Planned Parenthood of AR, etc. v. Cindy Gillespie

declined, of stating multiple quantities dence of sales resale employ. The district court by binding precedent drugs of in of “is bound is sufficient itself regardless in this conspiracy circuit what a submissible case of a make (al Conway, circuits have determined.” distribute.” 754 F.3d at 588 (internal original) quotation in teration We the district court’s review omitted) (quoting marks States v. United jury instructions for an abuse discretion. 832, (8th 2011)); 651 F.3d Cir. Slagg, Composites, Inc. v. Firetrace Lincoln Morales, see also v. United States (8th USA, LLC, 453, 461 Cir. 825 F.3d 1058, (8th 2016) (“It Cir. is a F.3d 2016). “Our review limited determin panel circuit that one cardinal rule our instructions, taken as a ‘whether panel.” of prior is bound decision light in the the evi whole and viewed States, (quoting Mader v. United F.3d law, fairly accu applicable dence (8th 2011) (en 794, banc))). Cir. When a jury.’ rately to the submitted the issues multiple case involves sales controlled jury verdict unless We will reverse quantities greater substances and are party’s instruction an erroneous affects use, personal buyer-seller than that (citation omitted) rights.” Id. substantial appropriate. Conway, instruction is not Slidell, Inor (quoting v. Inc. Millennium F.3d at 592. Chems., Inc., ganic (8th 2006)). Cir. Because evidence establishes that quantities resale Davis sold metham- appeal, argues that

On Davis phetamine period over an extended his rejecting court erred district time, the court district abuse posed buyer-seller urges instruction and rejecting buyer- the proposed discretion reasoning court to adopt our seller instruction. regarding applicability circuits sister buyer-seller instruction when there is III. Conclusion of multiple evidence transactions. “This we cannot and not do.” v. will United States Accordingly, judgment we affirm (8th Wyatt, 853 F.3d Cir. the district court. “It a cardinal in our circuit one rule prior is bound the decision of a panel Luebbers,

panel.” (quoting Owsley v. 2002)). (8th Cir. “While

proof conspiracy requires evidence than simply buyer-seller

more relation

ship, buyer-seller we have limited relation ship ‘only cases to involving those evidence 1-3; DOES, Jane Planned Parenthood single agreement transient sales doing Oklahoma, Arkansas Eastern small drugs amounts of consistent with business as Planned Trotter, personal use.’” United States v. Plains, Plaintiffs-Appellees, Great (8th 2016), 837 F.3d 867-68 cert. — denied, U.S. —, Cindy GILLESPIE,1 L.Ed.2d United States Director of the Boykin, Department 948-49 Arkansas of Human 2015)). Services, Eighth Defendant-Appellant. Circuit law is clear: “[E]vi Cindy automatically Gillespie predecessor pursuant her substituted these cases Association; Public American Health Rights;

National Center Lesbian Family Planning Repro &

National Association;

ductive Health National Program;

Health Law National Lati Health; Reproductive

na Institute Center;

National Law Women’s Sexu

ality Information and Education U.S., Amici on

Council Behalf Appellees. Arkansas Oklahoma, doing

Eastern business as Plains;

Planned Parenthood Great Does, Plaintiffs-Appellees,

Jane

Cindy Gillespie, Director of the Arkan Services, Department of

sas Human

Defendant-Appellant. 15-3271,No. 16-4068

No. Appeals, States Court of

United

Eighth Circuit. September

Submitted: August

Filed: 43(c)(2). Appellate

Federal Rule of Procedure Brownstein, AR, Rock,

Bettina Little E. Law, Chemerinsky, Erwin UCI School CA, Sandman, Irvine, Jennifer America, Federation New York, (Case NY, for Plaintiffs-Appellees 15-3271, 16-4068). Nos. Cordi, Jr., Joseph Fayetteville, pa- services that

Carmine offers Curran, AR, A. Associate tients David General seek. Rock, AR, Counsel, University Little enjoined Depart- The district court Counsel,

Arkansas, Office General ment suspending payments (Case 15-3271). Defendant-Appellant No. to Planned Parenthood of Arkansas and Rudofsky, Attorney General’s Lee P. Of- Eastern Oklahoma for services rendered fice, Sterling, Depart- Arkansas David W. patients. court en- three later Services, Office of ment of Chief Human injunction tered a broader forbids sus- Rock, AR, Counsel, Little Defendant- pending payments for services rendered (Case 16-4068). Appellant Nos. class Medicaid The'Di- beneficiaries. appeals, rector and we conclude Perkins, Martha Jane National Health do have a likelihood of suc- Carrboro, NC, for Amici on Program, Law cess on the merits their claims. The Appellee(s) Public Behalf of American provision of the Act does Association, for National Center Health unambiguously for create Planning Family Rights, Lesbian National patients that can enforced Association, Na Reproductive Health under therefore vacate the We La Program, National tional Health Law injunctions. Health, Reproductive tin for Institute Center, Sexuality National Women’s Law

Information Council of and Education I. 15-3271). (Case No. Planned Parenthood Arkansas and Lyford, Attorney Of- Charles General’s Oklahoma, Eastern affiliate AR, fice, Rock, Defendant-Ap- for Little Planned Parenthood Federation Amer- 16-4068). (Case pellant No. ica, operates centers health Arkansas. will call the local “Planned We affiliate COLLOTON, MELLOY, and Before for short. The court Parenthood” district SHEPHERD, Judges. Circuit found that the Arkansas health centers family “provide planping services men COLLOTON, Judge. Circuit women, including contraception and and Department of Human The Arkansas counseling, screening contraceptive provider its terminated Medicaid Services cancer, pregnancy breast and cervical test- agreements Parenthood with Planned early counseling, and and medication Arkansas Eastern Oklahoma after and abortion.” recordings release of controversial video As of and the affili- Planned Parenthood involving other Planned Parenthood Department of of Arkansas and Arkansas Human Services ates. Planned Parenthood to contracts which challenged parties under Eastern Oklahoma were could participated through an Planned Parenthood the termination administrative The con- judicial program. Arkansas Arkansas appeal review Instead, courts, provided party that either could ter- so. tracts declined to do- thirty by giving by the minate them without cause patients three Arkansas identified Department the Di- notice. The could days’ affiliate also Planned sued Parenthood immediately for the contracts Department 42 U.S.C. terminate rector under reasons, including for conduct claiming vio- several Department Medic- applicable sanctionable under the patients a federal lated aid Provider Manual. any “qualified” Act the Medicaid choose law, August provider On Governor Hutchin- who is Under Arkansas Department son Arkansas directed the terminated has file an adminis- agree- appeal thirty terminate its Medicaid trative within days termination, ments judicial with Planned Parenthood. Gov- then to seek re- public 016.06.35-161.400; ernor in a said statement it was view. Ark. Code R. ... “apparent after the recent revelations Ark. Code Ann. 20-77-1718. Planned Parenthood, Parenthood, however, on the actions declined exercise organization represent appeal rights Arkansas law people patients values of our and Ar- instead identified three who were by terminating any willing join organization kansas is better served a federal existing and all contracts them.” Con- lawsuit. text makes clear that the “recent revela- 11,2015, September On Planned Parent- tions” to which the Governor referred patients hood and three identified “Jane recordings were released video Department’s Does” sued the Director in Progress purport- Center Medical court, seeking temporary district re- employees ed show other Planned straining injunc- order a preliminary discussing affiliates the sale prevent tion to Department from ter- fetal for profit. parties dispute tissue The minating contract. Planned Parenthood’s the Planned Parenthood

whether affiliates plaintiffs alleged they likely The were recordings engaged involved in any prevail to Department, on a claim that the unlawful unethical conduct. by excluding Planned Parenthood on Department, August

The program Medicaid for a reason unrelated notified Planned services, Parenthood that to its fitness to provide was medical 23(A) terminating agree- the Medicaid had violated the Medicaid Act. ments, later, thirty days effective noti- This section is as the Medicaid described fied to “free-choice-of-provider” provision. Planned Parenthood its file 1396a(a)(23)(A). appeal. an thirty administrative Before the plaintiffs U.S.C. The days expired, September Depart- injunc- further asserted that without tion, they ment a irreparable second notice. This one stated suffer sent harm. would Department terminating that the its was The claimed that creates agreements with for judicially right, a Parenthood enforceable violation of cause, through because “there is that which can be action evidence remedied its affiliates [Planned Parenthood] 1983. The district court and/or acting in an granted temporary restraining are unethical manner and order. engaging appears wrongful in what to be briefing by parties, After further conduct.” Rather than the con- discontinue claim for Planned Parenthood withdrew its however, immediately, Depart- tracts provider, relief as a but the Does Jane Septem- ment set the termination for date proceeded patients, with their claims 14, 2015, the specified ber same date in the granted prelimi- and the district court first letter. nary injunction in favor of the Jane Does. regulations The court by

Federal authorized Con- creates a concluded gress promulgated Secretary private by the Jane Does § 1983, require Health and Human Services each under to likely were for appeal procedures to establish the merits of claim that prevail State their providers. Department unlawfully Medicaid terminated 1396a(a)(4), (39); §§ 1002.213. contract with Planned The C.F.R. Parenthood. that, provides in- without an Section cause court also determined who, against any person action under color irrep- suffer junction, the Jane Does would law, subjects deprivation a citizen Department appealed harm. arable The any rights secured laws preliminary injunction, grant Generally speaking, States. United argument. oral and we heard remedy for supplies vindication submitted, was the dis- appeal After rights arising from federal statutes. Maine plaintiffs’ motion granted trict court Thiboutot, “patients who seek to certify class (1980). For legisla 65 L.Ed.2d obtain, obtain, or health care desire Congress’s spend tion pursuant enacted Parent- services Arkansas [Planned however, ing power, typical remedy “the through program.” The hood] im noncompliance federally for second, court then district issued broad- posed is not a cause of conditions injunction Department that forbids the er noncompliance action but rather action suspend payments to Planned by the Federal Government terminate services rendered Med- to the Pennhurst Sch. funds State.” icaid beneficiaries who are members Halderman, 1, 28, 101 Hosp. 451 U.S. granting class. The district court’s order (1981). L.Ed.2d injunction incorporated the the second support To an action under reasoning from first court’s order. plaintiff relying on a law must Congress clearly intended to establish appeal Department filed a notice right. create an enforceable federal Gonza injunction. preliminary of the class-wide Doe, 273, 283, 122 ga Univ. v. joint motion re- parties then filed (2002). 2268, 153 L.Ed.2d 309 There questing ap- that we consolidate the two time, Virgi v. was a illustrated Wilder briefing and peals, and waived further 498, 110 Ass’n, 496 Hospital nia U.S. S.Ct. appeals argument. We consolidated 2510, (1990), 110 455 when the L.Ed.2d together. them and now consider Act to create an Medicaid was deemed provision ques if the in enforceable II. putative tion to benefit the was “intend[ed] (altera 509, 110 2510 S.Ct. plaintiff.” Id. in seeking preliminary A party original) in Golden State tion demonstrate, among other junction must 103, City of L.A., 493 Corp. Transit v. U.S. on the merits. things, a likelihood success (1989)). 106, 110 444, 107 420 L.Ed.2d S.Ct. Geren, 674, 690, 128 Munaf 553 U.S. v. premise, from that held Starting Wilder (2008). 2207, 1 In this L.Ed.2d S.Ct. 171 §to Boren Amendment case, bearing on like question a threshold Act created a federal the Medicaid is the Jane Doe lihood success whether under providers for that was enforceable and the certified class of Medic § 1983. judicially patients have aid however, decisions, of the Med under cited show Later 1396a(a)(23)(A). Act, If identifying icaid 42 governing that the standard not create an enforceable in rights spending the statute does stat enforceable federal enough, and It not right, rigorous. then the Jane Does more as utes is 1983, Freestone, 520 Blessing cannot sue under v. U.S. class members Wilder L.Ed.2d 569 there no likelihood of success 117 S.Ct. 137 (1997), suggested, to show sim might have merits. (1997), “repudia ply plaintiff general that a “falls within the Court’s L.Ed.2d equivalent zone of that the statute is intend tion” is the functional interest Wilder “overruling,” the Court uses protect,” ed interchangeably. Obergefell Hodg 2268. It is now settled that noth terms v. — U.S. —, es, 2584, 2606, unambiguously of an “short conferred S.Ct. (2015); right” support Corp. of action Keene will cause L.Ed.2d United under States, 200, 215, 1983.Id. U.S. (1993); 124 L.Ed.2d 118 Planned Parent therefore, the recently, Most' Court ob Casey, hood Se. Pa. U.S. providers seeking served (1992),2 L.Ed.2d §' Act enforce the Medicaid rely proceed Wilder The in ap issue case because the Court’s later decisions pears in a Act section ready implication “plainly repudiate the concerning plans medical assis exemplified.” 1983 action that Wilder provides, exceptions Act tance. Ctr., Inc., Exceptional Armstrong v. Child here, Secretary relevant — U.S. —, 135 1378, 1386n.*, approve Health “shall and Human Services (2015). explained L.Ed.2d The Court any plan speci which fulfills the conditions Gonzaga expressly rejected the no (a).” in fied subsection Wilder,” tion, “implicit something 1396a(b). (a), turn, de Subsection unambiguously “short of an conferred plan clares that for medical “[a] as right” support can a cause of action under satisfy eighty-three sistance must” some Armstrong explicit 1983. Id. thus made conditions. condition involved here implicit Gonzaga, what was where 23(A), namely, that the state must dissenting opinion concluded “provide eligible ... Court “sub cases overruled] silentio such (including drugs) for- medical assistance Wilder,” as ... because the Boren Amend may from any obtain such assistance insti , “clear[ly] unambigu ment .did tution, agency community pharmacy, or ous[ly] enforceability intend person, qualified to perform the service or n.8, 122 § 1983” 536 at 300 S.Ct. 2268 required services ... undertakes to who (Stevens, J,, (second dissenting) and third provide him such services.” (cita emphasis original) alteration 1396a(a)(23)(A). § omitted). Congress tion former repealed 13(A) § the Boren Amendment Jane Does contend that 1997, 23(A) Budget 1997, § see Balanced Act of creates an enforceable federal 4711, 251, § right Pub. L. No. 111 patients Stat. for to individual receive ser 507-08, so the Court no provider “qualified occasion vices from who is will formally to pur perform overrule But for to Wilder. the seek. If service” poses obligation apply Supreme of our qualified per to Planned Parenthood is Felton, precedent, Agostini see service, they form the argue, then 1983 203, 237, provides 521 138 remedy through U.S. which a court Care, Administration, Specialty Special Inc. Pediatric v. Arkansas De Needs Trust Inc. v. Services, partment Olson, 293 (8th F.3d 472 2012), Human 676 688 also cited 2002), dissent, by post, cited dissent, by apply Gonzaga, did not was 1049-50, 1050-52, Gonzaga preceded and did Armstrong, before decided concerned a statutory provisions not consider whether the different of the Medicaid Act that is unambiguously at issue there conferred not at issue here. right plaintiffs. enforceable Center for

1041 23(A)—the pliance require withholding can to maintain its con- the State with Parenthood, tract with so that the Secretary. 42 funds federal from Jane Does obtain assistance can Congress 1396c. also authorized the Sec provider. retary promulgate regulations that are necessary for efficient proper op significant difficulties We see § 1396a(a)(4). plan. eration unambig the contention that with that authority, Secretary Under has uously creates an enforceable federal required give providers Act n States First, right. the focus of the two appeal an exclusion from the Medicaid from steps removed the interests program. 42 C.F.R. 1002.213.3Because patients who' seek services' a' Medic provide other the Act sections of mecha provider. Like the at issue in aid nisms obligation to enforce un Armstrong, State’s phrased as directive “[i]t agency charged approv qualified provid to the federal der to reimburse ing plans, not state Medicaid as patients, conferral ers who are chosen Medicaid upon sue beneficiaries conclude that reasonable to create, Med participate State’s decision intend to an enforceable (plurality opinion). 135 at 1387 icaid.” S.Ct. patients for words, neither,on “[i]t In focuses M., See Suter v. Artist 360- U.S. protected nor even the fund individuals 61, 363, S.Ct. L.Ed.2d being regulated, on the recipients (1992), superseded by statute on other agenc[y] regulating.” Alex will do the 1320a-2, 1320a-10; §§ grounds, Sandoval, ander v. U,S. Gonzaga, see also (2001). 1511, 149 A L.Ed.2d stat Suter). (applying S.Ct. 2268 speaks government ute that to the official " Accepting position the Jane Does’ would regulate recipient will who system in a of a result curious review funding not confer the sort of ‘indi “does that a determination State’s that is vidual entitlement’ law, '“qualified.” is not Federal vider 287, 122 1983.” U.S. noted, that when a termi- requires Blessing, 520 U.S. at 343, 117 provider, natés a the State must Even subsid where mandatory iary provision lan opportunity includes ad provider afford individuals, guage ultimately benefits appeal review judicial ministrative phrased a statute as a a feder directive the Jane state courts. Under .Does’ agency not confer en typically al vision, provider litigating while rights on the forceable federal individuals. courts, or qualifications in the state after Ass’n, Coutu, Inc. v. Univs. Research unsuccessfully appeals a de n.1, 772-73, 101 S.Ct. qualified, termination that it is not individ (1981). 67 L.Ed.2d patients separately litigate ual could relitigate provider Second, Congress expressly qualifications conferred § enforcing adju in 1983. anoth'er com federal court under Each means State’s regulations consequences eral of a It was that federal State exclusion led foreseeable Secretary afford provide for administrative to mandate that would state States due exclusions, providers. judicial process protections provider be review excluded Abuse; Programs: Congress specified Secretary Health Care Fraud and cause may Amendments OIG Exclusion and CMP Au exclude from health care Resulting gram Law provider is From Public who excluded State. thorities 3298, (Jan. 29, 1992), 1320a-7(b)(5). Reg. § 57 Fed. 42 U.S.C. The fed 3322-23 collateral 1396c(2). § apply imprecise Although must a rather U.S.C. dicator Wilder standard, asking an in whether identified former 13(A) § “qualified perform despite the service or ser of the Medicaid Act required.” potential parallel compliance for require vices statute’s substantial ment, Care, gives us see litigation and inconsistent results Midwest Foster F.3d 1201, Congress put further reason to doubt in at in para we little stock 23(A) Armstrong’s, § an unambiguously digm express created en after disavowal for patients. analysis. forceable federal s Wilder’ mode There Cf. 292, Gonzaga, stronger Armstrong 536 U.S. at 122 S.Ct. 2268 reason after infer J., 1396a(a)(23)(A) (Breyer, concurring judgment). aggregate for an focus compliance based on the substantial fund Third, “aggregate” an statutes with ing requirement of 1396c. give rights. focus do rise individual Does, citing The Jane decisions of other 288, Gonzaga, 536 U.S. S.Ct. 2268 circuits, rely on the fact that re (quoting Blessing, 520 to “any eligible fers individual for medical 1353). court in Foster This Midwest assistance,” Act Kincade, Adoption Care Ass’n speaks in mandatory language when (8th 2013), Cir. reasoned that says plan that a state provide “must” “a funding statute links to substan where to obtain assistance compliance tial with conditions—includ 1396a(a). qualified provider. 42 U.S.C. ing forming adhering to a state They say that this text includes the sort specified features—this counsels “rights-creating language” supports against individually creation en an action under 1983. See Planned Par rights.” “Focusing forceable on Id. at 1200. Coast, Gee, enthood Inc. v. compliance substantial is tantamount to fo Gulf (5th Cir.), 456-59 petition cusing aggregate on practices 13, 2017); filed, No. reh’g (July 15-30987 funding recipient.” 1201; Id. at see Betlach, Planned Parenthood Ariz. Inc. v. 536 U.S. at 122 S.Ct. 2268 (9th 2013); 727 F.3d 966-67 Cir. (explaining Blessing “found that Title Ind., Planned Parenthood Inc. IV-D failed to support 1983 suit Health, Comm’r Dep’t Ind. State part it only required because ‘substantial (7th 2012); 699 F.3d 974-76 Har compliance’ regulations”); with federal Olszewski, ris v. 461-62 Blessing, 520 U.S. at 1353. The statute at issue Fos Midwest ter Care concerned on behalf of “payments view, In our this analysis gives child,” 672(a)(1) each (empha weight to Gonzaga’s require insufficient added), sis arguably suggesting thus a fo unambiguous ment of intent and individuals, cus but this court concluded factors that we have discussed above: the “substantial compliance funding reference to an “individual” is with nested condition” indicated that the statute had of eighty-three one subsections and is aggregate focus. F.3d at steps two removed from the Act’s focus part

Section is likewise of a plans Secretary sub which state ap “shall compliance regime. stantial Secretary prove,” 1396a(b); di directed discontinue payments rectly indirectly to a established other if he finds that “in compliance, of enforcing administration means 42 U.S.C. of 1396c, § there is comply 1002.213; a failure to 42 C.F.R. and the substantially” with a of compliance 1396a. substantial funding condition 843, (1997); suggests aggregate focus. L.Ed.2d 808 Davis v. 1396c 803, 809, elements of the statute Dep’t Treasury, structural Mich. Where U.S. give in a language discrete subsection 1500, (1989); 109 S.Ct. 103 L.Ed.2d 891 K- intent, signals legislative Con mixed about Cartier, Inc., 281, Corp. Mart spoken—as required by gress has 1811, L.Ed.2d 313 280, 122 Gonzaga, 536 S.Ct. 2268— U.S. (1988). voice” that manifests an with “clear “ The decisions of other courts also can be ‘unambiguous’ intent” to confer individual explained part in in by an evolution Goetz, B. v. rights. See John by law. The authorities cited the Jane 2010) curiam) (ob (per 361-62 (and rely significantly pre- Does in the serving comparable argument that a based decisions, understandably) on the Su Act on the as a whole “has considerable analysis in preme now-repudi Court’s statute,” support language in the ated Wilder decision. See Parent concluding by that it was foreclosed (“Indiana’s Ind., hood 699 F.3d at 976 precedent).4 circuit position is hard reconcile with Wil dissent, post, at as ...”); Harris, (“Our der. F.3d at 463 it “inappropriate” serts that is to consider comports ... conclusion decisions 1396a(a) part the fact that a di Supreme [and courts] Secretary, proposes to the rective recognized privately enforceable decide existence fed rights stemming from simi fragment right based on a in eral sentence statutory language in lar the Medicaid 1396a(a)(23). approach The dissent’s Act.”) Wilder, 510, 524, (citing U.S. at statutory runs counter to basic rules 2510); Gee, see also 862 F.3d at interpretive no interpretation. “Perhaps (following 459-60 the Sixth and Seventh fault is more common than the failure to Circuits); Betlach, 727 F.3d 966-67 canon, calls on follow the whole-text which (same). similarly Circuit The Third judicial interpreter consider en reversing district relied Wilder text, tire in view its structure and of the 1396a(a)(8), §§ court’s decision logical many physical and relation 1396d(a)(15) 1396a(a)(10), not un did Garner, Bryan Antonin Scalia & A. parts.” rights in ambiguously create enforceable Reading Interpretation Legal Law: The rel. light Gonzaga. ex Sabree Sabree (2012). proper inquiry Texts 167 (3d Richman, 192-93 Congress intended to create an whether however, concurring opinion, A right when enacted enforceable federal might not en suggested that the result specific question. Congres analysis dure: and decision “While meaning sional intent or is not discerned may reflect the di the District Court merely by considering portion statu Court cases in Supreme rection that future isolation, tory provision but rather take, currently binding prec this area will provision in reading complete the con Court.” supports edent the decision text of the statute as whole. Robinson v. J., Co., (Alito, concurring).5 at 194 Shell Oil precludes enforcement Congress 4. Because we conclude that scheme that unambiguously confer a federal 536 U.S. at 284 presumptively enforceable under we n.4, 122 adopt do dissent, view attributed us post, 5. The district court in Sabree concluded: comprehensive adopted administrative of The text support In view that Ninth Circuit found that was this “hardly clarity.” of v. a model Sanchez §of private- intends enforcement un- Johnson, n.5 amici National Health Law der operative first sentence ad al., Program, direct our attention to 42 et disapproves apparently one dresses 1320a-2, section, enacted That portion of Suter: the Court suggested had 1994,provides: Adoption that when a As brought provi- In an to a action enforce Act required and Child a sistance Welfare Act], of Security sion such [the Social specified plan mandatory state provision is not to be deemed plan, required unenforce- a only elements that plan by have a approved State the Secre because of its a section able inclusion-in features, tary which contained those requiring plan, a State or [the Act] Suter, .actually that the effect. plan specifying required contents 1360; see Brief of U.S. at plan. This is not State section intended Program, Health et National Law al. grounds or expand limit deter- at 15.6 rely Amici Curiae We do not mining private availability actions Suter, aspect of we assume that requirements plan enforce State plan must have that is in State effect. than- by overturning any grounds such §of The second sentence 1320a-2 declares applied in v. [503 Suter Artist M. statute, by is “intended” what but does 347], 112 1360 [118 L.Ed.2d 1] not operative provision include (1992), applied prior Supreme specific to the direction of the first adds respecting decisions such enforce- Garner, supra, sentence. Scalia & however, ability; provided, sec- that this (explaining expansive 219-20 pur “an tion is not holding intended alter the ... pose specific disposi cannot add to the in Suter v. Artist section M. .text,” operative tions of the whether the 671(a)(15) of is not [the Act] expression purpose in a contained in a body text); of action. or in preface cf. speaks Because Title XIX more in terms of of this assure that intent eligible what a State must make itself injured do to who been individuals have funding versus the treatment comply State’s failure to with the Federal recipients, need because State plan mandates of the titles of only “comply substantially” statutory with Security Social Act are to seek able redress provisions funding, Secre- receive in the federal courts to the extent were tary’s "aggregate function tois assess the prior to the able decision in Suter State,” function rather "wheth- than M., making also clear while; Artist that there any particular er person the needs of reject is no intent to overturn the deter- been satisfied.” in Suter mination the reasonable ef- Houston, Sabree ex rel. Sabree v. provide to Title clause IV-E does forts (E.D. 2003) (citation F.Supp.2d Pa. private right for a basis action. omitted); see also Grammer J. Kane John 103-761, Rep. H.R. No. Hazel, (3d Reg'l Ctrs.-Glen H.R, No, (Conf. Rep, Rep.); see also 2009) J., (Stafford, dissenting). (1992) (stating predecessor that a bill Report 6. The Conference 1320a-2 language virtually "only with identical alters quotes portion stating that 42 Suter portion suggesting Suter v. Artist M. 671(a) "only goes so as to far ensure comply failure a state approved States have plan provision litigable is not as a violation of Secretary which contains the 16 fea- listed rights”). statutory explaining tures” before the "intent” statute:

1045 —Ass’n, Supply right. Power an enforceable This court in FERC Elec. Mid n.6, —, § west Foster Care interpreted 1320a-2 to (2016) (“The provi operative provision mean that a of L.Ed.2d 661 the Act “cannot counts.”). event, individually, In sion is what deemed unenforceable sole Suter, including of ly larger regime in because its in points discussed situs requirement unambiguous ‘requiring plan specifying notice to a State or of receipt required plan.’” conditions on the of contents of a about States state significance § an funds and F.3d at federal 1320a- 2). mechanism, This were does that we alternative should mean enforcement ignore and the elements of the text relevant considerations before Suter discussed § beyond scope are 1320a-2. See structure of the above—the statute and 556, 569 Barry, regulator LaShawn A. v. focus a federal two who is (D.C. 1995), vacated, steps patients, Cir. 74 F.3d removed individual grounds, availability rev’d en banc on other to en alternative means (D.C. compliance requirements The statute force with the provides 23(A), § Congress aggregate not intend to of the alter focus Suter, .holding light statute of its connection provision leaves between enough funding compliance rationale and substantial undisturbed Suter’ s justify holding. the condition. is includ Where requiring in a of the Act ed section § adopted seven

Because. 1320a-2 was specifying the required contents Gonzaga the law in before clarified years plan, Congress a state still must create area, moreover, this the statute does rights dear terms that unam new show question the same court address biguous intent are before speaks today. 1320a-2 must decide Section Conflicting under textual cues are “provision” “deemed unen when insufficient. forceable”; a stat we must decide whether unambiguously an individual ute “confers plurality opinion in Part IV § 1983. right” that can be enforced under Armstrong Four this conclusion. fortifies 284, 122 Gonzaga, 536 U.S. S.Ct. 2268. Justices considered whether Medicaid not freeze know 1320a-2 did We of action viders had cause in 1992: the law as was before Suter § 30(A) Medicaid Act enforce itself

Armstrong the 1990 Wil confirmed step the Act. The first iii that analysis was repudiated by post- der has been decision intended to determine whether Sanchez, 416 precedent. also rights upon to confer a class individual (concluding n.5 that a court F.3d at 1057 in inquiry same beneficiaries—the Blessing Gonzaga, which apply must rights en forms whether a confers statute 1320a-2, the enactment of followed forceable determining whether a Armstrong 285, 122 S.Ct. 2268. right); Medicaid Act confers plurality lacked concluded that James, Harris because it language,” was “rights-creating 1997) (rejecting proposition to the “phrased directive rights’ courts must “determine ‘federal approving agency charged with state Med question only according pre-Suter to the plans, icaid not as a conferral precedents”). upon sue beneficiaries State’s decision Medicaid.”

Section show 1320a-2 participate 1396a(b)). (citing Act creates the Medicaid accept merits, To amici’s suggestion here that injunction success is not precludes analysis 1320a-2 would justified. The district court orders require us to Armstrong conclude that the enjoining the Arkansas of Hu- Department plurality overlooked 1320a-2 or misun man suspending Services from Medicaid likely.7 derstood it. Neither is payments are therefore vacated. judicially The lack of a enforceable fed- SHEPHERD, Judge, Circuit right for patients eral Medicaid concurring. mean that state officials have unfettered authority to providers. terminate Patients I today, opinion concur the court’s can receive willing services from a only I separately present write an alternative provider. providers Medicaid con- whose view, ground for my reversal. In if even tracts are terminated but who wish to 23(A) provides right a substantive that providing continue services have an obvi- the plaintiffs through can enforce pursue ap- ous incentive to administrative suit, right provided the range is to a peals judicial if review state court qualified providers—not right par- the to a the alternative of recruiting pa- avenue ticular the State has decertified. tients to sue court avail- federal is not reason, For plaintiffs’ this alternative the patients urge able. Providers and also may § 1983 claim fails. Secretary to the withhold funds 23(A) Assuming grants plain- from a that fails comply substan- action, tiffs a private right of we must 23(A). tially with the condition of The precise examine the right. contours of that remedy absence of a patients under Gonzaga Doe, 273, Cf. Univ. v. § 1983 therefore does not make the free- 280, 153 L.Ed.2d 309 choice-of-provider provision empty an (requiring that benefits conferred be suffi- promise. only conclude We ciently specific qualify definite to as not unambiguously confer particu- rights). plaintiffs frame right lar patients asserted in this right an right absolute to use the case. qualified provider of choosing their own 23(A) Given our conclusion that governmental without interference. Be- give Act does not Medicaid the Jane Does cause Arkansas decertified Planned Par- or the class of Medicaid beneficiaries enthood—plaintiffs’ preferred healthcare right enforceable federal supports provider—as qualified provider, § 1983, cause of action plaintiffs allege they right have a do not likelihood of on the success 23(A) challenge that decertification. merits of their claims. not ad- We need But Supreme Court’s decision in dress the Director’s alternative contention Nursing Center, O’Bannon v. Town Court the Jane Does failed to show irreparable harm would result from the 65 L.Ed.2d (1980), injunction of an tells quali- right denial us the because other created providers provide could is far fied services more narrow: the seek. among range Without likelihood choose of qualified provid General, Disabilities, 7. The respondents, People Ass’n of Solicitor et al. as 15-16; brought § several other amici 1320a-2 Amici at Brief Curiae for American Ass’n, 27-32; Armstrong. Court's attention in Brief for Re- Medical et al. as Amici Curiae at spondents Armstrong, Brief for Community S.Ct. 1378 American Network of (No. 1415); Resources, Options Brief States as United et al. as Amici Curiae at 29-30; Amicus Curiae Brief for American 19-24. particular provider State has decerti recipients ers. O’Bannon involved Second, § give does not initially Medic nursing in a home fied. residing challenge “to recipients aid provider. qualified as Medicaid provid assertion that a nursing merits a State’s S.Ct. 2467. After longer quali is no of Medicaid services removed er home was decertified and services or to providers, provide fied qualified residents the list suit, challenge the State’s termination of a brought alleging constitutional agreements on the on the merits of vider’s Medicaid basis evidentiary hearing noncompliance provider’s with state Supreme decision. decertification regulatory requirements.” and federal rejected argument. Analyzing Coast, of Inc. v. by Planned Parenthood Gulf right” provided the “substantive Gee, (5th Cir.2017) 23(A), “the Medicaid the Court held that J., (Owen, dissenting). The right to O’Bánnon ... not confer a provisions do explained that “decertification Court does home of one’s residence the continued finan 785-86, patient’s not reduce or terminate a 2467. Sec choice.” Id. at assistance, merely requires him to 23(A), “gives cial but explained, re tion Court facility.” at a range use it for care different among to a cipients right choose 785-86, 100 S.Ct. 2467. “Because providers, government U.S. qualified without no 785, 100 right had substantive to patients S.Ct. 2467. So interference.” Id. provider from a that had demand care long qualified, as the remains provider decertified, they process had no therefore, due remain free been recipients Medicaid 23(A) hearing regarding to rights participate does stay “clearly But to there. decertification right recipient ... confer a on a certification not Gee, (Owen, J., F.3d at for care in vider.” benefits continue receive dissenting). In home that has been decertified.” sum, carefully the Court delineated the outcome this controls O’Bannon 23(A); right by conferred

limits asserting right— are plaintiffs case. The right of continued there is no enforceable right particular provider to a the absolute by from a determined care 23(A) choosing—that their unqualified. to be state rights granted to these grant them. The statute, explained as takeaways plaintiffs important

I two from see O’Bannon, First, intact right by remain because the contours O’Bannon. 23(A) still have access by § circumscribed. record confirms granted are Further, qualified providers. range to a recipients have the enforceable right no under federal providers. plaintiffs have right range qualified to a So attack the merits collaterally cer law to agencies patients cannot steer decertify Planned of Arkansas’s decision qualified providers expense tain Parenthood had the agen Planned qualified can an Parenthood. providers. Nor decision, in- challenge that right in Medic cy artificially monopoly create so. do right no to a elected aid care.8 But there exists stead interfere, reasons, so complaint Were the State to For text above. these the dissent’s challenge my right granted by right plaintiffs about construction of the would have the 23(A)— it would be “self-eviscerat- right granted So the the State’s actions. 23(A) ing”—is protects Section unfounded. 23(A) meaningful. simply It is real and government recipients inter- from meaning wishes it the dissent doesn’t have the qualified provider, ference in their choice of to have. examples I described of which have argue The plaintiffs appeal as one sources two identi “only O’Bannon concerned fied procedural plaintiffs providing sub claim,” process right). stantive Supreme due we thus therefore controlling provides not consider should it because examined whether Med this case assert a violation icaid recipients the to receive health r sure, right. To particula provider a substantive some care services agreed our circuit courts fellow with State has The Court con decertified. Gee, 862 at 459-60 this view. See cluded that no such exists. Id. at (distinguishing O’Bannon because On basis—the procedural rights process lack of a particular, involved due to a substantive rights); Parent provider—the substantive decertified Court denied the Id, Ind., Comm’r of plaintiffs’ procedural process hood Inc. v. Ind. State due claim. Dep’t Health, reasoning The O’Bannon Court’s and deci 2012) (same). apply equal sion force to the plain present claim, tiffs’ and for this alternative ’view, however, patently This flawed I reason reverse the district court. would it ignores very language because clearly O’Bannon. The Supreme Court dissent contends that I misunder it of defining plaintiffs’ stated was the contours argument. stand the then ex that It right ... the plains “substantive conferred that the plaintiffs claiming are not O’Bannon, regulations,” and 447 that to statutes entitles choose a them We, 100 courts provider rightfully U.S. at S.Ct. 2467. from disqualified as no appeals, authority pool providers, dismiss to Medicaid but rather binding precedent highest argue from the court that Arkansas’s decertification land, especially precedent in the qualified provid when that Planned Parenthood as a Hennepin Cnty. point. on government is v. Fed. er See constitutes Interference Mortg. Ass’n, (8th O’Bannon, Nat’l 823 with their of choice. freedom 2014) (“Lower therefore, courts must Su supposedly inapposite. follow is See Gee, (“[T]he precedent directly ap preme Court which [O’Bannon] F.3d at 461 ”). to a plies case before them.... no right had to an un reside qualified facility disqualification when the The plaintiffs’ argument a also exhibits - decision was connected to the state’s en misunderstanding fundamental of due regula and safety forcement its health rights. Any right to process, cess due tions.”). procedural a or whether asserted as sub claim, only stantive exists there attempt distinguish when dissent’s underlying right at issue. See O’Bannon fails because that substantive assumes Gee, (Owen, J., dissenting) wrong F.3d at 475 Planned Parenthood somehow was (“[T]here right is no process disqualified due fully provider. unless as a Medicaid right may there is a proof substantive be The claims to find dissent this adequate process wrongful if vindicated accord termination the fact ed.”). plaintiffs’ procedural O’Bannon remains licensed process required showing patients. due claim a other according serve So to “life, deprived dissent, recipient State had liber them has the ty, or property.” challenge provider’s See U.S. Const. amend. merits They XIV. identified the source permits when the decertification State O’Bannon, rights. process providing, their due provider continue care to oth 784-85, 100 (discuss patients. interpretation plain 447 U.S. S.Ct. 2467 er this But ly wrong. statutory “Under federal under U.S.C. 1983. Under test, (1) may regulatory provisions, termi we consider State whether “Con gress ... intended that provider’s agreement nate (2) question plaintiff’; benefit the whether many grounds, prerequisite it is not a- right “is vague not so amorphous for pre such terminations the State that its would judicial strain provider providing clude a from services to enforcement competence”; provi Gee, whether any patients.” all and. “impose[s] sion binding obligation on the J., (Owen, dissenting); see also Blessing, at 340-41, States.” (“In § 1396a(p)(1) any addition other (citation quotation and internal authority, may any a State exclude individ omitted). Gonzaga Later, marks Univer entity ual or purposes participating for sity Doe, under the under subchapter State (2002), 153 L.Ed.2d Secretary reason which prong analysis, amended first could or entity exclude the indiyidual holding nothing unambig “short of an in program subchap participation under uously support [will] conferred chapter ter of this section XVII cause action brought 1983.” 1320a-7, 1320a-7a, 1395cc(b)(2) of this Blessing title.”). This applied has holding O’Bannon’s court test And statutory of times number to other provi rest on whether allowed Spectra Grp., sions. See Commc’ns LLC nursing servicing home continue City Cameron, 806 F.3d 1113 patients. The Court based its decision 2015) (finding no action nursing State’s termination § 253); under 47 Midwest Foster agreement. home’s Medicare Adoption Kincade, Care Ass’n v. O’Bannon, 447 U.S. at (8th 2013) F.3d pri 1190 Cir. no (finding So O’Bannon remains over this controlling right 42 vate of action under U.S.C. case. Special 672(a)(1)); Ctr. for Needs Trust Admin., Olson, (8th Inc. v. F.3d 688 676 MELLOY, Judge, dissenting. Circuit 2012) right Cir. a private of action (finding Because I would the four cir join § 1396p(d)(4)(C)); under 42 U.S.C. Lank cuit courts and numerous district courts Sherman, (8th 496 ford v. 451 F.3d Cir. private that all a right have found of en 2006) right of action (finding no priyate forcement 42 U.S.C. 1396a(a)(17)); under 42 v. U.S.C. Walters I 1396a(a)(23)(A), respectfully dissent. Weiss, (8th (find 2004) 392 F.3d 306 Cir. Coast, See of Gulf Planned no ing private right action under 42 Gee, (5th 2017); Inc. v. 862 F.3d 445 Cir. 657(a)); Child Care U.S.C. Mo. Ass’n v. Betlach, Ariz. Planned Parenthood Inc. v. Cross, (find (8th 2002) 294 Cir. 1034 F.3d (9th 2013); 960 727 F.3d Cir. Par private right of 42 action under Ind., enthood Inc. v. Comm’r Ind. Specialty Care, 672); U.S.C. Pediatric Dep’t Health, (7th 962 Dep’t Servs., Inc. v. Ark. of Human 293 Olszewski, 2012); Cir. v. 442 Harris F.3d (8th 2002) (finding F.3d 472 private 2006). 456 action 42 U.S.C. Blessing Freestone, 329, In 1396a(a)(10)(A), (a)(43), 1396d(a, 520 U.S. §§ and 1353, (1997), r)). 569 Although majority 137 L.Ed.2d on the focuses Gonzaga Supreme majori forth I analysis, Court set three-factor do not read the .a Blessing statutory pro ty opinion suggest test has determine whether private right vision creates a overruled. action been 1050 Blessing/Gonzaga stated, the Ninth Circuit

Applying the services.” Id: As frame case, present I would not require work hold “the two do courts to criteria 1396a(a)(23)(A), 42 the “freedom- balancing engage competing con provision,” of-choice does create subjective policy judgments, or cerns provision unambigu This right of action. yes-or-no only questions: factual answer right to ously confers an individual Medic individual denied the choice Was aid-eligible patients. states Section (1) (2) qualified willing provider? The and “any eligible for medical questions ‘likely to answer to these be ” from can assistance” obtain assistance Betlach, readily apparent.’ at F.3d 727 42 provider of their choice. Harris, 442 (quoting 967 at F.3d added). 1396a(a)(23)(A)(emphasis Thus, explained: Ninth Circuit further “phrased terms readily A court can determine whether a benefitted,” at persons 536 U.S. particular quali- health care 284, Cannon v. S.Ct. perform particular fied to medical ser- Chi., n.13, 692 & Univ. vice, drawing on such as evidence de- (1979)), 60 L.Ed.2d scriptions required; service “individually terminology,” id. uses focused licensing requirements; provider’s at O’Bannon licenses, credentials, experience; Nursing Ctr., Town expert testimony regarding ap- L.Ed.2d propriate providing credentials (The “gives freedom-of-choice re This subjective service. standard is not cipients among range choose amorphous, requires or no balanc- qualified providers, government without ing. It is no different from sorts of By implication, it interference. also confers qualification expertise assessments govern to be absolute free routinely that courts make various ment interference with [that] choice[.]” contexts. omitted)); (emphasis added and see also (footnote omitted). at And as the Gee, Betlach, 459; at F.3d F.3d noted, may Sixth Circuit “while there Ind., 966-67; Planned Parenthood legitimate debates about the care medical Harris, 974; 461-62. by or exempted covered from the freedom- Further, provision the freedom-of-choice provision, of-choice the itself mandate does vague “is not so amorphous and that its of vagueness contain the that kind judicial compe enforcement would strain push judicial the would limits enforce- Blessing, 340-41, tence.” 520 at 117 U.S. Harris, ment.” 442 F.3d at 462. (citation quotation 1353 and internal S.Ct. Moreover, the provi freedom-of-choice omitted). provision marks states a provision, is mandatory sion a the Under Medicaid-eligible “may individual obtain ,.. provision, provide” states “must free institution, from any agen assistance providers to Medicaid-eligible choice in cy, community person, quali or pharmacy, result, As a dividuals. perform to freedom-of- fied the service or services ..., provision unambiguously choice to required provide to refers who undertakes Medicaid-eligible individuals confers him such services.” 42 U.S.C. 1396a(a)(23)(A). § an Thus, right cri entitlement: the to re there are individual two (1) providers provider teria must services from any qualified meet: ceive medical “qualified provider must be perform the service their choice. See Planned Pae Ind., Thus, or required”; I services nthood F.3d at 974. 1396a(a)(23)(A) § ... provide must such hold that “undertake[ ] would unam a biguously presumption pri creates a cause it is prece inconsistent with circuit dent, § right vate enforceable under which has a private right See found at provisions 536 U.S. S.Ct. 2268 action other under the Medic Olson, (“Once plaintiff demonstrates a aid Act. stat See 676 F.3d at 699-700 right, right (finding private ute confers individual is action to enforce 1983.”). presumptively enforceable pooled provision the Medicaid Act’s trusts 1396p(d)(4)(C)); under Pedia may presumption “The State rebut this Specialty Care, tric at 478-79 by showing Congress ‘specifically ” (finding private right of action to chal remedy under § foreclosed 1983.’ Id. at lenge proposed budget cutbacks n.4, 122 S.Ct. 2268 Smith v. violate the to early period would Robinson, 1004-05 n.9, 104 screening, diagnosis, ic and treatment ser (1984)). 3457, 82 L.Ed.2d S.Ct. “Con 1396a(a)(10)(A), §§ vices under may expressly, by gress forbidding do so (a)(43), 1396d(a, r)). itself, recourse to .1983 statute ante, Second, impliedly, by creating comprehensive majority, en at incompatible scheme is states “[b]eeause sections forcement enforcement provide under Act . individual enforce the mechanisms Blessing, obligation 1983.” 520 U.S. at 117 State’s to reim major majori qualified thrust of the providers 1353. The burse who are chosen ty’s opinion appears finding by patients, rest it is reasonable to regulatory that the Act’s scheme conclude that intend any presumption private rebuts enforce create However,

ability. reasons, disagree For I patients several 1983.” “[t]he regulatory compre availability is so scheme of administrative mechanisms ' expression protect plaintiffs hensive as to be a clear alone interests” Congress’s to preclude private ability intent en to in cannot.defeat long require forcement. voke 1983 so as the other three-part ments of the test are met. ante, First, 1040-42, majority, at Blessing, U.S. that the finds freedom-of-choice (alteration original) (quoting Golden not unambiguously confer an individ Corp., Transit right. finding, majority ual In con so siders the Medicaid Act as whole find ante, Third, part majority, that the freedom-of-choice Secretary a directive to Health finds enforcement foreclosed be “part focus of a and Human Services. Such broad cause substantial Blessing, Thus, according to inappropriate. compliance regime.” U.S. at (“We majority, aggregate S.Ct. not ask we can'“infer an focus [do] 23(A). § for” I the legislation gener disagree whether "federal ... that substan rather, ally [gives] rights; regime supports finding rise to fo tial compliance we analysis specific pri our on a statutory intended foreclose cus[] Blessing, ”); provision.... In the Court Golden State Transit vate enforcement. Corp. City L.A., concluded that the enforcement scheme 493 U.S. (ask Security S.Ct. 107 L.Ed.2d under Title IV-D Social sufficiently comprehensive to “provision question” Act not whether was designed liability. § plaintiff). was to benefit the And foreclose 520 U.S. analysis concluding, such a broad cannot stand In Court be 117 S.Ct. 1353. so remedy— that such care and are “private lack of extent services noted the administrative—through general population or to the in the judicial either available persons aggrieved can seek re geographic which area. -... Further, dress.” Id. found 1396a(a)(30)(A). § Supreme U.S.C. Secretary Health and Human Ser Court held powers

vices’ to audit sub [for “limited Secretary’s for the en- [t]he compliance] stantial and cut fund by withholding might forcement funds enough to ing” private were not foreclose not, itself, preclude availability case, Similarly, in enforcement. it equitable relief. But does so when Secretary’s power funding to cut if State judicially unadmin- combined with compliance substantial with not 30(A)’s § istrable nature of text. It is § enough private to foreclose 1396a not imagine requirement difficult in Ar And enforcement. while 30(A)’s § specific less than broader and may appeal file kansas administrative plans provide for judicial mandate and then seek Arkansas’s review payments that are con “consistent with effi- provider’s decision to terminate the law, care,” ciency, economy, quality tract there is no rem all under Arkansas Medicaid-eligible “safeguarding] against edy individ the while unnec- available by the termination uals decision. essary harmed utilization of ... care and ser- vices.” Fourth, on Ars majority relies trong Exceptional Inc., Child Center Armstrong, (second at 1385 al- — U.S. —, 191 L.Ed.2d (citation original) omission in teration and (2015), reaching I decision. do omitted) Armstrong or even read overrule 1396a(a)(3.0)(A)). 23(A) contrast, § In cir reasoning of the other undermine criteria, only has neither of two which are 23(A) that have cuits addressed whether general too too courts to broad private right creates action under Thus, provision for consider. “[t]he Armstrong Suprema involved Secretary’s by withholding enforcement cy for equitable Clause and claim relief private preclude enforce- funds” does 1396a(a)(30)(A).There, ment under undisputed it was not an 1983 was Finally, majority -to extent the dis available remedy, have counts four other circuits

any rights-creating nor language does it private found action under the refer individual Medicaid beneficiaries. upon freedom-of-choice based Specifically, requires state Medic law, ante, 1042-43, I alleged evolution of plans aid to: disagree.. The majority asserts that provide procedures methods and such Gonzaga Supreme opinions in Court’s of, relating to the utilization Armstrong Virginia overruled Wilder v. for, payment and services available care Hospital Association, may necessary under the ... as (1990). 110 L.Ed.2d 455 In safeguard against unnecessary utiliza- Wilder, the Court held the Boren of such and to tion care and services to the Act Amendment created assure that are consistent payments economy, action because efficiency, quality “was putative plaintiff.” to enough care are sufficient to enlist intended] and benefit (alteration 509, 110 Id. at 2510 providers that care and services are so (citation omitted). original) to I under the at least do not dis available

1053 Ind., Gonzaga Harris, 974; pute the fact that 699 at amended F.3d 442 F.3d Blessing Gonzaga, prong test. See at 461. I therefore read those circuits’ (“We at 122 2268 now opinions persuasive as authority can reject permit the notion that our cases not by alleged be discounted an evolution unambiguously con anything short of Supreme precedent. support

ferred to a cause action I also disagree with the concurrence’s 1983.”). I not brought under But read do argument reversing alternative the dis opinions rely to other circuits’ Wil court; trict O’Bannon held: to such a manner as make those der When enforcement of stan [minimum cáses bad law. dards requires care] decertification The, Fifth, Sixth, Seventh, Ninth facility, immediate, may there Blessing/Gonzaga applied all Circuits the' impact on adverse some residents. But to hold framework freedom-of- surely that impact, which an indirect provision private choice creates a and incidental result of the Govern Gee, F.3d at enforceable under 1983. 862 action, ment’s enforcement Betlach, 966-67; 457-61; F.3d at deprivation amount to a interest Ind., F.3d Planned Parenthood of at life, liberty, property. or Harris, 972-74; at 461-63. Nota F.3d bly, opinions all of were issued after these U.S. at S.Ct. 2467. theAs was, claims, majority over Wilder as Fifth recently explained, Circuit “the Gonzaga. Further, by only two of ruled [O’Bannon] no to reside had rely on Planned opinions these Wilder. in an unqualified facility the disqual when Ind., at 974- Parenthood F.3d decision was connected ification Harris, 76; at And 463. state’s safety health enforcement Wilder, opinions rely where those do Gee, regulations.” 862 F.3d at 461. The propositions so for that are unchal do language of the freedom-of-choice provi lenged by subsequent caselaw. See supports understanding sion because Ind., F.3d at Planned Parenthood “qualified” by word is modified (“Medicaid cooperative ‘is federal- phrase “to perform the service services or program through which the Federal 1396(a)(23)(A). required.” 42 U.S.C. provides assistance Government financial “The thus the relevant indexes so that furnish ” they may States medical ‘qualifications’ any Medicaid-specific needy care to Wil individuals.’ (whether imposed by criteria the federal der, 2510)); 502, 110 at id. at government states), to factors (relying on that the 974-75 Wilder find program; external to the Medicaid regulatory was not Medicaid Act’s scheme competency professional vider’s stand Con sufficiently comprehensive show generally.” Bet as medical gressional preclude intent 1983 en lach, 727 F.3d forcement, reasoning underlying Gee, Here, Blessing); like Arkansas did de- Har supported is also which ris, certify as (same).. Planned a medical impor Most Parenthood Rather, provider. above, only the state tantly, terminated as noted all four circuits concluded, Planned Parenthood’s Medicaid Provider required li Agreement; is still unambigu Planned Parenthood the freedom-of-choice Gee, patients. ously right of un censed serve other confers a action 458-59; Gee, (discussing Bet State’s der F.3d at lach, 966; explaining actions that “[t]he 727 F.3d at Individu Betlach, 971-72; trying in this Planned Par

al Plaintiffs case are to sus at 727 F.3d Ind., enthood of F.3d at 979. ‘right among range to choose tain their government qualified providers, without discussion, I foregoing Based on the right explicitly recognized interference’—a pro- would hold that the freedom-of-choice O’Bannon, O’Bannon.” vision does create an individual en- (emphasis origi That forceable under allows nal))). in this do case challenge individuals a state’s actions claim that the freedom-of-choice provider’s Agreement when Medicaid provider rightful to choose entitles them terminated for reasons unrelated ly pool from the disqualified Medicaid provider’s qualifications. Additionally, I Ind., providers. See Planned Parenthood agree analysis court’s with the district (discussing at 978-80 the State’s F.3d Dataphase governing factors issu- authority disqualify providers). limited result, injunction.9 of an As I ance would Instead, argue they termi Arkansas’s affirm the court en- orders district Agree nation of the Medicaid Provider joining the of Hu- Department Arkansas government ment constitutes interference suspending man Services with their freedom choice. If the payments.

given the construction the concurrence “the

suggests, free-choice-of-provider re

quirement self-eviscerating.” would

Betlach, 970; Par see Planned Ind., (“If

enthood any qualifications to set

states are free matter want—no how unrelated provider’s fitness to treat Medicaid TRUST, OLGA DESPOTIS patients—then the free-choice-of-provider Plaintiff-Appellant, requirement easily could be undermined labeling any exclusionary simply rule as ”). ‘qualification.’ And it is while true that The CINCINNATI INSURANCE may terminate a Medicaid COMPANY, Defendant- grounds, on con many Appellee. cites, 1396a(p)(1),

currence 16-2093 No. provisions other cross-references Appeals, United States Court of limiting authority Act the state’s Eighth Circuit. qualification to make decisions to “various fraud, drug forms malfeasance such as Submitted: March crimes, necessary and failure to disclose August Filed: regulators.” Par information Ind., 699 enthood of F.3d at 979.

provisions grant plenary power do states make these determinations. Dataphase Sys., Sys., Inc., Inc. v. C L state of balance between harm and 1981) (en banc) injury granting injunction will inflict (3) ("[W]hether litigant; preliminary parties probability injunction should merits; (1) involves issue consideration of the threat that movant will succeed movant; (4) interest.”). irreparable public harm to the

Case Details

Case Name: Planned Parenthood of AR, etc. v. Cindy Gillespie

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Aug 16, 2017

Citation: 867 F.3d 1034

Docket Number: 15-3271, 16-4068

Court Abbreviation: 8th Cir.