Joseph Cotropia v. Mary Chapman

Case: 19-20688 Document: 00515611847 Page: 1 Date Filed: 10/22/2020

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

October 22, 2020

No. 19-20688 Lyle W. Cayce

Clerk

Joseph Cotropia,

Plaintiff—Appellant,

versus

Mary Chapman, Individually,

Defendant—Appellee.

Appeal from the United States District Court

for the Southern District of Texas

No. 4:16-CV-742

Before Smith, Clement, and Oldham, Circuit Judges.

Jerry E. Smith, Circuit Judge:

Joseph Cotropia sued Mary Chapman, an investigator for the Texas

Medical Board (“TMB”), under 42 U.S.C. § 1983 for searching his medical

office and seizing documents without a warrant. The district court granted

Chapman’s motion for summary judgment on the basis of qualified immunity

(“QI”). We affirm.

I.

On February 13, 2015, the TMB issued a Final Order revoking Cotro-

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No. 19-20688

pia’s medical license 1 because he had improperly prescribed controlled sub-

stances and had directed and supervised an unregistered pain management

clinic (“PMC”), an entity that needed to be registered under Texas law.

Tex. Occ. Code § 168.101. The TMB’s Final Order instructed Cotropia

to “immediately cease practice in Texas,” explaining that violations could

result in “disciplinary action by the Board or prosecution for practicing with-

out a license in Texas.” 2

But Cotropia, by his own admission, continued to practice after the

February 13, 2015, revocation, until March 20, 2015. After the TMB re-

ceived a complaint against Cotropia, the TMB sent Chapman to execute an

administrative subpoena at Cotropia’s office on March 27, 2015. 3 The sub-

1

In re Cotropia, SOAH Dkt. No. XXX-XX-XXXX (Feb. 13, 2015),

https://perma.cc/A2DX-QDBU (“Final Order”).

2

Final Order at 15. Cotropia asserts a slew of so-called “Tolan violations” under

Tolan v. Cotton, 572 U.S. 650 (2014) (per curiam), arguing that the district court improperly

weighed the evidence by resolving disputed issues in favor of Chapman. Cotropia insists

that he was not required to stop practicing medicine until March 20, 2015, because that was

the day that the TMB denied his rehearing and the Final Order became final. But the Final

Order required Cotropia to cease immediately. The denial of his motion for rehearing

resulted only in “[a]dministrative finality,” namely an exhaustion of the TMB’s review for

purposes of appeal. 22 Tex. Admin. Code § 187.37(l); see Lawson v. Laird, 443 F.2d

617, 619 (5th Cir. 1971) (summarizing the “test of administrative finality for purposes of

judicial review”). Cotropia cites no evidence indicating that the TMB held the Final Order

in abeyance pending review or gave overriding instructions permitting him to practice med-

icine between February 13, 2015, and March 20, 2015.

3

Cotropia alleges another Tolan violation, noting that in its first sentence of back-

ground, the district court erroneously described the subpoena as an “administrative search

warrant.” That mistake, the argument goes, “shined a more favorable light on the uncon-

stitutional actions of the administrative state, since a search based on a warrant would be

reasonable under the Fourth Amendment.” Cotropia devotes a solitary paragraph to this

argument, and rightfully so. The district court conducted its analysis under the “Admin-

istrative Process Exception to the Warrant Requirement,” demonstrating that the absence

of a warrant was a baseline assumption of its analysis. Nowhere did the court suggest that

Chapman’s search was reasonable because she had a warrant.

2

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poena directed Cotropia to produce copies of prescriptions and patient sign-

in sheets from February 27, 2015, to the present.

Cotropia was away from his office that day, preparing for a hearing

involving the TMB. Betty Spaugh, Cotropia’s receptionist, remained at the

office to handle communications with patients. Accompanied by a federal

DEA agent, Chapman arrived at Cotropia’s office and presented Spaugh

with the administrative subpoena. After speaking on the phone with Cotro-

pia’s attorney, Spaugh requested that Chapman leave the office, but Chap-

man stayed.

Chapman removed several documents from Spaugh’s desk and made

copies. 4 Those documents included appointment ledgers, a patient payment

ledger, 5 sign-in sheets, and five credit card receipts showing payments to

“T.E. Swate.” 6 After an hour, a constable arrived and told Chapman to

4

Here, Cotropia alleges another Tolan violation, claiming that the district court

erroneously concluded that “Chapman was provided twenty-three documents before

Spaugh refused to produce additional records.” Cotropia fails to explain how Spaugh’s

consent to the search is relevant to this appeal. In any event, consent is a separate basis for

finding that a search is reasonable under the Fourth Amendment. See City of L.A. v. Patel,

576 U.S. 409, 420 (2015). Chapman relies on the administrative exception—not consent—

to justify her search.

5

Cotropia alleges another Tolan violation. The district court referred to those

documents as “analogous to a patient log,” although, the argument goes, they were actually

“financial records” that are “outside the scope of the TMB’s authority” to investigate.

There are two problems with that theory—one legal, one factual. First, although

22 Texas Administrative Code § 179.4(a) allows the TMB to investigate only

“medical records,” Cotropia cites no legal authority suggesting that the presence of finan-

cial information undermines the TMB’s authority over a document that otherwise qualifies

as a medical record. Second, Cotropia claims that “Chapman conceded to seizing financial

records belonging to Dr. Cotropia.” But Cotropia mischaracterizes the record. When

asked whether particular documents were financial documents, Chapman answered “They

are—” before being cut off by an objection. When allowed to answer, Chapman said that

the documents “have financial information.”

6

T.E. Swate refers to Tommy Swate, a physician who lost his medical license for

3

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leave.

Cotropia filed this § 1983 action against Chapman for violations of his

Fourth and Fourteenth Amendment rights based on Chapman’s search and

seizure of documents without a warrant. Chapman then moved to dismiss on

the basis of QI. Although the district court granted Chapman’s motion to

dismiss with prejudice, we reversed. See Cotropia v. Chapman, 721 F. App’x

354 (5th Cir. 2018) (per curiam). We concluded that Cotropia “alleged suffi-

cient facts to show that Chapman . . . violated the clearly established right to

an opportunity to obtain precompliance review of an administrative subpoena

before a neutral decisionmaker.” Id. at 357.

In that appeal, we declined to adopt two of Chapman’s arguments.

First, although we noted that 22 Texas Administrative Code

§ 179.4(a) and Texas Occupations Code § 153.007(e)—which to-

gether constitute the TMB’s subpoena authority—might provide the power

to demand medical records on short notice, Chapman had not “made clear

(on the arguments that she ha[d] provided thus far) whether § 179.4(a)

applies to this situation at all.” Cotropia, 721 F. App’x at 359. 7 Second,

Chapman contended, at oral argument, that medical practices constitute “a

improperly treating chronic-pain and addiction patients. See Swate v. Tex. Med. Bd., 2017

WL 3902621, at *1 (Tex. App.—Austin Aug. 31, 2017, pet. denied). Cotropia’s 2015 prac-

tice involved the care of patients whom Cotropia took over from Swate. Swate now works

as a licensed attorney and serves as Cotropia’s counsel in this matter.

7

Our previous decision did not examine Chapman’s authority under Texas

Occupations Code § 168.052 or 22 Texas Administrative Code § 195.3—

which together authorize the TMB to inspect pain management clinics—because “Chap-

man ha[d] not argued that these provisions [were] sources of authority under which she

operated.” Cotropia, 721 F. App’x at 359 n.4. That led us to doubt whether Chapman’s

subpoena authority allowed her to “take the subpoenaed records by force.” Id. at 359. On

this appeal, Chapman has asserted her authority under §§ 168.052 and 195.3. Although

Cotropia decries the TMB’s taking of documents by “physical force,” he does not contend

that Chapman lacked authority to do so.

4

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closely regulated industry and that the regulatory scheme TMB has in place

provides a constitutionally adequate substitute for a warrant” under New

York v. Burger, 482 U.S. 691 (1987). Cotropia, 721 F. App’x at 360. But

because Chapman had not previously raised that argument, we declined to

address it. Id.

On remand, after discovery, Chapman moved for summary judgment

on the basis of QI. She argued that, because she reasonably relied on the

Texas Administrative Code and Texas Occupations Code, her search was

reasonable. The magistrate judge issued a Recommendation and Memoran-

dum granting Chapman’s motion, which the district court adopted in full,

and Cotropia appeals.

II.

After a defendant makes a “good-faith assertion of [QI],” the burden

of proof for summary judgment purposes “shift[s] . . . to the plaintiff to show

that the defense is not available.” Melton v. Phillips, 875 F.3d 256, 261 (5th

Cir. 2017) (en banc) (quotation omitted). To satisfy its burden, a plaintiff

must show “(1) that the official violated a statutory or constitutional right,

and (2) that the right was ‘clearly established’ at the time of the challenged

conduct.” Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (en banc)

(quotation omitted).

Cotropia contends that (1) Chapman violated his constitutional rights,

by executing the administrative subpoena without any opportunity for Cotro-

pia to obtain precompliance review, and (2) Cotropia’s constitutional rights

were clearly established at the time of the search. We agree that Chapman

violated Cotropia’s constitutional rights, but the law was not clearly estab-

lished at the time of the search.

5

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A.

“Warrantless searches and seizures are per se unreasonable unless

they fall within a few narrowly defined exceptions.” United States v. Kelly,

302 F.3d 291, 293 (5th Cir. 2002) (quotation omitted). Two are relevant.

First, as a general matter, “in order for an administrative search to be con-

stitutional, the subject of the search must be afforded an opportunity to ob-

tain precompliance review before a neutral decisionmaker.” Patel, 576 U.S.

at 420. Second, even without precompliance review, there is an “adminis-

trative exception,” the relevant test for which comes from Burger. Zadeh v.

Robinson, 928 F.3d 457, 465 (5th Cir. 2019), cert. denied, No. 19-676, 2020

WL 3146691 (U.S. June 15, 2020). Under Burger, “warrantless inspections

in closely regulated industries must still satisfy three criteria: (1) a substantial

government interest, (2) a regulatory scheme that requires warrantless

searches to further the government interest, and (3) ‘a constitutionally

adequate substitute for a warrant.’” Id. at 464–65 (quoting Burger, 482 U.S.

at 703). Because Chapman did not have a warrant and Cotropia had no

opportunity for precompliance review of the subpoena, we analyze whether

Chapman complied with the administrative exception.

Last year, in Zadeh—a case factually similar to this one—we examined

whether the TMB’s authority to investigate the medical industry as a

whole—and PMCs in particular—fell within the administrative exception

under Burger. Zadeh, 928 F.3d at 466. We declined to apply Burger to the

medical industry as a whole, because it “is not a closely regulated industry

for purposes of Burger.” Id. PMCs, on the other hand, are medical facilities

in which “a majority of patients are issued on a monthly basis a prescription

for opioids, benzodiazepines, barbiturates, or carisoprodol.” Tex. Occ.

Code § 168.001(1). Assuming that PMCs could be considered a closely

regulated industry, we concluded that the TMB’s administrative-subpoena

authority for searching PMCs failed on the third prong of Burger. Zadeh, 928

6

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F.3d at 466–68. That prong requires “a warrant substitute authorized by

statute to be constitutionally adequate.” Id. at 467. Constitutional adequacy

in turn requires that “the regulatory statute . . . must limit the discretion of

the inspecting officers.” Burger, 482 U.S. at 703.

Zadeh dealt with two sources of the TMB’s authority. First,

§§ 153.007(a) and 179.4(a) grant the TMB authority to issue administrative

subpoenas. Those provisions, however, provide “no identifiable limit on

whose records can properly be subpoenaed.” Zadeh, 928 F.3d at 467. Sec-

ond, §§ 168.052(a) and 195.3 grant the TMB authority to inspect PMCs.

Those provisions, however, “d[o] not limit how the clinics inspected are

chosen.” Zadeh, 928 F.3d at 468. Given the dearth of constraints, we con-

cluded that both sources of the TMB’s authority failed under Burger. Id.

In the instant case, like Zadeh, Chapman relied on Texas Occu-

pations Code §§ 153.007(a) and 168.052 and 22 Texas Adminis-

trative Code §§ 179.4(a) and 195.3 as the sources of her authority to

execute the administrative subpoena and search Cotropia’s office. 8 Zadeh’s

Burger analysis, therefore, controls the constitutional question here. As

Chapman concedes, “Zadeh already contains the very holding Cotropia asks

the Court to announce in accordance with this constitutional analysis.”

Chapman thus violated Cotropia’s constitutional rights when she copied

documents in Cotropia’s office without any precompliance review of the

administrative subpoena.

B.

With the first prong satisfied, we address whether Cotropia’s right to

precompliance review was clearly established at the time of the search. In

8

Unless otherwise noted, references to statutory provisions refer to the versions

in effect on March 27, 2015, though they may have since been amended.

7

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Zadeh, even though we concluded that the TMB’s subpoena authority for

searching pain management clinics was unconstitutional, we could not con-

clude that “every reasonable official prior to conducting a search under the

circumstances of this case would know this Burger factor was not satisfied.”

Zadeh, 928 F.3d at 470. We “[did] not hold that all reasonable officers would

have known that, until now.” Id. Zadeh was issued in 2019; Chapman

searched Cotropia’s office in 2015. Thus, at that time, it was not clearly

established that her search per §§ 153.007(a), 168.052, 179.4(a), and 195.3

was unconstitutional. Cotropia seeks to avoid that conclusion by differenti-

ating Zadeh in several respects.

1.

Cotropia tries to distinguish Zadeh by reasoning that, unlike the office

in Zadeh, Cotropia’s office was “undisputedly not a [PMC].” Because “it

was clearly established at the time of this search that the medical profession

as a whole is not a closely regulated industry,” Zadeh, 928 F.3d at 468,

Cotropia contends that “[e]very reasonable officer should have known that

the closely regulated industry exception did not apply to the instant search of

Cotropia’s office.” 9

Cotropia is correct that his office was not registered as a PMC. The

statute that provided the TMB authority to search Cotropia’s documents,

however, gives the TMB authority to investigate not only “a [PMC] certified

9

Cotropia also styles this argument as a Tolan violation, claiming that “[t]he

mistaken grant of summary judgement was entirely based on the false premise that Dr.

Cotrpia’s [sic] office was a pain management clinic.” That is an odd assertion, given Cotro-

pia’s previous admission that “[n]either the court below nor Chapman have [sic] even at-

tempted to claim that Cotropia’s office was a [PMC].” In any event, although the district

court described Cotropia’s prior involvement with an unregistered PMC, the court dis-

tinguished New Concept, which was Cotropia’s office that Chapman searched, noting that

it was not registered as a PMC.

8

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under this chapter” but also “a physician who owns or operates a clinic in

the same manner as other complaints under this subtitle.” Tex. Occ.

Code § 168.053. For instance, in Zadeh, 928 F.3d at 470−71, the relevant

clinic was not required to be registered as a PMC for an officer reasonably to

have relied on the regulatory scheme relevant to PMCs. It is thus irrelevant

whether Cotropia registered his office as a PMC. The question, instead, is

whether Chapman was investigating a complaint that Cotropia was operating

his clinic in the same manner as a PMC. Tex. Occ. Code § 168.053.

The record provides ample evidence that could lead a reasonable

officer to believe that Cotropia operated New Concept in the same manner

as a PMC. The TMB received allegations that Cotropia was operating an

unregistered PMC. Cotropia, by his own admission, prescribed opioids

through March 20, 2015, and previously had operated an unregistered PMC.

His practice involved the care of patients whom he had taken over from

Tommy Swate, whose medical license was revoked in 2014 for improper

treatment of chronic-pain and addiction patients. Based on those undisputed

facts, Chapman acted reasonably in relying on § 168.053 as authorizing her

to investigate the allegations regarding Cotropia’s practice.

2.

Cotropia claims that, unlike the physician in Zadeh, he is not a “licen-

see,” and § 179.4(a) is limited to authorizing searches of “licensees.” 10 He

fails to fit the definition, the argument goes, because the TMB had already

revoked his license before executing the administrative subpoena.

10

In the first appeal, we noted that “Chapman has not made clear (on the argu-

ments that she has provided thus far) whether § 179.4(a) applies to this situation at all, as

Cotropia was not a ‘licensee’ at the time of Chapman’s actions.” Cotropia, 721 F. App’x

at 359. Our previous opinion, however, did not benefit from an analysis of § 179.2(10), and

it explicitly conditioned its conclusion on the arguments presented “thus far.” Id.

9

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But Cotropia’s initial definitional argument cites no definitions. And

for good reason. Section 179 defines its terms: “Licensee” refers to “[a]

person to whom the board has issued a license.” 22 Tex. Admin. Code

§ 179.2(10) (emphasis added). The present perfect tense, “has issued,” indi-

cates that “licensee” includes any individual who received a license at some

point in the past. 11

Other sections of the Texas Administrative Code reinforce the con-

clusion that Cotropia counts as a licensee. For instance, the Code refers to

physicians as “licensees” even after their licenses have been canceled or

surrendered. 12 We presume that a given word is used consistently through-

out the text of a statute. 13 Section 179.4 thus does not limit “licensees” to

those who presently possess a valid license. Given the statutory definition

and context, Cotropia was a licensee at the time of Chapman’s search.

In response, Cotropia supplants his “non-licensee” argument with an

argument that, at the time of the search, he was “not a physician.” 14 For that

proposition, Cotropia cites 22 Texas Administrative Code

§ 176.1(6)—a different chapter of the Code from § 179.4’s administrative-

11

See Barrett v. United States, 423 U.S. 212, 216 (1976) (concluding that the present

perfect tense “denot[es] an act that has been completed”).

12

See, e.g., 22 Tex. Admin. Code § 196.2(a) (“When a licensee has surren-

dered his or her Texas medical license . . . .”); id. § 196.2(b) (“[A] licensee who reapplies

for licensure must demonstrate that the licensee’s return to the practice is in the best

interest of the public.”).

13

See Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 167–73 (2012).

14

Cotropia raises this version of his argument for the first time in his reply brief.

“[W]e ordinarily disregard arguments raised for the first time in a reply brief.” Sahara

Health Care, Inc. v. Azar, No. 18-41120, --- F.3d ---, 2020 U.S. App. LEXIS 29927, at *9 n.5

(5th Cir. Sept. 18, 2020). Though Cotropia arguably waived this theory, it also fails on the

merits.

10

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subpoena authority—which defines a “physician” as “any person licensed

to practice medicine in this state.” He then grafts § 176.1’s definition onto

§ 179.4, because the title of § 179.4 is “Request[s] for Information and Rec-

ords from Physicians” (emphasis added). Even setting aside these statutory

gymnastics, titles should be used in statutory interpretation only to resolve

textual ambiguities, not to create a textual ambiguity that overrides a text’s

plain meaning. SCALIA & GARNER, supra, at 221–22.

Finally, Cotropia relies on the Cambridge Dictionary’s definition of

“licensee.” But that doesn’t supplant the definition by the Texas Legis-

lature. Although we often use dictionaries in giving terms their ordinary

meaning “[a]bsent a statutory definition,” we need not resort to dictionary

definitions where statutory definitions leave no ambiguity. United States v.

Hildenbrand, 527 F.3d 466, 476 (5th Cir. 2008).

3.

Cotropia contends that, unlike the search in Zadeh, Chapman’s search

was pretextual. 15 Chapman violated clearly established law, the argument

goes, because her search was done “solely to gather evidence of a crime . . .

and potentially to harass.” The district court concluded there was no pre-

text. 16 We agree.

15

Once again, Cotropia describes this argument as a Tolan violation. Cotropia

posits that practicing without a license has criminal penalties only under Texas Occu-

pations Code § 165.153 but that it would be impossible for the TMB to bring admin-

istrative proceedings against him, as his “license had already been revoked.” This appears

to rehash Cotropia’s “licensee” argument. As indicated above, the TMB retained author-

ity to pursue actions against Cotropia even after his license had been revoked.

16

The district court also concluded that the issue of pretext was “beyond the man-

date of the remand” because Cotropia did not raise the issue in the district court before

dismissal or before this court on his previous appeal. Cotropia contests that application of

the mandate rule, and Chapman neglects to defend the district court’s application of the

mandate rule. Because there was no pretext, we need not decide whether the district court

11

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“It is incorrect . . . to use the label ‘pretext’ simply because of an

overlap between an administrative search and a criminal search.” Zadeh,

928 F.3d at 471. States are free to “address a major social problem both by

way of an administrative scheme and through penal sanctions.” Burger,

482 U.S. at 712. Because a search can further both administrative and penal

ends, we determine pretext by asking “whether the search that occurred was

under a scheme serving an administrative purpose.” Zadeh, 928 F.3d at 471.

The TMB had received a complaint that Cotropia was operating an

unregistered PMC. 17 Even though Cotropia’s license had been revoked at

the time of the search, the Board still had the power to take disciplinary action

against him, to issue administrative penalties, and to seek injunctions. See

Tex. Occ. Code §§ 153.001(3), 164.001(b), 165.051. Therefore, Chap-

man’s search served an administrative purpose, even if the TMB ultimately

declined to take further administrative action against Cotropia. The search

was not pretextual.

AFFIRMED.

properly applied the mandate rule.

17

Cotropia repeatedly insists that Chapman knew or should have known that

Cotropia was not engaged in the practice of medicine at the time of her search because it

was a matter of public record that his license had been revoked as of March 20, 2015. But,

particularly in light of the allegations against Cotropia, the Board and its investigators were

under no obligation to presume that Cotropia was abiding by the revocation order (as he

undisputedly had not from February 13 until March 20).

12

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Andrew S. Oldham, Circuit Judge, concurring:

I would avoid the constitutional question in this case. In Zadeh v.

Robinson, 928 F.3d 457 (5th Cir. 2019), we held that certain searches by the

Texas Medical Board (“TMB”) violate the Fourth Amendment. I do not

know whether Zadeh was correct as an original matter. For example, it could

be argued that TMB resembles a guild. See Tex. Occ. Code

§ 152.002(a)(1) (requiring 12 of TMB’s 19 members to be licensed

physicians); id. § 152.001 (empowering TMB to regulate physicians); Guild,

Black’s Law Dictionary (11th ed. 2019) (“A group of persons

sharing a common vocation who unite to regulate the affairs of their trade in

order to protect and promote their common vocation”). And guild searches

have a rich common-law history. As early as 1297, a London city ordinance

empowered six particular clothworkers to “examine and search” all rough

clothwork before it left the city. William J. Cuddihy, The Fourth

Amendment: Origins and Original Meaning 33 (2009). Guild

searches persisted through 1485, see id. at 33–37; from 1485 to 1642, id. at 54;

from 1642 to 1700, id. at 159, 173; and from 1700 to 1760, id. at 304–05, 412–

14. Such searches (and the reactions to them) are part of the original public

meaning of our Fourth Amendment. See id. at 727–73; see also Atwater v. City

of Lago Vista, 532 U.S. 318, 326 (2001) (“In reading the [Fourth]

Amendment, we are guided by the traditional protections against

unreasonable searches and seizures afforded by the common law at the time

of the framing . . . .” (quotation omitted)). Perhaps Zadeh accords with this

history and meaning; perhaps not.

For present purposes, all that matters is that we needn’t decide the

question. See Pearson v. Callahan, 555 U.S. 223, 236–42 (2009). Because

regardless of whether the TMB investigator violated the Fourth

Amendment, we all agree she is entitled to qualified immunity.

13