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On September 26 and 27, 2016, the Bar Association of the Fifth Federal Circuit with Baylor University School of Law will host the 2016 Annual Appellate Advocacy Seminar in New Orleans.  Cost is $150 for 10.25 hours of Continuing Legal Education, including both an hour of Professionalism and an hour of Ethics.  Circuit Judges Jennifer W. Elrod, Catharina Haynes and James E. Graves, Jr. will give practical advice on effective oral argument and brief writing.   Professors Scott Fraley and Greg White from Baylor University School of Law will be conducting a two hour writing workshop with “Three Tips to Make Each Part of Your Brief Memorable and Effective”.  Marianne M. Auld, Chair of the Appellate Section at Kelly Hart in Fort Worth, TX will be our Ethics Speaker. Mike H. Rubin, McGlinchey Stafford, Baton Rouge, LA will speak on Professionalism.  We are honored to have David C. Frederick from Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C., Washington, DC and Adjunct Professor of the University of Texas. He is one of the nation's leading appellate advocates, and will present important issues before the Supreme Court.  Observe oral arguments and get practical advice from the Court and seasoned attorneys.  This seminar is an ideal introduction into federal appellate practice, with specifics about Fifth Circuit procedures.

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The Daily Commentary (sample)

Sample case reviewed on September 22, 2016.
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Planned Parenthood Gulf Coast v. Gee No. 15-30987

 

http://www.ca5.uscourts.gov/opinions/pub/15/15-30987-CV0.pdf

Before WIENER, PRADO, and OWEN, Circuit Judges.

AFFIRMED and REMANDED. (September 14, 2016).

Posted in Injunctions, Justiciability, Medicaid, Ripeness, Standing

Planned Parenthood Gulf Coast, Incorporated (PPGC) operates two clinics in Louisiana offering physical exams, contraception and contraception counseling, screening for breast cancer, screening and treatment for cervical cancer, testing and treatment for sexually transmitted diseases, pregnancy testing and counseling, and other procedures. Both centers participate in Louisiana’s Medicaid program, whose beneficiaries comprise more than half of the patients served by the centers. Neither clinic performs abortions, and neither has ever participated in a fetal tissue donation program. In July 2015 the Center for Medical Progress secretly recorded videos depicting conversations with Planned Parenthood employees elsewhere, purportedly showing that Planned Parenthood and its affiliates were contracting to sell aborted human fetal tissue and body parts.

As a result, former Louisiana Governor Bobby Jindal directed the Louisiana Department of Health and Hospitals (LDHH) and the State Inspector General to investigate PPGC. PPGC responded to a range of questions by LDHH and stated that it did not provide abortion services and did not sell or donate unborn baby organs or body parts. LDHH notified PPGC in August 2015 that it would terminate PPGC’s Louisiana Medicaid provider agreements, stating that the provider agreements were voluntary contracts subject to termination by either party. Governor Jindal then issued a press release stating that the agreements were terminated because Planned Parenthood does not represent the values of Louisiana regarding respect for human life.

PPGC and individual plaintiffs, all women who are Medicaid beneficiaries and wish to receive care at PPGC’s Louisiana facilities, filed suit under 42 U.S.C. § 1983, contending that LDHH’s termination of PPGC’s Medicaid provider agreements violated 42 U.S.C. § 1396(a)(23), which is Medicaid’s free-choice-of-provider requirement, as well as the U.S. Constitution. LDHH then rescinded the “at will” termination and advised the District Court that the matter was moot. The following day, however, LDHH notified PPGC that it was terminating the agreements for cause under Louisiana law. Plaintiffs amended their complaint, and LDHH moved to dismiss. After a hearing, the District Court ultimately entered an order granting plaintiffs’ request for a temporary restraining order and preliminary injunction and denying LDHH’s motion to dismiss. LDHH appealed.

On appeal, the Fifth Circuit affirmed. The Court first rejected LDHH’s arguments regarding standing and ripeness. LDHH argued that plaintiffs failed to demonstrate an injury because PPGC’s provider agreements had not yet been terminated and the individual plaintiffs had not been denied access to PPGC’s services. It also argued that any injury resulted not from the actions of LDHH but from PPGC’s failure to avail itself of its administrative appeal rights. The Court explained that LDHH’s argument ignored the well-established principle that a threatened injury may be sufficient to establish standing. LDHH already had acted to terminate the agreements and, significantly, the individual plaintiffs had no administrative appeal rights. Further, violation of a statutory right, even standing alone, is sufficient to satisfy the injury requirement. Likewise, the matter was ripe for review. The individual plaintiffs’ injuries were sufficiently likely to happen to justify judicial intervention, and plaintiffs were likely to suffer hardship by being denied access to their provider of choice.

The Court then turned to LDHH’s challenge to the District Court’s entry of a preliminary injunction and again rejected LDHH’s arguments. A plaintiff seeking a preliminary injunction must show: (1) a substantial likelihood that he will prevail on the merits, (2) a substantial threat that he will suffer irreparable injury if the injunction is not granted, (3) his threatened injury outweighs the threatened harm to the party whom he seeks to enjoin, and (4) granting the preliminary injunction will not disserve the public interest.

In determining that plaintiffs had established a substantial likelihood that they would prevail on the merits, the Fifth Circuit joined every other Circuit to address the issue and concluded that § 1396(a)(23) afforded the individual plaintiffs a private right of action under § 1983. Further, plaintiffs were likely to succeed on the merits of their claim that LDHH’s termination of PPGC’s provider agreements violated the free-choice-of-provider requirement. Although a state may terminate a provider’s Medicaid agreements for reasons bearing on the provider’s qualifications, LDHH’s termination of PPGC’s agreements was not related to PPGC’s qualifications. The Court rejected LDHH’s contentions that PPGC was not qualified under Louisiana law to render medical services based on (1) two qui tam claims that had been settled by PPGC, (2) unspecified misrepresentations in PPGC’s responses to LDHH’s inquiries, and (3) pending investigations by LDHH and the Louisiana Office of Inspector General. The Court noted its opinion was limited to the unique facts of the case and emphasized that LDHH had never complained that PPGC was not competent to render medical services or taken any independent action to limit PPGC’s entitlement to render medical services to the general population, such as revoking its license. Because LDHH sought to terminate PPGC’s provider agreements for reasons unrelated to PPGC’s qualifications, plaintiffs were likely to succeed on the merits.

The remaining factors for a preliminary injunction also favored plaintiffs. The District Court did not clearly err in holding that the individual plaintiffs would suffer irreparable harm, absent a preliminary injunction, because they would be denied access to a much needed medical provider and the legal right to the qualified provider of their choice. Nor did the District Court clearly err in concluding that the harm to the individual plaintiffs would outweigh any harm inflicted on LDHH, which had no legitimate interest in administering the state’s Medicaid program in a manner that violated federal law. Finally, the public interest weighed in favor of preliminarily enforcing plaintiffs’ rights. Plaintiffs were entitled to the preliminary injunction.

On Appeal from the United States District Court for the Middle District of Louisiana (John W. deGravelles).
Attorney for Appellant – Jimmy Roy Faircloth, Jr., Alexandria, VA
Attorney for Appellee – Carrie Yvette Flaxman, Washington, DC

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