The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
MEDX IMAGING LLC, ET AL., §
§
Plaintiffs, §
§
v. § Civil Action No. 4:24-CV-01259-O
§
TEXAS DEPARTMENT OF HEALTH §
AND HUMAN SERVICES, ET AL., §
§
Defendants. §
MEMORANDUM OPINION & ORDER
Before the Court are Defendants Texas Department of State Health Services (“DSHS”) and
its representative agents’ (collectively, “Defendants”) Second Motion to Dismiss and Brief in
Support (ECF No. 29), filed May 9, 2025; Plaintiffs MedX Imaging LLC d/b/a Eves Breast Center
(“MedX”) and Sarah Khan, M.D.’s (“Dr. Khan”) (collectively, “Plaintiffs”) Response (ECF
No. 30), filed May 16, 2025; Defendants’ Reply (ECF No. 31), filed May 30, 2025; and Plaintiffs’
Sur-reply (ECF No. 33), filed June 6, 2025. After examining the relative authorities and arguments,
the Court GRANTS Defendants’ Motion.
I. BACKGROUND1
Plaintiff MedX is a women’s imaging service center located in Southlake, Texas. It has
been owned and operated since 2011 by Dr. Khan, a board-certified radiologist with nearly
18 years of experience and fellowship training in mammography. Prior to the events giving rise to
1 Unless otherwise cited, the Court’s recitation of the facts is taken from Plaintiffs’ Amended Complaint
and the attached exhibits. See Pls.’ Am. Compl., ECF No. 26. When subject matter jurisdiction is challenged
on a Federal Rule of Civil Procedure 12(b)(1) facial attack, the facts alleged in the Complaint are presumed
to be true. Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). The Court’s review is limited to
whether the Complaint is sufficient to allege jurisdiction. Id.
this suit, Dr. Khan began supervising Janis Lynn Wiscarson, a technologist who was required to
perform 25 supervised mammographic examinations before resuming independent performance
of mammography under Title 25 of the Texas Administrative Code Section 289.230(r)(2)(D).
On or around June 21, 2023, DSHS received a complaint alleging that Dr. Khan was
“positioning” during mammograms without the necessary prerequisites.2 DSHS investigated the
complaint by calling six MedX patients and performing a site inspection on July 20, 2023.
Plaintiffs allege that the inspection process was “highly intrusive and conducted in a manner that
was extremely disruptive to the clinic’s operations.”3
Specifically, Plaintiffs maintain Defendants advised technologists that they “should not
work for Dr. Khan,”4 that Dr. Khan was engaged in criminal wrongdoing, that Dr. Khan violated
regulatory standards, and that Dr. Khan’s career was “finished.”5 Plaintiffs allege Defendants’
“aggressive approach”6 led to the resignation of multiple employees of MedX, damaged MedX’s
reputation, made it difficult to retain or recruit new technologists, and resulted in the loss of
business opportunities.
DSHS eventually determined there was not enough evidence to substantiate the complaint
against Dr. Khan and closed its investigation. DSHS cited MedX for two violations, one of which
was under Section 289.230(r)(2)(D).7 The citation reads, “[t]he medical radiologic technologist
[Ms. Wiscarson] did not complete the required 25 supervised mammographic examinations for
2 See Defs.’ Br. Supp. Second Mot. to Dismiss 8, ECF No. 29-1.
3 Pls.’ Am. Compl. ¶ 29, ECF No. 26.
4 Id. ¶ 30.
5 Id. ¶ 52.
6 Id. ¶ 31.
7 Under Section 289.230(r)(2)(D), medical radiologic technologists who fail to meet continuing education
or experience requirements may re-establish their qualifications by performing 25 mammographic
examinations under the supervision of a qualified medical radiologic technologist. 25 TEX. ADMIN. CODE
§ 289.230(r)(2)(D).
requalification before resuming independent performance of mammography.”8 Since closing their
investigation, Defendants have not pursued further enforcement against Plaintiffs.9
Plaintiffs bring three causes of action, all seeking declaratory relief.10 First, Plaintiffs assert
that Defendants’ application of state mammography regulations to Dr. Khan violated her due
process rights.11 Second, Plaintiffs ask the Court to apply the Administrative Procedure Act’s
(“APA”) “arbitrary and capricious” standard to “inform the Court’s review of Plaintiffs’ federal
constitutional claims.”12 Third, Plaintiffs argue Defendants made “false and defamatory oral
statements regarding Dr. Khan’s conduct” that caused Plaintiffs to suffer “significant harm.”13
Defendants now move to dismiss Plaintiffs’ Amended Complaint under Federal Rule of
Civil Procedure 12(b)(1), or alternatively, under Rule 12(b)(6).
II. LEGAL STANDARD
Motions filed under Federal Rule of Civil Procedure 12(b)(1) allow a party to challenge
the subject matter jurisdiction of the district court to hear a case. FED. R. CIV. P. 12(b)(1). Because
a Rule 12(b)(1) motion concerns a court’s power to hear a case, when a Rule 12(b)(1) motion is
brought with other Rule 12 motions to dismiss, the Rule 12(b)(1) motion must be addressed first.
See Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).
There are two types of challenges to a court’s subject matter jurisdiction under
Rule 12(b)(1): a “facial attack” and a “factual attack.” See Paterson v. Weinberger, 644 F.2d 521,
523 (5th Cir. 1981). A facial attack challenges jurisdiction based solely on the pleadings. Id. When
8 Pls.’ Am. Compl. ¶ 19, ECF No. 26.
9 See Defs.’ Br. Supp. Second Mot. to Dismiss 8, ECF No. 29-1.
10 See Pls.’ Am. Compl. ¶¶ 32–35, ECF No. 26.
11 Id. ¶ ¶ 36–40.
12 Id. ¶ ¶ 41–48.
13 Id. ¶ ¶ 49–56.
ruling on a facial attack, a court must presume that factual allegations in the complaint are true and
determine whether they establish subject matter jurisdiction. Id. The burden of proof for a
Rule 12(b)(1) motion is “on the party asserting jurisdiction . . . the plaintiff constantly bears the
burden of proof that jurisdiction does in fact exist.” Ramming, 281 F.3d at 161.
III. ANALYSIS
In their Amended Complaint, Plaintiffs bring three causes of action: (1) violations of
Plaintiffs’ rights to due process under the Fifth and Fourteenth Amendments; (2) a request for the
Court to apply the “arbitrary and capricious” standard of the APA, 5 U.S.C. § 706(2)(A), in
reviewing Plaintiffs’ constitutional claims; and (3) defamation.14 Defendants now move to dismiss
each claim under Rule 12(b)(1).15 Alternatively, Defendants move to dismiss Plaintiffs’ due
process claim and request for application of the “arbitrary and capricious” standard under
Rule 12(b)(6) for failure to state a claim.16
The Court determines that, at this stage of litigation, Plaintiffs have failed to demonstrate17
the Court has subject matter jurisdiction with respect to any of their claims because: (1) Plaintiffs
lack standing to sue for declaratory relief under their due process claim and request for the Court
to apply the “arbitrary and capricious” standard, and (2) Plaintiffs’ defamation claims are barred
by Eleventh Amendment immunity. Because the Court lacks jurisdiction over Plaintiffs’ claims,
the Court does not reach the merits of Defendants’ Rule 12(b)(6) arguments.
A. Standing
The Court begins with Plaintiffs’ due process claim and request for the Court to apply the
“arbitrary and capricious” standard. Although Defendants argue that Plaintiffs’ due process claim
14 See Pls.’ Am. Compl. ¶¶ 36–56, ECF No. 26.
15 See Defs.’ Br. Supp. Second Mot. to Dismiss 8–13, ECF No. 29-1.
16 Id. at 16–18.
17 See Ramming, 281 F.3d at 161.
is not ripe for adjudication,18 the Court addresses this argument under a standing analysis.19
Article III of the Constitution limits the exercise of the judicial power to “Cases” and
“Controversies.” U.S. CONST. art. III, § 2, cl. 1. The “core component of standing is an essential
and unchanging part of the case-or-controversy requirement of Article III.” Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560 (1992). So, for this Court to hear their case, Plaintiffs must demonstrate
that they have standing. Moreover, they must show standing separately for each claim and each
form of relief sought. In re Latitude Sols., Inc., 922 F.3d 690, 695 (5th Cir. 2019).
There are ordinarily three requirements for Article III standing. A party seeking relief in
federal court must demonstrate: (1) an “injury-in-fact,” which is “concrete and particularized” and
“actual or imminent, not conjectural or hypothetical”; (2) the injury is “fairly traceable to the
challenged action”; and (3) it is “likely . . . that the injury will be redressed by a
favorable decision.” Lujan, 504 U.S. at 560–61 (citation modified). “[E]ach element must be
supported in the same way as any other matter on which the plaintiff bears the burden of proof,
i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Id.
at 561.
To establish Article III standing when seeking injunctive or declaratory relief, “a plaintiff
must allege facts from which it appears there is a substantial likelihood that he will suffer injury
in the future.” Bauer v. Texas, 341 F.3d 352, 358 (5th Cir. 2003). Specifically, “a plaintiff must
demonstrate either continuing harm or a real and immediate threat of repeated injury in the future.”
Id. The Court addresses each in turn.
18 See Defs.’ Br. Supp. Second Mot. to Dismiss 14–15, ECF No. 29-1; Defs.’ Reply 4–5, ECF No. 31.
19 Standing and ripeness both “originate from the same Article III limitation” and “boil down to the same
question.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157 n.5 (2014) (internal quotation marks and
citation omitted).
1. Plaintiffs are not suffering any continuing, present adverse effects from
Defendants’ past conduct.
Plaintiffs may establish Article III standing by demonstrating continuing harm caused by
Defendants’ past actions. Bauer, 341 F.3d at 358. Plaintiffs’ due process claim and request for
application of the “arbitrary and capricious” standard are based on Defendants’ alleged application
of Section 289.230(r)(2) to Dr. Khan.20
In her due process claim, Dr. Khan asserts that DSHS’s “application of rules” concerning
mammography is “arbitrary and capricious” and infringes on Dr. Khan’s “right to perform and
interpret mammograms.”21 In their request for the Court to use the “arbitrary and capricious”
standard, Plaintiffs allege that “Defendants have engaged in arbitrary and capricious conduct by
its erroneous application of [Section 289.230(r)(2)] according to [Section 601.151].”22 Plaintiffs,
though, fail to present evidence that would allow the Court to conclude that Section 289.230(r)(2)
is being applied to Dr. Khan at all. The Court accordingly disagrees with Plaintiffs; Dr. Khan is
not suffering continuous harm by Defendants’ past actions.
On or around June 21, 2023, an anonymous complainant alleged that Dr. Khan was
“engaged in positioning during mammograms without the required prerequisites needed to perform
mammograms.”23 DSHS investigated, determined that the complaint was unsubstantiated, and
closed the investigation.24 Though DSHS cited MedX for violations of Section 289.230(r)(2),
Defendants argue that this “[v]iolation was specific to the technologist Ms. Wiscarson’s activities
20 Though Plaintiffs argue that Defendants are “restricting both MedX and Dr. Khan” without due process,
their due process claim and request for application of the “arbitrary and capricious standard” focus only on
the application of Section 289.230(r)(2) to Dr Khan, not MedX. Cf. Pls.’ Am. Compl. ¶¶ 36, 46–47, ECF
No. 26. Accordingly, the Court’s analysis focuses on whether Dr. Khan is suffering continuous harm.
21 See Pls.’ Am. Compl. ¶ 39, ECF No. 26.
22 Id. ¶ 45.
23 Defs.’ Br. Supp. Second Mot. to Dismiss 8, ECF No. 29-1.
24 See Pls.’ Am. Compl. ¶¶ 28–31, ECF No. 26; Pls.’ Am. Compl. Ex. E (“Exhibit E”), at 26–32, ECF
No. 26.
and not Dr. Khan’s activities.”25 Plaintiffs do not refute this; nor do they argue that DSHS
erroneously cited Ms. Wiscarson for violating Section 289.230(r)(2).
There is no evidence on the record to support Plaintiffs’ assertion that Defendants are
applying Section 289.230(r)(2) to Dr. Khan, much less in a manner that (1) violates her due process
rights or (2) is arbitrary and capricious. Plaintiffs argue that the injury to them is “live and
determinable upon the Defendant[s’] stance of [Dr. Khan’s] compliance.”26 This does not
demonstrate current injury, however, only the possibility of a future injury “upon” a contingent
event.27 Thus, Plaintiffs are not suffering continuing, present adverse effects from Defendants’ past
actions.
2. There is not a substantial likelihood that Plaintiffs will suffer injury in the
future.
In the absence of continuing harm from a defendant’s past conduct, a plaintiff seeking
declaratory relief must “allege facts from which it appears there is a substantial likelihood that he
will suffer injury in the future.” Bauer, 341 F.3d at 358. Plaintiffs have failed to plead facts that
would allow the Court to find such a likelihood here. Plaintiffs admit that Defendants’ investigation
was “ultimately closed without any finding of wrongdoing.”28 Since then, Defendants have not
pursued further enforcement against Plaintiffs.29
Plaintiffs argue that “[e]ven if there is no current investigation or enforcement, [Dr. Khan]
still faces injury due to the threat of future enforcement,”30 and that under the ripeness doctrine,
they need not “endure enforcement before seeking relief.”31 The Court acknowledges that
25 See Defs.’ Br. Supp. Second Mot. to Dismiss 8, ECF No. 29-1.
26 Pls.’ Sur-reply 2, ECF No. 33.
27 Id. at 2.
28 Id. at 3.
29 See Defs.’ Br. Supp. Second Mot. to Dismiss 8, ECF No. 29-1.
30 Pl.’s Sur-reply 3, ECF No 33.
31 Id.
Plaintiffs’ arguments are centered on ripeness, not standing. Nevertheless, the cases cited by
Plaintiffs for their ripeness arguments still demand there be a “credible threat of prosecution” for
Plaintiffs to satisfy Article III’s injury-in-fact requirement. Susan B. Anthony List v. Driehaus, 573
U.S. 149, 158–59 (2014). Comparisons between this suit and those cases in which the plaintiff
faced a “credible threat of prosecution” demonstrate that Plaintiffs here do not face a “substantial
likelihood” of future injury as required under Bauer. 341 F.3d at 358.
In Susan B. Anthony List, the Supreme Court held that a plaintiff satisfies Article III’s
injury-in-fact requirement “where he alleges ‘an intention to engage in a course of conduct
arguably affected with a constitutional interest, but proscribed by a statute, and there exists a
credible threat of prosecution thereunder.’” 573 U.S. at 159 (emphasis added) (quoting Babbitt v.
Farm Workers, 442 U.S. 289, 298 (1979)). In Susan B. Anthony List, the plaintiff had already been
subject to past enforcement of the challenged law, and the Ohio Election Commission found
“probable cause to believe that SBA violated the statute.” Id. at 162. Here, Defendants have already
investigated Plaintiffs and found the complaint against them unsubstantiated.32 Since then,
Defendants have given Plaintiffs no indication of any intention to investigate them in the future.
Plaintiffs, in fact, admit that Dr. Khan “now has the certifications that technicians have and meets
all the criteria of a radiology technician,”33 thereby further extinguishing any threat of future injury
from DSHS regarding enforcement of Section 289.230(r)(2).
Plaintiffs next cite Abbott Laboratories v. Gardner to argue that the Supreme Court
“permitted pre-enforcement judicial review where a regulation imposed immediate and significant
burdens and waiting for enforcement would cause substantial hardship.”34 387 U.S. 136, 149
32 See Exhibit E, at 34, ECF No. 26.
33 Pls.’ Resp. 3, ECF No. 30.
34 Pls.’ Sur-reply 4, ECF No. 33.
(1967). By saying “[t]hat principle applies directly here,” Plaintiffs draw a comparison between
Section 289.230(r)(2) and the regulation in Abbott Laboratories. The regulation at issue in that
case was “promulgated in a formal manner after announcement in the Federal Register and
consideration of comments.” Id. at 151. This was an agency action, a “statement of general or
particular applicability and future effect designed to implement, interpret, or prescribe law or
policy.” Id. at 149. Here, DSHS made no statements about the applicability of
Section 289.230(r)(2) to Dr. Khan. To the contrary, its investigation ended in a finding that the
complaint was unsubstantiated.35
Finally, Plaintiffs cite MedImmune, Inc. v. Genentech, Inc. to argue that “a party need not
break the law or wait for enforcement to seek relief when the threat of penalties hangs over their
head.”36 549 U.S. 118, 127 (2007). The Supreme Court, though, explained its holding applied
where there was a “genuine threat of enforcement.” Id. at 129. The plaintiffs in MedImmune, Inc.
had avoided an “imminent threat of harm” only by being “effectively coerced” from pursuing
activities they claimed to have a legal right to do. Id. There is no such coercion or genuine threat
of enforcement in this case. DSHS received a complaint of wrongdoing, investigated the
complaint, and ultimately determined the complaint was unsubstantiated. DSHS has since taken
no actions to indicate any future enforcement.37
Because Plaintiffs have failed to demonstrate (1) continuing, present adverse effects from
past illegal conduct, or (2) a substantial likelihood of future injury, Plaintiffs lack standing to bring
their due process claim and request for application of the “arbitrary and capricious” standard. See
Bauer, 341 F.3d at 358. Accordingly, the Court DISMISSES these claims.
35 See id. at 3.
36 Id. at 4.
37 See Defs.’ Br. Supp. Second Mot. to Dismiss 8, ECF No. 29-1.
B. Eleventh Amendment Immunity
In their Amended Complaint, Plaintiffs also bring defamation claims against Defendants
for both slander and libel.38 Specifically, they allege that Defendants “[m]ade false and defamatory
oral statements regarding Dr. Khan’s conduct, including but not limited to accusing her of
‘criminal’ wrongdoing, suggesting she was unqualified or in violation of regulatory standards, and
asserting that her career was ‘finished.’”39 They also contend that as a result of the alleged
defamation, Plaintiffs suffered “damage to Dr. Khan’s reputation,” “loss of current and prospective
business opportunities,” and “financial harm,” among other injuries.40
Defendants argue that “Eleventh Amendment immunity applies to defamation claims if
there is no showing of a waiver or abrogation of immunity” and that Plaintiffs have failed to show
“or even allege any waiver or abrogation.”41 Plaintiffs, in turn, argue that their defamation claims
fall under the Ex parte Young exception.42 The Court agrees with Defendants.
The Fifth Circuit in Green Valley Special Utilility District v. City of Schertz stated that for
Ex parte Young to apply, three criteria must be met: “(1) [a] plaintiff must name individual state
officials as defendants in their official capacities; (2) the plaintiff must allege an ongoing violation
of federal law; and (3) the relief sought must be properly characterized as prospective.” 969 F.3d
460, 471 (5th Cir. 2020) (emphasis added) (citation modified). Courts are to conduct a
“straightforward inquiry” and avoid evaluating the merits of the underlying claims. Id. (citation
omitted).
38 See Pls.’ Am. Compl. ¶¶ 49–56, ECF No. 26.
39 Id. ¶ 52.
40 Id. ¶ 56.
41 Defs.’ Br. Supp. Second Mot. to Dismiss 13, ECF No. 29-1.
42 Pls. Resp. 8–9, ECF No. 30.
The Court holds that Plaintiffs have not sought prospective relief. The Fifth Circuit has
held that “[uJnder Ex parte Young, a court is permitted to command|] a state official to do nothing
more than refrain from violating federal law.” Jackson v. Wright, 82 F.4th 362, 368 (Sth Cir. 2023)
(second alteration in original) (internal quotation marks and citation omitted). Indeed, the Ex parte
Young exception “does not permit judgments against state officers declaring that they violated
federal law in the past.” /d. (citation omitted).
In their Prayer for Relief, Plaintiffs ask the Court to “[d]eclare the Defendants’ statements
and actions as defamatory.’ Plaintiffs maintain, however, that Defendants’ defamatory statements
were made “during the investigation of MedX and Dr. Khan.’ Plaintiffs have failed to allege that
Defendants have continued to make defamatory statements since then. Any declaratory relief from
the Court would thus focus on Defendants’ past conduct, constitute retrospective relief, and be
barred by Eleventh Amendment immunity. Accordingly, the Court must DISMISS Plaintiffs’
defamation claims because Plaintiffs do not seek prospective relief to invoke the Ex parte Young
exception.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’ Second Motion to Dismiss
(ECF No. 29). Accordingly, Plaintiffs’ claims are hereby DISMISSED without prejudice.
Separate final judgment shall issue.
SO ORDERED on this 27th day of July, 2025.
UNITED STATES DISTRICT JUDGE
‘3 Pls.” Am. Compl. 957, ECF No. 26.
“4 Id. 454.
11