Case: 19-20688 Document: 00515611847 Page: 1 Date Filed: 10/22/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 22, 2020
No. 19-20688 Lyle W. Cayce
Clerk
Joseph Cotropia,
Plaintiff—Appellant,
versus
Mary Chapman, Individually,
Defendant—Appellee.
Appeal from the United States District Court
for the Southern District of Texas
No. 4:16-CV-742
Before Smith, Clement, and Oldham, Circuit Judges.
Jerry E. Smith, Circuit Judge:
Joseph Cotropia sued Mary Chapman, an investigator for the Texas
Medical Board (“TMB”), under 42 U.S.C. § 1983 for searching his medical
office and seizing documents without a warrant. The district court granted
Chapman’s motion for summary judgment on the basis of qualified immunity
(“QI”). We affirm.
I.
On February 13, 2015, the TMB issued a Final Order revoking Cotro-
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pia’s medical license 1 because he had improperly prescribed controlled sub-
stances and had directed and supervised an unregistered pain management
clinic (“PMC”), an entity that needed to be registered under Texas law.
Tex. Occ. Code § 168.101. The TMB’s Final Order instructed Cotropia
to “immediately cease practice in Texas,” explaining that violations could
result in “disciplinary action by the Board or prosecution for practicing with-
out a license in Texas.” 2
But Cotropia, by his own admission, continued to practice after the
February 13, 2015, revocation, until March 20, 2015. After the TMB re-
ceived a complaint against Cotropia, the TMB sent Chapman to execute an
administrative subpoena at Cotropia’s office on March 27, 2015. 3 The sub-
1
In re Cotropia, SOAH Dkt. No. XXX-XX-XXXX (Feb. 13, 2015),
https://perma.cc/A2DX-QDBU (“Final Order”).
2
Final Order at 15. Cotropia asserts a slew of so-called “Tolan violations” under
Tolan v. Cotton, 572 U.S. 650 (2014) (per curiam), arguing that the district court improperly
weighed the evidence by resolving disputed issues in favor of Chapman. Cotropia insists
that he was not required to stop practicing medicine until March 20, 2015, because that was
the day that the TMB denied his rehearing and the Final Order became final. But the Final
Order required Cotropia to cease immediately. The denial of his motion for rehearing
resulted only in “[a]dministrative finality,” namely an exhaustion of the TMB’s review for
purposes of appeal. 22 Tex. Admin. Code § 187.37(l); see Lawson v. Laird, 443 F.2d
617, 619 (5th Cir. 1971) (summarizing the “test of administrative finality for purposes of
judicial review”). Cotropia cites no evidence indicating that the TMB held the Final Order
in abeyance pending review or gave overriding instructions permitting him to practice med-
icine between February 13, 2015, and March 20, 2015.
3
Cotropia alleges another Tolan violation, noting that in its first sentence of back-
ground, the district court erroneously described the subpoena as an “administrative search
warrant.” That mistake, the argument goes, “shined a more favorable light on the uncon-
stitutional actions of the administrative state, since a search based on a warrant would be
reasonable under the Fourth Amendment.” Cotropia devotes a solitary paragraph to this
argument, and rightfully so. The district court conducted its analysis under the “Admin-
istrative Process Exception to the Warrant Requirement,” demonstrating that the absence
of a warrant was a baseline assumption of its analysis. Nowhere did the court suggest that
Chapman’s search was reasonable because she had a warrant.
2
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poena directed Cotropia to produce copies of prescriptions and patient sign-
in sheets from February 27, 2015, to the present.
Cotropia was away from his office that day, preparing for a hearing
involving the TMB. Betty Spaugh, Cotropia’s receptionist, remained at the
office to handle communications with patients. Accompanied by a federal
DEA agent, Chapman arrived at Cotropia’s office and presented Spaugh
with the administrative subpoena. After speaking on the phone with Cotro-
pia’s attorney, Spaugh requested that Chapman leave the office, but Chap-
man stayed.
Chapman removed several documents from Spaugh’s desk and made
copies. 4 Those documents included appointment ledgers, a patient payment
ledger, 5 sign-in sheets, and five credit card receipts showing payments to
“T.E. Swate.” 6 After an hour, a constable arrived and told Chapman to
4
Here, Cotropia alleges another Tolan violation, claiming that the district court
erroneously concluded that “Chapman was provided twenty-three documents before
Spaugh refused to produce additional records.” Cotropia fails to explain how Spaugh’s
consent to the search is relevant to this appeal. In any event, consent is a separate basis for
finding that a search is reasonable under the Fourth Amendment. See City of L.A. v. Patel,
576 U.S. 409, 420 (2015). Chapman relies on the administrative exception—not consent—
to justify her search.
5
Cotropia alleges another Tolan violation. The district court referred to those
documents as “analogous to a patient log,” although, the argument goes, they were actually
“financial records” that are “outside the scope of the TMB’s authority” to investigate.
There are two problems with that theory—one legal, one factual. First, although
22 Texas Administrative Code § 179.4(a) allows the TMB to investigate only
“medical records,” Cotropia cites no legal authority suggesting that the presence of finan-
cial information undermines the TMB’s authority over a document that otherwise qualifies
as a medical record. Second, Cotropia claims that “Chapman conceded to seizing financial
records belonging to Dr. Cotropia.” But Cotropia mischaracterizes the record. When
asked whether particular documents were financial documents, Chapman answered “They
are—” before being cut off by an objection. When allowed to answer, Chapman said that
the documents “have financial information.”
6
T.E. Swate refers to Tommy Swate, a physician who lost his medical license for
3
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leave.
Cotropia filed this § 1983 action against Chapman for violations of his
Fourth and Fourteenth Amendment rights based on Chapman’s search and
seizure of documents without a warrant. Chapman then moved to dismiss on
the basis of QI. Although the district court granted Chapman’s motion to
dismiss with prejudice, we reversed. See Cotropia v. Chapman, 721 F. App’x
354 (5th Cir. 2018) (per curiam). We concluded that Cotropia “alleged suffi-
cient facts to show that Chapman . . . violated the clearly established right to
an opportunity to obtain precompliance review of an administrative subpoena
before a neutral decisionmaker.” Id. at 357.
In that appeal, we declined to adopt two of Chapman’s arguments.
First, although we noted that 22 Texas Administrative Code
§ 179.4(a) and Texas Occupations Code § 153.007(e)—which to-
gether constitute the TMB’s subpoena authority—might provide the power
to demand medical records on short notice, Chapman had not “made clear
(on the arguments that she ha[d] provided thus far) whether § 179.4(a)
applies to this situation at all.” Cotropia, 721 F. App’x at 359. 7 Second,
Chapman contended, at oral argument, that medical practices constitute “a
improperly treating chronic-pain and addiction patients. See Swate v. Tex. Med. Bd., 2017
WL 3902621, at *1 (Tex. App.—Austin Aug. 31, 2017, pet. denied). Cotropia’s 2015 prac-
tice involved the care of patients whom Cotropia took over from Swate. Swate now works
as a licensed attorney and serves as Cotropia’s counsel in this matter.
7
Our previous decision did not examine Chapman’s authority under Texas
Occupations Code § 168.052 or 22 Texas Administrative Code § 195.3—
which together authorize the TMB to inspect pain management clinics—because “Chap-
man ha[d] not argued that these provisions [were] sources of authority under which she
operated.” Cotropia, 721 F. App’x at 359 n.4. That led us to doubt whether Chapman’s
subpoena authority allowed her to “take the subpoenaed records by force.” Id. at 359. On
this appeal, Chapman has asserted her authority under §§ 168.052 and 195.3. Although
Cotropia decries the TMB’s taking of documents by “physical force,” he does not contend
that Chapman lacked authority to do so.
4
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closely regulated industry and that the regulatory scheme TMB has in place
provides a constitutionally adequate substitute for a warrant” under New
York v. Burger, 482 U.S. 691 (1987). Cotropia, 721 F. App’x at 360. But
because Chapman had not previously raised that argument, we declined to
address it. Id.
On remand, after discovery, Chapman moved for summary judgment
on the basis of QI. She argued that, because she reasonably relied on the
Texas Administrative Code and Texas Occupations Code, her search was
reasonable. The magistrate judge issued a Recommendation and Memoran-
dum granting Chapman’s motion, which the district court adopted in full,
and Cotropia appeals.
II.
After a defendant makes a “good-faith assertion of [QI],” the burden
of proof for summary judgment purposes “shift[s] . . . to the plaintiff to show
that the defense is not available.” Melton v. Phillips, 875 F.3d 256, 261 (5th
Cir. 2017) (en banc) (quotation omitted). To satisfy its burden, a plaintiff
must show “(1) that the official violated a statutory or constitutional right,
and (2) that the right was ‘clearly established’ at the time of the challenged
conduct.” Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (en banc)
(quotation omitted).
Cotropia contends that (1) Chapman violated his constitutional rights,
by executing the administrative subpoena without any opportunity for Cotro-
pia to obtain precompliance review, and (2) Cotropia’s constitutional rights
were clearly established at the time of the search. We agree that Chapman
violated Cotropia’s constitutional rights, but the law was not clearly estab-
lished at the time of the search.
5
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A.
“Warrantless searches and seizures are per se unreasonable unless
they fall within a few narrowly defined exceptions.” United States v. Kelly,
302 F.3d 291, 293 (5th Cir. 2002) (quotation omitted). Two are relevant.
First, as a general matter, “in order for an administrative search to be con-
stitutional, the subject of the search must be afforded an opportunity to ob-
tain precompliance review before a neutral decisionmaker.” Patel, 576 U.S.
at 420. Second, even without precompliance review, there is an “adminis-
trative exception,” the relevant test for which comes from Burger. Zadeh v.
Robinson, 928 F.3d 457, 465 (5th Cir. 2019), cert. denied, No. 19-676, 2020
WL 3146691 (U.S. June 15, 2020). Under Burger, “warrantless inspections
in closely regulated industries must still satisfy three criteria: (1) a substantial
government interest, (2) a regulatory scheme that requires warrantless
searches to further the government interest, and (3) ‘a constitutionally
adequate substitute for a warrant.’” Id. at 464–65 (quoting Burger, 482 U.S.
at 703). Because Chapman did not have a warrant and Cotropia had no
opportunity for precompliance review of the subpoena, we analyze whether
Chapman complied with the administrative exception.
Last year, in Zadeh—a case factually similar to this one—we examined
whether the TMB’s authority to investigate the medical industry as a
whole—and PMCs in particular—fell within the administrative exception
under Burger. Zadeh, 928 F.3d at 466. We declined to apply Burger to the
medical industry as a whole, because it “is not a closely regulated industry
for purposes of Burger.” Id. PMCs, on the other hand, are medical facilities
in which “a majority of patients are issued on a monthly basis a prescription
for opioids, benzodiazepines, barbiturates, or carisoprodol.” Tex. Occ.
Code § 168.001(1). Assuming that PMCs could be considered a closely
regulated industry, we concluded that the TMB’s administrative-subpoena
authority for searching PMCs failed on the third prong of Burger. Zadeh, 928
6
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F.3d at 466–68. That prong requires “a warrant substitute authorized by
statute to be constitutionally adequate.” Id. at 467. Constitutional adequacy
in turn requires that “the regulatory statute . . . must limit the discretion of
the inspecting officers.” Burger, 482 U.S. at 703.
Zadeh dealt with two sources of the TMB’s authority. First,
§§ 153.007(a) and 179.4(a) grant the TMB authority to issue administrative
subpoenas. Those provisions, however, provide “no identifiable limit on
whose records can properly be subpoenaed.” Zadeh, 928 F.3d at 467. Sec-
ond, §§ 168.052(a) and 195.3 grant the TMB authority to inspect PMCs.
Those provisions, however, “d[o] not limit how the clinics inspected are
chosen.” Zadeh, 928 F.3d at 468. Given the dearth of constraints, we con-
cluded that both sources of the TMB’s authority failed under Burger. Id.
In the instant case, like Zadeh, Chapman relied on Texas Occu-
pations Code §§ 153.007(a) and 168.052 and 22 Texas Adminis-
trative Code §§ 179.4(a) and 195.3 as the sources of her authority to
execute the administrative subpoena and search Cotropia’s office. 8 Zadeh’s
Burger analysis, therefore, controls the constitutional question here. As
Chapman concedes, “Zadeh already contains the very holding Cotropia asks
the Court to announce in accordance with this constitutional analysis.”
Chapman thus violated Cotropia’s constitutional rights when she copied
documents in Cotropia’s office without any precompliance review of the
administrative subpoena.
B.
With the first prong satisfied, we address whether Cotropia’s right to
precompliance review was clearly established at the time of the search. In
8
Unless otherwise noted, references to statutory provisions refer to the versions
in effect on March 27, 2015, though they may have since been amended.
7
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Zadeh, even though we concluded that the TMB’s subpoena authority for
searching pain management clinics was unconstitutional, we could not con-
clude that “every reasonable official prior to conducting a search under the
circumstances of this case would know this Burger factor was not satisfied.”
Zadeh, 928 F.3d at 470. We “[did] not hold that all reasonable officers would
have known that, until now.” Id. Zadeh was issued in 2019; Chapman
searched Cotropia’s office in 2015. Thus, at that time, it was not clearly
established that her search per §§ 153.007(a), 168.052, 179.4(a), and 195.3
was unconstitutional. Cotropia seeks to avoid that conclusion by differenti-
ating Zadeh in several respects.
1.
Cotropia tries to distinguish Zadeh by reasoning that, unlike the office
in Zadeh, Cotropia’s office was “undisputedly not a [PMC].” Because “it
was clearly established at the time of this search that the medical profession
as a whole is not a closely regulated industry,” Zadeh, 928 F.3d at 468,
Cotropia contends that “[e]very reasonable officer should have known that
the closely regulated industry exception did not apply to the instant search of
Cotropia’s office.” 9
Cotropia is correct that his office was not registered as a PMC. The
statute that provided the TMB authority to search Cotropia’s documents,
however, gives the TMB authority to investigate not only “a [PMC] certified
9
Cotropia also styles this argument as a Tolan violation, claiming that “[t]he
mistaken grant of summary judgement was entirely based on the false premise that Dr.
Cotrpia’s [sic] office was a pain management clinic.” That is an odd assertion, given Cotro-
pia’s previous admission that “[n]either the court below nor Chapman have [sic] even at-
tempted to claim that Cotropia’s office was a [PMC].” In any event, although the district
court described Cotropia’s prior involvement with an unregistered PMC, the court dis-
tinguished New Concept, which was Cotropia’s office that Chapman searched, noting that
it was not registered as a PMC.
8
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under this chapter” but also “a physician who owns or operates a clinic in
the same manner as other complaints under this subtitle.” Tex. Occ.
Code § 168.053. For instance, in Zadeh, 928 F.3d at 470−71, the relevant
clinic was not required to be registered as a PMC for an officer reasonably to
have relied on the regulatory scheme relevant to PMCs. It is thus irrelevant
whether Cotropia registered his office as a PMC. The question, instead, is
whether Chapman was investigating a complaint that Cotropia was operating
his clinic in the same manner as a PMC. Tex. Occ. Code § 168.053.
The record provides ample evidence that could lead a reasonable
officer to believe that Cotropia operated New Concept in the same manner
as a PMC. The TMB received allegations that Cotropia was operating an
unregistered PMC. Cotropia, by his own admission, prescribed opioids
through March 20, 2015, and previously had operated an unregistered PMC.
His practice involved the care of patients whom he had taken over from
Tommy Swate, whose medical license was revoked in 2014 for improper
treatment of chronic-pain and addiction patients. Based on those undisputed
facts, Chapman acted reasonably in relying on § 168.053 as authorizing her
to investigate the allegations regarding Cotropia’s practice.
2.
Cotropia claims that, unlike the physician in Zadeh, he is not a “licen-
see,” and § 179.4(a) is limited to authorizing searches of “licensees.” 10 He
fails to fit the definition, the argument goes, because the TMB had already
revoked his license before executing the administrative subpoena.
10
In the first appeal, we noted that “Chapman has not made clear (on the argu-
ments that she has provided thus far) whether § 179.4(a) applies to this situation at all, as
Cotropia was not a ‘licensee’ at the time of Chapman’s actions.” Cotropia, 721 F. App’x
at 359. Our previous opinion, however, did not benefit from an analysis of § 179.2(10), and
it explicitly conditioned its conclusion on the arguments presented “thus far.” Id.
9
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But Cotropia’s initial definitional argument cites no definitions. And
for good reason. Section 179 defines its terms: “Licensee” refers to “[a]
person to whom the board has issued a license.” 22 Tex. Admin. Code
§ 179.2(10) (emphasis added). The present perfect tense, “has issued,” indi-
cates that “licensee” includes any individual who received a license at some
point in the past. 11
Other sections of the Texas Administrative Code reinforce the con-
clusion that Cotropia counts as a licensee. For instance, the Code refers to
physicians as “licensees” even after their licenses have been canceled or
surrendered. 12 We presume that a given word is used consistently through-
out the text of a statute. 13 Section 179.4 thus does not limit “licensees” to
those who presently possess a valid license. Given the statutory definition
and context, Cotropia was a licensee at the time of Chapman’s search.
In response, Cotropia supplants his “non-licensee” argument with an
argument that, at the time of the search, he was “not a physician.” 14 For that
proposition, Cotropia cites 22 Texas Administrative Code
§ 176.1(6)—a different chapter of the Code from § 179.4’s administrative-
11
See Barrett v. United States, 423 U.S. 212, 216 (1976) (concluding that the present
perfect tense “denot[es] an act that has been completed”).
12
See, e.g., 22 Tex. Admin. Code § 196.2(a) (“When a licensee has surren-
dered his or her Texas medical license . . . .”); id. § 196.2(b) (“[A] licensee who reapplies
for licensure must demonstrate that the licensee’s return to the practice is in the best
interest of the public.”).
13
See Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 167–73 (2012).
14
Cotropia raises this version of his argument for the first time in his reply brief.
“[W]e ordinarily disregard arguments raised for the first time in a reply brief.” Sahara
Health Care, Inc. v. Azar, No. 18-41120, --- F.3d ---, 2020 U.S. App. LEXIS 29927, at *9 n.5
(5th Cir. Sept. 18, 2020). Though Cotropia arguably waived this theory, it also fails on the
merits.
10
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subpoena authority—which defines a “physician” as “any person licensed
to practice medicine in this state.” He then grafts § 176.1’s definition onto
§ 179.4, because the title of § 179.4 is “Request[s] for Information and Rec-
ords from Physicians” (emphasis added). Even setting aside these statutory
gymnastics, titles should be used in statutory interpretation only to resolve
textual ambiguities, not to create a textual ambiguity that overrides a text’s
plain meaning. SCALIA & GARNER, supra, at 221–22.
Finally, Cotropia relies on the Cambridge Dictionary’s definition of
“licensee.” But that doesn’t supplant the definition by the Texas Legis-
lature. Although we often use dictionaries in giving terms their ordinary
meaning “[a]bsent a statutory definition,” we need not resort to dictionary
definitions where statutory definitions leave no ambiguity. United States v.
Hildenbrand, 527 F.3d 466, 476 (5th Cir. 2008).
3.
Cotropia contends that, unlike the search in Zadeh, Chapman’s search
was pretextual. 15 Chapman violated clearly established law, the argument
goes, because her search was done “solely to gather evidence of a crime . . .
and potentially to harass.” The district court concluded there was no pre-
text. 16 We agree.
15
Once again, Cotropia describes this argument as a Tolan violation. Cotropia
posits that practicing without a license has criminal penalties only under Texas Occu-
pations Code § 165.153 but that it would be impossible for the TMB to bring admin-
istrative proceedings against him, as his “license had already been revoked.” This appears
to rehash Cotropia’s “licensee” argument. As indicated above, the TMB retained author-
ity to pursue actions against Cotropia even after his license had been revoked.
16
The district court also concluded that the issue of pretext was “beyond the man-
date of the remand” because Cotropia did not raise the issue in the district court before
dismissal or before this court on his previous appeal. Cotropia contests that application of
the mandate rule, and Chapman neglects to defend the district court’s application of the
mandate rule. Because there was no pretext, we need not decide whether the district court
11
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“It is incorrect . . . to use the label ‘pretext’ simply because of an
overlap between an administrative search and a criminal search.” Zadeh,
928 F.3d at 471. States are free to “address a major social problem both by
way of an administrative scheme and through penal sanctions.” Burger,
482 U.S. at 712. Because a search can further both administrative and penal
ends, we determine pretext by asking “whether the search that occurred was
under a scheme serving an administrative purpose.” Zadeh, 928 F.3d at 471.
The TMB had received a complaint that Cotropia was operating an
unregistered PMC. 17 Even though Cotropia’s license had been revoked at
the time of the search, the Board still had the power to take disciplinary action
against him, to issue administrative penalties, and to seek injunctions. See
Tex. Occ. Code §§ 153.001(3), 164.001(b), 165.051. Therefore, Chap-
man’s search served an administrative purpose, even if the TMB ultimately
declined to take further administrative action against Cotropia. The search
was not pretextual.
AFFIRMED.
properly applied the mandate rule.
17
Cotropia repeatedly insists that Chapman knew or should have known that
Cotropia was not engaged in the practice of medicine at the time of her search because it
was a matter of public record that his license had been revoked as of March 20, 2015. But,
particularly in light of the allegations against Cotropia, the Board and its investigators were
under no obligation to presume that Cotropia was abiding by the revocation order (as he
undisputedly had not from February 13 until March 20).
12
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Andrew S. Oldham, Circuit Judge, concurring:
I would avoid the constitutional question in this case. In Zadeh v.
Robinson, 928 F.3d 457 (5th Cir. 2019), we held that certain searches by the
Texas Medical Board (“TMB”) violate the Fourth Amendment. I do not
know whether Zadeh was correct as an original matter. For example, it could
be argued that TMB resembles a guild. See Tex. Occ. Code
§ 152.002(a)(1) (requiring 12 of TMB’s 19 members to be licensed
physicians); id. § 152.001 (empowering TMB to regulate physicians); Guild,
Black’s Law Dictionary (11th ed. 2019) (“A group of persons
sharing a common vocation who unite to regulate the affairs of their trade in
order to protect and promote their common vocation”). And guild searches
have a rich common-law history. As early as 1297, a London city ordinance
empowered six particular clothworkers to “examine and search” all rough
clothwork before it left the city. William J. Cuddihy, The Fourth
Amendment: Origins and Original Meaning 33 (2009). Guild
searches persisted through 1485, see id. at 33–37; from 1485 to 1642, id. at 54;
from 1642 to 1700, id. at 159, 173; and from 1700 to 1760, id. at 304–05, 412–
14. Such searches (and the reactions to them) are part of the original public
meaning of our Fourth Amendment. See id. at 727–73; see also Atwater v. City
of Lago Vista, 532 U.S. 318, 326 (2001) (“In reading the [Fourth]
Amendment, we are guided by the traditional protections against
unreasonable searches and seizures afforded by the common law at the time
of the framing . . . .” (quotation omitted)). Perhaps Zadeh accords with this
history and meaning; perhaps not.
For present purposes, all that matters is that we needn’t decide the
question. See Pearson v. Callahan, 555 U.S. 223, 236–42 (2009). Because
regardless of whether the TMB investigator violated the Fourth
Amendment, we all agree she is entitled to qualified immunity.
13