PLANNED PARENTHOOD GULF COAST, INCORPORATED; PLANNED PARENTHOOD CENTER FOR CHOICE; JANE DOE #1; JANE DOE #2; JANE DOE #3 v. COURTNEY N. PHILLIPS, in her official capacity as Secretary of the Louisiana Department of Health
No. 18-30699
United States Court of Appeals for the Fifth Circuit
July 15, 2021
Appeal from the United States District Court for the Middle District of Louisiana. USDC No. 3:18-CV-176.
Before HIGGINBOTHAM, ELROD, and HO, Circuit Judges.
Two Planned Parenthood entities and three Jane Does brought this lawsuit under
I.
Plaintiff Planned Parenthood Gulf Coast provides non-abortion healthcare services at its clinics in Texas and Louisiana. Gulf Coast also participates in Texas’s and Louisiana’s Medicaid programs. The three Jane Doe plaintiffs are Gulf Coast patients.
Plaintiff Planned Parenthood Center for Choice, a Texas Corporation, has a facilities and services agreement with Gulf Coast to provide abortion services at Gulf Coast clinics and provides abortions services at Gulf Coast’s clinics in Texas. Currently, however, Planned Parenthood is not licensed to provide abortions anywhere in Louisiana. In September 2016, Planned Parenthood applied for a license to operate an abortion clinic at a Gulf Coast clinic in New Orleans, Louisiana. About six weeks
Meanwhile, in December 2016, a Select Investigative Panel of the United States House of Representatives began investigating Planned Parenthood’s handling of fetal remains. The investigation was spurred in part by videos recorded at Gulf Coast’s headquarters in Texas that “depict[ed] two individuals posing as representatives from a fetal tissue procurement company discussing the possibility of a research partnership with PP Gulf Coast.” Planned Parenthood of Greater Tex. Fam. Plan. & Preventative Health Servs., Inc. v. Kauffman, 981 F.3d 347, 351 (5th Cir. 2020) (en banc).3 Among other findings, the Select Committee’s Final Report related evidence that Gulf Coast had illegally received or sought financial compensation in exchange for transferring fetal body parts to academic institutions in Texas.4 In December 2016, the Select Committee referred several of those violations to the Texas Attorney General for investigation and released a 450-page report documenting its findings.
The Department decided to withhold action on Planned Parenthood’s application to let the Texas investigation run its course. In June 2017, the Department sent Planned Parenthood a letter communicating its decision to defer resolution of the application. The letter explained that, under Louisiana law, “the Department may deny a license if an investigation or survey determines that the applicant is in violation of any federal or state law or regulation.”5
Referencing the Select Committee’s “criminal and regulatory referral to the Texas Attorney General related to the operations of Planned Parenthood Gulf Coast,” the letter explained that the Department needed to “conduct[] an investigation to determine if Planned Parenthood Center for Choice, either in its own name or through the actions of Planned Parenthood Gulf Coast, is in violation of any federal or state law or regulation.” The letter concluded by saying that the Department “is neither approving nor denying [Planned Parenthood’s] application,” but that “[a]fter the conclusion of this investigation, [the Department] will be in a position to make a determination on [Planned Parenthood’s] license application.”
Then, in January 2018, Louisiana received a confidential complaint regarding activity by Gulf Coast in Louisiana. The Louisiana Attorney General is currently investigating that complaint for potential action by the state. Because Planned Parenthood
In February 2018, the plaintiffs sued the Department, asserting two sets of claims.6 The first set—the licensing claims—challenge the
Department’s handling of their application for a license to provide abortion services in Louisiana. The plaintiffs allege that the Department’s letter and decision to await more information constituted a “constructive denial” of Planned Parenthood’s application and that the Department’s licensing process is a “sham” intended to prevent Planned Parenthood from performing abortions. The plaintiffs assert that this alleged denial violates their rights to substantive due process, procedural due process, and equal protection. They do not challenge the underlying statutes or regulations that govern abortion-clinic licensing; they challenge only the Department’s handling of this particular application.
On their licensing claims, the plaintiffs seek a declaratory judgment that the “denial” of their license violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment and “is therefore void and of no effect.” They also seek three injunctions on their licensing claims: (1) an injunction preventing the Department from “withholding approval” of its application; (2) an injunction ordering the Department to “promptly rule” on the application “in accordance with all applicable constitutional requirements”; and (3) an injunction ordering the Department to grant the application and issue an abortion-clinic license to Planned Parenthood.
The plaintiffs’ second set of claims—their funding claims—challenges Louisiana’s House Bill 606 (“HB 606”), which prohibits giving taxpayer funds, including Medicaid funds, to abortion providers and their affiliates.7 The plaintiffs assert that, in the event that Planned Parenthood is eventually granted a license, HB 606 would require Louisiana to cease providing Gulf Coast with Medicaid funding. The plaintiffs claim that HB 606 violates their due process, equal protection, and First Amendment rights, as well as a provision of the federal Medicaid Act.8 They seek both declaratory and injunctive relief on the funding claims.
The Department moved to dismiss the complaint for lack of subject-matter jurisdiction under
Likewise, the Department argued that granting the plaintiffs’ requested relief on their licensing claims would violate Pennhurst because they “demand a change in the Department’s interpretation of State law.” It also urged that the licensing claims involve the kinds of state-law entanglements that require the district court to abstain and dismiss under Burford. Burford v. Sun Oil Co., 319 U.S. 315, 318, 332 (1943) (holding that a federal court may abstain from exercising its equity jurisdiction where doing so would “be prejudicial to the public interest” or would “so clearly involve[] basic problems of [State] policy” (quoting United States ex rel. Greathouse v. Dern, 289 U.S. 352, 360 (1933))). Finally, the Department urged dismissal because the plaintiffs’ funding claims are contingent on the barred licensing claims, are not ripe, and are therefore not justiciable.
The plaintiffs responded, arguing that the claims are ripe because the Department’s actions up to this point have been “pretextual” and that the Department “will continue to stall until this Court orders it to act.” They also countered that Burford did not require the district court to abstain because it is “unclear” whether state-court relief is available, and that Pennhurst does not foreclose jurisdiction because their licensing claims are about federal rights.
The district court denied the Department’s motion to dismiss without prejudice to the renewal of the Department’s jurisdictional arguments once the case returns to the district court after this interlocutory appeal. The Department appealed. Thereafter, the plaintiffs filed a motion to dismiss this appeal for lack of jurisdiction, which was carried with the case.
II.
First, we must decide whether we have jurisdiction over this interlocutory appeal. Normally, our jurisdiction reaches only appeals from “final decisions.”
immediately appealable order.” Thomas ex rel. D.M.T. v. Sch. Bd. St. Martin Par., 756 F.3d 380, 383 (5th Cir. 2014).
Nevertheless, beginning with Cohen v. Beneficial Industrial Loan Corp., the Supreme Court has recognized narrow exceptions to this rule under what is now termed the collateral-order doctrine. 337 U.S. 541, 545–47 (1949). The collateral-order doctrine permits appellate courts to hear appeals of interlocutory orders that “[1] conclusively determine the disputed question, [2] resolve an important issue completely separate from the merits of the action, and [3] [are] effectively unreviewable on appeal from a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978); accord Microsoft Corp. v. Baker, 137 S. Ct. 1702, 1708 n.3 (2017).
In Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy, Inc., the Supreme Court concluded that the collateral-order doctrine permits appeal of a district court’s order denying a state “immunity from suit.” 506 U.S. 139, 141, 145 (1993). Because “[d]enials of States’ and state entities’ claims to [sovereign] immunity purport to be conclusive determinations that they have no right not to be sued in federal court,” the Supreme Court held that the “elements of the Cohen collateral order doctrine” were satisfied and therefore expanded the doctrine to appeals of denials of sovereign immunity. Id. at 144–45.
The Department argues that we have appellate jurisdiction under Metcalf & Eddy because, it says, it has always asserted “immunity from suit.” Id. at 145. The Department says that it has consistently argued that sovereign immunity bars the plaintiffs’ “entire suit.” McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407, 411 (5th Cir. 2004) (exercising jurisdiction over appeal of a denial of a motion to dismiss “asserting [sovereign] immunity from the entire suit”). In its motion to dismiss, the Department stated that the district court lacked jurisdiction over the entire case. Specifically, it urged that the plaintiffs’ licensing claims were barred by sovereign immunity and Pennhurst,10 that all of the requested forms of relief on the licensing claims were barred by sovereign immunity and Pennhurst,11 that the funding claims were enveloped by and contingent on the licensing claims,12 and that the funding claims were unripe anyway. Thus, the Department argues that it asserted immunity from this suit and that we have jurisdiction.
The plaintiffs argue that we do not have jurisdiction because, they contend, the Department asserted sovereign immunity from only certain forms of relief, and not others. This argument is without merit. As the Department explained in its motion, “Pennhurst covers all the licensing claims, and all the relief Plaintiffs request on those claims, because all demand a change in the Department’s interpretation of State law.”
Alternatively, the plaintiffs argue that the Department asserted sovereign immunity only on the licensing claims and only a ripeness challenge on the funding claims. Because the Department did not assert sovereign immunity from the funding
But Metcalf & Eddy is not as limited as the plaintiffs say that it is. The jurisdictional inquiry is not overly technical; it is straightforward. Under Metcalf & Eddy, we ask: Did the state assert sovereign immunity from suit? See Metcalf & Eddy, 506 U.S. at 144 (“This withdrawal of jurisdiction effectively confers an immunity from suit.”); see also id. (“Once it is established that a State . . . [is] immune from suit . . . .”). As we characterized it in McCarthy, a proper invocation of sovereign immunity will be from the “entire suit.” McCarthy, 381 F.3d at 411.
Metcalf & Eddy’s straightforward, entire-suit standard fulfills the purpose of jurisdiction over interlocutory appeals in this context, which is to ensure that a state has not been deprived of this “fundamental constitutional protection” before a lawsuit proceeds to trial. Metcalf & Eddy, 506 U.S. at 143–45. “[T]he value to the States of their [sovereign] immunity . . . is for the most part lost as litigation proceeds past motion practice.” Id. at 145. The potential injury is being wrongly “haled into court” and the only way to truly protect that right is to ask simply whether the state asserted immunity from the lawsuit. Va. Off. for Prot. & Advoc. v. Stewart, 563 U.S. 247, 258 (2011).
Here, we hold that we have jurisdiction because the Department asserted sovereign immunity from this entire lawsuit. Simply put, the Department has always argued that a proper application of sovereign immunity would remove it from this litigation and require dismissal of all claims. We therefore have jurisdiction over this interlocutory appeal.13
In rejecting the plaintiffs’ argument that we should undertake a hyper-technical inquiry to exercise jurisdiction, we find ourselves in good company. The Supreme Court rejected a similar argument in Metcalf & Eddy. There, the respondent argued “that a distinction should be drawn between cases in which the determination of a State[’s] . . . claim to [sovereign] immunity is bound up with factual complexities whose resolution requires trial and cases in which it is not.” Metcalf & Eddy, 506 U.S. at 147. Just as the Supreme Court saw “little basis for drawing such a line” and rejected that argument, we reject the plaintiffs’ argument here. Id. We have jurisdiction.
III.
We next examine whether the district court erred in denying the Department’s motion to dismiss. As discussed above, the Department first and foremost argues that sovereign immunity mandates dismissal of this entire case.
The states’ sovereign immunity is derived from the principle of federalism woven throughout our constitutional framework. Federalism recognizes our dual
Under the Eleventh Amendment, federal courts cannot tell state officials “how to conform their conduct to state law”—for one can hardly imagine “a greater intrusion on state sovereignty.” Pennhurst, 465 U.S. at 106. Letting a federal court tell state officials how to act under state law would “conflict[] directly with the principles of federalism that underlie the Eleventh Amendment.” Id. Hence, the Eleventh Amendment generally deprives federal courts of jurisdiction to hear “suits by individuals against nonconsenting states” and suits “against state officials in their official capacities.” McCarthy, 381 F.3d at 412; id. at 418 (Garza, J., concurring in part and dissenting in part).
Importantly, however, sovereign immunity is not boundless and one of its limits is the Ex parte Young doctrine. 209 U.S. 123 (1908). The doctrine grants a federal court jurisdiction over a lawsuit against a “state official in his official capacity if the suit seeks prospective relief to redress an ongoing violation of federal law.” Williams ex rel. J.E. v. Reeves, 954 F.3d 729, 736 (5th Cir. 2020), stay denied, No. 20A126, 2021 WL 1306942 (Apr. 8, 2021). For Ex parte Young to apply, “three criteria must be satisfied: (1) A ‘plaintiff must name individual state officials as defendants in their official capacities’; (2) the plaintiff must ‘allege[] an ongoing violation of federal law’; and (3) the relief sought must be ‘properly characterized as prospective.’” Green Valley Special Util. Dist. v. City of Schertz, 969 F.3d 460, 471 (5th Cir. 2020) (en banc) (internal citations omitted) (first quoting Raj v. La. State Univ., 714 F.3d 322, 328 (5th Cir. 2013); then quoting Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002)).
Ex parte Young is a “necessary exception” to sovereign immunity, preventing state officials from using their state’s sovereignty as a shield to avoid compliance with federal law. Metcalf & Eddy, 506 U.S. at 146. The “premise” of the doctrine, which applies to state officials but not to the states themselves, is that a “state official is ‘not the State for sovereign-immunity purposes’ when ‘a federal court commands [her] to do nothing more than refrain from violating federal law.’” Williams, 954 F.3d at 736 (quoting Va. Off. for Prot. & Advoc., 563 U.S. at 255). The inquiry requires us to give “careful consideration [to] the sovereign interests of the State as well as the obligations of state officials to respect the supremacy of federal law.” Verizon, 535 U.S. at 649 (Kennedy, J., concurring).
Ex parte Young’s purpose is to “give[] life to the Supremacy Clause” and prevent violations of federal rights. Green v. Mansour, 474 U.S. 64, 68 (1985). Accordingly, the exception does not apply when plaintiffs seek to vindicate state-law rights, because there is no “greater intrusion on state sovereignty” than when a federal court instructs a state official on how to conform her conduct to state law. Pennhurst, 465 U.S. at 106. “[I]f there are no federal rights for the plaintiff to vindicate then the justification for the Young exception is not present in the case and the state’s right to [sovereign] immunity should be honored.” McCarthy, 381 F.3d at 419 (Garza, J., concurring in part and dissenting in part).
A.
Here, the first and third criteria of Ex parte Young are satisfied, because the state official is sued in her official capacity and the plaintiffs seek prospective relief. See Green Valley, 969 F.3d at 471. Consequently, our task is to decide whether Ex parte Young’s second criterion has been satisfied: Do the plaintiffs allege violations of federal law such that the Ex parte Young exception to sovereign immunity allows this lawsuit to proceed in federal court, or do the plaintiffs allege only violations of state law such that sovereign immunity requires dismissal of the entire lawsuit? See id.
On their licensing claims, the plaintiffs allege that the Department has “constructively denied” their application and that the investigations purportedly preventing the Department from officially ruling on the application are in fact “shams.” The plaintiffs assert that the Department’s actions violate their federal constitutional rights to equal protection, substantive due process, and procedural due process. They seek injunctions directing the Department: (1) to “not withhold approval” of the license; (2) to “promptly rule” on the application “in accordance with all applicable constitutional requirements”; or (3) to “grant” the license.
In response, the Department argues that the complaint asserts only state-law claims disguised as federal claims. It says that the plaintiffs’ real complaint is that the Department has incorrectly interpreted the Louisiana statute that forbids granting abortion-clinic licenses to applicants in violation of “federal or state law.”14 Specifically, one way to read the plaintiffs’ complaint is that it says that the state statute is confined to actual violations of federal or Louisiana law—not potential violations of other states’ laws, as the Department reads the statute.15 If that is the real thrust of the complaint, the Department says, then the plaintiffs are asking a federal court to order a state official “to conform [her] conduct to [the plaintiffs’ interpretation of] state law,” which the Department says that Pennhurst forbids. Pennhurst, 465 U.S. at 106. The Department also argues that all forms of relief sought by the plaintiffs on their licensing claims are barred by Pennhurst.
The district court rejected the Department’s argument. It held that the licensing claims were supported by “extensive allegations spanning many years that, when taken in the light most favorable to [the plaintiffs], suggest that [the Department’s] current proffered interpretation of state law is the latest in a series of largely pretextual decisions made to indefinitely prevent [the plaintiffs] from providing abortions.” The district court held that “while [the Department] is correct that
We hold that the plaintiffs have established federal jurisdiction on their requested injunction to “promptly rule.” Specifically, under
We emphasize that the
B.
The plaintiffs alternatively request two other injunctions commanding the Department to “grant” them a license or “not withhold approval” of their license application.17 These injunctions are fundamentally different from the “promptly
Abortion-clinic licensing is a creature of state law. See, e.g., Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 884 (1992) (abortion services are “part of the practice of medicine, subject to reasonable licensing and regulation by the State”); Hillsborough Cnty. v. Automated Med. Lab’ys, Inc., 471 U.S. 707, 719 (1985) (holding local health ordinance not preempted because “the regulation of health and safety matters is primarily, and historically, a matter of local concern”); Women’s Med. Ctr. of Nw. Hous. v. Bell, 248 F.3d 411, 419 (5th Cir. 2001) (noting that “without violating the Constitution, the State could have required all abortion providers to be licensed”); Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 579 n.8 (5th Cir. 2012) (“[W]hat [abortion providers] think is medically necessary does not cabin, under the state’s legitimate power, the regulation of medicine, as Casey holds.”).18
Because abortion-clinic-licensing is quintessentially a matter of state law, there is no free-standing federal right to receive an abortion-clinic license. Just as there is no free-standing federal right to receive a medical license. Or a law license. A federal court cannot tell a state official, absent a violation of federal law, to deny or approve a license application—the potential right to which arises entirely from state law. And plaintiffs cannot circumvent the doctrine of sovereign immunity by suing a state official and adding magic words like “federal law” and “constitution” to their complaint. Unlike the plaintiffs’ “promptly rule” injunction demanding a decision on their application, the “grant” and “not withhold approval” injunctions have no underlying federal right and no basis outside of state law. These forms of relief are therefore barred by sovereign immunity.
C.
The plaintiffs also request a declaratory judgment “that the denial of [the] license violates the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment and is therefore void and of no effect.” It is unclear what exactly the plaintiffs seek with this form of relief. To the extent that this declaratory judgment would allow the district court to tell the Department to grant or deny the license, this requested form of relief is also barred by Pennhurst for the same reasons that the “grant” and “not withhold approval” injunctions are barred. And, to the
D.
In sum, we hold that the plaintiffs’ second requested injunction—directing the Department to “promptly rule” on their application “in accordance with all applicable constitutional requirements”—is not barred by Pennhurst because the plaintiffs allege a potential violation of their procedural-due-process rights pursuant to Ex parte Young and because requiring the Department to make a decision on the application and comply with the federal Constitution does not infringe the state’s sovereign immunity. We also hold that the first and third of the plaintiffs’ requested injunctions—directing the Department to “not withhold approval” of their application or “grant” them a license—are barred by Pennhurst because there is no free-standing federal right to receive an abortion-clinic license.
IV.
The Department raised other issues in the district court that it argues we could exercise our pendant jurisdiction to decide on appeal. For example, the Department urges us to consider its ripeness and standing challenges to the plaintiffs’ funding claims. Although we have the discretion to exercise our pendant jurisdiction to consider these issues, we decline to do so. See Hosp. House, Inc. v. Gilbert, 298 F.3d 424, 429 (5th Cir. 2002) (holding that when a court has “interlocutory appellate jurisdiction to review a district court’s denial of [sovereign] immunity, [it] may first determine whether there is federal subject matter jurisdiction over the underlying case”).
At oral argument, the plaintiffs conceded that on remand the Department will be able to bring a
it is unclear if and when Planned Parenthood will receive a license, it is difficult to see how the absence of a judicial decision on the hypothetical future impact of HB 606 causes the plaintiffs any harm in the present.20
Relatedly, the Department argued in the district court that the plaintiffs do not have standing because they have not suffered an injury. The bulk of the district court’s jurisdictional analysis was not conducted plaintiff-by-plaintiff, despite the
intentions—without any description of concrete plans, or indeed even any specification of when the some day will be”). Moreover, our en banc court has held that Medicaid patients do not have an individual right to contest a State’s determination that a particular provider is not qualified under Medicaid. Kauffman, 981 F.3d at 368; see also id. at 376 (Elrod, J., concurring).
The Department also argued that the district should abstain under Burford, 319 U.S. at 333–34. The district court rejected that argument because the availability of a special state forum for resolution of licensing disputes was “unclear.” Yet the Department notes that applicants allegedly injured by its licensing decisions may seek intra-Department review under state law,22 and it admitted at oral argument that this review is available now to the plaintiffs. Oral Argument at 14:44–14:59. The Department estimated the length of that review process to be only “a matter of weeks.” Oral Argument at 15:43. The Department further notes that a party dissatisfied with the result of intra-Department review may seek review in the appropriate parish district court under another state-law provision.23
The plaintiffs have not pursued these remedies. Indeed, when pressed to explain how they could maintain a procedural-due-process claim at all without having taken advantage of these state-law procedures—given the Department’s concession that they are available—the plaintiffs only pointed out that they “don’t just have a procedural-due-process claim, [they] also have an equal-protection claim and an undue-burden claim.” Oral Argument at 21:46.
We expect the district court to carefully consider each jurisdictional challenge—including whether and how they impact each of the plaintiffs and each of the claims—before proceeding to the merits. See In re Gee, 941 F.3d 153, 159 (5th Cir. 2019) (“A district court’s obligation to consider a challenge to its jurisdiction is non-discretionary.”);
* * *
The motion to dismiss the appeal is DENIED. The judgment of the district court is AFFIRMED in part and REVERSED in part. The case is REMANDED for further proceedings consistent with this opinion. The district court shall either strike from the complaint the barred forms of relief or allow the plaintiffs to re-plead and delete those barred forms of relief in accordance with this opinion’s holdings.