United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

JAMES A. BLANCO,

Plaintiff,

 v.

AMERICAN ACADEMY OF FORENSIC

SCIENCES,

Defendant. /

No. C 09-02780 SI

ORDER DENYING PLAINTIFF’S

MOTION FOR PRELIMINARY

INJUNCTION

Plaintiff’s motion for a preliminary injunction was heard on January 29, 2010. Having

considered the arguments of the parties and the papers submitted, and for good cause shown, the Court

hereby DENIES plaintiff’s motion.

BACKGROUND

The following undisputed facts are drawn from plaintiff’s First Amended Complaint (FAC) and

defendant’s Answer. Docket Nos. 3, 5. Plaintiff James Blanco has been a forensic document examiner

since 1989, and a member of defendant American Academy of Forensic Sciences (AAFS) “at all times

pertinent.” FAC ¶¶ 6-7. Defendant is a non-profit professional organization with approximately 6,000

members in over 60 countries. FAC ¶ 8.

David Moore (hereafter complainant Moore), a member of AAFS, filed a formal written

complaint against plaintiff with defendant on January 5, 2006. FAC ¶ 10. The internal complaint

asserted that plaintiff had violated two sections of AAFS’s Code of Ethics and Conduct, based on

plaintiff’s participation as an expert witness prior to a trial in Marin County. FAC ¶ 11. The AAFS

Ethics Committee, chaired by Retired Judge Haskell Pitluck, conducted an initial investigation. FAC

Case 3:09-cv-02780-SI Document 37 Filed 02/17/10 Page 1 of 11
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

¶ 16. Plaintiff was informed about Moore’s complaint by a letter dated June 6, 2006. FAC ¶ 17. The

letter stated that the “crux of the complaint was an opinion Blanco gave in an examination regarding the

determination of line sequencing.” FAC ¶ 16. The letter also informed Blanco that “the Ethics

Committee’s investigation of complainant Moore’s charges to that point revealed there was no proof

in the professional literature or any basis for Blanco’s determination of the sequence of writing ink and

inkjet ink based upon the examinations conducted by plaintiff.” Id. Plaintiff responded with a letter

dated July 10, 2006 in which he denied the charges and argued that he in fact had a sufficient scientific

basis for his opinion. FAC ¶ 17. Chair Pitluck responded on November 16, 2006 with a request that

plaintiff produce “literature in [his] field” to support the conclusion at issue, stating that AAFS was

“only concerned that [plaintiff’s] opinions are based upon scientific principles in accordance with The

Code of Ethics and Conduct.” FAC ¶ 18. Plaintiff’s counsel then provided a list of professional

literature citations to Chair Pitluck on November 8, 2007. FAC ¶ 19.

On February 19, 2008, Chair Pitluck conducted a hearing on the charges against Blanco with a

panel of four members of defendant AAFS. Plaintiff’s Motion, Docket No. 19 at 3. Plaintiff was

informed by Chair Pitluck on June 13, 2008 that the AAFS Ethics Committee had found him in violation

of the AAFS Code of Ethics and Conduct. FAC ¶ 24. That letter did not indicate what steps would be

taken by defendant to sanction plaintiff. Id. On the same date, an Ethics Committee report

recommending the expulsion of plaintiff was sent to the Board of Directors. FAC ¶ 25. Plaintiff notified

defendant by letter, dated June 29, 2008, that he disputed the findings of the Ethics Committee. FAC

¶ 26. On October 20, 2008, plaintiff appealed his expulsion from defendant AAFS to the entire

membership of the Academy. FAC ¶ 28. Plaintiff repeatedly insisted that color copies of his exhibits

in support of the appeal be sent by mail to each voting member of the academy, but defendant chose to

post the materials on its website instead. FAC ¶ 28-32.

Defendant’s annual meeting was held on February 18, 2009. FAC ¶ 34. Plaintiff alleges that

he and his counsel were only given 15 minutes to present their case, that he was denied fair procedure

during the hearing, and was not given formal notice of defendant’s eventual decision to reject the appeal.

Id. At the annual meeting, the voting members of defendant voted to sustain the decision to expel. Id.

Case 3:09-cv-02780-SI Document 37 Filed 02/17/10 Page 2 of 11
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

LEGAL STANDARD

“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the

merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance

of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def.

Council, Inc., 129 S. Ct. 365, 374 (2008). 

DISCUSSION

I. Form of Preliminary Injunction

Defendant asks the Court to apply a strict standard to plaintiff’s motion because the preliminary

injunction requested by plaintiff is technically categorized as mandatory, rather than prohibitive. A

mandatory injunction “orders an affirmative act or mandates a specified course of conduct.” Black’s

Law Dictionary 349 (2d pocket ed. 2001). “Mandatory preliminary relief, which goes well beyond

simply maintaining the status quo pendente lite, is particularly disfavored, and should not be issued

unless the facts and law clearly favor the moving party.” Anderson v. United States, 612 F.2d 1112,

1114 (9th Cir. 1979) (quoting Martinez v. Mathews, 544 F.2d 1233, 1243 (5th Cir. 1976)). Plaintiff’s

motion for preliminary injunction asks the Court to stay enforcement of “defendant’s September 16,

2008 order expelling plaintiff . . . from the membership of defendant AAFS pending trial in this matter.”

Plaintiff’s Motion, Docket No. 19. Although issuing such an order would technically require an

affirmative act on the part of defendant, it would arguably not upset the status quo between the two

parties, because their relationship would simply be returned to its pre-conflict state for the duration of

these proceedings. Therefore, the Court declines to apply the standard described in Anderson, which

requires that plaintiff’s motion “should not be issued unless the facts and law clearly favor the moving

party.” Anderson, 544 F.2d at 1233 (emphasis added).

II. Likelihood of Success on the Merits

To determine the likelihood that plaintiff will succeed on the merits of his case, the Court must

look to the underlying causes of action alleged in the complaint. Plaintiff alleges that defendant violated

both his “common law right of a fair procedure” and his “first amendment right of free speech.” FAC

Case 3:09-cv-02780-SI Document 37 Filed 02/17/10 Page 3 of 11
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4

¶ 122.

A. Common Law Right to Fair Procedure

California’s common law right to fair procedure has arisen from the principle that “the right to

practice a lawful trade or profession is sufficiently ‘fundamental’ to require substantial protection

against arbitrary administrative interference, either by government or by a private entity.” Yari v.

Producers Guild of Am., Inc., 73 Cal. Rptr. 3d 803, 805 (Cal. Ct. App. 2008) (citing Ezekial v. Winkley,

572 P.2d 32, 37 (Cal. 1977)). “The purpose of the common law right to fair procedure is to protect, in

certain situations, against arbitrary decisions by private organizations . . . [T]his means that, when the

right to fair procedure applies, the decisionmaking ‘must be both substantively rational and procedurally

fair.’” Potvin v. Metro. Life Ins. Co., 997 P.2d 1153, 1156-1157 (Cal. 2000) (citation omitted).

(1) Is Defendant AAFS a “Gatekeeper” Organization?

Defendant AAFS argues that the common law right to fair procedure does not apply, because

it is not a “gatekeeper” organization. A “gatekeeper,” according to the defense, is a private organization

that “can effectively deprive an individual of the ability to practice a trade or profession.” Yari, 73 Cal.

Rptr. 3d at 805 (citing Ezekial, 572 P.2d at 37). In Yari, plaintiff brought suit against the Producers

Guild of America and the Academy of Motion Picture Arts and Sciences for violation of the common

law right of fair procedure after the Producers Guild determined he was not a “producer” of a film for

purposes of an Academy Award nomination. Yari, 73 Cal. Rptr. 3d at 805. The court held that

defendants were not “gatekeepers” for the plaintiff’s position, despite allegations by plaintiff “that the

Guild holds a ‘virtual monopoly in the specialized field of motion picture producing’ and ‘represents

itself as the de facto spokesperson for that profession,’” because the defendants did not control the

plaintiff’s ability to practice his trade. Id. at 807. Defendant AAFS argues that the “situation at issue

in this case is substantially similar to Yari” because “AAFS has no impact on [p]laintiff’s ability to work

in the field of forensics.” Defendant’s Opposition, Docket No. 25 at 7.

Plaintiff counters that his claim under the common law right to fair procedure does not require

him to prove that defendant “completely [prevented] him from working in his profession.” Plaintiff’s

Case 3:09-cv-02780-SI Document 37 Filed 02/17/10 Page 4 of 11
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

5

Reply, Docket No. 34 at 4. Instead, plaintiff argues that protection extends to “exclusion from

membership in defendant associations [that] deprives [plaintiff] of substantial economic advantages.”

Pinsker v. Pac. Coast Soc. of Orthodontists, 460 P.2d 495, 498 (Cal. 1969). The plaintiff in Pinsker

asked the court to grant injunctive relief against the American Association of Orthodontists (AAO), who

had denied him membership despite the fact that he had completed all prerequisites. Id. at 625. The

court reversed the trial court’s denial of injunctive relief based on the finding that membership in AAO

“would appear to be a practical necessity for a dentist who wishes not only to make a good living as an

orthodontist, but also to realize maximum potential achievement and recognition in such specialty.” Id.

at 627.

The Court agrees that “the common law protection against arbitrary expulsion . . . has been

extended . . . to . . . professional and trade organizations.” Ezekial, 572 P.2d at 36. “The underlying

theme . . . is that membership in an association, with its associated privileges, once attained, is a

valuable interest which cannot be arbitrarily withdrawn.” Id. Defendant argues that there are multiple

professional organizations in the field of forensic science, and that exclusion from AAFS does not

completely preclude plaintiff from practicing his profession. These assertions are clearly meant to imply

that membership in AAFS is not important enough to warrant a right to fair procedure. The defendant’s

own website, however, describes defendant as “the world’s most prestigious forensic science

organization.” Plaintiff’s Exhibit, Docket No. 20. Furthermore, defendant “represents its membership

to the public and serves as the focal point for public organization concerning the forensic science

profession.” Id. Membership in the “most prestigious” professional association seems to be “a valuable

interest that cannot be withdrawn.” Ezekial, 142 Cal. Rptr. at 422. 

The Court declines to decide this motion on the basis of the “gatekeeper” status of defendant

AAFS. The relative importance of membership in AAFS to a forensic examiner is an issue that is hotly

disputed by the parties, and the Court prefers to revisit the argument at a later time with the aid of the

record developed at trial.

(2) Fair Procedure

The Court must now consider whether plaintiff is likely to prevail on his claim that he was

Case 3:09-cv-02780-SI Document 37 Filed 02/17/10 Page 5 of 11
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

6

denied fair procedure. In Pinsker II, the Supreme Court of California noted that the common law right

to fair procedure does not require “formal proceedings with all the embellishments of a court trial.”

Pinsker v. Pac. Coast Soc. of Orthodontists, 526 P.2d 253, 264 (Cal. 1974). Instead, the institution only

needs to “[provide] an [adversely affected individual] . . . adequate notice of the ‘charges’ against him

and a reasonable opportunity to respond,” as well as a “fair opportunity for an applicant to present his

position.” Id. Therefore, there is no bright line rule upon which this Court should base its inquiry, other

than that the procedure utilized by defendant needed to provide plaintiff with adequate notice and a

reasonable opportunity to respond.

(a) Notice

Plaintiff describes several aspects of the expulsion proceeding that he believes violated his

common law right to fair procedure. First, plaintiff alleges that defendant did not provide notice of the

“misrepresentation of data” charges with sufficient specificity, thus depriving plaintiff of adequate

opportunity to prepare a response. Plaintiff’s Motion at 10. After examining the notice that defendant

sent to plaintiff, however, the Court does not agree that more specificity was required. The notice points

to specific provisions of the AAFS Code of Ethics and Conduct that were violated, identifies the

problematic theories utilized by plaintiff as “the determination of line sequencing,” and expresses

concerns over the apparent lack of “proof in the literature or any basis for [plaintiff’s] determination of

the sequence of writing ink and inkjet ink based on the examinations [plaintiff] conducted.” Exhibit 3,

Docket No. 26 at 13. The Court finds that based on the information before it at this time, plaintiff is

unlikely to succeed in showing that he did not receive “adequate notice of the ‘charges’ against him.”

Pinsker, 526 P.2d at 264.

(b) Cross-Examination of Complainant Moore

The next allegation by plaintiff is that he was denied the right to cross-examine his accuser,

complainant Moore. Neither party disputes the fact that Moore was not present at the hearing, and was

therefore unavailable for questioning. Also undisputed is the fact that the AAFS bylaws in place in 2006

stated that the Ethics Committee “shall give both the accused and the accuser(s) a reasonable

Case 3:09-cv-02780-SI Document 37 Filed 02/17/10 Page 6 of 11
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

7

opportunity to be heard and to confront each other.” Defendant’s Opposition at 12. Defendant contends

that it had absolutely no power to compel the appearance of Moore, and therefore should not be held

responsible for his failure to attend the hearing. The Court is not particularly sympathetic to this line

of reasoning, however, since it was defendant’s own bylaws that created plaintiff’s expectation of the

opportunity to confront his accuser. Although plaintiff goes too far in comparing his situation to cases

involving the constitutional right of confrontation, the Court finds that the conflict with defendant’s own

bylaws weighs in favor of a finding that the procedure utilized was not fair.

(c) Voir Dire

The third aspect of defendant’s expulsion procedure challenged by plaintiff was the lack of

opportunity to voir dire the Ethics Committee to ensure lack of bias. Plaintiff’s Motion at 12. The basis

for this claim is that one of the committee members, William Riordan, was a forensic document

examiner and therefore “may reasonably be expected to have had his own preconceived beliefs and

opinions about the issues in dispute.” Id. Plaintiff asserts that he was entitled to a completely neutral

fact-finder, and that the presence of an expert on the committee therefore violated his right to fair

procedure. Id. at 13. The only case that plaintiff offers in support of this contention is Rosenblit v.

Superior Court, 282 Cal. Rptr. 819 (Cal. Ct. App. 1991), where a physician sought reinstatement of his

medical staff membership and clinical privileges. The Rosenblit court ruled that the plaintiff physician

“must be afforded the opportunity to conduct a liberal and probing oral examination of the committee

members which is calculated to discover possible bias or conflicts of interest.” Id. at 827. 

Defendant distinguishes Rosenblit on the basis that the reviewing committee in that case had a

clear conflict of interest, as demonstrated by the fact that two of the committee members had served as

treating physicians on one of the cases under investigation. Defendant’s Opposition at 15. In addition,

defendant argues that the committee members in Rosenblit had a personal stake in that hearing, whereas

defendant’s Ethics Committee members had no such personal stake. Id. Defendant also notes that its

bylaws require committee members to recuse themselves if they have a conflict or bias towards the

accused, and that plaintiff was therefore not denied the opportunity to be heard in front of a neutral

panel. Id. The Court agrees that plaintiff is unlikely to succeed in showing that defendant AAFS’s

Case 3:09-cv-02780-SI Document 37 Filed 02/17/10 Page 7 of 11
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

8

Ethics Committee was biased against plaintiff. Simply not having the right to voir dire the committee

is unlikely to weigh significantly in favor of finding a violation of the common law right to fair

procedure. Winter, 129 S. Ct. at 374. 

(d) Witness Gerald Richards

Plaintiff’s allegations regarding Gerald Richards are that he was allowed to view the hearing

prior to giving his own testimony, and that plaintiff was not allowed to question him about his possible

friendships with members of the committee. These two claims suggest a lack of fairness, because crossexamination of Richards would have given plaintiff an opportunity to reveal the presence of bias, and

excluding Richards from the hearing would have eliminated any suggestion that he had been tainted as

a witness. The Court finds that both of these issues weigh in favor of the proposition that defendant

denied plaintiff a “reasonable opportunity to respond.” Id.

(e) Witness Gerry LaPorte

Plaintiff was also allegedly denied fair procedure because he was not allowed to fully crossexamine witness Gerry LaPorte (a member of the United States Secret Service only permitted by the

government to give limited testimony). Defendant simply could not be expected to force a Secret

Service agent to testify about matters that his employer, the United States government, had prohibited.

Therefore, this factor does not weigh in favor of plaintiff.

(f) Limiting Voting to Members That Had Read Appeal

Plaintiff next contends that AAFS members voting on the expulsion should have been limited

to those who had actually read plaintiff’s appeal. Plaintiff’s Motion at 13-17. Plaintiff points to no

provision in the AAFS Bylaws which includes such a requirement, implementation of which would

presumably require defendant to question all voting members of the organization and then ascertain

whether they were telling the truth, all before holding the vote. The Court does not anticipate that the

common law right to fair procedure will be found to require such a burdensome measure.

Case 3:09-cv-02780-SI Document 37 Filed 02/17/10 Page 8 of 11
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9

(g) Mailings

The undisputed fact that defendant did not mail color copies of plaintiff’s exhibit to every one

of its members does not demonstrate that the hearing procedure was unfair. Defendant’s bylaws did

indicate that a notice of appeal should be “mailed” to each voting member of the academy. Plaintiff’s

Motion at 16. However, plaintiff “submitted [to defendant] a 36-page written statement and 38

exhibits, which totaled 325 pages.” Defendant’s Opposition at 17-18. Defendant decided that it would

be more practical to post the materials on the website, rather than mail 325-page color documents to its

2,850 voting members. Id. The Court does not believe that this method of document delivery implies

a lack of fair procedure.

(h) Code of Ethics and Bylaws

Plaintiff’s final contention is that in violation of defendant’s Code of Ethics and Bylaws, he was

not mailed the full version of the Ethics Committee’s report until after the expulsion decision had

already been made in October 2008. Article II, section 5h of the bylaws “provides that a member found

to be in violation of the Code of Ethics and Conduct may submit a written statement for review by the

Board of Directors prior to the Board’s vote to either censure, suspend, or expel the member.”

Plaintiff’s Motion at 16. Both parties agree that defendant mailed plaintiff a notification letter on June

13, 2008 that reported the committee’s conclusions. Id. Defendant does not claim that plaintiff was sent

the full committee report, just that he was sent the decision letter and was informed that he could file

a written response recommending possible sanctions. Defendant’s Opposition at 17. Plaintiff’s

argument is that because he was not provided a full report, the written statement mentioned in Article

II, section 5h of the bylaws could not have been meaningful. Plaintiff’s Motion at 16. The Court agrees

that plaintiff probably could have submitted a more effective response earlier had he been mailed the

full report immediately. However, plaintiff did receive the full report in October of 2008, and had until

February of the next year to prepare his appeal of the decision. Fair procedure only requires that

plaintiff have been give “reasonable opportunity to respond.” Pinsker, 526 P.2d at 264. Under these

facts, the timing of defendant’s mailing does not strongly weigh in plaintiff’s favor.

Case 3:09-cv-02780-SI Document 37 Filed 02/17/10 Page 9 of 11
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

 Defendant states that “[p]laintiff amended his original complaint to eliminate a cause of action

based on the First Amendment following a meet and confer with counsel for AAFS.” Defendant’s

Opposition, Docket No. 25 at 20. The FAC in possession of the Court, however, still contains the First

Amendment cause of action.

10

(i) Summary

Although plaintiff does raise some legitimate questions about the fairness of defendant’s

expulsion procedure, the Court does not believe that he has demonstrated that it is “likely” that he will

succeed on the merits. Winter, 129 S. Ct. at 374. At the very most, success on the merits appears to be

“possible” based on the documentation in front of the Court at this time.

B. First Amendment1

Plaintiff’s second cause of action alleges that defendant violated his First Amendment rights to

free speech and opinion. FAC ¶¶ 112-116. “[T]he guarantees of free speech and equal protection guard

only against encroachment by the government and “erect no shield against merely private conduct.”

Hurley v. Irish-American Gay, Lesbian, & Bisexual Grp. of Boston, 515 U.S. 557, 566 (1995) (citing

Shelley v. Kraemer, 334 U.S. 1, 13 (1948)). Plaintiff cites numerous cases that purportedly show the

willingness of courts to step into private disputes to protect First Amendment rights. Plaintiff’s Motion

at 18 (citing Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485 (1984); New York Times Co.

v. Sullivan, 376 U.S. 254 (1964); Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967)). These cases,

however, only extend First Amendment protection as a defense to liability in disputes among private

parties over defamation, libel or similar claims. Plaintiff does not suggest any legitimate basis for a First

Amendment claim against defendant in this case. Therefore, the First Amendment claim is certainly

not “likely to succeed on the merits,” and does not help plaintiff in his motion for a preliminary

injunction. Winter, 129 S. Ct. at 374.

CONCLUSION

Although plaintiff has raised the possibility that his common law right to fair procedure was

violated by defendant, the Court does not believe that plaintiff has made a strong enough showing at this

Case 3:09-cv-02780-SI Document 37 Filed 02/17/10 Page 10 of 11
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

11

time to warrant a preliminary injunction. To minimize any damage that plaintiff may experience as a

result of not receiving the injunction, the Court offered to expedite the timeline for trial, but plaintiff

declined. For the foregoing reasons and for good cause shown, the Court hereby DENIES plaintiff’s

motion for a preliminary injunction. (Docket No. 19).

IT IS SO ORDERED.

Dated: February 17, 2010 

SUSAN ILLSTON

United States District Judge

Case 3:09-cv-02780-SI Document 37 Filed 02/17/10 Page 11 of 11