More detailed coverage and ‘Sten Reacts’ video below.
Dismissal of Skoly’s Lawsuit Upheld by 1st Circuit Court of Appeals
Three-and-a-half weeks after his case was heard in Boston on May 7, the US 1st Circuit Court of Appeals on Friday denied the appeal of the dismissal by federal District Court’s the lawsuit brought by Dr. Stephen Skoly.
In a unanimous decision, Chief Judge Barron, along with Circuit Judges Lynch and Kayatta, ruled to uphold US District Judge McElroy’s July 2023 decision to Skoly’s lawsuit against Governor McKee, the State of Rhode Island, et al.
Dr. Skoly and his attorney, Gregory Piccirilli confirmed that they will not seek a US Supreme Court appeal, thus bringing an end to the lawsuit.
In its written decision, the court rejected Skoly’s argument that his due process rights were violated: “We also reject as waived Skoly’s argument that the RI DOH violated his due process rights by not referring his matter to the
State’s Board of Examiners in Dentistry.”
The decision also affirmed that Governor McKee and other RI DOH defendants were protected from suit by a concept called “qualified immunity”, whereby official actions by public officials cannot usually be legally challenged unless there was some arbitrary action that resulted in a clear violation of established rights.
Nor did the court believe that Skoly’s claims of ‘retaliation’ for publicly speaking out were justified.
The entire 1st Circuit Court ruling can be viewed here.
Below is previous coverage of Skoly’s case.
(May 8, 2024)) Update on Doc Skoly’s 1st Circuit Court Lawsuit Appeal
It’s been over two-and-a-half years since Dr. Stephen Skoly put his career on the line to defend his medical decision not to comply with Rhode Island’s 2021 healthcare worker vaccine mandate.
Two-and-a-half years … and Skoly still has not been granted an official hearing after his oral and facial surgical practice was shut down by the RI Department of Health in November 2021, when his medical exemption appeal for the mandate was rejected.
Earlier this week, on May 7 in the US 1st Circuit Court of Appeals in Boston, Skoly’s attorney, Gregory Piccirilli, argued that a full hearing was warranted, following the July 2023 ruling by the Rhode Island District Court that his case should be dismissed.
And in 2021, Skoly was denied an administrative hearing in front of the State Dental Licensing Board, as is required by state law, after RIDOH issued its notice of violation of its controversial “healthcare worker vaccine mandate”.
At no point in the past 30 months has a Skoly’s team been able to explain his side of the story in an open hearing with full discovery, witnesses, and evidence presented. At no point has Skoly himself been allowed to utter a single word in his own defense.
The six-month shuttering of his medical practice cost Skoly hundreds of thousands of dollars, the loss of many of his employees, and a hit to his sterling reputation as a surgeon who has provided the highest quality care for the public and wards of the state from the Zambarano, Eleanor Slater, and Department of Corrections facilities, among others.
Of note, no other media entity from Rhode Island was present to report on a US Circuit Court lawsuit where the Governor of its home state was a named defendant.
Heading into Tuesday’s Circuit Court hearing, Skoly faced an uphill battle in the highly liberal Circuit court, where one of the three presiding judges was instrumental in upholding the state of Maine’s oppressive vaccine mandate.
Yet, despite the odds, Piccirilli appeared to pique the interest of the judges on two separate issues, giving at a least a few small rays of hope to Skoly.
The federal building, the Moakley US Courthouse, is a beautiful structure where the walk to the 7th floor courtroom provided a breathtaking seaside viewing of Boston Harbor. A few decades ago, when liberal justices would have been skeptical of government actions, the courthouse is now home to what some have described as the most progressive pro-big-government court in America.
All three judges assigned to Skoly’s 1st Circuit case were appointed by Democrat Presidents and are considered liberal judges. It is notable however, that Chief Judge David Barron, throughout all of the hearings witnessed that day by this reporter, appeared to be a fair, engaged, deferential, non-biased, and highly intellectual jurist.
When Skoly’s case was called, Piccirilli was first to present oral argument. However, within seconds, the pro-vaccine judge, Sandra Lynch, interrupted and challenged his very first sentence, thus sending the discussion into a direction that was not planned for. Lynch’s issue was to explore the generally accepted premise that the government (RIDOH) enjoys a strong level ‘prosecutorial immunity’, meaning that government officials are normally protected in their official acts so long as constitutional rights are not clearly violated, especially when acting in a state of emergency, as was declared in Rhode Island during the Covid-19 pandemic.
As Piccirilli tried to get back on track for his prepared comments, the other two judges also cut-in with questions and comments. Skoly’s original complaint claimed that he was singled out for punishment by RIDOH because he spoke publicly about his criticism of the mandate and his personal medical decision to not be vaccinated … claiming a violation of his first-Amendment rights. Skoly was concerned in 2021 that initial vaccine ‘incident’ reporting indicated that the vaccine might rekindle his dormant Bells Palsy condition.
Judge William Kayatta countered by asking that by speaking out publicly wasn’t Skoly “self-reporting” himself by admitted he committing a violation, therefore nullifying any free-speech protections?
What followed was an interesting discussion about whether Skoly self-report himself … or, rather … was publicly criticizing the government mandate, which would be considered protected speech and which should not be grounds for government censure or retaliation. Piccirilli claimed that Skoly did both – criticize and make an admission. He then brought up a recent 11th Circuit case, where Governor DeSantis’ firing of a public official in Florida was overturned. The official, who had spoken out against a policy supported by the Governor, had his lawsuit dismissed in federal District Court, but the 11th Circuit ordered that his lawsuit be re-instated, ruling that 1st-Amendment allowed public criticism of government cannot be grounds for government punishment.
Piccirilli argued that the identical scenario has played out with Dr. Skoly’s case: public criticism of a state public policy; retaliation by the government; lawsuit dismissed in the District Court; lawsuit appealed to the Circuit Court.
Free Speech Rights. The biggest ray of hope for Skoly occurred when Judge Kayatta asked Piccirilli to provide his 1st Circuit Court with more information and arguments about why that 11th Circuit Court ruling might hold precedent in Skoly’s case.
As a fascinating side-note to this line of discussion, when asked why Skoly’s complaint alleged that the surgeon was punished by the government for speaking out, Piccirilli replied that government officials actually stated such. When asked what government official, the attorney hesitantly admitted that it was Governor Dan McKee himself, one of the named defendants in the case.
The Current has since confirmed that McKee and other high-ranking elected officials and attorneys for the state, allegedly on multiple occasions, implied or directly stated in a private conversations with Skoly and his legal team that if Skoly had not spoken out, his surgical practice would not have been shut down. One specific comment offered by Piccirilli to the judges was … “If he had just kept his big mouth shut, they (RIDOH) wouldn’t have gone after him”. Such an allegation might be considered hearsay, Piccirilli admitted, but then quickly added that this is exactly why a trial with full discovery (and witnesses) is warranted … to sort out such allegations.
The State’s attorney then used his 15-minutes to put forth a highly technical and credible prosecutorial argument against Skoly; that he was not vaccinated as required by the mandate; that he did not meet any of the listed medical exemptions; and that he publicly admitted such. Further he argued, the “why didn’t he keep his mouth shut” allegations were not put forth or evidenced in Skoly’s written complaint.
Due Process Rights. A second ray of hope for Skoly occurred during Piccirilli’s 3-minute rebuttal, which he previously pre-reserved for himself. The main argument here was that Skoly has been denied due process at every point along the way and that the State and its DOH, in essence, convicted Skoly without a hearing. Exacerbating the situation, RIDOH then posted and refused to take down from its website (for a long period of time even after Skoly was allowed to re-open his practice) the compliance order against Skoly, as if he had been duly found guilty.
First, according to state law, Piccirili argued, and before any compliance order can be enforced with punishment, a hearing is required “before the licensing board that governs that individual”; in Skoly’s case, the Rhode Island Board of Dental Examiners. Such a hearing was denied to Skoly by then RIDOH Nicole Director Alexander-Scott, even though he formally requested a meeting within requisite the 10-day period. Piccirilli argued that when the RIDOH purposefully circumvented this clearly stated due-process procedure, that its compliance order could not be legally enforced or considered final or effective without such a hearing. Even Judge Lynch, whose previous questions and statements made it clear she was not solicitous to Skoly’s case, appeared to be sympathetic to this argument by seeking to confirm that Skoly “should have been given a hearing under Rhode Island law … and he was not.”
Skoly is simply requesting that his case be remanded back to the Rhode Island federal District Court, where a full trial can finally be allowed to take place. It is expected that a ruling by the 1st Circuit will be announced before the end of June, however, Piccirilli must first submit his brief on the 11th Circuit Court ruling.
