Joseph Cotropia v. Mary Chapman

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- Case: 19-20688 Document: 00515611847 Page: 2 Date Filed: 10/22/2020

No. 19-20688 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-

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No. 19-20688 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 Case: 19-20688 Document: 00515611847 Page: 4 Date Filed: 10/22/2020

No. 19-20688 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.

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No. 19-20688 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.

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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

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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 Case: 19-20688 Document: 00515611847 Page: 8 Date Filed: 10/22/2020

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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 Case: 19-20688 Document: 00515611847 Page: 9 Date Filed: 10/22/2020

No. 19-20688 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.

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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-

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No. 19-20688 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.

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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.

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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.