Case 2:15-cv-00620-MHT-TFM Document 1 Filed 08/28/15 Page 1 of 13

E 1 E 0 IN THE UNITED STATES DISTRICT COiJT
FOR THE MIDDLE DISTRICT OF ALA BA14A, V
NORTHERN DIVISION
7015 AUG 28 A Q: 08

PLANNED PARENTHOOD SOUTHEAST, INC.,
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CIVIL ACTION : I5'-cv-( 20

ROBERT BENTLEY, Governor of Alabama, in his official capacity; STEPHANIE McGEE AZAR, Acting Commissioner, Alabama Medicaid Agency, in her official capacity,

Case No.

Defendants.

COMPLAINT Plaintiff, by and through its attorneys, brings this Complaint against the above-named Defendants, their employees, agents, delegatees, and successors in office, and in support thereof state the following:
PRELIMINARY STATEMENT 1. This civil action is brought pursuant to 42 U.S.C. § 1983 to vindicate rights secured by the federal Medicaid statutes and the First and Fourteenth Amendments to the United States Constitution. 2. Plaintiff Planned Parenthood Southeast, Inc. ("PPSE") provides critically needed family planning services and other preventive health services to women in Mobile and Birmingham through the Medicaid program. As is required by federal law, Medicaid enrollees may seek services from a participating provider of their choice and have those services covered

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by Medicaid. Alabama Medicaid does not pay for abortions except in extremely narrow circumstances.
3. On August 6, 2015, without warning and having expressed no prior concerns about the participation of PPSE in providing services to Alabama women through the Medicaid program, Alabama Governor Robert Bentley notified PPSE by letter that it was terminating PP SE's Medicaid provider agreement, effective 15 days after receipt of the letter. While the letter gave no reason for the termination, Governor Bentley that same day released a statement that referred to heavily edited and misleading videos that opponents of Planned Parenthood have recently released. Those tapes relate to the practice of an extremely small number of Planned Parenthood affiliates that allow their patients to donate fetal tissue following an abortion in order to advance medical research. While all Planned Parenthood affiliates comply with all federal and state laws on the disposal of fetal tissue, PPSE does not participate in any fetal tissue donation programs and does not appear in any of the videos.
4. Notably, nothing in Governor Bentley's statement relates to the quality of Medicaid services provided by PPSE.
5. Instead, Governor Bentley stated that he terminated the agreements because: "1 respect human life, and I do not want Alabama to be associated with an organization that does not." Defendants' actions are, unfortunately, consistent with the State's long history of targeting abortion providers for unfair treatment. As the Court detailed in Planned Parenthood Southeast v. Strange, 33 F. Supp. 3d 1330, 1334 (M.D. 2014) (Thompson, J.), "abortion providers and women seeking abortions in Alabama today live and work in a climate of extreme hostility to the practice of abortion. On a dayto-day basis, a provider or a patient sees this hostility when she opens the newspaper,
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drives by a group of protesters at a clinic, or learns that another piece of legislation concerning abortion has been enacted." In each of the last four years the State has passed a new law restricting abortion. Id. In general, there is a climate of hostility toward abortion from elected officials. Id. See also W est Ala. W omen's Or. v. W illiamson, No. 15-CV-00497-MHT-TFM (M.D. Ala. Aug. 13, 2015) (Thompson, J.), slip op.., Doc. 23-1 at 30 ("Abortion providers in Alabama have faced severe harassment and stigma for being associated with abortion in any way"); Id. at 67-68 ("The history of violence and the continued extreme hostility towards abortion providers has created a shortfall of clinics and doctors in Alabama."); id. at 79 ("These circumstances have resulted in a climate in which any physician associated with abortion in this State is stigmatized, harassed, and even threatened with violence.").
6. Plaintiff seeks declaratory and injunctive relief to protect PPSE's patients' access to - and PPSE's own ability to provide these critical medical services. Defendants' actions violate Section 1 396a(a)(23) of Title 42 of the United States Code ("Medicaid freedom of choice provision") because, by barring PPSE from the Medicaid program, it prevents PPSE's patients from receiving services from the qualified, willing provider of their choice. Defendants' actions further impermissibly penalize Plaintiff without adequate justification, in violation of the First and Fourteenth Amendments.
7. Unless enjoined, the termination of PPSE's Medicaid provider agreements will disqualify PPSE from providing critical health care services to Alabama women who depend on PPSE for that care. Defendants' actions are already causing significant and irreparable hann to PPSE and to its Medicaid patients who will lose their provider of choice, and will find their family planning services interrupted. Plaintiff and its patients have no adequate remedy of law.
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JURISDICTION AND VENUE 8. Subject-matter jurisdiction is conferred on this Court by 28 U.S.C. § 1331 & 1343. 9. Plaintiff's claims for declaratory and injunctive relief are authorized by 28 U.S.C. § 2201 and 2202, by Rules 57 and 65 of the Federal Rules of Civil Procedure, and by the general legal and equitable powers of this Cot. 10. Venue in this judicial district is proper under 28 U.S.C. § 1391.
THE PARTIES A. Plaintiff
11. Plaintiff PPSE is a not-for-profit corporation organized under the laws of Georgia. PPSE brings this action on behalf of itself, its physicians who are Medicaid-enrolled providers, and its Medicaid patients.
12. PPSE provides reproductive health care at two health centers in Alabama, one in Mobile and one in Birmingham, as well as at five in Georgia, and one in Mississippi. PPSE participates in the Alabama Medicaid program, providing medical services to low-income enrollees. The family planning and other preventive health services provided by PPSE at these health centers include physical exams, contraception and contraceptive counseling, screening for breast cancer, screening for cervical cancer, testing and treatment for certain sexually transmitted infections ("STIs"), and pregnancy testing and counseling. Plaintiff also provides abortion at both health centers. B. Defendants
13. Defendant Robert Bent-ley is the Governor of Alabama. On August 6, 2015, Governor Bentley notified PPSE that he was directing the termination of PPSE's Medicaid
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agreement. The Governor is sued in his official capacity for declaratory and injunctive relief. 14. Defendant Stephanie McGee Azar is the Acting Commissioner of the Alabama
Medicaid Agency, the agency that administers the state Medicaid program. The Acting Commissioner is sued in her official capacity for declaratory and injunctive relief.
THE MEDICAID PROGRAM A. The Medicaid Statute
15. The Medicaid program, established under Title XIX of the Social Security Act of 1935, 42 U.S.C. § 1396 et seq., pays for medical care provided to eligible people based upon their income. A State may elect whether or not to participate; if it chooses to do so, it must comply with the requirements imposed by the Medicaid statute and by the Secretary of the U.S. Department of Health and Human Services ("HHS") in her administration of Medicaid. See generally 42 U.S.C. § 1396a(a)(1)-(83).
16. To receive federal funding, a participating State must develop a "plan for medical assistance" and submit it to the Secretary of HHS for approval. 42 U.S.C. § 1396a(a).
17. Among other requirements, the State plan must provide that: "[A]y individual eligible for medical assistance.. . may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required.. . who undertakes to provide him such services." 42 U.S.C. § 1396a(a)(23)(A).
18. Congress has singled out family planning services for special additional protections to ensure freedom of choice of provider, specifically providing that, with respect to these services and with certain limited exceptions not applicable here, "enrollment of an individual eligible for medical assistance in a primary care case-management system. . . ,a
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medicaid managed care organization, or a similar entity shall not restrict the choice of the qualified person from whom the individual may receive services." 42 U.S.C. § 1396a(a)(23)(B).
19. The federal government reimburses the state of Alabama 90% of expenditures attributable to family planning services and supplies in the Medical assistance program. 42 U.S.C. § 1396b(a)(5). B. Implementation of the Medicaid Act
19. For decades, the Centers for Medicare & Medicaid Services ("CMS"), the agency within HHS that administers Medicaid (and its predecessor organization), has repeatedly interpreted the "qualified" language in Section 1 396a(a)(23) to prohibit states from denying enrollees access to a provider for reasons unrelated to the ability of that provider to perform Medicaid-covered services or to properly bill for those services, including reasons such as the scope of the medical services that the provider chooses to offer.
20. CMS has explained that "[t]he purpose of the free choice provision is to allow [Medicaid] recipients the same opportunities to choose among available providers of covered health care and services as are normally offered to the general population." Ctrs. For Medicare & Medicaid Servs, CMS Manuals Publication #45, State Medicaid Manual § 2100.
21. Consistent with this understanding, HHS has a long history of rejecting state plans that seek to limit the type of provider that can provide particular services. See, e.g., 53 Fed. Reg. 8699 (Mar. 16, 1988) (noting rejection of plan that would limit providers to "private nonprofit" organizations); 67 Fed. Reg. 79121 (Dec. 27, 2002) (noting disapproval of a state plan amendment that would have limited "beneficiary choice.. . by imposing standards that are not reasonably related to the qualifications of providers").

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22. More recently, CMS rejected an Indiana plan that barred state agencies from contracting with or making grants to any entities that perform abortion because it violated the Medicaid freedom of choice provision. Letter from Donald M. Berwick, Adm'r., CMS, to Patricia Casanova, Dir., Ind. Office of Medicaid Policy and Planning (June 1, 2011), http://www.politico.com/static/PPM0601_indiana_letter.html.
23. Moreover, even though CMS is permitted to waive § 1396a(a)(23) in demonstration projects, like Alabama's Plan First program, approved under Social Security Act § 1115, CMS has repeatedly rejected state requests to do so for family planning services, including twice in the last year: first in Pennsylvania, see Letter from Marilyn Tavenner, Adm'r, CMS, to Beverly Mackereth, Sec'y, Pa. Dep't of Public Welfare (Aug. 28, 2014), http://www.medicaid.govlMedicaid-CHIP-Prograrn-InfonnationlByTopics/Waivers/i 11 5/downloads/palpa-healthy-ca.pdf ("No waiver of freedom of choice is authorized for family planning providers."); and more recently in Iowa, see Letter from Manning Pellanda, Dir., CMS Div. of State Demonstrations and Waivers, to Julie Lovelady, Interim Medicaid Dir., Iowa Dep't of Human Servs. (Feb. 2, 2015), http://www.medicaid.govlMedicaidCHIP-Program-InformationlBy-Topics/Waivers/ ill 5/downloads/ia'ia-marketplace-choice-planca.pdf("No waiver of freedom of choice is authorized for family planning providers."). Alabama did not even request such a waiver in applying for their program. See Letter from Cindy Mann, Director, Ctr. for Medicaid & CHIP Srvs., to Stephanie Azar, Commissioner, Ala. Medicaid Agency (Dec. 29, 2014) http://www.medicaid.govlMedicaid-CHIP-Program-InformationlByTopics!Waivers/l 11 5/downloads/al/a1-family-planning-ca.pdf. ("All requirements of the Medicaid program as expressed in law, regulation, and policy statement not expressly identified as not applicable in this letter, shall apply to this demonstration.").
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DEFENDANTS' EXCLUSION OF PPSE FROM THE ALABAMA MEDICAID PROGRAM
24. On August 6, 2015, without prior notice, Alabama Governor Robert Bentley sent a letter to PPSE notifying PPSE that the Alabama Medicaid Agency was terminating PPSE's agreements, effective 15 days after receipt of the letter. A true and correct copy of this letter is attached and incorporated herein as Exhibit 1.
25. Defendants' letter provided no reason for the termination of the agreement. 26. However, Governor Bentley's tweets and statements indicate that he terminated PPSE's agreement because of heavily edited and misleading videos that have been recently released by opponents of Planned Parenthood with regard to other Planned Parenthood's abortion practice in other states. For example, on August 15, 2015, Governor Bentley said, "I will not let Alabama tax payer money fund an organization that talks about on tape gently crushing the heads on an unborn baby and selling their body parts. In Alabama, we're not going to use taxpayer dollars to support an organization like Planned Parenthood that does things like that. We're just not going to do it. I just will never support an organization that talks about gently crushing the heads of an unborn child. Then to do that in order to preserve the organs so that they can sell the organs; I cannot think of anything more barbaric than that." 27. The allegations in the misleading videos that Planned Parenthood abortion providers are violating the law are false, and no governmental investigation related to the videos to date has identified any illegal conduct by Planned Parenthood. 28. In fact, PPSE complies with all federal and state laws regarding the disposal of fetal tissue. See Alabama Administrative Code 420-5-1-.03(5)(e). PPSE does not participate in any programs in which patients can donate fetal tissue after abortion. None of its employees are depicted in the misleadingly edited videos. And two investigations of PPSE by Georgia officials,
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commenced at the request of Governor Deal after the videos' release, have vindicated PPSE's practices.
29. Similarly, Governor Bentley's tweets and statements indicate that he terminated PPSE's contract because of his animus against abortion providers. On August 6, 2015, Governor Bentley said the following: "The deplorable practices at Planned Parenthood have been exposed to Americans, and I have terminated any association with the organization in Alabama. As a doctor and Alabama's Governor, the issue of human life, from conception to birth and beyond, is extremely important to me. I respect human life, and I do not want Alabama to be associated with an organization that does not."
30. Defendants' actions are, unfortunately, consistent with the State's long history of targeting abortion providers for unfair treatment. See Planned Parenthood Southeast v. Strange, 33 F. Supp. 3d 1330 (M.D. 2014) (Thompson, J.), and W est A la. W omen's Ctr. v. W illiamson, No. 15-CV-00497-MHT-TFM, slip op., Doc. 23-1 (M.D. Ala. Aug. 13, 2015) (Thompson, J.), detailed in ¶ 5, supra.
31. Defendants' actions were taken without regard to the quality of the medical care provided by PPSE to Medicaid patients, and in direct retaliation for PPSE's provision of abortion services and its affiliation with Planned Parenthood.
32. CMS has advised Defendants that their actions to terminate PPSE's provider agreements likely violate the Medicaid freedom of choice provision.
IMPACT OF DEFENDANTS' ACTIONS: ON PPSE AND ITS PATIENTS 33. The need for publicly supported family planning services is great in Alabama, which regularly ranks among the worst states in the United States for reproductive care. In 2013, 323,490 Alabama women were in need of publicly finided family planning services. Guttmacher

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Inst., State Facts About Unintended Pregnancy: Alabma (2014), https://www.guttmacher.org/statecenter/unintended-pregnancy/pdfYAL.pdf (hereafter "State Facts: Alabama"). In 2010, 55% of pregnancies in Alabama were unintended. Id. The state ranks fifteenth highest among 50 states in teen pregnancy rates. Kathryn Kost & Stanley Henshaw, Guttmacher Inst., U.S. Teenage Pregnancies, Births and Abortions, 2010: National and State Trends by Age, Race and Ethnicity, (2014), http://www.guttmacher.org/pubs/U5TPtrends10.pdf. Over 60% of Alabama's unplanned births are publicly funded. State Facts: Alabama.
34. In spite of the great needs, there are simply not enough providers of the critical care PPSE provides. PPSE's health centers are in areas classified as a "Primary Care Health Professional Shortage Area," a designation for areas with a population to full-time primary care physician ratio of 3500:1 - or a ratio between 3000-3500:1 in areas with unusually high demand for primary care services and in which primary care professionals in contiguous areas are practically inaccessible. See U.S. Dep't of Health and Human Servs., Find Shortage A reas, Health Resources and Services Administration, http://datawarehouse.hrsa.gov/GeoAdvisor /ShortageDesignationAdvisor.aspx (enter each clinic address and click "submit"); U.S. Dep't of Health and Human Servs., Guidelines for MUA and MUP Designation, Health Resources and Services Administration, http://bhpr.hrsa.gov/shortage/muaps/index.html; U.S. Dep't of Health and Human Servs., Primary medical Care HPSA Designation Overview, Health Resources and Services Administration, http:/Ibhpr.hrsa.gov/shortage/hpsas/designationcriterialprimarycarehpsaoverview.html.
35. Women, including those on Medicaid, choose Planned Parenthood over other health care centers because they trust that Planned Parenthood will offer nonjudgmental, compassionate, and comprehensive care, and that Planned Parenthood will provide them with
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information they need to plan their families and protect their health. If PPSE is eliminated from Medicaid, they will be prevented from receiving services from their provider of choice.
36. As a result of Defendants' actions, PPSE is being forced to refer Medicaid patients elsewhere for care or ask them to pay out of pocket for their services. Turning away patients or forcing them to pay for health care they cannot afford fundamentally defeats the core of PPSE's mission: to enable its patients to plan their families and protect their health and wellbeing. Delays in accessing family planning services can lead to devastating consequences, including undetected diseases and unintended pregnancies, many of which may end in abortion.
CLAIMS FOR RELIEF CLAIM I - MEDICAID ACT (TITLE XIX OF SOCIAL SECURITY ACT) 37. Plaintiff hereby incorporates Paragraphs 1 through 36 above. 38. Defendants' action violate Section 1396a(a)(23) of Title 42 of the United States Code by denying PPSE's patients the right to choose any willing, qualified healthcare provider in the Medicaid program.
CLAIM II— FIRST AND FOURTEENTH AMENDMENTS - PENALIZING CONSTITUTIONALLY PROTECTED ACTIVITY
39. Plaintiff hereby incorporates Paragraphs 1 through 36 above. 40. Defendants' actions impermissibly penalize Plaintiff and its patients for its constitutionally protected association with Planned Parenthood and/or abortion, without adequate justification. CLAIM III - FOURTEENTH AMENDMENT EQUAL PROTECTION 41. Plaintiff hereby incorporates Paragraphs 1 through 36 above. 42. Defendants' action violates Plaintiffs rights by singling it out for unfavorable treatment without adequate justification.
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WHEREFORE, Plaintiff requests that this Court: A. Issue a declaratory judgment that the Defendants' action violates the Medicaid
Act; B. Issue a declaratory judgment that Defendants' action violates the First and
Fourteenth Amendments; C. Issue preliminary followed by permanent injunctive relief, without bond,
enjoining Defendants, their agents, employees, appointees, delegates, or successors from terminating PPSE's Medicaid provider agreement;
D. Grant Plaintiff's attorneys' fees, costs and expenses pursuant to 42 U.S.C. § 1988; and
E. Grant such further relief as this Court deems just and proper.
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Dated: August 28, 2015.

Carrie Y. Flaxman* Pennsylvania State Bar No. 78575 PLANNED PARENTHOOD FEDERATION OF AMERICA 1110 Vermont Avenue NW, Suite 300 Washington, DC 20005 (202) 973-4830 cathe.flaxman@ppfa.org

Randall C. Marshall ASB-3023-A56M ACLU FOUNDATION OF ALABAMA, INC. P.O. Box 6179 Montgomery, AL 36106-0179 rmarshall@aclualabama.org (334) 420-1741

Melissa Cohen* New York Bar Number 4782918 PLANNED PARENTHOOD FEDERATION OF AMERICA 434 West 33rd Street New York, NY 10001 (212) 261-4649 melissa.cohenppfa,org

Brigitte &fljrj* New York Bar Number 3017167 ACLU FOUNDATION Jennifer Dalven* New York Bar Number 2784452 ACLU FOUNDATION 125 Broad Street, 18th FL New York, NY 10004 bamiriaclu.org jdalvenaclu.org 212-549-2633

Attorneys for the Plaintiff

*pro hac vice motion to be filed

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PLAINTIFF"S
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OFFICE OF THE, : GOVERNOR
R0BEWr BENTLEY. GOVERNOR

STATE OF ALABAMA

STATE C\l'noL
MCwrGoMLY, ALAUANJA 36i 30
(334) 242-7100
F,\> (334) 242-3282

August 6, 20115

V ia Federal Expiess Dc'iivefy Ms. Staci: Fox. CEO Planned"Parenthood Southeast. Inc. 75 Piedmont Avenue NE Suite 800 Atlanta, Georgia 30303-2507
Dear Ms. Fox:
Pursuant, to the Alabama .Medicaid Agency Provider. Agreement under. section IV. Term, Amendment, and Termination, the Agency is exercising its ability to terminate the existing agreement(s) with Planned Parenthood Southeast, Inc. with fifteen (15) days written notice. The terthination. of the provider agrement(s) with Planned Pareihood Southeast, In. will be effective fifteen (1 .5) . days after 'receipt of this 1:etter.
If you are dissatisfied or disa gree with the Agencys decision, yOUOr.yoUr Teprse1tative may ask for a fair hearing. A letter asking for 'a fair hearing must be received by'the Agency within sixty ('60) days from the date of this notice The letter should be mailedto
Alabama Mediai'd Age ricy P.Q. Box 5624. Montgomery, Alabama 36103 5624 ATTN: Hearings Coordinator

Robert Bentley Governo
cc: Stephanie McGee Aza'r, Acting Comniissioner,Alahama Medicaid Agency

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Plaintiffs Attorneys

Randall C. Marshall ACLU FOUNDATION OF ALABAMA, INC. P.O. Box 6179 Montgomery, AL 36106-0179 rmarshall@aclualabama.org (334) 420-1741
Brigitte Amiri* ACLU FOUNDATION Jennifer Dalven* ACLU FOUNDATION 125 Broad Street, 18th FL New York, NY 10004 bamiri@aclu.org jdalvenaclu.org (212) 549-2633

Carrie Y. Flaxman* PLANNED PARENTHOOD FEDERATION OF AMERICA 1110 Vermont Avenue NW, Suite 300 Washington, DC 20005 carrie.flaxman@ppfa.org (202) 973-4830

*pro hac vice motion to be filed

Case 2:15-cv-00620-MHT-TFM Document 1-2 Filed 08/28/15 Page 1 of 1

Court Name: U S DISTRICT COURT Division: 2 Receipt Number: 4602038114 Cashier ID: awilliam Trãnactin Date: 08/28/2015 Pa yer Name: ACLU OF ALABAMA FOUNDATION

CIVIL FILING FEE

For: ACLU OF ALABAMA FOUNDATION

Amount:

$400.00

CHECK Chock/Mone y Order Num: 9288 Amt Tendered: $400.00

Total Due:

$400.00

Total Tendered: $400.00

Chan ge Amt:

$0.00

2:15-cv-00620

Planned Parenthood Southeast, Inc. v. Bentle y et al

 
 Case 2:15-cv-00620-MHT-TFM Document 52 Filed 10/15/15 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

PLANNED PARENTHOOD

)

SOUTHEAST, INC., JANE DOE, )

)

Plaintiffs,

)

)

vs.

)

)

GOVERNOR ROBERT BENTLEY, )

et al.,

)

)

Defendants.

)

CIVIL ACTION NO. 2:15-cv-00620-MHT-TFM

DEFENDANTS’ SUPPLEMENTAL BRIEF IN OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION

In response to the Court’s request during yesterday’s telephone conference,

Governor Bentley and Commissioner Azar offer the following statement regarding

whether, at this time, the Court may convert Planned Parenthood SE and Doe’s

motion for a preliminary injunction into a request for a final injunction or other

final judgment as to either their Medicaid Act claims or their constitutional claims.

I. Medicaid Act claims With respect to the Medicaid Act claims, the Court’s ability to enter final
judgment depends on two things—first, whether the Court is inclined to rule for Planned Parenthood SE and Doe or for the Governor and the Commissioner; and

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second, whether the theory on which this Court is inclined to rule relates to a pure question of law.
a. Potential Medicaid Act rulings favoring the Governor and Commissioner If this Court is inclined to rule for the Governor and Commissioner on the Medicaid Act claims based on a pure issue of law, the Court may proceed to enter a final judgment dismissing those claims under Rule 12(b)(6). The Governor and Commissioner have argued that Planned Parenthood SE and Doe do not have a substantial likelihood of success because of at least three separate legal arguments. First, neither Planned Parenthood SE nor Doe has a cause of action to enforce §1396a(a)(23). See Doc. 29 at 22-30. Second, even if §1396a(a)(23) is enforceable through §1983, the law does not allow plaintiffs like Planned Parenthood SE and Doe to use §1396a(a)(23) to collaterally attack the termination of a provider agreement, and a provider’s exclusive means of challenging this sort of decision is through the administrative process envisioned by §1396a(p) and its implementing regulations. See id. at 33-34. Third, the provider agreements signed by Planned Parenthood SE authorized both parties to terminate the agreements at will. See id. at 43-44. If the Court is inclined to deny the motion for a preliminary injunction on any of these legal grounds, then further discovery likely would be unnecessary, and the Court could enter final judgment dismissing Planned Parenthood SE and Doe’s
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Medicaid Act count for failure to state a claim upon which relief could be granted. With the Court’s leave, the Governor and Commissioner have not yet filed a motion to dismiss, but the Court may construe this document and the opposition to the motion for preliminary injunction as a request for dismissal under Rule 12(b)(6).
On the other hand, if the Court is inclined to deny Planned Parenthood SE and Doe’s motion for a preliminary injunction based on the other merits arguments the Governor and Commissioner have raised—arguments that are not based on purely legal grounds—discovery will be necessary before the Court can issue final judgment dismissing those claims. For example, the Governor and Commissioner have argued that the termination of Planned Parenthood SE’s was justified because of concerns that the Planned Parenthood organization has provided medical services that violate American Medical Association standards. See Doc. 29 at 3442. If the Court is inclined to deny the motion for preliminary injunction because it appears more likely than not that the Governor and Commissioner will prevail on those arguments, it would appear likely that Planned Parenthood SE and Doe would seek discovery on those issues before final judgment would be appropriate.
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b. Potential Medicaid rulings favoring Planned Parenthood SE and Doe If the Court is inclined to grant Planned Parenthood SE and Doe’s motion for a preliminary injunction based on the Medicaid Act claims, the Governor and Commissioner have discerned only one scenario under which the grounds for doing so would be purely legal in nature such that the Court could proceed to final judgment. The Court noted at the preliminary-injunction hearing that it might hold that: (1) the termination letter, on its face, terminated Planned Parenthood SE’s provider agreement at-will, rather than for cause; and (2) the Medicaid Act does not allow for at-will terminations of provider agreements. Although the Governor and Commissioner disagree with those propositions and, indeed, this theory is not the same as the one Plaintiffs advanced in their Complaint and motion for preliminary injunction, both appear to involve pure questions of law. Likewise, although the Governor and Commissioner believe that the Court should not grant a preliminary injunction on that theory, if the Court does so, further discovery likely would not be necessary, and the Court could proceed to final judgment on that ground. Meanwhile, if the Court were inclined to grant Planned Parenthood SE or Doe a preliminary injunction on the Medicaid claims on any other theory, then further discovery would be necessary, and this Court would not be in a position to proceed to final judgment. For example, Planned Parenthood SE has claimed that
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the evidence does not establish that its affiliates have violated medical standards or that it can be held accountable for violations by other Planned Parenthood affiliates. See Doc. 36 at 14. If the Court determines that the current record supports Planned Parenthood SE’s arguments for the purposes of the motion for a preliminary injunction, further discovery would be necessary on these matters. In recent days, it has become all the more apparent that Planned Parenthood SE may have additional relevant evidence on these fronts. Despite Planned Parenthood SE’s assertions that Planned Parenthood Federation of America “does not supervise PPSE or otherwise have control over its daily operations or its internal affairs,” Doc. 36 at 14, the President of the Planned Parenthood Federation announced earlier this week that the “Federation has decided” that “all of our health centers will follow the same policy” regarding fetal tissue extraction and donation. See Letter from C. Richards, Pres. of Planned Parenthood Fed. of Am., to Dr. Francis Collins, Dir. of the Nat’l Inst. of Health (Oct. 13, 2015) (attached as Exhibit A). Other yet-to-be-produced evidence may confirm that Planned Parenthood affiliates have violated medical standards. Accordingly, if this Court were to grant the preliminary injunction on the Medicaid claim for any reason other than the at-will theory discussed above, it would not be appropriate to proceed to final judgment on the claim.
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II. Constitutional Claims The Court’s ability to enter final judgment on the constitutional claims also
depends on whether the Court is inclined to rule for the defendants or plaintiffs at the preliminary-injunction stage. If the Court rules that Planned Parenthood SE and Doe have not alleged plausible constitutional claims for the reasons given in the Governor and Commissioner’s opposition to the motion for preliminary injunction, then the Court could enter final judgment dismissing those claims under Rule 12(b)(6). See Doc. 29 at 44-48. Although the Governor and Commissioner do not believe that Plaintiffs have met their burden to obtain preliminary relief on the constitutional claims, see Doc. 29 at 44-48, if the Court is inclined to grant the preliminary injunction, it would not be appropriate to proceed to final judgment immediately. That is so because a determination of the merits of those claims would require further discovery and litigation.
III. Class action issues Planned Parenthood SE and Doe suggested at yesterday’s phone conference
that they anticipate filing a motion to certify a class in this case tomorrow. The Governor and Commissioner anticipate opposing any such motion, and class discovery would be necessary on issues relating to, among other things, whether Doe and Planned Parenthood SE can satisfy requirements of Rule 23 relating to
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Case 2:15-cv-00620-MHT-TFM Document 52 Filed 10/15/15 Page 7 of 8
numerosity, adequacy of representation, ascertainability of a class, and the suitability of this case for class treatment. The Governor and Commissioner thus would request a reasonable opportunity to respond to any such motion and a reasonable opportunity to conduct discovery on those issues before the Court rules on the motion.
In any event, Doe’s apparent shift to a putative class action at this point only highlights the lack of fit between her Medicaid claim and the relief that Planned Parenthood SE actually filed this complaint to obtain. As the Governor and Commissioner have observed, §1396a(a)(23) grants patients a right of access to providers who have agreements in place with a State. A State’s decision to terminate provider agreements, on the other hand, can be challenged only by providers, through the administrative process envisioned by §1396a(p) and its implementing regulations. The inclusion of additional individual patients through a motion for class certification cannot change the twin realities that (1) this case is really about Planned Parenthood SE’s request for reinstatement of its provider agreement, and (2) Planned Parenthood SE is using the wrong procedural mechanism to achieve that goal, given that Planned Parenthood SE did not file an administrative appeal.
7

Case 2:15-cv-00620-MHT-TFM Document 52 Filed 10/15/15 Page 8 of 8

Respectfully submitted,

/s/ John C. Neiman, Jr. John C. Neiman, Jr. (ASB-8093-O68N) OF COUNSEL

Luther J. Strange James W. Davis Misty S. Fairbanks Messick OFFICE OF THE ATTORNEY GENERAL 501 Washington Avenue Montgomery, Alabama 36104 (334) 242-7300 jdavis@ago.state.al.us
Counsel for Commissioner Azar

David B. Byrne, Jr. OFFICE OF THE GOVERNOR Alabama State Capitol 600 Dexter Avenue, Suite NB-05 Montgomery, Alabama 36130 (334) 242-7120 david.byrne@governor.alabama.gov
John C. Neiman, Jr. Scott S. Brown Prim Formby Escalona Kasdin Miller Mitchell MAYNARD COOPER & GALE, P.C. 1901 Sixth Avenue North, Suite 2400 Birmingham, Alabama 35203 (205) 254-1000 jneiman@maynardcooper.com

Counsel for Governor Bentley

CERTIFICATE OF SERVICE
I served a copy of the foregoing document via the Court’s CM/ECF system upon all registered counsel.
/s/ John C. Neiman, Jr. John C. Neiman, Jr. OF COUNSEL

8

Case 2:15-cv-00620-MHT-TFM Document 52-1 Filed 10/15/15 Page 1 of 4

Case 2:15-cv-00620-MHT-TFM Document 52-1 Filed 10/15/15 Page 2 of 4
!
October 13, 2015! ! Francis Collins, M.D., Ph.D.! Director! National Institutes of Health! 9000 Rockville Pike! Bethesda, Maryland 20892! ! Dear Director Collins,! !
I am writing to follow up on the letter I sent you on July 29.! !
In that letter, I reviewed the development of the bipartisan 1993 legislation that authorized federal funding of fetal tissue transplantation research and the policies Planned Parenthood has in place to exceed the federal requirements. I also explained how that law was the result of a blue ribbon panel appointed by the Reagan Administration to consider the underlying medical and ethical issues. My letter outlined the very limited role that Planned Parenthood plays in fetal tissue research that can contribute to important medical breakthroughs. Currently, Planned Parenthood operates nearly 700 health centers that provide a wide range of vital health services to millions of women and men every year. Our role in fetal tissue research is an extremely small part of what we do. In fact, just 1% of our health centers currently facilitate tissue donation for fetal tissue research. !
! Over the last two months, opponents of safe and legal abortion have turned patently false claims about our role in fetal tissue donation into fodder to advance their extreme political agenda – including votes in the U.S. House of Representatives and Senate that would have blocked Planned Parenthood from receiving federal reimbursements for providing cancer screenings and other preventive care. I am pleased to report that those efforts, which would have jeopardized millions of people’s access to health care, have failed thus far. But this isn’t just about Planned Parenthood, and it isn’t over. These false claims are being used to advance politically motivated legislation in Congress and in state legislatures across the country to deny women access to basic health care and to impose medically unnecessary restrictions on safe and legal abortion. The American public overwhelmingly opposes this political agenda.! ! Through it all, we’ve heard from leading research institutions and practitioners across the country, asking Planned Parenthood not to bow to political pressure and to continue our support

Case 2:15-cv-00620-MHT-TFM Document 52-1 Filed 10/15/15 Page 3 of 4
! !
for patients to contribute to this important work. As the nation’s leading women’s health care provider, our promise to both our patients and the medical community is that we will never bow to political pressure and we will never back down from advancing women’s health every way we can. !
! As I have stated repeatedly, the accusations leveled against Planned Parenthood are categorically false. Planned Parenthood adheres to the highest legal, medical, and ethical standards. The outrageous claims that have been made against Planned Parenthood, which have been widely discredited and debunked, are the worst kind of political interference in women’s health. The real goal of these extremists has nothing to do with our fetal tissue donation compliance process but is instead to ban abortion in the U.S. and block women from getting any health care from Planned Parenthood. Today, we’re taking their smokescreen away and pushing forward with our important work on behalf of millions of women, men, and young people. !

The participation by a handful of our affiliates in supporting women who choose to make fetal tissue donation has always been about nothing other than honoring the desire of those women and contributing to life-saving research and cures. In order to completely debunk the disingenuous argument that our opponents have been using – and to reveal the true political purpose of these attacks – our Federation has decided, going forward, that any Planned Parenthood health center that is involved in donating tissue after an abortion for medical research will follow the model already in place at one of our two affiliates currently facilitating donations for fetal tissue research. That affiliate accepts no reimbursement for its reasonable expenses – even though reimbursement is fully permitted under the 1993 law. Going forward, all of our health centers will follow the same policy, even if it means they will not recover reimbursements permitted by the 1993 law.

I want to be completely clear about two things: First, Planned Parenthood’s policies on fetal tissue donation already exceed the legal requirements. Now we’re going even further in order to take away any basis for attacking Planned Parenthood to advance an anti-abortion political agenda. And, second, our decision not to take any reimbursement for expenses should not be interpreted as a suggestion that anyone else should not take reimbursement or that the law in this area isn’t strong. Our decision is first and foremost about preserving the ability of our patients to donate tissue, and to expose our opponents’ false charges about this limited but important work.!
! Finally, in my previous letter to you, I suggested that the widespread confusion over fetal tissue research merits a review by an expert independent panel. There is now proposed federal and state legislation to ban fetal tissue donation for research. I believe these public policy proposals would benefit from the expertise from NIH and medical and ethical leaders, and I again encourage you to develop a deliberative process to ensure that Congress and state legislatures have the benefit of such guidance and recommendations.! ! Thank you for your interest in this issue.
2!

!

!

Case 2:15-cv-00620-MHT-TFM Document 52-1 Filed 10/15/15 Page 4 of 4
! !
! Sincerely,! !
!
Cecile Richards ! President ! Planned Parenthood Federation of America! ! ! cc: Secretary Sylvia Matthews Burwell ! !

3!

!

!

 
 IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

PLANNED PARENTHOOD

)

SOUTHEAST, INC.; and

)

JANE DOE,

)

)

Plaintiffs,

)

)

v.

)

)

ROBERT BENTLEY, Governor )

of Alabama, in his

)

official capacity; and

)

STEPHANIE McGEE AZAR,

)

Acting Commissioner,

)

Alabama Medicaid Agency, )

in her official capacity, )

)

Defendants.

)

CIVIL ACTION NO. 2:15cv620-MHT (WO)

OPINION

Before the court is a challenge to a decision by

the Governor of Alabama to terminate the State’s

Medicaid provider agreement with Planned Parenthood

Southeast, Inc. (‘PPSE’), which funds services

unrelated to abortion, including routine gynecological

exams, pregnancy counseling, and breast- and

cervical-cancer screenings. The plaintiffs are PPSE

and Jane Doe, a PPSE patient and Medicaid recipient,

suing individually and on behalf of a putative class of

similarly situated Medicaid-recipient patients of PPSE.

The defendants are the Governor of Alabama and the

Acting Commissioner of the Alabama Medicaid Agency;

both are sued in their official capacities.

The plaintiffs filed this lawsuit to challenge the

termination of PPSE’s provider agreement as unlawful

under the ‘free-choice-of-provider’ provision of the

Medicaid Act, which states in relevant part that “any

individual eligible for medical assistance ... may

obtain such assistance from any institution, agency,

community pharmacy, or person, qualified to perform the

service or services required ... who undertakes to

provide [her] such services.”

42 U.S.C.

§ 1396a(a)(23). PPSE also claims that the termination

violates its rights under the First Amendment and the

Due Process and Equal Protection Clauses of the

Fourteenth Amendment. PPSE and Doe bring all of their

claims under 42 U.S.C. § 1983. Jurisdiction is proper

2

under 28 U.S.C. §§ 1331 (federal question) and 1343 (civil rights).
This matter is currently before the court on PPSE and Doe’s motion for entry of a preliminary injunction. The motion will be granted on the basis of Doe’s Medicaid Act claim.
I. LEGAL STANDARD To demonstrate that a preliminary injunction is warranted, a plaintiff must show that “(1) there is a substantial likelihood that he ultimately will prevail on the merits of the claim; (2) he will suffer irreparable injury unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) the public interest will not be harmed if the injunction should issue.” Cate v. Oldham, 707 F.2d 1176, 1185 (11th Cir. 1983). The plaintiff bears the burden of persuasion as to each of the four
3

required showings. McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998).
II. BACKGROUND A. State Medicaid Program The federal Medicaid program was established by Congress to provide low-income families, disabled individuals, pregnant women, and children with affordable medical care. The program operates as a partnership between the federal government and the States. Subject to guidelines established by the federal government regarding eligibility for assistance, the types of services covered, and the costs of those services, States receive federal funds. See 42 U.S.C. § 1396a. Although States are afforded discretion in administering the program, they are required to submit their plans for federal approval. See 42 C.F.R. § 430.10. The plan operates as a contract between the participating State and the federal government, and the Department of Health and
4

Human Services may withhold federal funds if the State
fails to ”comply substantially” with the plan as
approved and adopted. 42 C.F.R. § 430.35.
As a state participant, Alabama maintains such a
plan with the federal government. The State also
maintains “provider agreements” with health-care
providers, which impose on providers state and federal
regulatory requirements governing the filing of claims.
When a provider renders covered services to a Medicaid
recipient, the State pays that provider directly.
Family-planning services are covered under the Medicaid
Act and under the Alabama plan.1
1. Except in rare cases, Medicaid monies are not used to provide abortions in Alabama. The Hyde Amendment, a rider attached to congressional appropriations bills since 1976, prohibits the use of federal funds to pay for abortions. Although it was initially an all-out ban, the Amendment has evolved to exempt cases in which the life of the mother would be endangered by carrying the fetus to term, as well as cases of rape and incest. See, e.g., Pub. L. No. 11376, §§ 506-07, 128 Stat. 5, 409 (2014) ("Consolidated Appropriations Act").
However, States are free to fund abortions for Medicaid recipients from their own coffers. Alabama (continued…)
5

PPSE is a regional non-profit corporation

affiliated with Planned Parenthood Foundation of

America (‘PPFA’); it operates health centers in Mobile

and Birmingham. Through these centers, it provides

family-planning and preventive-health services,

including physical exams, contraceptive counseling,

contraception, breast- and cervical-cancer screenings,

treatment for sexually transmitted infections, and

pregnancy counseling.

Both offices also provide

abortions. As an affiliate of PPFA, PPSE is distinct

from the national organization; PPSE maintains an

independent board and exercises exclusive control over

its daily affairs. Although PPSE is not supervised by

PPFA, it must comply with certain standards adopted by

PPFA in order to operate under the “Planned Parenthood”

name.

does not do so. See Ala. Admin. Code 560-X-6-.09(1) ("Payment is available for abortions as provided under federal law. In the event the abortion does not meet the requirements of federal law, and the recipient elects to have the abortion, the provider may bill the recipient for the abortion.").
6

Until the termination of the provider agreement,2 both of PPSE’s offices participated in the State’s Medicaid program and, therefore, were able to provide the aforementioned services for free or at reduced cost to Medicaid recipients in the State. PPSE provided services to Medicaid recipients one to two times per week. Over the past two fiscal years, PPSE received approximately $ 5,600 in state Medicaid funds. All parties agree that PPSE receives no Medicaid funding for abortion services.
B. Videos Regarding Fetal-Tissue Donation Beginning in mid-July 2015 and ending in early August, the Center for Medical Progress, an anti-abortion group, released a series of controversial videos on fetal-tissue donation programs operated by
2. The State of Alabama technically maintained a separate, yet identical, provider agreement for each PPSE facility; however, the agreement itself was between the State and PPSE. For clarity, the court will refer to these identical agreements as one provider agreement in this opinion.
7

certain abortion clinics. These programs permit women

who elect to have abortions to donate fetal tissue for

medical research purposes. At the PPFA-affiliated

clinics that provide these services, the fetal tissue

is collected by providers.

In some instances,

procurement companies partner with the providers to

collect and transmit tissue to researchers. The

parties do not dispute that no employee or

representative of PPSE is depicted in these videos and

that

PPSE

does

not

participate

in

fetal-tissue donation, and never has.

The videos feature individuals affiliated with the

Center for Medical Progress posing as employees of a

fake tissue-procurement company. These individuals

participate in a series of covertly filmed

conversations with employees of PPFA and various

PPFA-affiliated clinics.

The videos--nine in

all--discuss two purported practices at issue here.

First, the videos are clearly intended to give the

impression that the depicted PPFA affiliates profit

8

from the ‘sale’ of fetal tissue. Second, the videos attempt to give the impression that providers at the affiliates that participate in fetal-tissue-donation programs alter abortion procedures in order to obtain intact--and therefore more ‘valuable’--specimens.
Following the release of the videos, PPFA representatives criticized the tactics of the filmmakers and argued that the videos falsely portray the practices of those affiliates that engage in fetal-tissue donation. PPFA contends that much of what was omitted from the videos’ recorded conversations with staff reflects that PPFA affiliates recover only their costs, and do not profit from their fetal-tissuedonation programs. An independent analysis of several of the videos, submitted by the plaintiffs, concludes that the released videos were “heavily edited” and therefore lack any legal “evidentiary value.” Pls.’ Ex. G, Reply Br. Mot. Prelim. Inj. 2, doc. no. 36-1.
The release of the videos led to strong and immediate backlash against PPFA and the clinics
9

affiliated with it. Both PPSE and other affiliates

report an increase in death threats and incidents of

harassment. Only two days after the release of the

first video, the Governor of Indiana ordered an

investigation into PPFA-affiliated clinics in that

State.

Similar investigations were launched by

politicians in Massachusetts, South Dakota,

Pennsylvania, and Georgia. Louisiana, Arkansas, Utah,

Texas, and New Hampshire also responded with efforts to

terminate affiliated clinics from their Medicaid

programs.

C. Termination of PPSE’s Provider Agreement On August 6, 2015, the Governor of Alabama sent a letter to PPSE to notify it that its provider agreement was being terminated. The letter did not provide a reason for the termination and advised PPSE that the termination would go into effect 15 days later. The Governor states in his briefing in this court that his decision to terminate was based on his viewing one of
10

the videos released by the Center for Medical Progress. The plaintiffs cite a statement the Governor made to the media, in which he contends that comments made in the video he viewed displayed a lack of respect for human life. The Governor states that he had no plan to terminate PPSE’s provider agreement before viewing this video. Further, it is undisputed that, prior to the receipt of this letter, PPSE had not been made aware of any investigation into its medical or administrative practices by the Alabama Medicaid Agency.
III. DISCUSSION To determine whether issuance of a preliminary injunction is warranted, the court will first evaluate the plaintiffs’ likelihood of success on the merits of their claims, then consider the threat of irreparable injury, and, finally, discuss whether the balance of harms and the public interest weigh in favor of or against an injunction. Because Doe has made a showing on her Medicaid Act claim adequate to warrant a
11

preliminary injunction, the court does not reach PPSE’s
constitutional claims.
A. Likelihood of Success on the Merits
1. Private Enforcement of the Free-Choice-of-Provider Right
In order to prevail on the merits, the plaintiffs
must, as a threshold matter, be entitled to pursue
relief under their stated cause of action. The
Governor and the Acting Commissioner argue that the
free-choice-of-provider provision is not enforceable
under 42 U.S.C. § 1983, by either Medicaid providers or
by recipients. This court finds to the contrary, at
least with respect to Doe, who is a recipient of Medicaid benefits.3
3. Because the court finds that Doe has a privateenforcement right, the court need not decide whether PPSE also has such a right, on behalf of its recipientpatients or on its own behalf. See Silver v. Baggiano, 804 F.2d 1211, 1217 (11th Cir. 1986) (declining to resolve whether § 1396a(a)(23) creates a right enforceable by a provider since “Medicaid recipients do have enforceable rights under § 1396a(a)(23), and an actual recipient has made a motion to intervene in this (continued…)
12

The federal Courts of Appeals to consider the

issue, as well as other federal district courts, have

reached the same conclusion: § 1396a(a)(23) creates a

private right enforceable under § 1983.

Planned

Parenthood Ariz. Inc. v. Betlach, 727 F.3d 960, 965-68

(9th Cir. 2013), cert. denied, 134 S. Ct. 1283 (2014);

Planned Parenthood of Ind., Inc. v. Comm’r of Ind.

State Dep’t of Health, 699 F.3d 962, 972-77 (7th Cir.

2012), cert. denied, 133 S. Ct. 2736 (2013), cert.

denied, 133 S. Ct. 2738; Harris v. Olszewski, 442 F.3d

456, 460-65 (6th Cir. 2006); see also Planned

Parenthood Gulf Coast, Inc. v. Kliebert, No.

3:15-cv-565, 2015 WL 6122984, at *18-19 (E.D. La. Oct.

18, 2015) (deGravelles, J.); Planned Parenthood Ark. &

E. Okla. v. Selig, No. 4:15-cv-566, slip op. at 11-14

(E.D. Ark. Oct. 2, 2015) (Baker, J.); Women’s Hosp.

Found. v. Townsend, No. 07-711, 2008 WL 2743284, at *8

case”); see also Nutritional Support Servs., L.P. v. Miller, 826 F. Supp. 467, 468-70 (N.D. Ga. 1993) (Carnes, J.) (concluding that providers--the only plaintiffs--had no enforcement right under the freechoice-of-provider provision).
13

(M.D. La. July 10, 2008) (Brady, J.). Although the Eleventh Circuit Court of Appeals has not explicitly held that the free-choice-of-provider provision creates a private right enforceable under § 1983, it suggested as much in Silver v. Baggiano, 804 F.2d 1211, 1216-18 (11th Cir. 1986) (noting, in remanding for the district court to consider in the first instance whether a provider had such a right, that the district court might not need to reach each issue, because “Medicaid recipients do have enforceable rights under § 1396a(a)(23), and an actual recipient has made a motion to intervene in this case”), abrogated on other grounds by Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 618 (2002).
These courts applied the three-step test articulated by the Supreme Court in Blessing v. Freestone, 520 U.S. 329 (1997), for determining whether a statutory provision can be enforced under § 1983: (1) “Congress must have intended that the provision in question benefit the plaintiff”; (2) “the plaintiff
14

must demonstrate that the right assertedly protected by the statute is not so vague and amorphous that its enforcement would strain judicial competence”; and (3) “the statute must unambiguously impose a binding obligation on the States.” Id. at 340-41 (citations and internal quotation marks omitted).
With respect to the first factor, they explained that, in guaranteeing the free choice of provider to “any individual eligible for medical assistance,” the free-choice-of-provider provision employs “individually focused terminology” that “unambiguously confer[s]” an “individual entitlement.” Harris, 442 F.3d at 461 (citations omitted); see also Planned Parenthood Ariz., 727 F.3d at 966-67 (citing Ball v. Rodgers, 492 F.3d 1094, 1108 (9th Cir. 2007) (“While express use of the term ‘individuals’ (or ‘persons’ or similar terms) is not essential to finding a right for § 1983 purposes, usually such use is sufficient for that purpose.”)); Planned Parenthood of Ind., 699 F.3d at 974 (“This language does not simply set an aggregate plan
15

requirement, but instead establishes a personal right to which all Medicaid patients are entitled.”). The Supreme Court, too, has explained as much. O’Bannon v. Town Court Nursing Ctr., 447 U.S. 773, 785 (1980) (“[The free-choice-of-provider provision] gives recipients the right to choose among a range of qualified providers without government interference.” (emphasis omitted)).
As for the second factor, the courts that have ruled on this issue have held that the free-choice-of-provider right is “administrable and falls comfortably within the judiciary’s core interpretive competence.” Planned Parenthood of Ind., 699 F.3d at 974; see id. (“Planned Parenthood argues that a state infringes the free-choice-of-provider right when it excludes a provider from its Medicaid program for a reason other than the provider’s fitness to render the medical services required. Whether this is the proper interpretation of § 1396a(a)(23) is a legal question fully capable of judicial resolution.”);
16

see also Planned Parenthood Ariz., 727 F.3d at 967 (“[W]hether the doctor is qualified ... may require [] factual development or expert input, but still falls well within the range of judicial competence. The requirement could be established, for example, by a combination of evidence as to the medical licenses the doctor holds and evidence as to the licenses necessary under state law to perform family planning services.”); Townsend, 2008 WL 2743284, at *8 (“[T]he plain language of the provision is sufficiently clear to allow for judicial enforcement.”).
The free-choice-of-provider provision also meets the third Blessing requirement, because it is “couched in mandatory, rather than precatory,” language: a State “must” provide recipients the freedom of choice. Harris, 442 F.3d at 461 (quoting Blessing, 520 U.S. at 341); see also Planned Parthood Ariz., 727 F.3d at 967 (calling this conclusion “indubitabl[e]”); Planned Parenthood of Ind., 699 F.3d at 974 (“[Section] 1396a(a)(23) is plainly couched in mandatory terms.”);
17

Townsend, 2008 WL 2743284, at *8 (“[T]he language is

mandatory ... .”).

Thus,

courts

have

found

that

the

free-choice-of-provider right is “presumptively

enforceable” under § 1983. See Gonzaga Univ. v. Doe,

536 U.S. 273, 284 (2002). Under Gonzaga, this

presumption of enforceability could be overcome if

Congress had foreclosed § 1983 lawsuits by recipients,

either expressly or “impliedly, by creating a

comprehensive enforcement scheme that is incompatible

with” private lawsuits. Id. at 284 n.4 (quoting

Blessing, 520 U.S. at 341). But the three Courts of

Appeals to consider the question all concluded that

Congress had not expressly or impliedly foreclosed

private-enforcement actions. Planned Parenthood Ariz.,

727 F.3d at 968; Planned Parenthood of Ind., 699 F.3d

at 975-76; Harris, 442 F.3d at 462.

This court is persuaded that these remarkably

consistent holdings are correct. The fact that federal

and state law provide for an administrative appeals

18

process does not prompt a different conclusion. Exhaustion of administrative remedies available under state law--by either Doe or PPSE--was not required before Doe could file suit in federal court. As she points out, the Eleventh Circuit, like every other circuit to consider the issue, has concluded that exhaustion is not required for claims under the Medicaid Act. See Alacare, Inc. North v. Baggiano, 785 F.2d 963, 965-67 (11th Cir. 1986) (“The evidence of a congressional preference for imposing an exhaustion requirement in Medicaid cases is simply inevident ... .” (applying Patsy v. Fla. Bd. of Regents, 457 U.S. 496 (1982)); see also Romano v. Greenstein, 721 F.3d 373, 376 (5th Cir. 2013); Roach v. Morse, 440 F.3d 53, 58 (2d Cir. 2006); Houghton ex rel. Houghton v. Reinertson, 382 F.3d 1162, 1167 n.3 (10th Cir. 2004); Talbot v. Lucy Corr. Nursing Home, 118 F.3d 215, 220 (4th Cir. 1997).
Further, it is relevant that the letter sent by the Governor was--as the court determines below--based on
19

an at-will termination clause in PPSE’s provider

agreement, and not any for-cause ground. Because the

termination letter lacked any substantive basis for the

termination of the provider agreement, it is

questionable whether meaningful review could have been

sought through the administrative process.

The

defendants' argument that the plaintiffs could have

uncovered through the administrative appeal process the

for-cause reason the defendants now retrospectively

offer is unpersuasive. Their argument ignores the fact

that the Governor did implicitly identify a basis for

terminating the agreement, which was his contractual

authority to terminate it at will, at any time, without

giving any other reason. This basis for administrative

action strikes the court as a fundamentally

unappealable one, impervious to evidentiary rebuttal.

Even if every factual allegation leveled against PPSE

were disproven, the agency--believing that it was

empowered to terminate a provider agreement without any

20

basis whatsoever in the conduct of the provider--would

hold a trump card.

The defendants argue that a recent decision by the

Supreme Court, Armstrong v. Exceptional Child Ctr.,

Inc., 135 S. Ct. 1378 (2015), warrants reconsideration

of the above precedents establishing that recipients

have

enforceable

rights

under

the

free-choice-of-provider provision. However, Armstrong

does not cast significant doubt on this

now-well-established proposition.

Armstrong involved a challenge by providers to a

different provision of the Medicaid Act, 42 U.S.C.

§ 1396a(a)(30)(A) (the ‘equal-access’ provision), which

requires state plans to “provide such methods and

procedures relating to the utilization of, and the

payment for, care and services available under the

plan ... as may be necessary to safeguard against

unnecessary utilization of such care and services and

to assure that payments are consistent with efficiency,

economy, and quality of care and are sufficient to

21

enlist enough providers so that care and services are

available under the plan at least to the extent that

such care and services are available to the general

population in the geographic area ... .” 135 S. Ct. at

1382. The equal-access provision, the Court observed,

“lacks the sort of rights-creating language needed to

imply a private right of action,” id. at 1387--that is,

just

the

sort

of

language

that

the

free-choice-of-provider provision does contain. See

also Townsend, 2008 WL 2743284, at *8 (drawing the same

contrast between § 1396a(a)(23) and § 1396a(a)(30)(A));

Planned Parenthood Gulf Coast, 2015 WL 6122984, at *18

(recognizing that the equal-access provision “lacks the

rights-creating and individual-focused language so

prominent in [the free-choice-of-provider provision]”).

The Armstrong Court concluded that two aspects of

the equal-access provision, considered together,

“establish[ed] Congress’s intent to foreclose equitable

relief.” 135 S. Ct. at 1385 (citation and internal

quotation marks omitted). Only one of these factors

22

applies with any force to the free-choice-of-provider
provision: that the remedy Congress affirmatively
provided for a State’s failure to comply with the
provisions of the Medicaid Act was the withholding of
funds by the Secretary of Health and Human Services.
Id. (citing 42 U.S.C. § 1396c). Critically, however,
the Court made clear that “[t]he provision for the
Secretary’s enforcement by withholding funds might not,
by itself, preclude the availability of equitable
relief.”4 Id. (citing Va. Office for Prot. & Advocacy
v. Stewart, 131 S. Ct. 1632, 1639 n.3 (2011) (“The fact
that the Federal Government can exercise oversight of a
federal spending program and even withhold or withdraw
4. This enforcement provision applies to a number of other substantive provisions of the Medicaid Act, many of which have been repeatedly held to be privately enforceable under § 1983. See, e.g., Bontrager v. Ind. Family & Soc. Servs. Admin., 697 F.3d 604, 606-07 (7th Cir. 2012) (§ 1396a(a)(10)); Doe v. Kidd, 501 F.3d 348, 355-57 (4th Cir. 2007) (§ 1396a(a)(8)); S.D. ex rel. Dickson v. Hood, 391 F.3d 581, 602-07 (5th Cir. 2004)(§ 1396a(a)(10)); Sabree ex rel. Sabree v. Richman, 367 F.3d 180, 182-93 (3d Cir. 2004) (§§ 1396a(a)(8), 1396a(a)(10), 1396a(a)(15)); Gean v. Hathaway, 330 F.3d 758, 772-73 (6th Cir. 2003)(§ 1396a(a)(3)).
23

funds ... does not demonstrate that Congress has displayed an intent not to provide the more complete and more immediate relief that would otherwise be available under Ex parte Young[, 209 U.S. 123 (1908)].” (citation and internal quotation marks omitted))). Rather, the Court held, “the express provision of an administrative remedy,” “when combined with the judicially unadministrable nature” of the equal-access provision, demonstrated that private enforcement was precluded. Armstrong, 135 S. Ct. at 1385 (emphasis added).
The equal-access provision at issue in Armstrong and the free-choice-of-provider provision at issue here could hardly be more different with respect to judicial administrability. “It is difficult to imagine a requirement broader and less specific than” the equal-access provision’s “judgment-laden standard.” Id. By contrast, the free-choice-of-provider provision articulates “concrete and objective standards for enforcement.” Planned Parenthood Ariz., 727 F.3d at
24

967 (citation omitted). For example, to adjudicate a claim under the equal-access provision, a court might be required to determine whether a particular procedure was “necessary to safeguard against unnecessary utilization” of covered care--a near-impossible task. 42 U.S.C. § 1396a(a)(30)(A). To decide a claim under the free-choice-of-provider provision, however, does not demand that the court obtain a crash-course in health-systems administration; determining that a provider is “qualified to perform [a] service ... and undertakes to provide [] such service[]” is well within a court’s competence. Id. If, as the defendants contend, States had free rein to define ‘qualified’ in whatever ways they wished, deciding a claim under the free-choice-of-provider provision might indeed be a more difficult, and perhaps ‘judgment-laden’ task. However, the court rejects this expansive reading; “qualified to perform the service or services required” means just what the plain language says: having “competency and professional standing as a medical
25

provider generally.” Planned Parenthood of Ariz., 727 F.3d at 967-69; Planned Parenthood of Ind., 699 F.3d at 978 (“If the states are free to set any qualifications they want--no matter how unrelated to the provider’s fitness to treat Medicaid patients--then the free-choice-of-provider requirement could be easily undermined by simply labeling any exclusionary rule as a ‘qualification.’ This would open a significant loophole for restricting patient choice, contradicting the broad access to medical care that § 1396a(a)(23) is meant to preserve.”).
Doe, as a recipient of Medicaid benefits and a patient of PPSE, has pleaded a viable cause of action. She is entitled to bring an enforcement action under § 1983 to vindicate her right to receive care from any qualified (and willing) provider under the free-choice-of-provider provision.
This conclusion is particularly well-supported by the statute in the context of the family-planning services at issue here. Although the Medicaid Act does
26

permit States to limit a recipient’s free choice of provider in certain ways when she is enrolled in a managed-care plan,5 the statute is clear that the State still “shall not restrict the choice of the qualified person from whom the individual may receive services under section 1396d(a)(4)(C) of this title,” which pertains to “family planning services and supplies.” 42 U.S.C. § 1396a(a)(23)(B). Congress saw fit to identify family planning as the area of medical care with respect to which a recipient’s free choice of provider was most critical. It is not hard to imagine why--just as business owners do, healthcare providers and Medicaid recipients have widely varying “honest conviction[s]” about the appropriateness of different family-planning methods. See Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2779 (2014) (citation omitted). Congress presumably intended to ensure that women who receive Medicaid benefits would be able to
5. Neither party has suggested that Doe is enrolled in such a plan.
27

receive care from a provider whose perspectives on

family planning were aligned with her own.

One final point bears discussing. The Governor and

the

Acting

Commissioner

argue

that

no

free-choice-of-provider claim can be brought, whether

by a provider or a recipient, when the State terminates

an individual provider agreement pursuant to

§ 1396a(p)(1) (the ‘exclusion’ provision). This is,

they emphasize in their brief, because such

terminations are an exception to the requirement that

States must give recipients a free choice of qualified

providers.6 The court understands this argument as

6. For the first time at oral argument, the defendants hinted at a different argument--that in terminating PPSE under the exclusion provision, they have “effectively” rendered it (or recognized it to be) unqualified for purposes of the free-choice-of-provider provision. Tr. Hr’g Mot. Prelim. Inj. 26, doc. no. 44.
However, the defendants cannot have it both ways. If they rely on the exclusion provision as an exception to the free-choice-of-provider provision, they are necessarily conceding that an exception is necessary because the rule applies; that is, because PPSE cannot be terminated as unqualified. Then, the court must determine (as it does, below) whether Doe has a right (continued…)
28

follows: The exclusion provision permits States to
terminate a provider agreement for at least some
reasons other than that the provider is not
‘qualified.’ When a State terminates a qualified
provider for one of these reasons, the argument goes, a
recipient is not entitled to choose to receive covered
care from that provider, despite the fact that it is
qualified. This is true, but of little help to the
defendants’ case. There plainly are some reasons that
a State may terminate a provider agreement under the
exclusion provision other than the provider being
unqualified. (Whether a State may do so based on
reasons wholly unrelated to the purposes of the
to challenge PPSE’s termination under the exclusion provision, and whether the termination was proper under the terms of that provision.
If instead defendants were to contend that they terminated PPSE because it was unqualified, the court would have to consider whether Doe could challenge the termination on those grounds, and whether the State is free to determine, without giving any reason related to the services it provides, that PPSE is unqualified. As the 6th, 7th, and 9th Circuits have held, the answers to these questions are clearly “yes” and “no.”
29

Medicaid Act will be discussed below.) Additionally, providers who have been properly excluded from a State’s Medicaid program under the exclusion provision do fall within an “exception[]” to a recipient’s right to choose any qualified provider. Planned Parenthood Ariz., 727 F.3d at 973. But here, Doe does not argue that the free-choice-of-provider provision entitles her to choose a provider that was rightfully excluded for, say, claim fraud under 42 U.S.C. § 1320a-7a(a) (a ground for exclusion by a State under the exclusion provision), yet is nonetheless fully qualified to provide her care; that grievance would not be actionable under the free-choice-of-provider provision. Rather, Doe alleges that her qualified provider of choice, PPSE, was wrongfully removed from the pool of providers among whom she has a right to choose. Indeed, Doe argues not only that there exists no basis in fact for PPSE’s termination, but also that PPSE was excluded on a basis which, as a matter of law, falls outside the exclusion-provision exception.
30

If a State could defeat a Medicaid recipient’s
right to select a particular qualified healthcare
provider merely by terminating its agreement with that
provider on an unlawful basis, the right would be
totally eviscerated. If the Governor and the Acting
Commissioner were correct that allegedly unlawful
terminations of provider agreements could not be
challenged by recipients pursuant to the
free-choice-of-provider provision, that provision’s
“individual entitlement,” the “personal right” it gives
recipients, would be an empty one.7 Planned Parenthood
7. O’Bannon is not to the contrary. In O’Bannon, the Court held that the free-choice-of-provider provision did not give residents of a nursing home a due-process right to a pre-deprivation hearing when the State, after an audit, determined that their nursing home no longer met specific federal “statutory and regulatory standards for skilled nursing facilities” and terminated its Medicaid provider agreement. 447 U.S. at 775-76, 785. O’Bannon is inapposite here for two reasons. First, as the Seventh Circuit put it, “[t]his is not a due-process case. Planned Parenthood and its patient[] are not suing for violation of their procedural rights; they are making a substantive claim that [the termination of the provider agreement] violates [the free-choice-of-provider provision].” Planned Parenthood of Ind., 699 F.3d at 977. Even more (continued…)
31

of Ind., 699 F.3d at 974; Harris, 442 F.3d at 461
(citation omitted). See also Pls.’ Ex. S, United
States’ Statement of Interest in Planned Parenthood
Gulf Coast, Inc. v. Kliebert 7 n.3, doc. no. 7-1 (“[The
free-choice-of-provider provision] is violated whenever
a beneficiary is denied her right to receive covered
Medicaid services from ‘any’ qualified provider of her
choice willing to provide the services; it does not
matter whether that provider was excluded from the
Medicaid program on an individualized or class-wide
basis.”).
2. At-Will Termination
basically, as discussed in greater detail below, PPSE’s termination letter included no basis for the decision that could even plausibly be construed as relating to its “competency and professional standing as a medical provider generally.” Planned Parenthood Ariz., 727 F.3d at 969. O’Bannon held that a Medicaid recipient has no due-process right to a hearing before his unqualified nursing home’s agreement is terminated; it does not stand for the proposition that any time a State terminates a Medicaid provider agreement, for any reason or for no reason at all, that decision is insulated from substantive review at the behest of recipients.
32

Although the parties in this case have presented significant evidence regarding the motivation for and validity of the Governor’s decision to terminate PPSE’s provider agreement, the court need not delve into it. This is because the termination letter sent by the Governor was clearly based on the at-will termination provision in PPSE’s provider agreement.
The letter sent by the Governor to PPSE did not provide a substantive reason or statutory basis for the termination of its provider agreement. Rather, it simply stated that “[p]ursuant to the Alabama Medicaid Agency Provider Agreement under section IV. Term, Amendment, and Termination, the Agency is exercising its ability to terminate the existing agreement(s) with Planned Parenthood Southeast, Inc. with fifteen (15) days written notice. The termination of the provider agreement(s) with Planned Parenthood Southeast, Inc. will be effective fifteen (15) days after receipt of this letter.” Pls.’ Ex. 1, doc. no. 1-1.
33

Section IV of the provider agreement sets forth two different methods of termination. First, it sets forth an at-will termination provision: “Either party may terminate this Agreement by providing the other party with fifteen (15) days written notice.” Defs.’ Ex. 16, at 24, doc. no. 28-16. Second, it sets forth a forcause termination provision: “MEDICAID may immediately terminate the Agreement for cause if the Provider is excluded from the Medicare or Medicaid programs for any reason, loses its licenses or certificates, becomes ineligible for participation in the Medicaid program, fails to comply with the provisions of this Agreement, or if the Provider is or may be placing the health and safety of recipients at risk.” Id. at 5.
Along with the failure to articulate any specific cause for the termination, the 15-day delay clearly indicates that the Governor and the Acting Commissioner terminated PPSE’s provider agreement not under the for-cause termination provision, but instead under the at-will termination provision. This assessment is
34

corroborated by the fact that the letter sent to PPSE

would have been inadequate to effectuate a for-cause

termination, because it failed to provide the notice required by federal law.8 “In order to exclude a

provider under [the exclusion provision], a state must

give the provider to be excluded notice of the state’s

intent to exclude, 42 C.F.R. § 1002.212 ... .” Planned

Parenthood Ariz., Inc. v. Betlach, 899 F. Supp. 2d 868,

882 (D. Ariz. 2012) (Wake, J.).

Specifically,

§ 1002.212 requires States to give providers whose

agreements are terminated “notification consistent with

subpart E of part 1001 of this chapter,” which in turn

requires that such notice include “the basis of the

exclusion.” 42 C.F.R. § 1001.2002(c). Although the

Governor made public statements via Twitter regarding

8. This failure to provide adequate notice of a for-cause ground for termination illustrates vividly why PPSE’s failure to pursue an administrative appeal has no bearing on the outcome of this case. The purpose of giving a provider notice of the reason for termination of its agreement is obvious: so that it can submit evidence and argument to meaningfully contest the agency’s determination. When no reason has been articulated, an appeal becomes a sham.
35

his decision to terminate PPSE’s provider agreement, ‘tweets’ are plainly not an acceptable form of notice.
Hence, the narrow question before the court is whether the Medicaid Act allows a State to terminate a provider agreement based on no reason other than the existence of a contractual at-will termination provision like the one in PPSE’s. The answer to that narrow question is “no.”
The Governor and the Acting Commissioner argue that Alabama is empowered to terminate Medicaid provider agreements on any basis recognized under state law (including, as relevant in this case, state contract law). This authorization, they suggest, comes from the first clause of the exclusion provision, which states: “In addition to any other authority, a State may exclude any individual or entity for purposes of participating under the State plan under this subchapter for any reason for which the Secretary could exclude the individual or entity from participation in [Medicare under the for-cause bases listed in] section
36

1320a-7, 1320a-7a, or 1395cc(b)(2) of this title.” 42 U.S.C. § 1396a(p)(1) (emphasis added).
However, this clause of the exclusion provision does not give States carte blanche; the defendants “read[] the phrase for more than it’s worth.” Planned Parenthood of Ind., 699 F.3d at 979. It is true that States have the “authority to suspend or to exclude providers from state health care programs for reasons other than those upon which the Secretary of [Health and Human Services] has authority to act.” Guzman v. Shewry, 552 F.3d 941, 949 (9th Cir. 2009). But this authority is not unbounded. As the Seventh and Ninth Circuits have concluded, the exclusion provision is a “standard savings clause [which] ‘signals only that what follows is a non-exclusive list’ and ‘does not imply that the states have an unlimited authority to exclude providers for any reason whatsoever.’” Planned Parenthood Ariz., 727 F.3d at 972 (citing Planned Parenthood of Ind., 699 F.3d at 979). “[T]he Medicaid Act itself must provide that ‘other’ authority, just as
37

it supplies the ‘authority’ covered by the rest of the subsection. Were it otherwise--were states free to exclude providers as they see fit--then the bulk of § 1396a(p)(1) itself would be unnecessary, as the ‘authority’ it supplies would be superfluous.” Planned Parenthood Ariz., 727 F.3d at 972.
The Governor and the Acting Commissioner’s broad reading of the exclusion provision is therefore “not plausible.” Planned Parenthood Ariz., 899 F. Supp. 2d at 882. “If a state could rely on [the exclusion provision] to exclude ... providers for any non-arbitrary reason, then the remainder of the exceptions, which carefully set forth circumstances under which the Secretary and states have authority to exclude providers, would be unnecessary. Such an interpretation undermines the cardinal rule of statutory interpretation that no provision [of a statute] should be construed to be entirely redundant.” Id. at 882-83 (citation and internal quotation marks omitted) (discussing, as an example, 42 U.S.C.
38

§ 1396n(b)(4), which allows the Secretary of Health and

Human Services to waive the free-choice-of-provider

requirement, but only when a State limits choice based

on standards that “are consistent with access, quality,

and efficient and economic provision of covered care

and services”).

The Governor and the Acting Commissioner also cite

the regulation implementing the exclusion provision and

the provision’s legislative history in support of their

claim. 42 C.F.R. § 1002.2 states: “Nothing contained

in this part should be construed to limit a State’s own

authority to exclude an individual or entity from

Medicaid for any reason or period authorized by State

law.” However, a close reading reveals that “[t]hat

provision is only a limitation on interpretation of the

referenced ‘part’ of the regulations--Title 42, Chapter

V, Subchapter B, Part 1002--which does not encompass

the free-choice-of-provider requirement.”

Planned

Parenthood Ariz., 727 F.3d at 972 n.8. Although the

legislative history of the provision includes a note

39

stating that it “is not intended to preclude a State

from establishing, under State law, any other bases for

excluding individuals or entities from its Medicaid

program,” S. Rep. No. 100-109, at 20 (1987), reprinted

in 1987 U.S.C.C.A.N. 682, 700, this note makes clear

only that a State may establish other bases for

exclusion, not what limits exist on a State’s

discretion in doing so. The legislative history itself

suggests those limits, in explaining that the

“overarching purpose of [the exclusion provision] is to

grant authority to exclude a provider based on the

provider’s quality of services ... .”

Planned

Parenthood Ariz., 899 F. Supp. 2d at 882-83 (citing S.

Rep. No. 100-109 (1987), at 1-2, reprinted in 1987

U.S.C.C.A.N. 682, 700).

If a State were free to terminate a provider

agreement for any reason with a basis in state law,

recipients’ free-choice-of-provider rights would be

“greatly weakened,” and “subject to state policies and

politics having nothing to do with the Medicaid

40

program.” Id. An at-will termination clause might (or might not) defeat a provider's right to challenge such a decision on appeal, but it has no effect on a recipient's rights; after all, "Jane Doe[] [is] not [a] part[y] to the agreement[] cited." Planned Parenthood Ark. & E. Okla., slip op. at 25.
Because the enumerated statutory bases for excluding providers cross-referenced in the exclusion provision involve “various forms of malfeasance such as fraud, drug crimes, and failure to disclose necessary information to regulators,” Planned Parenthood of Ind., 699 F.3d at 979, the provision’s ‘any other authority’ clause, when “[r]ead in context, ... reaffirm[s] state authority to exclude individual providers pursuant to analogous state law provisions relating to fraud and misconduct,” but does not give States license to terminate provider agreements “on grounds unrelated to medical competency or legal and ethical propriety.” Planned Parenthood Ariz., 727 F.3d at 972.
41

The state-law ground on which the Governor

terminated PPSE’s provider agreement--the at-will

termination clause--falls well outside the range of

grounds germane to the purposes of the Medicaid Act.

See also Pls.’ Ex. S, United States’ Statement of

Interest in Planned Parenthood Gulf Coast, Inc. v.

Kliebert 2, doc. no. 7-1 (“[States] cannot evade the

statutory mandate of [the ‘free-choice-of-provider’

provision] through the simple expedient of

incorporating ‘at-will’ termination provisions into

their Medicaid provider agreements.

To conclude

otherwise would not only strip the Medicaid Act’s

free-choice-of-provider provision of all meaning, but

also would contravene clear congressional intent to

give Medicaid beneficiaries the right to receive

covered services from any qualified and willing

provider.”).

In sum, Doe is likely to prevail on the merits of

her Medicaid Act claim.

42

3. For-Cause Termination

Had this termination been for cause, it would have

been necessary for the court to consider whether the

reasons of which PPSE would have been given notice were

sufficient to support the termination of its provider

agreement.

Because the Governor and the Acting

Commissioner have retrospectively (and belatedly)

articulated a for-cause ground that they believe would

support such an action, the court turns now, briefly,

to whether, on the record before the court, they would

have been justified in terminating the agreement on

that basis.

In their brief opposing the motion for a

preliminary injunction, the defendants identified the

following ground for excluding PPSE: that it is an

“entity that the [State] determines ... has

furnished ... services to patients ... of a quality

which fails to meet professionally recognized standards

of health care.”

42 U.S.C. § 1320a-7(b)(6)(B).

Specifically, they assert that statements in a video

43

purporting to describe the practices of some PPFA affiliates with respect to fetal-tissue donation run afoul of “safeguards” prescribed by the American Medical Association. See Am. Med. Assoc. Code on Med. Ethics, Op. 2.161 (last updated June 1996) (doc. no. 28-7). According to the defendants, this video gave the Governor reason to be concerned that (1) “decisions regarding the technique used to induce abortion” by practitioners at some PPFA affiliates were being based in part on a desire to obtain intact tissue samples and therefore not exclusively on “concern for the safety of the pregnant woman,” and (2) that “fetal tissue is [being] provided in exchange for financial remuneration above that which is necessary to cover reasonable expenses.” Id.
If there was any indication--allegation, even--that PPSE had itself provided substandard care in these or any other ways, various questions would arise with respect to the applicability of § 1320a-7(b)(6)(B) regarding the quality of care. The court would be
44

compelled to examine a number of issues: the amount of

evidence required to terminate for failure to meet

professionally recognized standards of healthcare, the

type of evidence such a showing would require, whether

abortion procedures had actually been altered in such a

way as to pose any additional risks to women, and

whether providers had actually received remuneration in

excess of reasonable expenses.

However, the court has not assessed the strength of

the ‘evidence’ in the videos because it is beside the

point. PPSE states that it does not engage in

fetal-tissue donation at all. It offers evidence to

this effect, and the defendants do not contest the

point.

Rather, they argue that the practices--

specifically, (alleged) ethical violations--of

separately incorporated organizations in other regions

with which PPSE is affiliated are properly attributed

to PPSE. The court disagrees.

First, when considered together, the exclusion

provision (§ 1396a(p)(1)) and § 1320a-7(b)(6)(B), the

45

for-cause ground cited by the defendants, make clear that the “entity” that “a State may exclude” must be the same “entity that the [State] determines ... has furnished ... services to patients ... of a quality which fails to meet professionally recognized standards of health care.” This is because the exclusion provision authorizes the State to exclude “any ... entity” if the Secretary of Health and Human Services “could exclude the ... entity under ... section 1320a-7 ... .” (emphasis added). It is a basic principle of legislative drafting that the definite article (“the”) is used in place of “such” to mean “the previously mentioned.” See Lawrence E. Filson & Sandra L. Strokoff, The Legislative Drafter’s Desk Reference 228 (2d ed.). It is evident from the termination letter that the ‘entity’ the State has “exclude[d]” is PPSE--the entity with which it entered into, and then terminated, a provider agreement. See § 1396a(p)(3) (defining the term “exclude” to mean “the refusal to enter into or renew a participation agreement or the
46

termination of such an agreement”). Therefore, the termination is authorized by the provision the State cites only to the extent that this entity--PPSE--has furnished substandard care.

Second, when § 1320a-7(b)(6)(B) is read in the

context of other enumerated for-cause termination

grounds, it is apparent that it was intended to apply

to only services furnished by the provider itself, and

not to any services furnished by affiliates. Another

provision does permit the exclusion of an entity based

on affiliation, but only when the affiliated

person--who must have been sanctioned under the

Medicaid Act--has an ownership or control interest in

the entity or is an officer, director, agent, or

managing employee of the entity. 42 U.S.C. § 1320a-

7(b)(8).

Congress’s inclusion of that provision

strongly suggests that § 1320a-7(b)(6)(B) was not

intended to allow for the termination of one entity’s

agreement on the basis of the infractions of another

party in the absence of ownership, control, management,

47

or an agency relationship.9 The defendants do not
claim, and the evidence does not suggest, that PPSE has
such a close connection with any of the affiliates
depicted in the video. See also Planned Parenthood
Ark. & E. Okla., slip op. at 27-28 (rejecting the
"contention that Planned Parenthood Federation of
America and its affiliates function as a unified whole,
and thus, that the acts of one affiliate may be
attributed to all other affiliates").
The Governor and the Acting Commissioner also seek
to place the policies of PPFA at issue, arguing that
because PPSE has “agree[d] to certain standards and
policies which are contained in the by-laws of PPFA[,]”
Planned Parenthood Fed’n of Am., Inc. v. Problem
Pregnancy of Worcester, Inc., 498 N.E.2d 1044, 1048-49
9. Section 1320a-7(b)(8), unlike most of the other permissive for-cause exclusion grounds enumerated in § 1320a-7(b), applies to only those entities controlled by a sanctioned “individual”--not “individual or entity.” However, this strengthens rather than weakens the conclusion that Congress did not intend to allow for exclusion in cases where an entity is controlled in part by a sanctioned entity. Had the drafters of the statute intended to do so, they knew how.
48

(Mass. 1986), PPFA’s involvement in the allegedly

unethical practices of other affiliates is attributable

to PPSE and constitutes cause to exclude it under

§ 1320a-7(b)(6)(B).

This might be a persuasive

argument if the defendants had claimed--much less

demonstrated--that PPFA had adopted and enforced a

policy requiring that all affiliates engage in

fetal-tissue donation, alter abortion procedures to

better preserve intact specimens, and accept

compensation in excess of costs. But they have argued

no such thing. Even construing the defendants’ factual

allegations generously--and setting aside the question

of evidentiary support--they suggest at most that PPFA

has supported the decisions of some affiliates to

engage in these practices. There is no evidence that

PPFA requires affiliates to engage in fetal-tissue

donation at all, much less in unethical donation

practices. What PPFA permits other affiliates to do

49

therefore has no bearing on PPSE, which, to reiterate, has elected not to engage in fetal-tissue donation.10

10. The defendants reference a letter from the president of PPFA to Congress, which they argue “underscores the unity of the organization.” Defs.’ Br. in Opp’n 37, doc. no. 29 (citing Defs.’ Ex. 8, at 3, doc. no. 28-8). But the letter does not help their case; it makes clear that PPFA has “policies and practices that guide the affiliates that offer tissue donation services.” Id. These policies and practices are inapplicable to PPSE, which does not.

Nor does the odd assortment of cases cited in the

defendants’ brief, all of which deal with corporate

relationships not applicable here, aid their cause.

None of these decisions stands for the proposition that

one corporation can be held responsible for the

policies of an umbrella organization regarding a

practice that other affiliated corporations engage in.

In re Phenylpropanolamine (PPC) Prods. Liab. Litig.,

344 F. Supp. 2d 686, 691-92 (W.D. Wash. 2003)

(Rothstein, J.), discusses whether a court can obtain

personal jurisdiction over a parent corporation based

on the subsidiary corporation’s forum contacts.

Moreover, In re Phenylpropanolamine itself states that

the contacts of a subsidiary will not be imputed to the

parent simply because of the parent’s “articulation of

general policies and procedures.” Id. (citing United

States v. Bestfoods, 524 U.S. 51, 72 (1998). Bowoto v.

Chevron Texaco Corp., 312 F. Supp. 2d 1229, 1237 (N.D.

Cal. 2004) (Illston, J.), which concerns piercing of

the corporate veil for tort-liability purposes, is

likewise concerned with attribution of a subsidiary’s

acts to the parent corporation. In the present case,

there is nothing in the record to show that PPSE and

PPFA bear a subsidiary-parent relationship.

See

(continued…)

50

Hence, on the record before the court, Doe would be
likely to succeed on her claim that the Governor and
the Acting Commissioner had no cause to exclude PPSE
from the State’s Medicaid program under § 1320a-
7(b)(6)(B).
B. Irreparable Injury
On her Medicaid Act claim, Doe argues that she
faces irreparable injury without an injunction. She
has made a showing of a substantial threat of
irreparable injury sufficient to satisfy the
preliminary-injunction standard. Because she has made
Bestfoods, 524 U.S. at 61 (explaining that “parent corporation[s] [are] so-called because of control of ownership of another corporation’s stock”). BrowningFerris Indus. of Cal., Inc., No. 32-RC-109684, 2015 WL 5047768, at *1-2 (N.L.R.B. Aug. 27, 2015), is no more on point, in that it involves the statutorily derived and therefore inapplicable “standard for assessing joint-employer status under the National Labor Relations Act.” Finally, the trademark cases cited in the defendants’ brief merely stand for the proposition that affiliates who share a mark with a national organization will generally have consistent policies and standards.
51

such a showing, it is unnecessary to consider any
irreparable harm to PPSE.11
The plaintiffs rely on Doe’s inability to continue
receiving medical care at PPSE, specifically at the
Birmingham clinic, where she goes every three months
for a Depo-Provera shot. Doe states that she “strongly
11. Because Doe has shown virtually certain success on the merits of her Medicaid Act claim, her required showing as to irreparable injury may be lessened. The former Fifth Circuit used a “sliding scale” standard when evaluating whether to issue a temporary restraining order or preliminary injunction. See Siff v. State Democratic Executive Comm., 500 F.2d 1307, 1309 (5th Cir. 1974) (explaining that “a sliding scale must be applied in considering the probability of plaintiffs’ winning on the merits and plaintiffs’ irreparable injury in the absence of interlocutory relief”); see also State of Tex. v. Seatrain Int'l, S.A., 518 F.2d 175, 180 (5th Cir. 1975) (“[N]one of the four prerequisites has a fixed quantitative value. Rather, a sliding scale is utilized, which takes into account the intensity of each in a given calculus.”). The Eleventh Circuit has adopted as precedent all decisions of the former Fifth Circuit rendered prior to October 1, 1981, and all Former Fifth Circuit Unit B and non-unit decisions rendered after October 1, 1981. See Stein v. Reynolds Secur., Inc., 667 F.2d 33, 34 (11th Cir. 1982); Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc). While the Eleventh Circuit has not explicitly referred to this sliding-scale standard, even a more rigid requirement that movants meet a certain threshold as to each prong of the test--does not demand a different result.
52

prefer[s]” receiving care from PPSE, as opposed to from

a private doctor. Pls.’ Ex. 1, Declaration of Jane Doe

2, doc. no. 31-1. She further states that she would

try to locate another provider if she could not obtain

covered care there, but does not know where she would

go. She is due to receive another contraceptive shot

this month.

PPSE represents that, due to the

termination, it is being forced to turn away Medicaid

patients. If Doe attempted to return to PPSE to

receive her shot, she would be turned away.

The Governor and the Acting Commissioner argue that

Doe can entirely mitigate any harm by seeking care

elsewhere. In particular, they point to the existence

of numerous Medicaid providers within five miles of

PPSE’s Birmingham clinic. As the Seventh Circuit

recognized in Planned Parenthood of Indiana, however,

“[t]his argument misses the mark.” 699 F.3d at 981.

In that case, the court affirmed the district court’s

issuance of a preliminary injunction on the plaintiffs’

Medicaid Act claim, reasoning that the fact “[t]hat a

53

range of qualified providers remains available is

beside the point.

[The ‘free-choice-of-provider’

provision] gives Medicaid patients the right to receive

medical assistance from the provider of their choice

without state interference ... .”

Id. at 981.

Although Doe can seek family-planning services

elsewhere, this does not diminish the injury that will

result from her inability to see the provider of her

choice. See Planned Parenthood Ark. & E. Okla., slip

op. at 22 (concluding, in a similar case, that “denial

of ... freedom of choice is more likely than not

exactly the injury Congress sought to avoid when it

enacted [the free-choice-of-provider provision]”).

That Doe will be forced to seek out a replacement

provider within such a short span of time--and may even

face a long wait for an appointment, making it

difficult to adhere to her current Depo-Provera

regimen--makes this harm especially imminent.

Further, there is no adequate remedy at law for

this injury. The Supreme Court has stated that the

54

lack of any legal remedy is a central consideration in

the irreparable-injury analysis.

See Sampson v.

Murray, 415 U.S. 61, 88-89 (1974). Without the

injunction, Doe would be forced to stop seeking

services from a provider with whom she is comfortable,

and she might well not be able to identify another

provider with whom she could forge such a relationship.

Such an injury is clearly not susceptible to monetary

relief. Doe has therefore demonstrated that she faces

a substantial threat of irreparable injury absent the

issuance of an injunction.

C. Other Preliminary-Injunction Considerations The balance of harms and the public interest likewise favor issuance of a preliminary injunction. As discussed above, Doe will face significant harm if an injunction does not issue. The Governor and the Acting Commissioner rely on the videos’ claims that the fetal-tissue donation programs of some PPFA affiliates breach ethical standards to argue that the continued
55

funding of PPSE through taxpayer dollars would itself cause an injury to the State. This argument is not persuasive because the defendants do not dispute the plaintiffs’ assertions--or the evidence in the record--that PPSE does not engage in fetal-tissue donation. The practices purported to be portrayed by the videos, therefore, cannot possibly cause any harm to the State or to Alabama taxpayers.
The defendants also assert that the issuance of an injunction would undermine the respect due the Governor‘s decision to terminate the provider agreement. The defendants offer no legal support for this argument; regardless, such an injury cannot outweigh the injury to Doe discussed above.
Moreover, the issuance of an injunction is in the public interest. In particular, an injunction would reinforce Doe’s right to seek family-planning services from the qualified provider of her choice--a right explicitly and emphatically protected under federal law.
56

In sum, the plaintiffs have satisfied the requirements for the issuance of a preliminary injunction on Doe’s Medicaid Act claim.
IV. SCOPE OF RELIEF Because Doe has satisfied her burden to show that entry of a preliminary injunction is warranted, the court now turns to the appropriate scope of that injunction. Specifically, the court must consider whether to order the State to resume Medicaid payments to PPSE to cover the cost of Doe’s care alone--as defendants contend is appropriate, see Planned Parenthood Ark. & E. Okla., slip op. at 17 (“[I]n the absence of class certification, the preliminary injunction may properly cover only named plaintiffs.” (citation omitted)), or to reinstate the State’s provider agreement with PPSE such that PPSE would be reimbursed for care provided to any Medicaid recipient--as PPSE urges the court to do.
57

Based on the evidence currently in the record and the representations of the parties during an on-the-record telephonic hearing on this issue, the court finds that, at least at present, the reinstatement of the provider agreement is necessary to guarantee meaningful relief to Doe. The Supreme Court has recognized the general principle that injunctive relief should not be “more burdensome to the defendant than necessary to provide complete relief to ... plaintiffs.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979); see also Lion Health Servs., Inc. v. Sebelius, 635 F.3d 693, 703 (5th Cir. 2011) (citing Yamasaki for this rule). Hence, the question is this: would an injunction that does not reinstate the provider agreement afford Doe the meaningful--and urgent--relief she requires. The answer is apparently “no.”
The Acting Commissioner, who is charged with administering the state’s Medicaid plan, has indicated that the Alabama Medicaid Agency has sought but not yet
58

identified a logistical means of allowing PPSE to file for and receive Medicaid reimbursements for Doe’s care while its provider agreement remains, for purposes of all other recipients, nonexistent. See Official Tr. October 14, 2015 Telephone Conference Proceedings 11, doc. no. 57. As of now, then, enabling PPSE to file reimbursement requests for Doe’s care will require the agency to reauthorize PPSE in its reimbursement system with respect to all recipients. Since the defendants have not been able to explain to the court how, as a practical matter, limited relief is feasible, and have stated that it is not immediately feasible, the court is presented with no concrete way in which to tailor the injunction more narrowly while still providing meaningful, immediate relief to Doe.
Moreover, the reinstatement of the provider agreement is no “more burdensome than necessary” to ensure that Doe’s provider of choice, PPSE, is actually reimbursed for her care (and thus that she is actually able to obtain that care). Practically speaking,
59

compliance with an injunction limited to Doe will, the State says, be no less burdensome than compliance with an injunction that covers all recipients. Because “identical relief [is] inevitable to remedy the individual plaintiff’s rights,” Zepeda v. I.N.S., 753 F.2d 719, 729 n.1 (9th Cir. 1983) (opinion of Wallace, J.) (describing the crux of the holding of Bailey v. Patterson, 323 F.2d 201 (5th Cir. 1963)), the court will enter the injunction requested by the plaintiffs, at least until such time as the defendants can assure the court of their ability to reimburse PPSE for Doe’s care without reinstating the provider agreement.12
In so doing, the court notes that, since the hearing on the motion for a preliminary injunction, Doe

12. Aside from the logistical barriers that would

prevent Doe from receiving care under a grant of relief

that did not in practice extend to all recipients, the

plaintiffs have suggested that the State could not

resume Medicaid payments to PPSE only as to Doe without

running afoul of federal Medicaid law, state law, or

both.

Because such a remedy is, as of now,

functionally indistinct from a broader injunction, it

is unnecessary to consider whether limited relief would

be permissible under the applicable legal regimes.

60

has filed a motion to certify a class of Medicaid recipients who wish to receive care from PPSE (doc. no. 54). This motion, if granted, would obviate the question whether relief should be tailored, if it even can be practically, to cover only Doe. See, e.g., Hollon v. Mathis Indep. Sch. Dist., 491 F.2d 92, 93 (5th Cir. 1974) (recognizing that, had a class been certified, injunctive relief restraining enforcement of a regulation as to all individuals, rather than as applied to named plaintiff, would have been appropriate); Soto-Lopez v. N.Y. City Civil Service Comm’n, 840 F.2d 162, 168 (2d Cir. 1988) (explaining that “relief of general application” is appropriate where a plaintiff class has been certified, and considering whether such relief was available absent a class). Because certification of a class would provide an additional basis for injunctive relief which benefits recipients other than Doe, the court will set
61

an expedited briefing schedule on Doe’s motion in a separate order.13
Finally, the parties both agree that the questions answered here--that the termination of PPSE's provider agreement was at-will, and that such at-will terminations are not valid under the Medicaid Act--are essentially pure questions of law to which no additional evidence would be relevant. This is significant for two reasons. First, although the court is presently granting only a motion for a preliminary injunction, there is no possibility that additional evidence will alter its conclusion at the permanent injunction and declaratory relief stage, so the caution that should normally accompany a preliminary injunction that might be vacated once additional evidence is considered is not required here. See Bresgal v. Brock,
13. Additionally, based on the current record, the court is of the belief that the plaintiffs are likely to prevail on their motion for class certification. In making this observation, the court recognizes that it has not heard all of the evidence and, accordingly, does not predict the eventual outcome of the motion.
62

843 F.2d 1163, 1169 (9th Cir. 1987) (recognizing that, at the preliminary injunction stage, the fact that a court had not “ruled on substantive issues in the case, but had only determined that the plaintiff had a ‘fair chance’ of prevailing on the merits” counseled against a grant of broad relief). Relatedly, because the only attribute of Doe relevant to the court's resolution of this claim is one that she shares with all those covered by the injunction--namely, that she is a Medicaid recipient who wishes to receive covered care from PPSE--there is no possibility that additional evidence would reveal that the injunction would be any less appropriately entered with respect to another recipient not presently a party to the case. Cf. SotoLopez, 840 F.2d at 168 (“When a state statute has been ruled unconstitutional, state actors have an obligation to desist from enforcing that statute. Thus, when it has been held unconstitutional to deny benefits to otherwise qualified persons on the ground they are members of a certain group, the officials have the
63

obligation to cease denying benefits not just to the named plaintiffs but also to all other qualified members of the group.” (citation omitted)).
A recent Eleventh Circuit case supports this court’s approach. In Garrido v. Dudek, 731 F.3d 1152 (11th Cir. 2013), the court reviewed a district court’s entry of a permanent injunction striking down a state agency’s rule that a particular form of autism treatment was experimental and therefore not covered under the Medicaid Act. Garrido, 731 F.3d, at 1159. The court vacated and remanded the portion of the district court’s injunction requiring the state to provide a blanket authorization of the treatment for all Medicaid recipients with autism because, as the district court had itself discussed at some length, a determination whether the treatment was indeed medically necessary had to be made for each individual recipient; the court could properly make this determination only with respect to the named plaintiffs before it. Id. at 1159-61. In other words, the
64

appellate court vacated the portion of the injunction that purported to guarantee treatment to others about whom no individualized determination had been made. Here, by contrast, all Medicaid recipient-patients at PPSE are, for the purposes of this narrow legal question, indistinguishable.
The appellate court upheld the portion of the Garrido injunction analogous to the injunction being entered here--the portion that enjoined the State from enforcing the rule that mandated denial of coverage generally. See K.G. ex rel. Garrido v. Dudek, 864 F. Supp. 2d 1314, 1328 (S.D. Fla. 2012) (Lenard, J.) (“Defendant is enjoined from enforcing Florida Behavioral Health Rule 2–1–4 as it relates to autism, Autism Spectrum Disorder, and Applied Behavioral Analysis treatment.”). Though the court held that it was inappropriate to grant relief ordering coverage of treatment in all cases, an injunction against enforcement of a rule that prevented case-by-case determinations--relief that directly benefitted far
65

more recipients than the three named plaintiffs--was nevertheless proper. It is proper here as well.
* * * In summary, Doe is very likely to succeed on her claim that the Governor’s termination of PPSE’s provider agreement violated the Medicaid Act. The reasons for this are simple. The Act requires States to provide a reason for such terminations. Here, as is plain from the Governor’s letter, the State provided none. Finally, even the post-hoc reasons cited by the defendants in briefing before this court are plainly inapplicable to PPSE. On these bases, Doe’s success on the merits of her Medicaid claim is near-certain. An appropriate preliminary injunction will be entered, requiring that, for the benefit of Doe, the State reinstate its Medicaid provider agreement with PPSE. DONE, this the 28th day of October, 2015.
/s/ Myron H. Thompson____ UNITED STATES DISTRICT JUDGE

 
 Case 2:15-cv-00620-MHT-TFM Document 70 Filed 11/30/15 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

PLANNED PARENTHOOD

)

SOUTHEAST, INC.; and

)

JANE DOE,

)

)

Plaintiffs,

)

)

v.

)

)

ROBERT BENTLEY, Governor )

of Alabama, in his

)

official capacity; and

)

STEPHANIE McGEE AZAR,

)

Acting Commissioner,

)

Alabama Medicaid Agency, )

in her official capacity, )

)

Defendants.

)

CIVIL ACTION NO. 2:15cv620-MHT (WO)

ORDER Before the Court is the parties’ Joint Motion to Enter Final Order (doc. no. 69). Upon consideration of the motion, it is ORDERED that the motion (doc. no. 69) is granted as follows: Defendants Robert Bentley and Stephanie McGee Azar, and all those acting in concert with them, are PERMANENTLY ENJOINED from suspending Medicaid payments to Planned Parenthood Southeast, Inc., or terminating

Case 2:15-cv-00620-MHT-TFM Document 70 Filed 11/30/15 Page 2 of 3
their provider agreements based upon any allegation, video or documentation prepared by, or in concert with, the Center for Medical Progress that has been released or made available as of the date of this Order. PROVIDED HOWEVER, that nothing in this Order prohibits the Governor and Commissioner from terminating Planned Parenthood Southeast, Inc.’s Medicaid provider agreements for cause as defined by the Medicaid Act, should such cause arise in the future.
Defendants Robert Bentley and Stephanie McGee Azar, and all those acting in concert with them, are PERMANENTLY ENJOINED from terminating Planned Parenthood Southeast, Inc.’s Medicaid provider agreements on an at-will basis.
Defendants shall pay Plaintiffs’ counsel fifty one thousand, nine dollars and eighty nine cents ($51,009.89) in full satisfaction of any claim for attorneys’ fees, expenses and costs within ninety (90) days of this Order.
2

Case 2:15-cv-00620-MHT-TFM Document 70 Filed 11/30/15 Page 3 of 3
The clerk of the court is DIRECTED to enter this document on the civil docket as a final judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure.
This case is closed. DONE, this the 30th day of November, 2015.
_ /s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE

Case 2:15-cv-00620-MHT-TFM Document 70-1 Filed 11/30/15 Page 1 of 2
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on December 1, 2013, the new fee to file an appeal will increase from $455.00 to $505.00.
CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:
(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C.§ 158, generally are appealable. A final decision is one that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Pitney Bowes, Inc. v. Mestre, 701 F.2d 1 365, 1 368 ( 11th Ci r. 1 983). A magistrate judge’s report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(c).
(b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885- 86 (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys’ fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S.196, 201, 108 S.Ct. 1717, 1721-22, 100 L .Ed.2d 178 (1988); LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).
(c) Appeals pursuant to 28 U.S.C. § 1292(a): Appeals are permitted from orders “granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . .” and from “[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed.” Interlocutory appeals from orders denying temporary restraining orders are not permitted.
(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court’s denial of a motion for certification is not itself appealable.
(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949); Atlantic Fed. Sav. & Loan Ass’n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964). Rev.: 4/04

Case 2:15-cv-00620-MHT-TFM Document 70-1 Filed 11/30/15 Page 2 of 2
2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits:
(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD – no additional days are provided for mailing. Special filing provisions for inmates are discussed below.
(b) Fed.R.App.P. 4(a)(3): “If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later.”
(c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion.
(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension.
(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution’s internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.
3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant.
4. Effect of a notice of appeal: A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).

 
 Case: 2:15-cv-620 As of: 03/26/2017 03:35 PM CDT 1 of 8
CLOSED,MHT−ClerkA,MHT−ClerkD
U.S. District Court Alabama Middle District (Montgomery) CIVIL DOCKET FOR CASE #: 2:15−cv−00620−MHT−TFM

Planned Parenthood Southeast, Inc. v. Bentley et al Assigned to: Honorable Judge Myron H. Thompson Referred to: Honorable Judge Terry F. Moorer Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 08/28/2015 Date Terminated: 11/30/2015 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Planned Parenthood Southeast, Inc.

represented by Brigitte Amiri American Civil Liberties Union Foundation 125 Broad St − 18th Fl New York, NY 10004 212−519−7897 Email: bamiri@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Carrie Y. Flaxman Planned Parenthood Federation of America 1110 Vermont Ave, NW − Ste 300 Washington, DC 20005 202−973−4830 Email: carrie.flaxman@ppfa.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer Dalven American Civil Liberties Union Foundation 125 Broad St − 18th Fl New York, NY 10004 212−549−2641 Email: jdalven@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer R. Sandman Planned Parenthood Federation of America 434 W. 33rd Street New York, NY 10001 212−541−7800 Email: jennifer.sandman@ppfa.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Melissa Cohen Planned Parenthood Federation of America 434 W 33rd St New York, NY 10001 212−261−4649 Email: melissa.cohen@ppfa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Jane Doe

Case: 2:15-cv-620 As of: 03/26/2017 03:35 PM CDT 2 of 8
Randall C Marshall ACLU of Alabama Foundation, Inc. P.O. Box 6179 Montgomery, AL 36106−0179 334−420−1741 Email: rmarshall@aclualabama.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brigitte Amiri (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Carrie Y. Flaxman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer Dalven (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer R. Sandman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa Cohen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall C Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Robert Bentley Governor of Alabama, in his official capacity

represented by David Bryson Byrne , Jr. State of Alabama, Governor's Office 600 Dexter Avenue; Room NB−05 Montgomery, AL 36130 334−242−7120 Fax: 334−242−2335 Email: david.byrne@governor.alabama.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Prim Formby Escalona Maynard Cooper & Gale, P.C. 1901 Sixth Avenue North 2400 Regions Harbert Plaza Birmingham, AL 35203 205−254−1988

Case: 2:15-cv-620 As of: 03/26/2017 03:35 PM CDT 3 of 8

Fax: 205−254−1999 Email: pescalona@maynardcooper.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Cowles Neiman , Jr. Maynard Cooper & Gale PC 1901 6th Avenue North; 2400 Regions Harbert Plaza Birmingham, AL 35203 205−254−1228 Fax: 205−254−1999 Email: jneiman@maynardcooper.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kasdin Miller Mitchell Maynard Cooper & Gale PC 1901 Sixth Ave. North Suite 2400 Birmingham, AL 35203 205−254−1846 Fax: 205−254−1999 Email: KMitchell@maynardcooper.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott Samuel Brown Maynard, Cooper & Gale, P.C. 1901 Sixth Avenue North, Ste 2400 Birmingham, AL 35203−2618 205−254−1232 Fax: 205−714−6452 Email: scottbrown@maynardcooper.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Stephanie McGee Azar Acting Commissioner, Alabama Medicaid Agency, in her official capacity

represented by James William Davis State of Alabama Office of the Attorney General P O Box 300152 Montgomery, AL 36130−0152 334−353−1356 Fax: 334−353−8440 Email: jimdavis@ago.state.al.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Misty Shawn Fairbanks Messick Office of the Attorney General 501 Washington Avenue Montgomery, AL 36130−0152 334−353−8674 Fax: 334−353−8440 Email: mmessick@ago.state.al.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/28/2015

# Docket Text
1 COMPLAINT against Stephanie McGee Azar, Robert Bentley (Filing fee $ 400.00 receipt number 4602038114.), filed by Planned Parenthood Southeast, Inc.. (Attachments: # 1 Exhibit 1, # 2 Receipt)(wcl, ) (Entered: 08/28/2015)

Case: 2:15-cv-620 As of: 03/26/2017 03:35 PM CDT 4 of 8

08/28/2015 08/28/2015 09/01/2015 09/02/2015
09/02/2015 09/02/2015 09/03/2015 09/03/2015 09/03/2015 09/03/2015
09/03/2015 09/03/2015
09/03/2015 09/03/2015 09/03/2015 09/03/2015 09/03/2015 09/03/2015 09/03/2015

2 Corporate/Conflict Disclosure Statement by Planned Parenthood Southeast, Inc.. (wcl, ) (Entered: 08/28/2015)
3 Summons Issued as to Stephanie McGee Azar, Robert Bentley; mailed CMRRR with copy of 1 Complaint. (wcl, ) (Entered: 08/28/2015)
4 Return Receipt Card showing service of Summons and Complaint signed by Terri T. for Robert Bentley served on 8/31/2015, answer due 9/21/2015. (wcl, ) (Entered: 09/01/2015)
5 Motion to Appear Pro Hac Vice for Brigitte Amiri by Planned Parenthood Southeast, Inc.. (Attachments: # 1 Certificate of Good Standing, # 2 Text of Proposed Order)(Marshall, Randall) Modified on 9/2/2015 to clarify the docket text (wcl, ). (Entered: 09/02/2015)
6 Pro Hac Vice Filing fee received re 5 motion: $ 50.00, receipt number 4602038172. (wcl, ) (Entered: 09/02/2015)
7 MOTION for Preliminary Injunction by Planned Parenthood Southeast, Inc.. (Attachments: # 1 Exhibit −− Exhibits with Table of Contents)(Marshall, Randall) (Entered: 09/02/2015)
8 NOTICE of Appearance by John Cowles Neiman, Jr on behalf of Robert Bentley (Neiman, John) (Additional attachment(s) added on 9/3/2015: # 1 Corrected Certificate of Service) (wcl, ). (Entered: 09/03/2015)
9 NOTICE of Appearance by Prim Formby Escalona on behalf of Robert Bentley (Escalona, Prim) (Additional attachment(s) added on 9/3/2015: # 1 Corrected Certificate of Service) (wcl, ). (Entered: 09/03/2015)
Set Hearings: Telephone Conference re how to proceed re 7 M/Preliminary Injunction set for 9/4/2015 01:00 PM by telephone before Honorable Judge Myron H. Thompson. (ag, ) (Entered: 09/03/2015)
10 Motion to Appear Pro Hac Vice for Carrie Y. Flaxman by Planned Parenthood Southeast, Inc.. (Attachments: # 1 Certificate of Good Standing, # 2 Text of Proposed Order)(Marshall, Randall) Modified on 9/3/2015 to clarify the docket text (wcl, ). (Entered: 09/03/2015)
11 NOTICE of Appearance by James William Davis on behalf of Stephanie McGee Azar (Davis, James) (Entered: 09/03/2015)
12 Motion to Appear Pro Hac Vice for Melissa Ann Cohen by Planned Parenthood Southeast, Inc.. (Attachments: # 1 Certificate of Good Standing, # 2 Text of Proposed Order)(Marshall, Randall) Modified on 9/3/2015 to clarify the docket text (wcl, ). (Entered: 09/03/2015)
13 ORDER granting 5 Motion to Appear Pro Hac Vice for Brigitte Amiri. Signed by Honorable Judge Myron H. Thompson on 9/3/2015. (wcl, ) (Entered: 09/03/2015)
14 NOTICE of Appearance by Misty Shawn Fairbanks Messick on behalf of Stephanie McGee Azar (Messick, Misty) (Entered: 09/03/2015)
15 Corporate/Conflict Disclosure Statement by Stephanie McGee Azar. (Messick, Misty) (Entered: 09/03/2015)
16 NOTICE of Appearance by Kasdin Miller Mitchell on behalf of Robert Bentley (Mitchell, Kasdin) (Additional attachment(s) added on 9/3/2015: # 1 Corrected Certificate of Service) (wcl, ). (Entered: 09/03/2015)
17 Pro Hac Vice Filing fee received re 10 & 12 motions: $ 100.00, receipt number 4602038206. (wcl, ) (Entered: 09/03/2015)
18 ORDER granting 10 & 12 Motions to Appear Pro Hac Vice for Carrie Y. Flaxman and Melissa Ann Cohen. Signed by Honorable Judge Myron H. Thompson on 9/3/2015. (wcl, ) (Entered: 09/03/2015)
19 NOTICE of Appearance by David Bryson Byrne, Jr on behalf of Robert Bentley (Byrne, David) (Additional attachment(s) added on 9/4/2015: # 1 Corrected Certificate of Service) (wcl, ). (Entered: 09/03/2015)

Case: 2:15-cv-620 As of: 03/26/2017 03:35 PM CDT 5 of 8

09/03/2015 09/04/2015
09/04/2015
09/09/2015
09/09/2015 09/09/2015 09/15/2015 09/15/2015 09/15/2015
09/15/2015 09/15/2015 09/16/2015
09/16/2015 09/16/2015 09/18/2015 09/18/2015 09/18/2015

20 Corporate/Conflict Disclosure Statement by Robert Bentley. (Neiman, John) (Entered: 09/03/2015)
21 ORDER Setting Hearing on Motion re 7 MOTION for Preliminary Injunction: Evidentiary Hearing set for 9/22/2015, at 10:00 AM in Courtroom 2FMJ, with anyopposition briefs and evidentiary materials due by 9/15/2015, and any reply to the opposition due by 9/18/2015. Signed by Honorable Judge Myron H. Thompson on 9/4/2015. (wcl, ) (Entered: 09/04/2015)
22 Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Telephone Conference held on 9/4/2015 (PDF available for court use only). (Recording Time 1:10 − 1:23.) (ag, ) (Main Document 22 replaced on 9/4/2015) (ag, ). (Entered: 09/04/2015)
23 Motion to Appear Pro Hac Vice for Jennifer Dalven by Planned Parenthood Southeast, Inc.. (Attachments: # 1 Certificate of Good Standing, # 2 Text of Proposed Order)(Marshall, Randall) Modified on 9/9/2015 to clarify the docket text (wcl, ). (Entered: 09/09/2015)
24 Pro Hac Vice Filing fee received re 23 motion: $ 50.00, receipt number 4602038239. (wcl, ) (Entered: 09/09/2015)
25 TEXT ORDER granting 23 Motion to Appear Pro Hac Vice for Jennifer Dalven. Signed by Honorable Judge Myron H. Thompson on 9/9/2015. (No pdf attached to this entry) (wcl, ) (Entered: 09/09/2015)
26 Return Receipt Card showing service of Summons and Complaint signed by Audrey Hopkins for Stephanie McGee Azar served on 9/1/2015, answer due 9/22/2015. (wcl, ) (Entered: 09/15/2015)
27 NOTICE of Filing of Evidentiary Materials by Stephanie McGee Azar, Robert Bentley. (Attachments: # 1 Exhibit Discs 1 & 2 (Not Scanned))(wcl, ) (Entered: 09/15/2015)
28 Evidentiary Submission (Second) filed by Stephanie McGee Azar, Robert Bentley. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19)(Neiman, John) (Entered: 09/15/2015)
29 BRIEF/MEMORANDUM in Opposition re 7 MOTION for Preliminary Injunction filed by Stephanie McGee Azar, Robert Bentley. (Neiman, John) (Entered: 09/15/2015)
***Attorney Scott Samuel Brown for Robert Bentley added pursuant to the 28 Evidentiary Submission. (No pdf attached to this entry) (wcl, ) (Entered: 09/16/2015)
30 AMENDED COMPLAINT against Stephanie McGee Azar, Robert Bentley, filed by Planned Parenthood Southeast, Inc., Jane Doe.(Amiri, Brigitte) (Additional attachment(s) added on 9/16/2015: # 1 Corrected Certificate of Service) (wcl, ). (Entered: 09/16/2015)
31 MOTION for Leave to Proceed Under Pseudonym by Jane Doe. (Attachments: # 1 Exhibit A− Declaration of Jane Doe)(Amiri, Brigitte) (Additional attachment(s) added on 9/16/2015: # 2 Corrected Certificate of Service) (wcl, ). (Entered: 09/16/2015)
32 ORDER Status Conference set for 9/18/2015 10:00 AM by telephone before Honorable Judge Myron H. Thompson. Entered by Honorable Judge Myron H. Thompson on 9/16/2015. (parties will set up the call)(ag, ) (Entered: 09/16/2015)
33 ORAL MOTION to seal Exhibit 2 to Document 28 Evidentiary Submission by Planned Parenthood Southeast, Inc.. (ag, ) (Entered: 09/18/2015)
34 ORAL ORDER granting 33 Motion to Seal. Entered by Honorable Judge Myron H. Thompson on 9/18/2015. (ag, ) (Entered: 09/18/2015)
35 Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Telephone Conference held on 9/18/2015 (PDF available for court use only). (Court

Case: 2:15-cv-620 As of: 03/26/2017 03:35 PM CDT 6 of 8

09/18/2015 09/21/2015 09/21/2015 09/21/2015 09/21/2015 09/21/2015 09/21/2015 09/22/2015 09/28/2015
09/30/2015
10/02/2015 10/05/2015 10/06/2015 10/07/2015

Reporter Patricia Starkie.) (ag, ) (Entered: 09/18/2015)
36 REPLY BRIEF re 7 MOTION for Preliminary Injunction, in Support of Plaintiffs' Motion for Preliminary Injunction filed by Jane Doe, Planned Parenthood Southeast, Inc.. (Attachments: # 1 Exhibit − Exhibits with Table of Contents)(Amiri, Brigitte) Modified on 9/21/2015 to add the link to the 7 motion (wcl, ). (Entered: 09/18/2015)
37 ORDER granting 31 Motion to proceed under pseudonym, as further set out in order. Signed by Honorable Judge Myron H. Thompson on 9/21/2015. (wcl, ) (Entered: 09/21/2015)
38 Motion to Appear Pro Hac Vice for Jennifer R. Sandman by Jane Doe, Planned Parenthood Southeast, Inc.. (Attachments: # 1 Certificate of Good Standing, # 2 Text of Proposed Order)(Marshall, Randall) Modified on 9/21/2015 to clarify the docket text (wcl, ). (Entered: 09/21/2015)
***Attorney Jennifer R. Sandman for Planned Parenthood Southeast, Inc. and Jane Doe added pursuant to the 38 motion. (No pdf attached to this entry) (wcl, ) (Entered: 09/21/2015)
39 TEXT ORDER granting 38 Motion to Appear Pro Hac Vice for Jennifer R. Sandman. Signed by Honorable Judge Myron H. Thompson on 9/21/2015. (No pdf attached to this entry) (wcl, ) (Entered: 09/21/2015)
40 Pro Hac Vice Filing fee received re 38 motion: $ 50.00, receipt number 4602038362. (wcl, ) (Entered: 09/21/2015)
41 NOTICE by Jane Doe, Planned Parenthood Southeast, Inc. of Supplemental Authority (Attachments: # 1 Exhibit A)(Amiri, Brigitte) (Entered: 09/21/2015)
42 Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Motion Hearing held on 9/22/2015 re 7 MOTION for Preliminary Injunction filed by Planned Parenthood Southeast, Inc. (PDF available for court use only). (Court Reporter Patricia Starkie.) (ag, ) (Entered: 09/22/2015)
43 JOINT NOTICE REGARDING ORDER ON MOTION TO PROCEED PSEUDONYMOUSLY (Docket No. 37 ) by Jane Doe, Planned Parenthood Southeast, Inc., Robert Bentley, Stephanie McGee Azar. (Cohen, Melissa) Modified on 9/29/2015 to clarify the docket text and to add as also filed on behalf of the dfts (wcl, ). (Entered: 09/28/2015)
44 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Hearing on Motion for Preliminary Injunction Proceedings (PDF ACCESS RESTRICTED FOR 90 DAYS) held on 9/22/2015, before Judge Myron H. Thompson; Court Reporter/Transcriber Patricia G. Starkie, Telephone number 334−262−1221; Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction; After that date it may be obtained through PACER; NOTICE OF INTENT TO REQUEST REDACTION DUE WITHIN 7 BUSINESS DAYS; Redaction Request due 10/21/2015; Redacted Transcript Deadline set for 11/2/2015; Release of Transcript Restriction set for 12/29/2015. (wcl, ) (Entered: 09/30/2015)
45 MOTION for Extension of Time to File Answer re 30 Amended Complaint ( by Stephanie McGee Azar, Robert Bentley. (Davis, James) (Entered: 10/02/2015)
46 ORDER granting 45 Unopposed Motion for Extension of Time, and dfts shall have until 14 days after issuance of an opinion on the motion for preliminary injunction to file an answer or other response to the amended complaint. Signed by Honorable Judge Myron H. Thompson on 10/5/2015. (wcl, ) (Entered: 10/05/2015)
47 NOTICE by Jane Doe, Planned Parenthood Southeast, Inc. of Supplemental Authority (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Amiri, Brigitte) (Entered: 10/06/2015)
48 RESPONSE in Opposition re 7 MOTION for Preliminary Injunction Response to 47 Notice of Supplemental Authority filed by Stephanie McGee Azar, Robert Bentley. (Neiman, John) (Entered: 10/07/2015)

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10/08/2015 10/09/2015 10/14/2015 10/15/2015 10/15/2015 10/16/2015
10/16/2015 10/16/2015 10/19/2015 10/19/2015
10/20/2015 10/20/2015 10/22/2015 10/23/2015 10/23/2015

49 AFFIDAVIT re 37 Order on Motion for Miscellaneous Relief, 43 Notice (Other), by Jane Doe, Planned Parenthood Southeast, Inc.. (Amiri, Brigitte) (Additional attachment(s) added on 10/8/2015: # 1 Certificate of Service) (wcl, ). (Entered: 10/08/2015)
Set Hearings: Telephone Conference RE: Appropriate Scope and form of relief, set for 10/14/2015 11:00 AM by telephone before Honorable Judge Myron H. Thompson. (war, ) (Entered: 10/09/2015)
50 Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Telephone Conference held on 10/14/2015 (PDF available for court use only). (Recording Time FTR: 11:09 − 11:26.) (war, ) (Entered: 10/14/2015)
51 Response to Order (Plaintiffs' Memorandum Regarding Consolidation) by Jane Doe, Planned Parenthood Southeast, Inc.. (Cohen, Melissa) (Entered: 10/15/2015)
52 BRIEF/MEMORANDUM in Opposition re 7 MOTION for Preliminary Injunction Supplemental Brief filed by Stephanie McGee Azar, Robert Bentley. (Attachments: # 1 Exhibit A)(Neiman, John) (Entered: 10/15/2015)
53 AMENDED COMPLAINT (Second) against All Defendants, filed by Planned Parenthood Southeast, Inc., Jane Doe.(Cohen, Melissa) (Additional attachment(s) added on 10/16/2015: # 1 Exhibit 1) (wcl, ). Modified on 10/16/2015 to attach a correct PDF document of Exhibit 1 which was previously omitted in error (wcl, ). (Entered: 10/16/2015)
54 MOTION to Certify Class by Jane Doe, Planned Parenthood Southeast, Inc.. (Attachments: # 1 Exhibit A, Fox Decl.)(Cohen, Melissa) (Entered: 10/16/2015)
55 NOTICE of Correction re 53 Second Amended Complaint, to attach a correct PDF document of Exhibit 1 which was previously omitted in error. (Attachments: # 1 Correct Attachment PDF Document Exhibit 1 to Docket Entry 53 )(wcl, ) (Entered: 10/16/2015)
56 NOTICE by Jane Doe, Planned Parenthood Southeast, Inc. of Supplemental Authority (Attachments: # 1 Exhibit A)(Amiri, Brigitte) (Entered: 10/19/2015)
57 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Telephone Conference Proceedings (PDF ACCESS RESTRICTED FOR 90 DAYS) held on 10/14/2015, before Judge Myron H. Thompson; Court Reporter/Transcriber Patricia G. Starkie, Telephone number 334−262−1221; Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction; After that date it may be obtained through PACER; NOTICE OF INTENT TO REQUEST REDACTION DUE WITHIN 7 BUSINESS DAYS; Redaction Request due 11/9/2015; Redacted Transcript Deadline set for 11/19/2015; Release of Transcript Restriction set for 1/19/2016. (wcl, ) (Entered: 10/19/2015)
58 BRIEF/MEMORANDUM in Opposition re 7 MOTION for Preliminary Injunction , 56 Notice (Other) and Response to Supplemental Authority from Louisiana filed by Stephanie McGee Azar, Robert Bentley. (Neiman, John) (Entered: 10/20/2015)
59 Objection to re 54 MOTION to Certify Class On Provisional Basis Without Discovery or Briefing filed by Stephanie McGee Azar, Robert Bentley. (Escalona, Prim) (Entered: 10/20/2015)
60 NOTICE by Jane Doe, Planned Parenthood Southeast, Inc. re 54 MOTION to Certify Class (Notice of Supplemental Declaration to Clarify Record) (Attachments: # 1 Exhibit Supplemental Declaration of Staci L. Fox)(Cohen, Melissa) (Entered: 10/22/2015)
61 RESPONSE in Support re 54 MOTION to Certify Class filed by Jane Doe, Planned Parenthood Southeast, Inc.. (Cohen, Melissa) (Entered: 10/23/2015)
62 MOTION for Discovery to Notice Class−Certification−Related Depositions by Stephanie McGee Azar, Robert Bentley. (Attachments: # 1 Exhibit Proposed 30(b)(6) deposition notice, # 2 Exhibit Proposed Staci Fox deposition notice, # 3 Exhibit Proposed Jane Doe deposition notice)(Neiman, John) (Entered: 10/23/2015)

Case: 2:15-cv-620 As of: 03/26/2017 03:35 PM CDT 8 of 8

10/28/2015 10/28/2015
10/29/2015 11/02/2015 11/03/2015 11/17/2015 11/17/2015 11/30/2015 11/30/2015

63 OPINION. Signed by Honorable Judge Myron H. Thompson on 10/28/2015. (wcl, ) (Entered: 10/28/2015)
64 ORDER OF PRELIMINARY INJUNCTION: it is the ORDER of the court as follows: (1) Plfs Planned Parenthood Southeast and Jane Doe's 7 motion for a preliminary injunction is granted as to Doe's Medicaid Act claim; (2) Dfts Robert Bentley and Stephanie McGee Azar, and all those acting in concert with them, are PRELIMINARILY ENJOINED from suspending Medicaid payments to Planned Parenthood Southeast, Inc. and from failing to reinstate their provider agreement with Planned Parenthood Southeast, Inc., until further order of the court. Signed by Honorable Judge Myron H. Thompson on 10/28/2015. (wcl, ) (Entered: 10/28/2015)
Set Hearings: Telephone Conference re 62 M/for Discovery to Notice Class−Certification related Depositons set for 11/2/2015 03:15 PM by telephone before Honorable Judge Myron H. Thompson. (ag, ) (Entered: 10/29/2015)
65 Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Telephone Conference held on 11/2/2015 (PDF available for court use only). (Recording Time 3:22 − 3:27.) (ag, ) (Entered: 11/02/2015)
66 TEXT ORDER: Status Conference set for 11/17/2015 10:00 AM by telephone before Honorable Judge Myron H. Thompson.. Entered by Honorable Judge Myron H. Thompson on 11/3/2015. (ag, ) (Entered: 11/03/2015)
67 Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Status Conference held on 11/17/2015 (PDF available for court use only). (Recording Time 10:01 − 10:06.) (ajr, ) (Entered: 11/17/2015)
68 ORDERED that the parties shall submit settlement documents to the court by 11/30/2015. Signed by Honorable Judge Myron H. Thompson on 11/17/2015. (wcl, ) (Entered: 11/17/2015)
69 Joint MOTION to Enter Final Order by Robert Bentley, Stephanie McGee Azar, Planned Parenthood Southeast, Inc., Jane Doe. (Attachments: # 1 Exhibit A − Proposed Order)(Neiman, John) Modified on 11/30/2015 to add as filed on behalf of all parties (wcl, ). (Entered: 11/30/2015)
70 ORDERED that the 69 Joint Motion to Enter Final Order is granted as follows: Dfts Robert Bentley and Stephanie McGee Azar, and all those acting in concert with them, are PERMANENTLY ENJOINED from suspending Medicaid payments to Planned Parenthood Southeast, Inc., or terminating their provider agreements based upon any allegation, video or documentation prepared by, or in concert with, the Center for Medical Progress that has been released or made available as of the date of this Order. PROVIDED HOWEVER, that nothing in this Order prohibits the Governor and Commissioner from terminating Planned Parenthood Southeast, Inc.'s Medicaid provider agreements for cause as defined by the Medicaid Act, should such cause arise in the future; Dfts Robert Bentley and Stephanie McGee Azar, and all those acting in concert with them, are PERMANENTLY ENJOINED from terminating Planned Parenthood Southeast, Inc.'s Medicaid provider agreements on an at−will basis; Dfts shall pay Plfs' counsel fifty one thousand, nine dollars and eighty nine cents ($51,009.89) in full satisfaction of any claim for attorneys' fees, expenses and costs within ninety (90) days of this Order; DIRECTING the clerk to enter this document on the civil docket as a final judgment pursuant to Rule 58 FRCP; This case is closed. Signed by Honorable Judge Myron H. Thompson on 11/30/2015. (Attachments: # 1 Civil Appeals Checklist) (wcl, ) (Entered: 11/30/2015)