Opposition Brief — Joseph A. Zadeh, et al., Petitioners v. Mari Robinson, et al.

No. 19-676

In the Supreme Court of the United States

J OSEPH A. Z ADEH & J ANE D OE , PETITIONERS

v.

M ARI R OBINSON , S HARON P EASE & K ARA K IRBY

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF IN OPPOSITION

KEN PAXTON

Attorney General of Texas

JEFFREY C. MATEER

First Assistant

Attorney General

KYLE D. HAWKINS

Solicitor General

Counsel of Record

BILL DAVIS

Deputy Solicitor General

ABIGAIL M. FRISCH

Assistant Attorney General

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

Kyle.Hawkins@oag.texas.gov

(512) 936-1700

Q UE S TIO N S P R E S E N TE D

In an effort to combat the nation’s opioid crisis, and

to protect patients from overzealous prescribers, Texas

officials investigated and copied records from the office

of Joseph Zadeh, a physician. Zadeh thereafter signed an

agreed order restricting his prescription authority on

the grounds that he was unlawfully operating a painmanagement clinic.

Zadeh sued, arguing that the state officials’ conduct

violated his Fourth Amendment rights. The Fifth Circuit

agreed. Nevertheless, the court declined to impose liability because no clearly established law placed the state officials’ actions beyond debate. After all, Fourth Amendment doctrine is particularly murky when it comes to administrative searches of closely regulated businesses like

Zadeh’s.

Zadeh does not allege that the Fifth Circuit misapplied settled law. Instead, he asks this Court to undertake a wholesale reexamination of the doctrine of qualified immunity. Therefore, the questions presented are:

1. Whether the Court should reinterpret section 1983

and overturn thousands of cases across many decades

holding that state officials are immune from suit and liability except where settled law clearly proscribes their

conduct.

2. If so, whether the respondents acted “under color

of” any Texas “statute, ordinance, regulation, custom, or

usage.” 42 U.S.C. § 1983.

(I)

R E L ATE D PR O C E E D I N G S

Zadeh v. Robinson, No. 1:15-CV-598-RP, U.S. District Court for the Western District of Texas. Judgment entered Feb. 17, 2017.

Zadeh v. Robinson, No. 17-50518, U.S. Court of Appeals for the Fifth Circuit. Judgment entered July 2,

2019.

(II)

TA B LE O F C O N TE N T S

Page

Question presented .............................................................. I

Related proceedings ...........................................................II

Table of authorities ............................................................IV

Introduction .......................................................................... 1

Statement .............................................................................. 2

Reasons for denying the petition........................................ 6

I. The lower courts consistently and correctly apply

this Court’s precedents............................................... 8

The Court has provided clear instructions

on qualified immunity ....................................... 8

The claimed division of authority is

illusory .............................................................. 10

II. Qualified immunity is consistent with section

1983, and nothing justifies the overhaul

Petitioners seek ......................................................... 20

Qualified immunity correctly interprets

section 1983 ...................................................... 20

Stare decisis compels adherence to the

Court’s qualified-immunity jurisprudence ... 25

III. The judgment below is correct ................................ 28

A. Respondents did not violate the Fourth

Amendment ...................................................... 28

B. No clearly established law placed

Respondents’ conduct “beyond debate”........ 34

Conclusion ........................................................................... 36

(III)

IV

TA B LE O F A U TH O R I TIE S

Cases:

Page

A.M. v. Holmes,

830 F.3d 1123 (10th Cir. 2016) .............................. 16, 19

Anderson v. Creighton,

483 U.S. 635 (1987) ....................................................... 21

Ashcroft v. al–Kidd,

563 U.S. 731 (2011) ............................................. 9, 12, 21

Baynes v. Cleland,

799 F.3d 600 (6th Cir. 2015) ........................................ 17

Beck v. Tex. State Bd. of Dental Examiners,

204 F.3d 629 (5th Cir. 2000) ............................. 12-13, 34

Blue v. Koren,

72 F.3d 1075 (2d Cir. 1995) .................................... 19, 30

Bond v. United States,

572 U.S. 844 (2014) ....................................................... 24

Brosseau v. Haugen,

543 U.S. 194 (2004) ....................................................... 17

Camara v. Mun. Ct. of City & Cty. of S.F.,

387 U.S. 523 (1967) ....................................................... 33

City of Escondido v. Emmons,

139 S. Ct. 500 (2019) ....................................................... 9

City of Los Angeles v. Patel,

135 S. Ct. 2443 (2015) ............................................. 15, 33

City of San Francisco v. Sheehan,

135 S. Ct. 1765 (2015) ............................................... 9, 21

Cleveland v. Bell,

938 F.3d 672 (5th Cir. 2019) ........................................ 18

V

Cases—Continued:

Page

Club Retro, L.L.C. v. Hilton,

568 F.3d 181, 200 (5th Cir. 2009)........................... 13, 34

Colbruno v. Kessler,

928 F.3d 1155 (10th Cir. 2019) .................................... 17

Cole v. Carson,

935 F.3d 444 (5th Cir. 2019) ................ 10, 17, 20, 26, 27

Colonnade Catering Corp. v. United States,

397 U.S. 72 (1970) ......................................................... 34

Comcast Corp. v. Nat’l Ass’n of African

Am.-Owned Media,

No. 18-1171, 2020 WL 1325816 (U.S.

Mar. 23, 2020) ............................................................... 21

Costantini v. Med. Bd. of Cal.,

34 F.3d 1071 (9th Cir. 1994) ........................................ 19

Crawford-El v. Britton,

523 U.S. 574 (1998) ....................................................... 27

District of Columbia v. Wesby,

138 S. Ct. 577 (2018) ...................... 8-9, 10, 11, 12, 16, 17

Donovan v. Lone Steer, Inc.,

464 U.S. 408 (1984) ....................................................... 15

Ellis v. Miss. Dep’t of Health,

344 F. App’x 43 (5th Cir. 2009) ............................. 14, 34

Feminist Majority Found. v. Hurley,

911 F.3d 674 (4th Cir. 2018) ........................................ 17

Ferguson v. City of Charleston,

532 U.S. 67 (2001) ......................................................... 30

Fielder v. Bosshard,

590 F.2d 105 (5th Cir. 1979) ........................................ 18

VI

Cases—Continued:

Page

Filarsky v. Delia,

566 U.S. 377 (2012) ................................ 21, 23, 24, 26-27

Flood v. Kuhn,

407 U.S. 258 (1972) ....................................................... 26

Glasscox v. Argo, City of,

903 F.3d 1207 (11th Cir. 2018) .................................... 17

Gray v. Cummings,

917 F.3d 1 (1st Cir. 2019) ............................................. 17

Gregory v. Ashcroft,

501 U.S. 452 (1991) ....................................................... 24

Halliburton Co. v. Erica P. John Fund, Inc.,

573 U.S. 258 (2014) ....................................................... 25

Harlow v. Fitzgerald,

457 U.S. 800 (1982) ............................................. 8, 24, 26

Hedgpeth v. Rahim,

893 F.3d 802 (D.C. Cir. 2018) ...................................... 17

Hope v. Pelzer,

536 U.S. 730 (2002) ................................................. 15, 18

Ioane v. Hodges,

939 F.3d 945 (9th Cir. 2018) .................................. 15, 19

Z.J. ex rel. Jones v. Kan. City Bd. of

Police Comm’rs,

931 F.3d 672 (8th Cir. 2019) .................................. 16, 19

Kane v. Barger,

902 F.3d 185 (3d Cir. 2018) .............................. 16, 17, 19

Kelsay v. Ernst,

933 F.3d 975 (8th Cir. 2019) ........................................ 17

VII

Cases—Continued:

Page

Kimble v. Marvel Entm’t, LLC,

135 S. Ct. 2401 (2015) ........................... 22, 25, 26, 27, 28

Kisela v. Hughes,

138 S. Ct. 1148 (2018) ................................................... 10

Leiser v. Kloth,

933 F.3d 696 (7th Cir. 2019) ............................ 16, 17, 19

Marks v. Hudson,

933 F.3d 481 (5th Cir. 2019) ........................................ 18

Marshall v. Barlow’s, Inc.,

436 U.S. 307 (1978) ....................................................... 11

McCormick v. Stalder,

105 F.3d 1059 (5th Cir. 1997) ...................................... 18

Monell v. Dep’t of Soc. Servs. of City of N.Y.,

436 U.S. 658 (1978) ....................................................... 22

Monroe v. Pape,

365 U.S. 167 (1961) ................................................. 22, 24

Morrow v. Meachum,

917 F.3d 870 (5th Cir. 2019) .................................... 9, 16

Mountain Pure, LLC v. Roberts,

814 F.3d 928 (8th Cir. 2016) ............................. 15-16, 19

Mullenix v. Luna,

136 S. Ct. 305 (2015) ....................................................... 9

New York v. Burger,

482 U.S. 691 (1987) .............................................. passim

Pearson v. Callahan,

555 U.S. 223 (2009) ................................................. 14, 21

Pierson v. Ray,

386 U.S. 547 (1967) ..................................... 21, 22, 24, 26

VIII

Cases—Continued:

Page

Pollard v. Cockrell,

578 F.2d 1002 (5th Cir. 1978) ...................................... 35

Reichle v. Howards,

566 U.S. 658 (2012) ....................................................... 11

Richardson v. McKnight,

521 U.S. 399 (1997) ....................................................... 27

See v. City of Seattle,

387 U.S. 541 (1967) ..................................... 15, 31, 32, 33

Simon v. City of New York,

893 F.3d 83 (2d Cir. 2018) ................................ 16, 17, 19

Spalding v. Vilas,

161 U.S. 483 (1896) ....................................................... 23

Thompson v. Virginia,

878 F.3d 89 (4th Cir. 2017) .............................. 15, 17, 19

United States v. Blocker,

104 F.3d 720 (5th Cir. 1997) ........................................ 34

United States v. Fort,

248 F.3d 475 (5th Cir. 2001) ............................ 13, 14, 34

United States v. Jamieson-McKames

Pharm., Inc.,

651 F.2d 532 (8th Cir. 1981) ........................................ 19

United States v. Schiffman,

572 F.2d 1137 (5th Cir. 1978) ...................................... 35

United States v. Thomas,

973 F.2d 1152 (5th Cir. 1992) ...................................... 34

Vazquez v. County of Kern,

949 F.3d 1153 (9th Cir. 2020) ...................................... 17

IX

Cases—Continued:

Page

White v. Pauly,

137 S. Ct. 548 (2017) ................................................. 9, 21

Wilkes v. Dinsman,

48 U.S. 89 (1849) ........................................................... 23

Wyatt v. Cole,

504 U.S. 158 (1992) ....................................................... 24

Ziglar v. Abbasi,

137 S. Ct. 1843 (2017) ......................................... 8, 10, 21

Constitutional provision, statutes, regulations, and rules:

U.S. Const. amend. IV .............................................. passim

42 U.S.C. § 1983 ......................................................... passim

45 C.F.R. § 164.512 ....................................................... 29, 30

22 Tex. Admin. Code:

§ 179.4 ...................................................................... 30, 34

§ 179.4(a) ....................................................................... 31

§ 192.2 ............................................................................ 29

§ 192.4 ............................................................................ 29

§ 192.5 ............................................................................ 29

§ 195.3(a) ....................................................................... 13

§ 195.3(b) ....................................................................... 31

Tex. Health & Safety Code:

§ 481.061 ........................................................................ 29

§ 481.067 ........................................................................ 29

§ 481.075 ........................................................................ 29

§ 481.076 ........................................................................ 29

X

Statutes, regulations, and rules—Continued:

Page

Tex. Occ. Code:

§ 153.007 .................................................................. 31, 34

§ 154.053 .................................................................. 30, 34

§ 154.057(c) .................................................................... 33

§ 159.002 ........................................................................ 29

§ 159.003(a)(5) ............................................................... 29

§ 162.105 ........................................................................ 29

§ 164.007(c) .................................................................... 29

§ 168.052 ........................................................................ 31

§ 168.053 .......................................................................... 3

28 Tex. Reg. 10491 (2003) .................................................. 30

Act of May 19, 1953, 53d Leg., R.S., ch. 426, § 9,

1953 Tex. Gen. Laws 1029 ........................................... 29

Vernon’s Annotated Revised Civil Statutes of

the State of Texas, art. 4509 (1925) ....................... 29-30

Miscellaneous:

Aaron L. Nielson & Christopher J. Walker, A

Qualified Defense of Qualified Immunity,

93 Notre Dame L. Rev. 1853 (2018) ..................... 23, 25

Aaron L. Nielson & Christopher J. Walker,

Qualified Immunity and Federalism, 108

Georgetown L.J. (forthcoming 2020), https://

papers.ssrn.com/sol3/papers.cfm?abstract_

id=3544897........................................................ 22, 24, 26

XI

Miscellaneous—Continued:

Page

Am. Soc’y of Addiction Medicine, Opioid

Addiction 2016 Facts & Figures (2016),

https://www.asam.org/docs/default-source/

advocacy/opioid-addiction-disease-factsfigures.pdf ....................................................................... 3

Bryan A. Garner & Antonin Scalia, Reading

Law (2012) ................................................................ 20-21

Centers for Disease Control, “U.S. State

Prescribing Rates, 2013,” https://www.cdc.

gov/drugoverdose/maps/rxstate2013.html .................. 3

Centers for Disease Control, “Understanding

the Epidemic,” https://www.cdc.gov/

drugoverdose/epidemic/index.html .............................. 2

Dose of Reality: Prevent Prescription Painkiller

Misuse in Texas, “Raising Awareness to

Help Save Lives,” http://doseofreality.texas.

gov/ ................................................................................... 3

William Baude, Is Qualified Immunity

Unlawful?, 106 Cal. L. Rev. 45 (2018) ....................... 10

William L. Murfee, A Treatise on the Law of

Sheriffs and Other Ministerial Officers (1884) .............. 23

In the Supreme Court of the United States

No. 19-676

J OSEPH A. Z ADEH & J ANE D OE , PETITIONERS

v.

M ARI R OBINSON , S HARON P EASE & K ARA K IRBY

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF IN OPPOSITION

IN T R O D U C T IO N

Petitioners ask the Court to reconsider—or overrule

outright—the longstanding doctrine of qualified immunity. The Court should decline that invitation. For many

decades, this Court has consistently and correctly read

section 1983 in light of the common-law background its

text incorporates. An unbroken chain of decisions spanning nearly forty years confirms that liability does not

attach unless settled law places the state actor’s conduct

beyond debate. In other words, the state actor must be

plainly incompetent or knowingly violate the law. The

Fifth Circuit faithfully applied that rule below, granting

qualified immunity to officers who executed a subpoena

(1)

2

they reasonably believed was justified. There is no basis

for this Court to intervene.

Unable to fault the decision below, Petitioners

cherry-pick language from a handful of decisions to suggest that lower courts apply the qualified-immunity doctrine inconsistently. But their own brief demonstrates

the opposite. Petitioners admit that there are thousands

of qualified-immunity decisions each year; the fact that

such a massive sample size produces only a few questionable outcomes is proof of success, not failure. And the

Fifth Circuit does not depart from its sister circuits; all

consistently apply the same test.

Even if Petitioners’ stories of confusion and misalignment were true (and they are not), Petitioners barely

acknowledge the insurmountable stare decisis hurdle

that stands in the way of overruling such well-settled

law. None of the stare decisis considerations permits this

Court to undertake the overhaul Petitioners request.

There is no good reason to revisit qualified immunity.

The petition should be denied.

S TA TE M E N T

1. a. Texas, along with the rest of the nation, is in

the grips of what the Centers for Disease Control has labeled an opioid epidemic. See Centers for Disease Control, “Understanding the Epidemic,” https://www.cdc.

gov/drugoverdose/epidemic/index.html. Opioid overdoses claim the lives of 130 Americans each day. Id. The

epidemic “began with increased prescribing of opioids”

by physicians in the 1990s. Id.

In 2015, more than two million Americans “had a substance use disorder involving prescription pain

3

relievers.” Am. Soc’y of Addiction Medicine, Opioid Addiction 2016 Facts & Figures 1 (2016), https://www.

asam.org/docs/default-source/advocacy/opioid-addiction-disease-facts-figures.pdf. Opioid addiction is driving

the overdose epidemic, “with 20,101 overdose deaths related to prescription pain relievers” in 2015 alone. Id.

Four of the top 25 cities for opioid abuse are in Texas.

Dose of Reality: Prevent Prescription Painkiller Misuse

in Texas, “Raising Awareness to Help Save Lives,”

http://doseofreality.texas.gov/. In 2013, the year the

Texas Medical Board began the investigation at issue

here, 70 opioid prescriptions were dispensed for every

100 people in Texas. Centers for Disease Control, “U.S.

State Prescribing Rates, 2013,” https://www.cdc.gov/

drugoverdose/maps/rxstate2013.html.

Among the State’s tools for addressing this crisis are

the Board’s administrative subpoena and inspection

powers. These powers authorize the Board to obtain records and perform inspections of pain-management clinics (or clinics operating like pain-management clinics, see

Tex. Occ. Code § 168.053) to ensure that those prescribing controlled substances to Texans follow the law.

b. Petitioner Dr. Joseph Zadeh, an internal medicine

specialist, ran an unregistered pain-management clinic.

After receiving a complaint about Zadeh from the federal

Drug Enforcement Agency (DEA), the Board began to

investigate whether Zadeh’s prescription practices violated the Texas Medical Practices Act and its

4

implementing rules. See Pet. App. 2a, ROA.927-28; see

also ROA.706 (Board complaint dated Mar. 12, 2015). 1

On October 22, 2013, two Board investigators, Respondents Sharon Pease and Kara Kirby, accompanied

by two DEA agents, arrived at Zadeh’s office to serve an

administrative subpoena for records. Pet. App. 3a. The

subpoena bore the signature of Respondent Mari Robinson, executive director of the Board, and sought immediate compliance. ROA.977-78.

Zadeh’s medical assistant informed the investigators

that Zadeh was not available that day, as he was traveling. ROA.939. The assistant telephoned Zadeh and Zadeh’s counsel for guidance. Pet. App. 3a. Following that

conversation, the investigators stated that, if the assistant did not produce the records, the Board “would proceed in suspending Dr. Zadeh’s license.” ROA.939.

The assistant produced the records. ROA.940. The investigators remained onsite reviewing and copying the

records until Zadeh’s counsel arrived and asked them to

leave. ROA.943.

2. Petitioners sued all Respondents in their individual capacities, and Robinson in her official capacity, for

declaratory and monetary relief under 42 U.S.C. § 1983.

They claimed violations of their Fourth Amendment, due

process, and privacy rights. ROA.421, 511 n.1. Petitioners claimed that Respondents violated these rights in

two ways: first, by executing the subpoena without an opportunity for precompliance review; second, by physi-

“ROA” refers to the record on appeal before the Fifth Circuit.

1

5

cally searching the office beyond the scope of the subpoena. Pet. App. 82a-83a, 96a; ROA.1393-94.

After complex motions practice, the district court

reached two conclusions relevant here. First, it concluded that Respondents Pease and Kirby were entitled

to summary judgment on qualified immunity grounds in

connection with their execution of the subpoena because

no clearly established law prohibited their conduct.

ROA.1402-05. Second, it determined that Respondent

Robinson was entitled to summary judgment because no

evidence supported either direct or supervisory liability.

ROA.1398-1402.

3. Petitioners appealed to the Fifth Circuit, challenging the district court’s qualified-immunity determination as to Pease and Kirby and the supervisory liability

determination as to Robinson in her individual capacity.

See Pet. App. 77a; ROA.1398-99.

The Fifth Circuit affirmed, both initially and on rehearing. Pet. App. 2a. The court concluded that Respondents violated Petitioners’ Fourth Amendment

right to an opportunity for precompliance review of the

subpoena. Pet. App. 7a. The court further determined

that the exception to that requirement for closely regulated industries did not apply. Pet. App. 11a. But the

court held that clearly established law did not preclude

Respondents from relying on the exception; therefore,

Respondents were entitled to qualified immunity. Pet.

App. 19a-20a.

Judge Willett initially agreed with those conclusions.

Pet. App. 65a. On rehearing, however, he dissented from

the conclusion that Respondents are entitled to qualified

immunity. Pet. App. 26a.

6

4. Petitioners filed a petition for a writ of certiorari.

They challenge only the grant of qualified immunity for

Pease and Kirby regarding execution of the subpoena—

claiming, for the first time, infirmities in qualified-immunity doctrine. 2

R E AS O N S FO R D E N Y IN G T H E PE TI T IO N

In an unbroken chain of cases spanning nearly four

decades, this Court has consistently reaffirmed the doctrine of qualified immunity. Thousands—if not tens of

thousands—of judicial decisions have conferred qualified

immunity on state actors consistent with this Court’s

longstanding pronouncement that section 1983 does not

impose liability on state officials unless settled law places

their conduct beyond debate.

Petitioners ask this Court to revisit or overrule that

wall of authority. The Court should decline to do so for

Petitioners do not renew their challenge to dismissal of their

claims for declaratory relief, see Pet. App. 22a, never challenged dismissal of their privacy and due process claims, see

Pet. App. 99a-101a, and do not renew their challenge to dismissal of their Fourth Amendment claims based on pretext,

see Pet. App. 20a.

Petitioners do not renew their challenge to dismissal of their

claims against Robinson in her individual capacity based on

supervisory liability, see Pet. App. 24a-26a, never challenged

summary judgment in favor of Robinson in her individual capacity based on direct liability, see ROA.1398-99, and never

challenged dismissal of their claims against Robinson in her

official capacity, see ROA.1393. Accordingly, Petitioners have

forfeited any challenge to the judgment in favor of Robinson.

Petitioners do not renew their challenge to summary judgment in favor of Pease and Kirby regarding the physical

search.

2

7

at least three reasons. First, there is no disagreement

among the courts below over how to apply this Court’s

precedents. Petitioners cherry-pick out-of-context language from a handful of opinions to paint a picture of confusion, but further examination of those few examples

only proves that the current doctrine is generally applied

correctly and consistently. Petitioners acknowledge that

federal courts resolve thousands of qualified-immunity

cases every year; a handful of errors in such a large sample size is no basis for a comprehensive overhaul. In fact,

such a low error rate for such an enormous sample size

is cause for confidence, not concern.

Second, no overhaul is warranted because the Court’s

current formulation of qualified immunity correctly interprets section 1983 in light of its underlying commonlaw principles. And even if there were some daylight between the original understanding of section 1983 and

current doctrine, statutory stare decisis compels adherence to current law. There is no justification for the overhaul Petitioners request. That is especially so in this doctrinal area because it would make little sense to reevaluate section 1983 immunity without also reexamining section 1983 liability and the meaning of “under color of.”

Third, the decision below correctly applies this

Court’s precedents. The panel majority held that no

clearly established law prohibited the investigators from

seeking immediate compliance with an administrative

subpoena to investigate allegedly improper controlledsubstance prescriptions. To reach a different result

would require a comprehensive reformulation, not a minor adjustment, of qualified-immunity doctrine.

8

I.

The Lower Courts Consistently and Correctly

Apply this Court’s Precedents.

Section 1983 imposes liability on state officials for the

“deprivation of any rights” made “under color of any

statute, ordinance, regulation, custom, or usage.” 42

U.S.C. § 1983. The Court has long interpreted that statute to allow for liability only when a state official’s conduct was clearly proscribed by settled law. That formulation of qualified immunity is applied consistently and

correctly in thousands of cases across the federal courts

every year. No circuit split exists. To the extent the doctrine produces an occasional wayward analysis across a

sample size of thousands, that only counsels against, not

for, review.

The Court has provided clear instructions on

qualified immunity.

The Court has applied the same qualified-immunity

standard for nearly forty years, since Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The Court provided in Harlow that qualified immunity turns on “the objective reasonableness of an official’s conduct, as measured by reference to clearly established law.” Id.; see also Ziglar v.

Abbasi, 137 S. Ct. 1843, 1866 (2017). The clearly established law standard corresponds to principles of fair notice: Officials cannot “fairly be said to ‘know’ that the law

forbade conduct not previously identified as unlawful.”

Harlow, 457 U.S. at 818.

The Court has applied the same standard, guided by

the same principles, ever since. As the Court recently reiterated, in District of Columbia v. Wesby, officials are

entitled to qualified immunity unless “every reasonable

9

official would interpret [precedent] to establish the particular rule the plaintiff seeks to apply,” placing “the constitutionality of the officer’s conduct ‘beyond debate.’”

138 S. Ct. 577, 589-90 (2018) (quoting Ashcroft v. al–

Kidd, 563 U.S. 731, 741 (2011)). Properly applied, qualified immunity permits only claims against “plainly incompetent” officials or officials who “knowingly violate

the law.” Id. at 589 (quotations omitted).

It is well settled that identifying “clearly established”

law generally requires “identify[ing] a case where an offic[ial] acting under similar circumstances . . . was held

to have violated the [Constitution].” White v. Pauly, 137

S. Ct. 548, 552 (2017) (per curiam). The Court has consistently held that plaintiffs cannot make this showing

“simply by alleging violation of extremely abstract

rights,” id.—for instance, “the right to be free from unreasonable searches and seizures,” City of San Francisco v. Sheehan, 135 S. Ct. 1765, 1776 (2015)—because

general rules do not adequately notify officials of how the

law applies to the facts before them, Mullenix v. Luna,

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

The Court has repeatedly reinforced these standards. See City of Escondido v. Emmons, 139 S. Ct. 500,

503-04 (2019) (per curiam) (“The Court of Appeals made

no effort to explain how that case law prohibited Officer

Craig’s actions in this case. That is a problem under our

precedents.”); White, 137 S. Ct. at 551 (“In the last five

years, this Court has issued a number of opinions reversing federal courts in qualified immunity cases.”); see also

Morrow v. Meachum, 917 F.3d 870, 876 (5th Cir. 2019)

(“The Supreme Court reserves ‘the extraordinary remedy of a summary reversal’ for decisions that are

10

‘manifestly incorrect.’ Yet it routinely wields this remedy

against denials of qualified immunity.” (quoting Kisela v.

Hughes, 138 S. Ct. 1148, 1162 (2018) (Sotomayor, J., dissenting) (collecting cases)).

Even critics of qualified immunity acknowledge the

doctrine’s “unflinching” consistency. Cole v. Carson, 935

F.3d 444, 471, 473 (5th Cir. 2019) (en banc) (Willett, J.,

dissenting); see William Baude, Is Qualified Immunity

Unlawful?, 106 Cal. L. Rev. 45, 82-83 (2018) (noting 30

applications of the same doctrine over the last 35 years).

Compare Ziglar, 137 S. Ct. at 1872 (Thomas, J., concurring) (calling for the Court to “reconsider our qualified

immunity jurisprudence”), with Wesby, 138 S. Ct. at 582

(Thomas, J.) (applying qualified immunity).

The claimed division of authority is illusory.

Petitioners accuse the Fifth Circuit of distorting this

Court’s precedents. Specifically, Petitioners claim that

the Court applies an “outlier approach” that “requir[es]

a very substantial degree of factual similarity” for clearly

established law. Pet. 17. But the Fifth Circuit is no “outlier” at all; it correctly applied this Court’s doctrine in

this case, the same way other circuits do. Moreover, the

Fifth Circuit, sitting en banc shortly after the panel decision in this case, eradicated any daylight that might

have once existed between the Fifth Circuit and its sister

circuits.

1. a. The decision below turns on this Court’s pronouncements described above. The Fifth Circuit applied

the standard provided by this Court and granted Respondents qualified immunity because no precedent

11

placed the Fourth Amendment issues related to the

Board’s subpoena “beyond debate.”

Quoting Wesby and Reichle, the Fifth Circuit explained that Respondents “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.”’” Pet. App.

6a (quoting Wesby, 138 S. Ct. at 589 (quoting Reichle v.

Howards, 566 U.S. 658, 664 (2012)).

Proceeding from that foundation, the decision below

held first that this Court has clearly established a Fourth

Amendment right to an opportunity for precompliance

review of an administrative search in most—but not all—

circumstances. Pet. App. 6a-7a. Among the instances in

which the opportunity is not constitutionally required

are those within the exception for closely regulated industries, when the regulatory regime provides an adequate warrant substitute in the form of notice and limited officer discretion. Pet. App. 7a-8a (citing Marshall

v. Barlow’s, Inc., 436 U.S. 307, 313 (1978), and New York

v. Burger, 482 U.S. 691, 702-03 (1987)). Whether an industry is closely regulated involves a multi-factor balancing test, Burger, 482 U.S. at 702-03, which the decision

below analyzed over several pages, Pet. App. 7a-11a. And

whether there is an adequate warrant substitute involves

a holistic evaluation of the regulatory regime authorizing

the search, Burger, 482 U.S. at 702-03, which the decision

below also analyzed over several pages, Pet. App. 12a14a. These analyses led the Fifth Circuit to conclude that

a Fourth Amendment violation occurred: The subpoena

did not satisfy the exception under Burger because the

12

regulatory regime did not provide the requisite warrant

substitute. Pet. App. 14a.

The same analyses, however, supported the Fifth

Circuit’s conclusion that no clearly established law proscribed Respondents’ conduct. Pet. App. 15a-20a. The

court framed the standard as “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.” Pet.

App. 15a (citation omitted). And ultimately, the court

grounded its “clearly established” analysis in this

Court’s decision in Wesby: ‘‘The precedent must be clear

enough that every reasonable official would interpret it

to establish the particular rule the plaintiffs seek to apply.’’ 138 S. Ct. at 590; see Pet. App. 16a. That is, to be

clearly established, “existing law must have placed the

constitutionality of the officer’s conduct ‘beyond debate.’” Pet. App. 16a (quoting Wesby, 138 S. Ct. at 589

(quoting al–Kidd, 563 U.S. at 741)).

Applying Wesby, the Fifth Circuit found no “close

congruence” between existing law and the facts of this

case placing Respondents’ conduct “beyond debate.” Pet.

App. 15a-16a (quoting Wesby, 138 S. Ct. at 589). To the

contrary, the Fifth Circuit observed that existing Fifth

Circuit law—cases holding that the requirements of notice and limited discretion were satisfied—established

the opposite.

For example, Beck v. Texas State Board of Dental

Examiners found the notice requirement satisfied in a

statute that “explicitly permitted inspections without

prior notice,” but “did not say . . . that the only sufficient

substitute under Burger was a statute authorizing no-

13

notice searches.” Pet. App. 16a-17a (emphasis added)

(citing 204 F.3d 629, 639 (5th Cir. 2000)). Therefore, the

court here concluded, “some, even many, reasonable officers would believe” that in this case “the owner of the

premises was charged with knowledge that a statute authorized the search.” Pet. App. 18a. Indeed, the laws in

this case are comparable to laws that provided adequate

notice under Burger in other cases. Compare 22 Tex. Admin. Code § 195.3 (a)-(b) (“The board may conduct inspections to enforce these rules . . . . Unless it would

jeopardize an ongoing investigation, the board shall provide at least five business days’ notice before conducting

an on-site inspection . . . .”), with United States v. Fort,

248 F.3d 475, 478 (5th Cir. 2001) (“An officer [of the department] ‘may enter or detain on a highway or at a port

of entry a motor vehicle that is subject to this chapter.’”),

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

Cir. 2009) (faulting officials for going beyond the “periodic inspections” provided by the regulatory scheme,

without implying the regulatory scheme provided inadequate notice of on-demand searches).

The court’s cases on limited discretion similarly failed

to place Respondents’ conduct beyond debate. The court

concluded that Respondents could have reasonably believed their discretion was adequately limited based on

Beck’s finding that a statute “permitt[ing] the official to

conduct inspections during ‘reasonable times’ after ‘stating his purpose’ and presenting his credentials to the

owner” satisfies Burger. Pet. App. 16a-18a (citing 204

F.3d at 638-39). And the majority correctly accounted for

other circuit decisions upholding administrative

searches without clearly limiting official discretion in

14

choosing who is searched. Pet. App. 18a-19a (citing Ellis

v. Miss. Dep’t of Health, 344 F. App’x 43, 45-46 & nn.810 (5th Cir. 2009) (per curiam, unpublished); Fort, 248

F.3d at 482). 3

In short, in light of the “intricacies of New York v.

Burger, which permit warrantless searches when they

satisfy a three-factor test,” the court could not identify a

case or series of cases that placed Respondents’ conduct

“beyond debate.” Pet. App. 17a.

b. None of this Court’s precedents required the

Fifth Circuit to reach a different result. The Court has

never set clear rules governing the relationship between

the Burger exception and administrative subpoenas, and

none of its decisions establishes that this search, pursuant to both a regulatory scheme and a subpoena,

3

It appears Petitioners endorse (at 21) the dissent’s proposed

narrowing of qualified immunity: that “this court shouldn’t determine whether exceptions to violations are clearly established”; that this case ought to be settled on the grounds that

“[n]o exception applies”; “[a]nd it’s only when an exception applies that the general rule doesn’t.” Pet. App. 34a-35a.

But that novel approach has never been endorsed by this

Court or adopted anywhere. And it would make little sense to

do so here, since Fourth Amendment cases are rife with exceptions to general rules. Violations are often defined by the

lack of an applicable exception. So, violations are easily framed

as a failure to comply with a general rule, a failure to satisfy

an exception to that rule, or both. That is why the same qualified-immunity analysis applies whatever the framing of the

Fourth Amendment issue. See Pearson v. Callahan, 555 U.S.

223, 244 (2009) (granting qualified immunity for relying on the

consent exception to the warrant requirement as applied in

some, but not all, circuits).

15

provided no adequate warrant substitute under Burger.

See Burger 482 U.S. at 708 (addressing no-warrant, nosubpoena demand to enter and inspect a junkyard); Donovan v. Lone Steer, Inc., 464 U.S. 408, 412-13 (1984) (addressing only the constitutionality of the official entering

the premises to serve the subpoena). To be sure, the

Court has assumed, without deciding, that a subpoena

provides additional limits on official discretion, beyond

those imposed by the regulatory scheme itself. See v.

City of Seattle, 387 U.S. 541, 544 (1967) (finding analogous the “common investigative technique[s]” of subpoenas and inspections and observing broader inherent discretion in the latter); accord City of Los Angeles v. Patel,

135 S. Ct. 2443, 2452, 2454 (2015). But that “clearly establishes” nothing.

2. a. Petitioners claim that the decision below

demonstrates an outlier view inconsistent with the approaches of other circuits. That argument misconstrues

both the decision below and the approaches of other circuits, all of which apply the same general rule and exception this Court has fashioned. Indeed, Petitioners offer

nothing to suggest that this case would have been decided differently in any other circuit.

Petitioners assert that two sets of circuits take a

“more flexible” approach to clearly established law than

the Fifth Circuit. Pet. 18-19. Petitioners’ first set, consisting of the Third, Fourth, Eighth, and Ninth Circuits,

requires “[s]ufficiently analogous—but not identical—

precedent” under Hope v. Pelzer, 536 U.S. 730 (2002).

Pet. 18-19 (quoting Ioane v. Hodges, 939 F.3d 945, 956

(9th Cir. 2018); Thompson v. Virginia, 878 F.3d 89, 98

(4th Cir. 2017); Mountain Pure, LLC v. Roberts, 814

16

F.3d 928, 932 (8th Cir. 2016); citing Z.J. ex rel. Jones v.

Kan. City Bd. of Police Comm’rs, 931 F.3d 672, 683-89

(8th Cir. 2019); Kane v. Barger, 902 F.3d 185, 195 (3d Cir.

2018)).

Petitioners say that their second set—the Second,

Seventh, and Tenth Circuits—requires no “factual similarity from precedent” for “obvious” constitutional violations. Pet. 19 (citing Leiser v. Kloth, 933 F.3d 696, 702

(7th Cir. 2019); Simon v. City of New York, 893 F.3d 83,

97 (2d Cir. 2018); A.M. v. Holmes, 830 F.3d 1123, 113536 (10th Cir. 2016)).

Petitioners allege that the Fifth Circuit differs from

both of these approaches. According to Petitioners, the

Fifth Circuit grants qualified immunity when “precedent

does not ‘foreclose’” the challenged actions, relying on

“relatively thin” distinctions in precedent. Pet. 17 (quoting Morrow, 917 F.3d at 877).

This attempt to distinguish the circuits, however,

cherry-picks language to create the illusion of disagreement, where no meaningful disagreement actually exists.

Indeed, what Petitioners describe as conflicting approaches are really just reflections of this Court’s own

pronouncements in Wesby. 138 S. Ct. at 589-91. Wesby

requires a plaintiff to “identify a case where an officer

acting under similar circumstances . . . was held to have

violated the [Constitution].” Id. at 590. Wesby does not

require “a case directly on point,” but it does require a

case—or, more likely, a “body of relevant case law”—

placing the lawfulness of the particular conduct beyond

debate. Id. And Wesby further recognizes that “there can

be the rare ‘obvious case,’ where the unlawfulness of the

offic[ial]’s conduct is sufficiently clear even though

17

existing precedent does not address similar circumstances.” Id. (quoting Brosseau v. Haugen, 543 U.S. 194,

199 (2004) (per curiam)).

That directive to plaintiffs—as Wesby put it, to produce a “body of relevant case law” placing the conduct

beyond debate unless the violation is obvious—is the law

in all circuits. Despite the petition’s allusions to the contrary, the Second, Third, Fourth, Fifth, Seventh, Eighth,

Ninth, and Tenth Circuits all apply this framework. See

Vazquez v. County of Kern, 949 F.3d 1153 (9th Cir. 2020);

Cole, 935 F.3d at 453; Kelsay v. Ernst, 933 F.3d 975, 98182 (8th Cir. 2019); Leiser, 933 F.3d at 702-03; Colbruno

v. Kessler, 928 F.3d 1155, 1165 (10th Cir. 2019); Feminist

Majority Found. v. Hurley, 911 F.3d 674, 704 (4th Cir.

2018); Kane, 902 F.3d at 194-95 & n.44; Simon, 893 F.3d

at 92. For good measure, the First, Sixth, Eleventh, and

District of Columbia Circuits do, too. See Gray v. Cummings, 917 F.3d 1, 10 & n.4 (1st Cir. 2019); Glasscox v.

Argo, City of, 903 F.3d 1207, 1218 (11th Cir. 2018);

Hedgpeth v. Rahim, 893 F.3d 802, 809 (D.C. Cir. 2018);

Baynes v. Cleland, 799 F.3d 600, 610-13 (6th Cir. 2015).

There is no meaningful disagreement.

The Fourth Circuit perhaps best illustrates that the

conflict Petitioners imagine does not exist. Petitioners

quote that court’s statement that law can be “clearly established based on general constitutional principles” as

evidence of confusion. Pet. 19. But that language is just

a restatement of Wesby’s rule that qualified immunity

does not attach to obvious constitutional violations.

Thompson, 878 F.3d at 98 (referencing both the general

rule—the “[o]rdinar[y]” need to identify precedent—and

the exception when a “general constitutional rule”

18

applies “with obvious clarity”) (quoting Hope, 536 U.S. at

741). Petitioners make no effort to show how peripheral

descriptions of the approach as “sliding scale” or “twotrack” undermine this uniformity. Pet. 19.

Petitioners suggest that other circuits reach substantive results that differ from the Fifth Circuit’s because of

“relatively thin” distinctions drawn by the latter, relying

on Cleveland v. Bell, 938 F.3d 672, 677 (5th Cir. 2019),

and Marks v. Hudson, 933 F.3d 481, 486 (5th Cir. 2019).

Pet. 17-18. This too is an empty gesture. The Cleveland

court found no clearly established law permitting liability for deliberate indifference on a record reflecting multiple attempts to provide the prisoner medical care. 938

F.3d at 677. The court considered two cases—rejecting

the first because dismissing a claim about tuberculosis

treatment as frivolous “does not clearly establish anything,” and the second because of the “much different”

record reflecting ignored requests for medical care. Id.

(citing McCormick v. Stalder, 105 F.3d 1059, 1062 (5th

Cir. 1997); Fielder v. Bosshard, 590 F.2d 105, 108 (5th

Cir. 1979)). Petitioners provide nothing to support a conclusion that only a “thin” factual distinction lies between

prison staff attempting multiple times to provide medical

care and prison staff ignoring requests for medical care. 4

b. Because there is no real disagreement among the

circuits, it is no surprise that Petitioners fail to show that

4

Petitioners’ invocation of Marks is especially inapt, since

Marks concluded that “there was no constitutional violation,”

making the question of clearly established law irrelevant. 933

F.3d at 483.

19

their case would have come out differently anywhere

else.

Indeed, the cases they cite all vary from this one in

material ways. For example, Z.J., Ioane, Simon, and

Mountain Pure do not involve warrantless administrative searches. A.M. offers no analysis of the clearly established law of searches like this one. And Leiser, Kane,

and Thompson do not involve the Fourth Amendment at

all.

It is almost certain that the other circuits would reach

the same conclusion the Fifth Circuit did here. The Second Circuit has applied the Burger exception to “[u]nannounced, on-site inspections” “related to patient care” in

nursing homes, noting the “virtually non-existent” privacy expectations in regulatory compliance matters.

Blue v. Koren, 72 F.3d 1075, 1081 (2d Cir. 1995). The

Ninth Circuit has applied the “administrative search exception” to a medical board’s inspection of a doctor’s

pharmaceutical and patient records because state law required “all records of manufacture and of sale, purchase

or disposition of dangerous drugs” to “be maintained and

open for inspection.” Costantini v. Med. Bd. of Cal., 34

F.3d 1071 (9th Cir. 1994) (unpublished); see also United

States v. Jamieson-McKames Pharm., Inc., 651 F.2d

532, 537 (8th Cir. 1981) (applying the Burger exception

to a pharmaceutical distributor).

3. Even if the decision below contained language

that could be read as inconsistent with the approaches of

other circuits, that would provide no basis to label governing Fifth Circuit law an “outlier.” Petitioners fail to

disclose that mere weeks after the decision below issued,

the en banc Fifth Circuit clarified its approach to

20

qualified immunity. In Cole, the en banc court made clear

that qualified immunity does not require the identification of an identical case. 935 F.3d at 453. Cole did not “depend[] on the fact patterns of other cases,” relying instead on the exception for “obvious” cases, to find that

the officers violated clearly established law prohibiting

deadly force against a suspect who “poses no immediate

threat to the officer and no threat to others,” and requiring advance warning of deadly force “where feasible.” Id.

Cole confirms that the Fifth Circuit stands in line

with other courts. There is no error or confusion for this

Court to correct.

II. Qualified Immunity Is Consistent with Section

1983, and Nothing Justifies the Overhaul

Petitioners Seek.

The Court’s doctrine of qualified immunity is consistent with the text, context, and history of section 1983.

And even if the Court had strayed from the statute, Petitioners offer no compelling basis to set aside decades of

precedent and undermine tens of thousands of decisions.

Qualified immunity correctly interprets section

1983.

This Court has correctly interpreted section 1983 in

light of the common-law and federalism principles that

inform the statute’s text, context, and history.

1. The Court’s qualified-immunity jurisprudence remains faithful to the common-law background of section

1983, which protected societal values by limiting official

liability for good faith, reasonable conduct. And it is

proper to consider the statute’s common-law background. See Bryan A. Garner & Antonin Scalia, Reading

21

Law 318-19 (2012); cf. Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media, No. 18-1171, 2020 WL

1325816, at *5 (U.S. Mar. 23, 2020) (“[W]e generally presume that Congress legislates against the backdrop of

the common law.”).

The common-law origins of the qualified-immunity

defense have played the same critical role in the doctrine

for over fifty years. E.g., Filarsky v. Delia, 566 U.S. 377,

383 (2012) (“At common law, government actors were afforded certain protections from liability . . . .”); Pierson

v. Ray, 386 U.S. 547, 555 (1967) (finding federal statutory

immunity proper as “the officers had such a limited privilege under the common law”). This role is to protect values that are “important to ‘society as a whole.’” White,

137 S. Ct. at 551 (first citing Sheehan, 135 S. Ct. at 1774

(collecting cases), then quoting Pearson v. Callahan, 555

U.S. 223, 231 (2009)). Specifically, the Court has explained that qualified immunity allows public officials to

carry out their duties without being overly cautious for

“fear of personal monetary liability and harassing litigation.” Ziglar, 137 S. Ct. at 1866 (quoting Anderson v.

Creighton, 483 U.S. 635, 638 (1987)). Qualified immunity

gives officials “breathing room” to do their jobs well, allowing for “reasonable but mistaken judgments about

open legal questions.” Id. (quoting al–Kidd, 563 U.S. at

743).

Accounting for qualified immunity’s common-law

principles is especially important given the common-law

basis of the scope of section 1983 liability. The Court explained this symmetry best in Pierson. That decision recognized the defense as a common-law counterpart to the

Court’s previous interpretation of “under color of state

22

law,” within the meaning of section 1983, to include conduct that violates state law. 386 U.S. at 554-57; see Monroe v. Pape, 365 U.S. 167, 187 (1961) (reading the statute

“against the background of tort liability that makes a

man responsible for the natural consequences of his actions”), overruled on other grounds by Monell v. Dep’t of

Soc. Servs. of City of N.Y., 436 U.S. 658 (1978). If Petitioners want to revisit section 1983 immunity, they must

also accede to a reevaluation of liability.

Petitioners take issue with the absence of explicit

statutory text stating the current doctrine of qualified

immunity. Pet. 23. But this Court has never required

that explicit text in light of section 1983’s drafting history

and common-law background. See Aaron L. Nielson &

Christopher J. Walker, Qualified Immunity and Federalism 9-10, 108 Georgetown L.J. (forthcoming 2020),

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=

3544897. “[F]or good or ill, the 1800s Congresses did not

always expressly enact defenses even when [they]

wanted them”—at least, as the 1800s Court understood

its contemporary coequal branch. Id. at 10. Whether the

Court would recognize a common-law defense in a new

statute passed today sheds no light on how the 1871 Congress that passed section 1983 expected the Court to interpret the statute. Cf. Kimble v. Marvel Entm’t, LLC,

135 S. Ct. 2401, 2409 (2015) (declining to discount previous decisions just because “we would decide a case differently now than we did then”).

Petitioners claim that qualified immunity is inconsistent with the common-law background of section 1983.

Pet. 22. But the common-law background includes ways

that American law has limited liability for government

23

officials’ reasonable mistakes “from the earliest days of

the republic.” Aaron L. Nielson & Christopher J.

Walker, A Qualified Defense of Qualified Immunity, 93

Notre Dame L. Rev. 1853, 1864 (2018). Although “not

every officer received immunity in every case,” courts

commonly applied good-faith principles to limit liability

for official actions. Id. at 1865-66; see, e.g., Filarsky, 566

U.S. at 388 (collecting nineteenth-century cases noting

the “well settled” good-faith defense for individuals enforcing the law). As one treatise explained, courts applied a “legal presumption in favor of the validity of [the

officer’s] official acts,” giving an officer “the most lenient

consideration consistent with the law, when it is manifest

that he has acted throughout with perfect good faith, and

striven honestly to do his whole duty.” William L. Murfee, A Treatise on the Law of Sheriffs and Other Ministerial Officers 495 (1884); accord Wilkes v. Dinsman, 48

U.S. 89, 89 (1849) (“[T]he acts of a public officer . . . are

to be presumed legal till shown by others to be unjustifiable. It is not enough to show . . . an error in judgment . . . .”).

The common-law defense contemplated, at least

sometimes, the reasonableness of the conduct: “If an officer uses a reasonable and due discretion he cannot be

made liable as for wrongful conversion . . . .” Murfee, supra, at 496; see also Nielson & Walker, Qualified Defense, supra, at 1867-68, 1898 n.90 (identifying reliance

on “something at least akin to an objective standard”)

(citing Spalding v. Vilas, 161 U.S. 483, 498 (1896)).

And, as good faith has “both an objective and a subjective aspect,” the objectivity of modern qualified

24

immunity traces directly back to its common-law origins.

Harlow, 457 U.S. at 815 (emphasis added).

2. The Court’s current doctrine correctly reflects

section 1983’s federalism-promoting underpinnings.

“Among the background principles of construction that

our cases have recognized are those grounded in the relationship between the Federal Government and the

States under our Constitution.” Bond v. United States,

572 U.S. 844, 857-58 (2014); see also Gregory v. Ashcroft,

501 U.S. 452, 461 (1991). The Court “construes statutes

narrowly when a broader construction would infringe on

federalism interests.” Nielson & Walker, Federalism,

supra, at 29.

Had Pierson not recognized a common-law defense

counterpart to Monroe’s common-law scope of liability,

section 1983 liability would undoubtedly be broader. This

liability implicates the functions and interests of States

in their sovereign capacities. See Wyatt v. Cole, 504 U.S.

158, 167 (1992) (“Qualified immunity strikes a balance

between compensating those who have been injured by

official conduct and protecting government’s ability to

perform its traditional functions.”). The functions include “States’ ability to enforce their laws without undue

federal interference”; the interests include “hiring competent officers” and “preventing those officers from

shirking their dut[ies] for fear of federal liability”—all of

which the Court consistently considers in applying qualified immunity. Nielson & Walker, Federalism, supra, at

5; see, e.g., Filarsky, 566 U.S. at 389-90.

25

Stare decisis compels adherence to the Court’s

qualified-immunity jurisprudence.

Even if current doctrine were unsound, Petitioners’

request to overhaul or repeal it conflicts with settled

principles of stare decisis. Petitioners face a particularly

heavy burden because the doctrine they attack is

grounded in a statute, not the Constitution. And the relief they seek would offend federalism principles and upset the strong reliance interests of States. Against that

backdrop, Petitioners’ broadside attack on deeply entrenched precedent requires extraordinary justification,

far beyond anything Petitioners offer.

1. Because qualified-immunity doctrine arises in the

course of interpreting statutory text, stare decisis “carries enhanced force.” Kimble, 135 S. Ct. at 2409; see also

Nielson & Walker, Qualified Defense, supra, at 1855 (observing that qualified immunity “is largely statutory in

character”).

There is good reason to give this Court’s statutory

decisions enhanced stare decisis protection. After all,

“unlike in a constitutional case, critics of [the] ruling can

take their objections across the street, and Congress can

correct any mistake it sees.” Kimble, 135 S. Ct. at 2409.

The Court has consistently left to congressional policymakers policy-oriented “[c]laims that a statutory precedent has ‘serious and harmful consequences.’” Id. at 2414

(quoting Halliburton Co. v. Erica P. John Fund, Inc.,

573 U.S. 258, 276 (2014)). Petitioners make just such a

claim. Pet. 14.

The Court is particularly hesitant to uproot an interpretation that Congress has declined to correct over a

26

long period of years. Kimble, 135 S. Ct. at 2409-10 (declining to overrule a case that Congress left alone “for

more than half a century”). The Court upholds statutory

interpretations that are criticized as “unrealistic, inconsistent, or illogical”—even when the Court shares those

views—based on consistent application in many cases

over many years. Flood v. Kuhn, 407 U.S. 258, 282 (1972)

(“It is an aberration that has been with us now for half a

century[.]”). Petitioners make no claim of congressional

intervention against the emergence and development of

qualified immunity over the last half century. Modern

qualified-immunity doctrine emerged nearly forty years

ago, see Harlow, and traces back another ten years, see

Pierson. Since then, “Congress’s refusal to revisit § 1983

suggests Article I acquiescence.” Cole, 935 F.3d at 472

n.11 (Willett, J., dissenting).

2. Stare decisis weighs particularly heavily in “cases

involving property and contract rights” because “parties

are especially likely to rely on such precedents when ordering their affairs.” Kimble, 135 S. Ct. at 2410. These

concerns are heightened for qualified immunity because

the stakeholders are States: “[S]tate and local governments have structured their laws and contractual arrangements to indemnify their officers when sued in

their individual capacities for official actions.” Nielson &

Walker, Federalism, supra, at 32. These arrangements

reflect reliance interests of States and their employees

in “avoid[ing] ‘unwarranted timidity’ in performance of

public duties, ensuring that talented candidates are not

deterred from public service, and preventing the harmful

distractions from carrying out the work of government

that can often accompany damages suits.” Filarsky, 566

27

U.S. at 389-90 (quoting Richardson v. McKnight, 521

U.S. 399, 409-11 (1997)).

3. This Court has indicated that “growth [in] judicial

doctrine or further action taken by Congress,” Kimble,

135 S. Ct. at 2410, can support overhauling precedents.

But that is not the case here, where the lack of congressional action in the face of tens of thousands of decisions

indicates acquiescence. See pp. 25-26, supra.

Furthermore, this Court’s own decisions counsel

against change because the qualified-immunity doctrine

is inextricably intertwined with other precedents broadening the scope of section 1983 liability. See Kimble, 135

S. Ct. at 2411 (the risk of “unsettl[ing] stable law” is particularly acute when the challenged “decision’s close relation to a whole web of precedents means that reversing

it could threaten others”). Qualified immunity is inseparable from the existing scope of section 1983 liability. See

Crawford-El v. Britton, 523 U.S. 574, 611–12 (1998)

(Scalia, J., dissenting) (“We find ourselves engaged,

therefore, in the essentially legislative activity of crafting a sensible scheme of qualified immunities for the

statute we have invented . . . .”); see also pp. 21-22, supra. For this reason, the qualified-immunity critiques

that Petitioners present (at 13-16) cannot be addressed

asymmetrically. Any reevaluation of qualified immunity

must occur alongside reevaluation of section 1983. Cole,

935 F.3d at 477-78 (Ho & Oldham, JJ., dissenting) (“[I]t

is better to leave things alone than to reconfigure established law in a one-sided manner.”).

4. The other typical stare decisis factors counsel

against revisiting the doctrine of qualified immunity. Petitioners fail to demonstrate that qualified immunity

28

“has proved unworkable.” Kimble, 135 S. Ct. at 2411.

There is no conflict in authority, semantic or substantive.

See Part I.B, supra. And to the extent Petitioners offer

an alternative basis to overrule qualified immunity based

on its empirical assumptions, see Pet. 23, that is “just a

different version of the argument that [qualified immunity] is wrong.” Kimble, 135 S. Ct. at 2414.

III. The Judgment Below Is Correct.

In any event, there is no reason to take up this

petition because the judgment below is correct. In order

to prevail, Petitioners would have to establish in this

Court that their Fourth Amendment rights were violated

and that clearly established law placed Respondents’

conduct “beyond debate.” Because Petitioners cannot

make either showing, there is no reason to grant the

petition.

A. Respondents did not violate the Fourth

Amendment.

In order to disturb the Fifth Circuit’s judgment, the

Court would need to find a Fourth Amendment violation.

Respondents did not violate the Fourth Amendment,

however, for two reasons. First, the Burger exception

was satisfied because the medical profession is a closely

regulated industry, and the regulatory regime and subpoena provided an adequate warrant substitute. Second,

no opportunity for precompliance review was required

because there was no immediate penalty for noncompliance—and in any event, a subpoena is an opportunity for

precompliance review.

1. a. The medical profession is a closely regulated

industry under Burger. The Fifth Circuit’s erroneous

29

contrary conclusion did not infect the judgment because

the court assumed part of the medical profession was

closely regulated, ultimately grounding its finding of a

Fourth Amendment violation in the warrant substitute

requirement. Pet. App. 11a, 14a.

Burger defines “closely regulated” using a multi-factor evaluation of the “pervasiveness,” “regularity,” and

“duration” of a regulatory scheme and the “owner’s expectation of privacy.” 482 U.S. at 701. As the Fifth Circuit acknowledged, the medical profession is “extensively regulated and has licensure requirements,” federal regulations “exempt the Board from the privacy requirements of the Health Insurance Portability and Accountability Act” (HIPAA), and Texas law subjects the

Board to confidentiality requirements. Pet. App. 9a, 11a

(citing 45 C.F.R. § 164.512; Tex. Occ. Code §§ 159.002,

159.003(a)(5), 164.007(c)). An entire state agency is devoted to making and enforcing rules regulating the practice of medicine—rules that doctors agree to follow as a

condition of licensure. See, e.g., Tex. Health & Safety

Code § 481.061 (requiring DEA registration to prescribe

controlled substances); id. §§ 481.067, .075, .076 (providing law enforcement agencies, DEA, and Texas boards of

pharmacy, medicine, and nursing with access to controlled-substance prescription information); Tex. Occ.

Code § 162.105 (requiring training, protocols, registration, and inspections to use anesthesia in outpatient settings); 22 Tex. Admin. Code §§ 192.2, .4-.5 (same).

Warrantless administrative subpoenas of medical

records have existed in Texas for almost 100 years. Act

of May 19, 1953, 53d Leg., R.S., ch. 426, § 9, 1953 Tex.

Gen. Laws 1029, 1036 (amending Vernon’s Annotated

30

Revised Civil Statutes of the State of Texas, art. 4509

(1925)). And subpoenas seeking immediate compliance

have been available for over 15 years—five times longer

than the inspection scheme in Burger. See 22 Tex. Admin. Code § 179.4, eff. Nov. 30, 2003, 28 Tex. Reg. 10491,

10492 (2003).

Every Texas doctor knows that the Board must investigate complaints of regulatory violations without

prior notice, if “notice would jeopardize [the] investigation.” Tex. Occ. Code § 154.053. True, a medical patient

has a “reasonable expectation of privacy” and can assume that records “will not be shared with nonmedical

personnel without her consent.” Ferguson v. City of

Charleston, 532 U.S. 67, 78 (2001). But protections of patient privacy also accommodate the State’s interest in

protecting patients, doctors, and doctor-patient confidentiality. See Blue, 72 F.3d at 1081; see also 45 C.F.R.

§ 164.512 (exempting the Board from stringent HIPAA

privacy requirements and authorizing the Board to obtain medical records without patient consent). Doctors

do not have greater privacy interests in medical records

than patients. Burger evaluates only the privacy interests of the doctors.

At minimum, this Court should confirm that the Fifth

Circuit correctly assumed that the part of the medical

profession related to controlled substances is closely regulated. But recognizing a new Burger category—the partially closely regulated industry, see Pet. App. 9a-10a—

is unnecessary and unworkable. The practice of medicine

is no less pervasively regulated because of the even more

pervasive regulation of controlled substances. And doctors can start and stop prescribing controlled substances

31

at will, making that conduct an unreliable proxy for an

industry. Burger’s warrant substitute requirement, not

the closely regulated industry requirement, moderates

concerns over the breadth of searches without an opportunity for precompliance review.

b. The limits imposed by the regulatory scheme, and

by the subpoena, provided notice and limited official discretion. That is enough to satisfy Burger’s warrant requirement. Specifically, the subpoena authority, Tex.

Occ. Code § 153.007, and the inspection authority, id.

§ 168.052, along with those statutes’ implementing rules,

22 Tex. Admin. Code §§ 179.4(a), 195.3(b), notify doctors

that they are subject to administrative searches and limit

the discretion of the officials carrying them out.

Inspection authority exists only when a formal complaint is submitted, ROA.176-77, 180, or when a facility

must register as a pain-management clinic based on the

level of controlled-substance prescriptions, Tex. Occ.

Code § 168.052. The text of the statute limits the information the Board may obtain. Id. § 153.007. The scope of

each individual subpoena, and the fact that seeking immediate compliance is only proper in narrow circumstances, further limit official discretion. 22 Tex. Admin.

Code §§ 179.4(a), 195.3(b). Cf. Burger, 482 U.S. at 711-12

(finding adequate a statute notifying “the operator of a

vehicle dismantling business” of regular inspections,

stating “who is authorized to conduct an inspection,” and

limiting inspections to “usual business hours,” “vehicledismantling and related industries,” and records, vehicles, or parts on site and subject to recordkeeping requirements); See, 387 U.S. at 544 (“The agency has the

right to conduct all reasonable inspections of such

32

documents which are contemplated by statute, but it

must delimit the confines of a search by designating the

needed documents in a formal subpoena.”).

Doctors know about the Board’s authority. Inspections and requests for records and documents—even

those seeking immediate compliance—are not unduly intrusive or surprising. Burger requires reasonable notice

and limits, not advance notice and limits on every discretionary aspect of a search. “[S]urprise is crucial if the

regulatory scheme . . . is to function at all.” Burger, 482

U.S. at 710.

2. The Fifth Circuit incorrectly assumed, to avoid

conflict with an unpublished nonprecedential Fifth Circuit decision, that an opportunity for precompliance review was required in this case. Pet. App. 6a. No such opportunity was required. Alternatively, the subpoena itself satisfied that requirement.

a. No opportunity for precompliance review was required, first, because the subpoena was “jointly authorized” by Pease “and her supervisor, Belinda West,” and

jointly executed by Pease and Kirby. ROA.1399. The

multi-person, multi-step process eliminates Fourth

Amendment concerns raised by a request for documents,

made and enforced at the whim of one official in the field.

Cf. See, 387 U.S. at 544-45 (noting that when the agency

itself issues a subpoena, there is no danger of a single

official in the field making and enforcing the demand to

search). This Court has required an opportunity for precompliance review when there is no subpoena, to ensure

comparable Fourth Amendment protections whether the

administrative search is carried out pursuant to a regulatory regime permitting no-notice inspections or

33

pursuant to a subpoena. Patel, 135 S. Ct. at 2453; Burger,

482 U.S. at 708; See, 387 U.S. at 544.

Second, any warning that the Board “would proceed

in suspending Dr. Zadeh’s license,” ROA.939, states that

existing proceedings against the doctor would continue.

That does not demonstrate an immediate sanction for an

employee’s noncompliance, let alone a fine or criminal

penalty. Compare Patel, 135 S. Ct. at 2452 (requiring an

opportunity for precompliance review because “[a] hotel

owner who refuses to give an officer access to his or her

registry can be arrested on the spot”), See, 387 U.S. at

541-42 (disapproving a warehouse owner’s criminal conviction and $100 fine for refusing a warrantless warehouse inspection), and Camara v. Mun. Ct. of City & Cty.

of S.F., 387 U.S. 523, 533 (1967) (“[B]road statutory safeguards are no substitute for individualized review, particularly when those safeguards may only be invoked at

the risk of a criminal penalty.”) (emphases added), with

Tex. Occ. Code § 154.057(c) (stating that Board investigators “may not carry a firearm or exercise the powers

of arrest”).

b. In the alternative, Patel confirms that the requirement of an opportunity for precompliance review is

satisfied—not triggered—by a subpoena. The Court observed that administrative subpoenas are “one way in

which an opportunity for precompliance review can be

made available,” and indicated “that the searches authorized by [statute] would be constitutional if they were

performed pursuant to an administrative subpoena.” 135

S. Ct. at 2453-54.

34

B. No clearly established law placed Respondents’

conduct “beyond debate.”

Finally, for the reasons set out in Part I.B., supra, no

decisions of this Court or the Fifth Circuit placed the alleged unlawfulness of Respondents’ conduct beyond debate.

1. For the reasons discussed above, a reasonable

state actor could have concluded that the medical profession is closely regulated—and nothing puts that conclusion beyond debate.

Multiple decisions compel that conclusion. For example, Burger phrases the test in general terms not obviously excluding the medical profession, evaluating the

“pervasiveness,” “regularity,” and “duration” of regulation, and the owner’s privacy expectations. 482 U.S. at

701. Likewise, the Court in Colonnade Catering Corp. v.

United States found adequate regulatory duration in the

liquor industry’s history of no-warrant inspections as a

condition of doing business. 397 U.S. 72, 77 (1970). A

comparable history exists here. Tex. Occ. Code

§§ 153.007, 154.053; 22 Tex. Admin. Code § 179.4 (conditioning medical license on regulations authorizing no-notice subpoenas, inspections, and investigations).

That conclusion would be especially reasonable in

light of the Fifth Circuit cases treating other businesses

as closely regulated. See Ellis, 344 F. App’x at 43 (childcare); Club Retro, 568 F.3d at 181 (liquor); Fort, 248 F.3d

at 482 (commercial trucking); Beck, 204 F.3d at 638-39

(dentists); United States v. Blocker, 104 F.3d 720 (5th

Cir. 1997) (per curiam) (insurance); United States v.

Thomas, 973 F.2d 1152 (5th Cir. 1992) (salvage yards);

35

United States v. Schiffman, 572 F.2d 1137, 1140, 1142

(5th Cir. 1978) (pharmaceuticals); Pollard v. Cockrell,

578 F.2d 1002, 1014 (5th Cir. 1978) (massage). Indeed, it

would be eminently reasonable for a state actor to conclude that, if massage parlors are closely regulated, so

too are doctor’s offices, pain-management clinics, or

both. See Pollard, 578 F.2 at 1014.

2. There thus is no basis for Petitioners’ suggestion

that the Court could grant relief on grounds narrower

than “revers[ing] qualified immunity in whole.” Pet. 20.

Indeed, because the law governing this area is exception

filled and unusually murky, to deny qualified immunity

here would require a complete overhaul of the doctrine.

And that is exactly what stare decisis does not permit.

See Part II.B, supra.

36

C O N C L U S IO N

The petition for a writ of certiorari should be denied.

Respectfully submitted.

KEN PAXTON

Attorney General of Texas

JEFFREY C. MATEER

First Assistant

Attorney General

KYLE D. HAWKINS

Solicitor General

Counsel of Record

BILL DAVIS

Deputy Solicitor General

ABIGAIL M. FRISCH

Assistant Attorney General

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

Kyle.Hawkins@oag.texas.gov

(512) 936-1700

APRIL 2020