Gordon urges us to view Cubin’s frustrations… as personal grievances with the internal dynamics of the Society, a private organization,” wrote Moritz.
“On the other hand,” the order counters, “Cubin raised these concerns in opposition of the Society’s public advocacy against a bill Cubin endorsed – facts characteristic of ‘the type of core political speech the First Amendment was designed to protect.’”
Cubin’s speech was a matter of public concern, so his retaliation claim against Gordon as an official is revived, the order says.
Balancing Disruption Vs. Speech
Gordon had explained his decision to remove Cubin as a safeguard against people questioning the board’s impartiality, and against disruption of “at least some of the Board’s core functions.”
Government employers have an interest in regulating their employees’ speech, but courts also balance that interest against employees’ rights.
Skavdahl’s court hasn’t seen enough evidence for the judge to side with Gordon on that one, the 10th Circuit decision says.
Just Sue The Government Though
The Monday order upholds Skavdahl’s ruling that Gordon gets qualified immunity for his attempt to remove Cubin.
That means Cubin can’t sue Gordon for money in his personal capacity.
A key tenet of qualified immunity holds that government officials – such as police officers, governors or other public employees – would have to break a clearly-established right to face lawsuit liability as individuals.
Though Cubin showed a strong enough case for retaliation to revive his official-capacity claims, he didn’t prove that Gordon was violating a clearly-established right, the appeals court ruled.
“It was not clearly established that Cubin’s email (complaining about the Medical Society) addressed a matter of public concern,” the order says. “And Gordon is entitled to qualified immunity in his personal capacity.”
10th Circuit Court Judge Richard Federico and a Utah-based U.S. District Court Judge filling in on the case - Ann Marie McIff Allen – also joined Mortiz’s ruling.
Clair McFarland can be reached at clair@cowboystatedaily.com.
