JUDGE JOHN W. deGRAVELLES, UNITED STATES DISTRICT COURT, MIDDLE DISTRICT OF LOUISIANA
Before the Court is the Renewed Motion for Temporary Restraining Order and Preliminary Injunction filed by Planned Parenthood Gulf Coast, Inc. ("PPGC" or "Planned Parenthood"), appearing on behalf of both itself and three patients — Jane Does #1, 2, and 3 ("Individual Plaintiffs")
On Sunday, October 18, this Court issued an order denying Defendant's motion to dismiss and granting Plaintiffs' request for a temporary restraining order, (Doc. 55). It set a status conference for the following day. At that status conference, all parties agreed that no further discovery and no further argument was necessary for this Court to make its determination on whether to issue a preliminary injunction, (Doc. 58). Both parties expressed "no objection to converting the temporary restraining order to a preliminary injunction." (Id.) This agreement was reaffirmed in a telephone status conference on October 28, 2015. (Doc. 62.) By the Parties' express consent, the evidentiary record has therefore been finalized, and any factual allegations left uncontroverted must be accepted as true.
On October 28, 2015, by way of Notice of Supplemental Authority, Plaintiffs brought to the Court's attention a case decided the same day which addresses the identical issue confronting this Court, in which the court granted a preliminary injunction enjoining the Governor of Alabama and others from suspending Medicaid payments to Planned Parenthood Southeast, Inc. and from failing to reinstate the State's provider
For the reasons first set out in the Order on Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction, (Doc. 55), and more fully set forth below, the Court determines that Plaintiffs have met their burden for a preliminary injunction to maintain the status quo. The Court therefore enjoins from suspending Medicaid payments to PPGC for services rendered to Medicaid beneficiaries, including but not limited to the Individual Plaintiffs pursuant to Federal Rule of Civil Procedure 65(b)(2).
Defendant is sued in her official capacity, as she is the head of DHH, (Doc. 1 ¶ 19 at 4; Doc 43 ¶ 20 at 6; Doc. 53-1 at 1). DHH administers this state's Medicaid Program, a dual state-federal assistance program for families and individuals with low income and limited resources encoded in 42 U.S.C. 1396 et seq.
PPGC is a charitable organization, so classified under section 501(c)(3) of the Internal Revenue Code, 26 U.S.C. § 501(c)(1), U.S. DEP'T OF THE TREASURY, INTERNAL REVENUE SERV., FORM 990 at 1 (2012). (Doc. 43 ¶ 10 at 4; see also Doc. 4-2 ¶ 5 at 2.) Headquartered in Houston, Texas, it maintains its legal domicile in the Lone Star State, FORM 990 at 1, but is licensed to do business in Louisiana, (Doc. 43 ¶ 10 at 4; see also, e.g., Doc. 1 ¶ 9 at 3; Doc. 4-2 ¶ 5 at 2.) PPGC operates family planning centers and clinics in the Houston area of Texas and in Louisiana. (Doc. 43 ¶¶ 10-11 at 4; see also Doc. 1 ¶ 10 at 3-4.) Its first center founded in 1984, PPGC's two Louisiana clinics — the Baton Rouge Health Center ("BRHC") and the New Orleans Health Center ("NOHC") — participate in Louisiana's Medicaid Program, "providing medical services to low-income enrollees in both underserved communities." (Doc. 1 ¶ 10 at 3-4; Doc. 43 ¶ 11 at 4; see also Hr'g Tr. 10:25-11:6, Sept. 2, 2015.)
In fiscal year 2014, the two facilities in Louisiana served over 5,200 Medicaid patients and were visited by over 10,000 women. (See, e.g., Doc. 43 ¶ 13 at 4; Doc. 1 ¶ 40 at 11; Hr'g Tr. 8:23-24, Sept. 2, 2015.) "Nearly 75%" of the visits to BRHC were by patients enrolled in Medicaid; "[n]early 40%" of appointments at NOHC were with similarly classified individuals. (Doc. 3 ¶¶ 9-10 at 3-4; Doc. 43 ¶ 11 at 4.) "[C]urrently, over 60% of PPGC's Louisiana visits are for patients enrolled in the Medicaid program." (Doc. ¶ 13 at 4.) The services offered by these two centers include "physical exams, contraception and contraceptive counseling, screening for breast cancer, screening and treatment for cervical cancer, testing and treating for certain sexually transmitted diseases ..., pregnancy testing and counseling, and certain procedures[,] including colposcopy." (Doc. 1 ¶ 10 at 3-4; Doc. 4-2 ¶ 8 at 3; Doc. 43 ¶ 11 at 4; Hr'g Tr. 7:24-8:7, 8:16-9:9, Sept. 2, 2015.)
Neither BRHC nor NOHC performs abortions. (Doc. 1 ¶ 11 at 4; Doc. 43 ¶ 12 at 4; Doc. 46-1 ¶ 5 at 2; Hr'g Tr. 21:22-25:3, Oct. 16, 2015.) Neither currently has or has ever had a fetal tissue donation program. (Doc. 46 at 11; Doc. 46-1 ¶ 21 at 6.)
The Individual Plaintiffs rely upon Medicaid and receive their medical care from one of PPGC's two facilities. (Doc. 4-3, 4-4, 4-5.) They wish to continue to obtain their reproductive care from PPGC and do not know where they could elsewhere get the same kind of care. (Doc. 4-3 ¶¶ 6-7 at 2; Doc. 4-4 ¶ 8 at 2; Doc. 4-5 ¶ 6 at 2; Hr'g Tr. 8:23-9:9, Sept. 2, 2015.) Jane Doe #2 became a patient at NOHC after her former doctor refused to accept Medicaid, (Doc. 4-4 ¶ 3 at 1), and Jane Doe #2 has found it "very difficult to find doctors in Baton Rouge who will accept Medicaid," (Doc. 4-5 ¶ 3 at 1). In this proceeding, they are intended to represent the interests of many of PPGC's other Medicaid patients throughout the state of Louisiana. (See, e.g., Doc. 46 at 29-30; Doc. 49-1 at 10.)
On February 19, 2014, pursuant to the concurrent resolutions of Louisiana's House of Representatives and Senate, the Louisiana Legislative Auditor ("Auditor") reviewed "a sample of Medicaid payments DHH during calendar year 2012 to determine if they were appropriate and supported." (Doc. 46-1 at 14 (LOUISIANA LEGISLATIVE AUDITOR, RESPONSE TO SENATE CONCURRENT RESOLUTION NO. 57 AND HOUSE RESOLUTION NO. 105, 2013 REGULAR
In July 2015, the Center for Medical Progress ("CMP") released a series of edited videos which purported to document discussions regarding the acquisition of tissue samples between various Planned Parenthood affiliates' officials and disguised actors. See Kevin Litten, Bobby Jindal Announces Investigation into Planned Parenthood, THE TIMES-PICAYUNE, July 14, 2015; Planned Parenthood Exposed: Examining the Horrific Abortion Practices at the Nation's Largest Abortion Provider: Hearing Before the H. Comm on Judiciary, 114th Cong. 192-201 (2015) (Analysis of CMP Video by Fusion GPS). Thereafter, DHH exercised its "oversight over all health facilities in the state" and requested that PPGC "answer some simple questions about ... [its] current operations and planned operations in Louisiana." (Doc. 46-1 at 51-52 (Letter from Kathy Kliebert, Sec'y, Dep't of Health & Hosps., State of Louisiana, to Melaney Linton, Pres., Planned Parenthood Gulf Coast, Inc. (July 15, 2015)) ("Defendant's July Letter"). DHH gave PPGC until July 24, 2015, to respond. (Id. at 51.)
On July 24, 2015, PPGC did so. (Doc. 46-1 at 54-58 (Letter from Melaney A. Linton, Pres. & CEO, Planned Parenthood Gulf Coast, Inc., to Kathy Kliebert, Sec'y, Dep't of Health & Hosps., State of Louisiana (July 24, 2015)) ("PPGC's July Letter"). This letter recaps PPGC's history in Louisiana and denies the accusations made by CMP. (Id. at 54-55.) In it, Ms. Melaney A. Linton, PPGC's President and Chief Executive Officer and this letter's author ("Ms. Linton"), clarifies that PPGC "does not offer abortion services" in Louisiana. (Id. at 55.) PPGC acknowledged its link to Planned Parenthood Center for Choice, Inc. ("PPCFC"), a "standalone corporation" and a department of PPGC until 2005, and described itself as an "affiliate" of Planned Parenthood Federation of America ("PPFA"). (Id.) PPGC then responded to each of Defendant's questions, emphasizing that neither PPGC nor PPCFC provide abortion services in Louisiana. (Id. at 55, 57.) To the question of whether any PPGC "facilities, or any affiliates,
On August 4, 2015, Defendant sent a second letter to PPGC. (Id. at 60-61 (Letter from Kathy Kliebert, Sec'y, Dep't of Health & Hosps., State of Louisiana, to Melaney Linton, Pres., Planned Parenthood Gulf Coast, Inc. (Aug. 4, 2015)) ("Defendant's August Letter"). It zeroes in on three statements in PPGC's July Letter: "PPCFC does not have a fetal tissue donation program in Texas currently"; "PPCFC disposes of Pathological Waste through an entity that is licensed for disposal of Special Waste from Health Care-Related Facilities"; and its "No" response to the question of whether "any Planned Parenthood Gulf Coast facilities, or any affiliates, subsidiaries, or associates thereof, sell or donate any unborn baby organs or body parts." (Id. at 60.) Defendant characterized these answers as being "directly contradict[ed]" by another "recently released video made on April 9, 2015 at the Planned Parenthood facility in Houston, Texas, in which Melissa Farrell, Director of Research at Planned Parenthood Gulf Coast (PPGC), discusses existing contracts for fetal tissue donation for the purpose of research." (Id.)
On August 14, 2015, PPGC responded. (Doc. 46-1 at 63 (Letter from Melaney A. Linton, Pres. & CEO, Planned Parenthood Gulf Coast, Inc., to Kathy Kliebert, Sec'y, Dep't of Health & Hosps., State of Louisiana (Aug. 14, 2015) ("PPGC's August Letter")) ("PPGC's August Letter") On behalf of both PPGC and PPCFC, Ms. Linton denied the existence of any contradiction, as "neither PPCFC nor PPGC currently has a fetal tissue donation program in Texas, and neither sells nor donates fetal tissue." (Id. at 63.) The letter proceeds to address each new question posed in Defendant's August Letter. (Id. at 64-65.)
On August 3, 2015, Defendant notified PPGC of its intent to terminate the Agreements pursuant to § 46:137.11(D)(1) via four letters ("First Termination Letters"). (Doc. 1 ¶ 30 at 8; Doc. 13 at 1.) As this statute required, DHH gave PPGC 30-days' notice from the relevant letters' receipt. (Doc. 13 at 1-2.) The letters gave no reason for DHH's decision. (Doc. 1 ¶ 32 at 8; see also Doc. 13 at 18, 20; Hr'g Tr. 14:6-8, Sept. 2, 2015.) In response, Plaintiffs filed their first complaint. (Doc. 1.)
On that day, the Honorable Piyush "Bobby" Jindal, governor of Louisiana ("Jindal" or "Governor"), published a press release announcing the Agreements' looming terminations. Press Release, Hon. Bobby Jindal, Governor of Louisiana, Governor Jindal Announces the Termination of Medicaid Contract with Planned Parenthood (Aug. 3, 2015).
During the First Termination Action, among the many documents docketed by the Parties, Defendant submitted a declaration by Ms. J. Ruth Kennedy ("Ms. Kennedy"), the Medicaid Director of DHH ("First Kennedy Declaration"), (Doc. 13-2 ¶¶ 1-5 at 1). (Doc. 13 at 21-22.) The First Kennedy Declaration's sixth paragraph states: "There are no Medicaid services that only family planning clinics provide that could not be[ ]provided by other enrolled Medicaid providers in the State of Louisiana, including in New Orleans and Baton Rouge." (Doc. 13-2 ¶ 6 at 2.) Its seventh further explains: "Any physician/physician extender and appropriately certified lab can provide family planning and related services as long as it is within their license and scope." (Id. ¶ 7, at 2.) Per the next paragraph, "[t]here are 1,146 actively enrolled Medicaid providers in Region 1, covering the Greater New Orleans area, and 864 actively enrolled Medicaid providers in Region 2, covering the Greater Baton Rouge area, that can provide family planning and related services." (Id. ¶ 8 at 2; see also Doc. 13 at 21.) A sorted provider list is attached; it includes dermatologists, dentists, audiologists, cosmetic surgeons, and orthopedic surgeons. (Doc. 13-2 at 5-41; see also Hr'g Tr. 23:18-25:2, Sept. 2, 2015.)
This First Kennedy Declaration also describes two telephonic conferences between CMS and DHH officials. According to Ms. Kennedy, on August 6, 2015, CMS advised DHH that the latter "has the authority to withhold federal Medicaid dollars from Louisiana or seek injunctive relief for the failure to comply with the Medicaid Act." (Doc. 13-2 ¶ 10 at 2.) CMS and DHH held a second conference call on August 21, 2015, in which CMS "advised" DHH "it would be sending a letter ... confirming what CMS and HHS counsel had verbally conveyed to the Department during the August 6, 2015 conference call." (Id. ¶ 11 at 2.)
On August 31, 2015, the United States Department of Justice, on behalf of CMS and DHHS, filed a Statement of Interest.
First, because DHH has sought to terminate the Agreements "without providing any justification related to PPGC's qualifications to provide medical services," DHH's proposed termination will run afoul of § 1396a(a)(23). (Id.; see also Doc. 22 at 2, 5, 6.) To read Section 1396a(a)(23) differently would both "strip the Medicaid Act's free choice of provider provision of all meaning." (Doc. 24 at 3.) It would simultaneously "contravene clear congressional intent to give Medicaid beneficiaries the right to receive covered services from any qualified and willing provider." (Id.)
Second, the Statement of Interest declares that DHH's interpretation is "inconsistent" with "the overwhelming weight of authority" and with DHHS' own "considered and longstanding views." (Id. at 3, 4, 19-22.) It describes DHH's interpretation of Section 1396a(a)(23) as "not even a plausible reading of the statute," "certainly not compelled by the text of the provision," and likely to "undermine[ ] the provision's intent." (Id. at 20.) Meanwhile, DHHS "has repeatedly and consistently interpreted the `qualified' language in § 1396a(a)(23) to prohibit a State from denying access to a provider for reasons unrelated to the ability of that provider to perform Medicaid-covered services or to properly bill for those services." (Id. at 3-4.) Its view "is eminently reasonable," verified by a dictionary, and recognizes "[a] role for States to set reasonable restrictions related to a provider's ability to provide competent and skilled services" without "read[ing]" Section 1396a(a)(23) "out of the statute altogether, as Louisiana desires." (Id. at 21.) It contends that this interpretation, made by CMS "under authority delegated to it by Congress," merits deference. (Id.)
Finally, the Statement of Interest affirms CMS' view that "Medicaid beneficiaries" like the Individual Plaintiffs "may enforce their statutory rights under § 1396a(a)(23) to their choice of a qualified provider through a private action under 42 U.S.C. § 1983" even after Armstrong v. Exceptional Child Ctr., Inc., ___ U.S. ___, 135 S.Ct. 1378, 1382, 191 L.Ed.2d 471 (2015) ("Armstrong"). (Doc. 24 at 2, 21; see also Doc. 22 at 2-5.)
On September 2, 2015, the First Hearing was held. (Doc. 30.)
During its course, the Parties' positions on Section 1396a(a)(23) were clarified. Plaintiffs' counsel explained: "We're here because the termination violates the Jane Doe Plaintiffs' ... right to free choice of provider under Section [1396]a(a)(23) of the Medicaid Act." (Hr'g Tr. 4:10-12, Sept. 2, 2015.) Because PPGC is "competent to provide services," it argued that it was "qualified" within this subsection's meaning. (Hr'g Tr. 4:16-5:12, Sept. 2, 2015.) The claim before the Court in the Motion for TRO was the Individual Plaintiffs' claims under this provision of the "federal Medicaid act," Plaintiffs' counsel emphasized. (Hr'g Tr. 10:17-19, Sept. 2, 2015.) In Plaintiffs" view, whether or not PPGC held some administrative right was irrelevant, as the Individual Plaintiffs always lacked such prerogatives. (Hr'g Tr. 10:15-19, Sept. 2, 2015.) On the Individual Plaintiffs' behalves, PPGC contested Defendant's claim that Section 1396a(a)(23) creates no private cause of action. (Hr'g Tr. 4:10-15, 6:23-7:15, Sept. 2, 2015.) Specifically, it argued that it "clearly fulfills the standard set forth by the Supreme Court in Blessing
Defendant's counsel countered that Section 1396a(a)(30) was substantially identical to Section 1396a(a)(23). These two subsections have "the exact same rights creating type of language"; both "say what the state plan should provide." (Hr'g Tr. 16:17-22, Sept. 2, 2015.) He thus urged the Court to adopt the reasoning of the plurality in Armstrong. (Hr'g Tr. 14:10-15:8, 16:4-10, 16:13-14, 19:21-24, 22:24, 23:13 14, Sept. 2, 2015.) Defendant's counsel also insisted that Section 1396a(a)(23)'s "qualified" requirement was "a very vague standard." (Hr'g Tr. 18:1-2, Sept. 2, 2015.) Having proposed a number of denotations, (Doc. 13 at 8), Defendant's counsel based this conclusion on his "conversations" with CMS and the supposed "[un]reasonabl[eness]" of CMS' contrary interpretation, (Hr'g Tr. 16:24-17:10, 17:24-18:9, Sept. 2, 2015). Because "qualified" is inherently vague and ambiguous, Section 1396a(a)(23) cannot meet the Blessing test's requirement that a right not be "so vague and amorphous as to be beyond the competence of the judiciary to enforce."
PPGC's competence to provide the Medicaid services was also discussed. In response to this Court's question regarding whether DHH had yet "raised any suggestion or made any suggestion that the reason for terminating the contract has anything to do with competency or the adequacy of the care that is given" by PPGC "to the patients who get their care at those facilities," Plaintiffs' counsel answered, "No." (Hr'g Tr. 3:19-24, Sept. 2, 2015.) When this Court posed the same question to Defendant's counsel — "There is no question ... about the competency of these two facilities to provide Medicaid services and adequate care for the patients that they serve, would you agree with that?" — Defendant's counsel answered, "At this time, I would agree with that." (Hr'g Tr. 11:11-16, Sept. 2, 2015.) Additionally, when asked, "They're not qualified because you're terminating their contract?" Defendant's counsel answered, "Exactly," and admitted that DHH's definition of "qualified" was "circular": PPGC was no longer a "qualified" provider because DHH had made it so by terminating their contract, a mechanism he then stated had never before been utilized in quite this manner. (Hr'g Tr. 21:10-13, 22-25,
The Parties finally contested the capacity of this state's other Medicaid providers to absorb PPGC's patients. PPGC characterized the list included with the First Kennedy Declaration as containing "numerous examples of[,] on their face[,] providers that would not provide the care that Planned Parenthood provides, including dentists, radiologists, nursing homes, [and other] places that are not going to do breast cancer screening or give out birth control." (Hr'g Tr. 8:18-22, Sept. 2, 2015.) PPGC maintained that "there's no way that ... other alternative providers have the capacity to absorb our patients." (Hr'g Tr. 9:2-4, Sept. 2, 2015.)
Defendant's counsel admitted that the Individual Plaintiffs would suffer "disruption of some kind," being forced, "to get other doctors" and "seek out other places to get their health care." (Hr'g Tr. 13:6-12, Sept. 2, 2105.) Defendant's counsel also clarified the origins of the list of providers referenced in the Defendant's Opposition and the First Kennedy Declaration. (Hr'g Tr. 23:18-25:9, Sept. 2, 2015.) It reflected "typically billed" codes, and was the result of "a code run" of providers that "can provide family planning services because they have billed for them" by Defendant. (Hr'g Tr. 24:4-6, 25:1-6, Sept. 2, 2015.)
After the First Hearing, Defendant sought permission to amend its opposition and substitute new papers "pursuant to... [its] duty to provide accurate information to the Court." (Doc. 32 at 1.) Included in Defendant's proposed amendments was a third declaration by Ms. Kennedy ("Third Kennedy Declaration"). This Third Kennedy Declaration corrects Defendant's first list of providers, explaining: "I[, Ms. Kennedy,] ordered a comprehensive review of this exhibit and have since discovered that nursing facilities and dentists should not have been included." (Doc. 34-2 ¶ 8a at 2; see also Doc. 34 at 2.) It adds: "The other provider types included in Exhibit 1 are appropriate due to what they are allowed to do under the scope of their license." (Doc. 34-2 ¶ 8a at 2; see also Doc. 34 at 2.) It gives two other examples: "[A]nesthesiologists, who can be reimbursed for their role in sterilization procedures[,] and radiologists, who can be reimbursed for reading ultrasounds, etc. related to reproductive/women's health issues." (Id.)
This "review of the information in [the First Kennedy Declaration] also revealed a more precise description of Medicaid providers in the New Orleans and Baton Rouge areas other than PPGC who are available to patients seeking family planning and related services." (Doc. 34 at 2.) Defendant's staff had "gather[ed] information from available Medicaid providers in proximity to the two Planned Parenthood locations in New Orleans and Baton Rouge, Louisiana." (Doc. 34-2 ¶ 8b at 2.)
As a result of this additional inquiry, Ms. Kennedy had decided to cull the list of relevant providers from over one-thousand (2,000) to twenty-nine (29), (Compare Doc. 13-2 ¶ 8 at 2, with Doc. 34-2 at 5-6). This amended document includes two entries for the City of New Orleans Health Department, whose titles suggest one primarily serves and another mostly the homeless. (Id. at 5.) The Court also notes that the name of some of the other entities listed suggest that their patent base is similarly limited, e.g. "NO/Aids Task Force," "New Orleans Musicians' Clinic". (Id.)
On September 9, 2015, Defendant chose to "rescind" her earlier at-will terminations. (Doc. 38 at 2.) On September 14, 2015, Defendant sent the First Termination Letters, one for each Agreement, to PPGC. (Doc. 38 at 4, 6, 8, 10; Doc. 46-1 at 18-36.) On September 15, 2015, Defendant followed these rescission letters with four new termination letters ("Second Termination Letters"). (Doc. 39 at 1; Doc. 46-1 at 37-49.) While the First Termination Letters had invoked Section 46:437.11(D)(1), (Doc. 38 at 4, 6, 8, 10), the Second Termination Letters rely on Sections 46:437.11(D)(2) and 46:437.14 and Title 50. (Doc. 39-1 at 2-3, 5-6, 8-9, 11-12; Doc. 46-1 at 37-49). Both MAPIL sub-provisions, Section 46:436.11(D)(2) allows for "for cause" termination of a provider agreement, and Section 46:437.14 identifies a number of violations, LA. R.S. §§ 46:437:11(D)(2), 46:437.14. The Second Termination Letters specify several different grounds.
The first is a settlement in Reynolds v. Planned Parenthood Gulf Coast, Inc., Case Number 9:09-cv-124-RC (E.D. Tex.) ("Reynolds Settlement"), a lawsuit pursuant to the False Claims Act ("FCA") in the Eastern District of Texas between PPGC and an FCA plaintiff. (Doc. 39-1 at 2, 5, 8, 11.) According to the letters, two violations of Title 50 were based on this settlement. First, simply by settling this action, PPGC had violated Title 50. (Id.) Second, since DHHS had not been informed "within ten (10) working days of when the provider knew or should have known of the violation," another violation of Title 50 had occurred. (Id.)
A second (or third) ground consisted of "provider audits and federal false claims cases against PPFA ... affiliates." (Id.) Another Texas case, Carroll v. Planned Parenthood Gulf Coast, Case Number 4:12-cv-03505 (S.D. Tex.) ("Carroll"), fell within this description. According to the letters, in Carroll, "the presiding judge found that the information already provided allows the court to draw the reasonable inference that Planned Parenthood knowingly filed false claims." (Doc. 39-1 at 2, 5, 8, 11; see also Hr'g Tr. 36:2-22, Oct. 16, 2015.) Relying on this interpretation of Carroll, the Second Terminations Letters cite Louisiana law — "Providers and providers-in-fact are required to ensure that all their agents and affiliates are in compliance with all federal and state laws as well as rules, policies and procedures of the Medicaid program" — and concluded: "PPGC and its parent organization PPFA has failed to do so and has failed to notify DHH of violations and misconduct by affiliates and providers-in-fact[,] ... violations of ... Title 50." (Doc. 39-1 at 2, 5, 8, 11.)
The third basis for termination was Defendant's determination that PPGC's July and August Letters, see supra Part II.B, contained "misrepresentations" upon Defendant's further review of CMP's videos. (Doc. 39-1 at 3, 6, 9, 12.) These alleged misrepresentations were described as violations of Sections 46:437.11(D)(2) and 46:437.14(A)(1). (Id.) Although other grounds are referenced in these letters,
After receiving these Second Termination Letters, Plaintiffs filed an unopposed motion to amend the complaint on October 7, 2015, (Doc. 41), a request granted on that same day, (Doc. 42). Already attached to the motion to amend, (Doc. 41-1), a new amended complaint ("Amended Complaint") followed on October 7, 2015, (Doc. 43).
On Sunday, October 18, 2015, this Court issued an order denying Defendant's motion to dismiss and granting Plaintiffs' request for a temporary restraining order. (Doc. 55.) It set a status conference for the following day. (Id. at 59.) At that status conference, all parties agreed that no further discovery and no further argument was necessary for this Court to make its determination on whether to issue a preliminary injunction. (Doc. 58.) The Parties expressed "no objection to converting the temporary restraining order to a preliminary injunction." (Id.)
On October 28, 2015, Plaintiffs filed the Notice of Supplemental Authority. (Doc. 61.) The Notice includes as an attachment a copy of "a preliminary injunction," issued by the Middle District of Alabama, "in a case substantially similar to the instant action." (Id. at 1.) Later that same day, at Defendant's request, this Court held a second telephonic status conference. (Doc. 62.) Once more, the Parties affirmed that they regarded the record as complete and sufficient for the issuance of a preliminary injunction. (Id.)
In their Motion for TRO and Renewed Motion for TRO, Plaintiffs have made four relevant arguments to why they are entitled to a temporary restraining order.
First, Plaintiffs contend that they will likely prove that Defendant's efforts violate federal statutory and constitutional law. They begin by arguing that Defendant's latest termination, like the first, is prohibited by the plain meaning of Section 1396a(a)(23) and are thus in violation of controlling federal law. (Doc. 46 at 17-22; see also Doc. 4-1 at 16.) This Free-Choice-of-Provider Provision bars Defendant from excluding PPGC from Medicaid for a reason unrelated to its fitness to provide medical services. (Doc. 46 at 18, 21, 22; Doc. 4-1 at 11.) Because "Defendant has nowhere suggested that PPGC is not `qualified to perform' the Medicaid services it provides," its action cannot be cohered with this subsection's language and purpose. (Doc. 4-1 at 15, 16; see also Doc. 46 at 17.)
Plaintiffs concurrently maintain that this particular subsection, in contrast with Section 1396a(a)(30), which was the focus in Armstrong, does afford the Individual Plaintiffs with a right enforceable via Section 1983. (Doc. 46 at 18-19 & n.9; Doc. 4-1 at 12-13 & n.9; see also Hr'g Tr. 6:23-7:4, Sept. 2, 2015.) Throughout their discussion in the Renewed Memorandum, Plaintiffs rely on many of the same cases, including Planned Parenthood Ariz. Inc. v. Betlach, 727 F.3d 960 (9th Cir.2013), cert. denied, ___ U.S. ___, 134 S.Ct. 1283, 188 L.Ed.2d 300 (2014) ("Betlach"); Planned Parenthood of Ind., Inc. v. Comm'r of Ind. State Dep't of Health, 699 F.3d 962 (7th Cir.2012), cert. denied, ___ U.S. ___, 133 S.Ct. 2738, 186 L.Ed.2d 193 (2013) (2013 ("Indiana"); and Women's Hospital Foundation v. Townsend, No. 07-711-JJB-DLD, 2008 U.S. Dist. LEXIS 52549, 2008 WL 2743284 (M.D.La. July 10, 2008) ("Townsend"). (See, e.g., Doc. 46 at 17, 18 & 18 n.13.) Repeatedly, Plaintiffs emphasize that even if PPGC's action would be barred by Armstrong the Individual Plaintiffs retain a viable cause of action under Section 1983.
In the Renewed Memorandum, Plaintiffs do abandon their procedural due process claim, (Hr'g Tr. 15:19-16:1, Oct. 16, 2015; compare Doc. 43 ¶¶ 62-67 at 19-20, with Doc. 1 ¶¶ 56-57 at 14), but do reiterate their two constitutional ones, (Doc. 1 ¶¶ 52-55 at 14; Doc. 43 ¶¶ 64-67 at 20). Now, Plaintiffs argue that Defendant, without sufficient justification, is singling them out for unfavorable treatment, violating the Equal Protection Clause of the Constitution's Fourteenth Amendment, U.S. CONST. amend. XIV, § 2, and is attempting to penalize them for freely associating with other related Planned Parenthood entities, thereby contravening the freedom of association guaranteed by the First Amendment, see U.S. CONST. amends. I, IX, § 2; Nat'l Ass'n for Advancement of Colored People v. Ala. ex. rel. Patterson, 357 U.S. 449, 460, 78 S.Ct. 1163, 1170-71, 2 L.Ed.2d 1488 (1958); Arnaud v. Odom, 870 F.2d 304, 311 (5th Cir.1989). (See, e.g., Doc. 46 at 22.)
Second, Plaintiffs insist that the harm to PPGC and the Individual Plaintiffs will be irreparable if the termination comes to pass. The Individual Plaintiffs will be deprived of their ability to exercise their federal statutory rights, and will suffer a disruption of their relationship with a preferred (and competent) provider and a reduction of their access to family planning services. (Doc. 46 at 26; see also Doc. 4-1 at 8-9, 17.) PPGC, in turn, will find its budget sharply curtailed, possibly forcing it to close down BRHC permanently, and will never be able to recover any monetary
Third, Plaintiffs argue that the balance of harms favors them. "While PPGC and its patients will suffer serious irreparable harm in the absence of an injunction, the state will suffer no injury at all." (Doc. 46 at 27; see also Doc. 4-1 at 18.) The reason, Plaintiffs contend, is because an injunction will do no more than "require the state to maintain the funding [it] ha[s] provided to... [PPGC] for years." (Doc. 46 at 27 (internal quotation marks omitted) (alterations in original); see also Doc. 4-1 at 18.)
Finally, Plaintiffs assert that the public interest favors their injunctive request. The public has a "strong" interest "in ensuring continued public access to crucial health services, especially for the many underserved and low-income patients PPGC serves." (Doc. 46 at 28; see also Doc. 4-1 at 18.) Such an interest is especially "acute with respect to the neediest... who depend on publicly funded programs." (Doc. 46 at 28; see also Doc. 4-1 at 19.)
As to Defendant's argument that PPGC's failure to pursue a state administrative appeal of the termination renders the controversy not ripe and deprives all Plaintiffs of standing, Plaintiffs argue that PPGC is not required to pursue the state administrative appeal but can instead pursue its rights under Section 1983. (Doc. 52 at 2-3; see also Hr'g Tr. 6:6-10, Sept. 2, 2015.) The Individual Plaintiffs argue that they have no right to administratively appeal the Agreements' termination and thus could not do so if they wanted to. (Doc. 52 at 3; see also Hr'g Tr. 10:15-17, Sept. 2, 2015.) As such, regardless of whether or not PPGC's claims are ripe, their claims are clearly so, and their standing just as much. (See Doc. 52 at 1.)
Invoking Rule 12(b)(1) and (6), Defendant makes essentially three arguments.
First, Defendant contends that this Court lacks subject-matter jurisdiction over this dispute because this case is not ripe and Plaintiffs lack prudential and constitutional standing. (Doc. 53-1 at 5-9.) Defendant insists on this case's unripe state for three reasons: (1) "Plaintiffs have suffered no injury"; (2) "further procedural and factual development is required"; and (3) no hardship can be shown. (Id. at 6, 8.) As support for his first and second reason, Defendant argues that because PPGC may appeal this termination, during which the Agreements will remain enforce in accordance with Defendant's wishes, this "suspensive" review process leaves all Plaintiffs without a cognizable injury. (Id. at 6-7 (injury), 8 (hardship), 9 (injury for standing purposes).) Defendant's Memorandum further explains the reasons for a lack of ripeness and standing as such: "In the instant matter, PPGC is asserting a due process violation while simultaneously hinting that it may voluntarily elect
Second, Defendant argues for abstention, emphasizing these doctrines' purpose of "preserv[ing] the balance between state and federal sovereignty." (Id. at 10.) Defendant cites to four abstention doctrine — Pullman, Younger, Burford, and Colorado River — and foregoes one — Thibodaux. (Id. at 10-12.) When cumulatively considered, these doctrine's "animating" principles have a "clear ... application" to this proceeding: "Plaintiffs should not be indulged in their attempt to invoke the jurisdiction of this Court in the absence of State agency action against them that would delineate... [Defendant's] interpretation of the challenged provision, and in the presence
Third, Defendant insists Plaintiffs cannot prevail on the merits for four reasons. First, "Plaintiffs have no property interest in the Medicaid provider contracts." (Id. at 13; see also Doc. 13 at 14-18.) Second, even if Plaintiffs have a property interest, Louisiana's administrative appellate process "complies with the mandates of due process" and federal regulation, for "the essence of due process is notice plus an opportunity to be heard." (Doc. 53-1 at 17.) Third, Defendant insists that Section 1396a(a)(23) does not afford the Individual Plaintiffs any private cause of action, (Compare Doc. 53-1 at 18-22, with Doc. 13 at 4-9), and is sufficiently ambiguous to permit Defendant to exercise her discretion to define "qualified" in accordance with her construction of state law, (Doc. 53-1 at 21; see also Doc. 4 at 8). Defendant thus insists that her authority under Section 46:437.11(D)(2) is not limited "to determining whether a provider is competent to provide ... services." (Doc. 53-1 at 22.) She can, instead, invoke any ground derived from state law, including, but not limited, the bases set forth in Section 46:437.12 and Title 50, to determine whether a provider is "competent" or not. (Doc. 53-1 at 23-24.)
Defendant provides the correct standard by which to measure its argument that this case is not ripe: for the purposes of this doctrine, "a court must evaluate (1) the fitness of the issues for judicial resolution, and (2) the potential hardship to the parties by declining court consideration," (Doc. 53-1 at 6 (quoting Lopez v. City of Houston, 617 F.3d 336, 342 (5th Cir.2010)). Defendant maintains the case is not ripe for three reasons: (1) "Plaintiffs have suffered no injury"; (2) "[F]urther procedural and factual development is required, as demonstrated by Plaintiffs' due process claim ... and their request to conduct expedited discovery in this proceeding"; and (3) no hardship exists because "the review process is suspensive," a third point substantively identical to its first (Doc. 53-1 at 6, 8). At the Second Hearing, her counsel stressed one aspect of the Constitution's ripeness requirement: "There is absolutely no injury"; "[T]here is absolutely no harm to them at all"; "[T]hey have no injury"; and, "There's no concrete injury to any of the Planned Parenthood or to any of the Jane Doe Plaintiffs because, again, there simply is no injury." (Hr'g Tr. 4:21-23, 9:2, 17:18-21, Oct. 16, 2015.)
Drawn from Article III but incorporating various prudential elements, U.S. CONST. art. III, § 2; Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n. 18, 113 S.Ct. 2485, 2495 n. 18, 125 L.Ed.2d 38 (1993), ripeness is "a justiciability doctrine designed to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties," Nat'l Park Hospitality Ass'n v. U.S. Dep't of Interior, 538 U.S. 803, 807-08, 123 S.Ct. 2026, 2030, 155 L.Ed.2d 1017 (2003) (internal quotation marks omitted). It generally incorporates, as Defendant rightly notes, (Doc. 53-1 at 6), consideration of two elements: "(1) the fitness of
Defendant argues that Plaintiff has suffered no injury sufficient for ripeness' purposes. This argument fails for two reasons. The primary reason is well-rooted in ripeness jurisprudence: "In evaluating ripeness, the central focus is on whether the case involves uncertain or contingent future events that may not occur as anticipated, or indeed may not occur at all." Tarrant Reg'l Water Dist. v. Herrmann, 656 F.3d 1222, 1250 (10th Cir.2011) (quoting Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1097 (10th Cir. 2006)). However, an injury need not be actual in a physical sense for a plaintiff's case to cross the ripeness threshold. Rather, if a plaintiff is "immediately in danger of sustaining some direct injury as the result of the challenged official conduct," ripeness will often be found. Pearson v. Holder, 624 F.3d 682, 684 (5th Cir.2010); see also Whole Woman's Health v. Cole, 790 F.3d 563, 582 (5th Cir.2015) (quoting id.). It is enough that "an injury that has not yet occurred is sufficiently likely to happen to justify judicial intervention" or "when the court would be in no better position to adjudicate the issues in the future than it is now." Pearson, 624 F.3d at 684 (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 101-02, 103 S.Ct. 1660, 1665, 75 L.Ed.2d 675 (1983)). A "future injury" will be deemed ripe (and establish standing) if either "the injury is certainly impending" or "there is substantial risk that the harm will occur." Susan B. Anthony List v. Driehaus, ___ U.S. ___, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014) (emphasis added); see also Caprock Plains Fed. Bank Ass'n v. Farm Credit Admin., 843 F.2d 840, 845 (5th Cir.1988) (concluding that "too many ifs" that render an injury a "mere potential[ity]," not just one or two that may render such a result into a substantial possibility or even a probability, will make a case unripe).
Thus, "ripeness is seldom an obstacle to a pre-enforcement challenge ... where the plaintiff faces a credible threat of enforcement." Consumer Data Indus. Ass'n v. King, 678 F.3d 898, 907 (10th Cir.2012); cf. Babbitt v. UFW Nat'l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 2308, 60 L.Ed.2d 895 (1979) (finding standing where "a realistic danger of sustaining a direct injury as a result of a statute's operation or enforcement" existed (emphasis added)). In such cases, the plaintiff is typically "not ... required to await and undergo [enforcement] as the sole means of seeking relief." Consumer Data Indus. Ass'n, 678 F.3d at 907; see also, e.g., Barrick Goldstrike Mines, Inc. v. Browner, 215 F.3d 45, 49 (D.C.Cir.2000) (holding that declaratory judgment action was ripe for judicial review under the Administrative Procedures Act where plaintiff's "only alternative to obtaining judicial review now is to violate EPA's directives ... and then defend an enforcement proceeding on the grounds it raises here"). As the Supreme Court has recently written, an agency's prospective, not yet consummated, action will be found ripe for review if "the scope of the controversy has been reduced to more manageable proportions ... by some concrete action applying the regulation to the claimant's situation in a fashion that harms or threatens to harm him." Nat'l
Under this precedent, Defendant's Second Termination Letters represent certain threats, classifiable as "concrete action[s]" that "threaten to harm" Plaintiffs, id.; see also Alabama-Coushatta Tribe of Tex. v. United States, 757 F.3d 484, 491 (5th Cir. 2014). Here, the existing record amply supports this determination: Defendant has made it clear she intends to terminate the Agreements, the only thing changing since the initial termination letters being the reason. In effect, by her own actions, she has triggered the application of a general rule, federal courts having "consistently found a case or controversy in suits between state officials charged with enforcing a law and private parties potentially subject to enforcement," Consumer Data Indus. Ass'n, 678 F.3d at 905. A case's ripeness simply does not depend on whether the injury has already been inflicted; "specific threat[s] of enforcement" like those the Defendant has already made are typically more than enough to satisfy the constitutional minimum. Reynolds v. City of Valley Park, No. 4:06CV01487 ERW, 2006 U.S. Dist. LEXIS 83210, at *25, 2006 WL 3331082, at *6 (E.D.Mo. Nov. 15, 2006); see also, e.g., Cass Cnty. v. United States, 570 F.2d 737, 740 (8th Cir. 1978) ("Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." (quoting Maryland Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941)).
In this analysis, Defendant's own description of her actions is pivotal and telling. She has not proposed a new regulation or initiated a new round of rulemaking. (See, e.g., Hr'g Tr. 33:11-14, Oct. 16, 2015; Doc. 53-1 at 1-2.) Instead, per her Second Terminations Letters, she intends to enforce what she perceives to be state law in accordance with her construction of federal statutory law. (Doc. 39-1 at 2-3, 5-6, 8-9, 11-12.) In fact, as the First Termination Letters attest, the Agreements' termination pursuant to a MAPIL section has been threatened since at least August 2015, and Defendant has now only swapped no reason for three. (Compare Doc. 13, with Doc. 39-1.) As such, in the Tenth Circuit's words, "enforcement" has been "credib[ly] threat[ened]," her actions having made Plaintiffs' case ripe by lending substance to their pre-October 18, 2015, allegations. Consumer Data Indus. Ass'n v. King, 678 F.3d at 907. In such a situation, "[o]ne does not have to await the consummation of threatened injury to obtain preventive relief," for "the injury is certainly impending" — and "that is enough." Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n, 461 U.S. 190, 201, 103 S.Ct. 1713, 1721, 75 L.Ed.2d 752 (1983) (quoting Pennsylvania v. West Virginia, 262 U.S. 553, 593, 43 S.Ct. 658, 663, 67 L.Ed. 1117 (1923)). Based on these circumstances and the overwhelming weight of precedent, Plaintiffs' threatened and certain injury is clear.
Two general admissions by Defendant's counsel at the Second Hearing strengthen this conclusion. First, though only indirectly, he himself conceded that a kind of "harm" may have already come to pass: in arguing why no cognizable injury had yet transpired, he emphasized possible contingencies: "I think that one of the contingencies that could happen is their rights could be restored .... [The] suspension could be lifted." (Hr'g Tr. 17:23-25, Oct. 16, 2015 (emphases added).) He characterized Defendant's actions as, prior to October 18, 2015, being "suspensive" if PPGC chose to appeal, and "the final action" as "suspended."
This highlighted language implies that Plaintiffs' rights have already been curtailed, a suspension already imposed, and the relevant action, i.e. the Agreements' termination, already undertaken, its "effect" alone delayed.
Equally worthy of note, Defendant quotes but dismisses the import of a principle embedded in ripeness case law: "[A] case is generally ripe if any remaining questions are purely legal ones," Lopez, 617 F.3d at 341. This principle holds even if "the application of the disputed rule [or the ultimate decision] remains within the agency's discretion." Nat'l Ass'n of Home Builders v. U.S. Army Corps of Eng'rs, 417 F.3d 1272, 1282 (D.C.Cir.2005); see also Nat'l Treasury Emps. Union v. Chertoff, 452 F.3d 839, 854 (D.C.Cir.2006) (citing id. and finding ripeness when "waiting to observe" an agency's final "actions would only exacerbate the ... asserted injury while doing nothing to enable judicial review"). In this context, a truly non-legal question, notably, is often one whose resolution is necessarily "reliant on" and demands "agency expertise." Marcum v. Salazar, 694 F.3d 123, 129 (D.C.Cir.2012). As any fair reading of the complaint and motions filed in this case indicates, the issue involves at least one, if not three, "purely ... legal question[s]": the precise meaning of Section 1396a(a)(23) and the applicability of two constitutional clauses. (See, e.g., Doc. 1 at 1; Doc. 43 at 1.) In Abbott Labs., the seminal case in ripeness jurisprudence, the Court concluded that the issues presented were appropriate for judicial resolution because the facial challenge to the regulation involved the purely legal question of whether the regulation at issue exceeded the scope permitted by the underlying statute. See Abbott Labs., 387
The jurisprudence construing the hardship requirement is just as clear. The Fifth Circuit "has found hardship to inhere in legal harms, such as the harmful creation of legal rights or obligations; practical harms on the interests advanced by the party seeking relief; and the harm of being force[d] ... to modify [one's] behavior in order to avoid future adverse consequence." Choice Inc. v. Greenstein, 691 F.3d 710, 715 (5th Cir.2012) (alteration in original) (internal quotation marks omitted). Discrete formulations, a plaintiff can meet the ripeness doctrine's hardship prong by satisfying just one. Id. As the Court's decisions clarify, the first test has been met when an agency proposes to "grant, withhold, or modify any formal legal license, power or authority," Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726, 733, 118 S.Ct. 1665, 1670, 140 L.Ed.2d 921 (1988), and the second is fulfilled when "the impact of the administrative action could be said to be felt immediately by those subject to it in conducting their day-to-day affairs," Toilet Goods Ass'n v. Gardner, 387 U.S. 158, 164, 87 S.Ct. 1520, 1524, 18 L.Ed.2d 697 (1967).
Quite simply, Defendant's conduct here cannot be described in any different terms. Since a threat suffices to satisfy ripeness' hardship requirement, to conclude differently would be to find no case ripe when an administrative option remains for one of many plaintiffs and a statutory right and remedy exists for all, a result contrary to the many opinions that have confronted claims under Section 1396a(a)(23). See infra Part V; see also, e.g., Sabree v. Richman, 367 F.3d 180, 193 & n. 29 (3d Cir. 2004) ("A] plaintiff's ability to invoke § 1983 cannot be defeated simply by the availability of administrative mechanisms to protect the plaintiff's interests."); cf. Cathedral Rock of N. Coll. Hill, Inc. v. Shalala, 223 F.3d 354, 366 (6th Cir.2000) (noting that "the Medicaid Act does not have a provision ... incorporating § 405(h) and its exclusive jurisdiction limitation to channel legal challenges through the administrative procedures set forth").
Defendant maintains that the mere suspensive quality of her decision somehow unripens a case in which an injury is reasonably foreseeable and certain. Considering ripeness jurisprudence, this Court disagrees. See, e.g., Legacy Cmty. Health Servs., Inc. v. Janek, No. 4:15-CV-25, 2015 U.S. Dist. LEXIS 8610, at *12-13, 2015 WL 4064270, at *5 (S.D.Tex. July 2, 2015) (finding case ripe even when a party did not allege any actual instance of enforcement);
While a simple application of longstanding law leaves little doubt about this case's ripened state, Defendant's arguments merit some comment. Having examined her reasoning, this Court finds her construction and extension of the ripeness doctrine to be predicated on a fundamental misunderstanding of Plaintiffs' three claims. In its final paragraph, Defendant's Memorandum summarizes DHH's view of Plaintiffs' case: "In the instant matter, PPGC is asserting a due process violation while simultaneously hinting that it may voluntarily elect not to participate in the process about which it complains." (Doc. 53-1 at 8 (emphasis in original).) At the Second Hearing, Defendant again reduces all of Plaintiffs' claims to "a disguised due process challenge." (Hr'g Tr. 8:3-4, Oct. 16, 2015.) This focus on procedural due process obscures at least three logical oversights.
First, this assertion ignores Plaintiffs' withdrawal of their due process claim in their Amended Complaint. (See, e.g., Doc. 1 at 1; Doc. 43 at 1.) In fact, Plaintiffs' counsel expressly confirmed this at the Second Hearing. (Hr'g Tr. 15:19-16:1, Oct. 16, 2015.) Despite this clear abandonment, however, Defendant argues that the claims of the Individual Plaintiffs are "derivative" of PPGC's, (Hr'g Tr. 9:10-11, Oct. 16, 2015), based wholly on cases explicating the requirements of procedural due process. (Doc. 53-1 at 13 (citing Plaza Health Labs., Inc. v. Perales, 878 F.2d 577 (2d Cir.1989); Kelly Kare, Ltd. v. O'Rourke, 930 F.2d 170, 177 (2d Cir.1991); and Senape v. Constantino, 936 F.2d 687 (2d Cir. 1991)); see also Doc. 13 at 16-17). But when statutes like Section 1396a(a)(23) provide the case's gravamen and no procedural due process claim is made, Defendant's cases cannot be legally relevant. See Indiana, 699 F.3d at 977 (rejecting the relevance of Kelly Kare and similar cases because "[t]his is not a due-process case"). In other words, Defendant has reduced Plaintiffs' complaint to one claim already abandoned and relied on case law thereby rendered irrelevant.
Second, Defendant's emphasis on the existence of a "plan process" ignores an equally well-settled axiom when Section 1983 forms the basis of a party's claims. Defendant argues that the administrative appellate process, having been accepted as generally valid by CMS, essentially forecloses both PPGC's and the Individual Plaintiffs' resort to this (and any other) court. (Hr'g Tr. 7:23-8:6, Oct. 16, 2015; see also Doc. 53-1 at 3.) The process offered to PPGC (but not to the Individual Plaintiffs) must not be disturbed, she maintains, as it "is a legitimate process that has been approved," the states "required" under the Medicaid Act to "provide[ ]a process for reviewing grievances by providers." (Hr'g Tr. 8:7-17, Oct. 16, 2015; see also, e.g., Doc. 53-1 at 3-4.) Yet, as one court has observed, "[b]ecause § 1983 is intended to provide a federal forum, however, there will almost always be some sort of administrative or judicial avenue of relief at state law — whether compelled by federal statute or simply available under general state court jurisdiction." Roach v. Morse, 440 F.3d 53, 57 (2d Cir.2006), cited with approval in Romano v. Greenstein, 721 F.3d 373, 376 n. 8 (5th Cir.2013) (as to exhaustion only). Thus, a congressional requirement that states establish administrative review procedures, as exists here, rarely, if ever, implies that either § 1983 plaintiffs need exhaust them or a case is unripe when the process has not been invoked but
Third, Defendant's two "instructive" cases — Rush v. Barham, 618 Fed.Appx. 789, No. 14-30872, 2015 U.S. App. LEXIS 12886, 2015 WL 4467848 (5th Cir. July 22, 2015), and Monk v. Huston, 340 F.3d 279 (5th Cir.2003) (Doc. 53-1 at 7-8) — do not support her ripeness argument.
Rush, for one, can be distinguished on both the facts and on the law. As a reading of the district court opinion there affirmed shows, "[t]he existence of parallel [`pending'] state proceedings to render[ed] Plaintiffs' cause of action unfit at each step of the fitness inquiry." Rush v. Barham, No. 13-cv-00723-BAJ-RLB, 2014 U.S. Dist. LEXIS 97521, at *11, 2014 WL 3540885, at *4 (M.D.La. July 17, 2014). Here, no state proceeding predated the initiation of this federal action, so that any state action would not post-date and thus cannot parallel this proceeding from its genesis.
In addition, at issue in Rush was the propriety of a "administrative actions" within an agency's state-based "authority — specifically, the agency's enforcement of the Louisiana Scenic Rivers[ ] Act"; "a challenge to administrative regulations" was the one before that court. Rush, 2014 U.S. Dist. LEXIS 97521, at *11, 2014 WL 3540885, at *3. The basis of the Individual Plaintiffs' claim is the interpretation of Section 1396a(a)(23), a federal statute. More specifically, it is whether, independently of the state law basis of Defendant's present actions, Section 1396a(a)(23)'s plain meaning establishes the outer parameters of Defendant's discretion under state law to render a provider "unqualified." (See Doc. 43 ¶¶ 62-63 at 19.) PPGC's allegations, meanwhile, rest on federal constitutional provisions. (See id. ¶¶ 64-67 at 20.) This case is not a "challenge" to an "administrative regulation" by the one (and unquestioned) agency entitled to enforce it, but a challenge to the propriety of the secretary's exercise of discretion within and under the constraints imposed by federal statutory law. As a practical and legal matter, it is almost surely not a regulation, cf. 5 U.S.C. § 551, or a formal rule, LA. R.S. § 49:951(6).
In Rush, moreover, the Fifth Circuit thusly characterized the lower court's opinion: "The court held that in the circumstances of this particular case, further factual development will result from the pending state court proceeding and will necessarily affect the claims in this suit." Rush, 618 Fed.Appx. at 793, 2015 U.S. App. LEXIS 12886, at *7, 2015 WL 4467848, at *3. As noted above, no factual development is necessary.
The same can be said about Monk. As Monk itself states, "[a] case is generally ripe if any remaining questions are purely legal ones," Monk, 340 F.3d at 282, and this Court, like others, see supra Part IV.A.2, considers the determination of whether a federal statute is unambiguous to be such a question. In addition, Monk discussed ripeness in a narrow context: procedural due process. Thus, the opinion specifically found the case not ripe because "[t]he constitutional right to due process is not ... an abstract right to hearings conducted according to fair procedural rules" but is "the right not to be deprived of life,
As a final note, Defendant oversells the significance of the Plaintiffs' own motion to expedite discovery, (Doc. 47). According to Defendant, this request attests to the need for factual development that proves ripeness' absence, (Doc. 53-1 at 6); Plaintiffs disagree, (See Hr'g Tr. 41:8-19, Oct. 16, 2015). While the motion makes clear that such discovery is being sought for purposes of strengthening Plaintiffs' animus allegations, (Doc. 48 at 2), the ripeness doctrine demands no more than a threatened injury to the plaintiff, not a complete evidentiary record. Indeed, Defendant's logic would render any federal case unripe where discovery is requested, without any regard for the reason such discovery is needed. Even if Plaintiffs' first amendment claims require, like almost all claims often do, more discovery, that possibility says nothing about the ripeness of their two other claims. In the vast majority of cases in which ripeness is not found, "additional factual development" is absolutely "necessary," a feature wholly absent from a proceeding focused on the outer parameters of a statute's meaning. See, e.g., John Corp. v. City of Houston, 214 F.3d 573, 586 (5th Cir.2000).
For all these reasons, this Court finds this case ripe for its review, joining the Eastern District of Arkansas in Planned Parenthood Ark. & E. Okla. v. Selig, Doc. 45 (Amended and Substituted Preliminary Injunction Order), No. 15-cv-00566-KGB ("Selig"), (Doc. 46-9), and the District of Utah in Planned Parenthood Association of Utah v. Herbert, Doc. 12 (Temporary Restraining Order), No. 15-cv-693-CW ("Herbert"), (Doc. 46-10).
In contesting standing, Defendant insists PPGC lacks it in full. In her words, "Plaintiffs have not suffered nor are they about to suffer `an injury in fact' which is concrete and particularized, or actual or imminent." (Doc. 53-1 at 9.) The reason given was that "[t]he termination of PPGC's provider contracts ha[d] not gone into effect" prior to October 19, 2015. (Id.) At the Second Hearing, this point was emphasized: "There's no concrete injury to... Planned Parenthood or to any of the... [Individual] Plaintiffs because, again, there simply is no injury." (Hr'g Tr. 17:18-21, Oct. 16, 2015.)
Closely related to the ripeness inquiry, Choice Inc. v. Greenstein, 691 F.3d 710, 715 (5th Cir.2012), standing implicates a slightly different series of concerns. Ripeness is concerned with "when an action may be brought," but "standing focuses on who may bring a ripe action." Jt. Stock Soc'y v. UDV N. Am., Inc., 266 F.3d 164, 174 (3d Cir.2001) (emphasis added);
Indeed, "in measuring whether the litigant has asserted an injury that is real and concrete rather than speculative and hypothetical, the ripeness inquiry merges almost completely with standing." Jt. Stock Soc'y, 266 F.3d at 174. The injury need not be inflicted already; imminence will do. Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Naturally, therefore, as more than one court has found, the threat of future harm is sufficiently immediate to constitute a cognizable injury-in-fact for purposes of both the standing and the ripeness doctrines. E.g., Comsat Corp. v. FCC, 250 F.3d 931, 936 (5th Cir.2001) ("A threatened injury satisfies the injury in fact requirement so long as that threat is real[.]"); Prestage Farms, Inc. v. Bd. of Supervisors of Noxubee Cnty., MS, 205 F.3d 265, 268 (5th Cir.2000) ("[T]he risk of injury may be founded on a likely and credible chain of events."); see also, e.g., Baur v. Veneman, 352 F.3d 625, 633 (2d Cir.2003) (collecting cases standing for the proposition that "threatened harm in the form of an increased risk of future injury may serve as injury-in-fact for Article III standing purposes"); Employers Ass'n of New Jersey v. State of New Jersey, 601 F.Supp. 232, 238 (D.N.J.1985) ("[T]hreatened injury is sufficient for standing ... without compelling litigants to await the consummation of threatened injury.") (quoting Pac. Gas & Elec., 461 U.S. at 200, 103 S.Ct. 1713))). While a truly "uncertain potentiality" may deprive a plaintiff of standing, Prestage, 205 F.3d at 268, a decent probability will confer it, see Walters v. Edgar, 163 F.3d 430, 434 (7th Cir.1998) (collecting cases standing for the proposition that "[a] probabilistic harm, if nontrivial, can support standing"); cf. Loa-Herrera v. Trominski, 231 F.3d 984, 988 (5th Cir.2000) ("Mere threatened injury is sufficient" if "the threat ... is real.").
Per this law, as with this Court's ripeness inquiry, see supra Part IV.A.2, Defendant's threat of harm is sufficiently clear to establish Plaintiff's standing. In her motions, as at the First Hearing, Defendant has insisted that she can terminate the Medicaid provider agreement with PPGC for any reason, and she has repeatedly made clear that she intends and hopes to void every Agreement. There is thus no question that she has made a cognizable threat to Plaintiff's interest, having already attempted to do via Section 46:437.11(D)(1) what she now seeks to do via Section 46:437.11(D)(2). (Doc. 38 at 2; Doc. 39-1 at 2-13.) That she may not succeed concerns the precariousness of her own position, but has no bearing on whether the threat she poses is not real and the harm her action portends is not imminent. Precisely because it is, Plaintiffs' minimal standing has been established.
Defendant urges this Court to abstain. (Doc. 53-1 at 10-12.) She argues for the applicability of the four main abstention doctrines — Pullman, Younger, Burford, and Colorado River. (Id.) Rather than applying the discrete elements of these varied doctrines, Defendant refers to their occasional "overlap to some degree in ... scope and application" and reduces all four to a single formulation: (1) "where state administrative proceedings and judicial review afford claimants adequate opportunity to test the constitutionality of state law," and (2) "the exercise of federal jurisdiction would jeopardize state efforts to establish state policy on matters of public concern," abstention "should" follow. (Id. at 12.)
In general, "the circumstances in which federal courts should decline to exercise their jurisdiction" and abstain "are carefully defined and remain the exception, not the rule." Hoye v. City of Oakland, 653 F.3d 835, 844 (9th Cir.2011) (Younger); see also, e.g., Colorado River Water Conservation Dist. v. U. S., 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976) (Colorado River); Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 728, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996) (Burford). Due to this principle, each abstention doctrine must be carefully assessed, and every relevant element must be shown. Cf. Wilson v. Valley Elec. Membership Corp., 8 F.3d 311, 314 (5th Cir. 1993) (commenting that "[m]ultiple factor tests are difficult to apply"). In this case, when one examines the requirements of each of these doctrines, none clearly apply.
Named after its founding decision, R.R. Comm'n of Tex. v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), Pullman abstention is proper only when there is (1) a federal constitutional challenge to a state action and (2) an unclear issue of state law that if resolved would make it unnecessary to rule on the constitutional question. Nationwide Mut. Ins. Co. v. Unauth. Prac. of L. Comm., State Bar of Tex., 283 F.3d 650, 653 (5th Cir.2002). The Fifth Circuit has also taken the stance that this doctrine should be invoked in only narrow and limited special circumstances and applied where the state court decision could avoid a federal question and would also avoid a possible strain of the federal and state relationship. Moore v. Tangipahoa Parish Sch. Bd., 507 Fed.Appx. 389, 396 (5th Cir.2013) (citing Reetz v. Bozanich, 397 U.S. 82, 86-87, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970)).
In essence, then, for Pullman to govern, an uncertain state law must be central to the federal proceeding. Here, however, there is no state statute central to this controversy. Rather, the Defendant's interpretation of a federal statute and the extent to which her termination, regardless of its state law basis, violates the United States Constitution are the only issues. In addition, as Pullman requires that state law be confused and uncertain, Defendant's failure to bring to this Court's attention even one Louisiana case evidencing a persistent discord regarding the meaning of either Section 46:437.11(D)(1) or Section 46:437.11(D)(2)
Articulated in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), Younger abstention applies if three circumstances arise: (1) there must be an ongoing state proceeding that is judicial in its nature, (2) the state must have an important interest in regulating the subject matter of that claim, and (3) there must be adequate opportunity in the state proceeding to raise constitutional challenge. Rickhoff v. Willing, 457 Fed. Appx. 355, 358 (5th Cir.2012) (citing Wightman v. Tex. Supreme Court, 84 F.3d 188, 189 (5th Cir.1996)). First and foremost, Younger requires an ongoing state proceeding "judicial in nature." Ohio Civil Rights Comm'n v. Dayton Christian Sch., Inc., 477 U.S. 619, 627-28, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986).
In light of this key requirement and the suit's present posture, Defendant's own representations render Younger inapposite. As Defendant's counsel has conceded, no administrative proceeding commences until or unless PPGC appeals, (Doc. 53-1 at 22; see also Hr'g Tr. 16:8-17:9, Oct. 16, 2015), and PPGC has foresworn that option, (Hr'g Tr. 19:6-10, Oct. 16, 2015). Meanwhile, the Individual Plaintiffs cannot possibly initiate such a proceeding as a matter of state law, as Defendant's two lawyers have admitted. (Hr'g Tr. 8:10-9:1, Oct. 16, 2015; Hr'g Tr. 15:22-25, Sept. 2, 2015; Doc. 22 at 2-5; see also Doc. 46 at 18 n.13.) Regardless, no evidence has been adduced that any state quasi-judicial action predated the First Complaint's filing; Younger requires as much. Indeed, as she has rescinded the First Termination Letters, Defendant's prospective agency action will necessarily post-date the commencement of this federal proceeding. These facts alone render Younger inapplicable to this proceeding.
Colorado River abstention, derived from Colorado River Water Conservation Dist., 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483, is exceptionally narrow, Jackson-Platts v. GE Capital Corp., 727 F.3d 1127, 1140 (11th Cir.2013). In the Fifth Circuit, six elements must be satisfied:
African Methodist Episcopal Church v. Lucien, 756 F.3d 788, 798 (5th Cir.2014) (citing Stewart v. W. Heritage Ins. Co., 438 F.3d 488, 491 (5th Cir.2006)). In general, the Fifth Circuit has found Colorado River abstention applicable when there is a parallel suit in the state court at the time of the federal suit also being brought with the same parties and the same issues. Stewart, 438 F.3d at 491.
Traceable to Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943), this final doctrine contemplates the presence of a state-created avenue of relief put where the state has a degree of specialized competence to hear such cases is present. See Romano, 721 F.3d at 380 (listing five factors). Put another way, Burford abstention is only appropriate when there is a danger that federal court review will "disrupt the [s]tate's attempt to ensure uniformity in the treatment of an essentially local problem." New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 362, 109 S.Ct. 2506, 2515, 105 L.Ed.2d 298 (1989). Abstention is thus "not warranted, however, when a claim requires the federal court to decide predominating federal issues that do not require resolution of doubtful questions of local law and policy." Vaqueria Tres Monjitas, Inc. v. Irizarry, 587 F.3d 464, 474 (1st Cir.2009) (internal quotation marks omitted).
Such is not the case here. It is the meaning of Section 1396a(a)(23), a federal statute, and two constructional provisions which constitute the central controversies. In fact, in interpreting Section 1396a(a)(8), whose language perfectly mirrors Section 1396a(a)(23), the Fifth Circuit rejected this same Defendant's request for Burford abstention in no uncertain terms:
Romano, 721 F.3d at 380; see also, e.g., Pub. Serv. Co. v. Patch, 167 F.3d 15, 24 (1st Cir.1998) ("Burford abstention does not bar federal court injunctions against state administrative orders where there are predominating federal issues that do not require resolution of doubtful questions of local law and policy.") As with Colorado River, Younger, and Pullman, the prerequisites for Burford's invocation are absent from this case. See New Orleans Pub. Serv., 491 U.S. at 361, 109 S.Ct. 2506 (refusing to abstain under this doctrine when the federal claims were not "in any way entangled in a skein of state law that must be untangled before the federal case can proceed" (citing McNeese v. Bd. of Educ. for Cmty. Unit Sch. Dist. 187, Cahokia, 373 U.S. 668, 674, 83 S.Ct. 1433, 1437, 10 L.Ed.2d 622 (1963))). It too is thus inapposite.
Based on well-settled law, this Court therefore rejects Defendant's jurisdictional challenges and declines to abstain. For purposes of both ripeness and standing,
A plaintiff must establish four elements to secure a preliminary injunction: (1) a substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury if the injunction is not issued, (3) that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted, and (4) that the grant of an injunction will not disserve the public interest. Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir.2009); accord, e.g., Wilson v. Office of Violent Sex Offender Mgmt., 584 Fed.Appx. 210, 212 (5th Cir.2014).
In applying the four factor test, "none of the four prerequisites has a fixed quantitative value. Rather, a sliding scale is utilized, which takes into account the intensity of each in a given calculus." Seatrain Int'l, S.A., 518 F.2d at 180. This often "requir[es] delicate balancing of the probabilities of ultimate success at final hearing with the consequences of immediate irreparable injury." Klitzman, 744 F.2d at 958;
Plaintiffs bring this civil action pursuant to Section 1983 based on Defendant's alleged violation of rights secured by the Medicaid Act and the United States Constitution. Specifically, Plaintiffs claim that Defendant's attempt to terminate the Agreements violates the rights of the Individual Plaintiffs under Section 1396a(a)(23)(A) and PPGC's rights under both the Equal Protection Clause and the Freedom of Speech Clause of the United States Constitution. (Doc. 43 ¶¶ 62-67 at 19-20.) In relevant part,
In this first element's analysis, two overarching principles matter. First, if the Plaintiffs were to prevail on their Section 1396a(a)(23) claim and/or PPGC was to prevail on either of its two constitutional claims, the same remedy — a permanent injunction — would be due, and any potential action by Defendant would be similarly affected. Accordingly, this Court need not conclude that all Plaintiffs have a substantial likelihood of prevailing on all claims advanced in the Amended Complaint for a preliminary injunction to issue at this time. If Plaintiffs satisfy the elements needed to show a substantial likelihood of success on the Individual Plaintiffs' Section 1396a(a)(23) claim only, so long as the other factors are met, a preliminary injunction is appropriate. Girl Scouts of Manitou Council, Inc. v. Girl Scouts of United States of America, 549 F.3d 1079, 1096 (7th Cir.2008) (holding that plaintiff needed to show no more than "[a] chance of success on the merits of at least one of its claims" (internal quotation marks omitted)); see also, e.g., Jackson v. N'Genuity Enters. Co., No. 09 C 6010, 2011 U.S. Dist. LEXIS 113511, at *23, 2011 WL 4628683, at *7 (N.D.Ill. Oct. 3, 2011) (citing id.). Accordingly, because the Court finds that the Individual Plaintiffs have a private right of action, see infra Part V.B.1, it need (and will) not decide whether PPGC also has such a right, either on its own behalf or on behalf of its recipient patients. See also Doc. 63 at 12 n.3, Bentley.
Second, the Plaintiffs must establish a "substantial likelihood of success." This phrase has been defined in different ways. Compare 11A CHARLES A. WRIGHT ET AL., FEDERAL PRAC. & PROC. § 2948.3 (3d ed.) ("reasonable probability of success"), with Terex Corp. v. Cubex, Ltd., No. 3:06-CV-1649-G ECF, 2006 U.S. Dist. LEXIS 88863, at *7-8, 2006 WL 3542706, at *2 (N.D.Tex. Dec. 7, 2006) ("more than negligible," and noting the existence of a debate regarding this element's extent among the various circuits and summarizing older Fifth Circuit case law); see also, e.g., Dine Citizens Against Ruining Our Env't v. Jewell, No. CIV 15-0209 JB/SCY, 2015 U.S. Dist. LEXIS 109986, at *57 n. 10, 2015 WL 4997207, at *21 n. 10 (D.N.M. Aug. 14, 2015) ("It is not entirely clear what a preliminary-injunction movant's burden of proof is vis-à-vis the case's merits, as [t]he courts use a bewildering variety of formulations of the need for showing some likelihood of success — the most common being that plaintiff must demonstrate a reasonable probability of success." (alteration in original) (internal quotation marks omitted)); Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir.2011) ("Under ... [the sliding scale] approach
Still, at such an early stage, courts are not required "to draw the fine line between a mathematical probability and a substantial possibility of success." Dataphase Sys. v. C L Sys., 640 F.2d 109, 113 (8th Cir.1981); accord, e.g., KTM N. AM., INC. v. Cycle Hutt, Inc., No. 13-5033-JLV, 2013 U.S. Dist. LEXIS 67209, at *14, 2013 WL 1932797, at *5 (D.S.D. May 8, 2013). And none of the prerequisites for a preliminary injunction have "a fixed quantitative value." Seatrain Int'l, S.A., 518 F.2d at 180; see also, e.g., EnVerve, Inc. v. Unger Meat Co., 779 F.Supp.2d 840, 843 (N.D.Ill.2011) ("The sliding scale approach is not mathematical in nature, rather it is more properly characterized as subjective and intuitive, one which permits district courts to weigh the competing considerations and mold appropriate relief." (internal quotation marks omitted) (citing Ty, Inc. v. Jones Grp., 237 F.3d 891, 895-96 (7th Cir.2001))); Louis v. Meissner, 530 F.Supp. 924, 925 (S.D.Fla.1981) (citing Seatrain Int'l, S.A., 518 F.2d at 180).
Regardless of what standard is applied to the record before it, and without regard to any "sliding scale," this Court finds that Plaintiffs have established a high likelihood of success on the merits, far beyond the "more than negligible" standard discussed above.
Section 1396a(a)(23)
The seminal holdings which support the holding of these courts — Wilder v. Virginia Hospital Association, 496 U.S. 498, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990); Blessing v. Freestone, 520 U.S. 329, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997); and Gonzaga University v. Doe, 536 U.S. 273, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002)
These precedents thus supply the three-part test that this Court must employ to determine whether Section 1396a(a)(23) awards the Individual Plaintiff with a right enforceable under § 1983. Equal Access for El Paso, Inc. v. Hawkins, 509 F.3d 697, 702 (5th Cir.2007). Thus, if (1) Congress "intended" that Section 1396a(a)(23) "benefit the [individual] plaintiff[s]," (2) "the right assertedly protected by th[is] statute is not so vague and amorphous that its enforcement would strain judicial competence," and (3) Section 1396a(a)(23) "unambiguously impose[s] a binding obligation on the [s]tates," the Individual Plaintiffs, here represented by all Plaintiffs' counsel, may proceed to sue Defendant for violating Section 1396a(a)(23) pursuant to § 1983, having "advanc[ed] a violation of a `federal law.'" Evergreen Presbyterian Ministries Inc. v. Hood, 235 F.3d 908, 924-25 (5th Cir.2000) (quoting Blessing, 520 U.S. at 340-41, 117 S.Ct. 1353), rev'd on other grounds, as observed in Hawkins, 509 F.3d at 701 n. 4. Not voidable by one decision's dicta or a plurality's construal of a different subsection, this Gonzaga and Blessing standard for unearthing congressional intent to create a private cause of action governs still.
Read plainly, § 1396a(a)(23) easily satisfies each prong. It contains rights-creating and mandatory language, and it has an unmistakable individual focus. 42 U.S.C. § 1396a(a)(23). Indeed, with its terms so comprehensive and clear, court after court forced to peruse this provision has reached the same conclusion: "[W]e hold that the Medicaid Act's free-choice-of-provider requirement confers a private right of action under 42 U.S.C. § 1983." Betlach, 727 F.3d at 963; accord, e.g., Doc. 63 at 12-19, Bentley; Doc. 45 at 12, Selig; Indiana, 699 F.3d at 968; Harris, 442 F.3d at 459. True, as Defendant notes, some of these courts applied § 1396a(a)(23) pre-Armstrong. Yet, their distinctive factual predicates do not affect the more uniform applicability (and cogency) of these courts' interpretation of the unchanged statute at issue here in accordance with the standard laid out in Wilder and its progeny. Presented with the same exact subsection, they discerned a private cause of action within it. In following Betlach, Indiana, Harris, and Selig,
Crucially, this reading of § 1396a(a)(23) is consistent with the construction given to other similar provisions of the Medicaid Act, a fact that triggers the application of another familiar canon of interpretation, see TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S.Ct. 441, 449, 151 L.Ed.2d 339 (2001) ("[A] statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant." (internal quotation marks omitted)).
For instance, the Medicaid Act's Reasonable Promptness Provision requires that a state plan for medical assistance "provide that all individuals wishing to make application for medical assistance under the plan shall have opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals." 42 U.S.C. § 1396a(a)(8) (emphasis added). In the persuasive (and decisive) Romano, the Fifth Circuit itself applied Blessing's three-part test as modified by Gonzaga and found that this section, linguistically identical to Section 1396a(a)(23), creates a private cause of action enforceable under § 1983. 721 F.3d at 375, 378-80; accord, e.g., Sabree v. Richman, 367 F.3d 180, 192 (3d Cir.2004) (reaching the same conclusion as to Section 1396a(a)(10) and (a)(15)).
Similar in tone to Section 1396a(a)(8) and (a)(23), Section § 1396a(a)(3) reads: "A [s]tate plan for medical assistance must... provide for granting an opportunity for a fair hearing before the State agency to any individual whose claim for medical assistance under the plan is denied or is not acted upon with reasonable promptness." 42 U.S.C. § 1396a(a)(3) (emphasis added); McCarthy v. Hawkins, 381 F.3d 407, 411 n.3 (5th Cir.2004) (quoting id.). This section self-evidently contains the same words prominent in § 1396a(a)(23), including "individual" and "must." 42 U.S.C. § 1396a(a)(3). Logically, therefore, another court similarly construed it: "[The] language is mandatory, the provision contains rights-creating language, and there is an individual focus." Detgen v. Janek, 945 F.Supp.2d 746, 754 (N.D.Tex.2013); see also, e.g., Shakhnes v. Berlin, 689 F.3d 244, 247, 254, 256-57 (2d Cir.2012) (concluding that private plaintiffs can sue under § 1983 to enforce Section 1396a(a)(3)).
In a final example, Section 1396a(bb)(5) states: "In the case of services furnished by a [FQHC] ... pursuant to a contract between the center or clinic and a managed care entity ..., the State plan shall provide for payment to the center or clinic by the State." 42 U.S.C. § 1396a(bb)(5) (emphasis added). This subparagraph too, the First Circuit has observed, speaks in "individualistic terms, rather than at the aggregate level of institutional policy or practice," refers to "specific, discrete beneficiary group," and contains mandatory and "highly specific terms," and therefore creates a right subject to enforcement under § 1983. Rio Grande Cmty. Health Ctr., Inc. v. Rullan, 397 F.3d 56, 74, 75 (1st Cir.2005).
In sum, an overwhelming majority of courts confronted with language in the
Defendant urges this Court to discard this consensus on the basis of the recent Armstrong decision, (Hr'g Tr. 19:19-24, Sept. 2, 2015; Hr'g Tr. 8:4-5, Oct. 16, 2015). However, this decision cannot bear the weight placed upon it by Defendant. The Selig court said it well: Armstrong "does not overrule, or even significantly undermine, the precedent that informed the reasoning of the Sixth, Seventh, and Ninth Circuits in recognizing a private right of action under 42 U.S.C. § 1396a(a)(23)." Doc. 45 at 12, Selig. This Court agrees: by its own terms, Armstrong cannot control for four different reasons.
First, Armstrong is narrower than Defendant says. The Armstrong plurality did not dissect § 1396a(a)(23); it did not even delve into the meaning of a similarly worded provision like § 1396a(a)(3) or (a)(8). Instead, Armstrong focused on § 1396a(a)(30), which compels a state plan to "provide such methods and procedures relating to the utilization of, and the payment for, care and services available under the plan ... as may be necessary to safeguard against unnecessary utilization of such care and services and to assure that payments are consistent with efficiency, economy, and quality of care." 42 U.S.C. § 1396a(a)(30). Armstrong stressed that this subparagraph, not every paragraph in Section 1396a(a), lacked the "rights-creating" language prominent in statutes in which a private right of action could be discerned. 135 S.Ct. at 1387 (Scalia, J., plurality). Further, the Court noted that it was not focused on the rights of an individual; instead, "[i]t is phrased as a directive to the federal agency charged with approving state Medicaid plans." Id. Unlike Section 1396a(a)(30), whose precise text was examined so diligently in Armstrong, both "rights-creating" and individual-focused language are prominent in (a)(23). See supra Part V.B.1.a.
As a counter, Defendant claims that § 1396a(a)(23) and (a)(30) contain "the exact same rights creating type of language." (Hr'g Tr. 16:17-22, Sept. 2, 2015; see also Doc. 53-1 at 20.) This contention is based purely and incorrectly on the introductory words of the overall section ("a [s]tate plan must ..."), not the precise language of the controlling paragraph, i.e. Sections 1396a(a)(30). It thus ignores the specific reference to "individual" and the use of the word "may" in Section 1396a(a)(23): "[A]ny
Second, Defendant has extended Armstrong's "rationale" far beyond its own stated limits. True, four justices went further, specifically dismissing respondents' arguments for "a cause of action" predicated on "the Medicaid Act itself." Armstrong, 135 S.Ct. at 1387 (Scalia, J., plurality). However, Armstrong's next two paragraphs narrowly define the reference to "the Medicaid Act" to Section 1396a(a)(30) alone, and no majority coalesced around the broader proposition embraced by Justice Scalia, id. at 1387-88 (Scalia, J., plurality). Instead, Justice Breyer's concurrence, the fifth vote in Armstrong, specifically concentrated on the unique text of Section 1396a(a)(30), describing it as "set[ting] forth a federal mandate that is broad and nonspecific" and "appl[ying] its broad standards to the setting of rates." Id. at 1388 (Breyer, J., concurring in part and concurring in judgment). Continuing, Justice Breyer emphasized that "the history of ratemaking demonstrates that administrative agencies are far better suited to this task than judges." Id. As such, in accordance with the Fifth Circuit's binding command that a "joint opinion is ... considered the holding of the Court ... [only] as [to] the narrowest position supporting the judgment," Cole, 790 F.3d at 571, this Court refuses to take Armstrong beyond the confines of § 1396a(a)(30), the only provision upon whose interpretation a majority could agree. In fact, as Defendant conceded at the First Hearing, (Hr'g Tr. 15:9-14, Sept. 2, 2015), Armstrong did not overrule Gonzaga or Wilder, and it was Gonzaga that formed the basis of the Fifth Circuit's interpretation of § 1396a(a)(8) in Romano, 721 F.3d at 378-80. Based on the actual majority's "rationale," (Hr'g Tr. 16:18, Sept. 2, 2015), Armstrong can be read as definitive as to the breadth of Section 1396a(a)(30) but of no other section, including the Free-Choice-of-Provider now before this Court.
Third, just because § 1396a(a)(30) and (a)(23) are subparts of one act does not make them identical in form and effect, as Defendant contends in seeking to expand Armstrong beyond its express ambit. (See, e.g., Doc. 53-1 at 18-20; Hr'g Tr. 16:17-22, Sept. 2, 2015.) Rather, "[t]he mere fact that all the Medicaid laws are embedded within the requirements for a state plan does not, by itself, make all of the Medicaid provisions into ones stating a mere institutional policy or practice rather than creating an individual right." Rio Grande Cmty. Health Ctr., Inc., 397 F.3d at 74. This command, in fact, is rooted in a whole other subsection: "In an action brought to enforce a provision of this chapter [which includes the Medicaid statutes], such provision is not to be deemed unenforceable because of its inclusion in a section of this chapter requiring a State plan or specifying the required contents of a State plan." 42 U.S.C. § 1320a-2; BK v. N.H. Dep't of Health & Human Servs., 814 F.Supp.2d 59, 68 (D.N.H.2011) (citing id.); Watson v. Weeks, 436 F.3d 1152, 1158 (9th Cir.2006) ("Congress responded to ... [Wilder] by enacting ... 32 U.S.C. 1320a-2 which blocks any Medicaid Act provision from being deemed unenforceable by an individual merely because the provision contains
One final fact weighs against Armstrong's extension. Neither revolutionary nor anomalous, Armstrong actually aligned with a majority of federal courts in its construction of Section 1396a(a)(30) as to Medicaid providers in Gonzaga's after-math. See, e.g., Equal Access for El Paso, 509 F.3d at 704; Mandy v. Owens, 464 F.3d 1139, 1148 (10th Cir.2006); Westside Mothers v. Olszewski, 454 F.3d 532, 542-43 (6th Cir.2006); Sanchez v. Johnson, 416 F.3d 1051, 1059 (9th Cir.2005); Long Term Pharmacy Alliance v. Ferguson, 362 F.3d 50, 57 (1st Cir.2004); Bradley J. Sayles, Preemption or Bust: A Review of the Recent Trends in Medicaid Preemption Actions, 27 J. CONTEMP. HEALTH L. & POL'Y 120, 130 & nn. 66-67 (2010) (making this point); Nicole Huberfeld, Bizarre Life Triangle: The Spending Clause, Section 1983, and Medicaid Entitlements, 42 U.C. DAVIS L. REV. 413, 447-48 (2008) (same). In contrast, Defendant is now asking this Court to expand Armstrong not just beyond its limits but as contrary to precedent's overwhelming weight. In its circumstances, not just its legal reasoning, Armstrong can therefore be distinguished from the case at bar. See, e.g., Townsend, 2008 U.S. Dist. LEXIS 52549, at *23-24, 2008 WL 2743284, at *12 (dismissing some claims under the Medicaid Act but not plaintiffs' Section 1396a(a)(23) one, among others).
Defendant argues that, even if the Individual Plaintiffs have the right to choose a qualified provider and enforce that right via Section 1983, PPGC is not "qualified" under Section 1396a(a)(23) because DHH can deem it so by exercising Section 46:437.11(D)(2). (Hr'g Tr. 11:3-7, Oct. 16, 2015; Doc. 53-1 at 21; Hr'g Tr. 9:18-10:5, Sept. 2, 2015.) In clear and persuasive terms, the court in Selig rightly rejected that argument.
Doc. 45 at 19, Selig.
In cases of statutory interpretation, no deference is owed where the term in question is clear on its face. In determining the meaning of a statutory term, the rules of interpretation and construction are clear: a court must begin with the relevant language. Landreth Timber Co. v. Landreth, 471 U.S. 681, 685, 105 S.Ct. 2297, 2301, 85 L.Ed.2d 692 (1985); see also Temp. Emp't Servs. v. Trinity Marine Grp., 261 F.3d 456, 462 (5th Cir.2001) (citing id.). If the meaning is plain and unambiguous and the statutory scheme is both "coherent and consistent," Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 846, 136 L.Ed.2d 808 (1997); see also Salazar v. Maimon, 750 F.3d 514, 518 (5th Cir.2014) (citing id.), "the sole function of the courts is to enforce it according to its terms," Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1917); see also, e.g., Meredith v. Time Ins. Co., 980 F.2d 352, 356 & n. 18 (5th Cir.1993) (quoting id.); In re McCarthy, 391 B.R. 372, 375 (Bankr.N.D.Tex. 2008) (same).
Under these rules, Section 1396a(a)(23) is no quandary. Linguistically, "qualified" means "[p]ossessing the necessary qualifications; capable and competent." Qualified, BLACK'S LAW DICTIONARY (10th ed. 2014). Inputting this definition of "qualified" into § 1396a(a)(23), it is clear that a provider "qualified to perform the service or services required" is one who is "capable and competent" of "perform[ing]" the "service or services" for which he, she, or it has been contracted by the Medicaid eligible individual seeking "medical assistance." 42 U.S.C. § 1396a(a)(23). If it is competent to offer those services, an individual "may" choose them without a state intruding, and if a state attempts to render it unqualified based on activities that it does not undertake, it has stripped "qualified" of its natural meaning and effectively removed the phrase "to perform the service or services required" from the explicit text of Section 1396a(a)(23). It requires no specialized agency expertise to reach this conclusion; no factual development is necessary for this language to be so understood. Rather, it follows naturally from this provision's plain meaning, as illuminated by the surrounding text. See Betlach, 727 F.3d at 965. "[I]f the intent of Congress is clear," as evidenced by the use of an unambiguous word so clarified, "that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984).
With this law in mind, one fact matters greatly. On September 2, 2015, Defendant conceded that PPGC is competent to provide the services required by the Agreements and by the Medicaid Act. (Hr'g Tr. 12:17-20, Sept. 2, 2015.) Thereafter, this
Even if this Court were to regard "qualified" as ambiguous, however, DHH's interpretation would deserve no deference. In essence, Defendant contends that "qualified" is an ineradicably ambiguous term, so unfettered in content that no outer bounds but her own opinion can be set, (Doc. 13 at 8; Doc. 53-1 at 21), so that this one word has become "an interpretive wormhole, whose supposed ambiguity leads to a galaxy of unfettered agency discretion," Wheaton v. McCarthy, 800 F.3d 282, 288 (6th Cir.2015). But, for deference to be extended under well-settled jurisprudence, certain prerequisites must be satisfied. Thus, "[a] precondition to deference under Chevron is a congressional delegation of administrative authority" to the particular agency. Adams Fruit Co. v. Barrett, 494 U.S. 638, 649, 110 S.Ct. 1384, 1391, 108 L.Ed.2d 585 (1990), cited in, e.g., Alaska Wilderness League v. Jewell, 788 F.3d 1212, 1219 (9th Cir.2015). In addition, that same interpretation must be precedential, carrying "the force of law." Dhuka v. Holder, 716 F.3d 149, 155 (5th Cir.2013). If not precedential, a lower form of deference applies, with the weight of an agency's judgment "in a particular case" dependent "upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control." Id. at 154 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944)); accord Rubio v. Lynch, 787 F.3d 288, 291 (5th Cir.2015). Even if these requirements are satisfied, deference is only accorded if the statute is truly "ambiguous" regarding the precise "question at issue" and if the agency's interpretation is a "reasonable" and hence "permissible construction of the statute" at hand. Orellana-Monson v. Holder, 685 F.3d 511, 517 (5th Cir.2012); see also, e.g., Siwe v. Holder, 742 F.3d 603, 607 n. 27 (5th Cir.2014) (citing id.); United States v. Baptiste, 34 F.Supp.3d 662, 670 (W.D.Tex. 2014) (same); cf. Carl Sunstein, Law and Administration after Chevron, 90 COLUM. L. REV. 2071, 2087 (1990) (elaborating upon the reasons for deference to administrative agencies).
Assuming "qualified" is truly "ambiguous," DHH's interpretation does not meet these established predicates. Not the product of considered rulemaking or reflected in a history of enforcement, DHH has yet to provide even one bit of evidence that it has ever so construed "qualified" to exclude a provider whose competence is not at issue. For example, while Section 46:437(D)(1) had been used on "three prior distinguishable occasions," (Doc. 34 at 3), all three involved overpayment that DHH allowed the offender to correct pre-termination, (Doc. 34-1 at 2, 4, 6). The limited case law available to this Court, meanwhile, suggests that Section 46:437.11(D)(2) has been limited to instances where criminal infractions have been credibly alleged and/or financial malfeasance has been plausibly evidenced. See, e.g., Midtown Med. v. Dep't of Health & Hosps., 2012 La. App. Ct. Briefs LEXIS 1889 (La. Ct. App. Oct. 26, 2012) (termination predicated on DHH's attempted "monetary recoupment" and assessment of a "monetary penalty"); Cmty. Care-Bossier, Inc. v. Foti, No. 5:06CV181, 2006 WL 811944 (W.D.La. Feb. 7, 2006) ("On or about January 24, 2006, DHH was notified
Additionally, Defendant's present position is not even "embodied in opinion letters, policy statements, agency manuals, and enforcement guidelines," which though "lack[ing] the force of law," elicit some judicial respect. Christensen v. Harris Cnty., 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000). Indeed, in citing the various meanings that "qualified" may have, she gives no source to credit her unique interpretation, (Doc. 13 at 8; Doc. 53-1 at 21), and her own lawyer admitted that at least her original denotation of "qualified" was "circular," (Hr'g Tr. 21:12-13, Sept. 2, 2015), thereby rendering it unpersuasive and raising doubt about her present reasoning's thoroughness. White v. Black, 190 F.3d 366, 368-69 (5th Cir.1999); see also FAA v. Cooper, ___ U.S. ___, 132 S.Ct. 1441, 1449, 182 L.Ed.2d 497 (2012) (rejecting the use of "a general (and notably circular) definition"). This decision to adopt a definition of "qualified" divorced from a provider's "competence," then, bears none of the marks of considered rulemaking or evidence the exercise of some agency particular expertise, as the most minimal deference doctrines require. See Vigil v. Leavitt, 381 F.3d 826, 835 (9th Cir.2004).
Lastly, this Court finds no merit in Defendant's factual contentions regarding the recent nature of CMS' interpretation. Before this Court, Defendant has claimed that her counsel's conversation with CMS provided "some contending views ... as to what qualified mean[s]." (Hr'g Tr. 19:2-7, Sept. 2, 2015.) In Defendant's Reply, she adds an additional accusation, claiming that CMS has propounded an interpretation of "qualified" in the Statement of Interest never before evidenced or proclaimed. (Doc. 31 at 4.) Both these statements, however, are disingenuous.
The first assertion appears to be based on the First (and Second and Third) Kennedy Declarations, yet in none did Ms. Kennedy so describe her conversation with CMS. Rather, per the First Kennedy Declaration, CMS did no more than "advise[ ]" DHH that it "has the authority to withhold federal Medicaid dollars from Louisiana or seek injunctive relief for failure to comply with the Medicaid Act." Such language, even if it is most generously construed in Defendant's favor, simply does not imply that CMS acceded to Defendant's premise (that "qualified" as sufficiently "ambiguous" as to be indefinable) or that CMS acknowledged DHH's authority to define it in a manner inconsistent with CMS' understanding of § 1396a(a)(23).
Meanwhile, DHH has seemingly overlooked an Informational Bulletin, dated June 1, 2011, sent by CMS to every state Medicaid agency.
Like the Selig, Herbert and Bentley courts, this Court finds it likely that Plaintiffs will prevail on their Section 1396a(a)(23) claim. This subsection allows a private cause of action, and Defendant has already conceded that PPGC is competent to provide the services it renders in Louisiana. Thus, PPGC is "qualified" as that term must be naturally (and plainly) defined, as the Seventh and Ninth Circuits concluded in Indiana and Betlach. For the purposes of a preliminary injunction, their likelihood of success has been established. Plaintiffs have provided more than enough precedent, evidence and argument to lead this Court to believe they have a reasonable probability of success.
Nonetheless, given Defendant's recent invocation of Section 46:437.11(D)(2) and not Section 46:437.11(D)(1), this Court feels compelled to address the facial credibility of Defendant's new grounds for termination. In the Second Termination Letters, Defendant gives three "violations" justifying its terminations: first, PPGC's settlement of an FCA suit in Texas which it did not report to DHH; second, the involvement of a PPGC affiliate in a pending
The first of Defendant's reasons, the Reynolds Settlement, is likely to fail. The claim was brought by an FCA plaintiff, not the government, which choose not to intervene.
One other fact undercuts the Reynolds Settlement's significance. Plaintiffs have credibly shown that DHH was aware of the Reynolds Settlement long before October 14, 2015, with Defendant's own emails suggesting that it did not find it sufficient to provide "credible evidence" of Medicaid fraud. (Doc. 46-3 at 2.) Thus, in spite of the Second Termination Letters' implications to the contrary, (Doc. 39-1 at 2, 5, 8, 11), DHH knew, having been "notified," of this settlement, (Doc. 46-3 at 2; Hr'g Tr. 41:23-42:11, Oct. 16, 2015). Based on Title 50's simple terms and Defendant's own words from 2013, Plaintiffs are likely to succeed on proving the irrelevance of the Reynolds Settlement.
Defendant's second ground for alleging fraud — the Carroll case — rests on a quote drawn from a judge's ruling on a motion to dismiss. As revealed by that opinion's full text, per Rule 12(b), "[t]he court concludes that Carroll has adequately pleaded factual content that allows the court to draw the reasonable inference that Planned Parenthood knowingly filed false claims." Doc. 31 at 17, Carroll. Defendant's allegation that the court in Carroll found "that the information already provided allows the court to draw the reasonable inference" that fraud took place, (Doc. 39-1 at 2) is clearly wrong. Rather, as counsel for Defendant conceded in oral argument, for purposes of the motion before that court, the plaintiff's allegations were only assumed to be true, as Rule 12(b) requires. (Hr'g Tr. 36:2-11, Oct. 16, 2015.) That court never made a factual finding of fraud, as the Second Termination Letters imply by citing to this opinion as proof of "violations and misconduct by affiliates and providers-in-fact" of PPGC, (Doc. 39-1 at 2, 5, 8, 11). Instead, this court ruled only that the plaintiff had plead his case "adequate[ly]." Doc. 31 at 17, Carroll. Even today, Carroll appears
Defendant's third asserted ground is that PPGC made unspecified misrepresentations in violation of Section 46:437.14(A)(1), in response to her letter inquiries. MAPIL defines "misrepresentation" with precision as "the knowing failure to truthfully or fully disclose any and all information required, or the concealment of any and all information required on a claim or a provider agreement or the making of a false or misleading statement to the department relative to the medical assistance programs." LA. R.S. § 46:437.3(15); see also Caldwell ex rel. State v. Janssen Pharmaceutica, Inc., 144 So.3d 898, 910 (La.2014) (citing id.). Not one misrepresentation is specified or substantiated in her letter or by her attorneys, and each, on the record now before the Court, has been credibly contradicted in PPGC's August Letter, (Doc. 39-1 at 3, 6, 9, 12; Doc. 46-1 at 63-66.) If this plain statutory law, as interpreted by this state's highest court, is to be respected, it impliedly demands that a misrepresentation be plausibly alleged. None has been so, Defendant merely asserting the existence of "clear violations" without either detail or substantiation. As the evidence is currently constituted, therefore, Defendant's third ground will not likely stand.
In this Court's opinion, two other facts are telling. First, the Second Termination Letters cite no "found" violation of licensure or certification requirements or any specific failure to meet any condition of enrollment. (Doc. 39-1 at 3, 6, 9, 12.) Second, Defendant cites to the final clause of Section 46:437.11(D)(2), which allows for termination if a provider is "the subject of a sanction or of a criminal, civil, or departmental proceeding," and deems sufficient an allusion to investigations by DHH and the Louisiana Office of Inspector General. (Hr'g Tr. 34:8-15, Oct. 16, 2015; see also Doc. 39-1 at 3.) That an investigation by DHH can suffice under Section 46:436(D)(2) has been rejected once before. See New Orleans Home for Incurables, Inc. v. Greenstein, 911 F.Supp.2d 386, 410, 411-12 (E.D.La.2012). As for the second, when this Court asked Defendant's counsel to offer some detail regarding these alleged misrepresentations, he could not. (Hr'g Tr. 38:23-39:10, Oct. 16, 2015.) Considering her failure to articulate one relevant misrepresentation within MAPIL's meaning, and on the record as it now stands, Plaintiffs will likely succeed on this issue.
In fact, the apparent fragility of the Second Termination Letters' stated reasons raises another specter, for not one appears to be a supported factual allegation of the kind of fraud and ill-practice with which MAPIL is concerned. See Mortg. Elec. Registration Sys. v. Bynum, 879 So.2d 807, 811 (La.Ct.App.2004). Here, this apparent vacuum cannot be ignored, for as the Supreme Court of Louisiana explained in the spring of 2015, "[a]n agency exercising delegated authority is not free to pursue any and all ends, but can assert authority only over those ends which are connected with the task delegated by the legislative body." Dep't of Children & Family Servs. ex rel. A.L. v. Lowrie, 167 So.3d 573, 587-88 (La.2015); see also State v. Alfonso, 753 So.2d 156, 161 (La.1999) ("When the legislative body, in delegating powers, clearly expresses its policy and provides sufficient standards, judicial review of the exercise of the means chosen by the agency in exercising its delegated power provides a safeguard
Section 46:437.11(D)(2) is but one part of a law directed towards specific ills. It is reasonable to conclude that the legislature logically expected the powers awarded by this provision to be employed so as "to combat and prevent fraud and abuse" and to secure the "fiscal and programmatic integrity" of a program otherwise endangered by "persons who engage in fraud, misrepresentation, abuse, or other ill practices" as expressly defined in MAPIL alone. See LA. R.S. § 46:437.2.
But, based on the evidence so far presented, no actual evidence of a MAPIL-worthy-misdeed has been presented. Indeed, no misconduct of any kind has been alleged, let alone shown, as it pertains to PPGC's operations in Louisiana. The Parties have stipulated that, for purposes of the Court's consideration of a preliminary injunction, no additional evidence need be offered and no additional argument need be made; consequently, evidentiary support for a single one of Defendant's contentions is absent by Defendant's own volition. By highlighting the suspect underpinning the Second Termination Letters, Plaintiffs have therefore met their burden of showing a likely success on this issue, regardless and apart from the Individual Plaintiffs' likely success on the other issues previously discussed. See supra Part V.B.1.a-c.
"`Irreparable' in the injunction context means not rectifiable by the entry of a final judgment." Walgreen Co. v. Sara Creek Prop. Co., 966 F.2d 273, 275 (7th Cir.1992). On the record before the Court, Plaintiffs have met their burden of showing irreparable harm.
Based on their uncontroverted affidavits, the Individual Plaintiffs depend on PPGC. (Doc. 4-3, 4-4, 4-5.) And if the Agreements are terminated, they (and Jane Doe #3's daughter) will be unable to visit their Medicaid provider of choice. (Doc. 4-3 ¶¶ 6-7 at 2; Doc. 4-4 ¶¶ 7-8 at 2; Doc. 4-5 ¶¶ 5-6 at 2.) Approximately, 5,200 other women visit BRHC and NOHC and likely depend upon to some degree. (Doc. 41-1 ¶¶ 12-18 at 4-5.) At this stage of the proceeding, the Court is persuaded that, absent this termination, the patients of PPGC in Louisiana will have their healthcare disrupted. Counsel for Defendant has already conceded this to be the case. (Hr'g Tr. 13:1-12, Sept. 2, 2015.) Like the court in Selig, this Court credits these women's "statements in the form submitted." Doc. 45 at 20, Selig. Presented with similar facts, other courts have found irreparable harm. See, e.g., Doc. 63 at 51-54, Bentley; Doc. 45 at 22, Selig; Doc. 12 at 1-2, Herbert; Planned Parenthood of Ind., Inc. v. Comm'r of Ind. State Dep't of Health, 794 F.Supp.2d 892, 912-13 (S.D.Ind.2011), aff'd in part and rev'd in part on other grounds, 699 F.3d 962; Camacho v. Texas Workforce Comm'n, 326 F.Supp.2d 794, 802 (W.D.Tex.2004).
Based on its own unquestioned assertions, PPGC will also likely suffer irreparable harm. Regardless of the precise dollars in revenue it may receive from the state, PPGC has made clear that it may have to close BRHC upon the Agreements' termination. (Doc. 46 at 27.) Often, such results have been considered irreparable. Planned Parenthood of Ind., Inc., 794 F.Supp.2d at 912; see also Canterbury Career Sch., Inc. v. Riley, 833 F.Supp. 1097, 1105 (D.N.J.1993) ("Where the result of denying injunctive relief would be the destruction of an on-going business, such a
Defendant has sought to allay these concerns with the First, Second, and Third Kennedy Declarations. (Doc. 13-2 at 1-41; Doc. 31-1 at 1-2; Doc. 34 at 1-2; Doc. 34-2 ¶¶ 8a-8b at 2.) Yet, these declarations' manifold oversights and constant tinkering leave this Court with the decided impression that not even DHH can ensure that PPGC's current patients will have some ready and convenient outlet. Indeed, even the most recent version contains a number of specialized providers who do not accept patients like PPGC's own. See supra Part II.C.3.
Furthermore, even if Individual Plaintiffs could get family planning and other comparable care elsewhere (and that has not been convincingly shown), "this does not diminish the injury that will result from [their] inability to see the provider of their choice." Doc. 63 at 54, Bentley (citing Doc. 45 at 22, Selig ("[D]enial of ... freedom of choice is more likely than not exactly the injury Congress sought to provide when it enacted [the free-choice-of-provider provision].")). On the record before it, the Court finds the second element for a preliminary injunction to have been sufficiently shown.
By contrast to the Plaintiffs' enumerated harms, Defendant points the Court to only two that it maintains it will suffer if the motion is granted: (1) "The granting of a TRO would prevent the []DHH from their ability to govern the Medicaid program under the authority granted by the Medicaid Act," and, (2) "It would also contravene the Louisiana Legislature's intent to give the [ ]DHH a right to terminate a Medicaid provider agreement at-will when she chooses to do so." (Doc. 13 at 20.) The second obviously bears no more relevance since Defendant has rescinded her letters of termination under Section 46:436.11(D)(1). An injunction will have no financial effect, as DHH will still need to pay the Medicaid benefits of every PPGC Medicaid-eligible patient. See Doc. 12 at 1, Herbert; Marlo M. ex rel. Parris v. Cansler, 679 F.Supp.2d 635, 638 (E.D.N.C. 2010). In dollars and cents, maintaining this status quo costs DHH nothing.
Furthermore, in terms of her ability to "govern the Medicaid program," an injunction will not strip DHH of its statutory powers. It will not suddenly deprive her of the ability to pursue legitimate claims of Medicaid fraud or ensure that Louisiana citizens are obtaining "competent" medical care; she will still be able "to govern the Medical program." At worst, it will halt its exercise of a particular power as to a single provider as to whose medical competency it has admitted. Indeed, at worst, such an injunction will do no more than
At the same time, this Court is not persuaded by Defendant's efforts to distinguish Plaintiffs' cases. One case that Defendant previously attempted to distinguish as being predicated on Section 46:437.11(D)(2), (Doc. 13 at 21), involved the very section she has now invoked. New Orleans Home for Incurables, Inc., 911 F.Supp.2d at 410-11. By now relying on this very section, Defendant's latest termination has now made this case particularly relevant. It is true that Plaintiffs' second cited case — Giovani Carandola, Ltd. v. Bason, 303 F.3d 507 (4th Cir.2002) — "involved a State that enforced restrictions likely to be found unconstitutional." (Doc. 13 at 21.) But the balance still favors Plaintiffs where, as here, the injunction is intended to foreclose application of restrictions likely to be found contrary to preeminent federal statutory law designed to help the neediest of this state's citizens.
In sum, even if Defendant's criticism is given weight, the balance of harms would still favor Plaintiffs.
In light of Plaintiffs' likely irreparable harm and the balanced equities, this final factor favors an injunctive relief too. For decades, PPGC has served numerous at-risk individuals and helped DHH combat a host of diseases, and, in the process, become the regular provider of over 5,000 women, including the Individual Plaintiff. Like its brethren, this Court "believes that... vulnerable population[s] should only be uprooted if practically necessary and legally warranted." Greenstein, 911 F.Supp.2d at 412. As the Ninth Circuit stated in considering this same factor in a Medicaid case, the public interest is most acute in regards to "ensuring access to health care" absent any misdeed's demonstration. Indep. Living Ctr. of S. Cal., Inc. v. Maxwell-Jolly, 572 F.3d 644, 659 (9th Cir. 2002), vacated and remanded on other grounds, ___ U.S. ___, 132 S.Ct. 1204, 182 L.Ed.2d 101 (2012). Defendant herself has urged this Court to employ this factor: "[I]t is certainly true that the public has an interest in the neediest of its members having access to healthcare." (Doc. 13 at 21.) Like Selig and Herbert, this Court adopts this reasoning and finds the public interest favors Plaintiffs.
In contesting Plaintiffs' public interest arguments, Defendant has offered up only the following statement of purported fact: "[T]here has been no evidence presented that shows Medicaid recipients in the New Orleans and Baton Rouge areas will not have access to family planning and related services." (Doc. 13 at 21.) As support, she asked this Court to rely upon the First Kennedy Declaration. (Id. at 21-22.) As noted above, see supra Parts II.C.3, V.C. a Kennedy Declaration has been tendered, retracted, and again proposed, leaving this Court wary of relying on Defendant's protean assertions of fact. It instead turns to the uncontested and unquestioned facts — PPGC serves 5,200 poor and needy women, and PPGC has repeatedly been deemed a "competent" provider by DHH — and honors the public interest in affording these women access to their provider of choice.
Four elements are necessary before a court may issue an injunction. Every element has been shown by Plaintiffs in this proceeding in regards to their Section
Rule 65 allows a court to "issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained." FED. R. CIV. P. 65(c). This requirement, however, may be waived where the gravity of interest is great and no proper showing of a harm's likelihood or a probable loss is made. See, e.g., Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 628 (5th Cir.1996) ("In holding that the amount of security required pursuant to Rule 65(c) is a matter for the discretion of the trial court, we have ruled that the court may elect to require no security at all." (internal quotation marks omitted)); City of Atlanta v. Metro. Atlanta Rapid Transit Auth., 636 F.2d 1084, 1094 (5th Cir.1981) (same). Here, as in other courts, see, e.g., Doc. 45 at 31, Selig, Defendant has neither requested a security were this Court to issue an injunction nor presented any evidence that it would be financially harmed if it were wrongfully enjoined. In addition, as Plaintiffs note, "[w]hether these individuals obtain these services at PPGC (their provider of choice) or elsewhere will have no effect on Louisiana's budget." (Doc. 46 at 28.) Based on these facts and on Defendant's failure to ask for a bond or plead an economic harm, this Court sees no credible reason to force a bond's execution.
Plaintiffs argue that they have been singled out because of the alleged (but disputed) conduct of a separate but connected company that appeared in one of CMP's videos and that Plaintiffs played no role in that conduct. (Doc. 46 at 1-3.) Plaintiffs argue that Defendant has attempted to terminate its contracts because of the personal animus against it. This animus, they contend, is unrelated to the admittedly competent services that it renders in Louisiana which are, in turn, unrelated to the conduct in the videos. It is, moreover, being punished for being associated with various other Planned Parenthood entities, though it itself has not been demonstrated to have engaged in a single proscribed or illegal action. In fact, the uncontradicted evidence in the record at this time is that PPGC does not perform abortions in Louisiana and is not involved in the sale of fetal tissue and that none of the conduct in question occurred at PPGC's two Louisiana facilities. As such, based on this existing record, it appears likely that Plaintiff will be able to prove that the attempted terminations against it are motivated and driven, at least in large part, by reasons unrelated to its competence and unique to it. However, the Court finds it is not necessary and therefore it need not at this time rule on Plaintiffs' equal protection argument. See, e.g., Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439, 445, 108 S.Ct. 1319, 1323, 1323, 99 L.Ed.2d 534 (1988) ("A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them."); cf. BRYAN A. GARNER & ANTONINA SCALIA, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 249-51 (2012) (discussing this rule's bases).
Nonetheless, the uncontradicted evidence in the record is that BRHC relies to a significant degree on Medicaid reimbursements. (See, e.g., Doc. 4-1 at 10; Doc. 46 at 2.) The Court therefore finds that if the Agreements are terminated, this facility would suffer significant financial loss and might have no choice but to close. In order to insure that meaningful relief is
The Parties have agreed that no additional evidence or argument is necessary and that there is no objection to converting the Court's previous temporary restraining order to a preliminary objection. (Docs. 58, 62.) For the foregoing reasons, as corrected, supplemented and clarified herein, PPGC and the Individual Plaintiffs have met their burden, demonstrating every element necessary for the issuance of a preliminary injunction with credible evidence and persuasive precedent. Accordingly,
Defendant's Motion to Dismiss Complaint for Lack of Subject Matter Jurisdiction and Failure to State a Claim (Doc. 53) is DENIED.
Plaintiffs' Renewed Motion for Temporary Restraining Order and for Preliminary Injunction (Doc. 45) is GRANTED.
Defendant, and all those acting in concert with her, are PRELIMINARILY ENJOINED from terminating any of its Medicaid provider agreements with Planned Parenthood Gulf Coast Inc., including, but not limited to, Provider Numbers 91338, 133689, 45802, and 133673. The preliminary injunction will remain in force until notified by this Court.
