Take the Fifth: Nov. 23, 2020 opinions

Designated for publication

  • Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc. v. Kauffman, 17-50282, appeal from W.D. Tex.
    • En banc; abortion law, preliminary injunction, stare decisis, § 1983
    • Owen, J., joined by Jolly, Jones, Smith, Elrod, Southwick, Willett, Ho, Duncan, Engelhardt, JJ.; Haynes, J., concurring in judgment and joining in reasoning in sections I, II, and V; Elrod, J., concurring, joined by Jones, Smith, Willett, Ho, Duncan, Engelhardt, JJ.; Ho, J., concurring, joined by Duncan, J.; Higginson, J., concurring in part and dissenting in part, joined by Stewart, Costa, JJ., and joined in part by Dennis, Graves, JJ.; Dennis, J., dissenting, joined by Graves, J. Judges Oldham (recused) and Wilson (not on the court at the time case was submitted) did not participate in the opinion.
    • Vacating preliminary injunction issued by district court enjoining the State from terminating Medicaid provider agreements pursuant to 42 USC § 1396a(a)(23). Texas had terminated the Medicaid qualification of Planned Parenthood Gulf Coast and its affiliates in Texas–approximately 30 healthcare clinics–upon a determination that began with covert videos of interactions set up by the “Center for Medical Progress” that the facilities “violated federal regulations relating to fetal tissue research by altering abortion procedures for research purposes or allowing the researchers themselves to be involved in performing abortions.”
    • Plaintiffs were five affiliated Planned Parenthood healthcare providers and seven patients of the clinics (“the Individual Plaintiffs”). In issuing the preliminary injunction the district court, upheld by the Fifth Circuit panel on appeal, held that the Individual Plaintiffs had a right to seek relief under a § 1983 claim under 42 USC § 1396a(a)(23). The Court panel relied on Planned Parenthood of Gulf Coast, Inc. v. Gee, 862 F.3d 445 (5th Cir. 2017), cert. denied, 139 S. Ct. 408 (2018). The district court did not consider whether the Provider Plaintiffs had a right to the preliminary injunction, basing the injunction solely on the Individual Plaintiffs’ right of action.
    • The majority first turned to whether “the Individual Plaintiffs have a right under § 1396a(a)(23) to challenge a determination that a Medicaid provider is not ‘qualified.’ If they do not have such a right, then our inquiry is at an end because without a right that can be vindicated by a § 1983 action, the Individual Plaintiffs cannot bring this suit.” Plaintiffs’ claimed right for which they seek vindication under § 1983 is 42 USC § 1396a(a)(23), which allows Medicaid recipients to obtain coverage from any qualified provider. However, in O’Bannon v. Town Court Nursing Center, 447 U.S. 773 (1980), the Supreme Court held that Medicaid recipients do not have a right under § 1396a(a)(23) to contest a state or federal agency’s determination that a Medicaid provider is not “qualified.”
    • The 11 judges in the en banc majority held that “The Supreme Court’s decision in O’Bannon resolves this case. It establishes that § 1396a(a)(23) does not give Medicaid beneficiaries a right to question a State’s determination that a provider is unqualified. Medicaid beneficiaries have an ‘absolute right’ under § 1396a(a)(23) to receive services from a provider whom the State has determined is ‘qualified,’ but beneficiaries have no right under the statute to challenge a State’s determination that a provider is unqualified.” Because it held that the Individual Plaintiffs did not have a cognizable right to challenge the determination of “qualified” under § 1396a(a)(23), they were unlikely to succeed on the merits of their § 1983 claim and the preliminary injunction must therefore fall.
    • The en banc majority (minus Judge Haynes) also held that the plain language of § 1396a(a)(23) does not support a patient’s right to enforce, as the willingness of the provider to provide the services is entirely in the provider’s control, while the qualification to provide the services depends on facts predominantly available to the provider and not to the patient. Therefore, the majority held, the provider is the entity with the incentive and the ability to challenge a determination that it is not qualified, and there is not an independent right of the patient to do so. At the very least, the majority held that there was not an “unambiguously conferred right” sufficient to support a patient’s § 1983 claim under § 1396a(a)(23), citing to the standard under Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002).
    • The majority recognized that it was joining the Eighth Circuit on the lack of a right of patients to bring a § 1983 claim under § 1396a(a)(23), in a split with the Fourth, Sixth, Seventh, Ninth, and Tenth Circuits, and analyzed the distinctions or errors that it saw on the contrary circuits’ opinions.
    • The Court then held that the prior panel decision in Planned Parenthood of Gulf Coast, Inc. v. Gee, 862 F.3d 445 (5th Cir. 2017), must be overruled.
    • Finally, the majority rebutted the charge in Judge Dennis’s dissent that its opinion ignored stare decisis, noting that the Fifth Circuit adheres to a “rule of orderliness” that “one panel of our court may not overturn another panel’s decision, absent an intervening change in the law, such as by a statutory amendment, or the Supreme Court, or our en banc court.” The majority observed, “No decision of this court has held that the court sitting en banc cannot overrule a prior panel decision unless it considers all the elements and principles embodied in the doctrine of stare decisis.”
    • Judge Elrod concurred, joined by six other judges (two short of her opinion being the majority opinion), agreeing with Judge Owen’s majority opinion in full, writing to emphasize the importance of the Gonzaga-based analysis, and presenting a third basis for vacatur of the preliminary injunction on the basis of the lack of likelihood of success on the merits of the Individual Plaintiffs’ § 1983 claim. Judge Elrod held that the appropriate standard of reviewing the State’s action in finding a provider to not be “qualified” should be more deferential to the State: “The appropriate question, then, is not whether a provider has the potential to operate safely, legally, and ethically, but whether it is actually doing so. … Because the states have not committed to a federal definition of ‘qualified,’ they have wide latitude in determining who is ‘qualified’ and who is not, so long as they identify a regulation implicating safety, legality, or ethics and rely on substantial evidence showing that the provider violated that regulation.” And Judge Elrod opined that the correct standard of reviewing this question is on a deferential arbitrary-and-capricious standard limited to the state administrative record, which would allow the state action to be overturned only on a finding of failure to satisfy “minimum standards of rationality.” Judge Elrod then reviewed the administrative record and found that the State’s determination here would have satisfied arbitrary-and-capricious review. Finally, Judge Elrod took Judge Dennis’s dissenting opinion, and Judge Dennis himself, to task for its argument that the majority opinion ignored stare decisis, identifying instances when Judge Dennis had joined in en banc majorities that overruled prior panel opinions.
    • Judge Ho’s concurring opinion focused exclusively on Judge Dennis’s dissent and the argument that the majority opinion did not respect stare decisis. While Judge Elrod had stated expressly that she did not believe that this was an abortion case, Judge Ho opined, “[T]he dissent’s admonition that stare decisis applies ‘even in abortion-related cases’ plainly implies that our court is somehow bending the law to disfavor abortion. That is rich, considering how far the federal judiciary has bent over backwards to protect abortion. There is broad consensus that nothing in the text of the Constitution privileges abortion over other health care matters.”
    • Judge Higginson concurred in part and dissented in part. He opined that patients do have a right enforceable under § 1983 to receive care from any qualified provider, but that they do not have a right to challenge a determination that a provider is not qualified; but that an individual would have a right to challenge the decertification of a provider for a reason not related to its qualification. Judge Higginson also concurred with the majority that Planned Parenthood Gulf Coast’s termination was on the basis of its lack of qualification, but dissented insofar as the preliminary injunction was vacated as to PPGC’s affiliates, which “fails to determine that these providers are not qualified.”
    • Judge Dennis’s dissent, joined by Judge Graves, rounded out the 105-page suite of opinions in this matter. “Without reaching the merits of the district court’s decision, the en banc majority erroneously overrules circuit precedent and misconstrues three Supreme Court decisions to hold that Medicaid patients never had a federal statutory right secured by the Medicaid Act to choose their own qualified and willing providers or to bring an action under § 1983 to enjoin a state’s unlawful interference with, and deprivation of, that federal statutory right.” Judge Dennis opined that the majority’s opinion “leave[s] more than 6.7 million Medicaid recipients in Texas, Louisiana, and Mississippi vulnerable to unlawful state interference with their choice of health care providers. Under the majority’s decision, Medicaid patients will lose any semblance of autonomy in choosing their health care providers and must meekly accept what choices the state allows.” Judge Dennis noted that, until this decision, the Fifth Circuit had been part of a six-to-one majority of Circuits holding that individuals could enforce § 1396a(a)(23) through a § 1983 claim. He observed that O’Bannon was distinguishable because (1) there the plaintiffs did not seek to enforce their rights under § 1983 as a violation of federal statutory rights but as Constitutional Due Process claims, and (2) the patients in O’Bannon sought to keep receiving care from a provider after it was decertified and did not challenge the decertification itself. He also distinguished the other two Supreme Court precedents relied on by the majority, before turning to the review of the merits of the preliminary injunction. Disagreeing with Judge Elrod, Judge Dennis opined that the deferential arbitrary-and-capricious standard has no basis, and that under the appropriate standard there was no error in the district court’s opinion. In a concluding section (that apparently raised the ire in the various majority and concurring opinions), Judge Dennis “respectfully call[ed] on my colleagues to heed the admonitions of the June Medical Court and Chief Justice Roberts, to apply the principles of stare decisis ‘to keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion,’ June Med. Servs. L.L.C., 140 S. Ct. at 2134 (Roberts, C.J., concurring in the judgment) (quoting 1 W. Blackstone, Commentaries on the Laws of England 69 (1765)), and to reconsider its decision to overrule circuit precedent and eviscerate Medicaid patients’ freedom of choice.”
  • T.B. v. Northwest Independent School District, 19-11115, appeal from N.D. Tex.
    • Elrod, J. (Jones, Elrod, Higginson), Higginson, J., dissenting; discrimination, Americans with Disabilities Act, Rehabilitation Act, Individuals with Disabilities Education Act, failure to exhaust administrative remedies
    • Affirming dismissal of plaintiff’s claims under the ADA and the Rehabilitation Act for failure to exhaust administrative remedies under the Individuals with Disabilities Education Act (“IDEA”). Plaintiff was a student with Autism Spectrum Disorder and Attention Deficit Hyperactivity Disorder, which conditions caused him to have to be removed from class and restrained.
    • The Court held that the IDEA is intended to provide “free access to public education” (FAPE), regardless of disability, and that the IDEA provides a requirement to exhaust the administrative remedies in the IDEA before seeking judicial relief for denial of a FAPE, even under other statutes.
    • Where the claim does not explicitly seek remedy for denial of FAPE, the court will look to the “gravamen” of the complaint and to other indicators of whether denial of FAPE is the real remedy sought. Here, the Court held that the fact that the child’s mother initially attempted to engage in IDEA administrative proceedings, albeit past the one-year statute of limitations to do so, was a strong indication that denial of a FAPE was the gravamen of her complaint. The Court then gave credence to the district court’s finding that the focus of the complaint on physical force to restrain the child was another indication that the claim was for denial of a FAPE, as “school districts do not restrain adult employees or visitors, nor do school districts restrain students outside of the school setting.”
    • Judge Higginson dissented, first characterizing the inciting incident not as a “restraint” claim but as arising from a “school-based assault.” Turning to the Supreme Court’s decision in Fry v. Napoleon Community Schools, 137 S. Ct. 743 (2017), Judge Higginson recognized that “The Court clarified that this allows a plaintiff seeking a remedy for a violation other than the denial of a FAPE to sue in federal court ‘even when the suit arises directly from a school’s treatment of a child with a disability—and so could be said to relate in some way to her education.'” Judge Higginson opined that the Fry Court’s analysis required a claim-by-claim analysis of fact-bound, nuanced points in the complaint being advanced, rather than an approach that would allow for a categorical and broad treatment of claims or of the whole of the complaint. Indeed, the Fry decision’s footnote 9 specifically noted that a claim arising from the physical striking of a student by a teacher out of frustration or animus–substantively similar to the scenario here–would likely not be subject to IDEA’s exhaustion requirement. While the plaintiff here did not argue footnote 9 until it’s motion for reconsideration, Judge Higginson opined that, while problematic, this timing was not fatal, that–just as with new arguments raised on appeal–a district court should consider new arguments in a Rule 59 motion where they raise legal issues and to not consider those legal arguments would result in a miscarriage of justice.


  • U.S. v. Poff, 19-20853, appeal from S.D. Tex.
    • per curiam (Smith, Stewart, Higginson), criminal
    • Granting Anders motion to withdraw and dismissing appeal.
  • Cotton v. WalMart, 20-30327, appeal from E.D. La.
    • per curiam (Jolly, Elrod, Graves), Title VII, Age Discrimination in Employment Act, timeliness
    • Affirming dismissal of plaintiff’s suit for violation of Title VII and the ADEA for failure to timely bring claim.