Petition for Writ of Certiorari — Joseph A. Zadeh, et al., Petitioners v. Mari Robinson, et al.

Supreme Court briefNov 22, 2019

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APPENDICES

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-50518

DOCTOR JOSEPH A. ZADEH; JANE DOE, Patient,

Plaintiffs-Appellants

MARI ROBINSON, in her individual capacity and in

her official capacity; SHARON PEASE, in her individual capacity; KARA KIRBY, in her individual capacity,

Defendants-Appellees

Appeals from the United States District Court

for the Western District of Texas

ON PETITION FOR REHEARING EN BANC

Before: JOLLY, SOUTHWICK, and WILLET, Circuit

Judges.

LESLIE H. SOUTHWICK, Circuit Judge:

No member of the panel nor judge in regular active service requested that the court be polled on rehearing en banc. The petition for rehearing en banc is

therefore DENIED. See FED. R. APP. P. and 5th Cir. R.

35. Treating the petition for rehearing en banc as a

petition for panel rehearing, the petition is

GRANTED. We withdraw our prior opinion, Zadeh v.

Robinson, 902 F.3d 483 (5th Cir. 2018), and substitute

the following.

The Texas Medical Board executed an administrative subpoena on Dr. Joseph Zadeh’s medical office.

Thereafter, Dr. Zadeh and one of his patients sued

several Board members under 42 U.S.C. § 1983,

claiming that the Board’s actions violated the Fourth

Amendment. The district court partially granted the

defendants’ motion to dismiss and later granted their

motion for summary judgment rejecting all remaining

claims. We AFFIRM.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Dr. Joseph Zadeh appeals the dismissal

of his Section 1983 claim against several members of

the Texas Medical Board who he claims violated his

constitutional rights through a warrantless search of

his office and medical records. Dr. Zadeh, an internal

medicine doctor, owns and operates a medical practice

in Euless, Texas. One of his patients, Jane Doe, is also

a plaintiff-appellant in this case.

Dr. Zadeh was the subject of an administrative

proceeding before the State Office of Administrative

Hearings (‘‘SOAH’’) for violations of the Board’s regulations. The Drug Enforcement Agency (‘‘DEA’’) also

was investigating him. Indeed, it appears the Board

first learned about allegations against Dr. Zadeh

when the DEA filed a complaint with the Board about

his prescribing practices in September 2013. The DEA

investigator emailed a representative of the Board,

stating, ‘‘I’m at a point in the criminal case that I need

to interview Dr. Zadeh and review his patient files.’’

The Board then initiated an investigation.

As part of this investigation, Defendants Sharon

Pease and Kara Kirby, who were investigators with

the Board, served an administrative subpoena on Dr.

Zadeh on October 22, 2013. The subpoena had the

electronic signature of Defendant Mari Robinson, who

was the Executive Director of the Board. The subpoena was for the immediate production of the medical records of sixteen of Dr. Zadeh’s patients. Two

DEA agents who were investigating related criminal

allegations accompanied Kirby and Pease.

The district court found the ‘‘facts surrounding the

execution of the subpoena’’ to be ‘‘largely undisputed.’’

Dr. Zadeh was not present when the investigators arrived. The subpoena was handed to the doctor’s assistant. The investigators sat in the medical office waiting room to give the doctor time to appear. While they

waited, the assistant spoke on the phone with Dr. Zadeh, his lawyer, and his brother who also is a lawyer.

The assistant testified that after these calls had occurred but no permission to proceed had been given,

the investigators told her they would suspend Dr. Zadeh’s license if the records they sought were not produced. The investigators admit something was said

that was akin to a promise of some vague ‘‘disciplinary

action.’’ What was said at that point is at least unclear. The assistant eventually complied, taking the

defendants into a conference room and delivering the

requested records to them. Although most of their

time was spent inside the public waiting area or conference room, the investigators also approached the

medical assistant to ask for help while she was in

exam rooms and later in a storage room.

As a result of that search, Dr. Zadeh and his patient, Jane Doe, sued Robinson, Pease, and Kirby in

their individual capacities and Robinson in her official

capacity in the United States District Court for the

Western District of Texas. They alleged the defendants’ actions violated their Fourth Amendment, due

process, and privacy rights. The plaintiffs sought

monetary damages under 42 U.S.C. § 1983 as well as

declaratory relief. The defendants moved to dismiss

the claims on these grounds: (1) the plaintiffs lacked

standing; (2) the Younger abstention doctrine barred

the requests for declaratory relief; (3) the claim

against Robinson in her official capacity was barred

by the doctrine of sovereign immunity; (4) the doctrine

of qualified immunity applied to the claims against

the defendants in their individual capacities.

In ruling on the motion to dismiss, the district

court held Dr. Zadeh had standing to pursue declaratory relief, but Jane Doe did not. Nonetheless, the district court concluded that ‘‘the Younger abstention

doctrine require[d] [it] to abstain from adjudicating

Plaintiff Zadeh’s claims for declaratory relief.’’ The

district court also held that sovereign immunity

barred the plaintiffs’ claims for monetary damages

against Robinson in her official capacity. Finally, the

court concluded that the defendants were entitled to

qualified immunity for the privacy and due process

claims. The only part of the suit left, then, was Dr.

Zadeh’s claim that the defendants violated his clearly

established Fourth Amendment rights during the

search of his office.

The defendants moved for summary judgment on

‘‘whether Defendants exceeded their statutory subpoena authority by searching and inspecting Plaintiff’s office and records.’’ Although the plaintiffs alleged that the investigators performed a thorough

search of Dr. Zadeh’s office, the district court found

that the record did not support this allegation. Instead, the district court determined that the ‘‘Defendants’ presence at Plaintiff’s office was solely to execute

the subpoena instanter.’’ The district court also held

that Robinson was not liable as she neither affirmatively participated in the alleged search nor implemented unconstitutional policies that caused the alleged constitutional deprivation. Further, there was

‘‘no evidence Defendants Pease and Kirby inspected

Plaintiff’s office or searched his records.’’ The plaintiffs timely appealed.

DISCUSSION

The plaintiffs appeal both the order granting the

motion to dismiss in part and the order granting the

motion for summary judgment. Although we review

both de novo, a different legal standard applies to

each:

In the former, the central issue is whether, in

the light most favorable to the plaintiff, the

complaint states a valid claim for relief. In the

latter, we go beyond the pleadings to determine whether there is no genuine issue as to

any material fact and that the movant is entitled to judgment as a matter of law.

St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425,

440 n.8 (5th Cir. 2000) (citations omitted).

We first address the plaintiffs’ challenge to the

district court’s grant of qualified immunity, evaluating whether clearly established law prohibited the defendants’ conduct. Next, we discuss whether the district court erred in abstaining from deciding the plaintiffs’ claims for declaratory judgment. Finally, we analyze whether Robinson was liable in her supervisory

capacity.

Grant of qualified immunity

‘‘The doctrine of qualified immunity protects government officials from civil damages liability when

their actions could reasonably have been believed to

be legal.’’ Morgan v. Swanson, 659 F.3d 359, 370–71

(5th Cir. 2011). Officials are entitled to qualified immunity ‘‘unless (1) they violated a federal statutory or

constitutional right, and (2) the unlawfulness of their

conduct was ‘clearly established at the time.’’’ District

of Columbia v. Wesby, 138 S.Ct. 577, 589, 199 L.Ed.2d

453 (2018) (quoting Reichle v. Howards, 566 U.S. 658,

664 (2012)).

Using this framework, we analyze the plaintiffs’

arguments that clearly established law prohibited the

defendants’ execution of the subpoena instanter. The

plaintiffs offer two theories for why the defendants’

conduct was unconstitutional. First, they argue it was

a warrantless search that did not satisfy the administrative exception. Second, they argue it was a pretextual search and thus unconstitutional.

a. Warrantless search

The plaintiffs argue the Board violated the Fourth

Amendment when it demanded immediate compliance with its administrative subpoena. We have previously considered a challenge to a subpoena instanter

executed by the Texas Medical Board. See Cotropia v.

Chapman, 721 F. App’x 354 (5th Cir. 2018). In that

nonprecedential opinion, we held: ‘‘Absent consent,

exigent circumstances, or the like, in order for an administrative search to be constitutional, the subject of

the search must be afforded an opportunity to obtain

precompliance review before a neutral decisionmaker.’’ Id. at 358 (quoting City of Los Angeles v.

Patel, 135 S. Ct. 2443, 2452 (2015)).

In that case, the physician at the center of a Board

investigation pled sufficient facts to overcome qualified immunity. Id. at 361. The doctor alleged that a

Board member ‘‘violated the clearly established right

to an opportunity to obtain precompliance review of

an administrative subpoena before a neutral decisionmaker’’ when he took documents from the physician’s office over objections from the office receptionist. Id. at 357. Relying on Supreme Court precedent,

we held that it was clear at the time that ‘‘prior to

compliance, Cotropia was entitled to an opportunity

to obtain review of the administrative subpoena before a neutral decisionmaker.’’ Id. at 358 (citing See v.

City of Seattle, 387 U.S. 541, 545 (1967); Donovan v.

Lone Steer, Inc., 464 U.S. 408, 415 (1984)). Similarly,

the demand to turn over Dr. Zadeh’s medical records

immediately did not provide an opportunity for precompliance review. We agree, then, that a requirement of precompliance review in many, if not most,

administrative searches had been clearly established

by Supreme Court precedent prior to the search here.

The defendants acknowledge this law but maintain there was no constitutional violation because this

search fell into an exception to the general rule requiring precompliance review. We next examine that argument.

i. Closely regulated industry

No opportunity for precompliance review is

needed for administrative searches of industries that

‘‘have such a history of government oversight that no

reasonable expectation of privacy’’ exists for individuals engaging in that industry. Marshall v. Barlow’s,

Inc., 436 U.S. 307, 313 (1978). Even so, 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.’’ New York v. Burger, 482 U.S. 691, 702–03

(1987) (quoting Donovan v. Dewey, 452 U.S. 594, 603

(1981)).

Cotropia did not resolve whether the Board’s use

of administrative subpoenas satisfied the Burger criteria because the issue was not raised until oral argument. Cotropia, 721 F. App’x at 360 & n.6. As a result,

the panel’s holding was expressly limited to concluding that the Board’s demand for immediate compliance with the subpoena did not satisfy the general administrative exception to the warrant requirement.

The argument has timely been raised here, though.

Thus, we must discuss whether the Burger exception

permitted the Board’s administrative subpoena and

whether that law was clearly established at the time

of its execution.

To categorize industries under Burger, courts consider the history of warrantless searches in the industry, how extensive the regulatory scheme is, whether

other states have similar schemes, and whether the

industry would pose a threat to the public welfare if

left unregulated. See Burger, 482 U.S. at 704; Patel,

135 S. Ct. at 2454. The defendants characterize the

relevant industry in two different ways. We evaluate

first whether the practice of medicine is a closely regulated industry and then whether the practice of prescribing controlled substances is closely regulated.

Acknowledging that the medical profession is subject to close oversight, the district court emphasized

the absence of a history of warrantless inspections to

conclude that the medical profession was not a closely

regulated industry. Important to its conclusion was

the confidential nature of the doctor-patient relationship: ‘‘It strains credibility to suggest that doctors and

their patients have no reasonable expectation of privacy.’’ On appeal, the defendants all but concede that

there is not a lengthy history of warrantless searches.

They instead emphasize the extensive regulatory

scheme governing the practice of medicine and the

risk that the industry could pose to the public welfare.

There is no doubt that the medical profession is

extensively regulated and has licensure requirements. Satisfying the Burger doctrine requires more.

The Supreme Court instructs ‘‘that the doctrine is essentially defined by ‘the pervasiveness and regularity

of the federal regulation’ and the effect of such regulation upon an owner’s expectation of privacy.’’

Burger, 482 U.S. at 701 (quoting Dewey, 452 U.S. at

605–06). Another key factor is ‘‘the duration of a particular regulatory scheme.’’ Id. (quoting Dewey, 452

U.S. at 606).

The Board cites several laws or regulations governing the behavior of doctors. Outside of citing

Texas’s licensure requirement for physicians, the regulations the Board cites do not apply to the entire

medical profession. Instead, they target the practice

of prescribing controlled substances. As examples, the

Board states that doctors must register with the DEA

to prescribe controlled substances, TEX. HEALTH &

SAFETY CODE § 481.061; that prescriptions of controlled substances are monitored by several law enforcement agencies, id. §§ 481.067, 481.075, 481.076;

and that pain management clinics must register as

such, which allows the Board to inspect them from

time to time, TEX. OCC. CODE §§ 168.101, 168.052; 37

Tex. Reg. 10079, 10079–80 (2012), adopted 38 Tex.

Reg. 1876, 1876–77 (2013), amended 39 Tex. Reg. 297,

297–98 (2014) (former 22 TEX. ADMIN. CODE § 195.2);

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35 Tex. Reg. 1924, 1925–26 (2010), adopted 35 Tex.

Reg. 3281, 3281–82 (2010), amended 43 Tex. Reg. 768,

768–74 (2018) (former 22 TEX. ADMIN. CODE § 195.3).

The Board also refers us to laws and regulations that

similarly regulate anesthesia. These, though, do not

amount to pervasiveness and regularity of regulation

over the medical industry as a whole as Burger requires. Instead, only specific groups of doctors may

have been put on notice that the Board may perform

some inspections.

We also do not see in the medical profession an

entrenched history of warrantless searches. Its absence is relevant, though not dispositive, to our issue.

Burger, 482 U.S. at 701. For example, when the Court

held that the liquor industry was closely regulated, it

mentioned that English commissioners could inspect

brewing houses on demand in the 1660s, and that

Massachusetts passed a similar law in 1692. Colonnade Catering Corp. v. United States, 397 U.S. 72, 75

(1970). It then referred to a 1791 federal law that has

continued in various forms, permitting federal officers

to perform warrantless searches of distilleries and imposing an excise tax on distilled liquor. Id. Because

the focus there was ‘‘the liquor industry long subject

to close supervision and inspection,’’ the Court concluded that the Fourth Amendment did not prohibit

the warrantless searches authorized by Congress. Id.

at 77. Here, there is no such history.

In considering the reasonable expectation of privacy, we also consider the sensitive nature of medical

records. The Ninth Circuit explained that ‘‘the theory

behind the closely regulated industry exception is that

persons engaging in such industries, and persons present in those workplaces, have a diminished expectation of privacy.’’ Tucson Woman’s Clinic v. Eden, 379

F.3d 531, 550 (9th Cir. 2004). We agree with that

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court’s observation that in medical contexts, the expectation of privacy likely is heightened. Id.

Admittedly, federal regulations do exempt the

Board from the privacy requirements of the Health Insurance

Portability

and

Accountability

Act

(‘‘HIPAA’’). 45 C.F.R. § 164.512. Further, the Board

cites Texas laws providing that where the Board does

obtain information, it is subject to confidentiality requirements. See TEX. OCC. CODE §§ 159.002;

159.003(a)(5); 164.007(c). That HIPAA permits disclosure to the Board and that the regulations governing

the Board continue to protect that information from

disclosure does not mean that the Board is entitled to

access to that information through an administrative

search without allowing an opportunity for precompliance review.

We conclude, then, that the medical industry as a

whole is not a closely regulated industry for purposes

of Burger. Still, even if the medical profession at large

cannot be said to fall within these Burger factors, it is

possible that a subset, such as those who prescribe

controlled substances, would do so. Because the parties focus their analysis of whether there is a closely

regulated industry on the medical profession as a

whole and not on pain management clinics, we assume only for purposes of our analysis today that pain

management clinics are part of a closely regulated industry and that Dr. Zadeh was operating such a clinic

even if his clinic was not certified as one. Such assumptions are appropriate in this case because ultimately our resolution turns on whether the relevant

law was clearly established. At this point, we can at

least say that the law was not clearly established

whether pain management clinics are part of a closely

regulated industry. The remaining relevant law, established with clarity or not, is analyzed below.

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ii. Burger exception requirements

Even were we to accept the defendants’ argument

that doctors prescribing controlled substances are engaging in a closely regulated industry with less reasonable expectations of privacy, administrative

searches of such industries still must satisfy the three

Burger criteria. There is no meaningful dispute in this

case as to the first two factors, namely, that the State

has a substantial interest in regulating the prescription of controlled substances and that the inspection

of a doctor’s records would aid the Government in regulating the industry. We thus analyze only whether

the statutory scheme is a proper substitute for a

search warrant. The Board relies on its authority to

issues subpoenas and to inspect pain management

clinics. The principal response from plaintiffs is that

neither provides a constitutionally adequate substitute for a warrant.

In order for a warrant substitute authorized by

statute to be constitutionally adequate, ‘‘the regulatory statute must perform the two basic functions of a

warrant: it must advise the owner of the commercial

premises that the search is being made pursuant to

the law and has a properly defined scope, and it must

limit the discretion of the inspecting officers.’’ Burger,

482 U.S. at 703. The relevant statute provides: ‘‘The

board may issue a subpoena or a subpoena duces tecum to compel the attendance of a witness and the

production of books, records, and documents.’’ TEX.

OCC. CODE. § 153.007(a). The Board argues that the

statute, when considered with the following regulation, limits the discretion of the officials. The regulation provides that after a ‘‘request by the board or

board representatives, a licensee shall furnish to the

board copies of medical records or the original records

within a reasonable time period, as prescribed at the

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time of the request.’’ 22 TEX. ADMIN. CODE § 179.4(a).

The regulation defines ‘‘reasonable time’’ as ‘‘fourteen

calendar days or a shorter time if required by the urgency of the situation or the possibility that the records may be lost, damaged, or destroyed.’’ Id.

The district court held that a search using the

Board’s subpoena authority did not satisfy the third

factor of the Burger test as it was ‘‘purely discretionary,’’ allowing the Board ‘‘to choose which doctors to

subpoena and to do so at a frequency it determines.’’

To evaluate that holding, we consider the limits that

do exist: only licensees are subject to the subpoena;

only medical records must be produced; and it is the

Board or its representatives who will be asking for the

records. As the district court stated, though, there is

no identifiable limit on whose records can properly be

subpoenaed.

As to inspections of pain management clinics, the

Board argues that some limits to its authority are set

by the statute permitting it to inspect pain management clinics. Specifically, the statute allows it to examine ‘‘the documents of a physician practicing at the

clinic, as necessary to ensure compliance with this

chapter.’’ TEX. OCC CODE. § 168.052(a). Providing

more specific guidance, the regulation in effect at the

time provided:

The board may conduct inspections to enforce

these rules, including inspections of a pain

management clinic and of documents of a physician’s practice. The board may contract with

another state agency or qualified person to

conduct these inspections.

35 Tex. Reg. 1925, 1925–26 (2010), adopted 35 Tex.

Reg. 3281, 3281–82 (2010), amended 43 Tex. Reg. 768,

768–74 (2018) (former 22 TEX. ADMIN. CODE § 195.3).

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The district court found this inspection authority,

like the subpoena authority, to be ‘‘purely discretionary.’’ The governing criteria for an inspection is that

the target be a pain management clinic, that the

Board performs the inspection, and that the purpose

for the search be to determine compliance with pain

management rules. We agree with the district court,

though, that these requirements suffered from the

same fatal Burger flaw as the subpoena authority:

they did not limit how the clinics inspected are chosen.

In summary, there are insufficient limits on the

discretion of the Board to satisfy the Burger requirements, whether considering the medical profession in

general or as to pain management clinics. What is left

is the question of whether the law on these points was

clearly established and, regardless, whether the

search was invalid as pretextual.

iii. Clearly established law for qualified

immunity

To summarize, we have concluded there was a violation of Dr. Zadeh’s constitutional rights. That is

true even with our twin assumptions that pain management clinics are part of a closely regulated industry and that Dr. Zadeh operated a pain management

clinic. Nonetheless, the defendants are entitled to

qualified immunity unless the constitutional requirements they violated were clearly established at the

time of their actions. Reichle, 566 U.S. at 664. We hold

that it was clearly established at the time of this

search that the medical profession as a whole is not a

closely regulated industry, meaning that governmental agents violate the Constitution when they search

clinics that are not pain management clinics without

providing an opportunity for precompliance review.

We also hold, even assuming that pain management

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clinics are part of a closely regulated industry, that

ondemand searches of those clinics violate the constitution when the statutory scheme authorizing the

search fails to provide sufficient constraints on the

discretion of the inspecting officers. We need to analyze, though, whether that last statement of law was

clearly established when this search occurred.

Our analysis of the clarity of relevant law is objective, meaning it does not focus on the specific defendants’ knowledge. ‘‘The touchstone of this inquiry is

whether a reasonable person would have believed that

his conduct conformed to the constitutional standard

in light of the information available to him and the

clearly established law.’’ Goodson v. City of Corpus

Christi, 202 F.3d 730, 736 (5th Cir. 2000). ‘‘[E]ven law

enforcement officials who ‘reasonably but mistakenly

[commit a constitutional violation]’ are entitled to immunity.’’ Glenn v. City of Tyler, 242 F.3d 307, 312–13

(5th Cir. 2001) (quoting Goodson, 202 F.3d at 736).

For the law to be clearly established, there must be a

close congruence of the facts in the precedent and

those in the case before us. Wesby, 138 S. Ct. at 589–

90. ‘‘The precedent must be clear enough that every

reasonable official would interpret it to establish the

particular rule the plaintiffs seek to apply.’’ Id. at 590.

Defendants rely on one of our precedents that reviewed an administrative search of a dentist’s office

by agents of the Texas State Board of Dental Examiners, accompanied by Department of Public Safety officials. Beck v. Tex. State Bd. of Dental Exam’rs, 204

F.3d 629, 632 (5th Cir. 2000). Dentist Beck was a target because of complaints filed against him for prescribing controlled substances. Id. We concluded that

the search did not violate the plaintiff’s clearly established rights. Id. at 638–39. We applied the Burger exception and determined there was a significant state

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interest in regulating dentists’ use of controlled substances; the search was conducted pursuant to two

regulatory schemes; and there was an adequate substitute for a warrant where the statute permitted the

official to conduct inspections during ‘‘reasonable

times’’ after ‘‘stating his purpose’’ and presenting his

credentials to the owner. Id. at 638–39. In light of

Beck, the Board argues that reasonable investigators

could have believed the Burger exception permitted

the execution of the subpoena as they too were investigating prescriptions of controlled substances within

the medical industry.

The plaintiffs insist that Beck is ‘‘patently distinguishable’’ for the same reason argued in the separate

opinion here. The clarity of any possible distinction,

though, must be viewed through the lens that the law,

including a distinction, must be ‘‘sufficiently clear

that every reasonable official would understand that

what he is doing is unlawful’’ at that time. Wesby, 138

S. Ct. at 589 (quotation marks omitted). That means

‘‘existing law must have placed the constitutionality

of the officer’s conduct ‘beyond debate.’’ Id. Perhaps

most relevant, the ‘‘legal principle [must] clearly prohibit the officer’s conduct in the particular circumstances before him. The rule’s contours must be so well

defined that it is ‘clear to a reasonable officer that his

conduct was unlawful in the situation he confronted.’’’

Id. at 590 (emphasis added).

The claimed sufficient distinction here is that the

regulations and statutes under which the investigators in Beck acted explicitly permitted inspections

without prior notice. See Beck, 204 F.3d at 639. The

Beck court discussed that point at the end of the opinion, as it addressed several questions regarding

whether what occurred was a valid administrative

search of a closely regulated industry. Id. The final

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subject the court discussed was that one of the statutes under which the inspection was conducted did

not require that prior notice be given. Id. (quoting Section 5.01(c) of the Texas Controlled Substances Act.)

That is no small distinction, and we conclude today

that absent similar statutory or perhaps regulatory

authority that dispenses with prior notice, a search

such as occurred here cannot be conducted without

prior notice. The issue for us, though, is whether that

law was clearly established at the time of the search

we are reviewing today.

As we already stated, the right is not clearly established unless it is beyond debate using an objective

test. We have discussed the intricacies of New York v.

Burger, which permit warrantless searches when they

satisfy a three-factor test. Our Beck decision held that

the search there was of a closely regulated industry,

and therefore went through the three Burger factors.

The discussion of the specific statutory authorization

for no-notice inspections was to show that the third

Burger factor was satisfied, which is that an adequate

substitute for a warrant existed. We did not say in

Beck that the only sufficient substitute under Burger

was a statute authorizing no-notice searches. We did

hold that ‘‘under these circumstances, Beck does not

show a violation of a clearly established constitutional

right.’’ Beck, 204 F.3d at 639.

Instead of clearly establishing the principle that

prior notice of a regulatory search must be given unless the authorizing statute explicitly announces it is

unnecessary, Beck applied the general Burger principle to the facts of that case that a warrant substitute

authorized by a ‘‘regulatory statute must perform the

two basic functions of a warrant: it must advise the

owner of the commercial premises that the search is

being made pursuant to the law and has a properly

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defined scope, and it must limit the discretion of the

inspecting officers.’’ Burger, 482 U.S. at 703. In the

Beck situation, that factor was satisfied with the statutory language already discussed. We cannot see,

though, that every reasonable official prior to conducting a search under the circumstances of this case

would know this Burger factor was not satisfied. We

think some, even many, reasonable officers would believe under the third Burger factor that the owner of

the premises was charged with knowledge that a statute authorized the search, and the officers would reasonably believe the scope of the search and the discretion of the officials was validly limited. We have held

that the statute fails this standard, but we do not hold

that all reasonable officers would have known that,

until now.

Therefore, although Beck does not control the constitutionality of the Board’s actions in this case, it

does weigh in favor of the defendants’ receiving qualified immunity. We find more guidance from cases

where a statute did not clearly limit the official’s discretion in selecting who would be subject to an administrative search. In one, we held that the statute provided a constitutionally adequate substitute for a warrant where the statute provided:

The licensing agency shall make or cause to be

made inspections relative to compliance with

the laws and regulations governing the licensure of child care facilities. Such inspections

shall be made at least once a year but additional inspections may be made as often as

deemed necessary by the licensing agency.

See Ellis v. Miss. Dep’t of Health, 344 F. App’x 43 (5th

Cir. 2009) (citing MISS. CODE. ANN. § 43-20-15).

Though that opinion is not precedential, we agree

with its reasoning.

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We also upheld an administrative search where,

despite limits on the conduct of an officer after a traffic stop, there were not clear limits on an officer’s discretion as to whom to stop. See United States v. Fort,

248 F.3d 475, 482 (5th Cir. 2001). Because we have

not so far required there to be a clear limit on determining whom officials select for an administrative

search, the defendants reasonably could have believed

that the administrative scheme here provided a constitutionally adequate substitute for a warrant.

Finally, the plaintiffs argue that even if qualified

immunity might apply to defendants who conducted a

proper search, the defendants did not follow the statutory scheme. Therefore, they assert, caselaw in

which the legal requirements for the search were followed is inapplicable. The claims of overstepping authority, though, are minor. First, while the medical

assistant was waiting for Dr. Zadeh to appear, there

is evidence one of the investigators approached the assistant at her desk, then followed her into two exam

rooms. While in one of the rooms, the investigator

asked if controlled substances were kept in the room.

Second, there is evidence this same investigator also

approached the assistant while the latter was in a

storage room and asked if the investigators could use

the medical office’s copy machine. The district court

said there was no evidence the investigator ever

looked at any files or went somewhere in the medical

office without the assistant. Finally, as soon as the investigators were asked to leave the office, they did so.

We agree with the district court that there is ‘‘no support in the record’’ to sustain the allegation the investigators did a ‘‘thorough search and inspection.’’ The

factual basis for deviations from search protocols is insubstantial.

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In conclusion, the unlawfulness of the defendants’

conduct was not clearly established at the time of the

search.

b. Pretextual searches

The plaintiffs also argue that the search was a

pretext for uncovering evidence of criminal wrongdoing, not a valid administrative search. According to

the plaintiffs, the DEA brought Dr. Zadeh’s possible

misdeeds before the Medical Board. A DEA agent then

was present during the search. To finish the story,

though, the Medical Board proceeded against Dr. Zadeh. Before there was a full hearing on the merits, the

Board entered an agreed order. In the order, the panel

found that Dr. Zadeh was operating a pain management clinic without registering it. There is nothing in

this record indicating whether the DEA’s investigation resulted in a criminal prosecution or any other

action.

‘‘Even under a valid inspection regime, the administrative search cannot be pretextual.’’ Club Retro,

LLC v. Hilton, 568 F.3d 181, 197 (5th Cir. 2009). It is

incorrect, though, to use the label ‘‘pretext’’ simply because of an overlap between an administrative search

and a criminal search. The Burger Court remarked

that ‘‘a State can address a major social problem both

by way of an administrative scheme and through penal sanctions.’’ Burger, 482 U.S. at 712. To determine

whether the search there was constitutional, the

Court looked to whether the administrative scheme

really ‘‘authorize[ d] searches undertaken solely to uncover evidence of criminality.’’ Id.

Similarly, the Supreme Court dismissed a defendant’s argument ‘‘that because the Customs officers

were accompanied by a Louisiana State Policeman,

and were following an informant’s tip that a vessel in

21a

the ship channel was thought to be carrying marijuana,’’ the Government could not rely on the administrative search exception. United States v. VillamonteMarquez, 462 U.S. 579, 584 n.3 (1983).

We have applied these principles to a search of an

automobile salvage yard. United States v. Thomas,

973 F.2d 1152, 1155–56 (5th Cir. 1992). There, an investigator with the Texas Department of Public

Safety tracked a vehicle to an auto salvage business

and there conducted an inventory inspection under

Texas statute. Id. at 1155. Even though the inventory

inspection was prompted by suspicion of criminal conduct, the investigator still was entitled to use information gained during the inspection to obtain a

search warrant for the salvage-yard owner’s residence. Id. ‘‘Administrative searches conducted pursuant to valid statutory schemes do not violate the Constitution simply because of the existence of a specific

suspicion of wrongdoing.’’ Id. at 1155–56.

Beck has similar analysis. As here, the administrative search in Beck was initiated after a tip. Dental

Board member Michael Pitcock ‘‘stated in his deposition that information was forwarded to him alleging

that Beck had ordered unusually high volumes of controlled substances.’’ Beck, 204 F.3d at 632. The Dental

Board suspected Beck of violating criminal statutes,

and a law enforcement officer accompanied the board

agent in its inspection of the dental office. Id. The dentist argued that the search was conducted to uncover

criminal wrongdoing and thus was not conducted pursuant to a valid administrative scheme. Id. at 638. We

held that the suspicions of criminal wrongdoing ‘‘did

not render the administrative search unreasonable,’’

citing Villamonte-Marquez and Thomas. Id. at 639.

As to Dr. Zadeh, the DEA was closely involved

with the Board’s investigation. Under Burger, though,

22a

we look to whether the search that occurred was under a scheme serving an administrative purpose. The

Board’s purpose is demonstrated by the subsequent

administrative action against Dr. Zadeh. The search

was not performed ‘‘solely to uncover evidence of criminality.’’ See Burger, 482 U.S. at 698. Thus, the search

was not pretextual.

II.

Declaratory Judgment

Dr. Zadeh argues that the district court erred in

abstaining from deciding the declaratory judgment

claims following Younger. Dr. Zadeh asked the district

court to make declaratory judgments on several laws

implicating the Board. The district court did not resolve any.

‘‘In Younger, the Supreme Court ‘instructed federal courts that the principles of equity, comity, and

federalism in certain circumstances counsel abstention in deference to ongoing state proceedings.’’’

Wightman v. Tex. Supreme Court, 84 F.3d 188, 189

(5th Cir. 1996) (citations omitted). Following Supreme

Court precedent, this court follows ‘‘a three-part test

describing the circumstances under which abstention

[is] advised: (1) the dispute should involve an ‘ongoing

state judicial proceeding;’ (2) the state must have an

important interest in regulating the subject matter of

the claim; and (3) there should be an ‘adequate opportunity in the state proceedings to raise constitutional

challenges.’’’ Id. (citation omitted).

The district court applied the reasoning of one of

our unpublished cases, Perez v. Tex. Med. Bd., 556 F.

App’x 341 (5th Cir. 2014). There, we held that

Younger barred the plaintiffs’ suit seeking to enjoin

the Board from pursuing any causes of action against

them. Id. at 342–43. We agree with that panel’s deter-

23a

mination that Texas had a strong interest in regulating the practice of medicine, and the Perez plaintiffs

could raise their constitutional challenges in the state

court because the law provided for judicial review of

the administrative decision. Id. at 342. Following Perez, the district court concluded that Dr. Zadeh had an

ongoing administrative action pending; the state had

a significant interest in regulating medicine in Texas;

and Dr. Zadeh could appeal his administrative action

in state court and raise constitutional challenges

there. Accordingly, the district court abstained from

adjudicating the requests for declaratory relief.

Dr. Zadeh claims Younger is inapplicable because

the Board argued that the lawsuit did not implicate

the underlying investigation. Dr. Zadeh also argues

that there will be no adequate opportunity in the state

proceedings to raise any constitutional challenges. He

claims that ‘‘[d]octors do not have the power to file an

appeal concerning the findings of fact and conclusions

of law contained in a final decision (but the TMB

does).’’

Dr. Zadeh was subject to an ongoing state administrative proceeding, and that qualifies as a judicial

proceeding for this analysis. See Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423,

432 (1982). As we stated in Perez, Texas has a strong

interest in regulating the practice of medicine. Finally, despite plaintiffs’ contrary view, Texas law does

permit judicial review by either party of an administrative decision.1 ‘‘A person who has exhausted all administrative remedies available within a state agency

The plaintiffs note that the administrative law judge in the

SOAH proceeding declined to address the constitutional questions. Even so, all the law requires is that the issue have been

24a

and who is aggrieved by a final decision in a contested

case is entitled to judicial review under this chapter.’’

TEX. GOV’T CODE. § 2001.171.

The district court did not abuse its discretion in

abstaining from deciding the declaratory judgment

claims.

III.

Director Robinson’s potential supervisory

capacity liability

The plaintiffs argue that Robinson should be held

liable in her supervisory capacity. ‘‘A supervisory official may be held liable under § 1983 only if (1) he affirmatively participates in the acts that cause the constitutional deprivation, or (2) he implements unconstitutional policies that causally result in the constitutional injury.’’ Gates v. Tex. Dep’t of Protective and

Regulatory Servs., 537 F.3d 404, 435 (5th Cir. 2008).

A failure to train claim requires that the plaintiff

show (1) the supervisor’s failure to train; (2) the failure to train resulted in the violation of the plaintiff’s

rights; and (3) the failure to train shows deliberate indifference. Id. For deliberate indifference, ‘‘there must

be ‘actual or constructive notice’ ‘that a particular

omission in their training program causes . . . employees to violate citizens’ constitutional rights’ and the

actor nevertheless ‘choose[s] to retain that program.’’’

Porter v. Epps, 659 F.3d 440, 447 (5th Cir. 2011) (citation omitted).

The plaintiffs argue that Robinson improperly

delegated her subpoena authority to subordinates

whose training she knew nothing about. Therefore,

the subpoena did not comply with Texas law because

the Executive Director of the Board is not permitted

preserved for the appeal to the state court. See Ohio Civil Rights

Comm’n v. Dayton Christian Schs., Inc., 477 U.S. 619, 629 (1986).

25a

to delegate her subpoena authority. The district court

did not determine whether the delegation was permissible. ‘‘In light of the express regulatory authority for

the delegation, the precedent set by her predecessors,

and the sheer volume of subpoenas issued every year

by the TMB,’’ Robinson’s actions did not amount to deliberate indifference.

In Texas administrative law, a rule of statutory

construction presumes that where a statute grants

specific authority to a designated public officer, the

legislature intended only that officer to have that authority. Lipsey v. Tex. Dep’t of Health, 727 S.W.2d 61,

64 (Tex. App.— Austin 1987, writ ref’d n.r.e.). Still,

Lipsey recognized ‘‘the authority to ‘subdelegate’ or

transfer the assigned function may be implied and the

presumption defeated owing to the nature of the assigned function, the makeup of the agency involved,

the duties assigned to it, the statutory framework,

and perhaps other matters.’’ Id. at 65.

In this case, a statute permits the Board to subpoena records. TEX. OCC. CODE. § 153.007. Section

153.007(b) permits the Board to delegate subpoena

authority ‘‘to the executive director or the secretarytreasurer of the board.’’ By administrative rule, the

executive director may ‘‘delegate any responsibility or

authority to an employee of the board.’’ 22 TEX. ADMIN. CODE § 161.7(c).

In resolving this issue, we start with the fact the

rule articulated in Lipsey is only a presumption. Even

assuming that the plaintiffs could show that Robinson

failed to train her subordinates and that failure resulted in a constitutional violation, Robinson was not

deliberately indifferent in delegating her subpoena

authority in light of the fact she was acting pursuant

to the regulations in the same way as her predecessors

and the numerous subpoenas issued each year. To the

26a

extent the plaintiffs seek to impose Section 1983 liability on Kirby and Pease through the subdelegation

argument, that law also was not clearly established.

AFFIRMED.

DON R. WILLETT, Circuit Judge, concurring in

part, dissenting in part:

State investigators, without notice and without a

warrant, entered a doctor’s office and demanded to rifle through the medical records of 16 patients. Or else.

The doctor was not in, and the investigators, after being told that the doctor contested the subpoena,

warned his assistant that if she didn’t produce the patient files at once, there would be grave repercussions.

According to her, the investigators threatened to suspend the doctor’s medical license. They demanded

compliance—immediately.

The Fourth Amendment forbids such roughshod

rummaging. The Framers cared deeply about We the

People’s right ‘‘to be secure in [our] persons, houses,

papers, and effects against unreasonable searches and

seizures.’’1 The Fourth Amendment was the Founding

generation’s ‘‘response to the reviled ‘general warrants’ and ‘writs of assistance’ of the colonial era,

which allowed British officers to rummage through

homes in an unrestrained search for evidence of criminal activity.’’2 In fact, outrage over unchecked

searches was ‘‘one of the driving forces behind the

Revolution itself.’’3

U.S. CONST. amend. IV.

Riley v. California, 134 S. Ct. 2473, 2494 (2014).

Id.

27a

The majority opinion correctly diagnoses Dr. Zadeh’s injury but refuses to prescribe a remedy: His

rights were violated, but since the law wasn’t clearly

established, Dr. Zadeh loses. I originally agreed with

this violation-without-vindication result.4

But deeper study has convinced me that the officials’ constitutional misstep violated clearly established law, not a previously unknown right. And it has

reaffirmed my broader conviction that the judge-made

immunity regime ought not be immune from thoughtful reappraisal.

To rebut the officials’ qualified-immunity defense

and get to trial, Dr. Zadeh must plead facts showing

that the alleged misconduct violated clearly established law.5 He has done so.

The Supreme Court held 40-plus years ago in See

that the Fourth Amendment requires precompliance

review.6 An administrative subpoena ‘‘may not be

made and enforced by the inspector in the field . . . .’’7

Almost 20 years later, the Court in Lone Steer elaborated that although an agency ‘‘may issue an administrative subpoena without a warrant,’’ it must give

the subpoenaed person an opportunity ‘‘to question

the reasonableness of the subpoena . . . by raising objections in an action in district court’’ before suffering

Zadeh v. Robinson, 902 F.3d 483, 498 (5th Cir. 2018) (Willett,

J., concurring dubitante).

Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011).

See v. City of Seattle, 387 U.S. 541 (1967).

Id. at 544-45.

28a

any penalties for noncompliance.8 The Court reaffirmed this settled precompliance-review requirement

again just four years ago in Patel.9

Here, Texas officials gave Dr. Zadeh no time to

question the subpoena’s reasonableness. That’s a violation. Plain and simple.

But there are exceptions to most every rule. Under the Supreme Court’s 1981 decision in Burger, officials don’t have to give people time to comply if:

• the business is part of a closely regulated

industry;

• there’s a substantial government interest;

• warrantless searches are necessary; and

• there’s a ‘‘constitutionally adequate substitute for a warrant.’’10

This search whiffs two requirements. So I agree with

the majority opinion: The Burger exception doesn’t apply.

Medical practices—including pain-management

clinics—aren’t ‘‘closely regulated’’ industries. In both

Burger11 and Patel,12 the Supreme Court considered

the history of warrantless searches, then-current regulations, and the public interest. Take Patel. The

Donovan v. Lone Steer, Inc., 464 U.S. 408, 415 (1984).

City of Los Angeles v. Patel, 135 S. Ct. 2443, 2452 (2015)

(‘‘[T]he subject of the search must be afforded an opportunity to

obtain precompliance review before a neutral decisionmaker.’’).

New York v. Burger, 482 U.S. 691, 702-03 (1987).

See id. at 704.

See Patel, 135 S. Ct. at 2454.

29a

Court held that hotels aren’t a closely regulated industry—no history of regular, warrantless searches.13

Public-accommodation laws require hotels to serve all

paying customers. That just doesn’t equate to state officials knocking down doors.14

Likewise, state officials haven’t historically rummaged through pain-management clinics without

warrants. If anything, it’s the opposite. The law has

consistently protected doctor–patient confidentiality.

In 2011, the Supreme Court in Sorrell noted that ‘‘for

many reasons, physicians have an interest in keeping

their prescription decisions confidential.’’15 Ten years

earlier, the Court in Ferguson recognized medical patients’ ‘‘reasonable expectation of privacy’’— that no

one will share their records without permission.16

It’s not just our Nation’s highest court. Lower

courts recognize this too. The district court here emphasized that ‘‘warrantless inspections of doctors’ offices’’ don’t often happen.17 In 2017, another Texas federal district court stressed a stark distinction between

medicine and ‘‘closely regulated’’ industries. The court

noted that the government has long treated liquor and

guns very differently than doctors.18

Id. at 2455.

Id.

Sorrell v. IMS Health Inc., 564 U.S. 552, 572 (2011).

Ferguson v. City of Charleston, 532 U.S. 67, 78 (2001).

Zadeh v. Robinson, No. 1:15-CV-598, Dkt. No. 40, at *10 (W.D.

Tex., Apr. 26, 2016), aff’d, 902 F.3d 483 (5th Cir. 2018).

Barry v. Freshour, No. H-17-1403, 2017 WL 4682176, at *6-7

(Rosenthal, J.) (S.D. Tex. Oct. 18, 2017), rev’d on other grounds,

905 F.3d 912 (5th Cir. 2018).

30a

True, we held in Schiffman that pharmaceuticals

are a ‘‘pervasively’’ regulated industry.19 But that was

in 1978. And the Supreme Court has since clarified

things. As the Court said in Patel, the closely-regulated-industry exception is very much that—“the exception.”20 So Schiffman doesn’t control.

In sum, the law strongly protects privacy in medicine. Pain management is a medical field. So painmanagement clinics aren’t closely regulated.

Unfortunately, the majority opinion assumes

without deciding that pain-management clinics are

closely regulated. In doing so, the majority blurs constitutional contours.21 Our legal system serves the

public best when it provides clear rules, consistently

applied—bright lines and sharp corners. We owe clarity to the courts below us, the litigants before us, and

the cases beyond us. Thankfully, our court has at least

established that medicine generally isn’t closely regulated.

Setting aside the ‘‘closely regulated’’ issue, the

Burger exception still doesn’t apply. The laws here

aren’t a constitutionally adequate substitute for a

warrant. In Burger, the Court explained that a statute

has to notify the public that the government can

United States v. Schiffman, 572 F.2d 1137, 1142 (5th Cir.

1978).

135 S. Ct. at 2455.

See discussion infra Section III.

31a

search on-demand. And it must limit officer discretion.22 These statutes neither notify nor limit.23

Our 2000 decision in Beck sheds light on what

counts for notice.24 There, the Controlled Substances

Act explicitly authorized officers to search dental offices ‘‘upon stating [their] purpose[s]’’ and showing

their credentials.25 That was clear statutory notice.

And so we upheld an on-demand search. In other

words, there had to be notice that no notice is necessary.26

Consider our 2001 opinion in Fort too.27 There, we

stamped our approval on a statute that allowed officers to inspect vehicles ‘‘after stating the purpose of the

Burger, 482 U.S. at 703 (“[Statutes must] perform the two

basic functions of a warrant: it must advise . . . that the search is

being made pursuant to the law and has a properly defined scope,

and it must limit the discretion of inspecting officers.”).

TEX. OCC. CODE § 153.007 (‘‘[T]he board may issue a subpoena

or a subpoena duces tecum to compel the attendance of a witness

and the production of books, records, and documents.’’); TEX.

OCC. CODE § 168.052 (allowing the Board to examine ‘‘the documents of a physician practicing at the clinic, as necessary to ensure compliance with this chapter’’); 22 TEX. ADMIN. CODE §

179.4 (‘‘Upon the request by the board or board representatives,

a licensee shall furnish to the board copies of medical records . . .

within a reasonable time period . . . . ’’); 22 TEX. ADMIN. CODE §

195.3 (‘‘The board may inspect a pain management clinic certified under this chapter, including the documents of a physician

practicing at the clinic, to determine if the clinic is being operated

in compliance with applicable laws and rules.’’).

Beck v. Tex. St. Bd. of Dental Exam’rs, 204 F.3d 629, 639 (5th

Cir. 2000).

Id. at 639.

Id. (“Thus, [the statute] did not require that prior notice be

given.”).

United States v. Fort, 248 F.3d 475, 482 (5th Cir. 2001).

32a

inspection.’’28 The law put Texas drivers on notice that

their cars could be searched. Eight years later in Club

Retro, we again enforced the notice requirement.29

That time, a SWAT team had raided a nightclub— replete with ‘‘physical assault, threats at gunpoint, and

prolonged detention.’’30 But the supposed authorizing

statute notified owners only of periodic fire-safety and

alcohol compliance checks.31 So we held that the

search failed to meet the notice requirement.32

Here, the statutes don’t notify business owners of

on-demand searches. These statutes allow ‘‘a reasonable time’’ to produce records.33 And they define ‘‘reasonable time’’ as ‘‘fourteen calendar days’’; less only if

there’s an emergency or a risk ‘‘that the records may

be lost, damaged, or destroyed.’’34 That’s not notice of

routine, on-the-spot searches.

Lastly, the statutes don’t limit officer discretion.

The only limits: who can subpoena things (the

Board);35 who the Board can subpoena (licensees);36

Id. (citing TEX. TRANSP. CODE § 644.104(b)).

Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 200 (5th Cir. 2009).

Id.

TEX. ADMIN. CODE § 179.4(a).

Id.

Id. (‘‘Upon the request by the board or board representatives,

a licensee shall furnish to the board copies of medical records . . .

within a reasonable time period . . . . ’’ (emphasis added)).

Id. (‘‘Upon the request by the board or board representatives,

a licensee shall furnish to the board copies of medical records . . .

within a reasonable time period . . . . ’’ (emphasis added)).

33a

and what the Board can demand (medical records).37

But that’s it. Otherwise, there’s total discretion.

Thus, the Burger exception doesn’t apply. And so

all that’s left to decide is if the violation was clearly

established.

It was. Just last year in Wesby, the Supreme

Court explained that ‘‘clearly established’’ means ‘‘settled law.’’38 ‘‘[C]ontrolling authority’’ must explicitly

adopt the principle; or else there must be ‘‘a robust

consensus of cases of persuasive authority.’’39 Mere

implication from precedent doesn’t suffice.40

What’s more, the Court in Wesby reiterated that

the legal principle must be specific— not general. The

rule must ‘‘prohibit the officer’s conduct in the particular circumstances before him.”41 The Court doesn’t

require ‘‘a case directly on point.’’42 But it does require

a case ‘‘where an officer acting under similar circumstances . . . violated the Fourth Amendment.’’43

Id. (‘‘Upon the request by the board or board representatives,

a licensee shall furnish to the board copies of medical records . . .

within a reasonable time period . . . . ’’ (emphasis added)).

Wesby, 138 S. Ct. at 589 (2018) (quoting Hunter v. Bryant, 502

U.S. 224, 228 (1991) (per curiam)).

Id. at 590 (cleaned up) (quoting Ashcroft v. al-Kidd, 563 U.S.

731, 741–42 (2011)).

Id.

Id. (quoting al-Kidd, 563 U.S. at 741).

Id. (quoting White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam)). But cf. discussion infra Section III.

34a

The Supreme Court in See,44 Lone Steer,45 and Patel made clear the need for precompliance review of

administrative subpoenas. That’s controlling law.

Summing up: The Board violated Dr. Zadeh’s Fourth

Amendment rights. No exception applies. And the law

was clearly established. The state officials are thus

not immune. On this basis alone, Dr. Zadeh deserves

his day in court.

Respectfully, I think that the majority opinion is

wrong for two reasons. First, this court shouldn’t determine whether exceptions to violations are clearly

established. Second, even if we should, Dr. Zadeh

should win anyway.

The majority concedes that the statutes here don’t

limit the discretion of the inspecting officers as Burger

requires. The court also acknowledges that statutes

must provide notice. Yet the court holds that these requirements weren’t—themselves—clearly established.

I understand the impulse. After all, qualified immunity is supposed to protect ‘‘all but the plainly incompetent or those who knowingly violate the law’’—

that’s what the Supreme Court remarked in Wesby.47

So if reasonably competent officers wouldn’t necessarily know that they’re violating the law, they

shouldn’t be liable. For example, the majority says

387 U.S. at 544–45.

464 U.S. at 415.

135 S. Ct. at 2452.

138 S. Ct. at 589 (quoting Malley v. Briggs, 475 U.S. 335, 341

(1986)).

35a

that since we haven’t yet enforced the limiteddiscretion requirement, reasonable officials could’ve

thought that the subpoena satisfied Burger. Thus,

they wouldn’t necessarily realize they’re breaking the

law.

But that hyperspecific take snubs the Supreme

Court’s time-worn test: Was there a clearly established violation?48 Yes, it’s a violation to conduct a

warrantless search without precompliance review.

Sometimes there’s an exception to this test. But not

here. No exception applies. And it’s only when an exception applies that the general rule doesn’t.

Yet even if we should ask whether the Burger exception was clearly established, Dr. Zadeh still ought

to win. Controlling law dictates that there must be

statutory notice.

Recall Beck. In that case, the law authorized ondemand, warrantless searches. And so we upheld the

search.49 Don’t forget Fort50 or Club Retro51 either, in

which we similarly enforced the notice requirement.

Then of course there’s Burger itself. In upholding a

warrantless search, the Supreme Court emphasized

that the statute ‘‘set[ ] forth the scope of the inspection

and, accordingly, place[d] the operator on notice as to

how to comply with the statute.’’52

Those cases control. They require statutory notice. So the Burger exception’s notice element is

See discussion infra Section III.

204 F.3d at 639.

248 F.3d at 482.

568 F.3d at 200.

482 U.S. at 711.

36a

clearly established. And the Texas laws don’t provide

notice for on-demand inspections.

For that reason, the limited-discretion requirement shouldn’t matter. The notice requirement would

govern. No matter how you shake it, the officials

shouldn’t be immune.

III

Yet here we are—Dr. Zadeh still loses; there and

back again. Everyone agrees his Fourth Amendment

rights were violated. But owing to a legal deus ex

machina—the ‘‘clearly established’’ prong of qualifiedimmunity analysis—the violation eludes vindication.

At first I agreed with the panel majority that the government violated the law but not clearly established

law. I was wrong. Beyond this case, though, I must

restate my broader unease with the real-world functioning of modern immunity practice.

To some observers, qualified immunity smacks of

unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably

unreasonable— as long as they were the first to behave badly. Merely proving a constitutional deprivation doesn’t cut it; plaintiffs must cite functionally

identical precedent that places the legal question ‘‘beyond debate’’ to ‘‘every’’ reasonable officer.53 Put differently, it’s immaterial that someone acts unconstitutionally if no prior case held such misconduct unlawful. This current ‘‘yes harm, no foul’’ imbalance

leaves victims violated but not vindicated. Wrongs are

not righted, and wrongdoers are not reproached.

Ashcroft, 563 U.S. at 741; see also, e.g., Kisela v. Hughes, 138

S. Ct. 1148, 1153 (2018) (per curiam); Mullenix v. Luna, 136 S.

Ct. 305, 308 (2015) (per curiam).

37a

Today the majority opinion says Dr. Zadeh loses

because his rights weren’t clearly established. But

courts of appeals are divided—intractably—over precisely what degree of factual similarity must exist.

How indistinguishable must existing precedent be?

On the one hand, the Supreme Court reassures plaintiffs that its caselaw ‘‘does not require a case directly

on point for a right to be clearly established.’’54 On the

other hand, the Court admonishes that ‘‘clearly established law must be ‘particularized’ to the facts of the

case.’’55 How to square these abstract instructions?

Take Dr. Zadeh. Effectively, he loses since no previous

panel has ever held this exact sort of search unconstitutional. In day-today practice, the ‘‘clearly established’’ standard is neither clear nor established

among our Nation’s lower courts.

Two other factors perpetuate perplexity over

‘‘clearly established law.’’ First, many courts grant immunity without first determining whether the challenged behavior violates the Constitution.56 They

avoid scrutinizing the alleged offense by skipping to

the simpler second prong: no factually analogous precedent. Forgoing a knotty constitutional inquiry makes

for easier sledding, no doubt. But the inexorable result

is ‘‘constitutional stagnation’’57—fewer courts establishing law at all, much less clearly doing so. Section

Kisela, 138 S. Ct. at 1152 (quoting White v. Pauly, 137 S. Ct.

548, 551 (2017)).

Pauly, 137 S. Ct. at 552 (quoting Anderson, 483 U.S. at 640).

See Pearson v. Callahan, 555 U.S. 223, 227 (2009).

Aaron L. Nielson & Christopher J. Walker, The New Qualified

Immunity, 89 S. CAL. L. REV. 1, 12 (2015) (‘‘Because a great deal

of constitutional litigation occurs in cases subject to qualified immunity, many rights potentially\ might never be clearly established should a court skip ahead to the question whether the law

38a

1983 meets Catch-22. Plaintiffs must produce precedent even as fewer courts are producing precedent.

Important constitutional questions go unanswered

precisely because no one’s answered them before.

Courts then rely on that judicial silence to conclude

there’s no equivalent case on the books. No precedent

= no clearly established law = no liability. An

Escherian Stairwell. Heads government wins, tails

plaintiff loses.

Second, constitutional litigation increasingly involves cutting-edge technologies. If courts leapfrog the

underlying constitutional merits in cases raising

novel issues like digital privacy, then constitutional

clarity—matter-of-fact guidance about what the Constitution requires—remains exasperatingly elusive.

Result: gauzy constitutional guardrails as technological innovation outpaces legal adaptation.

Qualified immunity aims to balance competing

policy goals: ‘‘the need to hold public officials accountable when they exercise power irresponsibly and the

need to shield officials from harassment, distraction,

and liability when they perform their duties reasonably.’’58 And I concede that the doctrine enjoys special

favor at the Supreme Court, which seems untroubled

by any one-sidedness.59 The Court recently declined to

clearly established that the officer’s conduct was unlawful in the

circumstances of the case. The danger, in short, is one of constitutional stagnation.’’ (cleaned up))

Pearson, 555 U.S. at 231 (flagging these “two important interests”).

That said, four sitting Justices ‘‘have authored or joined opinions expressing sympathy’’ with various doctrinal, procedural,

and pragmatic critiques of qualified immunity. Joanna C.

Schwartz, The Case Against Qualified Immunity, 93 NOTRE

DAME L. REV. 1797, 1800 (2018) (including Justices Thomas,

39a

take up a closely watched case challenging the warrantless strip search of a four-year-old preschooler.60

A strangebedfellows alliance of leading scholars and

advocacy groups of every ideological stripe—perhaps

the most diverse amici ever assembled—had joined

forces to urge the Court to fundamentally reshape immunity doctrine. Even in this hyperpartisan age,

there is a growing, cross-ideological chorus of jurists61

and scholars62 urging recalibration of contemporary

immunity jurisprudence.

Ginsburg, Breyer, and Sotomayor, plus recently retired Justice

Kennedy).

Doe v. Woodard, 912 F.3d 1278 (10th Cir. 2019), cert. denied,

No. 18-1173, 2019 WL 1116409, at *1 (May 20, 2019).

See, e.g., Kisela, 138 S. Ct. at 1162 (Sotomayor, J., dissenting)

(fearing the Supreme Court’s ‘‘one-sided approach to qualified

immunity transforms the doctrine into an absolute shield for law

enforcement officers, gutting the deterrent effect of the Fourth

Amendment’’ and signaling ‘‘that palpably unreasonable conduct

will go unpunished’’); Ziglar v. Abbasi, 137 S. Ct. 1843, 1872

(2017) (Thomas, J., concurring in part and concurring in the

judgment) (‘‘In an appropriate case, we should reconsider our

qualified immunity jurisprudence.’’); Thompson v. Clark, No. 14CV-7349, 2018 WL 3128975, at *11 (E.D.N.Y. June 26, 2018)

(Weinstein, J.) (‘‘The Supreme Court’s recent emphasis on shielding public officials and federal and local law enforcement means

many individuals who suffer a constitutional deprivation will

have no redress . . . . ”).

Last year’s symposium issue of the Notre Dame Law Review

gathers several scholarly essays that scrutinize qualified immunity and discuss potential refinements given mounting legal

and empirical criticism. Symposium, The Future of Qualified Immunity, 93 NOTRE DAME L. REV. 1793 (2018); see also, e.g., William Baude, Is Qualified Immunity Unlawful?, 106 CALIF. L.

REV. 45, 88 (2018) (claiming the doctrine ‘‘lacks legal justification, and the Court’s justifications are unpersuasive’’); Joanna C.

Schwartz, How Qualified Immunity Fails, 127 YALE L.J. 2, 70

(2017) (concluding that ‘‘the Court’s efforts to advance its policy

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Indeed, it’s curious how this entrenched, judgecreated doctrine excuses constitutional violations by

limiting the statute Congress passed to redress constitutional violations.63 Count me with Chief Justice

Marshall: ‘‘The government of the United States has

been emphatically termed a government of laws, and

not of men. It will certainly cease to deserve this high

appellation, if the laws furnish no remedy for the violation of a vested legal right.’’64

Doctrinal reform is arduous, often-Sisyphean

work. Finding faults is easy; finding solutions, less so.

But even if qualified immunity continues its forward

goals through qualified immunity doctrine has been an exercise

in futility’’); John C. Jeffries, Jr., What’s Wrong with Qualified

Immunity?, 62 FLA. L. REV. 851, 869 (2010) (‘‘Today, the law of

qualified immunity is out of balance . . . . The Supreme Court

needs to intervene, not only to reconcile the divergent approaches

of the Circuits but also, and more fundamentally, to rethink

qualified immunity and get constitutional tort law back on

track.’’). The essays in Notre Dame Law Review feature lively

disagreement, including a nuanced pro-immunity piece by Professors Aaron Nielson and Christopher Walker, A Qualified Defense of Qualified Immunity, that addresses two principal antiimmunity arguments— that qualified immunity (1) is unlawful

as a matter of positive law and (2) fails to advance its purported

policy objectives. Aaron L. Nielson & Christopher J. Walker, A

Qualified Defense of Qualified Immunity, 93 NOTRE DAME L.

REV. 1853 (2018).

Cf. United States v. Ugalde, 861 F.2d 802, 810 (5th Cir. 1988)

(‘‘We must ensure that for every right there is a remedy.’’ (citing

Marbury, 5 U.S. at 163)).

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803). In Little v. Barreme, Chief Justice Marshall’s opinion declined to ‘‘excuse from damages’’ Captain George Little for unlawfully capturing a Danish vessel, though it was ‘‘seized with pure intention.’’

6 U.S. (2 Cranch) 170, 179 (1804).

41a

march and avoids sweeping reconsideration, it certainly merits a refined procedural approach that more

smartly—and fairly—serves its intended objectives.

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APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-50518

DOCTOR JOSEPH A. ZADEH; JANE DOE, Patient,

Plaintiffs-Appellants

MARI ROBINSON, in her individual capacity and in

her official capacity; SHARON PEASE, in her individual capacity; KARA KIRBY, in her individual capacity,

Defendants-Appellees

Appeals from the United States District Court

for the Western District of Texas

Before JOLLY, SOUTHWICK, and WILLET, Circuit

Judges.

LESLIE H. SOUTHWICK, Circuit Judge:

The Texas Medical Board executed an administrative subpoena on Dr. Joseph Zadeh’s medical office.

Thereafter, Dr. Zadeh and one of his patients sued

several Board members under 42 U.S.C. § 1983,

claiming that the Board’s actions violated the Fourth

Amendment. The district court partially granted the

defendants’ motion to dismiss and later granted their

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motion for summary judgment rejecting all remaining

claims. We AFFIRM.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Dr. Joseph Zadeh appeals the dismissal

of his Section 1983 claim against several members of

the Texas Medical Board who he claims violated his

constitutional rights through a warrantless search of

his office and medical records. Dr. Zadeh, an internal

medicine doctor, owns and operates a medical practice

in Euless, Texas. One of his patients, Jane Doe, is also

a plaintiff-appellant in this case.

Dr. Zadeh was the subject of an administrative

proceeding before the State Office of Administrative

Hearings (‘‘SOAH’’) for violations of the Board’s regulations. The Drug Enforcement Agency (‘‘DEA’’) also

was investigating him. Indeed, it appears the Board

first learned about allegations against Dr. Zadeh

when the DEA filed a complaint with the Board about

his prescribing practices in September 2013. The DEA

investigator emailed a representative of the Board,

stating, ‘‘I’m at a point in the criminal case that I need

to interview Dr. Zadeh and review his patient files.’’

The Board then initiated an investigation.

As part of this investigation, Defendants Sharon

Pease and Kara Kirby, who were investigators with

the Board, served an administrative subpoena on Dr.

Zadeh on October 22, 2013. The subpoena had the

electronic signature of Defendant Mari Robinson, who

was the Executive Director of the Board. The subpoena was for the immediate production of the medical records of sixteen of Dr. Zadeh’s patients. Two

DEA agents who were investigating related criminal

allegations accompanied Kirby and Pease.

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Dr. Zadeh was not at his office when the investigators arrived, so the investigators presented the subpoena to his medical assistant. According to the plaintiffs, the medical assistant requested time to seek advice from legal counsel, but the investigators told her

that failure to turn the records over immediately could

result in the loss of Dr. Zadeh’s medical license. She

eventually complied, taking the defendants into a conference room and delivering the requested records to

them. Although most of their time was spent inside

the public waiting area or the conference room, the investigators also approached the medical assistant to

ask for help while she was in exam rooms and later in

a storage room.

Dr. Zadeh and his patient, Jane Doe, sued Robinson, Pease, and Kirby in their individual capacities

and Robinson in her official capacity in the United

States District Court for the Western District of

Texas. They alleged the defendants’ actions violated

their Fourth Amendment, due process, and privacy

rights. The plaintiffs sought monetary damages under

42 U.S.C. § 1983 as well as declaratory relief. The defendants moved to dismiss the plaintiffs’ claims on

these grounds: (1) the plaintiffs lacked standing; (2)

the Younger abstention doctrine barred the requests

for declaratory relief; (3) the claim against Robinson

in her official capacity was barred by the doctrine of

sovereign immunity; (4) the doctrine of qualified immunity applied to the claims against the defendants

in their individual capacities.

In ruling on the motion to dismiss, the district

court held Dr. Zadeh had standing to pursue declaratory relief, but Jane Doe did not. Nonetheless, the district court concluded that ‘‘the Younger abstention

doctrine require[d] [it] to abstain from adjudicating

Plaintiff Zadeh’s claims for declaratory relief.’’ The

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district court also held that sovereign immunity

barred the plaintiffs’ claims for monetary damages

against Robinson in her official capacity. Finally, the

court concluded that the defendants were entitled to

qualified immunity for the privacy and due process

claims. The only part of the suit left, then, was Dr.

Zadeh’s claim that the defendants violated his clearly

established Fourth Amendment rights during the

search of his office.

The defendants moved for summary judgment on

search of Dr. Zadeh’s office, the district court found

that the record did not support this allegation. Instead, the district court determined that the ‘‘Defendants’ presence at Plaintiff’s office was solely to execute

the subpoena instanter.’’ The district court also held

‘‘no evidence Defendants Pease and Kirby inspected

Plaintiff’s office or searched his records.’’ The plaintiffs timely appealed.

DISCUSSION

The plaintiffs appeal both the order granting the

motion to dismiss in part and the order granting the

motion for summary judgment. Although we review

both de novo, a different legal standard applies to

each:

In the former, the central issue is whether, in

the light most favorable to the plaintiff, the

complaint states a valid claim for relief. In the

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latter, we go beyond the pleadings to determine whether there is no genuine issue as to

any material fact and that the movant is entitled to judgment as a matter of law.

St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425,

440 n.8 (5th Cir. 2000) (citations omitted).

We first address the plaintiffs’ challenge to the

capacity.

Grant of qualified immunity

‘‘The doctrine of qualified immunity protects government officials from civil damages liability when

their actions could reasonably have been believed to

be legal.’’ Morgan v. Swanson, 659 F.3d 359, 370–71

(5th Cir. 2011). Officials are entitled to qualified immunity ‘‘unless (1) they violated a federal statutory or

constitutional right, and (2) the unlawfulness of their

conduct was ‘clearly established at the time.’ ’’ District

of Columbia v. Wesby, 138 S.Ct. 577, 589 (2018) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)).

Using this framework, we analyze the plaintiffs’

arguments that clearly established law prohibited the

defendants’ execution of the subpoena instanter. The

plaintiffs offer two theories for why the defendants’

conduct was unconstitutional. First, they argue it was

a warrantless search that did not satisfy the administrative exception. Second, they argue it was a pretextual search and thus unconstitutional.

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a. Warrantless search

The plaintiffs argue the Board violated the Fourth

Amendment when it demanded immediate compliance with its administrative subpoena. We have been

faced with a challenge to a subpoena instanter executed by the Texas Medical Board before. See Cotropia

v. Chapman, 721 F. App’x 354 (5th Cir. 2018). In that

nonprecedential opinion, we held: ‘‘Absent consent,

exigent circumstances, or the like, in order for an administrative search to be constitutional, the subject of

the search must be afforded an opportunity to obtain

precompliance review before a neutral decisionmaker.’’ Id. at 358 (quoting City of Los Angeles v.

Patel, 135 S. Ct. 2243, 2452 (2015)).

In that case, the physician at the center of a Board

investigation pled sufficient facts to overcome qualified immunity. Id. at 361. The doctor alleged that a

Board member ‘‘violated the clearly established right

to an opportunity to obtain precompliance review of

we held that it was clear at the time that ‘‘prior to

compliance, Cotropia was entitled to an opportunity

to obtain review of the administrative subpoena before a neutral decisionmaker.’’ Id. at 358 (citing See v.

City of Seattle, 387 U.S. 541, 545 (1967); Donovan v.

Lone Steer, Inc., 464 U.S. 408, 415 (1984)). Similarly,

the demand to turn over Dr. Zadeh’s medical records

immediately did not provide an opportunity for precompliance review. We agree, then, that a requirement of precompliance review in many, if not most,

administrative searches had been clearly established

by Supreme Court precedent prior to the search here.

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The defendants acknowledge this law but maintain there was no constitutional violation because this

search fell into an exception to the general rule requiring precompliance review. We next examine that argument.

i. Closely regulated industry

No opportunity for precompliance review is

needed for administrative searches of industries that

‘‘have such a history of government oversight that no

reasonable expectation of privacy’’ exists for individuals engaging in that industry. Marshall v. Barlow’s,

Inc., 436 U.S. 307, 313 (1978). Even so, 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.’’ New York v. Burger, 482 U.S. 691, 702–03

(1987) (quoting Donovan v. Dewey, 452 U.S. 594, 603

(1981)).

Cotropia did not address whether the Board’s use

of administrative subpoenas satisfied the Burger criteria because the issue was not raised until oral argument. Cotropia, 721 F. App’x at 360 & n.6. As a result,

The argument was raised here. Thus, we must answer

whether the Burger exception permitted the Board’s

administrative subpoena and whether that law was

clearly established at the time of its execution.

To categorize industries under Burger, courts consider the history of warrantless searches in the industry, how extensive the regulatory scheme is, whether

49a

other states have similar schemes, and whether the

industry would pose a threat to the public welfare if

left unregulated. See Burger, 482 U.S. at 704; Patel,

135 S.Ct. at 2454. The defendants characterize the

relevant industry in two different ways. We evaluate

first whether the practice of medicine is a closely regulated industry and then whether the practice of prescribing controlled substances is closely regulated.

Acknowledging that the medical profession is subject to close oversight, the district court emphasized

the absence of a history of warrantless inspections to

conclude that the medical profession was not a closely

regulated industry. Important to its conclusion was

the confidential nature of the doctor-patient relationship: ‘‘It strains credibility to suggest that doctors and

their patients have no reasonable expectation of privacy.’’ On appeal, the defendants all but concede that

there is not a lengthy history of warrantless searches.

They instead emphasize the extensive regulatory

scheme governing the practice of medicine and the

risk that the industry could pose to the public welfare.

There is no doubt that the medical profession is

extensively regulated and has licensure requirements. Satisfying the Burger doctrine requires more.

The Supreme Court instructs ‘‘that the doctrine is essentially defined by ‘the pervasiveness and regularity

of the federal regulation’ and the effect of such regulation upon an owner’s expectation of privacy.’’

Burger, 482 U.S. at 701 (quoting Dewey, 452 U.S. at

605–06). Another key factor is ‘‘the duration of a particular regulatory scheme.’’ Id. (quoting Dewey, 452

U.S. at 606).

The Board cites several laws or regulations governing the behavior of doctors. Outside of citing

Texas’s licensure requirement for physicians, the regulations the Board cites do not apply to the entire

50a

medical profession. Instead, they target the practice

of prescribing controlled substances. As examples, the

Board states that doctors must register with the DEA

to prescribe controlled substances, TEX. HEALTH &

SAFETY CODE § 481.061; that prescriptions of controlled substances are monitored by several law enforcement agencies, id. §§ 481.067, 481.075, 481.076;

and that pain management clinics must register as

such, which allows the Board to inspect them from

time to time, TEX. OCC. CODE. §§ 168.101, 168.052; 22

TEX. ADMIN. CODE §§ 195.2, 195.3. The Board also refers us to laws and regulations that similarly regulate

anesthesia. These, though, do not amount to pervasiveness and regularity of regulation over the medical

industry as a whole as Burger requires. Instead, only

specific groups of doctors may have been put on notice

that the Board may perform some inspections.

We also do not see in the medical profession an

entrenched history of warrantless searches that is relevant but not dispositive. Burger, 482 U.S. at 701. For

example, when the Court held that the liquor industry

was closely regulated, it mentioned that English commissioners could inspect brewing houses on demand

in the 1660s, and that Massachusetts passed a similar

law in 1692. Colonnade Catering Corp. v. United

States, 397 U.S. 72, 75 (1970). It then referred to a

1791 federal law that has continued in various forms,

permitting federal officers to perform warrantless

searches of distilleries and imposing an excise tax on

distilled liquor. Id. Because the focus there was ‘‘the

liquor industry long subject to close supervision and

inspection,’’ the Court applied the rule from See to

conclude that the Fourth Amendment did not prohibit

the warrantless searches authorized by Congress. Id.

at 77. Here, there is no such history.

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In considering the reasonable expectation of privacy, we also consider the sensitive nature of medical

records. The Ninth Circuit explained that ‘‘the theory

behind the closely regulated industry exception is that

persons engaging in such industries, and persons present in those workplaces, have a diminished expectation of privacy.’’ Tucson Woman’s Clinic v. Eden, 379

F.3d 531, 550 (9th Cir. 2004). We agree with that

court’s observation that in medical contexts, the expectation of privacy likely is heightened. Id.

Admittedly, federal regulations do exempt the

Board from the privacy requirements of the Health Insurance

Portability

and

Accountability

Act

(‘‘HIPAA’’). 45 C.F.R. § 164.512. Further, the Board

cites Texas laws providing that where the Board does

obtain information, it is subject to confidentiality requirements. See TEX. OCC. CODE. §§ 159.002;

159.003(a)(5); 164.007(c). That HIPAA permits disclosure to the Board and that the regulations governing

the Board continue to protect that information from

disclosure does not mean that the Board is entitled to

access to that information through an administrative

search without allowing an opportunity for precompliance review.

We conclude, then, that the medical industry as a

whole is not a closely regulated industry for purposes

of Burger. Even if the medical profession at large cannot be said to fall within these Burger factors, it is possible that a subset, such as those who prescribe controlled substances, would do so. We examine that possibility.

We look again at the extent of the regulation of

the prescription of controlled substances. Although

the Board has not identified a Texas law or regulation

that would put all doctors on notice that they are subject to warrantless inspections, the Board did identify

52a

regulations that put doctors who operate pain management clinics on notice that their offices can be inspected. See TEX. OCC. CODE. §§ 168.101, 168.052; 22

TEX. ADMIN. CODE §§ 195.2, 195.3. Further, we have

held that ‘‘the pharmaceutical industry is a ‘pervasively regulated business’’’ because ‘‘[d]ealers in

drugs, like dealers in firearms, are required to be federally licensed.’’ United States v. Schiffman, 572 F.2d

1137, 1142 (5th Cir. 1978). ‘‘The dealer accepts the license knowing that [a statute] authorizes inspection

of his business.’’ Id. ‘‘Inspections are essential to the

federal regulatory scheme to ensure that drugs are

distributed only through ‘regular channels’ and not diverted to illegal uses.’’ Id. The same concerns exist

here.

There is a strong case that doctors who operate

pain management clinics are engaging in a closely

regulated industry. Dr. Zadeh, though, had not registered his clinic as a pain management clinic. How that

fact might affect the analysis we leave open. Rather

than considering whether the volume of his business

in that specialty would itself affect his expectations of

privacy and otherwise place him in the closely regulated category, we decline to resolve this question and

look at other considerations.

ii. Burger exception requirements

Even were we to accept the defendants’ argument

that doctors prescribing controlled substances are engaging in a closely regulated industry with less reasonable expectations of privacy, administrative

searches of such industries still must satisfy the

Burger criteria. There is no meaningful dispute in this

case that the State has a substantial interest in regulating the prescription of controlled substances and

that the inspection of a doctor’s records would aid the

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Government in regulating the industry. Our analysis

of whether the statutory scheme is a proper substitute

for a search warrant starts with identifying the search

authority claimed by the Board: its subpoena authority and its authority to inspect pain management clinics. The principal response from plaintiffs is that neither provides a constitutionally adequate substitute

for a warrant.

In order for a warrant substitute to be constitutionally adequate, ‘‘the regulatory statute must perform the two basic functions of a warrant: it must advise the owner of the commercial premises that the

search is being made pursuant to the law and has a

properly defined scope, and it must limit the discretion of the inspecting officers.’’ Burger, 482 U.S. at

703.

The relevant statute provides: ‘‘The board may issue a subpoena or a subpoena duces tecum to compel

the attendance of a witness and the production of

books, records, and documents.’’ TEX. OCC. CODE. §

153.007(a). The Board argues that the statute, when

considered with the following regulation, limits the

discretion of the officials. The regulation provides that

after a ‘‘request by the board or board representatives,

a licensee shall furnish to the board copies of medical

records or the original records within a reasonable

time period, as prescribed at the time of the request.’’

22 TEX. ADMIN. CODE § 179.4(a). The regulation defines ‘‘reasonable time’’ as ‘‘fourteen calendar days or

a shorter time if required by the urgency of the situation or the possibility that the records may be lost,

damaged, or destroyed.’’ Id.

The district court held that a search using the

Board’s subpoena authority did not satisfy the third

factor of the Burger test as it was ‘‘purely discretionary,’’ allowing the Board ‘‘to choose which doctors to

54a

subpoena and to do so at a frequency it determines.’’

To evaluate that holding, we consider the limits that

do exist: only licensees are subject to the subpoena;

only medical records must be produced; and it is the

Board or its representatives who will be asking for the

records. As the district court stated, though, there is

no identifiable limit on whose records can properly be

subpoenaed.

As to inspections of pain management clinics, the

Board argues that some limits to its authority are set

by the statute permitting it to inspect pain management clinics. Specifically, the statute allows it to examine ‘‘the documents of a physician practicing at the

clinic, as necessary to ensure compliance with this

chapter.’’ TEX. OCC. CODE. § 168.052(a). Providing

more specific guidance, the regulation in effect at the

time provided:

The board may inspect a pain management

clinic certified under this chapter, including

the documents of a physician practicing at the

clinic, to determine if the clinic is being operated in compliance with applicable laws and

rules.

22 TEX. ADMIN. CODE § 195.3(b).

The district court found this inspection authority,

like the subpoena authority, to be ‘‘purely discretionary.’’ The governing criteria for an inspection is that

the target be a pain management clinic, that the

Board performs the inspection, and that the purpose

for the search be to determine compliance with pain

management rules. We agree with the district court,

though, that these requirements suffered from the

same fatal Burger flaw as the subpoena authority:

they did not limit how the clinics inspected are chosen.

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In summary, there are insufficient limits on the

discretion of the Board to satisfy the Burger requirements, whether considering the medical profession in

general or as to pain management clinics. What is left

is the question of whether the law on these points was

clearly established and, regardless, whether the

search was invalid as pretextual.

iii. Requirement of clearly established law for

qualified immunity

We have concluded that there was a violation of

Dr. Zadeh’s constitutional rights. Even so, these defendants are entitled to summary judgment unless

the fact that their actions violated his constitutional

rights was ‘‘clearly established at the time’’ of the

search. Howards, 566 U.S. at 664.

Our analysis of the clarity of relevant law is objective, meaning it does not focus on the specific defendants’ knowledge. ‘‘The touchstone of this inquiry is

whether a reasonable person would have believed that

his conduct conformed to the constitutional standard

in light of the information available to him and the

clearly established law.’’ Goodson v. City of Corpus

Christi, 202 F.3d 730, 736 (5th Cir. 2000). ‘‘[E]ven law

enforcement officials who ‘reasonably but mistakenly

[commit a constitutional violation]’ are entitled to immunity.’’ Glenn v. City of Tyler, 242 F.3d 307, 312–13

(5th Cir. 2001) (quoting Goodson, 202 F.3d at 736).

For the law to be clearly established, there must be a

close congruence of the facts in the precedent and

those in the case before us. Wesby, 138 S.Ct. at 589–

90. ‘‘The precedent must be clear enough that every

reasonable official would interpret it to establish the

particular rule the plaintiffs seek to apply.’’ Id. at 590.

Defendants rely on one of our precedents that reviewed an administrative search of a dentist’s office

56a

by agents of the Texas State Board of Dental Examiners, accompanied by Department of Public Safety officials. Beck v. Tex. State Bd. of Dental Exam’rs, 204

F.3d 629, 632 (5th Cir. 2000). Dentist Beck was a target because of complaints filed against him for prescribing controlled substances. Id. We concluded that

the search did not violate the plaintiff’s clearly established rights. Id. at 638–39. We applied the Burger exception and determined there was a significant state

interest in regulating dentists’ use of controlled substances; the search was conducted pursuant to two

regulatory schemes; and there was an adequate substitute for a warrant where the statute permitted the

official to conduct inspections during ‘‘reasonable

times’’ after ‘‘stating his purpose’’ and presenting his

credentials to the owner. Id. at 638–39. In light of

Beck, the Board argues that reasonable investigators

could have believed the Burger exception permitted

the execution of the subpoena as they too were investigating prescriptions of controlled substances within

the medical industry.

The plaintiffs urge that Beck is ‘‘patently distinguishable.’’ Any possible distinction, though, must be

viewed through the requirement that the law, including a distinction, must be ‘‘sufficiently clear that every

reasonable official would understand that what he is

doing is unlawful’’ at that time. Wesby, 138 S.Ct. at

589 (quotation marks omitted). That means ‘‘existing

law must have placed the constitutionality of the officer’s conduct ‘beyond debate.’’’ Id. Perhaps most relevant, the ‘‘legal principle [must] clearly prohibit the

officer’s conduct in the particular circumstances before him. The rule’s contours must be so well defined

that it is ‘clear to a reasonable officer that his conduct

was unlawful in the situation he confronted.’’’ Id. at

590 (emphasis added).

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Thus, it was not for these Medical Board investigators to try to resolve whether what was permitted

for the Dental Board would not be permitted under

the different statutes and regulations applicable to

them. Although Beck does not control the constitutionality of the Board’s actions in this case, it does weigh

in favor of the defendants’ receiving qualified immunity. We have decided cases where a statute did not

clearly limit the official’s discretion in selecting who

would be subject to an administrative search. In one,

we held that the statute provided a constitutionally

adequate substitute for a warrant where the statute

provided:

The licensing agency shall make or cause to be

made inspections relative to compliance with

the laws and regulations governing the licensure of child care facilities. Such inspections

shall be made at least once a year but additional inspections may be made as often as

deemed necessary by the licensing agency.

See Ellis v. Miss. Dep’t of Health, 344 F. App’x 43 (5th

Cir. 2009) (citing MISS. CODE. ANN. § 43-20-15).

Though that opinion is not precedential, we agree

with its reasoning.

We also upheld an administrative search where,

despite limits on the conduct of an officer after a traffic stop, there were not clear limits on an officer’s discretion as to whom to stop. See United States v. Fort,

248 F.3d 475, 482 (5th Cir. 2001). Because we have

not so far required there to be a clear limit on determining whom officials select for an administrative

search, the defendants reasonably could have believed

that the administrative scheme here provided a constitutionally adequate substitute for a warrant.

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The plaintiffs also argue the defendants did not

follow the statutory scheme and therefore caselaw in

which the legal requirements for the search were followed is inapplicable. Regardless of the legal argument, the factual basis for it was rejected by the district court. It found only meaningless deviations from

search protocols. That finding is not clearly erroneous.

Thus, the unlawfulness of the defendants’ conduct

was not clearly established at the time of the search.

b. Pretextual searches

The plaintiffs also argue that the search was a

pretext for uncovering evidence of criminal wrongdoing, not a valid administrative search. According to

the plaintiffs, the DEA brought Dr. Zadeh’s possible

misdeeds before the Medical Board. A DEA agent then

was present during the search. To finish the story,

though, the Medical Board proceeded against Dr. Zadeh. Before there was a full hearing on the merits, the

Board entered an agreed order. In the order, the panel

found that Dr. Zadeh was operating a pain management clinic without registering it. There is nothing in

this record indicating whether the DEA’s investigation resulted in a criminal prosecution or any other

action.

“Even under a valid inspection regime, the administrative search cannot be pretextual.’’ Club Retro,

LLC v. Hilton, 568 F.3d 181, 197 (5th Cir. 2009). It is

incorrect, though, to use the label ‘‘pretext’’ simply because of an overlap between an administrative search

and a criminal search. The Burger Court remarked

that ‘‘a State can address a major social problem both

by way of an administrative scheme and through penal sanctions.’’ Burger, 482 U.S. at 712. To determine

whether the search there was constitutional, the

Court looked to whether the administrative scheme

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really ‘‘authorize[d] searches undertaken solely to uncover evidence of criminality.’’ Id.

Similarly, the Supreme Court dismissed a defendant’s argument ‘‘that because the Customs officers

were accompanied by a Louisiana State Policeman,

and were following an informant’s tip that a vessel in

the ship channel was thought to be carrying marijuana,’’ the Government could not rely on the administrative search exception. United States v. VillamonteMarquez, 462 U.S. 579, 584 n.3 (1983).

We have applied these principles to a search of an

automobile salvage yard. United States v. Thomas,

973 F.2d 1152, 1155–56 (5th Cir. 1992). There, an investigator with the Texas Department of Public

Safety tracked a vehicle to an auto salvage business

and there conducted an inventory inspection under

Texas statute. Id. at 1155. Even though the inventory

inspection was prompted by suspicion of criminal conduct, the investigator still was entitled to use information gained during the inspection to obtain a

search warrant for the salvageyard owner’s residence.

Id. ‘‘Administrative searches conducted pursuant to

valid statutory schemes do not violate the Constitution simply because of the existence of a specific suspicion of wrongdoing.’’ Id. at 1155–56.

Beck has similar analysis. As here, the administrative search in Beck was initiated after a tip. Dental

Board member Michael Pitcock ‘‘stated in his deposition that information was forwarded to him alleging

that Beck had ordered unusually high volumes of controlled substances.’’ Beck, 204 F.3d at 632. The Dental

Board suspected Beck of violating criminal statutes,

and a law enforcement officer accompanied the board

agent in its inspection of the dental office. Id. The dentist argued that the search was conducted to uncover

60a

criminal wrongdoing and thus was not conducted pursuant to a valid administrative scheme. Id. at 638. We

held that the suspicions of criminal wrongdoing ‘‘did

not render the administrative search unreasonable,’’

citing Villamonte-Marquez and Thomas. Id. at 639.

As to Dr. Zadeh, the DEA was closely involved

with the Board’s investigation. Under Burger, though,

we look to whether the search that occurred was under a scheme serving an administrative purpose. The

Board’s purpose is demonstrated by the subsequent

administrative action against Dr. Zadeh. The search

was not performed ‘‘solely to uncover evidence of criminality.’’ See Burger, 482 U.S. at 698. Thus, the search

was not pretextual.

II.

Declaratory judgment

Dr. Zadeh argues that the district court erred in

abstaining from deciding the declaratory judgment

claims following Younger. Dr. Zadeh asked the district

court to make declaratory judgments on several laws

implicating the Board. The district court did not resolve any.

‘‘In Younger, the Supreme Court ‘instructed federal courts that the principles of equity, comity, and

federalism in certain circumstances counsel abstention in deference to ongoing state proceedings.’’’

Wightman v. Tex. Supreme Court, 84 F.3d 188, 189

(5th Cir. 1996) (citations omitted). Following Supreme

Court precedent, this court follows ‘‘a three-part test

describing the circumstances under which abstention

[is] advised: (1) the dispute should involve an ‘ongoing

state judicial proceeding;’ (2) the state must have an

important interest in regulating the subject matter of

the claim; and (3) there should be an ‘adequate opportunity in the state proceedings to raise constitutional

challenges.’ ’’ Id. (citation omitted).

61a

The district court applied the reasoning of one of

our unpublished cases, Perez v. Tex. Med. Bd., 556 F.

App’x 341 (5th Cir. 2014). There, we held that Younger

barred the plaintiffs’ suit seeking to enjoin the Board

from pursuing any causes of action against them. Id.

at 342–43. We agree with that panel’s determination

that Texas had a strong interest in regulating the

practice of medicine, and the Perez plaintiffs could

raise their constitutional challenges in the state court

because the law provided for judicial review of the administrative decision. Id. at 342. Following Perez, the

district court concluded that Dr. Zadeh had an ongoing administrative action pending; the state had a significant interest in regulating medicine in Texas; and

Dr. Zadeh could appeal his administrative action in

state court and raise constitutional challenges there.

Accordingly, the district court abstained from adjudicating the requests for declaratory relief.

Dr. Zadeh claims Younger is inapplicable because

the Board argued that the lawsuit did not implicate

the underlying investigation. Dr. Zadeh also argues

that there will be no adequate opportunity in the state

proceedings to raise any constitutional challenges. He

claims that ‘‘[d]octors do not have the power to file an

appeal concerning the findings of fact and conclusions

of law contained in a final decision (but the TMB

does).’’

Dr. Zadeh was subject to an ongoing state administrative proceeding, and that qualifies as a judicial

proceeding for this analysis. See Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423,

432 (1982). As we stated in Perez, Texas has a strong

interest in regulating the practice of medicine. Finally, despite plaintiffs’ contrary view, Texas law does

permit judicial review by either party of an adminis-

62a

trative decision.1 ‘‘A person who has exhausted all administrative remedies available within a state agency

and who is aggrieved by a final decision in a contested

case is entitled to judicial review under this chapter.’’

TEX. GOV’T CODE. § 2001.171.

The district court did not abuse its discretion in

abstaining from deciding the declaratory judgment

claims.

III.

Director Robinson’s potential supervisory

capacity liability

The plaintiffs argue that Robinson should be held

Regulatory Servs., 537 F.3d 404, 435 (5th Cir. 2008).

A failure to train claim requires that the plaintiff

show (1) the supervisor’s failure to train; (2) the failure to train resulted in the violation of the plaintiff’s

rights; and (3) the failure to train shows deliberate indifference. Id. For deliberate indifference, ‘‘there must

be ‘actual or constructive notice’ ‘that a particular

omission in their training program causes . . . employees to violate citizens’ constitutional rights’ and the

actor nevertheless ‘choose[s] to retain that program.’’’

The plaintiffs note that the administrative law judge in the

SOAH proceeding decline to address the constitutional questions. Even so, all the law requires is that the issue hav been

preserved for the appeal to the state court. See Ohio Civil Rights

Comm’n v. Dayton Christian Schs., Inc., 477 U.S. 619, 629, 106

S. Ct. 2718, 91 L.Ed.2d. 512 (1986).

63a

Porter v. Epps, 659 F.3d 440, 447 (5th Cir. 2011) (citation omitted).

The plaintiffs argue that Robinson improperly

delegated her subpoena authority to subordinates

whose training she knew nothing about. Therefore,

the subpoena did not comply with Texas law because

the Executive Director of the Board is not permitted

to delegate her subpoena authority. The district court

did not determine whether the delegation was permissible. ‘‘In light of the express regulatory authority for

the delegation, the precedent set by her predecessors,

and the sheer volume of subpoenas issued every year

by the TMB,’’ Robinson’s actions did not amount to deliberate indifference.

In Texas administrative law, a rule of statutory

construction presumes that where a statute grants

specific authority to a designated public officer, the

legislature intended only that officer to have that authority. Lipsey v. Tex. Dep’t of Health, 727 S.W.2d 61,

64 (Tex. App.— Austin 1987, writ ref’d n.r.e.). Still,

Lipsey recognized ‘‘the authority to ‘subdelegate’ or

transfer the assigned function may be implied and the

presumption defeated owing to the nature of the assigned function, the makeup of the agency involved,

the duties assigned to it, the statutory framework,

and perhaps other matters.’’ Id. at 65.

In this case, a statute permits the Board to subpoena records. TEX. OCC. CODE. § 153.007. Section

153.007(b) permits the Board to delegate subpoena

authority ‘‘to the executive director or the secretarytreasurer of the board.’’ By administrative rule, the

executive director may ‘‘delegate any responsibility or

authority to an employee of the board.’’ 22 TEX. ADMIN. CODE § 161.7(c).

64a

In resolving this issue, we start with the fact the

rule articulated in Lipsey is only a presumption. Even

assuming that the plaintiffs could show that Robinson

failed to train her subordinates and that failure resulted in a constitutional violation, Robinson was not

deliberately indifferent in delegating her subpoena

authority in light of the fact she was acting pursuant

to the regulations in the same way as her predecessors

and the numerous subpoenas issued each year. To the

extent the plaintiffs seek to impose Section 1983 liability of Kirby and Pease through the subdelegation

argument, that law also was not clearly established.

AFFIRMED.

65a

DON R. WILLETT, Circuit Judge, concurring dubitante:

The court is right about Dr. Zadeh’s rights: They

were violated.

But owing to a legal deus ex machina—the ‘‘clearly

established law’’ prong of qualified- immunity analysis—the violation eludes vindication. I write separately to register my disquiet over the kudzu-like

creep of the modern immunity regime. Doctrinal reform is arduous, often-Sisyphean work. And the entrenched, judgemade doctrine of qualified immunity

seems Kevlar-coated, making even tweak-level tinkering doubtful. But immunity ought not be immune

from thoughtful reappraisal.1

***

To some observers, qualified immunity smacks of

unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably

unreasonable— as long as they were the first to behave badly. Merely proving a constitutional deprivation doesn’t cut it; plaintiffs must cite functionally

identical precedent that places the legal question ‘‘beyond debate’’ to ‘‘every’’ reasonable officer.2 Put differently, it’s immaterial that someone acts unconstitutionally if no prior case held such misconduct unlawful.

“[Four] of the Justices currently on the Court have authored

or joined opinions expressing sympathy’’ with various doctrinal,

procedural, and pragmatic critiques of qualified immunity. Joanna C. Schwartz, The Case Against Qualified Immunity, 93

NOTRE DAME L. REV. 1797, 1800 (2018).

Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011); see also, e.g.,

Kisela v. Hughes, 138 S.Ct. 1148, 1153 (2018) (per curiam); Mullenix v. Luna, 136 S.Ct. 305, 308 (2015) (per curiam).

66a

Today’s case applies prevailing immunity precedent (as best we can divine it): Dr. Zadeh loses because

no prior decision held such a search unconstitutional.

But courts of appeals are divided—intractably—over

precisely what degree of factual similarity must exist.

How indistinguishable must existing precedent be?

On the one hand, the Supreme Court reassures plaintiffs that its caselaw ‘‘does not require a case directly

on point for a right to be clearly established.’’3 On the

other hand, the Court admonishes that ‘‘clearly established law must be ‘particularized’ to the facts of the

case.’’4 But like facts in like cases is unlikely. And this

leaves the ‘‘clearly established’’ standard neither clear

nor established among our Nation’s lower courts.

Two other factors perpetuate perplexity over

‘‘clearly established law.’’ First, many courts grant immunity without first determining whether the challenged behavior violates the Constitution.5 They avoid

scrutinizing the alleged offense by skipping to the simpler second prong: no factually analogous precedent.

Forgoing a knotty constitutional inquiry makes for

easier sledding. But the inexorable result is ‘‘constitutional stagnation’’6—fewer courts establishing law at

Kisela, 138 S.Ct. at 1152 (quoting White v. Pauly, 137 S.Ct.

548, 551 (2017)).

Pauly, 137 S.Ct. at 552 (quoting Anderson, 483 U.S. at 640).

See Pearson v. Callahan, 555 U.S. 223, 227 (2009).

Aaron L. Nielson & Christopher J. Walker, The New Qualified

Immunity, 89 S. CAL. L. REV. 1, 12 (2015) (‘‘Because a great deal

of constitutional litigation occurs in cases subject to qualified immunity, many rights potentially might never be clearly established should a court skip ahead to the question whether the law

clearly established that the officer’s conduct was unlawful in the

circumstances of the case. The danger, in short, is one of constitutional stagnation.’’) (cleaned up).

67a

all, much less clearly doing so. Second, constitutional

litigation increasingly involves cutting-edge technologies. If courts leapfrog the underlying constitutional

merits in cases raising novel issues like digital privacy, then constitutional clarity—matter-of-fact guidance about what the Constitution requires—remains

exasperatingly elusive. Result: blurred constitutional

contours as technological innovation outpaces legal

adaptation.

Section 1983 meets Catch-22. Plaintiffs must produce precedent even as fewer courts are producing

precedent. Important constitutional questions go unanswered precisely because those questions are yet

unanswered. Courts then rely on that judicial silence

to conclude there’s no equivalent case on the books. No

precedent = no clearly established law = no liability.

An Escherian Stairwell. Heads defendants win, tails

plaintiffs lose.

Count me with Chief Justice Marshall: ‘‘The government of the United States has been emphatically

termed a government of laws, and not of men. It will

certainly cease to deserve this high appellation, if the

laws furnish no remedy for the violation of a vested

legal right.’’7 The current ‘‘yes harm, no foul’’ imbalance leaves victims violated but not vindicated;

wrongs are not righted, wrongdoers are not reproached, and those wronged are not redressed. It is

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803). In Little v. Barreme, Chief Justice Marshall’s opinion declined to “excuse from damages” Captain George Little for unlawfully capturing a Danish vessel, though it was ‘‘seized with pure intention.’’

6 U.S. (2 Cranch) 170, 179 (1804).

68a

indeed curious how qualified immunity excuses constitutional violations by limiting the statute Congress

passed to redress constitutional violations.8

***

Qualified immunity aims to balance competing

policy goals.9 And I concede it enjoys special favor at

the Supreme Court, which seems untroubled by any

one-sidedness. Even so, I add my voice to a growing,

cross-ideological chorus of jurists10 and scholars11 urg-

Cf. United States v. Ugalde, 861 F.2d 802, 810 (5th Cir. 1988)

(“We must ensure that for every right there is a remedy.” (citing

Marbury, 5 U.S. at 163)).

The Supreme Court has flagged “two important interests—the

need to hold public officials accountable when they exercise

power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties

reasonably.” Pearson, 555 U.S. at 231.

See, e.g., Kisela, 138 S.Ct. at 1162 (Sotomayor, J., dissenting)

(fearing the Supreme Court’s “one-sided approach to qualified

immunity transforms the doctrine into an absolute shield for law

enforcement officers, gutting the deterrent effect of the Fourth

Amendment” and signaling “that palpably unreasonable conduct

will go unpunished”); Ziglar v. Abbasi, 137 S.Ct. 1843, 1872

(2017) (Thomas, J., concurring in part and concurring in the

judgment) (“In an appropriate case, we should reconsider our

qualified immunity jurisprudence.”); Thompson v. Clark, No. 14CV-7349, 2018 WL 3128975, at *11 (E.D.N.Y. June 26, 2018)

(Weinstein, J.) (“The Supreme Court’s recent emphasis on shielding public officials and federal and local law enforcement means

many individuals who suffer a constitutional deprivation will

have no redress . . . .”).

The most recent issue of the Notre Dame Law Review gathers

several scholarly essays that carefully examine qualified immunity and discuss potential refinements in light of mounting legal

69a

ing recalibration of contemporary immunity jurisprudence and its “real world implementation.”12

and empirical criticism. Symposium, The Future of Qualified Immunity, 93 NOTRE DAME L. REV. 1793 (2018); see also, e.g., William Baude, Is Qualified Immunity Unlawful?, 106 CALIF. L.

REV. 45, 88 (2018) (claiming the doctrine ‘‘lacks legal justification, and the Court’s justifications are unpersuasive’’); Joanna C.

Schwartz, How Qualified Immunity Fails, 127 YALE L.J. 2, 70

(2017) (concluding that ‘‘the Court’s efforts to advance its policy

goals through qualified immunity doctrine has been an exercise

in futility’’); John C. Jeffries, Jr., What’s Wrong with Qualified

Immunity?, 62 FLA. L. REV. 851, 869 (2010) (‘‘Today, the law of

qualified immunity is out of balance . . . . The Supreme Court

needs to intervene, not only to reconcile the divergent approaches

of the Circuits but also, and more fundamentally, to rethink

qualified immunity and get constitutional tort law back on

track.’’).

South Dakota v. Wayfair, Inc., 138 S.Ct. 2080, 2097 (2018).

70a

APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

JOSEPH A. ZADEH and JANE

DOE,

1:15-CV-598 RP

Plaintiffs,

MARI ROBINSON, in her individual capacity and in her official capacity SHARON PEASE,

in her individual capacity, and

KARA KIRBY, in her individual

capacity.

Defendants.

ORDER

Before the Court are Defendants’ Motion to Dismiss and Request for Rule 7 Reply, filed October 9,

2015 (Dkt. 11), Plaintiffs’ Response, filed October 23

(Dkt. 23), and Defendants’ Reply, filed October 30,

2015 (Dkt. 20), as well as supplemental briefing filed

at the Court’s request. Defendants move the Court to

dismiss this action pursuant to Federal Rule of Civil

Procedure 12(b)(1), for lack of subject matter jurisdiction, and pursuant to Federal Rule of Civil Procedure

12(b)(6), for failure to state a claim. The Court concludes that Defendants’ motion should be granted in

part and denied in part.

71a

I. Background

Plaintiff Joseph Zadeh is a doctor who specializes

in internal medicine. (Pls.’ Am. Compl. ¶¶ 44-46, Dkt.

7.)1 He owns and operates a medical office in Euless,

Texas. (Id.) Plaintiff Jane Doe is one of his patients.

(Id. ¶ 4.) Dr. Zadeh is currently the subject of an administrative action by the Texas Medical Board

(“TMB”) before the State Office of Administrative

Hearings (“SOAH”) for alleged violations of the Texas

Medical Practices Act and the Texas Medical Board

Rules related to his prescription of controlled substances to patients under his care. (Defs.’ Mot. Dismiss 2, Dkt. 11.) Dr. Zadeh is also the subject of an

investigation by the Drug Enforcement Agency

(“DEA”) for alleged violations of the Controlled Substances Act. (Id.)

According to Plaintiffs’ complaint, Defendant

Mari Robinson, executive director of the TMB, signed

an administrative subpoena for medical records located at Dr. Zadeh’s office. (Pls.’ Am. Compl. ¶ 10, Dkt.

7.) Among the records requested were those of Plaintiff Jane Doe. (Id. at ¶ 4.) The subpoena was expressly

designated as a subpoena “instanter” and specifically

demanded immediate compliance. (Id. at ¶ 23.) The

After Defendants filed their motion to dismiss, Plaintiffs filed

their Second Amended Complaint (Dkt. 31). Plaintiffs’ sole purpose in amending the Complaint was “to add a request that this

Honorable Court declare Texas Occupations Code § 168.052 unconstitutional as applied.” (Second Am. Compl. ¶ 2, Dkt. 31.) Otherwise, the two complaints are identical. Accordingly, the Second

Amended Complaint does not render the motion to dismiss moot.

The Court continues to cite the First Amended Complaint, but

this order applies to the Second Amended Complaint, which technically is Plaintiffs’ live pleading.

72a

day after the subpoena was signed, Defendants Sharon Pease and Kara Kirby, both investigators with the

TMB, went to Dr. Zadeh’s office with the subpoena.

(Id. at ¶¶ 11-12.) Peace and Kirby were accompanied

by two investigators from the DEA. (Id. ¶ 13.) At the

time, Dr. Zadeh was out of the office, so the investigators presented the subpoena to Dr. Zadeh’s medical

assistant. (Id. ¶¶ 19-22.) Plaintiffs contend that Dr.

Zadeh’s assistant asked for an opportunity to confer

with Dr. Zadeh’s attorney but was told that if she did

not turn over the records immediately, Dr. Zadeh

would lose his medical license. (Id. ¶ 24.) Accordingly,

Dr. Zadeh’s assistant provided the investigators with

the records requested in the subpoena. (Id. ¶ 27.)

Plaintiffs claim that Dr. Zadeh’s assistant did not give

anyone consent to search the premises, but Defendants Pease and Kirby, along with the two DEA investigators, nonetheless executed a thorough search of

the office. (Id. ¶¶ 24-26.) According to Plaintiffs, the

investigators searched, reviewed, and copied Dr. Zadeh’s medical records for several hours. (Id. ¶ 28.) Dr.

Zadeh’s lawyer eventually arrived and instructed the

investigators to leave the premises. (Id. ¶ 29.)

Plaintiff Zadeh and his patient, Plaintiff Jane

Doe, now bring suit against Defendants Robinson,

Pease, and Kirby in their individual capacities, as well

as Defendant Robinson in her official capacity. Plaintiffs allege that Defendants’ use of an administrative

subpoena to demand immediate production of medical

records without providing an opportunity for judicial

review violated the Fourth Amendment. Moreover,

Plaintiffs allege that Defendants’ conduct violated

their privacy and due process rights. Plaintiffs bring

suit pursuant to 42 U.S.C. § 1983 and seek monetary

damages. Plaintiffs also seek declaratory relief stating

73a

that certain Texas statutes and regulations are unconstitutional insofar that they allow the TMB to issue administrative subpoenas in violation of the

Fourth Amendment.

II. Discussion

Defendants make four arguments for dismissal:

First, Plaintiffs do not have standing to raise the

claim for declaratory relief. Second, this Court should

abstain from hearing Plaintiffs’ claims under the

Younger abstention doctrine. Third, Defendant Robinson, in her official capacity, has sovereign immunity.

Fourth, Defendants Robinson, Pease, and Kirby, in

their individual capacities, have qualified immunity.

The Court addresses each argument in turn.

A. Standing

Defendants contend that Plaintiffs lack the necessary standing to pursue declaratory relief. Generally,

standing requires plaintiffs to demonstrate (1) that

they have suffered an injury in fact, (2) that the injury

is fairly traceable to the defendant’s conduct, and (3)

that the injury can be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 56061 (1992). To pursue a declaratory judgment, a plaintiff must allege not only a past injury, but also a likelihood of future injury. See Armstrong v. Turner Industries, Inc., 141 F.3d 554, 563 (5th Cir. 1998).

“[S]tanding to seek declaratory relief respecting a

challenged statute [is] not established merely by the

fact that the plaintiff had on a single previous occasion

been harmed by the statute's application, absent a realistic likelihood that the statute would in the future

be applied to the detriment of the particular plaintiff

in the action.” Brown v. Edwards, 721 F.2d 1442, 1447

(5th Cir. 1984) (citing City of Los Angeles v. Lyons, 461

U.S. 95, 103 (1983)).

74a

Accordingly, the question for the Court is whether

the allegations in the amended complaint support a

“realistic likelihood” that the Texas Medical Board

and its employees will again seek to serve an administrative subpoena instanter on Plaintiffs. With regard to Plaintiff Joseph Zadeh, the Court finds such a

likelihood. Dr. Zadeh is the subject of an ongoing administrative action brought by the TMB. (Defs.’ Mot.

Dismiss 2, Dkt. 11.) Moreover, since filing this action,

the TMB has announced that it is investigating multiple new complaints against Dr. Zadeh. (Pls.’ Opposed Mot. Conduct Exp. Disc. 2-3, Dkt. 10.) The

Court finds that Plaintiffs’ allegations support a finding that it is reasonably likely that the TMB will again

choose to subpoena Dr. Zadeh’s records. Accordingly,

there is a realistic likelihood that Dr. Zadeh will be

subject to future injury and, therefore, Dr. Zadeh has

standing to pursue declaratory relief.

However, Plaintiffs have not alleged sufficient

facts to allow the Court to infer that Plaintiff Jane Doe

is realistically likely to face future injury. According

to the amended complaint, her medical records have

already been subpoenaed and are in the possession of

the TMB and the DEA. (Pls.’ Am. Compl. ¶ 4, Dkt. 7.)

Nothing in the amended complaint supports an inference that the TMB is using its subpoena power to request additional documents or records regarding

Plaintiff Jane Doe, either from Dr. Zadeh or otherwise. Accordingly, the Court finds that there is not a

realistic likelihood that Plaintiff Jane Doe will be subject to future injury, and therefore, Plaintiff Jane Doe

does not have standing to pursue declaratory relief.

B. Younger Abstention Doctrine

Defendants next contend that Plaintiffs’ claims

are barred by the Younger abstention doctrine. In

Younger v. Harris, the Supreme Court required that

75a

federal courts abstain from enjoining a pending state

criminal proceeding. 401 U.S. 37 (1971). The Court

subsequently applied Younger “to non-criminal judicial proceedings when important state interests are

involved.” Middlesex County Ethics Comm. v. Garden

State Bar Ass’n, 457 423, 432 (1983). Dr. Zadeh is currently the subject of an administrative action by the

TMB before the State Office of Administrative Hearings for alleged violations of the Texas Medical Practices Act and the Texas Medical Board Rules related

to his prescription of controlled substances to patients

under his care in part, and involving, in part, evidence

acquired through the search at issue in this case. See

In Re Complaint Against Joseph Hassan Zadeh, D.O.,

S.O.A.H. Dk. No. 503-15-2821.DO (Mar. 12, 2015). Accordingly, Defendants contend that Younger requires

the Court to abstain from adjudicating Plaintiffs’

claims.

Younger does not apply to claims for monetary

damages. Lewis v. Beddingfield, 20 F.3d 123, 125 (5th

Cir. 1994) (“Younger abstention doctrine is not applicable to a claim for damages.”); Allen v. Louisiana

State Bd. of Dentistry, 835 F.2d 100, 104 (5th Cir.

1988) (“[R]equests for monetary damages do not fall

within the purview of the Younger abstention doctrine.”); Bishop v. State Bar of Texas, 736 F.2d 292,

295 (5th Cir. 1984) (“The district court also erred in

dismissing Bishop's claim for damages, a species of relief wholly unaffected by Younger.”) Accordingly, it

would be improper for the Court to abstain from hearing Plaintiffs’ claims for damages.

However, Plaintiff Zadeh’s claims for declaratory

relief are potentially subject to Younger abstention.

Three criteria are used to determine whether abstention is proper: “(1) the dispute should involve an ‘ongoing state judicial proceeding;’ (2) the state must

76a

have an important interest in regulating the subject

matter of the claim; and (3) there should be an ‘adequate opportunity in the state proceedings to raise

constitutional challenges.’” Wightman v. Texas Supreme Court, 84 F.3d 188, 189 (5th Cir. 1996) (quoting

Middlesex County Ethics Committee, 457 U.S. at 432).

In Perez v. Texas Medical Board., the Fifth Circuit

applied these criteria to a case where a physician assistant was subject to a disciplinary proceeding by the

Texas Physician Assistant Board. 556 F. App'x 341

(5th Cir. 2014). The circuit court held that Younger

abstention barred the physician assistant from suing

to enjoin the Texas Medical Board. On the first prong,

the court held that an administrative disciplinary

hearing before SOAH is an “ongoing state judicial proceeding” under Younger. Id. at 342. On the second

prong, the court held that “the State of Texas has a

strong interest in protecting the public through the

regulation and oversight of those practicing medicine

in the state.” Id. On the third prong, the court held

that the plaintiffs would have an adequate opportunity to raise their constitutional issues in state

court because Texas law provides for judicial review

of administrative decisions. Id. at 342-43.

The relevant facts in this case are similar to those

in Perez. First, Dr. Zadeh is subject to an ongoing administrative disciplinary proceeding before SOAH.

Such a proceeding counts as an “ongoing state judicial

proceeding.” Id. at 342. Second, the state has an important interest in regulating the practice of medicine.

Id. Finally, Plaintiff Zadeh has a right to appeal the

outcome of the pending state administrative proceeding in court. See Tex. Occ. Code. § 164.009. If Plaintiff

Zadeh appeals an adverse ruling to state court he has

the right to raise federal constitutional issues. See

77a

Tex. Gov’t Code § 200.174. Thus, the ongoing administrative proceeding against Plaintiff Zadeh provides

him an adequate opportunity to raise the constitutional issues alleged in this case. See Perez, 556 F. App'x at 342-43. The Court concludes that the Younger

abstention doctrine requires this Court to abstain

from adjudicating Plaintiff Zadeh’s claims for declaratory relief.

C. Sovereign Immunity

Defendant Mari Robinson, in her official capacity,

contends that she is protected by sovereign immunity.

“The Eleventh Amendment bars a suit against state

officials when ‘the state is the real, substantial party

in interest.’” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 (1984). However, “[t]he Court

has recognized an important exception to this general

rule: a suit challenging the constitutionality of a state

official's action is not one against the State.” Id. Moreover, “when a plaintiff sues a state official alleging a

violation of federal law, the federal court may award

[relief] that governs the official's future conduct, but

not one that awards retroactive monetary relief.” Id.

at 102-103; see also Edelman v. Jordan, 415 U.S. 651

(1974) (quoting Ford Motor Co. v. Dep’t of Treasury,

323 U.S. 459, 464 (1945)) (“[W]hen the action is in essence one for the recovery of money from the state, the

state is the real, substantial party in interest and is

entitled to invoke its sovereign immunity from suit

even though individual officials are nominal defendants.”)

Here, Plaintiffs seeks both damages and declaratory relief. The Court concludes that the Eleventh

Amendment bars Plaintiffs from seeking monetary

damages from Defendant Robinson, in her official capacity. However, although sovereign immunity would

not bar Plaintiffs from suing Defendant Robinson, in

78a

her official capacity, for non-monetary relief, the

Court has concluded above that it should abstain from

hearing such claims.

D. Qualified Immunity

Defendants Robinson, Pease, and Kirby, in their

individual capacities, contend that they are protected

by qualified immunity. “The doctrine of qualified immunity protects government officials from civil damages liability when their actions could reasonably

have been believed to be legal.” Morgan v. Swanson,

659 F.3d 359, 370 (5th Cir. 2011). The burden rests

with the plaintiff to rebut the defendant’s qualified

immunity defense. Hathaway v. Bazany, 507 F.3d

312, 319 (5th Cir. 2007).

There are two steps to determining whether a defendant is protected by qualified immunity. See Saucier v. Katz, 533 U.S. 194 (2001) (endorsing the traditional two-step approach to assessing a qualified immunity defense). First, the court asks whether the official “violated a statutory or constitutional right.”

Morgan, 659 F.3d at 371 (quoting Ashcroft v. al-Kidd,

131 S. Ct. 2074, 2083 (2011)). Second, the court asks

whether “the right was ‘clearly established’ at the

time of the challenged conduct.” Id. (quoting al-Kidd,

131 S. Ct. at 2083). A court may, at its discretion, skip

the first step and begin its analysis by asking whether

the right in question was clearly established. See

Pearson v. Callahan, 555 U.S. 223, 236 (2009) (making Saucier’s two-step sequence discretionary). However, beginning the analysis by asking whether a right

was violated “is often beneficial.” Id.

The Court now turns to Plaintiffs’ Fourth Amendment claims and begins with the first step of the qualified immunity analysis by asking whether Plaintiff

79a

has alleged the violation of a Fourth Amendment

right.

1. Plaintiffs’ Fourth Amendment Claims

(Counts 1-4, 7 & 8)

a. Qualified Immunity Step One

The first step of the qualified immunity analysis

is to determine whether the plaintiff has alleged a violation of a constitutional right. Here, Plaintiffs contend that Defendants violated the Fourth Amendment

by signing and executing an administrative subpoena

instanter. Plaintiffs allege that the subpoena signed

by Defendant Robinson demanded immediate compliance and that Defendants Pease and Kirby refused

Plaintiff Zadeh’s assistant an opportunity to consult a

lawyer before complying with the subpoena. (Pl.’s Am.

Compl. ¶¶ 23-24, Dkt. 7.) Moreover, Plaintiffs allege

that Defendants Pease and Kirby searched Dr. Zadeh’s office without consent. (Id. ¶¶ 24-26.) In short,

Plaintiffs argue that Defendants violated the Fourth

Amendment by treating an administrative subpoena

as if it were a search warrant. (See id. ¶ 81.)

The Fourth Amendment protects “[t]he right of

the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and

seizures,” and provides that “no Warrants shall issue,

but upon probable cause.” U.S. CONST. amend. IV. The

Supreme Court has repeatedly held that “searches

conducted outside the judicial process, without prior

approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a

few specifically established and well-delineated exceptions.” Arizona v. Gant, 556 U.S. 332, 338 (2009)

(quoting Katz v. United States, 389 U.S. 347, 357

(1967)). One such exception is for administrative

80a

searches. See Camara v. Municipal Court of City &

County of San Francisco, 387 U.S. 523, 534 (1967).

Administrative searches are not immune from

Fourth Amendment scrutiny. As a general rule, when

an agency intends to execute a search pursuant to the

administrative search exception, it must provide an

opportunity for precompliance judicial review. City of

Los Angeles, Calif. v. Patel, 135 S. Ct. 2443, 2452

(2015) (citing Donovan v. Lone Steer, Inc., 464 U.S.

408 (1984); See v. Seattle, 387 U.S. 541 (1967)). A more

relaxed standard is applied to administrative

searches of “closely regulated” businesses. Patel, 135

S. Ct. at 2454. Under New York v. Burger, an agency

can search a closely regulated business without

providing an opportunity for precompliance judicial

review, but only if the search is necessary to further a

regulatory scheme that is informed by a substantial

government interest. 482 U.S. 691, 702-03 (1987).

Moreover, the regulatory scheme must provide “a constitutionally adequate substitute for a warrant.” Id. at

703 (quoting Donovan v. Dewey, 452 U.S. 594, 600

(1981).

Accordingly, the first step in assessing the constitutionality of an administrative search is to determine

whether the subject of the search is a closely regulated

business. A business is considered closely regulated if

it is subject to regulation so pervasive that its owners

have a “reduced expectation of privacy.” Id. at 701.

The Supreme Court has identified only four industries

that fall within the scope of this exception. Id. at 691

(automobile junkyards); Donovan, 452 U.S. at 594

(mining); United States v. Biswell, 406 U.S. 311 (1972)

(firearms dealing); Colonnade Catering Corp. v.

United States, 397 U.S. 72 (1970) (liquor sales). These

industries all “have such a history of government

oversight that no reasonable expectation of privacy . . .

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could exist for a proprietor over the stock of such an

enterprise. . . . [W]hen an entrepreneur embarks upon

such a business, he has voluntarily chosen to subject

himself to a full arsenal of governmental regulation.”

Marshall v. Barlow's, Inc., 436 U.S. 307, 313 (1978)

(internal citations omitted).

In City of Los Angeles v. Patel, the Supreme Court

held that hotels are not closely regulated businesses.

135 S. Ct. at 2454-57. In doing so, the Court made

clear “that the closely regulated industry . . . is the

exception” and cautioned against allowing “what has

always been a narrow exception to swallow the rule.”

Id. at 2455 (quoting Barlow’s, 436 U.S. at 313). The

Supreme Court allowed that “[h]istory is relevant

when determining whether an industry is closely regulated.” Id. But, the Court differentiated between industries with a history of regulation, generally, and

industries with a history of warrantless inspections,

specifically. Id. (holding that, for example, “laws obligating inns to provide suitable lodging to all paying

guests are not the same as laws subjecting inns to

warrantless searches”). The appropriate inquiry,

then, is to ask whether historically “government authorities could have viewed [the business’s] documents on demand without [the business’s] consent.”

Id. at 2456. A closely regulated industry is one with

such a consistent history of warrantless inspections

that an industry participant has “no reasonable expectation of privacy.” Id. at 2454 (quoting Barlow’s, Inc.

436 U.S. at 313).

The medical profession is not such an industry.

While the practice of medicine is admittedly subject to

significant oversight, there is no history of warrantless inspections of doctor’s offices. In fact, the prevailing tradition is quite to the contrary. There is a long

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history of recognizing the need for privacy in the medical profession out of respect for doctor-patient confidentiality. It strains credibility to suggest that doctors

and their patients have no reasonable expectation of

privacy. See, e.g., Sorrell v. IMS Health Inc., 131 S. Ct.

2653, 2668 (2011) (stipulating that “for many reasons,

physicians have an interest in keeping their prescription decisions confidential”); Ferguson v. City of

Charleston, 532 U.S. 67, 78 (2001) (acknowledging

that a medical patient has a “reasonable expectation

of privacy” and can assume that medical records “will

not be shared with nonmedical personnel without her

consent”); In re Vioxx Products Liab. Litig., No. MDL

1657, 2005 WL 2036797, at *3-4 (E.D. La. July 22,

2005) (tracing the history of doctor-patient confidentiality to fifth century B.C. and arguing that the erosion

of privacy protections in the medical field could reduce

the quality of medical care). Thus, the Court concludes

that the practice of medicine is not a closely regulated

industry. See Margaret S. v. Edwards, 488 F. Supp.

181, 216-17 (E.D. La. 1980) (holding that “the health

industry . . . is not a closely regulated industry” given

the “history of respect towards the recognized need for

privacy in the doctor-patient relationship”).

Given that the medical profession is not a closely

regulated industry for Fourth Amendment purposes,

the general rule for administrative searches applies:

“in order for an administrative search to be constitutional, the subject of the search must be afforded an

opportunity to obtain precompliance review before a

neutral decisionmaker.” Patel, 135 S. Ct. at 2452.

Plaintiffs allege that the TMB served Dr. Zadeh’s office with an administrative subpoena which demanded immediate compliance. Moreover, Plaintiff

Zadeh asserts that when the subpoena was served on

his office, his assistant was refused an opportunity to

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seek counsel before complying. Finally, Plaintiffs allege that Defendants, in addition to demanding production of certain medical records, also physically

searched Dr. Zadeh’s office. Accordingly, the Court

concludes that the allegations, taken as true and

viewed in a light favorable to Plaintiffs, suggest a

Fourth Amendment violation.

Even if the medical profession were to be considered closely regulated, the Court finds that Plaintiffs’

allegations, if proven, would still establish a Fourth

Amendment violation. A regulatory agency does not

have free license to execute warrantless searches on

closely regulated businesses. In New York v. Burger,

the Supreme Court set out a three part test for determining whether the warrantless search of a closely

regulated business is consistent with the Fourth

Amendment. 482 U.S. at 702-03. First, “there must be

a ‘substantial’ government interest that informs the

regulatory scheme pursuant to which the inspection is

made.” Id. at 702 (quoting Donovan, 452 U.S. at 602).

Second, “the warrantless inspections must be ‘necessary to further [the] regulatory scheme.’” Id. at 702-03

(quoting Donovan, 452 U.S. at 600). Third, the regulatory scheme must provide “a constitutionally adequate substitute for warrant.” Id. at 703 (quoting Donovan, 452 U.S. at 603). In order to meet the third

prong of the Burger test, the regulatory scheme must

provide for searches to be executed with sufficient

“certainty and regularity” that the business owner

“cannot help but be aware that his property will be

subject to periodic inspections.” Id. at 703 (quoting Donovan, 452 U.S. at 600, 603). Put differently, “the regulatory statute must perform the two basic functions

of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant

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to the law and has a properly defined scope, and it

must limit the discretion of the inspecting officers.” Id.

Defendants claim that the search of Dr. Zadeh’s

office was conducted pursuant to two distinct sources

of statutory authority. First, Defendants point to the

TMB’s authority to issue subpoenas, created by Tex.

Occ. Code § 153.007 and implemented at 22 Tex. Admin. Code § 179.4(a) (collectively, “the TMB’s subpoena authority”). Second, Defendants point to the

TMB’s authority to inspect pain management clinics,

created by Texas Occupations Code § 168.00 et seq.

and implemented at 22 Texas Administrative Code §

195.3 (collectively, “the TMB’s inspection authority”).

The Court assumes that the TMB’s subpoena authority and the TMB’s inspection authority survive

the first two prongs of the Burger test. It is difficult to

dispute that the state has a substantial interest in

regulating and controlling the provision of prescription drugs and that doing so may require the use of

subpoenas and inspections. The Court focuses its inquiry on the much narrower question of whether

TMB’s subpoena authority and TMB’s inspection authority provide an adequate substitute for a warrant

as required by the third prong of the Burger test.

i. TMB’s Subpoena Authority

The TMB is afforded the authority by statute to

“issue a subpoena or a subpoena duces tecum to compel the attendance of a witness and the production of

books, records, and documents.” Tex. Occ. Code §

153.007(a). The TMB has interpreted this statute,

through implementing regulation, to require the following:

Upon the request by the board or board representatives, a licensee shall furnish to the

board copies of medical records or the original

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records within a reasonable time period, as

prescribed at the time of the request. ‘Reasonable time,’ as used in this section, shall mean

fourteen calendar days or a shorter time if required by the urgency of the situation or the

possibility that the records may be lost, damaged, or destroyed.

22 Tex. Admin. Code § 179.4(a).2 The Court concludes

that insofar that the alleged search of Dr. Zadeh’s office and records was conducted pursuant to the TMB’s

subpoena authority, the search was inconsistent with

the third prong of the Burger test.

First, the search of Dr. Zadeh’s office and records,

as alleged by Plaintiffs, exceeded the TMB’s subpoena

authority. Plaintiffs assert that Defendants Pease and

Kirby physically searched Dr. Zadeh’s office, despite

Dr. Zadeh’s assistant refusing to consent to the

search. (Pls.’ Am. Compl. ¶¶ 24-26, Dkt. 7.) The TMB’s

subpoena authority is limited to compelling the production of books, records, and documents or compelling the attendance of a witness. Tex. Occ. Code §

Plaintiffs repeatedly suggest that this regulation is an improper reading of the TMB’s statutory authority. Plaintiffs contend that the statute gives the TMB the limited power to issue

subpoenas, which by definition, allow for an opportunity to seek

judicial review prior to compliance. Accordingly, Plaintiffs argue

that the TMB has through the creative interpretation of its own

statute conferred upon itself the authority to conduct warrantless searches. However, the question of whether the TMB has

appropriately interpreted its statutory subpoena authority is not

relevant to the question of whether the overall regulatory scheme

survives Fourth Amendment scrutiny under Burger. Accordingly, the Court reads Tex. Occ. Code § 153.007(c) and 22 Tex.

Admin. Code § 179.4(a) together and inquires as to whether the

combined regulatory scheme serves as an adequate substitute for

a warrant.

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153.007(a). The TMB is not authorized to physically

search or inspect a doctor’s office.3 Id. Accordingly,

Plaintiffs’ allegations support a finding that the execution of the subpoena and subsequent search of Dr.

Zadeh’s office was done in contravention of, not pursuant to, the relevant regulatory scheme.

The third prong of the Burger test aspires to ensure that closely regulated businesses are put on notice that they will be subject to regular searches and

that their owners are able to assess whether those

searches are conducted in accordance with the law. A

regulatory scheme can only put a business owner on

notice of searches that fall within its parameters.

Given that the alleged search of Dr. Zadeh’s exceeded

the TMB’s subpoena authority it, therefore, must also

fail the third prong of the Burger test.

Plaintiffs would go further. They contend that the TMB is not

authorized to issue subpoenas instanter, arguing that 22 Tex.

Admin. Code § 179.4(a) requires the provision of a “reasonable

time period” to comply with a subpoena’s terms. The regulation

states that by default a “reasonable time period” means fourteen

calendar days, but the TMB may provide less time to comply “if

required by the urgency of the situation or the possibility that

the records may be lost, damaged, or destroyed.” From Plaintiffs’

perspective, demanding immediate compliance is inconsistent

with the regulation’s requirement that the subpoenaed party be

provided a reasonable amount of time to comply. However, the

Court finds that the issuance of a subpoena instanter which demands immediate compliance is consistent with the language in

the regulation allowing the TMB to provide less than fourteen

days to comply if there is a possibility that records will be lost,

damaged, or destroyed. Accordingly, the Court’s finding that the

alleged search exceeded the TMB’s authority is limited to the allegation that Defendants searched and inspected Dr. Zadeh’s office.

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Second, the TMB’s subpoena authority is purely

discretionary. The TMB has the authority to issue administrative subpoenas to compel the production of

medical records. Tex. Occ. Code § 153.007(c). The

TMB is allowed to choose which doctors to subpoena

and to do so at a frequency it determines. Accordingly,

TMB’s subpoena authority cannot meet the third

prong of the Burger test because it “fails sufficiently

to constrain . . . discretion as to which [businesses] to

search and under what circumstances.” Patel, 135 S.

Ct. at 2456. The inspection authority does not provide

clinics “certainty” that they will be subject to inspection with “regularity.” Burger, 482 U.S. at 703 (quoting Donovan, 452 U.S. at 600, 603). Therefore, the

Court concludes that the alleged search of Dr. Zadeh’s

office, insofar that it was conducted pursuant to the

TMB’s subpoena authority, is inconsistent with the

third prong of Burger and, thus, violated the Fourth

Amendment.

ii. TMB’s Inspection Authority

The TMB is afforded the authority by statute to

“inspect a pain management clinic, including the documents of a physician practicing at the clinic, as necessary to ensure compliance with this chapter.” Tex.

Occ. Code § 168.052. The implementing regulation to

the statute provides in part the following:

(b) Unless it would jeopardize an ongoing investigation, the board shall provide at least

five business days’ notice before conducting an

on-site inspection under this section.

make an on-site inspection of a physician’s office.

(d) The board shall conduct inspections of pain

management clinics if the board suspects that

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the ownership or physician supervision is not

in compliance with board rules.

22 Tex. Admin. Code § 195.3. The Court concludes

that insofar that the alleged search of Dr. Zadeh’s office was conducted pursuant to the TMB’s inspection

authority, the search was inconsistent with the third

prong of the Burger test.

First, the search, as alleged, exceeded the TMB’s

inspection authority. The parties dispute whether Dr.

Zadeh’s medical practice meets the definition of a pain

management clinic. The statute defines a pain management clinic as a “facility for which a majority of patients are issued on a monthly basis a prescription for

opioids, benzodiazepines, barbiturates, or carisoprodol, but not including suboxone.” Tex. Occ. Code

§ 168.001. The statute expressly exempts from the

definition any “clinic owned or operated by a physician

who treats patients within the physician’s area of specialty and who personally uses other forms of treatment, including surgery, with the issuance of a prescription for the majority of the patients.” Id. §

168.002(7).

Plaintiffs allege that Texas Occupations Code §

168 does not apply to Dr. Zadeh’s medical clinic because the clinic is exempt from the statutory definition of a pain management clinic. (Second Am. Compl.

¶ 49.) They further claim that no governmental

agency had reason to believe that Dr. Zadeh’s medical

office was a pain management clinic. (Id. ¶ 86.) Finally, Plaintiffs contend that the TMB had previously

provided Dr. Zadeh written instructions acknowledging that his office was not a pain management clinic

and instructing him not to register as a pain management clinic. (Id. ¶¶ 50, 85.) Moreover, Plaintiffs pled

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the specific facts necessary to indicate that Dr. Zadeh’s clinic was exempt under § 168.002(7), specifically that (a) Dr. Zadeh owns and operates the facility

in question, (b) the facility is not registered as a pain

management clinic, (c) Dr. Zadeh treats patients

within his area of specialty at the facility, and (d) he

personally uses other forms of treatment with the issuance of a prescription for a majority of the patients

treated at the facility. (Id. ¶ 48.) Accordingly, Plaintiffs’ allegations suggest that Dr. Zadeh’s medical office does not meet the statutory definition of a pain

management clinic.

Defendants argue that the TMB’s inspection authority allows inspections of “actual or suspected pain

management clinics.” (Def.’s Supp. Briefing 2, Dkt.

24.) However, the legal authorities cited by Defendants do not support their contention that the TMB has

the authority to inspect any facility it suspects is a

pain management clinic. See Tex. Occ. Code § 168.052

(authorizing inspections of pain management clinics,

not suspected pain management clinics); 22 Tex. Admin. Code § 195.3 (making no mention of suspected

pain management clinics). Yet, even if Defendants’ interpretation of the TMB’s inspection authority is correct, there is nonetheless a dispute between the parties as to whether the TMB suspected Dr. Zadeh’s

medical office met the definition of a pain management clinic. As discussed above, Plaintiffs pled that

the TMB had previously provided Dr. Zadeh written

instructions acknowledging that his clinic is exempt

from the definition of pain management clinic. (Second Am. Compl. ¶¶ 50, 85.) Accordingly, Plaintiffs assert in their complaint that “[n]o state governmental

agency had justifiable reason to believe Dr. Zadeh’s

medical facility was not exempt from pain management clinic registration based on Texas Occupations

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Code § 168.002(7).” (Id. ¶ 86.) Moreover, Plaintiffs

contend that the contents of the subpoena were inconsistent with an investigation of whether Dr. Zadeh

was illegally operating a pain management clinic.

Plaintiffs allege that the subpoena at issue requested

the records for sixteen patients (id. ¶ 23(b)) and that

in September 2013 Dr. Zadeh averaged approximately

ten patient visits per day (id. ¶ 44). However, to be

considered a pain management clinic a majority of the

patients on a monthly basis must be prescribed one of

four types of painkillers. Tex. Occ. Code § 168.001.

Plaintiffs allegations, therefore, suggest that the subpoena was unlikely intended to prove the facility’s status as a pain management clinic given that the records purportedly requested were not sufficient to

prove that a majority of the facility’s patients were being prescribed one of the four relevant painkillers. Accordingly, Plaintiffs’ allegations suggest that the TMB

did not suspect that Dr. Zadeh’s medical office constituted a pain management clinic.

The Court concludes that the search of Dr. Zadeh’s

office and records, as alleged by Plaintiffs, exceeded

the TMB’s inspection authority. As discussed above, a

statute cannot put a business on notice of a search

that falls outside its parameters. Therefore, Plaintiffs’

allegations support a finding that the TMB’s inspection authority did not serve as an adequate substitute

for a warrant for the search of Dr. Zadeh’s office, and

consequently, the search was inconsistent with the

third prong of the Burger test.

Second, the TMB’s inspection authority, like its

subpoena authority, is purely discretionary. The statute provides that the TMB has the discretion to inspect pain management clinics “as necessary to ensure compliance.” Tex. Occ. Code § 168.052. The implementing regulations provide that the TMB should

91a

inspect a facility if it “suspects that the ownership or

physician supervision is not in compliance with board

rules.” 22 Tex. Admin. Code § 195.3(d). However, the

regulation does not require the TMB to inspect pain

management clinics. Id. § 195.3(c). The TMB is allowed to choose which clinics to inspect and to do so at

a frequency it determines. Accordingly, TMB’s inspection authority cannot meet the third prong of the

Burger test because it “fails sufficiently to constrain . . . discretion as to which [businesses] to search

and under what circumstances.” Patel, 135 S. Ct. 2443

at 2456. The inspection authority does provide clinics

“certainty” that they will be subject to inspections

with “regularity.” Burger, 482 U.S. at 703 (quoting Donovan, 452 U.S. at 600, 603). Therefore, the Court concludes that the alleged search of Dr. Zadeh’s office, insofar that it was conducted pursuant to the TMB’s

subpoena authority, is inconsistent with the third

prong of Burger and, thus, violated the Fourth

Amendment.

In sum, the Courts finds that the alleged use of an

administrative subpoena instanter to search Dr. Zadeh’s office violated Plaintiff’s Fourth Amendment

rights. If, as the Court concludes, the medical profession is not a closely regulated industry, then the alleged search violated Plaintiff’s right to an opportunity for judicial review prior to complying with an

administrative subpoena. Alternatively, if the medical

profession is a closely regulated industry, then the alleged search violated Plaintiffs’ right to be put on notice that Dr. Zadeh’s office and records would be subject to regular inspections. Either way, the allegations, taken as true and viewed in a light favorable to

Plaintiffs, suggest the violation of a constitutional

right.

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b. Qualified Immunity Step Two

The second step of the qualified immunity analysis is to determine whether the constitutional right in

question was clearly established at the time of its alleged violation. For a right to be clearly established

there must be a “controlling authority or a robust consensus of persuasive authority . . . that defines the

contours of the right in question with a high degree of

particularity.” Morgan, 659 F.3d at 371 (quoting alKidd, 131 S. Ct. at 2084). The law must “so clearly and

unambiguously” prohibit the conduct in question that

“every reasonable official would understand what he

is doing violates the law.” Id. (quoting al-Kidd, 131 S.

Ct. at 2083). Put differently, “existing precedent must

have placed the statutory or constitutional question

beyond debate.” Id. (quoting al-Kidd, 131 S. Ct. at

2083). “The sine qua non of the clearly-established inquiry is ‘fair warning.’” Id. at 372 (quoting Hope v.

Pelzer, 536 U.S. 730, 741 (2002)). “[I]f judges . . . disagree on a constitutional question, it is unfair to subject

[government officials] to money damages for picking

the losing side of the controversy.” Id. (quoting Wilson

v. Layne, 526 U.S. 603, 618 (1999)).

Before proceeding, the Court notes that Plaintiffs

rely heavily throughout their briefing on the Supreme

Court’s ruling in City of Los Angeles v. Patel, 135 S.

Ct. 2443 (2015). However, the Supreme Court did not

rule in Patel until more than a year after the alleged

search at issue in this case. Accordingly, while Patel

guides the Court’s decision as to whether a constitutional right was violated, it plays no role in the Court’s

inquiry as to whether the right was clearly established at the time of its violation.

The rule that an agency must provide an opportunity for a party to challenge an administrative sub-

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poena prior to compliance is longstanding and unambiguous. See Donovan v. Lone Steer, Inc., 464 U.S. at

415 (“[A]lthough our cases make it clear that [an

agency] may issue an administrative subpoena without a warrant, they nonetheless provide protection for

a subpoenaed employer by allowing him to question

the reasonableness of the subpoena, before suffering

any penalties for refusing to comply with it, by raising

objections in an action in district court.”); City of Seattle, 387 U.S. at 544-45 (“It is now settled that, when

an administrative agency subpoenas . . . books or records, the Fourth Amendment requires that the subpoena . . . may not be made and enforced by the inspector in the field, and the subpoenaed party may obtain judicial review of the reasonableness of the demand prior to suffering penalties for refusing to comply.”). However, this rule does not apply to closely regulated industries. See Burger, 482 U.S. at 718-19.

Thus, if it was unclear whether the medical profession

was a closely regulated industry, then Defendants

could have reasonably believed they had no obligation

to provide an opportunity for precompliance review.

Accordingly, the Court begins by asking whether at

the time of the search of Dr. Zadeh’s office, it was

clearly established that the medical profession is a

closely regulated industry was clearly established.

The Texas Attorney General has clearly stated

that the medical profession is not a closely regulated

industry. Tex. Att’y Gen. Op. No. JC-274. In the opinion issued in 2000, the Attorney General advised that

the Texas State Board of Podiatric Medical Examiners

lacked the authority to conduct warrantless inspections of its licensees, because the medical profession is

not a closely regulated industry under the Fourth

Amendment. Id. The opinion reasoned that the medical profession “has no long history of warrantless state

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inspection.” Id. at 3 (internal quotation marks omitted) (quoting Margaret S. v. Edwards, 488 F. Supp.

181, 216 (E.D. La. 1980)). Moreover, it is an industry

“with a history of respect towards the recognized need

for privacy in the doctor-patient relationship.” Id.

(quoting Margaret S., 488 F. Supp. at 216). The opinion “found no evidence of pervasive regulation of the

practice of . . . medicine . . . nor any Texas case that

would furnish any basis for concluding that it should

be so characterized.” Id.

On the other hand, the Fifth Circuit has treated

the dental profession as a closely regulated industry.

In Beck v. Texas State Bd. of Dental Examiners, the

circuit court confronted a set of facts similar those before the Court now. 204 F.3d 629 (5th Cir. 2000). In

that case a dentist sued an investigator for the Texas

State Board of Dental Examiners, alleging that the investigator had conducted an illegal search when he inspected the dentist’s office and reviewed his records.

The Fifth Circuit held that the investigator was protected by qualified immunity because the warrantless

inspection did not violate a clearly established constitutional right. Id. at 638-39. The court did not explicitly address the question of whether the dental profession is a closely regulated industry. However, the

Court implicitly treated the dental profession as a

closely regulated industry by evaluating the allegations under Burger and concluding that the dentist

had no right to precompliance judicial review. See id.

at 639.

In light of the Fifth Circuit’s holding in Beck, the

Court concludes that Defendants could reasonably

have believed that the medical profession is considered a closely regulated industry and, thus, fairly concluded that the precompliance review requirement

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does not apply to the search of a medical office. Accordingly, the Court stipulates that, for the purpose of

the qualified immunity analysis, the medical profession is a closely regulated industry and turns to the

question of whether Plaintiffs have alleged the violation of a clearly established right under the more accommodating standard for these businesses.

In Burger, the Supreme Court set out the test for

determining whether the administrative search of a

closely regulated business survives Fourth Amendment scrutiny. 482 U.S. at 702-03. The third and final

prong of that test requires that the search of a closely

regulated business be executed pursuant to a statutory scheme that provides “certainty” that the business will be inspected with “regularity.” Id. at 703

(quoting Donovan v. Dewey, 452 U.S. at 603.) Burger

clearly establishes that the owner of a closely regulated business has a right to be put on notice that his

or her business “will be subject to periodic inspections

undertaken for specific purposes.” Id. (quoting Donovan v. Dewey, 452 U.S. at 600).

While it may be d

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