Petition for Writ of Certiorari — Joseph Cotropia, Petitioner v. Mary Chapman
Supreme Court briefMar 10, 2021
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No. _______
In The
Supreme Court of the United States
-------------------------- ♦ ---------------------------
JOSEPH COTROPIA,
Petitioner,
v.
MARY CHAPMAN, Individually,
Respondent.
-------------------------- ♦ --------------------------
ON PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
-------------------------- ♦ --------------------------
PETITION FOR WRIT OF CERTIORARI
-------------------------- ♦ --------------------------
Tommy E. Swate
Counsel of Record
SWATE LAW
403 Wild Plum
Houston, Texas 77013
(832) 702-7599
swatemd@aol.com
Counsel for Petitioner
Dated: March 10, 2021
THE LEX GROUPDC i 1050 Connecticut Avenue, N.W. i Suite 500, #5190 i Washington, D.C. 20036
(202) 955-0001 i (800) 856-4419 i www.thelexgroup.com
i
Question Presented
Is the presumption that warrantless searches
are per se unreasonable so obvious a violation of the
Fourth Amendment that the presumption gives
government officials fair warning?
ii
Parties to the Proceedings
The caption of the case contains the names of
all the parties.
Statement of Related Cases
There are no related cases.
Corporate Disclosure Statement
The caption of the case contains the
relationship of all the parties to institutions involved
in the petition.
iii
Table of Contents
Question Presented ..................................................... i
Parties to the Proceedings ..........................................ii
Statement of Related Cases .......................................ii
Corporate Disclosure Statement ................................ii
Table of Contents ...................................................... iii
Table of Authorities .................................................... v
Citations of Opinions .................................................. 1
Statement of the Basis for Jurisdiction ..................... 1
Writ’s Importance ....................................................... 1
Constitutional Provisions and Statutes ..................... 4
Statement of the Case ................................................ 4
Reasons for the Court to Grant Writ ......................... 7
Conclusion ................................................................. 11
Appendix:
Published Opinion of
The United States Court of Appeals
For the Fifth Circuit
Re: Affirming the District Court’s Order Granting
Defendant’s Motion for Summary Judgment
entered October 22, 2020 ............................... 1a
Judgment of
The United States Court of Appeals
For the Fifth Circuit
entered October 22, 2020 ............................. 18a
iv
Final Judgment of
The United States District Court for
The Southern District of Texas Huston Division
entered September 12, 2019 ........................ 20a
Order of
The United States Court for
The Southern District of Texas, Houston Division
Re: Adopting Memorandum and Recommendation
entered September 12, 2019 ........................ 22a
Memorandum and Recommendation of
The United States Court for
The Southern District of Texas, Houston Division
entered August 21, 2019 .............................. 24a
Order of
The United States Court of Appeals
For the Fifth Circuit
Re: Denying Petition for Rehearing En Banc
filed December 2, 2020................................. 44a
U.S. Const. amend. IV ............................................ 46a
v
Table of Authorities
Cases
Ashcroft v. al-Kidd,
563 U.S. 731 (2011) ......................................... 6
Brosseau v. Haugen,
543 U.S. 194 (2004) .......................................... 9
City of Escondido v. Emmons,
139 S. Ct. 500 (2019) .................................. 9, 11
City of Los Angles, Calif v. Patel,
135 S. Ct. 2443 (2015) ...................................... 5
Colonnade Catering Corp. v. United States,
397 U.S. 72 (1970) .......................................... 10
D.C. v. Wesby,
138 S. Ct. 577 (2018) .................................. 9, 11
Entick v. Carrington,
95 Eng. Rep 807 (C.P. 1765) ............................ 5
Hope v. Pelzer,
536 U.S 730 (2002) ............................... 1, 7, 8, 9
Kisela v. Hughes,
138 S. Ct. 1148 (2018) ................................ 9, 10
Malley v. Briggs,
475 U.S. 335 (1986) .......................................... 9
Riley v. California,
573 U.S. 373 (2014) ...................................... 6, 8
vi
Safford Unified Sch. Dist. No. 1 v. Redding,
557 U.S. 364 (2009) .......................................... 9
See v. City of Seattle,
387 U.S. 541 (1967) .......................................... 5
Vinyard v. Wilson,
311 F.3d 1340 (11th Cir. 2002) .............. 7, 8, 10
White v. Pauly,
137 S. Ct 548 (2017). ...................................... 10
Constitutional Provision
U.S. CONST. amend. IV ..................................... passim
Statute
28 U.S.C. § 1254(1) ................................................. 1, 4
1
Citations of Opinions
An appeal was taken from the United States
District Court for the Southern District of Texas No.
4:16-CV-742 to the Fifth Circuit in Cause No. 1920688 Joseph Cotropia v. Mary Chapman. The Fifth
Circuit entered judgment of October 22nd, 2020. The
United States Court of Appeals for the Fifth Circuit
denied request for en Eanc hearing on 12/02/2020.
Statement of the Basis for Jurisdiction
The Fifth Circuit issued its opinion on October
22nd, 2020. Petitioner’s Motion for en banc hearing
was denied on December 2nd, 2020. The Court
jurisdiction rests on 28 U.S.C. section 1254(1).
Writ’s Importance
This writ is important because the current
state of cases transforms qualified immunity into a
shield for governmental officials’ bad acts. Requiring
factually identical or highly similar factual cases guts
the protection of the Fourth Amendment. Each year
qualified immunity cases occur with enormous
frequency. There is disagreement among courts of
appeal regarding the degree of factual similarity
required to grant qualified immunity. The Fifth
Circuit requires a very high degree of factual
similarity with past precedent. In contrast, this
Court held that fair notice can exist absent factual
similarity. Hope v. Pelzer, 536 U.S. 730.
2
Does clearly established law prohibit
government
officials
from
enforcing
an
administrative subpoena instanter by force? It is
undisputed that Cotropia’s office was searched, his
private papers rummaged through, and documents
not listed on an administrative subpoena taken by
force. This Court’s Fourth Amendment analysis is
grounded in a baseline principle that warrantless
searches are per se unreasonable absent an applicable
exception. The Fifth Circuit in this case has denied
Cotropia his constitutional rights even though his
constitutional rights are clearly established.
The Fifth Circuit has sanctioned the adage that
if a government official is first to violate a
constitutional right, a citizen has no redress. To
escape responsibility just violate the citizen’s right
first! If skillful pleadings can make the constitution
occur in a factual unique manner, the government
official is granted qualified immunity. By skillful
pleadings, the Appellee claimed the case was unique
because of the claim that Defendant Chapman was
searching a pain clinic, a fact that Chapman denied.
In order to prevent this manifest injustice, the Court
is asked to consider a two-category approach.
The Court is asked to consider a two-category
approach based on whether or not obvious
constitutional violation has occurred.
Does the
baseline principle give fair warning that is specific
enough to clearly establish the law even in the
absence of case law? Does the obvious violation give
fair warning as contrasted to the Fifth Circuit’s
requirement for a narrow fact-specific case?
3
Cotropia asks the Court to adopt a two-tier
approach to better balance the protection of
constitutional rights with the promotion of
government efficiency. This Court is asked to consider
whether that fair warning is given by a clearly
established legal principle. The Fifth Circuit has so
narrowly required materially similar facts that the
result is to deny Cotropia legal redress.
The
government’s official conduct is egregious enough to
supply fair warning that the conduct violates a
constitutional right.
Cotropia lost because no previous case had a
specific fact-pattern close enough to meet the Fifth
Circuit’s standard. The effect is to let government
officials duck consequences for bad behavior if they
were to first to behave badly. A two-tier approach
would balance the government interest versus
Cotropia’s constitutional protections.
The Fifth Circuit denied Cotropia his
constitutional rights when the panel could have found
that the legal principle barring such conduct was
clearly established. A two-category approach based
on the obviousness of a general constitutional
principle would satisfy the tension between effective
government action and citizen protection from
government oppression. The obvious category would
be a generally established constitutional principle
that clearly establishes the law when the precedent
facts are not identical. In the non-obvious category,
the Plaintiff would be required to cite precedent of a
factually similar case to make a viable § 1983 claim.
4
Constitutional Provisions and Statutes
U.S. Const. amend. IV. Appendix Page 46a.
Statement of the Case
On March 28, 2015, the Texas Medical Board
executed an administrative subpoena searching Dr.
Cotropia’s closed medical office. Dr. Cotropia had lost
his medical license and the office was closed to
patients. ROA 506. Dr. Cotropia’s assistant, Spaugh
unlocked the door to the clinic. ROA 508-09, 846.
Chapman, a Texas Medical Board Investigator,
showed Spaugh an administrative subpoena. Spaugh
called Cotropia’s attorney who was traveling with
Cotropia to Austin for a hearing. Cotropia instructed
his attorney, who instructed Spaugh, that Chapman
should be told to leave, and Chapman should not be
provided with any records. ROA 835, 847.
Spaugh stated that Chapman copied 23
documents against her protest and then refused to
leave. ROA 479-501, 511, 954. Chapman conceded
that she did not leave at Spaugh’s request. Chapman
even refused to allow Spaugh to leave and Chapman
physically barred Spaugh’s egress. Chapman then
threatened Spaugh with arrest if Spaugh did not give
Chapman medical records. Chapman called the local
constable office. When the Constable arrived, he
communicated to Chapman that she must leave the
office. ROA 474.
Chapman admitted that she used force to
rummage thorough Dr. Cotropia’s documents and
5
took documents that were outside the scope of the
Texas Medical Board’s Administrative Subpoena.
Chapman was essentially executing a writ of
assistance which is not allowed by the Fourth
Amendment.
The Lower Court stated that “it was
undisputed that the TMB was searching his office to
determine if he was practicing medicine after his
license had been suspended - a legitimate
administrative purpose. Chapman is entitled to
summary judgment on this issue.” Memorandum and
Recommendation of the United States Court of the
Southern District of Texas Houston District.
Appendix Page 40a.
The Texas Medical Board physically occupied
private property for the purpose of obtaining
information. Such physical intrusion is a search
within the meaning of the Fourth Amendment.
Entick v. Carrington, 95 Eng. Rep 807 (C.P. 1765). It
is clearly established law that a trespass violates the
Fourth Amendment. Entick, supra, at 817. The
Fourth Amendment protects against trespassory
searches with regards to “persons, houses, papers,
and effects”. The Fourth Amendment violation is
obvious, undisputed, and established.
Chapman’s egregious conduct violated clearly
established legal principles. This Court has made
clear in See and Patel, the need for pre-compliance
review prior to an administrative subpoena
enforcement. City of Los Angles, Calif v. Patel, 135 S.
Ct. 2443 (2015). See v. City of Seattle, 387 U.S. 541
(1967). However, the Fifth Circuit found that there
6
were no earlier cases with materially similarly facts
to give notice to Chapman that her egregious conduct
violated the Fourth Amendment. The Fifth Circuit
followed Ashcroff v. Kidd requiring Cotropia to cite
existing precedent to place the statutory or
constitutional question beyond doubt. Ashcroft v. alKidd 563 U.S. 731, 741-43. This standard requires
the Fifth Circuit to search for precedent that is
sufficiently tied to the specific facts in every qualified
immunity case. The Fifth Circuit had to read
Chapman’s mind that she was inspecting a pain clinic
in spite of her specific testimony and the lower court
opinion that Chapman was investigating Cotropia to
determine if he was practicing medicine without a
license. Memorandum and Recommendation of the
United States for Southern District of Texas, Houston
District. Appendix Page 40a.
The established baseline presumption is that
warrantless searches are per se unreasonable absent
an applicable exception. Riley v. California, 573 U.S.
373, 382 (2014). Despite having fair warning of this
well-established principle, Chapman demanded
immediate compliance with her subpoena. When
Spaugh refused to comply with Chapman’s demands,
Chapman then took documents by force. It was
unreasonable for Chapman to rely on the Burger
exception to a warrantless search. The Burger
exception’s notice requirement is clearly established
that notice is required for on-demand inspection.
However, Chapman was not making a demand for
inspection, she was enforcing an administrative
subpoena with specific enumerated documents. She
7
rummaged through Cotropia’s papers and took
documents by force that were not identified in the
administrative subpoena.
The legal principle that warrantless search is
per se unreasonable is so clearly established that
Chapman had fair warning that her conduct was a
constitutional violation. Lack of identical precedent
is not a legitimate reason to deny Cotropia his
constitutional rights. The Fifth Circuit failed to
engage in an inquiry that considered whether the
warrantless search legal principle was significant
notice that Chapman’s conduct violated Cotropia’s
constitutional rights. Hope v. Pelzer, 536 U.S. 730.
739-41. The warrantless search is an obvious Fourth
Amendment violation that gives warning that is
enough to establish the law, even when the facts of
precedent are not identical. Vinyard v. Wilson, 311 F.
3d 1340 (11th Cir. 2002). The constitutional provision
is specific enough to clearly give fair warning that a
warrantless search by force is unconstitutional.
Reasons for the Court to Grant Writ
State investigators without notice and without
a warrant, entered Cotropia’s office, and by force,
rifled through his papers. Chapman, Texas Medical
Board
Investigator,
demanded
immediate
compliance.
The lower courts found the facts
surrounding Texas Medical Board investigator almost
entirely undisputed.
The Fourth Amendment forbids such
roughshod rummaging. The baseline presumption is
8
that warrantless searches are per se unreasonable
absent an applicable exception. Riley v. California,
573 U.S. 373, 382 (2014). Despite having fair warning
of this well-established principle, Chapman, Texas
Medical Board Investigator, demanded immediate
compliance with a medical board administrative
subpoena and rummaged through Cotropia’s records.
The Fifth Circuit holding granting Chapman
qualified immunity denied Cotropia his constitutional
rights despite clearly established law.
Cotropia’s constitutional rights were denied
since a case did not exist with material similar facts.
The Court is asked to address the question whether a
law which is clearly established gives officials fair
warning that their conduct is unconstitutional
without a factually similar precedent. Hope v. Pelzer,
536 U.S at 739-41. Cotropia would suggest that the
proper standard is whether a legal principle is
sufficiently established to give officials fair warning
that their conduct violates constitutional rights.
Chapman had fair warning her egregious
conduct
was
unconstitutional
because
the
constitutional provision is specific enough to clearly
establish the law even in the absence of case law.
Vinyard v. Wilson, 311 F.3d 1340 (11th Cir. 2002).
The baseline presumption regarding warrantless
searches gave Chapman fair warning that her
conduct was per se unconstitutional.
This case concerns a key policy issue that
allows Cotropia’s rights to be violated because no fact
specific case law exists to allow vindication. Cotropia
9
is asking the Court to consider that qualified
immunity be denied if the constitutional violation is
obvious. The Fifth Circuit decision was essentially
ruling that it is immaterial that Chapman acted
unconstitutionally if no specific prior case held such
misconduct unlawful. This ruling flies in the face of
the violation of an undisputed established
constitutional principle.
This Court has warned government officials
that the absence of analogous precedent does not
guarantee immunity for egregious constitutional
violations. See, e.g., Malley v. Briggs, 475 U.S. 335,
341 (1986); Hope v. Pelzer, 536 U.S. 730, 741, 45-46
(2002); Brosseau v. Haugen, 543 U.S. 194, 199 (2004);
Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S.
364, 377-78 (2009); D.C. v. Wesby, 138 S. Ct. 577, 590
(2018); Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018);
City of Escondido v. Emmons, 139 S. Ct. 500, 504
(2019). This case is important because the Court is
being asked to develop a more refined procedural
approach. Chapman has ducked the consequences of
her bad behavior. The Constable’s behavior in telling
Chapman she must leave Cotropia’s office established
what an objective law officer knows. The Constable
that ordered Chapman out of Cotropia’s office knew
her conduct was unlawful. The U.S. Court of Appeals
for the Fifth Circuit affirming the District Court.
Appendix Page 6a
Courts of Appeal are divided over what degree
of factual similarity must exist to deny qualified
immunity protection to government officials.
This
Court has reassures plaintiffs that caselaw does not
10
require a case directly on point for a right to be clearly
established. Kisela v. Hughes 138 S. Ct. at 1152
(quoting White v. Pauly, 137 S. Ct 548, 551 (2017).
Chapman’s conduct obviously violated the
Fourth Amendment. Chapman’s use of physical force
to execute a mere administrative subpoena was
particularly egregious. Chapman seized Dr.
Cotropia’s assistant and grabbed his paper despite
being told explicitly to leave. In Colonnade Catering,
this Court unanimously condemned the use of
unauthorized force during warrantless searches.
Colonnade Catering v. United States, 397 U.S. 72
(1970).
The baseline presumption that warrantless
searches are per se unreasonable gave Chapman a
fair warning that her conduct violated the Fourth
Amendment. The long-established principle that a
pre-compliance hearing before a neutral magistrate is
required before an administrative subpoena is
enforced gave Chapman fair warning that taking
documents not listed on an administrative subpoena
by force was a violation of the Fourth Amendment.
Vinyard v. Wilson suggests that when a federal
statute or constitutional provision is specific enough
that clearly establishes fair warning. This case is one
where the constitutional violation is so obviously well
established that Chapman had fair warning that her
conduct violated the Fourth Amendment. Chapman
should not be protected by qualified immunity.
As Chapman’s conduct was sufficiently beyond
the pale, the notice necessary to defeat a claim of
11
qualified immunity is inseparable from the violation
itself. “The unlawfulness of the officer’s conduct is
sufficiently clear” to defeat qualified immunity “even
though existing precedent does not address similar
circumstances.” City of Escondido, 139 S. Ct. at 504
(quoting Wesby, 138 S. Ct. at 581).
Conclusion
The Court should grant the petition for a writ
of certiorari.
Respectfully submitted,
Tommy E. Swate
Counsel of Record
SWATE LAW
403 Wild Plum
Houston, Texas 77013
(832) 702-7599
swatemd@aol.com
Counsel for Petitioner
APPENDIX
ia
APPENDIX TABLE OF CONTENTS
Page
Published Opinion of
The United States Court of Appeals
For the Fifth Circuit
Re: Affirming the District Court’s Order Granting
Defendant’s Motion for Summary Judgment
entered October 22, 2020 ............................... 1a
Judgment of
The United States Court of Appeals
For the Fifth Circuit
entered October 22, 2020 ............................. 18a
Final Judgment of
The United States District Court for
The Southern District of Texas, Huston Division
entered September 12, 2019 ........................ 20a
Order of
The United States Court for
The Southern District of Texas, Houston Division
Re: Adopting Memorandum and Recommendation
entered September 12, 2019 ........................ 22a
Memorandum and Recommendation of
The United States Court for
The Southern District of Texas, Houston Division
entered August 21, 2019 .............................. 24a
Order of
The United States Court of Appeals
For the Fifth Circuit
Re: Denying Petition for Rehearing En Banc
filed December 2, 2020 ................................. 44a
U.S. Const. amend. IV .............................................46D
1a
ENTERED: October 22, 2020
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 19-20688
JOSEPH COTROPIA,
Plaintiff – Appellant,
versus
MARY CHAPMAN, INDIVIDUALLY,
Defendant – Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:16-CV-742
Before Smith, Clement, and Oldham,
Circuit Judges.
JERRY E. SMITH, Circuit Judge
Joseph Cotropia sued Mary Chapman, an
investigator for the Texas Medical Board (“TMB”),
under 42 U.S.C. § 1983 for searching his medical
office and seizing documents without a warrant. The
district court granted Chapman’s motion for
summary judgment on the basis of qualified
immunity (“QI”). We affirm.
2a
I.
On February 13, 2015, the TMB issued a Final
Order revoking Cotropia’s medical license1 because he
had improperly prescribed controlled substances and
had directed and supervised an unregistered pain
management clinic (“PMC”), an entity that needed to
be registered under Texas law. Tex. Occ. Code
§ 168.101. The TMB’s Final Order instructed Cotropia
to “immediately cease practice in Texas,” explaining
that violations could result in “disciplinary action by
the Board or prosecution for practicing with-out a
license in Texas.”2
But Cotropia, by his own admission, continued
to practice after the February 13, 2015, revocation,
until March 20, 2015. After the TMB received a
complaint against Cotropia, the TMB sent Chapman
1 In re Cotropia, SOAH Dkt. No. 503-13-3809 (Feb. 13, 2015),
https://perma.cc/A2DX-QDBU (“Final Order”)
2 Final Order at 15. Cotropia asserts a slew of so-called “Tolan
violations” under Tolan v. Cotton, 572 U.S. 650 (2014) (per
curiam), arguing that the district court improperly weighed the
evidence by resolving disputed issues in favor of Chapman.
Cotropia insists that he was not required to stop practicing
medicine until March 20, 2015, because that was the day that
the TMB denied his rehearing and the Final Order became final.
But the Final Order required Cotropia to cease immediately. The
denial of his motion for rehearing resulted only in
“[a]dministrative finality,” namely an exhaustion of the TMB’s
review for purposes of appeal. 22 Tex. Admin. Code § 187.37(l);
see Lawson v. Laird, 443 F.2d 617, 619 (5th Cir. 1971)
(summarizing the “test of administrative finality for purposes of
judicial review”). Cotropia cites no evidence indicating that the
TMB held the Final Order in abeyance pending review or gave
overriding instructions permitting him to practice med-icine
between February 13, 2015, and March 20, 2015.
3a
to execute an administrative subpoena at Cotropia’s
office on March 27, 2015.3 The subpoena directed
Cotropia to produce copies of prescriptions and
patient sign-in sheets from February 27, 2015, to the
present.
Cotropia was away from his office that day,
preparing for a hearing involving the TMB. Betty
Spaugh, Cotropia’s receptionist, remained at the
office to handle communications with patients.
Accompanied by a federal DEA agent, Chapman
arrived at Cotropia’s office and presented Spaugh
with the administrative subpoena. After speaking on
the phone with Cotropia’s attorney, Spaugh requested
that Chapman leave the office, but Chap-man stayed.
Chapman removed several documents from
Spaugh’s desk and made copies.4 Those documents
3 Cotropia alleges another Tolan violation, noting that in its first
sentence of background, the district court erroneously described
the subpoena as an “administrative search warrant.” That
mistake, the argument goes, “shined a more favorable light on
the unconstitutional actions of the administrative state, since a
search based on a warrant would be reasonable under the Fourth
Amendment.” Cotropia devotes a solitary paragraph to this
argument, and rightfully so. The district court conducted its
analysis under the “Administrative Process Exception to the
Warrant Requirement,” demonstrating that the absence of a
warrant was a baseline assumption of its analysis. Nowhere did
the court suggest that Chapman’s search was reasonable
because she had a warrant.
4 Here, Cotropia alleges another Tolan violation, claiming that
the district court erroneously concluded that “Chapman was
provided twenty-three documents before Spaugh refused to
produce additional records.” Cotropia fails to explain how
Spaugh’s consent to the search is relevant to this appeal. In any
event, consent is a separate basis for finding that a search is
4a
included appointment ledgers, a patient payment
ledger,5 sign-in sheets, and five credit card receipts
showing payments to “T.E. Swate.”6 After an hour, a
constable arrived and told Chapman to leave.
Cotropia filed this § 1983 action against
Chapman for violations of his Fourth and Fourteenth
Amendment rights based on Chapman’s search and
seizure of documents without a warrant. Chapman
then moved to dismiss on the basis of QI. Although
reasonable under the Fourth Amendment. See City of L.A. v.
Patel, 576 U.S. 409, 420 (2015). Chapman relies on the
administrative exception—not consent—to justify her search.
Cotropia alleges another Tolan violation. The district court
referred to those documents as “analogous to a patient log,”
although, the argument goes, they were actually “financial
records” that are “outside the scope of the TMB’s authority” to
investigate. There are two problems with that theory—one legal,
one factual. First, although 22 Texas Administrative Code
§ 179.4(a) allows the TMB to investigate only “medical records,”
Cotropia cites no legal authority suggesting that the presence of
finan-cial information undermines the TMB’s authority over a
document that otherwise qualifies as a medical record. Second,
Cotropia claims that “Chapman conceded to seizing financial
records belonging to Dr. Cotropia.” But Cotropia
mischaracterizes the record. When asked whether particular
documents were financial documents, Chapman answered “They
are—” before being cut off by an objection. When allowed to
answer, Chapman said that the documents “have financial
information.”
5
6 T.E. Swate refers to Tommy Swate, a physician who lost his
medical license for improperly treating chronic-pain and
addiction patients. See Swate v. Tex. Med. Bd., 2017 WL
3902621, at *1 (Tex. App.—Austin Aug. 31, 2017, pet. denied).
Cotropia’s 2015 prac-tice involved the care of patients whom
Cotropia took over from Swate. Swate now works as a licensed
attorney and serves as Cotropia’s counsel in this matter.
5a
the district court granted Chapman’s motion to
dismiss with prejudice, we reversed. See Cotropia v.
Chapman, 721 F. App’x 354 (5th Cir. 2018) (per
curiam). We concluded that Cotropia “alleged sufficient facts to show that Chapman . . . violated the
clearly established right to an opportunity to obtain
precompliance review of an administrative subpoena
before a neutral decisionmaker.” Id. at 357.
In that appeal, we declined to adopt two of
Chapman’s arguments. First, although we noted that
22 Texas Administrative Code § 179.4(a) and Texas
Occupations Code § 153.007(e)—which to-gether
constitute the TMB’s subpoena authority—might
provide the power to demand medical records on short
notice, Chapman had not “made clear (on the
arguments that she ha[d] provided thus far) whether
§ 179.4(a) applies to this situation at all.” Cotropia,
721 F. App’x at 359.7 Second, Chapman contended, at
oral argument, that medical practices constitute “a
closely regulated industry and that the regulatory
scheme TMB has in place provides a constitutionally
adequate substitute for a warrant” under New York v.
7 Our previous decision did not examine Chapman’s authority
under Texas Occupations Code § 168.052 or 22 Texas
Administrative Code § 195.3—which together authorize the
TMB to inspect pain management clinics—because “Chap-man
ha[d] not argued that these provisions [were] sources of
authority under which she operated.” Cotropia, 721 F. App’x at
359 n.4. That led us to doubt whether Chapman’s subpoena
authority allowed her to “take the subpoenaed records by force.”
Id. at 359. On this appeal, Chapman has asserted her authority
under §§ 168.052 and 195.3. Although Cotropia decries the
TMB’s taking of documents by “physical force,” he does not
contend that Chapman lacked authority to do so.
6a
Burger, 482 U.S. 691 (1987). Cotropia, 721 F. App’x at
360. But because Chapman had not previously raised
that argument, we declined to address it. Id.
On remand, after discovery, Chapman moved
for summary judgment on the basis of QI. She argued
that, because she reasonably relied on the Texas
Administrative Code and Texas Occupations Code,
her search was reasonable. The magistrate judge
issued a Recommendation and Memorandum
granting Chapman’s motion, which the district court
adopted in full, and Cotropia appeals.
II.
After a defendant makes a “good-faith
assertion of [QI],” the burden of proof for summary
judgment purposes “shift[s] . . . to the plaintiff to show
that the defense is not available.” Melton v. Phillips,
875 F.3d 256, 261 (5th Cir. 2017) (en banc) (quotation
omitted). To satisfy its burden, a plaintiff must show
“(1) that the official violated a statutory or
constitutional right, and (2) that the right was ‘clearly
established’ at the time of the challenged conduct.”
Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011)
(en banc) (quotation omitted).
Cotropia contends that (1) Chapman violated
his constitutional rights, by executing the
administrative subpoena without any opportunity for
Cotro-pia to obtain precompliance review, and
(2) Cotropia’s constitutional rights were clearly
established at the time of the search. We agree that
Chapman violated Cotropia’s constitutional rights,
7a
but the law was not clearly established at the time of
the search.
A.
“Warrantless searches and seizures are per se
unreasonable unless they fall within a few narrowly
defined exceptions.” United States v. Kelly, 302 F.3d
291, 293 (5th Cir. 2002) (quotation omitted). Two are
relevant. First, as a general matter, “in order for an
administrative search to be con-stitutional, the
subject of the search must be afforded an opportunity
to obtain precompliance review before a neutral
decisionmaker.” Patel, 576 U.S. at 420. Second, even
without precompliance review, there is an
“administrative exception,” the relevant test for
which comes from Burger. Zadeh v. Robinson, 928
F.3d 457, 465 (5th Cir. 2019), cert. denied, No. 19-676,
2020 WL 3146691 (U.S. June 15, 2020). Under
Burger, “warrantless inspections in closely regulated
industries must still satisfy three criteria: (1) a
substantial government interest, (2) a regulatory
scheme that requires warrantless searches to further
the government interest, and (3) ‘a constitutionally
adequate substitute for a warrant.’” Id. at 464–65
(quoting Burger, 482 U.S. at 703). Because Chapman
did not have a warrant and Cotropia had no
opportunity for precompliance review of the
subpoena, we analyze whether Chapman complied
with the administrative exception.
Last year, in Zadeh—a case factually similar to
this one—we examined whether the TMB’s authority
to investigate the medical industry as a whole—and
8a
PMCs in particular—fell within the administrative
exception under Burger. Zadeh, 928 F.3d at 466. We
declined to apply Burger to the medical industry as a
whole, because it “is not a closely regulated industry
for purposes of Burger.” Id. PMCs, on the other hand,
are medical facilities in which “a majority of patients
are issued on a monthly basis a prescription for
opioids,
benzodiazepines,
barbiturates,
or
carisoprodol.” Tex. Occ. Code § 168.001(1). Assuming
that PMCs could be considered a closely regulated
industry,
we
concluded
that
the
TMB’s
administrative-subpoena authority for searching
PMCs failed on the third prong of Burger. Zadeh, 928
F.3d at 466–68. That prong requires “a warrant
substitute authorized by statute to be constitutionally
adequate.” Id. at 467. Constitutional adequacy in turn
requires that “the regulatory statute . . . must limit
the discretion of the inspecting officers.” Burger, 482
U.S. at 703.
Zadeh dealt with two sources of the TMB’s
authority. First, §§ 153.007(a) and 179.4(a) grant the
TMB authority to issue administrative subpoenas.
Those provisions, however, provide “no identifiable
limit on whose records can properly be subpoenaed.”
Zadeh, 928 F.3d at 467. Sec-ond, §§ 168.052(a) and
195.3 grant the TMB authority to inspect PMCs.
Those provisions, however, “d[o] not limit how the
clinics inspected are chosen.” Zadeh, 928 F.3d at 468.
Given the dearth of constraints, we con-cluded that
both sources of the TMB’s authority failed under
Burger. Id.
9a
In the instant case, like Zadeh, Chapman
relied on Texas Occupations Code §§ 153.007(a) and
168.052 and 22 Texas Administrative Code §§
179.4(a) and 195.3 as the sources of her authority to
execute the administrative subpoena and search
Cotropia’s office.8 Zadeh’s Burger analysis, therefore,
controls the constitutional question here. As
Chapman concedes, “Zadeh already contains the very
holding Cotropia asks the Court to announce in
accordance with this constitutional analysis.”
Chapman thus violated Cotropia’s constitutional
rights when she copied documents in Cotropia’s office
without any precompliance review of the
administrative subpoena.
B.
With the first prong satisfied, we address
whether Cotropia’s right to precompliance review was
clearly established at the time of the search. In Zadeh,
even though we concluded that the TMB’s subpoena
authority for searching pain management clinics was
unconstitutional, we could not con-clude that “every
reasonable official prior to conducting a search under
the circumstances of this case would know this Burger
factor was not satisfied.” Zadeh, 928 F.3d at 470. We
“[did] not hold that all reasonable officers would have
known that, until now.” Id. Zadeh was issued in 2019;
Chapman searched Cotropia’s office in 2015. Thus, at
that time, it was not clearly established that her
8 Unless otherwise noted, references to statutory provisions refer
to the versions in effect on March 27, 2015, though they may
have since been amended.
10a
search per §§ 153.007(a), 168.052, 179.4(a), and 195.3
was unconstitutional. Cotropia seeks to avoid that
conclusion by differentiating Zadeh in several
respects.
1.
Cotropia tries to distinguish Zadeh by
reasoning that, unlike the office in Zadeh, Cotropia’s
office was “undisputedly not a [PMC].” Because “it
was clearly established at the time of this search that
the medical profession as a whole is not a closely
regulated industry,” Zadeh, 928 F.3d at 468, Cotropia
contends that “[e]very reasonable officer should have
known that the closely regulated industry exception
did not apply to the instant search of Cotropia’s
office.”9
Cotropia is correct that his office was not
registered as a PMC. The statute that provided the
TMB authority to search Cotropia’s documents,
however, gives the TMB authority to investigate not
only “a [PMC] certified under this chapter” but also “a
physician who owns or operates a clinic in the same
manner as other complaints under this subtitle.” Tex.
Cotropia also styles this argument as a Tolan violation,
claiming that “[t]he mistaken grant of summary judgement was
entirely based on the false premise that Dr. Cotrpia’s [sic] office
was a pain management clinic.” That is an odd assertion, given
Cotro-pia’s previous admission that “[n]either the court below
nor Chapman have [sic] even at-tempted to claim that Cotropia’s
office was a [PMC].” In any event, although the district court
described Cotropia’s prior involvement with an unregistered
PMC, the court dis-tinguished New Concept, which was
Cotropia’s office that Chapman searched, noting that it was not
registered as a PMC.
9
11a
Occ. Code § 168.053. For instance, in Zadeh, 928 F.3d
at 470−71, the relevant clinic was not required to be
registered as a PMC for an officer reasonably to have
relied on the regulatory scheme relevant to PMCs. It
is thus irrelevant whether Cotropia registered his
office as a PMC. The question, instead, is whether
Chapman was investigating a complaint that
Cotropia was operating his clinic in the same manner
as a PMC. Tex. Occ. Code § 168.053.
The record provides ample evidence that could
lead a reasonable officer to believe that Cotropia
operated New Concept in the same manner as a PMC.
The TMB received allegations that Cotropia was
operating an unregistered PMC. Cotropia, by his own
admission, prescribed opioids through March 20,
2015, and previously had operated an unregistered
PMC. His practice involved the care of patients whom
he had taken over from Tommy Swate, whose medical
license was revoked in 2014 for improper treatment of
chronic-pain and addiction patients. Based on those
undisputed facts, Chapman acted reasonably in
relying on § 168.053 as authorizing her to investigate
the allegations regarding Cotropia’s practice.
2.
Cotropia claims that, unlike the physician in
Zadeh, he is not a “licensee,” and § 179.4(a) is limited
to authorizing searches of “licensees.”10 He fails to fit
10 In the first appeal, we noted that “Chapman has not made
clear (on the argu-ments that she has provided thus far) whether
§ 179.4(a) applies to this situation at all, as Cotropia was not a
‘licensee’ at the time of Chapman’s actions.” Cotropia, 721 F.
12a
the definition, the argument goes, because the TMB
had already revoked his license before executing the
administrative subpoena.
But Cotropia’s initial definitional argument
cites no definitions. And for good reason. Section 179
defines its terms: “Licensee” refers to “[a] person to
whom the board has issued a license.” 22 Tex.
Admin. Code § 179.2(10) (emphasis added). The
present perfect tense, “has issued,” indicates that
“licensee” includes any individual who received a
license at some point in the past.11
Other sections of the Texas Administrative
Code reinforce the conclusion that Cotropia counts as
a licensee. For instance, the Code refers to physicians
as “licensees” even after their licenses have been
canceled or surrendered.12 We presume that a given
word is used consistently through-out the text of a
statute.13 Section 179.4 thus does not limit “licensees”
to those who presently possess a valid license. Given
App’x at 359. Our previous opinion, however, did not benefit
from an analysis of § 179.2(10), and it explicitly conditioned its
conclusion on the arguments presented “thus far.” Id.
See Barrett v. United States, 423 U.S. 212, 216 (1976)
(concluding that the present perfect tense “denot[es] an act that
has been completed”).
11
12 See, e.g., 22 Tex. Admin. Code § 196.2(a) (“When a licensee has
surren-dered his or her Texas medical license . . . .”); id.
§ 196.2(b) (“[A] licensee who reapplies for licensure must
demonstrate that the licensee’s return to the practice is in the
best interest of the public.”).
13 See
Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 167–73 (2012).
13a
the statutory definition and context, Cotropia was a
licensee at the time of Chapman’s search.
In response, Cotropia supplants his “nonlicensee” argument with an argument that, at the
time of the search, he was “not a physician.”14 For that
proposition, Cotropia cites 22 Texas Administrative
Code § 176.1(6)—a different chapter of the Code from
§ 179.4’s administrative subpoena authority—which
defines a “physician” as “any person licensed to
practice medicine in this state.” He then grafts
§ 176.1’s definition onto § 179.4, because the title of
§ 179.4 is “Request[s] for Information and Rec-ords
from Physicians” (emphasis added). Even setting
aside these statutory gymnastics, titles should be
used in statutory interpretation only to resolve
textual ambiguities, not to create a textual ambiguity
that overrides a text’s plain meaning. SCALIA &
GARNER, supra, at 221–22.
Finally, Cotropia relies on the Cambridge
Dictionary’s definition of “licensee.” But that doesn’t
supplant the definition by the Texas Legislature.
Although we often use dictionaries in giving terms
their ordinary meaning “[a]bsent a statutory
definition,” we need not resort to dictionary
definitions where statutory definitions leave no
14 Cotropia raises this version of his argument for the first time
in his reply brief. “[W]e ordinarily disregard arguments raised
for the first time in a reply brief.” Sahara Health Care, Inc. v.
Azar, No. 18-41120, --- F.3d ---, 2020 U.S. App. LEXIS 29927, at
*9 n.5 (5th Cir. Sept. 18, 2020). Though Cotropia arguably
waived this theory, it also fails on the merits.
14a
ambiguity. United States v. Hildenbrand, 527 F.3d
466, 476 (5th Cir. 2008).
3.
Cotropia contends that, unlike the search in
Zadeh, Chapman’s search was pretextual.15 Chapman
violated clearly established law, the argument goes,
because her search was done “solely to gather
evidence of a crime . . . and potentially to harass.” The
district court concluded there was no pre-text.16 We
agree.
“It is incorrect . . . to use the label ‘pretext’
simply because of an overlap between an
administrative search and a criminal search.” Zadeh,
928 F.3d at 471. States are free to “address a major
social problem both by way of an administrative
scheme and through penal sanctions.” Burger, 482
Once again, Cotropia describes this argument as a Tolan
violation. Cotropia posits that practicing without a license has
criminal penalties only under Texas Occu-pations Code
§ 165.153 but that it would be impossible for the TMB to bring
admin-istrative proceedings against him, as his “license had
already been revoked.” This appears to rehash Cotropia’s
“licensee” argument. As indicated above, the TMB retained
author-ity to pursue actions against Cotropia even after his
license had been revoked.
15
16 The district court also concluded that the issue of pretext was
“beyond the man-date of the remand” because Cotropia did not
raise the issue in the district court before dismissal or before this
court on his previous appeal. Cotropia contests that application
of the mandate rule, and Chapman neglects to defend the district
court’s application of the mandate rule. Because there was no
pretext, we need not decide whether the district court properly
applied the mandate rule.
15a
U.S. at 712. Because a search can further both
administrative and penal ends, we determine pretext
by asking “whether the search that occurred was
under a scheme serving an administrative purpose.”
Zadeh, 928 F.3d at 471.
The TMB had received a complaint that
Cotropia was operating an unregistered PMC.17 Even
though Cotropia’s license had been revoked at the
time of the search, the Board still had the power to
take disciplinary action against him, to issue
administrative penalties, and to seek injunctions. See
Tex. Occ. Code §§ 153.001(3), 164.001(b), 165.051.
Therefore,
Chapman’s
search
served
an
administrative purpose, even if the TMB ultimately
declined to take further administrative action against
Cotropia. The search was not pretextual.
AFFIRMED.
ANDREW S. OLDHAM, Circuit Judge, concurring:
I would avoid the constitutional question in
this case. In Zadeh v. Robinson, 928 F.3d 457 (5th Cir.
2019), we held that certain searches by the Texas
Medical Board (“TMB”) violate the Fourth
Cotropia repeatedly insists that Chapman knew or should
have known that Cotropia was not engaged in the practice of
medicine at the time of her search because it was a matter of
public record that his license had been revoked as of March 20,
2015. But, particularly in light of the allegations against
Cotropia, the Board and its investigators were under no
obligation to presume that Cotropia was abiding by the
revocation order (as he undisputedly had not from February 13
until March 20).
17
16a
Amendment. I do not know whether Zadeh was
correct as an original matter. For example, it could be
argued that TMB resembles a guild. See Tex. Occ.
Code § 152.002(a)(1) (requiring 12 of TMB’s 19
members to be licensed physicians); id. § 152.001
(empowering TMB to regulate physicians); Guild,
Black’s Law Dictionary (11th ed. 2019) (“A group of
persons sharing a common vocation who unite to
regulate the affairs of their trade in order to protect
and promote their common vocation”). And guild
searches have a rich common-law history. As early as
1297, a London city ordinance empowered six
particular clothworkers to “examine and search” all
rough clothwork before it left the city. William J.
Cuddihy, The Fourth Amendment: Origins and
Original Meaning 33 (2009). Guild searches persisted
through 1485, see id. at 33–37; from 1485 to 1642, id.
at 54; from 1642 to 1700, id. at 159, 173; and from
1700 to 1760, id. at 304–05, 412–14. Such searches
(and the reactions to them) are part of the original
public meaning of our Fourth Amendment. See id. at
727–73; see also Atwater v. City of Lago Vista, 532
U.S. 318, 326 (2001) (“In reading the [Fourth]
Amendment, we are guided by the traditional
protections against unreasonable searches and
seizures afforded by the common law at the time of
the framing . . . .” (quotation omitted)). Perhaps Zadeh
accords with this history and meaning; perhaps not.
17a
For present purposes, all that matters is that
we needn’t decide the question. See Pearson v.
Callahan, 555 U.S. 223, 236–42 (2009). Because
regardless of whether the TMB investigator violated
the Fourth Amendment, we all agree she is entitled
to qualified immunity.
18a
ENTERED: October 22, 2020
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 19-20688
JOSEPH COTROPIA,
Plaintiff – Appellant,
versus
MARY CHAPMAN, INDIVIDUALLY,
Defendant – Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:16-CV-742
Before Smith, Clement, and Oldham, Circuit
Judges.
JUDGMENT
This cause was considered on the record on
appeal and the briefs on file.
IT IS ORDERED and ADJUDGED that the
judgment of the District Court is AFFIRMED.
19a
IT IS FURTHER ORDERED that each party
bear its own costs on appeal.
Andrew S. Oldham, Circuit Judge, concurring.
20a
ENTERED: September 12, 2019
IN THE UNITED STATES COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HUSTON DIVISION
JOSEPH COTROPIA,
Plaintiff,
v.
MARY CHAPMAN,
Defendant.
§
§
§
§ CIVIL ACTION NO.
§ H-16-0742
§
§
§
§
ORDER ADOPTING
MEMORANDUM AND RECOMMENDATION
In accordance with the Order Adopting
Memorandum
and
Recommendation,
it
is
ADJUDGED that plaintiff Joseph Cotropia take
nothing against defendant Mary Chapman.
Defendant is awarded her costs.
THIS IS A FINAL JUDGMENT.
SIGNED this 12th day of September, 2019, at
Houston, Texas.
21a
/s/ Sim Lake
SIM LAKE
SENIOR UNITED STATES
DISTRICT JUDGE
22a
ENTERED: September 12, 2019
IN THE UNITED STATES COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HUSTON DIVISION
JOSEPH COTROPIA,
Plaintiff,
v.
MARY CHAPMAN,
Defendant.
§
§
§
§ CIVIL ACTION NO.
§ H-16-0742
§
§
§
§
ORDER ADOPTING
MEMORANDUM AND RECOMMENDATION
Pending before the court are the Magistrate
Judge's Memorandum and Recommendation (Docket
Entry No. 73) and Plaintiff Joseph Cotropia's Written
Objections to the Magistrate's Memorandum and
Recommendation (Docket Entry No. 74).
The court must review de novo portions of the
Magistrate
Judge's
proposed
findings
and
recommendations on dispositive matters to which the
parties have filed specific, written objections. See Fed.
R. Civ. P. 72 (b); 28 U.S.C. § 636 (b) (1).
The court has reviewed plaintiff's objections
and concludes that the purported fact issue of
whether Chapman took the subpoenaed records from
Cotropia's receptionist or was given the records is
23a
immaterial to the court's determination that
Chapman was entitled to qualified immunity for the
seizure of the documents pursuant to the instanter
subpoena. Plaintiff's objections are therefore
OVERRULED, and the Memorandum and
Recommendation is ADOPTED by the court.
SIGNED this 12th day of September, 2019, at
Houston, Texas.
/s/ Sim Lake
SIM LAKE
SENIOR UNITED STATES
DISTRICT JUDGE
24a
ENTERED: August 21, 2019
IN THE UNITED STATES COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JOSEPH COTROPIA,
Plaintiff,
v.
MARY CHAPMAN,
Defendant.
§
§
§
§ CIVIL ACTION NO.
§ H-16-0742
§
§
§
§
MEMORANDUM AND RECOMMENDATION
Pending before the court is Defendant
Chapman’s Motion for Summary Judgment (Doc. 66)
and the response filed thereto. For the reasons
discussed below, it is RECOMMENDED that the
motion be GRANTED.
I. Case Background
Plaintiff Joseph Cotropia (“Cotropia”) brings this
action against an investigator for the Texas Medical
Board (“TMB”) alleging constitutional violations
arising out of the execution of an administrative
search warrant at his place of business.
25a
A. Factual Background
Cotropia is the former supervising physician of
a pain management clinic in Houston, Texas.1 On
February 13, 2015, the TMB revoked Cotropia’s
license to practice medicine after he was found to have
failed to comply with the required standard of care for
the treatment of chronic pain.2 The revocation was
based on an administrative law judge’s findings that
Cotropia violated the Medical Practices Act and TMB
rules by prescribing opioids and other controlled
substances that were not therapeutic, by failing to
maintain records that supported the prescribed
therapeutic regime, for inadequately supervising
midlevel providers and working at an unregistered,
uncertified pain management clinic.3 That revocation
became final on March 17, 2015.4 Cotropia prescribed
opioid medications until March 20, 2015.5
On March 27, 2015, Defendant Mary Chapman
(“Chapman”), an investigator for the TMB, traveled to
Cotropia’s office at the direction of her supervisor
1 See Doc. 9-1, Ex. A to Defs.’ Mot. to Dismiss, Proposal for Action
pp. 4, 6.
2 See Doc. 9-2, Ex. B to Defs.’ Mot. to Dismiss, TMB Minutes
Dated Feb. 13, 2015.
3 See Doc. 9-1, Ex. A to Defs.’ Mot. to Dismiss, Proposal for Action
pp. 4, 6.
See Doc. 66-8, Ex. G to Def.’s Mot. for Summ. J., Dep. of
Cotropia p. 17.
4
See id. p. 18. Cotropia claimed that his attorney, Thomas
Swate, who officed in a connecting suite, failed to notify him of
the revocation. See id. p. 14.
5
26a
with an instanter subpoena to search for patient signin sheets for all patients seen from February 27, 2015,
to the present, and copies of all prescriptions written
from February 27, 2015, to the present.6 Chapman
was accompanied by a Drug Enforcement
Administration (“DEA”) agent.7
Chapman presented the instanter subpoena to
Cotropia’s receptionist, Betty Spaugh (“Spaugh”).8
Spaugh initially stated that she was the record
custodian for Cotropia’s records and agreed to
produce the records but, after talking with Cotropia’s
attorney, Spaugh denied that she had access to
Cotropia’s records.9 Chapman was provided twentythree documents before Spaugh refused to produce
additional records.10 The DEA agent called for police
backup.11 After a deputy constable arrived, Chapman
and the DEA agent left with the twenty-three
documents initially provided; Chapman did not
consider this to be full compliance with the
6 See Doc. 66-9, Ex. H to Def.’s Mot. for Summ. J., Chapman’s
Dep. p. 2; Doc. 66-3, Ex. B to Def.’s Mot. for Summ. J., Subpoena
Duces Tecum p. 3.
7 See Doc. 66-9, Ex. H to Def.’s Mot. for Summ. J., Chapman’s
Dep. p. 3.
8 See id.
9 See id.
See Doc. 66-2, Ex. A to Def.’s Mot. for Summ. J., Aff. of
Chapman p. 2.
10
11 See id.
27a
subpoena.12 This encounter spanned approximately
one hour.13
B.
Procedural History
On March 21, 2016, Cotropia filed suit
pursuant to 42 U.S.C. § 1983 against Chapman, the
TMB, nineteen members of the TMB, and the
executive director of the TMB for violations of his
Fourth and Fourteenth Amendment rights arising
from the “warrantless search and seizure of
documents.”14 Cotropia also alleged that the
TMB’sfailure to train Chapman caused Cotropia’s
constitutional injuries.15
On June 9, 2016, Defendants filed a motion to
dismiss and on June 28, 2016, Defendants filed an
amended motion to dismiss.16 Cotropia responded on
July 12, 2016, and a reply brief was filed by
Defendants on July 28, 2016.17 In their motions to
dismiss, Defendants argued that sovereign immunity
barred Cotropia’s claims against the TMB and its
members sued in their official capacities, Cotropia
12 See id. p. 3.
13 See Doc. 69, Ex. G to Pl.’s Resp. to Def.’s Mot. for Summ. J.,
Betty Spaugh’s Aff. p. 2.
14 See Doc. 1, Pl.’s Orig. Compl. pp. 5-6.
15 See id. pp. 6-7.
16 See Doc. 4, Defs.’ Mot. to Dismiss; Doc. 9, Defs.’ Am. Mot. to
Dismiss.
17 See Doc. 13, Pl.’s Resp.; Doc. 18, Defs.’ Reply.
28a
lacked standing to assert claims for injunctive relief
and Chapman was entitled to qualified immunity.18
On November 16, 2016, the court granted
Defendants’ motion and dismissed the action with
prejudice.19 Plaintiff appealed the dismissal to the
Court of Appeals for the Fifth Circuit.20 On June 2,
2017, the appeal was dismissed for want of
prosecution.21 On June 19, 2017, the appellate court
reopened the appeal.22
On March 27, 2018, the Fifth Circuit affirmed
the dismissal of the TMB, the members of the TMB,
and the Board’s executive director (“Cotropia I”).23
The court reversed the dismissal of the claims against
Chapman.24 In doing so, the court found that Cotropia
had alleged sufficient facts to show that Chapman’s
taking documents from Cotropia’s office over his
receptionist’s objection violated Cotropia’s clearly
established right to an opportunity to obtain a
precompliance review of the administrative
subpoena. In so holding, the court expressly
recognized that there were statutory and regulatory
provisions that granted the TMB instanter inspection
authority but, as those arguments were not raised by
18 See Doc. 9, Defs.’ Am. Mot. to Dismiss pp. 10-12, 16-22.
19 See Doc. 20, Ord. Dated Nov. 16, 2016.
20 See Doc. 21, Not. of Appeal.
21 See Doc. 27, Ord. Dated June 2, 2017.
22 See Doc. 28, Ord. Dated June 19, 2017.
23 See Doc. 32, Per Curiam Op. p. 2.
24 See id. pp. 6-7.
29a
Chapman in the lower court, it did not consider them.
The court also refused to consider as untimely
Chapman’s Burger25 argument that the practice of
medicine was a closely regulated industry and
therefore its regulatory scheme was a constitutionally
adequate substitute for a warrant.26
After remand, the parties engaged in discovery
and, on November 2, 2018, Defendant Chapman filed
her motion for summary judgment on the issue of
qualified immunity. Briefing is complete and the
court now considers the motion.
II. Legal Standards
A.
Summary Judgment Standard
Summary judgment is warranted when the
evidence reveals that no genuine dispute exists
regarding any material fact and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Stauffer v. Gearhart, 741 F.3d 574, 581 (5th
Cir. 2014). A material fact is a fact that is identified
by applicable substantive law as critical to the
outcome of the suit. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986); Ameristar Jet Charter, Inc.
v. Signal Composites, Inc., 271 F.3d 624, 626 (5th Cir.
25 See New York v. Burger, 482 U.S. 691 (1987); Beck v. Tex.
State Bd. of Dental Exam’rs, 204 F.3d 629 (5th Cir. 2000)(finding
that the Texas Controlled Substances Act gave the investigators
and the DPS agent the right to conduct an instanter warrantless
search of a dentist’s office).
26 See Doc. 32, Per Curiam Op. p. 9.
30a
2001). To be genuine, the dispute regarding a
material fact must be supported by evidence such that
a reasonable jury could resolve the issue in favor of
either party. See Royal v. CCC & R Tres Arboles,
L.L.C., 736 F.3d 396, 400 (5th Cir. 2013)(quoting
Anderson, 477 U.S. at 248).
The movant must inform the court of the basis
for the summary judgment motion and must point to
relevant excerpts from pleadings, depositions,
answers to interrogatories, admissions, or affidavits
that demonstrate the absence of genuine factual
issues. Celotex Corp., 477 U.S. at 323; Topalian v.
Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992). The
movant may meet this burden by demonstrating an
absence of evidence in support of one or more
elements of the case for which the nonmovant bears
the burden of proof. See Celotex Corp., 477 U.S. at
322; Exxon Corp. v. Oxxford Clothes, Inc., 109 F.3d
1070, 1074 (5th Cir. 1997). If the movant carries its
burden, the nonmovant may not rest on the
allegations or denials in the pleading but must
respond with evidence showing a genuine factual
dispute. Stauffer, 741 F.3d at 581 (citing Hathaway v.
Bazany, 507 F.3d 312, 319 (5th Cir. 2007)).
B.
Section 1983 and Fourth Amendment
Standards
In order to prevail on a claim under Section
1983,27 a plaintiff must establish that the defendant
27 The provision reads, in relevant part:
31a
deprived the plaintiff of his constitutional rights
while acting under the color of state law. Moody v.
Farrell, 868 F.3d 348, 351 (5th Cir. 2017).
Government officials have qualified immunity from
Section 1983 “liability for civil damages insofar as
their conduct does not violate clearly established
statutory or constitutional rights of which a
reasonable person would have known.” Pearson v.
Callahan, 555 U.S. 223, 231 (2009)(quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)).
Plaintiff’s claim of unreasonable seizure of
records arises pursuant to the protections of the
Fourth Amendment. The Fourth Amendment,28
applied to state actors through the Fourteenth
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State . . . , subjects, or causes to be subjected, any
citizen of the United States or other person
within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to
the party injured in an action at law, suit in
equity, or other proper proceeding for redress
....
42 U.S.C. § 1983.
28 The full text of the Fourth Amendment is:
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or
affirmation, and particularly describing the
place to be searched, and the persons or things
to be seized.
32a
Amendment, protects “[t]he right of the people to be
secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” U.S.
Const. amend. IV. Reasonableness is the ultimate
measure of the constitutionality of a seizure of person
or property. See Trent v. Wade, 776 F.3d 368, 377 (5th
Cir. 2015)(quoting Fernandez v. California, 571 U.S.
292, 298 (2014)).
Qualified immunity protects an officer even for
reasonable mistakes in judgment. See id. (quoting
Groh v. Ramirez, 540 U.S. 551, 567 (2004))(“The
protection of qualified immunity applies regardless of
whether the government official’s error is ‘a mistake
of law, a mistake of fact, or a mistake based on mixed
questions of law and fact.’”); Ashcroft v. Al-Kidd, 563
U.S. 731, 743 (2011)(“Qualified immunity gives
government officials breathing room to make
reasonable but mistaken judgments about open legal
questions.”).
By invoking qualified immunity, a summary
judgment movant shifts the burden to the nonmovant
to rebut the movant’s assertion. Cantrell v. City of
Murphy, 666 F.3d 911, 918 (5th Cir. 2012). In order to
overcome an assertion of qualified immunity, a
plaintiff must produce evidence that the alleged
conduct violated a statutory or constitutional right
and that the right was clearly established at the time
of the challenged conduct. See Morgan v. Swanson,
659 F.3d 359, 371 (5th Cir. 2011). The Supreme Court
has held that the order in which these two
considerations are addressed is at the court’s
discretion. See Pearson, 555 U.S. 818-21.
33a
III. Analysis
In her motion for summary judgment,
Chapman argues that in March 2015, she did not
have fair notice that the use of an instanter subpoena
was constitutionally limited and therefore she is
entitled to qualified immunity. Chapman also argues
that the practice of medicine is a closely regulated
business that qualifies under an exception to
precompliance review of an administrative subpoena,
as authorized by New York v. Burger, 482 U.S. 691,
702 (1987), and its progeny.
Plaintiff counters that because his license to
practice medicine had been revoked, the primary
purpose of the instanter subpoena must have been
pretextual and thus was an improper use of the
administrative process. Cotropia also complains that
Chapman seized financial records outside the scope of
the subpoena.
A.
Administrative Process Exception to the
Warrant Requirement
It is well-settled that the Fourth Amendment’s
prohibition of unreasonable searches and seizures is
applicable to commercial premises, with the caveat
that a business owner’s expectation of privacy is less
than that expected in an individual’s home. See See v.
City of Seattle, 387 U.S. 541, 543 (1967); Donovan v.
Dewey, 452 U.S. 594, 598-599 (1981). The Supreme
Court has found that the expectation of privacy was
“particularly attenuated” in commercial property
34a
engaged in “closely regulated” industries. See Katz v.
United States, 389 U.S. 347, 351-52 (1967).
In Burger, the owner of a junkyard objected to
an warrantless search of his business that was
authorized by a state statute regulating vehicledismantling/automobile junkyard businesses. See
Burger, 482 U.S. at 693-94, 698. After the officers
found evidence of stolen vehicles, the owner was
arrested. Id. at 695-96. The owner moved to suppress
the evidence on the ground that the statute
permitting
the
warrantless
inspection
was
unconstitutional. Id. at 696. The trial court held that
the junkyard business was a “pervasively regulated”
industry in which warrantless administrative
inspections were appropriate. Id. The court of appeals
reversed, finding that the statute violated the Fourth
Amendment’s prohibition of unreasonable searches
because it authorized searches to be undertaken to
uncover evidence of criminality and not to enforce a
regulatory scheme. Id. at 698.
The Supreme Court reversed and found that a
warrantless inspection of commercial premises in a
“closely regulated” industry could satisfy the Fourth
Amendment’s reasonableness standard if three
criteria were met. Id. at 702. First, there must be a
substantial government interest that underpinned
the regulatory scheme and the related inspection. Id.
Second, the warrantless inspection must be necessary
to further the regulatory scheme. Id. And, finally, the
inspection program must provide a “constitutionally
adequate substitute for a warrant.” Id. at 703. In the
context of a warrantless inspection, the statute must
35a
advise the owner of the property that the search was
made pursuant to the law, and the statute limited the
discretion of the searching officers as to time, place
and scope of items searched. Id.
Applying those factors to the search of Burger’s
junkyard, the court found that the regulation of auto
dismantlers was a new branch of the historically
closely regulated business of operating a junkyard. Id.
at 707. Addressing the second factor, the Court
rejected the court of appeals’ concern that the
warrantless search was a pretext for a search to
uncover evidence of criminality and found that the
state could address a major social problem with both
an administrative scheme and criminal penalties. Id.
at 712. Concluding, the court determined that the
challenged statute adequately informed the owner of
such a business that inspections would be made on a
regular basis by those authorized by the statute and
that searches were limited to records, vehicles and
vehicle parts on the premises during business hours.
Id.
In Beck v. Tex. Bd. of Dental Examiners, 204
F.3d 629, 632 (5th Cir. 2000), the Fifth Circuit applied
the Burger exception to allow an instanter inspection
of a dental office based on allegations of the
mishandling of controlled substances. There, the
Fifth Circuit determined that there was a significant
state interest in the regulation of a dentist’s use of
controlled substances and the search was conducted
pursuant to two regulatory schemes. The appellate
court found that there was an adequate substitute for
a warrant where the statute permitted an
administrative inspection by a credentialed official
during “reasonable times,” and “after stating his
36a
purpose.” Id. at 638. The court also favorably cited the
regulatory scheme that allowed notice and an
opportunity to be heard at a subsequent disciplinary
hearing, the results of which were appealable in
district court. Id. at 635.
Recently, in Zadeh v. Robinson, 928 F.3d 457,
462 (5th Cir. 2019), a different result was reached on
an instanter subpoena issued by the TMB. Zadeh, an
internal medicine doctor, was the subject of an
investigation for violations of the TMB’s regulations.
At the request of a DEA agent, the TMB initiated an
instanter inspection of Zadeh’s office. Id. Zadeh and a
patient sued for violations of their Fourth
Amendment, due process and privacy rights based on
that instanter inspection. Id. at 463.
Relevant to the present issue, the district court
considered whether the TMB defendants exceeded
their statutory subpoena authority by searching and
inspecting Zadeh’s office and records. Id. at 463. The
court ultimately dismissed all Zadeh’s constitutional
claims. Id.
On appeal, the Fifth Circuit considered
whether the TMB violated the Fourth Amendment
when it demanded instanter compliance with its
administrative subpoena. Id. at 464. Attempting to
evade he court’s Cotropia I holding that, absent
exigent
circumstances,
the
subject
of
an
administrative search must be afforded an
opportunity for a precompliance review of the
subpoena, the TMB argued that the practice of
medicine was a closely regulated industry and fell
within the Burger exception to Fourth Amendment’s
37a
requirement of a warrant or other precompliance
process. Id. at 464-65.
Conceding that the practice of medicine was an
extensively regulated profession and had licensure
requirements, the Fifth Circuit nonetheless held that
various regulatory schemes concerning the operation
of pain clinics and the dispensing of controlled
substances did not support a conclusion that the
medical profession had a history of permitting
warrantless inspections and searches of a doctor’s
office. Id. at 466.
After finding that Zadeh’s Fourth Amendment
rights had been violated, the court turned to whether
the law was clearly established at the time of the
search, on October 22, 2013. The court found that the
parameters of Burger and Beck were not so clearly
established that all reasonable officers would have
known that the Burger factors were not present in the
context of the administrative search of a doctor’s office
at the time of the search. Id. at 470. Notably, Zadeh
cited no pre-March 2015 case that would have put the
TMB on notice that the instanter subpoena would not
pass constitutional muster as it had in Beck.
Applying the above legal landscape to the
present facts, it was not until August 31, 2018, when
the court issued its first opinion in Zadeh, that the
TMB and its employees were put on notice that its
instanter subpoena process fell outside the Burger
and Beck exception. One only needs to read the Fifth
Circuit decisions in Cotropia I (March 27, 2018) and
Zadeh (July 2, 2019), to conclude that the law was not
clearly established in 2015 when Chapman served the
instanter subpoena on Cotropia. Prior to those cases,
38a
the TMB could arguably rely on Beck’s approval of the
instanter subpoena process. Therefore, Chapman is
entitled to qualified immunity for the execution of the
instanter subpoena on March 27, 2015.
B.
Pretext
Cotropia argues that the instanter subpoena
was constitutionally invalid because it was a pretext
for a criminal investigation. Chapman argues that
this argument is barred by the mandate rule and,
alternatively, argues that Cotropia’s pretext
argument fails as a matter of fact and law.
The mandate rule is a corollary of the law of the
case doctrine, which prohibits the district court from
addressing issues that were beyond the mandate from
the appellate court on remand. See United States v.
Lee, 358 F.3d 315, 320 (5th Cir. 2004). “Absent
exceptional circumstances, the mandate rule compels
compliance on remand with the dictates of a superior
court and forecloses relitigation of issues expressly or
impliedly decided by the appellate court. Lee, 358
F.3d at 321 (citing U.S. v. Bell, 988 F.2d 247, 251 (1st
Cir. 1993)). The mandate rule bars litigation of those
issues decided by the district court or those otherwise
waived because they were not raised in the district
court. See id. (citing Bell, 988 F.2d at 250). The Fifth
Circuit has stated, “Remand is not the time to bring
new issues that could have been raised initially.”
United States v. McCrimmon, 443 F.3d 454, 459 (5th
Cir. 2006)(“All other issues not arising out of this
court’s ruling and not raised before the appeals court,
which could have been brought in the original appeal,
are not proper for reconsideration by the district court
below.”); see also Henderson v. Stalder, 407 F.3d 351,
39a
354 (5th Cir. 2005)(commenting that the narrow
ground for remand was not an invitation to add new
claims or rationales). In the present case, Plaintiff
failed to raise the issue of pretext as a challenge to the
instanter subpoena in his complaint or his response
to the original motion to dismiss.29 The only issues
before this court on remand were whether Cotropia’s
claim against Chapman in her individual capacity
was barred by qualified immunity, whether there was
a consent to search and whether the medical
profession was a closely regulated industry.30
The court concludes that whether the instanter
subpoena was a pretext for collecting information for
a criminal investigation was not raised before the
district court prior to the court’s dismissal of the
action and was not raised before the appellate court.
As a result, Plaintiff may not raise the issue now as it
is beyond the mandate of the remand. Even if the
court were to consider this issue, Plaintiff has failed
to support his pretext argument with relevant facts or
applicable case law.
In Zadeh, the TMB investigator searched
Zadeh’s medical office accompanied by a DEA agent.
See Zadeh, 928 F.3d at 471. Relying on United States
v. Villamonte-Marquez, 462 U.S. 579, 584 n.3 (1983)
and United States v. Thomas, 973 F.2d 1152, 1155-56
(5th Cir. 1992), the Fifth Circuit rejected Zadeh’s
argument that the DEA agent’s presence was
evidence of a pretextual search because the TMB had
a valid reason to search the medical office. Id. An
See Doc. 1, Pl.’s Orig. Compl.; Doc. 6, Pl.’s 1st Am. Orig.
Compl.; Doc. 13, Pl.’s Resp. to Defs.’ Mot. to Dismiss,
29
30 See Doc. 32, Per Curiam Op., pp. 9-11.
40a
administrative search was improper only when
performed “solely to uncover evidence of criminality.”
Id. at 472 (citing Burger, 482 U.S. at 698).
Here, Cotropia has failed to adduce any
evidence that the search of his office was solely to
investigate a crime. Rather, it appears undisputed
that the TMB was searching his office to determine if
he was practicing medicine after his license had been
suspended, a legitimate administrative purpose.
Chapman is entitled to summary judgment on this
issue.
C.
Scope of the seizure
Cotropia argues that some of the records seized
by Chapman exceeded the express scope of the
instanter subpoena and, therefore, Chapman violated
Cotropia’s constitutional rights. Chapman counters
that Cotropia has expressly disclaimed any
ownership interest in those particular records seized
and, therefore, lacks standing to complain about the
seizure of those records.
It is well-settled that Fourth Amendment
rights are personal rights that may only be asserted
by the person whose rights were violated. Rakas v.
Illinois, 439 U.S. 128, 133-34 (1978). In Rakas, the
Supreme Court found that two passengers in a vehicle
searched by police had no ownership interest in the
vehicle or otherwise a reasonable expectation of
privacy in the vehicle. Cotropia only has a Fourth
Amendment right to privacy concerning his own
records, not records belonging to another. Id.
The subpoena commanded Cotropia to produce:
(1) patient signin heets and/or patient log/register for
41a
all patients evaluated from February 27, 2015, to the
present date; and (2) copies of any and all
prescriptions issued for February 27, 2017, to the
present date.31 Only twenty-three pages of documents
were actually seized by Chapman that day. Those
documents were: (1) thirteen pages of an appointment
ledger for the relevant time period; (2) a blank page;
(3) two sign-in sheets for “T.E. Swate, M.D.” dated
February 25-27, 2015; (4) a two-page ledger reflecting
patient payments for February 27, 2015, to Dr.
Cotropia; and (5) five credit card receipts showing
payments to T.E. Swate ranging from $85 to $195 on
February 27, 2015.
At his deposition, Cotropia agreed that the
patient sign-in ledgers belonged to his practice.32 He
also agreed that the patient sign-in ledgers captioned
“T.E. Swate, M.D.” were used by him on the dates
reflected.33 Those documents in categories 1 and 3 fall
within the plain reading of the subpoena.34 Category
4, the two-page ledger from February 27, 2015,
showing patient names and payments also falls
within the plain language of the subpoena because it
discloses the patients seen on a that day and therefore
is analogous to a patient log or register. As these
records were within the scope of the subpoena,
31 See Doc. 66-3, Ex. B to Def.’s Mot. for Summ. J., Subpoena
Duces Tecum p. 3.
See Doc. 66-8, Ex. G. to Def.’s Mot. for Summ. J., Dep. of
Cotropia pp. 6-7.
32
33 See id. p. 7.
34 As to category 2, the seizure of a blank sheet of paper does not
raise a constitutional claim.
42a
Cotropia’s argument that the documents seized were
outside the scope of the subpoena fails.
Category five, the credit card receipts for T.E.
Swate, does not fall within the subpoena. However,
Cotropia disavowed any knowledge or ownership of
the Swate receipts.35 Cotropia even denied that they
had been seized from his office on March 27, 2015.36
Based on his testimony, Cotropia lacks standing to
complain about the wrongful seizure of these credit
card receipts. Chapman is entitled to summary
judgment on this claim.
IV. Conclusion
Based
on
the
foregoing,
RECOMMENDS that Defendant’s
Summary Judgment be GRANTED.
the
court
Motion for
The Clerk shall send copies of this
Memorandum and Recommendation to the respective
parties who have fourteen days from the receipt
thereof to file written objections thereto pursuant to
Federal Rule of Civil Procedure 72(b) and General
Order 2002-13. Failure to file written objections
within the time period mentioned shall bar an
aggrieved party from attacking the factual findings
and legal conclusions on appeal.
filed
The original of any written objections shall be
with the United States District Clerk
See Doc. 66-8, Ex. G. to Def.’s Mot. for Summ. J., Dep. of
Cotropia p. 14.
35
See id. Cotropia stated, “I don’t know where they were
recovered from.” When asked if the credit card Receipts were his,
he responded, “No,” for each receipt. Id. p. 15.
36
43a
electronically. Copies of such objections shall be
mailed to opposing parties and to the chambers of the
undersigned, 515 Rusk, Suite 7019, Houston, Texas
77002.
SIGNED in Houston, Texas, this 21st day of
August, 2019.
/s/ Nancy K. Johnson
Nancy K. Johnson
United States Magistrate Judge
44a
ENTERED: December 2, 2020
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 19-20688
JOSEPH COTROPIA,
Plaintiff – Appellant,
versus
MARY CHAPMAN, INDIVIDUALLY,
Defendant – Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:16-CV-742
Before Smith, Clement, and Oldham, Circuit
Judges.
ON PETITION FOR REHEARING EN BANC
(Opinion 978 F.3d 282 (5th Cir. Oct. 22, 2020))
Before Smith, Clement, and Oldham, Circuit
Judges.
45a
Per Curiam:
Treating the petition for rehearing en banc as
a petition for panel rehearing, the petition for panel
rehearing is DENIED. No member of the panel or
judge in regular active service having requested that
the court be polled on rehearing en banc (FED. R. APP.
P. 35; 5TH CIR. R. 35), the petition for rehearing en
banc is DENIED.
46a
FOURTH AMENDMENT
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and
the persons or things to be seized.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.