Case 3:15-cv-00565-JWD-SCR Document 1 08/25/15 Page 1 of 16

IN THE U.S. DISTRICT COURT FOR THE MIDDLE DISTRICT OF LOUISIANA

PLANNED PARENTHOOD GULF COAST, INC.; JANE DOE #1; JANE DOE #2; and JANE DOE #3,
Plaintiffs,
v.
KATHY KLIEBERT, Secretary, Louisiana Department of Health and Hospitals,
Defendant.

No. 3:15-cv-00565

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Plaintiffs, by and through their attorneys, bring this Complaint against the above-named Defendant, her employees, agents, delegatees, and successors in office, and in support thereof state the following:
INTRODUCTORY STATEMENT 1. This civil action is brought pursuant to 42 U.S.C. § 1983 to vindicate rights secured by the federal Medicaid statutes, as well as the U.S. Constitution. 2. Plaintiff Planned Parenthood Gulf Coast, Inc. (“PPGC”) provides critically needed family planning and preventive health services to thousands of women and men in underserved Orleans and East Baton Rouge Parishes 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 by Medicaid. Plaintiffs Jane Doe #1, Jane Doe #2, and Jane Doe #3 are such women – patients of PPGC who are enrolled in Medicaid and who

Case 3:15-cv-00565-JWD-SCR Document 1 08/25/15 Page 2 of 16
prefer PPGC to other Medicaid providers. Louisiana Medicaid does not pay for abortions except in extremely narrow circumstances, and PPGC has not to date provided abortions in Louisiana at all.
3. On August 3, 2015, without giving any warning or expressing any previous concerns about PPGC’s participation in the Medicaid program, Defendant Kathy Kliebert, Secretary of the Louisiana Department of Health and Hospitals (“DHH”) notified PPGC that DHH was terminating PPGC’s Medicaid provider agreements, effective 30 days after the date of the notice. While the notice gave no reason for the termination, Governor Jindal referred in a press release that same day to heavily edited and misleading videos that opponents of Planned Parenthood have recently released with regard to Planned Parenthood’s abortion practice in other states, and stated that he terminated the agreements because “Planned Parenthood does not represent the values of the State of Louisiana in regards to respecting human life.” Press Release, Office of La. Governor Bobby Jindal, Governor Jindal Announces the Termination of Medicaid Contract with Planned Parenthood (Aug. 3, 2015), http://gov.louisiana.gov/index.cfm?md=newsroom&tmp=detail&articleID=5061. Notably, nothing in Governor Jindal’s press release relates to the quality of Medicaid services provided by PPGC.
4. Plaintiffs seek declaratory and injunctive relief to protect PPGC’s patients’ access to – and PPGC’s own ability to provide – these critical medical services. Defendant’s actions violate Section 1396a(a)(23) of Title 42 of the United States Code (“Medicaid freedom of choice provision”) because, by barring PPGC from the Medicaid program, it prevents PPGC’s patients, including Plaintiffs Jane Doe #1, Jane Doe #2, and Jane Doe #3, from receiving services from the qualified, willing provider of their choice. Defendant’s actions further impermissibly
- 2 -

Case 3:15-cv-00565-JWD-SCR Document 1 08/25/15 Page 3 of 16
penalize Plaintiffs without adequate justification, in violation of the First and Fourteenth Amendments, and deprive Plaintiff PPGC of property without sufficient due process.
5. Unless enjoined, the termination of PPGC’s Medicaid provider agreements will take effect on September 2, 2015, immediately disqualifying PPGC from providing basic and preventive health care services to over 5200 Louisiana women and men who depend on that care. Defendant’s actions will cause significant and irreparable harm to PPGC and to its Medicaid patients, including Plaintiffs Jane Doe #1, Jane Doe #2, and Jane Doe #3, who will lose their provider of choice, will find their family planning services interrupted, and will be left with few or no alternative providers.
JURISDICTION AND VENUE 6. Subject-matter jurisdiction is conferred on this Court by 28 U.S.C. §§ 1331 and 1343. 7. Plaintiffs’ 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 Court. 8. Venue in this judicial district is proper under 28 U.S.C. § 1391.
THE PARTIES A. Plaintiffs
9. Plaintiff PPGC is a not-for-profit corporation organized under the laws of Texas and licensed to do business in Louisiana. PPGC brings this action on behalf of itself and its Louisiana patients.
10. PPGC (or predecessor organizations) have provided high quality reproductive health care for more than 30 years in Louisiana. PPGC operates two health centers in Louisiana,
- 3 -

Case 3:15-cv-00565-JWD-SCR Document 1 08/25/15 Page 4 of 16
one in New Orleans and one in Baton Rouge, and participates in the Medicaid program, providing medical services to low-income enrollees in both underserved communities. The family planning and other preventive health services provided by PPGC at these and its other health centers include physical exams, contraception and contraceptive counseling, screening for breast cancer, screening and treatment for cervical cancer, testing and treatment for certain sexually transmitted infections (“STIs”), pregnancy testing and counseling, and certain procedures including colposcopy.
11. PPGC does not provide abortions in Louisiana. (An organization affiliated with PPGC, Planned Parenthood Center for Choice, provides abortions only in Texas.)
12. In fiscal year (FY) 2014, PPGC provided more than 15,000 health care visits to over 10,000 women, men and teens in New Orleans and Baton Rouge. Nearly 75% of those visits were for patients enrolled in Medicaid in Baton Rouge, and nearly 40% of the visits in New Orleans were for Medicaid patients. Those numbers have only increased in the last year– over 60% of PPGC’s Louisiana visits are currently for patients enrolled in the Medicaid program.
13. During the FY 2014 visits, PPGC provided over 2100 well women exams, over 1200 pap smears, over 11,000 tests for STIs, and over 4100 long acting reversible contraceptives, implant contraceptives, and injectible contraceptives to its Medicaid patients.
14. PPGC has been an excellent Medicaid provider. Indeed, PPGC was audited by the State Legislative Auditor in 2014, pursuant to a politically motivated request from the legislature, and he concluded that PPGC’s Medicaid billings were appropriate and supported. Letter from Daryl Purpera, La. Legis. Auditor, to Daniel Martiny, La. State Senator, and Frank Hoffman, La. State Representative (Feb. 19, 2014),
- 4 -

Case 3:15-cv-00565-JWD-SCR Document 1 08/25/15 Page 5 of 16
http://app.lla.state.la.us/PublicReports.nsf/5256EC014378E02E86257D57005363A0/$FILE/000 37C6C.pdf..
15. Plaintiff Jane Doe #1, a Louisiana resident and Medicaid patient, obtains her reproductive health care at PPGC’s Baton Rouge health center and desires to continue to do so.
16. Plaintiff Jane Doe #2, a Louisiana resident and Medicaid patient, obtains her reproductive health care at PPGC’s New Orleans health center and desires to continue to do so.
17. Plaintiff Jane Doe #3, a Louisiana resident and Medicaid patient, obtains her reproductive health care at PPGC’s Baton Rouge health center and desires to continue to do so.
18. Plaintiffs Jane Doe #1, Jane Doe #2, and Jane Doe #3 appear pseudonymously because of the private and personal nature of the medical care that they receive at PPGC, and their desire not to have that information become public in order for them to assert their legal rights. B. Defendant
19. Defendant Kathy Kleibert is the Secretary of DHH. DHH is the agency that administers Louisiana’s state Medicaid program and has notified PPGC that it intends to terminate its provider agreement. Defendant Kleibert is sued in her official capacity, as are her employees, agents, and successors in office.
THE MEDICAID PROGRAM A. The Medicaid Statute
20. 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 for eligible needy people. 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
- 5 -

Case 3:15-cv-00565-JWD-SCR Document 1 08/25/15 Page 6 of 16
Human Services (“HHS”) in her administration of Medicaid. See generally 42 U.S.C. § 1396a(a)(1)-(83).
21. 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).
22. Among other requirements, the State plan must provide that: “[A]ny 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).
23. Congress has singled out family planning services for special additional protections to ensure freedom of choice, 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 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).
24. The federal government reimburses the state of Louisiana 90% of expenditures attributable to offering, arranging, and furnishing family planning services and supplies in Medicaid. 42 U.S.C. § 1396b(a)(5). B. Implementation of the Medicaid Act
25. 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 1396a(a)(23) to prohibit states from denying access to a provider for reasons unrelated to the ability of that provider to perform Medicaid-
- 6 -

Case 3:15-cv-00565-JWD-SCR Document 1 08/25/15 Page 7 of 16
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.
26. 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.
27. Consistent with this understanding, CMS 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 a state 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”).
28. 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/PPM169_110601_indiana_letter.html.
29. Moreover, even though CMS is permitted to waive § 1396a(a)(23) in demonstration projects approved under Social Security Act § 1115, CMS repeatedly rejects 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.gov/Medicaid-CHIP-ProgramInformation/By-Topics/Waivers/1115/downloads/pa/pa-healthy-ca.pdf (“No waiver of freedom
- 7 -

Case 3:15-cv-00565-JWD-SCR Document 1 08/25/15 Page 8 of 16
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.gov/Medicaid-CHIP-Program-Information/ByTopics/Waivers/1115/downloads/ia/ia-marketplace-choice-plan-ca.pdf (“No waiver of freedom of choice is authorized for family planning providers.”).
JINDAL ADMINISTRATION’S EFFORTS TO EXCLUDE PPGC 30. On August 3, 2015, without prior notice, Defendant notified PPGC that it was terminating PPGC’s provider agreements, to be effective in 30 days. 31. Therefore, absent an injunction, Defendant will terminate PPGC’s provider agreements on September 2, 2015. 32. Defendant’s letter provided no reason for the termination of the agreement. However, that same day, Governor Jindal referred in a press release to heavily edited and misleading videos that opponents of Planned Parenthood have recently released with regard to Planned Parenthood’s abortion practice in other states. Press Release, Office of Bobby Jindal. The allegations in the misleading videos that Planned Parenthood abortion providers are violating the law regarding the use of fetal tissue in scientific research are false. 33. Governor Jindal further stated that he and DHH “decided to . . . terminate the Planned Parenthood Medicaid provider contract because Planned Parenthood does not represent the values of the State of Louisiana in regards to respecting human life.” Id. 34. On information and belief, the procedures used by Defendant in terminating PPGC’s provider agreements are highly irregular. Defendant has imposed a sanction of exclusion
- 8 -

Case 3:15-cv-00565-JWD-SCR Document 1 08/25/15 Page 9 of 16
from Medicaid on PPGC without a finding of a “violation” by PPGC and without providing PPGC the opportunity for a pre-deprivation hearing as state law requires.
35. Defendant’s action is part and parcel of Governor Jindal’s campaign against abortion and to punish abortion providers, even though the only services PPGC provides in Louisiana are family planning and other preventive health services to women, men and teens who need them.
36. CMS has advised Defendant that her actions to terminate PPGC’s provider agreements likely violate the Medicaid freedom of choice provision.
THE IMPACT OF DEFENDANT’S ACTIONS ON PPGC AND ITS PATIENTS 37. The need for publicly supported family planning services is great in Louisiana,
which regularly ranks among the worst states for reproductive care. In 2010, 60% of pregnancies in Louisiana were unintended. Guttmacher Inst., State Facts About Unintended Pregnancy: Louisiana (2014), https://www.guttmacher.org/statecenter/unintended-pregnancy/pdf/LA.pdf (hereafter “State Facts: Louisiana”). The state ranks fifth 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 4 (2014), http://www.guttmacher.org/pubs/USTPtrends10.pdf. Nearly 80% of Louisiana’s unplanned births are publicly funded, higher than the national average of 68%. State Facts: Louisiana. Moreover, Louisiana has high rates of STIs: the state ranks first in congenital syphilis and gonorrhea, second in chlamydia, and third in primary and secondary syphilis. Ctrs. for Disease Control and Prevention, 2013 Sexually Transmitted Diseases Surveillance, Table 41. Congenital Syphilis - Reported Cases and Rates of Reported Cases in Infants, by State, Ranked by Rates (2013) http://www.cdc.gov/std/stats13/tables/41.htm; Table 13. Gonorrhea - Reported Cases and
- 9 -

Case 3:15-cv-00565-JWD-SCR Document 1 08/25/15 Page 10 of 16
Rates of Reported Cases by State, Ranked by Rates (2013) http://www.cdc.gov/std/stats13/tables/13.htm; Table 2. Chlamydia - Reported Cases and Rates of Reported Cases by State, Ranked by Rates (2013) http://www.cdc.gov/std/stats13/tables/2.htm; Table 26. Primary and Secondary Syphilis - Reported Cases and Rates of Reported Cases by State, Ranked by Rates (2013).
38. As DHH has recognized, “[i]n Louisiana, for 2002, there were an estimated 515,960 women, ages 13 to 44 years, needing contraceptive services and supplies. Of those, 59 percent needed publicly supported services.” DHH, East Baton Rouge Parish Health Profile 30 (2005), http://new.dhh.louisiana.gov/assets/docs/SurveillanceReports/php/PHP2005/PDF/EastBatonRou ge/PHPEastBatonRouge.pdf (hereinafter “DHH, East Baton Rouge Parish Health Profile”). In East Baton Rouge Parish alone, DHH estimated in 2005 that of the 54,980 women needing contraceptive services and supplies, 31,770 (58%) were in need of publicly supported services and supplies. Id.
39. In spite of the great needs, there are simply not enough providers of the critical care PPGC provides. PPGC’s New Orleans health center is in an area that the federal government has classified as “medically underserved” based on four variables: 1) the ratio of primary medical care physicians per 1,000 population, 2) the infant mortality rate, 3) the percentage of the population with incomes below the poverty level, and 4) the percentage of the population age 65 or over. Both of PPGC’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
- 10 -

Case 3:15-cv-00565-JWD-SCR Document 1 08/25/15 Page 11 of 16
areas are practically inaccessible. See U.S. Dep’t of Health and Human Servs., Find Shortage Areas, Health Resources and Services Administration, http://datawarehouse.hrsa.gov/GeoAdvisor/ShortageDesignationAdvisor.aspx (enter each clinic address and click “submit”) (last accessed Aug. 21, 2015); 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 (last accessed Aug. 21, 2015); U.S. Dep’t of Health and Human Servs., Primary Medical Care HPSA Designation Overview, Health Resources and Services Administration, http://bhpr.hrsa.gov/shortage/hpsas/designationcriteria/primarycarehpsaoverview.html (last accessed Aug. 21, 2015).
40. With these significant provider shortages, PPGC plays a key role in providing needed care to Louisiana’s low-income population, treating over 5200 Louisiana Medicaid patients annually. In East Baton Rouge Parish alone, 5460 female contraceptive clients were served by publicly funded health clinics in 2010, the latest year that data is available; Planned Parenthood—by far the largest provider—served over half (3130) of these women. Guttmacher Inst., Contraceptive Needs and Services, 2010 (2013) http://www.guttmacher.org/pubs/win/2010/WIN-2010-Louisiana.pdf.
41. Many of PPGC’s patients come only to PPGC for their health care. As DHH has itself recognized, “[w]ith the high rate of people living without health insurance in Louisiana, a family planning visit may be the only time that a woman ever has a preventive health clinic visit.” DHH, East Baton Rouge Parish Health Profile 28.
42. If Defendant’s actions take effect, many of PPGC’s Medicaid patients in Baton Rouge and New Orleans, who already have few or no alternative options, will find it difficult or
- 11 -

Case 3:15-cv-00565-JWD-SCR Document 1 08/25/15 Page 12 of 16
impossible to access the reproductive health care services they need. Those who are able to find other providers will often have to wait unacceptable periods of time for an appointment. Those who are unable to find an adequate alternative will not receive the medical services they need, which will lead to higher rates of unintended pregnancies, STIs, and undiagnosed cancers.
43. Other Medicaid providers in Baton Rouge and New Orleans are already stretched to the breaking point, even with PPGC providing care. It is virtually impossible to locate a private ob/gyn who will take a Medicaid patient who is not pregnant. At other clinics, it is difficult to schedule appointments, and even if a patient can obtain one, they may be unable to obtain the full range of FDA-approved contraceptives, including IUDs and Depo Provera, which are the most effective forms of birth control. Other clinics are difficult for PPGC’s low-income patients to travel to, or have excessive waits to obtain critical cancer screenings. And, with cuts and closures at local public hospitals and clinics, it is difficult for low-income patients in need of medical care to obtain it.
44. If PPGC is forced to stop providing care in the Medicaid program, a dire situation will become critical. The remaining providers will be simply unable to absorb PPGC’s patients, leaving those patients without access to critical medical services.
45. Even if other providers were available, patients insured through Medicaid choose PPGC based on a number of factors that are generally not available at other providers. With its evidence-based practices and up-to-date technology, PPGC is known as a provider of highquality medical care. Many individuals who receive other health care through community care providers or other Medicaid providers choose to have a separate provider such as PPGC for their reproductive health care because they are concerned about their privacy and because they fear being judged by other providers.
- 12 -

Case 3:15-cv-00565-JWD-SCR Document 1 08/25/15 Page 13 of 16
46. In addition, many low-income patients have unique scheduling constraints because they are juggling inflexible work schedules, childcare obligations, transportation challenges, and lack of childcare resources. To ensure that these patients have access to family planning services, PPGC offers extended hours. In addition, PPGC spaces patient appointments so as to minimize wait times. PPGC has either a full-time Spanish speaker on staff or translator services available to non-English speaking patients at all times.
47. Defendant’s actions will deprive all of PPGC’s Medicaid patients, including Plaintiffs Jane Doe #1, #2, and #3, of access to the high-quality, specialized care that PPGC provides.
48. All three individual Plaintiffs rely on PPGC as the place they can turn to for critical medical care and for prompt, efficient, and compassionate services. If PPGC is eliminated from Medicaid, they will be prevented from receiving services from their provider of choice, will have their health care interrupted, and may encounter difficulties finding alternative care.
49. In FY 2014, PPGC’s reimbursements for providing these critical health services to low-income patients totaled nearly $730,000. Without this revenue, PPGC may be unable to continue to provide services in the same manner, and may be forced to lay off staff members, reduce hours, or close the Baton Rouge health center, as Medicaid reimbursements amount to over 60% of the revenue at that health center. Should PPGC ever be allowed back as a Medicaid provider, it would be very expensive – if not impossible – for PPGC to resume operations as they are today. If PPGC closes its Baton Rouge health center, this will affect not only the Medicaid patients at the health center, but all of the patients who seek reproductive health care at that health center.
- 13 -

Case 3:15-cv-00565-JWD-SCR Document 1 08/25/15 Page 14 of 16
CLAIMS FOR RELIEF CLAIM I – MEDICAID ACT (TITLE XIX OF SOCIAL SECURITY ACT) 50. Plaintiffs hereby incorporate Paragraphs 1 through 49 above. 51. Defendant’s action violates Section 1396a(a)(23) of Title 42 of the United States Code by denying PPGC’s patients, including the Plaintiffs Jane Doe #1, Jane Doe #2, and Jane Doe #3, the right to choose any willing, qualified healthcare provider in the Medicaid program. CLAIM II – FIRST AND FOURTEENTH AMENDMENTS – PENALIZING
CONSTITUTIONALLY PROTECTED ACTIVITY 52. Plaintiffs hereby incorporate Paragraphs 1 through 49 above. 53. Defendant’s action penalizes Plaintiffs for their constitutionally protected association with Planned Parenthood and/or abortion, without adequate justification.
CLAIM III – FOURTEENTH AMENDMENT EQUAL PROTECTION 54. Plaintiffs hereby incorporate Paragraphs 1 through 49 above. 55. Defendant’s action violates Plaintiffs’ rights by singling them out for unfavorable treatment without adequate justification.
CLAIM IV – PROCEDURAL DUE PROCESS 56. Plaintiffs hereby incorporate Paragraphs 1 through 49 above. 57. Defendant’s action to terminate PPGC’s provider agreements without predeprivation notice, eliminating over 60% of the revenue of PPGC’s Baton Rouge health center and threatening the future of that health center, deprives PPGC of property without constitutionally sufficient due process.
- 14 -

Case 3:15-cv-00565-JWD-SCR Document 1 08/25/15 Page 15 of 16
RELIEF REQUESTED
WHEREFORE, Plaintiffs request that this Court:
58. Issue a declaratory judgment that Defendant’s action violates the Medicaid Act;
59. Issue a declaratory judgment that Defendant’s action violates the First and
Fourteenth Amendments;
60. Issue preliminary and permanent injunctive relief, without bond, enjoining
Defendant, her agents, employees, appointees, delegates, or successors from terminating, or
threatening to terminate PPGC’s Medicaid provider agreements;
61. Grant Plaintiffs attorneys’ fees, costs and expenses pursuant to 42 U.S.C. § 1988;
and
62. Grant such further relief as this Court deems just and proper.
Dated: August 25, 2015
/s/ William E. Rittenberg William E. Rittenberg Louisiana State Bar No. 11287 Charles M. (Larry) Samuel Louisiana State Bar No. 11678 RITTENBERG, SAMUEL AND PHILLIPS, LLC 715 Girod St. New Orleans, LA 70130-3505 (504) 524-5555 rittenberg@rittenbergsamuel.com samuel@rittenbergsamuel.com
Carrie Y. Flaxman (pro hac vice pending) PLANNED PARENTHOOD FEDERATION OF AMERICA 1110 Vermont Ave., NW, Suite 300 Washington, DC 20005 (202) 973-4830 carrie.flaxman@ppfa.org
- 15 -

Case 3:15-cv-00565-JWD-SCR Document 1 08/25/15 Page 16 of 16 Melissa Cohen (pro hac vice pending) PLANNED PARENTHOOD FEDERATION OF AMERICA 434 West 33rd Street New York, NY 10001 (212) 261-4649 melissa.cohen@ppfa.org Attorneys for Plaintiffs Planned Parenthood Gulf Coast, Inc., Jane Doe #1, Jane Doe #2, and Jane Doe #3.
- 16 -

 
 Case 3:15-cv-00565-JWD-SCR Document 43 10/07/15 Page 1 of 21

IN THE U.S. DISTRICT COURT FOR THE MIDDLE DISTRICT OF LOUISIANA

PLANNED PARENTHOOD GULF COAST, INC.; JANE DOE #1; JANE DOE #2; and JANE DOE #3, on their own behalf and on behalf of all others similarly situated,
Plaintiffs,
v.
KATHY KLIEBERT, Secretary, Louisiana Department of Health and Hospitals,
Defendant.

No. 3:15-cv-00565-JWD-SCR

FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF—CLASS ACTION
Plaintiffs, by and through their attorneys, bring this First Amended Complaint against the above-named Defendant, her employees, agents, delegatees, and successors in office, and in support thereof state the following:
INTRODUCTORY STATEMENT 1. This civil action is brought pursuant to 42 U.S.C. § 1983 to vindicate rights secured by the federal Medicaid statutes, as well as the U.S. Constitution. 2. Plaintiff Planned Parenthood Gulf Coast, Inc. (“PPGC”) provides critically needed family planning and preventive health services to thousands of women and men in underserved Orleans and East Baton Rouge Parishes 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 by Medicaid. Plaintiffs Jane Doe #1, Jane Doe #2,

Case 3:15-cv-00565-JWD-SCR Document 43 10/07/15 Page 2 of 21
and Jane Doe #3 are such women – patients of PPGC who are enrolled in Medicaid and who prefer PPGC to other Medicaid providers. Louisiana Medicaid does not pay for abortions except in extremely narrow circumstances, and PPGC does not provide abortions in Louisiana.
3. On August 3, 2015, without giving any warning or expressing any previous concerns about PPGC’s participation in the Medicaid program, Defendant Kathy Kliebert, Secretary of the Louisiana Department of Health and Hospitals (“DHH”) notified PPGC that DHH was terminating PPGC’s Medicaid provider agreements, effective 30 days after the date of the notice (“first termination”). While the notice gave no reason for the termination, Governor Jindal referred in a press release that same day to heavily edited and misleading videos that opponents of Planned Parenthood have recently released on YouTube with regard to Planned Parenthood’s abortion practice in other states, and stated that he terminated the agreements because “Planned Parenthood does not represent the values of the State of Louisiana in regards to respecting human life.” Press Release, Office of La. Governor Bobby Jindal, Governor Jindal Announces the Termination of Medicaid Contract with Planned Parenthood (Aug. 3, 2015), http://gov.louisiana.gov/index.cfm?md=newsroom&tmp=detail&articleID=5061. Notably, nothing in Governor Jindal’s press release relates to the quality of Medicaid services provided by PPGC.
4. After this action was commenced and after Plaintiffs’ Motion for Temporary Restraining Order was argued and briefed, Defendant changed tactics and rescinded the first termination, and on September 15, replaced it with a second termination, also effective 30 days after the notice, in which she put forth several alleged grounds for the termination (“second termination”). Each ground is baseless and unsupported as a matter of fact and law, and not one relates to PPGC’s competence to provide services in Louisiana’s Medicaid program.
- 2 -

Case 3:15-cv-00565-JWD-SCR Document 43 10/07/15 Page 3 of 21
5. Plaintiffs seek declaratory and injunctive relief to protect PPGC’s patients’ access to – and PPGC’s own ability to provide – these critical medical services. Defendant’s actions violate Section 1396a(a)(23) of Title 42 of the United States Code (“Medicaid freedom of choice provision”) because, by barring PPGC from the Medicaid program, it prevents PPGC’s patients, including Plaintiffs Jane Doe #1, Jane Doe #2, and Jane Doe #3, from receiving services from the qualified, willing provider of their choice. Defendant’s actions further impermissibly single out Plaintiffs for unfavorable treatment and penalize them for the exercise of constitutional rights without adequate justification, in violation of the First and Fourteenth Amendments.
6. Unless enjoined, the termination of PPGC’s Medicaid provider agreements will take effect on October 17 and 18, immediately disqualifying PPGC from providing basic and preventive health care services to over 5200 Louisiana women and men who depend on PPGC annually for that care. Defendant’s actions will cause significant and irreparable harm to PPGC and to its Medicaid patients, including Plaintiffs Jane Doe #1, Jane Doe #2, and Jane Doe #3, who will lose their provider of choice, will find their family planning services interrupted, and will be left with few or no alternative providers.
JURISDICTION AND VENUE 7. Subject-matter jurisdiction is conferred on this Court by 28 U.S.C. §§ 1331 and 1343. 8. Plaintiffs’ 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 Court. 9. Venue in this judicial district is proper under 28 U.S.C. § 1391.
- 3 -

Case 3:15-cv-00565-JWD-SCR Document 43 10/07/15 Page 4 of 21
THE PARTIES A. Plaintiffs
10. Plaintiff PPGC is a not-for-profit corporation organized under the laws of Texas and licensed to do business in Louisiana. PPGC brings this action on behalf of itself and its Louisiana patients.
11. PPGC (or predecessor organizations) have provided high quality reproductive health care for more than 30 years in Louisiana. PPGC operates two health centers in Louisiana, one in New Orleans and one in Baton Rouge, and participates in the Medicaid program, providing medical services to low-income enrollees in both underserved communities. The family planning and other preventive health services provided by PPGC at these and its other health centers include physical exams, contraception and contraceptive counseling, screening for breast cancer, screening and treatment for cervical cancer, testing and treatment for certain sexually transmitted infections (“STIs”), pregnancy testing and counseling, and certain procedures including colposcopy.
12. PPGC does not provide abortions. (An organization affiliated with PPGC, Planned Parenthood Center for Choice, provides abortions only in Texas.)
13. In fiscal year (FY) 2014, PPGC provided more than 15,000 health care visits to over 10,000 women, men and teens in New Orleans and Baton Rouge, over 5200 of whom have coverage under the Medicaid program. Nearly 75% of those visits in Baton Rouge were for patients enrolled in Medicaid, and nearly 40% of the visits in New Orleans were for Medicaid patients. Those numbers have only increased in the last year–over 60% of PPGC’s Louisiana visits are currently for patients enrolled in the Medicaid program.
- 4 -

Case 3:15-cv-00565-JWD-SCR Document 43 10/07/15 Page 5 of 21
14. During the FY 2014 visits, PPGC provided over 2100 well women exams, over 1200 pap smears, over 11,000 tests for STIs, and over 4100 long acting reversible contraceptives, implant contraceptives, and injectable contraceptives to its Medicaid patients.
15. PPGC has been an excellent Medicaid provider. Prior to DHH’s recent actions, DHH has never expressed any concerns about PPGC’s performance in that program. Indeed, PPGC was audited by the State Legislative Auditor in 2014, pursuant to a politically motivated request from the legislature, and he concluded that PPGC’s Medicaid billings were appropriate and supported. Letter from Daryl Purpera, La. Legis. Auditor, to Daniel Martiny, La. State Senator, and Frank Hoffman, La. State Representative (Feb. 19, 2014), http://app.lla.state.la.us/PublicReports.nsf/5256EC014378E02E86257D57005363A0/$FILE/000 37C6C.pdf..
16. Plaintiff Jane Doe #1, a Louisiana resident and Medicaid patient, obtains her reproductive health care at PPGC’s Baton Rouge health center and desires to continue to do so. She sues on behalf of herself and as a representative of a class of Louisiana Medicaid beneficiaries who obtain, or who seek to obtain, covered health care services at PPGC.
17. Plaintiff Jane Doe #2, a Louisiana resident and Medicaid patient, obtains her reproductive health care at PPGC’s New Orleans health center and desires to continue to do so. She sues on behalf of herself and as a representative of a class of Louisiana Medicaid beneficiaries who obtain, or who seek to obtain, covered health care services at PPGC.
18. Plaintiff Jane Doe #3, a Louisiana resident and Medicaid patient, obtains her reproductive health care at PPGC’s Baton Rouge health center and desires to continue to do so. She sues on behalf of herself and as a representative of a class of Louisiana Medicaid beneficiaries who obtain, or who seek to obtain, covered health care services at PPGC.
- 5 -

Case 3:15-cv-00565-JWD-SCR Document 43 10/07/15 Page 6 of 21
19. Plaintiffs Jane Doe #1, Jane Doe #2, and Jane Doe #3 appear pseudonymously because of the private and personal nature of the medical care that they receive at PPGC, and their desire not to have that information become public in order for them to assert their legal rights. B. Defendant
20. Defendant Kathy Kliebert is the Secretary of DHH. DHH is the agency that administers Louisiana’s state Medicaid program and has notified PPGC that it intends to terminate its provider agreements. Defendant Kliebert is sued in her official capacity, as are her employees, agents, and successors in office.
THE MEDICAID PROGRAM A. The Medicaid Statute
21. 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 for eligible needy people. 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).
22. 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).
23. Among other requirements, the State plan must provide that: “[A]ny 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).
- 6 -

Case 3:15-cv-00565-JWD-SCR Document 43 10/07/15 Page 7 of 21
24. Congress has singled out family planning services for special additional protections to ensure freedom of choice, 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 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).
25. The federal government reimburses the state of Louisiana 90% of expenditures attributable to offering, arranging, and furnishing family planning services and supplies in Medicaid. 42 U.S.C. § 1396b(a)(5). B. Implementation of the Medicaid Act
26. 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 1396a(a)(23) to prohibit states from denying access to a provider for reasons unrelated to the ability of that provider to perform Medicaidcovered services or to properly bill for those services, including reasons such as the scope of the medical services that the provider chooses to offer.
27. 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.
28. Consistent with this understanding, CMS 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 a state plan that would limit providers to “private
- 7 -

Case 3:15-cv-00565-JWD-SCR Document 43 10/07/15 Page 8 of 21
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”).
29. 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/PPM169_110601_indiana_letter.html.
30. Moreover, even though CMS is permitted to waive § 1396a(a)(23) in demonstration projects approved under Social Security Act § 1115, CMS repeatedly rejects 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.gov/Medicaid-CHIP-ProgramInformation/By-Topics/Waivers/1115/downloads/pa/pa-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.gov/Medicaid-CHIP-Program-Information/ByTopics/Waivers/1115/downloads/ia/ia-marketplace-choice-plan-ca.pdf (“No waiver of freedom of choice is authorized for family planning providers.”).
JINDAL ADMINISTRATION’S EFFORTS TO EXCLUDE PPGC 31. On August 3, 2015, without prior notice, Defendant notified PPGC that it was terminating PPGC’s provider agreements, effective in 30 days (“first termination”).
- 8 -

Case 3:15-cv-00565-JWD-SCR Document 43 10/07/15 Page 9 of 21
32. Defendant’s letters provided no reason for the first termination of the agreements. However, that same day, Governor Jindal referred in a press release to heavily edited and misleading videos that opponents of Planned Parenthood have recently released on YouTube with regard to Planned Parenthood’s abortion practice in other states. Press Release, Office of Bobby Jindal.
33. Governor Jindal further stated that he and DHH “decided to . . . terminate the Planned Parenthood Medicaid provider contract because Planned Parenthood does not represent the values of the State of Louisiana in regards to respecting human life.” Id.
34. On September 2, 2015, after the commencement of this action, Defendant through counsel maintained that she had no “reason” for the termination (while admitting that the videos were the “motive” for it). In fact, Defendant conceded that as of that date, there was no question about the competency of PPGC to provide Medicaid services.
35. CMS advised Defendant that her actions to terminate PPGC’s provider agreements likely violate the Medicaid freedom of choice provision, and filed a Statement of Interest in this action reiterating that position.
36. Soon after, however, Defendant rescinded the first termination, and replaced it with a second attempt to terminate PPGC’s provider agreements in letters dated September 15, 2015 (“second termination”).
37. Defendant’s second termination letters seem to rely on three alleged “reasons” for the termination, but each of them is baseless and unsupported in both fact and law:
a) First, Defendant states that it was a “violation” of “Louisiana Administration Code, Title 50,” without identifying a specific section of that title, to settle a federal False Claims Act case, Reynolds v. Planned
- 9 -

Case 3:15-cv-00565-JWD-SCR Document 43 10/07/15 Page 10 of 21
Parenthood Gulf Coast, Inc., No. 9:09-cv-124 (E.D. Tex. 2013) over two years ago. Not only is it not a violation of state law for a Medicaid provider to settle a case with a “Qui-Tam plaintiff,” La. Admin. Code tit. 50, § 4147(A)(12)(c), but PPGC settled that case (which was brought by a former employee) without any admission of wrongdoing and for practical reasons. Defendant’s second termination letter also informs PPGC that it was required to notify DHH of the Reynolds settlement, but nothing in Louisiana law requires that and, moreover, Defendant knew about the settlement as soon as it was filed. b) Second, Defendant states that “[a]lso under consideration . . . are provider audits and federal false claims cases against Planned Parenthood of America (PPFA) affiliates.” Defendant claims that “PPGC and its parent organization PPFA” failed both “to ensure that all their agents and affiliates are in compliance with all federal and state law as well as rules, policies and procedures of the Medicaid program” and “to notify DHH of violations and misconduct by affiliates and providers-in-fact.” Defendant is wrong on many levels:
i. Planned Parenthood Federation of America (“PPFA”) is not PPGC’s parent organization, nor are other Planned Parenthood affiliates elsewhere in the country, which are completely separate corporations, PPGC’s “agents,” “affiliates” or “providers-in-fact.”
- 10 -

Case 3:15-cv-00565-JWD-SCR Document 43 10/07/15 Page 11 of 21
ii. Defendant, moreover, does not identify any laws or regulations relating to the Louisiana Medicaid program (as is required by La. Admin. Code tit. 50, § 4147(A)(1), a provision of law within the Title that Defendant cites), that PPGC (or other Planned Parenthood entities for that matter) have supposedly violated.
iii. The only “provider audit” or “federal false claims case” listed by Defendant is another False Claims Act case against PPGC initiated by a qui tam plaintiff in Texas. Defendant cites misleadingly from the Texas district court’s denial of PPGC’s motion to dismiss to suggest that PPGC has knowingly filed false claims, but PPGC vigorously disputes that contention, and the matter is currently in discovery. DHH, moreover, has never sought any information from PPGC about that case.
c) Finally, Defendant refers to its “review” of two letters (dated July 24 and August 4, 2015) provided by PPGC in response to questions posed by DHH following the release of the misleading YouTube videos. DHH states that: “After said review, DHH believes that PPGC misrepresented its actions therein and had contradictions within the body of the letter and with the statements and admissions made in the . . . videos.” Defendant further states that: “DHH believes PPGC’s responses to inquiries, when
- 11 -

Case 3:15-cv-00565-JWD-SCR Document 43 10/07/15 Page 12 of 21
compared to clear representations in various videos, rises to the level of misrepresentation.”
i. Defendant does not specify the alleged “misrepresentations” or “contradictions” she contends PPGC made in those letters, nor does she contend that the “misrepresentations” relate to the Louisiana Medicaid program, even though that is required by the state law provision cited by Defendant. La. Stat. Ann. § 46:437.14(A)(1).
ii. Moreover, the allegations suggested within the misleading YouTube videos, that Planned Parenthood abortion providers are violating the law regarding the use of fetal tissue in scientific research, are false. Defendant, moreover, did not request additional information from PPGC after receiving the letters, did not seek to conduct any investigation to determine whether her belief was correct, did not give PPGC the opportunity to clarify or correct any alleged misrepresentations, and did not make any additional findings.
38. None of the grounds asserted by Defendant relate at all to PPGC’s competence to provide care in the Louisiana Medicaid program.
39. Defendant’s letters further state that she reserves the right to terminate the provider agreements “immediately and without written notice” based on the “further findings of
- 12 -

Case 3:15-cv-00565-JWD-SCR Document 43 10/07/15 Page 13 of 21
the pending investigations by any department of Louisiana, any other State or state agency, or the pending investigations in the congressional committees.”
40. On information and belief, the procedures used by Defendant in terminating PPGC’s provider agreements are highly irregular and have not been applied to any other Medicaid provider. Defendant first tried to terminate PPGC without any reason at all and without providing PPGC the opportunity for a pre-deprivation hearing as state law requires. Defendant thereafter invented baseless allegations of “cause” and threatened PPGC with further terminations in her continued efforts to remove PPGC from Medicaid. The effort amounts to nothing more than a witch-hunt against an entity that DHH has never previously suggested provides anything other than excellent Medicaid care.
41. Defendant’s action is part and parcel of Governor Jindal’s campaign against abortion and to punish abortion providers, even though the only services PPGC provides in Louisiana are family planning and other preventive health services to women, men and teens who need them.
42. Absent an injunction from the Court, Defendant will terminate one of PPGC’s provider agreements on October 17 and the remaining three on October 18, 2015.
THE IMPACT OF DEFENDANT’S ACTIONS ON PPGC AND ITS PATIENTS 43. The need for publicly supported family planning services is great in Louisiana,
which regularly ranks among the worst states for reproductive care. In 2010, 60% of pregnancies in Louisiana were unintended. Guttmacher Inst., State Facts About Unintended Pregnancy: Louisiana (2014), https://www.guttmacher.org/statecenter/unintended-pregnancy/pdf/LA.pdf (hereafter “State Facts: Louisiana”). The state ranks fifth highest among 50 states in teen pregnancy rates. Kathryn Kost & Stanley Henshaw, Guttmacher Inst., U.S. Teenage Pregnancies,
- 13 -

Case 3:15-cv-00565-JWD-SCR Document 43 10/07/15 Page 14 of 21
Births and Abortions, 2010: National and State Trends by Age, Race and Ethnicity 4 (2014), http://www.guttmacher.org/pubs/USTPtrends10.pdf. Nearly 80% of Louisiana’s unplanned births are publicly funded, higher than the national average of 68%. State Facts: Louisiana. Moreover, Louisiana has high rates of STIs: the state ranks first in congenital syphilis and gonorrhea, second in chlamydia, and third in primary and secondary syphilis. Ctrs. for Disease Control and Prevention, 2013 Sexually Transmitted Diseases Surveillance, Table 41. Congenital Syphilis - Reported Cases and Rates of Reported Cases in Infants, by State, Ranked by Rates (2013) http://www.cdc.gov/std/stats13/tables/41.htm; Table 13. Gonorrhea - Reported Cases and Rates of Reported Cases by State, Ranked by Rates (2013) http://www.cdc.gov/std/stats13/tables/13.htm; Table 2. Chlamydia - Reported Cases and Rates of Reported Cases by State, Ranked by Rates (2013) http://www.cdc.gov/std/stats13/tables/2.htm; Table 26. Primary and Secondary Syphilis - Reported Cases and Rates of Reported Cases by State, Ranked by Rates (2013).
44. As DHH has recognized, “[i]n Louisiana, for 2002, there were an estimated 515,960 women, ages 13 to 44 years, needing contraceptive services and supplies. Of those, 59 percent needed publicly supported services.” DHH, East Baton Rouge Parish Health Profile 30 (2005), http://new.dhh.louisiana.gov/assets/docs/SurveillanceReports/php/PHP2005/PDF/EastBatonRou ge/PHPEastBatonRouge.pdf (hereinafter “DHH, East Baton Rouge Parish Health Profile”). In East Baton Rouge Parish alone, DHH estimated in 2005 that of the 54,980 women needing contraceptive services and supplies, 31,770 (58%) were in need of publicly supported services and supplies. Id.
- 14 -

Case 3:15-cv-00565-JWD-SCR Document 43 10/07/15 Page 15 of 21
45. In spite of the great needs, there are simply not enough providers of the critical care PPGC provides. PPGC’s New Orleans health center is in an area that the federal government has classified as “medically underserved” based on four variables: 1) the ratio of primary medical care physicians per 1,000 population, 2) the infant mortality rate, 3) the percentage of the population with incomes below the poverty level, and 4) the percentage of the population age 65 or over. Both of PPGC’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 Areas, Health Resources and Services Administration, http://datawarehouse.hrsa.gov/GeoAdvisor/ShortageDesignationAdvisor.aspx (enter each clinic address and click “submit”) (last accessed Aug. 21, 2015); 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 (last accessed Aug. 21, 2015); U.S. Dep’t of Health and Human Servs., Primary Medical Care HPSA Designation Overview, Health Resources and Services Administration, http://bhpr.hrsa.gov/shortage/hpsas/designationcriteria/primarycarehpsaoverview.html (last accessed Aug. 21, 2015).
46. With these significant provider shortages, PPGC plays a key role in providing needed care to Louisiana’s low-income population, treating over 5200 Louisiana Medicaid patients annually. In East Baton Rouge Parish alone, 5460 female contraceptive clients were served by publicly funded health clinics in 2010, the latest year that data is available; Planned
- 15 -

Case 3:15-cv-00565-JWD-SCR Document 43 10/07/15 Page 16 of 21
Parenthood—by far the largest provider—served over half (3130) of these women. Guttmacher Inst., Contraceptive Needs and Services, 2010 (2013) http://www.guttmacher.org/pubs/win/2010/WIN-2010-Louisiana.pdf.
47. Many of PPGC’s patients come only to PPGC for their health care. As DHH has itself recognized, “[w]ith the high rate of people living without health insurance in Louisiana, a family planning visit may be the only time that a woman ever has a preventive health clinic visit.” DHH, East Baton Rouge Parish Health Profile 28.
48. If Defendant’s actions take effect, many of PPGC’s Medicaid patients in Baton Rouge and New Orleans, who already have few or no alternative options, will find it difficult or impossible to access the reproductive health care services they need. Those who are able to find other providers will often have to wait unacceptable periods of time for an appointment. Those who are unable to find an adequate alternative will not receive the medical services they need, which will lead to higher rates of unintended pregnancies, STIs, and undiagnosed cancers.
49. Other Medicaid providers in Baton Rouge and New Orleans are already stretched to the breaking point, even with PPGC providing care. It is virtually impossible to locate a private ob/gyn who will take a Medicaid patient who is not pregnant. At community health clinics, it is often difficult for low-income patients to connect with a scheduler to make an appointment. Even if a patient can obtain an appointment, she may be unable to obtain (either at all, or without significant delays) the services she seeks, such as long acting reversible contraceptives (“LARCs”), which are the most effective forms of birth control, or lifesaving cancer screening procedures, such as colposcopies. Some other clinics abide by the Catholic health directives and do not provide birth control at all. Indeed, other Medicaid providers sometimes refer their patients to PPGC’s health center for those services. Other clinics are
- 16 -

Case 3:15-cv-00565-JWD-SCR Document 43 10/07/15 Page 17 of 21
difficult for PPGC’s low-income patients to travel to. And, with cuts and closures at local public hospitals and clinics, it is difficult for low-income patients in need of medical care to obtain it.
50. If PPGC is forced to stop providing care in the Medicaid program, a dire situation will become critical. The remaining providers will be simply unable to absorb PPGC’s patients, leaving those patients without access to critical medical services.
51. Even if other providers were available, patients insured through Medicaid choose PPGC based on a number of factors that are generally not available at other providers. With its evidence-based practices and up-to-date technology, PPGC is known as a provider of highquality medical care. Many individuals who receive other health care through community care providers or other Medicaid providers choose to have a separate provider such as PPGC for their reproductive health care because they are concerned about their privacy and because they fear being judged by other providers.
52. In addition, many low-income patients have unique scheduling constraints because they are juggling inflexible work schedules, childcare obligations, transportation challenges, and lack of childcare resources. To ensure that these patients have access to family planning services, PPGC offers extended hours. In addition, PPGC spaces patient appointments so as to minimize wait times. PPGC also offers the birth control shot, the birth control implant and IUDs same-day, so that patients only need to make one trip to a PPGC health center to obtain their contraceptive method of choice. PPGC has either a full-time Spanish speaker on staff or translator services available to non-English speaking patients at all times.
53. Defendant’s actions will deprive all of PPGC’s Medicaid patients, including Plaintiffs Jane Doe #1, #2, and #3, of access to the high-quality, specialized care that PPGC provides.
- 17 -

Case 3:15-cv-00565-JWD-SCR Document 43 10/07/15 Page 18 of 21
54. All three individual Plaintiffs rely on PPGC as the place they can turn to for critical medical care and for prompt, efficient, and compassionate services. If PPGC is eliminated from Medicaid, they will be prevented from receiving services from their provider of choice, will have their health care interrupted, and may encounter difficulties finding alternative care.
55. In FY 2014, PPGC’s reimbursements for providing these critical health services to low-income patients totaled nearly $690,000. Without this revenue, PPGC may be unable to continue to provide services in the same manner, and may be forced to lay off staff members, reduce hours, or close the Baton Rouge health center, as Medicaid reimbursements amount to over 60% of the revenue at that health center. If PPGC closes its Baton Rouge health center, it would be very expensive – if not impossible – for PPGC to resume operations as they are today should PPGC ever be allowed back as a Medicaid provider. Further, if PPGC closes its Baton Rouge health center, this will affect not only the Medicaid patients at the health center, but all of the patients who seek reproductive health care at that health center.
CLASS ALLEGATIONS 56. This lawsuit is properly maintained as a class action under Federal Rules of Civil Procedure 23(b)(1)(B) and (b)(2). 57. The class consists of all Louisiana Medicaid beneficiaries who obtain, or who seek to obtain, covered health care services at PPGC. 58. Although the size of the class is unknowable, as alleged in paragraph 13 above, PPGC provided covered health care services to over 5200 Medicaid patients in FY 2014. Therefore the approximate size of the class is over 5200 individuals.
- 18 -

Case 3:15-cv-00565-JWD-SCR Document 43 10/07/15 Page 19 of 21
59. Plaintiffs Jane Doe #1, Jane Doe #2, and Jane Doe #3 are adequate class representatives because they, like other members of the class, are Louisiana residents and Medicaid patients who obtain their reproductive health care at PPGC health centers and desire to continue to do so. Unless Defendant is enjoined, class representatives and class members will suffer the same injury and resulting harm: they will be unable to obtain health care services at the provider of their choice, PPGC. As a result, many of PPGC’s Medicaid patients, including Plaintiffs Jane Doe #1, Jane Doe #2, and Jane Doe #3 and other class members, who already have few or no alternative options, will find it difficult or impossible to access the reproductive and other health care services they need.
60. Defendant’s action – terminating PPGC from the Medicaid program – applies generally to the class, such that both declaratory and injunctive relief is appropriate for all members of the class.
61. Class members raise the same questions of law, including whether Defendant’s termination of PPH Medicaid provider agreements violates the Medicaid freedom-of-choice provision, 42 U.S.C. § 1396a(a)(23), such that, as a practical matter, adjudication of their claims would be dispositive of the interests of the other class members.
CLAIMS FOR RELIEF CLAIM I – MEDICAID ACT (TITLE XIX OF SOCIAL SECURITY ACT) 62. Plaintiffs hereby incorporate Paragraphs 1 through 61 above. 63. Defendant’s action violates Section 1396a(a)(23) of Title 42 of the United States Code by denying PPGC’s patients, including the Plaintiffs Jane Doe #1, Jane Doe #2, and Jane Doe #3, the right to choose any willing, qualified healthcare provider in the Medicaid program.
- 19 -

Case 3:15-cv-00565-JWD-SCR Document 43 10/07/15 Page 20 of 21
CLAIM II – FOURTEENTH AMENDMENT EQUAL PROTECTION 64. Plaintiffs hereby incorporate Paragraphs 1 through 61 above. 65. Defendant’s action violates Plaintiffs’ rights by singling them out for unfavorable treatment without adequate justification. CLAIM III – FIRST AND FOURTEENTH AMENDMENTS – PENALIZING
CONSTITUTIONALLY PROTECTED ACTIVITY 66. Plaintiffs hereby incorporate Paragraphs 1 through 61 above. 67. Defendant’s action penalizes Plaintiffs for their constitutionally protected association with Planned Parenthood and/or abortion, without adequate justification.
RELIEF REQUESTED WHEREFORE, Plaintiffs request that this Court:
68. Order that this action be maintained as a class action pursuant to Federal Rule of Civil Procedure 23(b)(1)(B) and/or 23(b)(2);
69. Issue a declaratory judgment that Defendant’s action violates the Medicaid Act; 70. Issue a declaratory judgment that Defendant’s action violates the First and Fourteenth Amendments; 71. Issue temporary, preliminary and permanent injunctive relief, without bond, enjoining Defendant, her agents, employees, appointees, delegates, or successors from terminating, or threatening to terminate PPGC’s Medicaid provider agreements; 72. Grant Plaintiffs attorneys’ fees, costs and expenses pursuant to 42 U.S.C. § 1988; and 73. Grant such further relief as this Court deems just and proper.
- 20 -

Case 3:15-cv-00565-JWD-SCR Document 43 10/07/15 Page 21 of 21

Dated: October 7, 2015

/s/ William E. Rittenberg William E. Rittenberg Louisiana State Bar No. 11287 RITTENBERG, SAMUEL AND PHILLIPS, LLC 715 Girod St. New Orleans, LA 70130-3505 (504) 524-5555 rittenberg@rittenbergsamuel.com
Carrie Y. Flaxman (pro hac vice granted) PLANNED PARENTHOOD FEDERATION OF AMERICA 1110 Vermont Ave., NW, Suite 300 Washington, DC 20005 (202) 973-4830 carrie.flaxman@ppfa.org
Melissa Cohen (pro hac vice granted) PLANNED PARENTHOOD FEDERATION OF AMERICA 434 West 33rd Street New York, NY 10001 (212) 261-4649 melissa.cohen@ppfa.org
Attorneys for Plaintiffs Planned Parenthood Gulf Coast, Inc., Jane Doe #1, Jane Doe #2, and Jane Doe #3

- 21 -

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

PLANNED PARENTHOOD GULF COAST, INC.; JANE DOE #1; JANE DOE #2; and JANE DOE #3,
Plaintiffs,
v.

Case No. 3:15-cv-00565-JWD-SCR

KATHY KLIEBERT, Secretary, Louisiana Department of Health and Hospitals,
Defendant.
ORDER ON PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
I. INTRODUCTION Before the Court is the Renewed Motion for Temporary Restraining Order and
Preliminary Injunction filed by Planned Parenthood Gulf Coast, Inc. (“PPGC” or “Planned Parenthood”), appearing on behalf of both itself and three patients—Jane Does #1, 2, and 3

1 of 59

(“Individual Plaintiffs”)1 (collectively, “Plaintiffs”). (Doc. 45.) The arguments made in support
of this motion appear in the Memorandum of Law in Support of Plaintiffs’ Renewed Motion for
Temporary Restraining Order and Preliminary Injunction (“Plaintiffs’ Renewed Memorandum”),
(Doc. 46), and Memorandum Regarding Availability of State Remedy (“Plaintiffs’ Remedy
Memorandum”), (Doc. 52). Plaintiffs’ request is opposed by Louisiana’s Department of Health
and Hospitals (“DHH”), whose head, Secretary Kathy Kliebert, is being sued in her official
capacity and is therefore this matter’s named defendant (“Kliebert” or “Defendant”).2
Defendant’s arguments are put forth in the Motion to Dismiss Complaint for Lack of Subject
Matter Jurisdiction and Failure to State a Claim (“Motion to Dismiss”), (Doc. 53), supported by
the attached Memorandum in Support of Motion to Dismiss Complaint for Lack of Subject
Matter Jurisdiction and Failure to State a Claim (“Defendant’s Memorandum”), (Doc. 53-1).
Although no evidentiary hearing has yet been held, the matter has been thoroughly briefed and
argued. The Court has carefully considered the pleadings and briefings to date, which are
discussed in more detail below.3 The Court has also carefully considered the oral arguments and
1 The Individual Plaintiffs “appear pseudonymously because of the private and personal nature of the medical care that they receive at PPGC, and their desire not to have that information become public in order for them to assert their legal rights.” (Doc. 1 at 5.) Plaintiffs’ unopposed motion seeking permission to use these pseudonyms was filed on August 25, 2015, (Doc. 5), and granted on August 26, 2015, (Doc. 11). 2 As permitted by precedent, Ex parte Young, 209 U.S. 123, 152, 28 S. Ct. 441, 451, 52 L. Ed. 714 (1908); accord Guillemard-Ginorio v. Contreras-Gomez, 585 F.3d 508, 530 n.24 (1st Cir. 2009), Plaintiffs sue for injunctive relief against Ms. Kliebert in her official capacity, (Doc. 1 at 5). To wit, the true defendant here is Louisiana, not Ms. Kliebert or even DHH. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989). In light of this duality, this Court will therefore alternate between feminine and third person pronouns throughout this opinion. 3 These motions include the first Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction (“Motion for TRO”), (Doc. 4); first Memorandum of Law in Support of Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction (“Plaintiffs’ Memorandum”), (Doc. 4-1); Defendant’s Opposition to Plaintiffs’ Motion for Temporary
2 of 59

representations of counsel at hearings held on September 2, 2015 (“First Hearing”), and on October 16, 2015 (“Second Hearing”).
For the reasons more fully set forth below, the Court determines that Plaintiffs have met their burden for a temporary restraining order to maintain the status quo. The Court therefore temporarily restrains Defendant for a period of fourteen (14) days from the date of the entry of this order from suspending Medicaid payments to PPGC for services rendered to Medicaid beneficiaries, including but not limited to the Individual Plaintiffs. The temporary restraining order will remain in force for fourteen (14) days from the date of its entry unless, pursuant to Federal Rule of Civil Procedure 65(b)(2),4 the Court, for good cause shown or with the agreement of the Parties, extends it. For the reasons set forth hereinafter, the Court declines to require security under Rule 65(c) from PPGC or the Individual Plaintiffs.
The Court defers ruling on the Plaintiffs motion for a preliminary injunction in order that the parties be given an opportunity to perform discovery and present evidence and any additional arguments at a preliminary injunction hearing.
A telephone status conference is set for Monday, October 19, 2015, at 2:30 p.m., Central Standard Time (“CST”), for the purpose of discussing the extension of this order during discovery, setting a scheduling order for discovery, a hearing date for the preliminary injunction, and setting other appropriate cut-offs. The Plaintiffs will arrange for the conference call and circulate the number to the Court and counsel by 1:00 p.m., CST, on October 19, 2015.
Restraining Order (“Defendant’s Opposition”), (Doc. 13); Plaintiffs’ Reply Memorandum of Law in Support of Plaintiffs’ Motion for Temporary Restraining Order (“Plaintiffs’ Reply Memorandum”), (Doc. 22); the Statement of Interest of the United States (“Statement of Interest”), (Doc. 24),; and Defendant’s Reply to the U.S. Department of Justice’s Statement of Interest (“Defendant’s Reply”), (Doc. 31). 4 Any and all references to “Rule” or “Rules” in this order are to the Federal Rules of Civil Procedure unless otherwise noted.
3 of 59

II. FACTUAL AND STATUTORY BACKGROUND
A. PARTIES
Defendant is sued in her official capacity, as she is the head of DHH, (Doc. 1 ¶ 19 at 4;
Doc. 53-1 at 3, 4). DHH administers this state’s Medicaid Program, a dual state-federal
assistance program for families and individuals with low income and limited resources encoded in 42 U.S.C. 1396 et seq. (“Medicaid Act”).5 (See also, e.g., Doc. 1 ¶ 20 at 5; Doc. 13-1 ¶¶ 1–4 at
1–2; Doc. 43 ¶ 11 at 4; Doc. 53-1 at 1–4.) DHH does so by monitoring the allocation of federal-
state funds in Louisiana and submitting a state plan for medical assistance for review and
approval to the Center for Medicare and Medicaid Services (“CMS”), operating under a
delegation of authority from the Secretary for the Department of Health and Human Services (“DHHS”). LA. R.S. §§ 46:437:2(B), 46:437.13;6 42 U.S.C. § 1396a(a).7 In accordance with the
Louisiana Medical Assistance Programs Integrity Law (“MAPIL”), Medicaid providers must
sign a contract with DHH. LA. R.S. §§ 46:437:11, 46:437.13. (See also Doc. 13-1 ¶¶ 1–4 at 1–2.)
DHH’s powers are circumscribed by statute while its official regulations appear in Title 50 of the
5 Created by the addition of Title XIX to the Social Security Act, Social Security Amendments of 1965, Pub. L. No. 89-97, 79 Stat. 286 (codified as amended at 42 U.S.C. § 1396 et seq.), Medicaid “furnishes . . . medical assistance on behalf of families with dependent children and of aged, blind, or disabled individuals, whose income and resources are insufficient to meet the costs of necessary medical services,” 42 U.S.C. § 1396-1. Medicaid offers the “States a bargain: Congress provides federal funds in exchange for the States’ agreement to spend them in accordance with congressionally imposed conditions” and the statute’s implementing regulations. Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1382, 191 L. Ed. 2d 471 (2015); 42 U.S.C. § 1396a; 42 C.F.R. § 430.15. 6 In this opinion, any reference to “Section 46:437.11” or “§ 46:437.11” is to this statutory subsection unless otherwise noted. 7 In this opinion, any reference to “Section 1396a(a)” or “§ 1396a(a)” is to this section of the Medicaid Act unless otherwise noted.
4 of 59

Louisiana Administrative Code.8 (Doc. 53-1 at 2–4; see also Doc. 13-1 ¶ 3 at 1.) PPGC is a charitable organization, so classified under section 501(c)(3) of the Internal
Revenue Code, 26 U.S.C. § 501(c)(1). (Doc. 43 ¶ 10 at 4.) Headquartered in Houston, Texas, it maintains its legal domicile in the Lone Star State, U.S. DEP’T OF THE TREASURY, INTERNAL REVENUE SERV., FORM 990 at 1 (2012), but is licensed to do business in Louisiana, (Doc. 43 ¶ 10 at 4; see also Doc. 1 ¶ 9 at 3.) At present, PPGC operates family planning centers and clinics in the Houston area of Texas and in Louisiana. (Doc. 43 ¶¶ 10–11 at 4; see also Doc. 1 ¶ 10 at 3–4.) Its first center founded in 1984, PPGC’s two Louisiana clinics—the Baton Rouge Health Center (“BRHC”) and the New Orleans Health Center (“NOHC”)—participate in Louisiana’s Medicaid Program, “providing medical services to low-income enrollees in both underserved communities.” (Doc. 1 ¶ 10 at 3–4; Doc. 43 ¶ 11 at 4.)
The two facilities in Louisiana serve approximately 5200 patients. (See, e.g., Doc. 43 ¶ 13 at 4; Doc. 1 ¶ 40 at 11; Hr’g Tr. 8:23–24, Sept. 2, 2015.) “Nearly 75%” of the visits to BRHC were by patients enrolled in Medicaid; “[n]early 40%” of appointments at NOHC were with similarly classified individuals. (Doc. 3 ¶¶ 9–10 at 3–4; Doc. 43 ¶ 11 at 4.) The services offered by these two centers include “physical exams, contraception and contraceptive counseling, screening for breast cancer, screening and treatment for cervical cancer, testing and treating for certain sexually transmitted diseases . . ., pregnancy testing and counseling, and certain procedures[,] including colposcopy.” (Doc. 3 ¶ 10 at 3–4; Doc. 43 ¶ 11 at 4.)
Neither BRHC nor NOHC performs abortions. (Doc. 1 ¶ 11 at 4; Doc. 43 ¶ 12 at 4.) The Individual Plaintiffs rely upon Medicaid and receive their medical care from one of PPGC’s two facilities. (Doc. 4-3, 4-4, 4-5.) They wish to continue to obtain their reproductive
8 In this opinion, any reference to “Title 50” is to this part of Louisiana’s administrative code. 5 of 59

care from PPGC. (Doc. 4-3 ¶¶ 6–7 at 2; Doc. 4-4 ¶ 8 at 2; Doc. 4-5 ¶ 6 at 2.) In this proceeding, they are intended to represent the interests of many of PPGC’s other Louisiana Medicaid patients. (See, e.g., Doc. 49-1 at 10; Doc. 46 at 29–30.)
B. PRECIPITATING EVENTS In July 2015, the Center for Medical Progress (“CMP”) released a series of edited videos
which purported to document discussions regarding the acquisition of tissue samples between various Planned Parenthood affiliates’ officials and disguised actors. See Kevin Litten, Bobby Jindal Announces Investigation into Planned Parenthood, THE TIMES-PICAYUNE, July 14, 2015; Planned Parenthood Exposed: Examining the Horrific Abortion Practices at the Nation’s Largest Abortion Provider: Hearing Before the H. Comm on Judiciary, 114th Cong. 192–201 (2015) (Analysis of CMP Video by Fusion GPS). Thereafter, DHH exercised its “oversight over all health facilities in the state” and requested that PPGC “answer some simple questions about . . . [its] current operations and planned operations in Louisiana.” Letter from Kathy Kliebert, Sec’y, Dep’t of Health & Hosps., State of Louisiana, to Melaney Linton, Pres., Planned Parenthood Gulf Coast, Inc. (July 15, 2015) (“Defendant’s July Letter”). DHH gave PPGC until July 24, 2015, to respond. Id.
On July 24, 2015, PPGC did so. Letter from Melaney A. Linton, Pres. & CEO, Planned Parenthood Gulf Coast, Inc., to Kathy Kliebert, Sec’y, Dep’t of Health & Hosps., State of Louisiana (July 24, 2015) (“PPGC’s July Letter”). This letter recaps PPGC’s history in Louisiana and denies the accusations made by CMP. Id. at 1. In it, Ms. Melaney A. Linton, PPGC’s President and Chief Executive Officer and this letter’s author (“Ms. Linton”), clarifies that PPGC “does not offer abortion services” in Louisiana. Id. at 2. PPGC acknowledged its link to Planned
6 of 59

Parenthood Center for Choice, Inc. (“PPCFC”), a “standalone corporation” and a department of PPGC until 2005, and described itself as an “affiliate” of Planned Parenthood Federation of America (“PPFA”). Id. PPGC then responded to each of Defendant’s questions, emphasizing that neither PPGC nor PPCFC provide abortion services in Louisiana. Id. at 2, 3, 5. To the questions of whether any PPGC “facilities, or any affiliates, subsidiaries, or associates thereof, sell or donate any unborn baby organs or body parts”9 and “[h]ow many clinics operated by Planned Parenthood Gulf Coast, or any affiliates, subsidiaries, or associates thereof, do business with . . . any . . . organizations in the business of selling or donating the remains of unborn babies,” PPGC answered, “No.” Id. at 3.
On August 4, 2015, Defendant sent a second letter to PPGC. Letter from Kathy Kliebert, Sec’y, Dep’t of Health & Hosps., State of Louisiana, to Melaney Linton, Pres., Planned Parenthood Gulf Coast, Inc. (Aug. 4, 2015) (“Defendant’s August Letter”). This missive zeroes in on three statements in PPGC’s July Letter: “PPFCFC does not have a fetal tissue donation program in Texas currently”; “PPCFC disposes of Pathological Waste through an entity that is licensed for disposal of Special Waste from Health Care-Related Facilities”; and “No” to the question of whether “any Planned Parenthood Gulf Coast facilities, or any affiliates, subsidiaries, or associates thereof, sell or donate any unborn baby organs or body parts.” Id. Defendant characterized these answers as being “directly contradict[ed]” by another “recently released video made on April 9, 2015 at the Planned Parenthood facility in Houston, Texas, in which Melissa Farrell, Director of Research at Planned Parenthood Gulf Coast (PPGC), discusses existing contracts for fetal tissue donation for the purpose of research.” Id.
9 Texas law apparently allows for the donation of the “products of spontaneous or induced human abortions, regardless of the period of gestation” to certain types of organizations and for particular purposes. 25 TEX. ADMIN. CODE §§ 1.132(40)(B), 1.133(a)(2)(B). In PPGC’s July Letter, it admitted that PPCFC disposes of such products in accordance with this law.
7 of 59

On August 14, 2015, PPGC responded. Letter from Melaney A. Linton, Pres. & CEO, Planned Parenthood Gulf Coast, Inc., to Kathy Kliebert, Sec’y, Dep’t of Health & Hosps., State of Louisiana (Aug. 14, 2015) (“PPGC’s August Letter”). (Doc. 46-1 at 63–64.) On behalf of both PPGC and PPCFC, Ms. Linton denied the existence of any contradiction, as “neither PPCFC nor PPGC currently has a fetal tissue donation program in Texas, and neither sells nor donates fetal tissue.” Id. The letter then answers each question posed in Defendant’s August Letter. Id. at 64– 65.
C. OVERVIEW OF THE FIRST AND SECOND TERMINATION ACTIONS 1. First Termination Letters, Kennedy Declarations, and CMS’ Statement of Interest
On August 3, 2015, Defendant notified PPGC of its intent to terminate the Agreements pursuant to § 46:137.11(D)(1) via four letters (“First Termination Letters”). (Doc. 1 ¶ 30 at 8; Doc. 13 at 1.) As this statute required, DHH gave PPGC 30-days’ notice from the relevant letters’ receipt. (Doc. 13 at 1–2.) The letters gave no reason for DHH’s decision. (Doc. 1 ¶ 32 at 8; see also Doc. 13 at 18, 20; Hr’g Tr. 14:6–8, Sept. 2, 2015.) In response, Plaintiffs filed their first complaint. (Doc. 1.)
On that day, the Honorable Bobby Jindal, governor of Louisiana (“Jindal” or “Governor”), published a press release announcing the Agreements’ looming terminations. Press Release, Hon. Bobby Jindal, Governor of Louisiana, Governor Jindal Announces the Termination of Medicaid Contract with Planned Parenthood (Aug. 3, 2015). This document states: “Governor Jindal and DHH decided to give the required 30-day notice to terminate the Planned Parenthood Medicaid provider contract because Planned Parenthood does not represent the values of the State of Louisiana in regards to respecting human life.” Id. It continues:
8 of 59

“Planned Parenthood does not represent the values of the people of Louisiana and shows a fundamental disrespect for human life,” and, “It has become clear that this is not an organization that is worthy of receiving public assistance from the state.” Id. It refers to the possibility that PPGC “could be acting in violation of Louisiana law that states no person or group contracting with the state or receiving governmental assistance shall require or recommend that any women have an abortion.” Id. It concludes: “Pending the ongoing investigation, DHH reserves the right to amend the cancellation notice and terminate the provider agreement immediately should cause be determined.” Id.
During the First Termination Action, among the many documents docketed by the Parties, Defendant submitted a declaration by Ms. J. Ruth Kennedy (“Ms. Kennedy”), the Medicaid Director of DHH (“First Kennedy Declaration”), (Doc. 13-2 ¶¶ 1–5 at 1). (Doc. 13 at 21–22.) The First Kennedy Declaration’s sixth paragraph states: “There are no Medicaid services that only family planning clinics provide that could not be provided by other enrolled Medicaid providers in the State of Louisiana, including in New Orleans and Baton Rouge.” (Id. ¶ 6 at 2.) Its seventh further explains: “Any physician/physician extender and appropriately certified lab can provide family planning and related services as long as it is within their license and scope.” (Id. ¶ 7, at 2.) Per the next paragraph, “[t]here are 1,146 actively enrolled Medicaid providers in Region 1, covering the Greater New Orleans area, and 864 actively enrolled Medicaid providers in Region 2, covering the Greater Baton Rouge area, that can provide family planning and related services.” (Id. ¶ 8 at 2; see also Doc. 13 at 21.) A sorted provider list is attached; it includes dermatologists, dentists, audiologists, cosmetic surgeons, and orthopedic surgeons. (Doc. 13-2 at 5–41; see also Hr’g Tr. 23:18–25:2, Sept. 2, 2015.)
This First Kennedy Declaration also describes two telephonic conferences between CMS
9 of 59

and DHH officials. According to Ms. Kennedy, on August 6, 2015, CMS advised DHH that the
latter “has the authority to withhold federal Medicaid dollars from Louisiana or seek injunctive
relief for the failure to comply with the Medicaid Act.” (Doc. 13-2 ¶ 10 at 2.) CMS and DHH
held a second conference call on August 21, 2015, in which CMS “advised” DHH “it would be
sending a letter . . . confirming what CMS and HHS counsel had verbally conveyed to the Department during the August 6, 2015 conference call.” (Id. ¶ 11 at 2.) 10
On August 31, 2015, CMS filed a Statement of Interest. (Doc. 24.) CMS did so due to
“its strong interests in the proper operation of the Medicaid program . . . and in ensuring that the
[s]tates administer their federally-subsidized Medicaid programs in a manner that is consistent
with the Medicaid statute.” (Id. at 2.) Basically, the Statement of Interest makes three broad
points.
First, because DHH has sought to terminate the Agreements “without providing any
justification related to PPGC’s qualifications to provide medical services,” DHH’s proposed
termination will run afoul of § 1396a(a)(23).” (Id.; see also Doc. 22 at 2, 5, 6.) To read Section
1396a(a)(23) differently would both “strip the Medicaid Act’s free choice of provider provision
of all meaning.” (Doc. 24 at 3.) It would simultaneously “contravene clear congressional intent
to give Medicaid beneficiaries the right to receive covered services from any qualified and
willing provider.” (Id.)
Second, the Statement of Interest declares that DHH’s interpretation is “inconsistent”
10 A second declaration submitted by Ms. Kennedy (“Second Kennedy Declaration”) gives a somewhat different description of this call with CMS: “On the August 6, 2015, conference call . . . CMS and HHS told the Department that the any willing provider provisions under § 1396a(a)(23) was not all inclusive, but illustrative and that the Department could have other reasons to remove a provider from its program that were unrelated to the provider’s ability to perform the Medicaid-covered services or properly bill for those services.” (Doc. 31-1 ¶ 6 at 2.) The Second Kennedy Declaration continues: “CMS and HHS advised the Department that the validity of a state’s reasons for terminating a provider are made on a case by case basis.” (Id.)
10 of 59

with “the overwhelming weight of authority” and with CMS’ own “considered and longstanding views.” (Id. at 3, 4, 19–22.) It describes DHH’s interpretation of Section 1396a(a)(23) as “not even a plausible reading of the statute,” “certainly not compelled by the text of the provision,” and likely to “undermine[] the provision’s purpose.” (Id. at 20–21.) Meanwhile, DHHS “has repeatedly and consistently interpreted the qualified language in § 1396a(a)(23) to prohibit a State from denying 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.” (Id. at 3–4.)
Finally, the Statement of Interest affirms CMS’ view that “Medicaid beneficiaries” like the Individual Plaintiffs “may enforce their statutory rights under § 1396a(a)(23) to their choice of a qualified provider through a private action under 42 U.S.C. § 1983” even after Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1382, 191 L. Ed. 2d 471 (2015) (“Armstrong”). (Id. at 2; see also Doc. 22 at 2–5.)
2. First Hearing On September 2, 2015, the First Hearing was held. (Doc. 30.) During its course, the Parties’ positions on Section 1396a(a)(23) were clarified.
Plaintiffs’ counsel explained: “We’re here because the termination violates the Jane Doe Plaintiffs’ . . . right to free choice of provider under Section 1396a(a)(23) of the Medicaid Act.” (Hr’g Tr. 4:10–12, Sept. 2, 2015.) Because PPGC is “competent to provide services,” it argued that it was “qualified” within this subsection’s meaning. (Hr’g Tr. 5:20–23.) The claim before the Court in the Motion for TRO was the Individual Plaintiffs’ claims under this provision of the “federal Medicaid act,” Plaintiffs’ counsel emphasized. (Hr’g Tr. 10:17–19, Sept. 2, 2015.) In Plaintiffs’’ view, whether or not PPGC held some administrative right was irrelevant, as the
11 of 59

Individual Plaintiffs always lacked such prerogatives. (Hr’g Tr. 10:15–19, Sept. 2, 2015.) On the Individual Plaintiffs’ behalves, PPGC contested Defendant’s claim that Section 1396a(a)(23) creates no private cause of action. (Hr’g Tr. 3:13–19, 6:23–7:4, Sept. 2, 2015.) Specifically, it argued that it “clearly fulfills the standard set forth by the Supreme Court in Blessing [v. Freestone, 520 U.S. 329, 117 S. Ct. 1353, 137 L. Ed. 2d 569 (1997) (“Blessing”),] and then in the Gonzaga [University v. Doe, 536 U.S. 273, 153 L. Ed. 2d 309, 122 S. Ct. 2268 (2002) (“Gonzaga”),] . . . cases.”11 (Hr’g Tr. 3:13–19, Sept. 2, 2015.) In other words, this subsection uses “rights creating language that unambiguously confers a right on Medicaid patients” and is not “so vague and so amorphous that . . . [it would] strain judicial competence to enforce.” (Hr’g Tr. 6:6–19, Sept. 2, 2015.) Plaintiffs sought to distinguish the more recent Armstrong from the body of law spawned by these cases by maintaining that it not only dealt with “a completely different section of the Medicaid Act,” one “without the same kind of rights creating language,” but also lacked any Section 1983 claim. (Hr’g Tr. 6:24–7:4, 7:8–9, 7:1, Sept. 2, 2015.)
Defendant’s counsel countered that Section 1396a(a)(30) was substantially identical to Section 1396a(a)(23). These two subsections have “the exact same rights creating type of language”; both “say what the state plan should provide.” (Hr’g Tr. 16:17–22, Sept. 2, 2015.) He thus urged the Court to adopt the reasoning of the plurality in Armstrong. (Hr’g Tr. 14:10–15:8, 16:4–10, 16:13–14, 19:21–24, 22:24, 23:13 14, Sept. 2, 2015.) Defendant’s counsel also insisted that Section 1396a(a)(23)’s “qualified” requirement was “a very vague standard.” (Hr’g Tr. 18:1–2, Sept. 2, 2015.) Having proposed a number of denotations, (Doc. 13 at 8), Defendant’s counsel based this conclusion on his “conversations with CMS and the supposed “unreasonabl[eness]” of CMS’ contrary interpretation, (Hr’g Tr. 16:24–17:10, Sept. 2, 2015).
11 The relevant test is discussed later in this opinion. See infra Part V. 12 of 59

Because “qualified” is inherently vague and ambiguous, Section 1396a(a)(23) cannot meet the Blessing test’s requirement that a right not be “so vague and amorphous as to be beyond the competence of the judiciary to enforce.”12 (See id.; see also Doc. 13 at 4, 8.)
PPGC’s competence to provide the Medicaid services was also discussed. In response to this Court’s question regarding whether DHH had yet “raised any suggestion or made any suggestion that the reason for terminating the contract has anything to do with competency or the adequacy of the care that is given” by PPGC “to patients who get their care at those facilities,” Plaintiffs’ counsel answered, “No.” (Hr’g Tr. 3:19–24, Sept. 2, 2015.) When this Court posed the same question to Defendant’s counsel—“There is no question . . . about the competency of these two facilities to provide Medicaid services and adequate care for the patients that they serve?”— Defendant’s counsel answered, “At this time, I would agree with that.” (Hr’g Tr. 11:12–16, Sept. 2, 2015.) Additionally, Defendant’s counsel admitted that DHH’s definition of “qualified” was “circular”: PPGC was no longer a “qualified” provider because DHH had made it so by terminating their contract, a mechanism never before utilized in quite this manner. (Hr’g Tr. 21:10–13, 22–25, Sept. 2, 2015.) He also acknowledged that the “current motive” or “the motive leading up to it” (the Agreements’ terminations) was CMP’s video tapes. (Hr’g Tr. 12:8–16, Sept. 2, 2015.)
The Parties finally contested the capacity of this state’s other Medicaid providers to absorb PPGC’s patients. PPGC characterized the list included with the First Kennedy Declaration as containing “numerous examples of[,] on their face[,] providers that would not provide the care that Planned Parenthood provides, including dentists, radiologists, nursing homes, [and other] places that are not going to do breast cancer screening or give out birth
12 It is unclear whether Defendant was also articulating a Chevron deference argument on her own behalf or simply citing to Blessing. Her statements can be read in both ways.
13 of 59

control.” (Hr’g Tr. 8:18–22, Sept. 2, 2015.) PPGC maintained “that there’s no way that . . . other alternative providers have the capacity to absorb our patients.” (Hr’g Tr. 9:2–4, Sept. 2, 2015.)
Defendant’s counsel admitted that the Individual Plaintiffs would suffer “disruption of some kind,” newly forced, “to get other doctors” and “seek out other places to get their health care.” (Hr’g Tr. 13:6–12, Sept. 2, 2105.) Defendant’s counsel also explained the origins of the list of providers referenced in the Defendant’s Opposition and the First Kennedy Declaration. (Hr’g Tr. 22:21–24:15, Sept. 2, 2015.) It reflected “typical billed” codes, and was the result of “a code run” of providers that “can provide family planning services because they have billed for them” by Defendant. (Hr’g Tr. 25:1–6, Sept. 2, 2015.)
3. Third Kennedy Declaration After the First Hearing, Defendant sought permission to amend its opposition and
substitute new papers “pursuant to . . . [its] duty to provide accurate information to the Court.” (Doc. 32 at 1.) Included in Defendant’s proposed amendments was a third declaration by Kennedy (“Third Kennedy Declaration”). This Third Kennedy Declaration corrects the list of providers included with the First Kennedy Declaration, explaining: “I[, Ms. Kennedy,] ordered a comprehensive review of this exhibit and have since discovered that nursing facilities and dentists should not have been included.” (Doc. 34-2 ¶ 8a at 2; see also Doc. 34 at 2.) It adds: “The other provider types included in Exhibit 1 are appropriate due to what they are allowed to do under the scope of their license.” (Doc. 34-2 ¶ 8a at 2; see also Doc. 34 at 2.) It gives two other examples: “Anesthesiologists can be reimbursed for their role in sterilization procedures and radiologists can be reimbursed for reading ultrasounds, etc. related to reproductive/women’s health issues.” (Id.)
14 of 59

This same “further review of the information in [the First Kennedy Declaration] also revealed a more precise description of Medicaid providers in the New Orleans and Baton Rouge areas other than PPGC who are available to patients seeking family planning and related services.” (Doc. 34 at 2.) Defendant’s staff had “gather[ed] information from available Medicaid providers in proximity to the two Planned Parenthood locations in New Orleans and Baton Rouge, Louisiana.” (Doc. 34-2 ¶ 8b at 2.) As a result of this additional inquiry, Ms. Kennedy had decided to cull the list of relevant providers from over one-thousand (1,000) to less than fifty (50), (Compare Doc. 13-2 ¶ 8 at 2, with Doc 34-2 at 5–6).
4. Abandonment of First Termination Action and Commencement of the Second Termination Action On September 9, 2015, Defendant chose to “rescind” the Agreements’ at-will
termination.” (Doc. 38 at 2.) On September 14, 2015, Defendant sent four rescission letters, one for each Agreement, to PPGC. (Doc. 38 at 4, 6, 8, 10.) On September 15, 2015, Defendant followed these rescission letters with four new termination letters (“Second Termination Letters”). (Doc. 39 at 1.) While the First Termination Letters had invoked Section 46:437.11(D)(1), (Doc. 38 at 4, 6, 8, 10), the Second termination Letters rely on Section 46:437.11(D)(2), (Doc. 39-1 at 2, 5, 8, 11). This subsection of MAPIL allows for “for cause” termination of a provider agreement. LA. R.S. §§ 46:437:11(D)(2).
The Second Termination Letters specify several different grounds. The first is a settlement in Reynolds v. Planned Parenthood Gulf Coast, Inc. (“Reynolds Settlement”), Case Number 9:09-cv-124-RC, a lawsuit pursuant to the False Claims Act (“FCA”) in the Eastern District of Texas between PPGC and an FCA plaintiff. (Doc. 39-1 at 2, 5, 8, 11.) According to
15 of 59

the letters, two violations of Title 50 were based on this settlement. First, simply by settling this
action, PPGC had violated Title 50. (Id.) Second, since DHHS had not been informed “within ten
(10) working days of when the provider knew or should have known of the violation,” another
violation of Title 50 had occurred. (Id.)
A second (or third) ground consisted of “provider audits and federal false claims cases
against PPFA . . . affiliates.” (Id.) A second Texas case, Carroll v. Planned Parenthood Gulf
Coast (“Carroll”), Case Number 4:12-cv-03505, fell within this description. According to the
letters, in Carroll, “the presiding judge found that the information already provided allows the
court to draw the reasonable inference that Planned Parenthood knowingly filed false claims.”
(Id.; see also Hr’g Tr. 35:1–16, Oct. 16, 2015.)
The third basis for termination was Defendant’s determination that PPGC’s July and
August Letters, see supra Part II.B, contained “misrepresentations” upon Defendant’s further review of CMP’s videos. (Doc. 39-1 at 3, 6, 9, 12.)13 Other grounds are referenced in these
letters, including audits, noncompliance with various Title 50 conditions, and more. (Id.)
After receiving these Second Termination Letters, Plaintiffs filed an unopposed motion to
amend the complaint on October 7, 2015, (Doc. 41), a request granted on that same day, (Doc.
42). Already attached to this motion, (Doc. 41-1), the new amended complaint (“Amended
13 Other grounds were hinted at in the Second Termination Letters. For example, Defendant maintained that, as Section 46:437.11(D)(2) allows for termination “immediately and without notice if a health care provider is the subject of a sanction or of a criminal, civil, or departmental proceeding,” it had determined “that PPGC currently fits within this statute due to the investigations of PPGC by both DHH and the Louisiana Office of Inspector General.” (Doc. 39-1 at 3, 6, 9, 12.) And finally, pursuant to Section 46:437.14(A)(l0) and (12), Defendant claimed that it “may move to revoke enrollment if a provider is found in violation of licensing or certification conditions or professional standards relating to the licensure or certification of health care providers or the required quality of goods, services, or supplies provided” as well as “for failure to meet any condition of enrollment.” (Id.) PPGC, however, has counted three, and Defendant has not yet contradicted this grouping in writing or during the Second Hearing.
16 of 59

Complaint”) followed on October 7, 2015, (Doc. 43).14 Two days later, Plaintiffs filed the Renewed Motion for TRO, (Doc. 45), and the Renewed Memorandum, (Doc. 46). Simultaneously, Plaintiffs filed the Plaintiffs’ Motion for Limited Expedited Written Discovery, (Doc. 47), and Plaintiffs’ Memorandum in Support of Plaintiffs’ Motion for Limited Expedited Discovery, (Doc. 48). On October 14, 2015, Plaintiffs docketed the Memorandum Regarding Availability of State Remedy. (Doc. 52 at 1.) Defendant filed the Motion to Dismiss, (Doc. 53), and Defendant’s Memorandum on October 14, 2015, (Doc. 53-1). On October 16, 2015, this Court held the Second Hearing. The Court orally denied Plaintiffs’ Motion for Limited Expedited Written Discovery and took the remaining motions under advisement at the Second Hearing’s conclusion. Late that day, Plaintiffs filed a copy of the Reynolds Settlement. (Doc. 54.)
. D. PARTIES’ ARGUMENTS 1. Plaintiffs’ Arguments
In their Motion for TRO and Renewed Motion for TRO, Plaintiffs have made four relevant arguments to why they are entitled to a temporary restraining order.
First, Plaintiffs first contend that they will likely prove that Defendant’s efforts violate federal statutory and constitutional law. They begin by arguing that Defendant’s latest termination, like the first, is prohibited by the plain meaning of Section 1396a(a)(23) and are thus in violation of controlling federal law. (Doc. 46 at 17–22; see also Doc. 4-1 at 16.) This Freedom-of-Choice Provision bars Defendant from excluding PPGC from Medicaid for a reason
14 While many paragraphs in the Amended Complaint mirror exactly those in the First Complaint, (Doc. 4 ¶¶ 1, 2, 3, 4, 9–14, 18–33, 35, 37–49, with Doc. 43 ¶¶ 1, 2, 3, 5, 10–15, 19– 33, 41, 43–55), or underwent slight alteration (i.e. dates), (Doc. 4 ¶ 5, with Doc. 43 ¶ 6), Plaintiffs refined others so as to reflect this case’s latest posture and developments, (Doc. 43 ¶¶ 4, 6, 35–36), and class action claims, (Doc. 43 ¶¶ 16–19, 56–61, 68).
17 of 59

unrelated to its fitness to provide medical services. (Doc. 46 at 18, 21, 22; Doc. 4-1 at 11.) Because “Defendant has nowhere suggested that PPGC is not ‘qualified to perform’ the Medicaid services it provides,” its action cannot be cohered with this subsection’s language and purpose. (Doc. 4-1 at 15, 16.)
Plaintiffs concurrently maintain that this particular subsection, in contrast with 1396a(a)(30), which was the focus in Armstrong, does afford Plaintiffs with a right enforceable via Section 1983. (Doc. 46; Doc. 4-1.) Throughout their discussion, Plaintiffs rely on many of the same cases, including Planned Parenthood Ariz. Inc. v. Betlach, 727 F.3d 960 (9th Cir. 2013) (“Betlach”); Planned Parenthood of Ind., Inc. v. Comm’r of Ind. State Dep’t of Health, 699 F.3d 962 (7th Cir. 2012) (“Indiana”); and Women’s Hospital Foundation v. Townsend, No. 07-711JJB-DLD, 2008 U.S. Dist. LEXIS 52549, 2008 WL 2743284 (M.D. La. July 10, 2008).
In the Renewed Memorandum, Plaintiffs do abandon their procedural due process claim, (Hr’g Tr. 14:17–24, Oct. 16, 2015; compare Doc. 43 ¶¶ 62–67, with Doc. 1 ¶¶ 56–57), but reiterate their two constitutional ones, (Doc. 1 ¶¶ 52–55 at 14; Doc. 43 ¶¶ 64–67 at 20). Now, Plaintiffs maintain that Defendant, without sufficient justification, is singling them out for unfavorable treatment, violating the Equal Protection Clause of the Constitution’s Fourteenth Amendment, U.S. CONST. amend. XIV, § 2, and is attempting to penalize them for freely associating with other related Planned Parenthood entities, thereby contravening the freedom of association guaranteed by the First Amendment, see U.S. CONST. amends. I, IX, § 2; NAACP v. Ala. ex. rel Patterson, 357 U.S. 449, 460, 78 S. Ct. 1163, 1498, 2 L. Ed. 2d 1488 (1958). (See, e.g., Doc. 46 at 22.)
Second, Plaintiffs insist that the harm to both PPGC and the Individual Plaintiffs will be irreparable if the termination comes to pass. The Individual Plaintiffs will be deprived of their
18 of 59

ability to exercise their federal statutory rights, and will suffer a disruption of their relationship with a preferred (and competent) provider and a reduction of their access to family planning services. (Doc. 46 at 26; see also Doc. 4-1 at 8–9, 17.) PPGC, in turn, will find its budget sharply curtailed, possibly forcing it to close down BRHC permanently, and will never be able to recover any monetary damages from DHH. (Doc. 46 at 27 & n.19; see also Doc. 4-1 at 17–18, 18 n.13.)
Third, Plaintiffs argue that the balance of harms favors them. “While PPGC and its patients will suffer irreparable harm in the absence of an injunction, the state will suffer no injury at all.” (Doc. 46 at 27; see also Doc. 4-1 at 18.) The reason, Plaintiffs contend, is because an injunction will do no more than “require the state to maintain the funding [it] ha[s] provided to Plaintiff[] for years.” (Doc. 46 at 27 (internal quotation marks omitted) (alterations in original); see also Doc. 4-1 at 18.)
Finally, Plaintiffs assert that the public interest favors their injunctive request. The public has a “strong” interest “in ensuring continued public access to crucial health services, especially for the many underserved and low-income patients PPGC serves.” (Doc. 46 at 28; see also Doc. 4-1 at 18.) Such an interest is especially “acute with respect to the neediest . . . who depend on publicly funded programs.” (Doc. 46 at 28; see also Doc. 4-1 at 19.)
As to Defendant’s argument that Plaintiffs’ failure to pursue a state administrative appeal of the termination renders the controversy not ripe and Plaintiffs without standing, Plaintiffs argue that PPGC is not required to pursue the state administrative appeal but can instead pursue its rights under Section 1983. (Doc. 52 at 2–3; see also Hr’g Tr. 6:6–10, Sept. 2, 2015.) The Individual Plaintiffs argue they have no right to administratively appeal and couldn’t do so if they wanted to. (Doc. 52 at 3; see also Hr’g Tr. 10:9–10, Sept. 2, 2015.)
19 of 59

2. Defendant’s Arguments Invoking Rule 12(b)(1) and (6), Defendant makes essentially three arguments. First, Defendant contends that this Court lacks subject-matter jurisdiction over this
dispute because this case is not ripe and Plaintiffs lack prudential and constitutional standing. (Doc. 53-1 at 6–9.) Defendant insists on this case’s unripe state for three reasons: (1) “Plaintiffs have suffered no injury”; (2) “further procedural and factual development is required”; and (3) no hardship can be shown. (Id. at 6, 8.) As support for his first and second reason, Defendant argues that because PPGC may appeal this termination, during which the Agreements will remain enforce in accordance with Defendant’s wishes, this “suspensive” review process leaves all Plaintiffs without a cognizable injury. (Id. at 6–7 (injury), 8 (hardship), 9 (injury for standing purposes).) Defendant’s Memorandum further explains the reasons for a lack of ripeness and standing as such: “In the instant matter, PPGC is asserting a due process violation while simultaneously hinting that it may voluntarily elect not to participate in the process about which it complains.” (Id. at 8.)
Second, Defendant argues for abstention, emphasizing these doctrines’ purpose of “preserv[ing] the balance between state and federal sovereignty.” (Id. at 10.) Defendant cites to four abstention doctrine—Pullman, Younger, Burford, and Colorado River—and foregoes one— Thibodaux. (Id. at 10–12.) When cumulatively considered, these doctrine’s “animating” principles have a “clear application” to this proceeding: “Plaintiffs should not be indulged in their attempt to invoke the jurisdiction of this Court in the absence of State agency action against them that would delineate . . . [Defendant’s] interpretation of the challenged provision, and in the presence of adequate state administrative and judicial procedures if that eventuality were to occur.” (Id. at 12.)
20 of 59

Third, Defendant insists Plaintiffs cannot prevail on the merits for four reasons. First, “Plaintiffs have no property interest in the Medicaid provider contracts.” (Id. at 13; see also Doc 13 at 14–18.) Second, even if Plaintiffs have a property interest, Louisiana’s administrative appellate process “complies with the mandates of due process” and federal regulation, for “the essence of due process is notice plus an opportunity to be heard.” (Doc. 53-1 at 17.) Third, Defendant insists that Section 1396a(a)(23) does not afford the Individual Plaintiffs any private cause of action, (Compare Doc. 53-1 at 18–22, with Doc. 13 at 4–9), and is sufficiently ambiguous to permit Defendant to exercise her discretion to define “qualified” in accordance with her construction of state law, (Doc. 53-1 at 21; see also Doc. 4 at 8). Defendant thus insists that her authority under Section 45:437.11(D)(2) is not limited “to determining whether a provider is competent to provide . . . services.” (Doc. 53-1 at 22.) She can, instead, invoke any ground derived from state law to determine whether a provider is “competent” or not. (Doc. 53-1 at 23–24.)
IV. RESOLUTION OF PRELIMINARY ISSUES: JURISDICTION AND ABSTENTION A. RIPENESS 1. Defendant’s Arguments
Defendant provides the correct standard by which to measure its argument that this case is not ripe: for the purposes of this doctrine, “a court must evaluate (1) the fitness of the issues for judicial resolution, and (2) the potential hardship to the parties by declining court consideration,” (Doc. 53-1 at 6 (quoting Lopez v. City of Houston, 617 F.3d 336, 342 (5th Cir. 2010)). Defendant maintains the case is not ripe for three reasons: (1) “Plaintiffs have suffered
21 of 59

no injury”; (2) “[F]urther procedural and factual development is required, as demonstrated by Plaintiffs’ due process claim . . .and their request to conduct expedited discovery in this proceeding”; and (3) no hardship exists because “the review process is suspensive,” a third point substantively identical to its first (Doc. 53-1 at 6, 8). At the Second Hearing, her counsel stressed one aspect of the Constitution’s ripeness requirement: “There is absolutely no injury”; “[T]here is absolutely no harm to them at all”; “[T]hey have no injury”; and, “There’s no concrete injury to any of the Planned Parenthood or to any of the Jane Doe Plaintiffs because, again, there simply is no injury.” (Hr’g Tr. 3:21–23, 4:18–22, 7:24–8:1, Oct. 16, 2015.)
2. Analysis Mostly, albeit not entirely, drawn from Article III, U.S. CONST. art. III, § 2; Reno v.
Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n. 18, 113 S. Ct. 2485, 2495 n.18, 125 L. Ed. 2d 38 (1993), ripeness is “a justiciability doctrine designed ‘to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties,” Nat’l Park Hospitality Ass’n v. U.S. Dep’t of Interior, 538 U.S. 807–08, 123 S. Ct. 2026, 2030, 155 L. Ed. 2d 1017 (2003). It generally incorporates, as Defendant rightly notes, (Doc. 53-1 at 6), consideration of two discrete elements: “(1) the fitness of the issues for judicial decision and (2) the hardship to the parties of withholding court consideration.” Nat’l Park Hospitality Ass’n, 538 U.S. at 808 (citing to Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S. Ct. 1507, 1515, 18 L. Ed. 2d 681 (1967) (“Abbott Labs.”)). For five reasons, Defendant’s argument that no ripeness exists fails.
22 of 59

The primary reason is well-rooted in ripeness jurisprudence: “In evaluating ripeness, the central focus is on whether the case involves uncertain or contingent future events that may not occur as anticipated, or indeed may not occur at all.” Tarrant Reg’l Water Dist. v. Herrmann, 656 F.3d 1222, 1250 (10th Cir. 2011) (quoting Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1097 (10th Cir. 2006)). However, an injury need not be actual in a physical sense for a plaintiff’s case to cross the ripeness threshold. Rather, if a plaintiff is “immediately in danger of sustaining some direct injury as the result of the challenged official conduct,” ripeness will often be found. Pearson v. Holder, 624 F.3d 682, 684 (5th Cir. 2010); see also Whole Woman’s Health v. Cole, 790 F.3d 563, 582 (5th Cir. 2015) (quoting id.). It is enough that “an injury that has not yet occurred is sufficiently likely to happen to justify judicial intervention” or “when the court would be in no better position to adjudicate the issues in the future than it is now.” Pearson, 624 F.3d at 684.
Thus, “ripeness is seldom an obstacle to a pre-enforcement challenge . . . where the plaintiff faces a credible threat of enforcement”; in such cases, the plaintiff is typically “not . . . required to await and undergo [enforcement] as the sole means of seeking relief.” Consumer Data Indus. Ass’n v. King, 678 F.3d 898, 907 (10th Cir. 2012); see also, e.g., Barrick Goldstrike Mines, Inc. v. Browner, 215 F.3d 45, 49 (D.C. Cir. 2000) (holding that declaratory judgment action was ripe for judicial review under the Administrative Procedures Act where plaintiff’s “only alternative to obtaining judicial review now is to violate EPA’s directives . . . and then defend an enforcement proceeding on the grounds it raises here”). Indeed, as the Court has recently written, an agency’s prospective, not yet consummated, action will be found ripe for review if “the scope of the controversy has been reduced to more manageable proportions . . . by some concrete action applying the regulation to the claimant’s situation in a fashion that harms
23 of 59

or threatens to harm him.” Nat’l Park Hospitality Ass’n, 538 U.S. at 808. Under this precedent, Defendant’s Second Termination Letters amount to certain threats,
classifiable as “concrete action[s]” that “threaten to harm” Plaintiffs. Here, the existing record amply supports this determination: Defendant has made it clear she intends to terminate the Medicaid provider agreements, the only thing changing since the initial termination letters being the reason. In effect, by her own actions, she has triggered the application of a general rule, federal courts having “consistently found a case or controversy in suits between state officials charged with enforcing a law and private parties potentially subject to enforcement,” Consumer Data Indus. Ass’n, 678 F.3d at 905. A case’s ripeness simply does not depend on whether the injury has already been inflicted, and “specific threat[s] of enforcement” like those the Defendant has already made are more than enough to satisfy this constitutional minimum. Reynolds v. City of Valley Park, No. 4:06CV01487 ERW, 2006 U.S. Dist. LEXIS 83210, at *25, 2006 WL 3331082, at *6 (E.D. Mo. Nov. 15, 2006); see also, e.g., Cass Cnty. v. United States, 570 F.2d 737 (8th Cir. 1978) (“Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.”). In so holding, then, this Court does no more than adhere to a higher tribunal’s advisement: “One does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending that is enough.” Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n, 461 U.S. 190, 201, 103 S. Ct. 1713, 1721, 75 L. Ed. 2d 752 (1983) (quoting Pennsylvania v. West Virginia, 262 U.S. 553, 593, 43 S. Ct. 658, 663, 67 L. Ed. 1117 (1923)). The Agreements’ termination has been threatened repeatedly since August 2015, and Defendant has now only swapped no reason for three. (Compare Doc. 13, with
24 of 59

Doc. 39-1.) Based on these circumstances and well-settled law, Plaintiffs’ threatened injury is clear.
Two admissions by Defendant’s counsel at the Second Hearing strengthen this conclusion. First, though only indirectly, he himself conceded that a kind of “harm” may have already come to pass: in arguing why no cognizable injury had yet transpired, he emphasized possible contingencies: “I think that one of the contingencies that could happen is their rights could be restored . . . . [The] suspension could be lifted.” (Hr’g Tr. 16:19–23, Oct. 16, 2015 (emphasis added).) This highlighted language implies that Plaintiffs’ rights have already been curtailed and a suspension already imposed;15 either would be a sufficiently credible threat to render this case ripe. Indeed, Defendant’s counsel later confirmed these statements’ implication. To the Court’s question—“the Secretary has terminated the contract, but . . . has said that termination is suspended pending appeal?”—he answered: “That’s correct.” (Hr’g Tr. 18:13–16, Oct. 16, 2015; see also Doc. 53-1 at 9–10.) Thus, even if the termination is suspended, it will occur automatically but for this Court’s intervention. That its practical enforcement may be stayed does not change the key fact: using Pearson’s terms, Plaintiffs are in “danger of sustaining some direct injury as the result of the challenged official conduct,” Pearson, 624 F.3d at 684. A final exchange cinches this conclusion. When Plaintiffs’ counsel revealed PPGC’s intent “to proceed in federal court” and not “to pursue the administrative remedy,” and the Court observed, “Well, then it seems to me you’ve got a very, very ripe situation,” and asked Defendant’s counsel, “Am I missing something on that?” he answered, “No.” (Hr’g Tr. 19:6–20, Oct. 16, 2015.)
Equally worthy of note, Defendant quotes but dismisses the import of a principle
15 For something to be “restored” it must first have been taken, and for something to be “lifted” it must first have been imposed.
25 of 59

embedded in ripeness case law: “[A] case is generally ripe if any remaining questions are purely legal ones,” Lopez, 617 F.3d at 341. As any fair reading of the complaint and motions filed in this case indicates, the issue involves at least one, if not three, “purely . . . legal question[s]”; the precise meaning of Section 1396a(a)(23) and the applicability of two constitutional clauses. (See, e.g., Doc. 1 at 1; Doc. 43 at 1.) In Abbott Labs., the seminal case in ripeness jurisprudence, the Court concluded that the issues presented were appropriate for judicial resolution because the facial challenge to the regulation involved the purely legal question of whether the regulation at issue exceeded the scope permitted by the underlying statute. See Abbott Labs., 387 U.S. at 149. This kind of challenge, found ripe in Abbott Labs., resembles the challenge that PPGC now makes, with “consideration of the underlying legal issues” not “necessarily be[ing] facilitated if they were raised in the context of a specific attempt to [apply and/or] enforce the regulations,” Gardner v. Toilet Goods Ass’n, 387 U.S. 158, 171, 87 S. Ct. 1526, 1528, 18 L. Ed. 2d 704 (1967). “Predominantly legal questions” like a statute’s plain meaning are nearly always ripe. Fla. State Conf. of the NAACP v. Browning, 522 F.3d 1153, 1164 (11th Cir. 2008); see also, e.g., LeClerc v. Webb, 419 F.3d 405, 414 (5th Cir. 2005); Digital Props., Inc. v. City of Plantation, 121 F.3d 586, 589 (11th Cir. 1997). Plaintiffs’ present action presents precisely such questions.
Third, this Court finds Defendant’s application of the ripeness doctrine to be predicated on a fundamental misunderstanding of these claims. In its final paragraph, Defendant’s Memorandum summarizes her view of Plaintiffs’ case: “In the instant matter, PPGC is asserting a due process violation while simultaneously hinting that it may voluntarily elect not to participate in the process about which it complains.” (Doc. 53-1 at 8 (emphasis in original).) At the Second Hearing, Defendant again reduces all of Plaintiffs’ claims to “a disguised due process challenge.” (Hr’g Tr. 7:2–3, Oct. 16, 2015.) This assertion, however, ignores the explicit
26 of 59

constitutional and federal statutory bases of Plaintiffs’ Amended Complaint, (see, e.g., Doc. 1 at 1; Doc. 43 at 1), as Plaintiffs’ counsel expressly declared at the Second Hearing, (Hr’g Tr. 14:17–24, Oct. 16, 2015). Consequently, the fact that Defendant dismisses the Individual Plaintiffs’ claims as “derivative” of PPGC’s, (Hr’g Tr. 8:4–10, Oct. 16, 2015) based wholly on cases explicating the requirements of procedural due process, (Doc. 53-1 at 13 (citing Plaza Health Labs., Inc. v. Perales, 878 F.2d 577 (2d Cir. 1989); Kelly Kare, Ltd. v. O’Rourke, 930 F.2d 170, 177 (2d Cir. 1991); and Senape v. Constantino, 936 F.2d 687 (2d Cir. 1991)); see also Doc. 13 at 16–17), cannot be ignored. When statutes like Section 1396a(a)(23) provide the case’s gravamen and no procedural due process claim is made, Defendant’s cases cannot be deemed legally relevant. See Planned Parenthood of Ind., Inc., 699 F.3d at 977 (rejecting the relevance of Kelly Kare and similar cases because “[t]his is not a due-process case”). Indeed, this conclusion seems especially appropriate when at least one of the cases cited by Defendant conceded that “there may be a property interest in a provider’s status as a qualified health-care provider,”16 Kelly Kare, 930 F.2d at 176. (See Doc. 53-1 at 14–15.)
Fourth, the jurisprudence construing the hardship requirement is clear. The Fifth Circuit “has found hardship to inhere in legal harms, such as the harmful creation of legal rights or obligations; practical harms on the interests advanced by the party seeking relief; and the harm of being force[d] . . . to modify [one’s] behavior in order to avoid future adverse consequence.” Choice Inc. v. Greenstein, 691 F.3d 710, 715 (5th Cir. 2012) (alteration in original) (internal quotation marks omitted). Discrete formulations, a plaintiff can meet the ripeness doctrine’s hardship prong by satisfying just one. Id. As the Court’s own decisions clarify, the first test has
16 In Kelly Kare, moreover, the Second Circuit actually noted that its case law was not necessarily consistent, contrasting Plaza Health, upon which Defendant relies, with a second case, which seemingly holds the opposite. Kelly Kare, 930 F.2d at 175.
27 of 59

been met when an agency proposes to “grant, withhold, or modify any formal legal license, power or authority,” Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 733, 118 S. Ct. 1665, 1670, 140 L. Ed. 2d 921 (1988), and the second is fulfilled when “the impact of the administrative action could be said to be felt immediately by those subject to it in conducting their day-to-day affairs,” Gardner, 387 U.S. at 164. Quite simply, Defendant’s conduct here cannot be described in any different terms, while Defendant has effectively swapped the familiar ripeness test (“imminent injury”) with administrative law’s exhaustion one (“final decision”). See Legacy Community Health Servs., Inc. v. Janek, No. 4:15-CV-25, 2015 U.S. Dist. LEXIS 8610, at *12–13, 2015 WL 4064270, at *5 (S.D Tex. July 2, 2015) (finding case ripe even when a party did not allege any actual instance of enforcement). Since a threat suffices, to conclude differently would be to find no case ripe when an administrative option remains for one of many plaintiffs and a statutory right and remedy exists for all, a result contrary to the many opinions that have confronted claims under Section 1396a(a)(23). See infra Part V; see also, e.g., Sabree v. Richman, 367 F.3d 180, 193 & n.29 (3d Cir. 2004) (“A] plaintiff's ability to invoke § 1983 cannot be defeated simply by the availability of administrative mechanisms to protect the plaintiff's interests.”); cf. Cathedral Rock of N. Coll. Hill, Inc. v. Shalala, 223 F.3d 354, 366 (6th Cir. 2000) (noting that “the Medicaid Act does not have a provision . . . incorporating § 405(h) and its exclusive jurisdiction limitation to channel legal challenges through the administrative procedures set forth”).
Finally, Defendant oversells the significance of the Plaintiffs’ own motion to expedite discovery, (Doc. 47). According to Defendant, this request attests to the need for factual development that proves ripeness’ absence, (Doc. 53-1 at 6); Plaintiff disagrees, (Hr’g Tr. 41:8– 19, Oct. 16, 2015). While the motion makes clear that such discovery is being sought for
28 of 59

purposes of strengthening Plaintiffs’ animus allegations, (Doc. 48 at 2), the ripeness doctrine demands no more than a threatened injury to the plaintiff, not a complete evidentiary record. Indeed, Defendant’s logic would render any federal case unripe if discovery remains essential, without any regard for the reason, a position sufficiently farcical to underscore the weakness of this argument. Even if Plaintiffs’ first amendment claims require, like almost all claims often do, more discovery, that possibility says nothing about the ripeness of their two other claims. In the vast majority of cases in which ripeness is not found, “additional factual development” is absolutely “necessary,” a feature wholly absent from a proceeding focused on the outer parameters of a statute’s meaning. See, e.g., Baldwin v. Daniels, 250 F.3d 943, 946 (5th Cir. 2001); John Corp. v. City of Houston, 214 F.3d 573, 586 (5th Cir. 2000).17
For all these reasons, this Court finds this case ripe for its review, joining the Eastern District of Arkansas in Planned Parenthood Ark. & E. Okla. v. Selig, No. 15-cv-00566-KGB (“Selig”), (Doc. 46-9), and the District of Utah in Planned Parenthood Association of Utah v. Herbert, No. 15-cv-693-CW (“Herbert”), (Doc. 46-10). In concurring with these courts, this Court finds it significant that Defendant has yet to adequately address either case. Rather, in attempting to distinguish only the former, Defendant offered one reason: “It’s my understanding that [the right to an administrative appeal] was not a suspensive process,” while “[t]his is a fully suspensive process,” (Hr’g Tr. 9:6–7, Oct. 16, 2015). This lone purported difference, however, is incorrect, as Arkansas law, like Louisiana law, suspends a termination’s enforcement upon a provider’s proper appeal. See ARKANSAS MEDICAID PROVIDER MANUAL 161.500.
17 Even in procedural due process cases, ripeness is not an issue when a facial attack is made. See, e.g., Cornell Cos. v. Borough of New Morgan, 512 F. Supp. 2d 238, 256 (E.D. Pa. 2007).
29 of 59

B. STANDING 1. Defendant’s Arguments
In contesting standing, Defendant insists PPGC lacks it in full. In her words, “Plaintiffs have not suffered nor are they about to suffer ‘an injury in fact’ which is concrete and particularized, or actual or imminent.” (Doc. 53-1 at 9.) At the Second Hearing, this point was emphasized in the following terms: “There’s no concrete injury to . . . Planned Parenthood or to any of the Jane Doe Plaintiffs because, again, there simply is no injury.” (Hr’g Tr. 16:14–18, Oct. 16, 2015.)
2. Analysis Closely related to the ripeness inquiry, Choice Inc. v. Greenstein, 691 F.3d 710, 715 (5th
Cir. 2012), standing implicates a slightly different series of concerns. Generally, ripeness is concerned with “when an action may be brought,” but “standing focuses on who may bring a ripe action.” Jt. Stock Soc’y v. UDV N. Am., Inc., 266 F.3d 164, 174 (3d Cir. 2001) (emphasis added). The “irreducible [constitutional] minimum” of standing contains three elements”: “(1) an injuryin-fact,” defined as “an invasion of a legally protected interest which is (a) concrete and particularized” and “(b) actual or imminent, not conjectural or hypothetical,” that is (2) fairly traceable to the defendant’s allegedly unlawful conduct” and that is (3) likely to be redressed by the requested relief. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992). Notably “[s]tanding and ripeness are closely related doctrines that overlap most notably in the shared requirement that the plaintiff’s injury be imminent rather than conjectural or hypothetical.” New York Civil Liberties Union v. Grandeau, 528 F.3d 122, 130 n.8 (2d Cir. 2008).
30 of 59

Indeed, “in measuring whether the litigant has asserted an injury that is real and concrete rather than speculative and hypothetical, the ripeness inquiry merges almost completely with standing.” Jt. Stock Soc’y, 266 F.3d at 174. The injury need not be inflicted already; imminence will do. Warth v. Seldin, 422 U.S. 490, 499, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975). Naturally, therefore, as more than one court has asserted, the threat of future harm is sufficiently immediate to constitute a cognizable injury-in-fact for purposes of both the standing and the ripeness doctrines. E.g., Comsat Corp. v. FCC, 250 F.3d 931, 936 (5th Cir. 2001) (“A threatened injury satisfies the injury in fact requirement so long as that threat is real[.]”); Prestage Farms, Inc. v. Bd. of Supervisors of Noxubee Cnty., MS, 205 F.3d 265, 268 (5th Cir. 2000) (“[T]he risk of injury may be founded on a likely and credible chain of events.”); see also, e.g., Baur v. Veneman, 352 F.3d 625, 633 (2d Cir. 2003) (collecting cases standing for the proposition that “threatened harm in the form of an increased risk of future injury may serve as injury-in-fact for Article III standing purposes”); Employers Ass’n of New Jersey v. State of New Jersey, 601 F. Supp. 232, 238 (D.N.J. 1985) (“[T]hreatened injury is sufficient for standing . . .without compelling litigants to await the consummation of threatened injury.”) (quoting Pac. Gas & Elec. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 200, 103 S. Ct. 1713, 1721, 75 L. Ed. 2d 752, (1983)). While a truly “uncertain potentiality” may deprive a plaintiff of standing, Prestage, 205 F.3d at 268, a decent probability will confer it, see Walters v. Edgar, 163 F.3d 430, 434 (7th Cir. 1998) (collecting cases standing for the proposition that “[a] probabilistic harm, if nontrivial, can support standing”); cf. Loa-Herrera v. Trominski, 231 F.3d 984, 988 (5th Cir. 2000) (“Mere threatened injury is sufficient” if “the threat . . . is real.”).
Per this law, as with this Court’s ripeness inquiry, Defendant’s threat of harm is sufficiently clear to establish Plaintiff’s standing. In her motions, as at the First Hearing,
31 of 59

Defendant has insisted that she can terminate the Medicaid provider agreement with PPGC for any reason, and she has repeatedly made clear that she intends and hopes to do so. There is thus no question that she has made a cognizable threat to Plaintiff’s interest, having already attempted to do via Section 46:437.11(D)(1) what she now seeks to do via Section 46:437.11(D)(2). (Doc. 38 at 2; Doc. 39-1 at 2 –13.) That she may not succeed concerns the precariousness of her own position, but has no bearing on whether the threat she poses is not real and the harm her action portends is not imminent. Precisely because it is, Plaintiffs’ standing is established.18 See, e.g., Susan J. v. Riley, 254 F.R.D. 439 (M.D. Ala. 2008) (rejecting a defendant’s standing challenge to a plaintiff proceeding under Section 1396a(a)(8)).
C. ABSTENTION 1. Defendant’s Arguments
Defendant urges this Court to abstain. (Doc. 53-1 at 10–12.) She argues for the applicability of the four main abstention doctrines—Pullman, Younger, Burford, and Colorado River. (Id. at 10–12.) Rather than applying the discrete elements of these varied doctrines, Defendant refers to their occasional “overlap to some degree in . . . scope and application” and reduces all four to a single formulation: (1) “where state administrative proceedings and judicial review afford claimants adequate opportunity to test the constitutionality of state law,” and (2) “the exercise of federal jurisdiction would jeopardize state efforts to establish state policy on matters of public concern,” abstention “should” follow. (Id. at 12.)
18 PPGC’s third-party standing may be a more complicated issue. Defendant, however, has raised no such objection, instead focusing on the doctrine’s “injury” prong, and PPGC and the Individual Plaintiffs allege discrete, albeit related, harms. (Doc. 1; Doc. 43.)
32 of 59

2. Analysis When one examines the requirements of each of these doctrines, it is clear that none of
them applies. Named after its founding decision, R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496,
61 S. Ct. 643, 85 L. Ed. 971 (1941), Pullman abstention is proper only when there is (1) a federal constitutional challenge to a state action and (2) an unclear issue of state law that if resolved would make it unnecessary to rule on the constitutional question. Nationwide Mut. Ins. Co. v. Unauth. Prac. of L. Comm., State Bar of Tex., 283 F.3d 650, 653 (5th Cir. 2002). The Fifth Circuit has also taken the stance that this doctrine should be invoked in only narrow and limited special circumstances and applied where the state court decision could avoid a federal question and would also avoid a possible strain of the federal and state relationship. Moore v. Tangipahoa Parish Sch. Bd., 507 F. App’x 389, 396 (5th Cir. 2013) (citing Reetz v. Bozanich, 397 U.S. 82, 86–87, 90 S. Ct. 788, 25 L. Ed. 2d 68 (1970)).
In essence, for Pullman to govern, an uncertain state law must be central to the federal proceeding. Here, however, there is no state statute central to this controversy. Rather, the Defendant’s interpretation of a federal statute and the extent to which her termination, regardless of its state law basis, violates the United States Constitution are the only issues. In addition, as Pullman requires that state law be confused and uncertain, Defendant’s failure to bring to this Court’s attention even one Louisiana case evidencing a persistent discord regarding the meaning of either Section 46:437.11(D)(1) or Section 46:437.11(D)(2) counsels against its invocation. On these bare facts, Pullman abstention is inappropriate. See, e.g., Planned Parenthood of Idaho, Inc. v. Wasden, 376 F. Supp. 2d 1012, 1021 (D. Idaho 2005); Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 932 (9th Cir. 2004).
33 of 59

Articulated in Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), the Fifth Circuit has conceived of Younger abstention as a three-prong test: (1) there must be an ongoing state proceeding that is judicial in its nature, (2) the state must have an important interest in regulating the subject matter of that claim, and (3) there must be adequate opportunity in the state proceeding to raise constitutional challenge. Rickhoff v. Willing, 457 F. App’x 355, 358 (5th Cir. 2012) (citing Wightman v. Tex. Supreme Court, 84 F.3d 188, 189 (5th Cir. 1996)). Thus, Younger requires an ongoing state proceeding “judicial in nature.” Ohio Civil Rights Comm’n v. Dayton Christian Sch., Inc., 477 U.S. 619, 627–28, 106 S. Ct. 2718, 2722–23, 91 L. Ed. 2d 512 (1986). But, as Defendant’s counsel has conceded, no administrative proceeding commences until or unless PPGC appeals, (Doc. 53-1 at 22; see also Hr’g Tr. 16:8–17:9, Oct. 16, 2015), and PPGC has foresworn that option, (Hr’g Tr. 19:6–10, Oct. 15, 2015). Meanwhile, the Individual Plaintiffs cannot possibly initiate such a proceeding as a matter of state law, as Defendant’s two lawyers have admitted and Plaintiffs contend. (Hr’g Tr. 8:7–10, Oct. 16, 2015; Hr’g Tr. 9:11–19, 14:22–25, Sept. 2, 2015; Doc. 22 at 2–5; Doc. 46 at 18 n.13.) Regardless, no evidence has been adduced that any state quasi-judicial action predated the First Complaint’s filing; Younger requires as much. Indeed, having rescinded the First Termination Letters, Defendant’s prospective agency action by definition will post-date the commencement of this federal proceeding. These facts render Younger inapplicable to this proceeding.19
Colorado River abstention, derived from Colorado River Water Conservation Dist. v. U. S., 424 U.S. 800, 96 S. Ct. 1236, 47 L. Ed. 2d 483 (1976), is exceptionally narrow. In this Circuit, six elements must be satisfied:
19 Younger is also subject to three exceptions, at least two of which arguably apply. Bice v. Louisiana Pub. Defender Bd., 677 F.3d 712, 716 n.3 (5th Cir. 2012).
34 of 59

1) assumption by either court of jurisdiction over a res, 2) relative inconvenience of the forums, 3) avoidance of piecemeal litigation, 4) the order in which jurisdiction was obtained by the concurrent forums, 5) to what extent federal law provides the rules of decision on the merits, and 6) the adequacy of the state proceedings in protecting the rights of the party invoking federal jurisdiction.
African Methodist Episcopal Church v. Lucien, 756 F.3d 788, 798 (5th Cir. 2014) (citing Stewart v. W. Heritage Ins. Co., 438 F.3d 488, 491 (5th Cir. 2006)). In the case cited therein, the Fifth Circuit has found it applicable when there is a parallel suit in the state court at the time of the federal suit also being brought with the same parties and the same issues. Stewart, 438 F.3d at 491. As such, as with Younger, the absence of any parallel proceeding in a state agency or a state court initiated before this federal suit’s filing must foreclose Colorado River’s application to the instant matter.
Traceable to Burford v. Sun Oil Co., 319 U.S. 315, 63 S. Ct. 1098, 87 L. Ed. 1424 (1943), this final doctrine contemplates the presence of a state-created avenue of relief put where the state has a degree of specialized competence to hear such cases is present. See Romano, 721 F.3d at 380 (listing five factors). Put another way, Burford abstention is only appropriate when there is a danger that federal court review will “disrupt the [s]tate’s attempt to ensure uniformity in the treatment of an essentially local problem.” New Orleans Public Service, Inc. v. Council of City of New Orleans, 491 U.S. 350, 364 (1989).
Such is not the case here. It is the meaning of Section 1396a(a)(23), a federal statute, and two constructional provisions which constitute the central controversies. In fact, in interpreting Section 1396a(a)(8), whose language perfectly mirrors Section 1396a(a)(23), the Fifth Circuit
35 of 59

rejected this same Defendant’s request for Burford abstention in no uncertain terms:
None of these factors weighs in favor of abstention in this case. The cause of action arises under federal law, there are no apparent issues of state law or local facts, the interest in proper application of federal Medicaid law is paramount, and there is no special state forum for judicial review.
Romano, 721 F.3d at 380. As with Colorado River, Younger, and Pullman, the prerequisites for Burford’s invocation are absent from this case. It is too inapposite.
D. CONCLUSION Based on well-settled law, this Court therefore rejects Defendant’s jurisdictional
challenges and declines to abstain. As to both ripeness and standing, there is an imminent threat of harm. Applying the appropriate abstention factors to the facts of this case, abstention is inappropriate. Instead, it is the Court’s “strict duty to exercise the jurisdiction conferred upon . . . [it] by Congress.” Quakenbush v. Allstate Ins. Co., 517 U.S. 706, 716, 116 S. Ct. 1712, 1720, 135 L. Ed. 2d 1 (1996).
V. DISCUSSION: TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
A. APPLICABLE STANDARDS A plaintiff must establish four elements to secure a temporary restraining order (“TRO”):
(1) a substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury
36 of 59

if the injunction is not issued, (3) that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted, and (4) that the grant of an injunction will not disserve the public interest. E.g., Janvey v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011); Women’s Med. Center of Nw. Houston v. Bell, 248 F.3d 411, 419, n. 15 (5th Cir. 2001).20 Long deemed “an extraordinary remedy,” Anderson v. Jackson, 556 F.3d 351, 360 (5th Cir. 2009); see also Douthit v. Dean, 568 F. App’x 336, 337 (5th Cir. 2014) (similarly characterizing a preliminary injunction), a temporary restraining order aims “to preserve the status quo and prevent irreparable harm just so long as is necessary to hold a hearing, and no longer,” Granny Goose Foods v. Bhd. of Teamsters & Auto Truck Drivers, 415 U.S. 423, 439, 94 S. Ct. 1113, 1124, 39 L. Ed. 2d 435 (1974); see also, e.g., Mississippi Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 627 (5th Cir. 1985). By circumstance and necessity, in considering whether either a preliminary injunction or a temporary restraining order should issue, a court is “almost always” forced to rely upon “[an] abbreviated set of facts.” Klitzman, Klitzman & Gallagher v. Krut, 744 F.2d 955, 958 (3d Cir. 1984) (discussing preliminary injunctions).
B. FIRST ELEMENT: LIKELY SUCCESS ON THE MERITS Plaintiffs bring this civil action pursuant to Section 1983 based on Defendant’s alleged
violation of rights secured by the Medicaid Act and the United States Constitution. Specifically, Plaintiffs claim that Defendant’s attempt to terminate the Agreements violates the rights of the Individual Plaintiffs under Section 1396a(a)(23)(A) (“Free-Choice-of-Provider Provision”) and PPGC’s rights under both the Equal Protection Clause and the Freedom of Speech Clause of the
20 The standard for granting a preliminary injunction is identical. See Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir. 2009); accord, e.g., Wilson v. Office of Violent Sex Offender Mgmt., 584 F. App’x 210, 212 (5th Cir. 2014). Their distinction lies in timing. FED. R. CIV. P. 65.
37 of 59

United States Constitution. (Doc. 43 ¶¶ 62–67 at 19–20.) In relevant part,21 Defendant contends that Section 1396a(a)(23) does not create a private cause of action for either PPGC or the Individual Plaintiffs and relies primarily on Armstrong. (Doc. 53-1 at 18–24; see also Doc. 13 at 3–13.) If the Plaintiffs were to prevail on their Section 1396a(a)(23) claim and/or PPGC was to prevail on either its constitutional claims, the same remedy—a permanent injunction—would be due, and any potential action by Defendant would be similarly affected. Accordingly, this Court need not conclude that Plaintiffs have a substantial likelihood of prevailing on all claims advanced in the Amended Complaint for a temporary restraining order to issue at this time. In other words, if Plaintiffs satisfy the elements needed to show a substantial likelihood of success on the Individual Plaintiffs’ Section 1396a(a)(23) claim only, so long as the other factors are met, a temporary restraining order is appropriate.
1. Mandate of 1396a(a)(23) (a) Existence of a Private Right of Action under Section 1396a(a)(23)
Section 1396a(a)(23), the section under which the Individual Plaintiffs now sue, reads: “A [s]tate plan for medical assistance must . . . provide . . . any individual eligible for medical assistance (including drugs) 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) (emphasis added). Even now, the seminal holdings of three Court cases—Wilder v. Virginia Hospital Association, 496 U.S. 498, 110 S. Ct. 2510, 110 L. Ed. 2d 455 (1990); Blessing v. Freestone, 520 U.S. 329, 117 S. Ct. 1353, 137 L. Ed.
21 Defendant’s argument s regarding Plaintiffs’ property interest and procedural due process, (Doc. 13 at 14–19; Doc. 53-1 at 13–18), are no longer viable in light of the Amended Complaint, (Doc. 43).
38 of 59

2d 569 (1997); and Gonzaga University v. Doe, 536 U.S. 273, 122 S. Ct. 2268, 153 L. Ed. 309 (2002)—remain binding and undisturbed. This fact has been recognized by multiple courts, see, e.g., Doc. 45 at 12, Planned Parenthood Ark. & E. Okla. v. Selig, No. 15-cv-00566-KGB (“Selig”); see also Emma C. v. Eastin, No. 96-cv-04179-TEH, 2015 U.S. Dist. LEXIS 113355, at *17, 2015 WL 5029283, at *5 (N.D. Cal. Aug. 25, 2015) (distinguishing Armstrong as “a Medicaid case wherein the Court considered whether there was an implied right of action under the Supremacy Clause”); cf. Tohono O’odham Nation v. Ducey, No. CV-15-01135-PHX-DGC, 2015 U.S. Dist. LEXIS 124979, at *30 –31 (D. Ariz. Sept. 17, 2015) (distinguishing Armstrong in a case not involving the Medicaid Act); J.E. v. Wong, No. 14-00399 HG-BMK, 2015 U.S. Dist. LEXIS 114094, at *21 –22 (D. Haw. Aug. 27, 2015) (same), and acknowledged by Defendant’s counsel, (Hr’g Tr. 15:9–14, Sept. 2, 2015).
These precedents thus supply the three-part test that this Court must employ to determine whether § 1396a(a)(23) awards the Individual Plaintiff with a right enforceable under § 1983. Equal Access for El Paso, Inc. v. Hawkins, 509 F.3d 697, 702 (5th Cir. 2007). Thus, if Congress “intended” that § 1396a(a)(23) “benefit the [individual] plaintiff[s],” “the right assertedly protected by th[is] statute is not so vague and amorphous that its enforcement would strain judicial competence,” and it “unambiguously impose[s] a binding obligation on the [s]tates,” Plaintiffs may proceed to sue Defendant for violating Section 1396a(a)(23) pursuant to § 1983, having “advanc[ed] a violation of a ‘federal law.’” Hood, 235 F.3d at 924–25 (quoting Blessing, 520 U.S. at 340–41), rev’d on other grounds; as observed in Hawkins, 509 F.3d at 701 n.4. Not voidable by one decision’s dicta or a plurality’s construal of a different subsection, this Gonzaga and Blessing standard for unearthing congressional intent to create a private cause of action governs still.
39 of 59

Read plainly, § 1396a(a)(23) easily satisfies each prong. It contains rights-creating and mandatory language, and it has an unmistakable individual focus. 42 U.S.C. § 1396a(a)(23). Indeed, with its terms so comprehensive and clear, court after court forced to peruse this provision has reached the same conclusion: “[W]e hold that the Medicaid Act's free-choice-ofprovider requirement confers a private right of action under 42 U.S.C. § 1983.” Betlach, 727 F.3d at 963; accord, e.g., Doc. 45 at 12, Selig; Planned Parenthood of Ind., Inc. v. Comm’r of Ind. State Dep’t of Health, 699 F.3d 962, 968 (7th Cir. 2012) (“Indiana”); Harris v. Olszewski, 442 F.3d 456, 459 (6th Cir. 2006). True, as Defendant notes, some of these courts applied § 1396a(a)(23) pre-Armstrong. Yet, their distinctive factual predicates do not affect the more uniform applicability (and cogency) of these courts’ interpretation of the unchanged statute at issue here in accordance with the standard laid out in Wilder and its progeny. Presented with the same exact subsection, they discerned a private cause of action within it. In following Betlach, Indiana, Harris, and Selig, this Court simply endorses a statutory construction predicated on venerable canons and binding precedent.
Crucially, this reading of § 1396a(a)(23) finds ample support in this section’s other provisions as construed by other courts, a fact that this Court cannot ignore pursuant to familiar canons of interpretation. See TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S. Ct. 441, 449, 151 L. Ed. 2d 339 (2001) (“[A] statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.” (internal quotation marks omitted)). Containing the same words prominent in § 1396a(a)(23)— “individual” and “must,” most obviously—the Medicaid Act’s Reasonable Promptness Provision requires that a state plan for medical assistance “provide that all individuals wishing to make application for medical assistance under the plan shall have opportunity to do so, and that such
40 of 59

assistance shall be furnished with reasonable promptness to all eligible individuals.” 42 U.S.C. § 1396a(a)(8) (emphasis added). In Romano, the Fifth Circuit applied Blessing’s three-part test as modified by Gonzaga and found that this section, linguistically identical to Section 1396a(a)(23), creates a private cause of action enforceable under § 1983. 721 F.3d at 375, 378–80. Similar in tone, Section § 1396a(a)(3) reads: “A [s]tate plan for medical assistance must . . . provide for granting an opportunity for a fair hearing before the State agency to any individual whose claim for medical assistance under the plan is denied or is not acted upon with reasonable promptness.” 42 U.S.C. § 1396a(a)(3) (emphasis added). As Romano described Section 1396a(a)(8), this court described the similarly worded Section 1396a(a)(3): “[The] language is mandatory, the provision contains rights-creating language, and there is an individual focus.” Detgen v. Janek, 945 F. Supp. 2d 746, 754 (N.D. Tex. 2013).
Another section states: “In the case of services furnished by a [FQHC] . . . pursuant to a contract between the center or clinic and a managed care entity . . ., the State plan shall provide for payment to the center or clinic by the State.” 42 U.S.C. § 1396a(bb)(5) (emphasis added). This subparagraph too, the First Circuit observed, speaks in “individualistic terms, rather than at the aggregate level of institutional policy or practice,” refers to “specific, discrete beneficiary group,” and contains mandatory and “highly specific terms,” and therefore creates a right subject to enforcement under § 1983. Rio Grande Cmty. Health Ctr., Inc., 397 F.3d at 74, 75. In sum, an overwhelming majority of courts confronted with language in the Medicaid Act identical to that before the Court now have found it to impart a right of action cognizable under § 1983.
(b) Defendant’s Misplaced Emphasis on Armstrong While Defendant urges this Court to discard this consensus on the basis of the more
41 of 59

recent Armstrong, (Hr’g Tr. 19:19–24, Sept. 2, 2015; Hr’g Tr. 7:4–5, Oct. 16, 2015), this decision cannot bear the weight placed upon it by Defendant. The Selig court said it well: Armstrong “does not overrule, or even significantly undermine, the precedent that informed the reasoning of the Sixth, Seventh, and Ninth Circuits in recognizing a private right of action under 42 U.S.C. § 1396a(a)(23).” Doc. 45 at 12, Selig. Armstrong cannot do this for three reasons.
First, Armstrong is narrower than Defendant says. The Armstrong plurality did not dissect § 1396a(a)(23); it did not even delve into the meaning of a similarly worded provision like § 1396a(a)(3) or (a)(8). Instead, Armstrong focused on § 1396a(a)(30), which compels a state plan 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.” 42 U.S.C. § 1396a(a)(30). Armstrong limited its analysis to the import of this Equal Access Provision, no more and no less, which lacks the right-creating and individual-focused language so prominent in Section 1396a(a)(23). To quote Justice Scalia’s plurality, even if the former does not, as a purely lexicographical matter, the latter does, peppered with “rights-creating language.” Armstrong, 135 S. Ct. at 482 (Scalia, J., plurality). For Defendant to claim that § 1396a(a)(23) and (a)(30) contain “the same rights creating type of language,” as she did before this Court, (Hr’g Tr. 16:17–21, Sept. 2, 2015; Hr’g Tr. 7:4–5, Oct. 16, 2015), based purely on the introductory words of the overall section—“a [s]tate plan must . . .”—is to ignore any reference to “individual” and the use of “must” in Section 1396a(a)(23). Using Armstrong, Defendant then urges this Court to rewrite a plain statute, a task plainly at odds with its judicial duty “to ascertain — neither to add nor to subtract, neither to delete nor to distort” a statute’s enacted terms. Ariz. State Bd. for Charter Sch. v. U.S. Dep’t of Educ., 464
42 of 59

F.3d 1003, 1007 (9th Cir. 2006). Second, Defendant has extended Armstrong’s “rationale” far beyond its own stated
limits. True, four justices went farther, specifically dismissing respondents’ arguments for “a cause of action” predicated on “the Medicaid Act itself,” but no majority coalesced around this proposition. Id. (Breyer, J., concurring in part and concurring in judgment.) As such, in accordance with the Fifth Circuit’s binding command that a “joint opinion is . . . considered the holding of the Court . . . [only] as [to] the narrowest position supporting the judgment,” Cole, 790 F.3d at 571, this Court refuses to take Armstrong beyond the confines of § 1396a(a)(30), the only provision upon whose interpretation a majority could agree. In fact, as Defendant conceded at the First Hearing, (Hr’g Tr. 15:9–14, Sept. 2, 2015), Armstrong did not overrule Gonzaga or Wilder, and it was Gonzaga that formed the basis of the Fifth Circuit’s interpretation of § 1396a(a)(8) in Romano, 721 F.3d at 378–80.
Third, just because § 1396a(a)(30) and (a)(23) are subparts of one act does not make them identical in form and effect, as Defendant impliedly contends by seeking to expand Armstrong beyond its narrow ambit. Rather, “[t]he mere fact that all the Medicaid laws are embedded within the requirements for a state plan does not, by itself, make all of the Medicaid provisions into ones stating a mere institutional policy or practice rather than creating an individual right.” Rio Grande Cmty. Health Ctr., Inc. v. Rullan, 397 F.3d 56, 74, 74 (1st Cir. 2006). This command, in fact, is implicit in a whole other subsection: “In an action brought to enforce a provision of this chapter [which includes the Medicaid statutes], such provision is not to be deemed unenforceable because of its inclusion in a section of this chapter requiring a State plan or specifying the required contents of a State plan.” 42 U.S.C. § 1320a-2.
43 of 59

(c) Defendant’s Misplaced Deference Argument Defendant argues that, even if the Individual Plaintiffs have the right to choose a
qualified provider and enforce that right via Section 1983, PPGC is not “qualified” under Section 1396a(a)(23) because DHH can deem it so by exercising Section 46:437.11(D)(2). (Hr’g Tr. 9:18–10:5, Oct. 16, 2015; Doc. 53-1 at 21.) In clear and persuasive terms, the court in Selig rightly rejected that argument.
Here, the dispute is whether the Government, either through the Governor or through [Arkansas Department of Human Services’ (“ARDS”)] actions, impermissibly interfered with the Jane Does’ choice of a qualified provider when it terminated PHH as a provider in the manner and for the reason it articulates. If this right found in 42 U.S.C. § 1396a(a)(23) and conferred on Medicaid recipients is to have the meaning ascribed to it by the Court in O’Bannon [v. Town Court Nursing Center, 447 U.S. 773, 787 (1980], ADHS cannot be permitted to declare a provider unqualified and then to use that declaration to put out of reach any future challenges to its conduct by Medicaid recipients.”
Doc. 45 at 19, Selig. Indeed, counsel for Defendant conceded this argument is “circular.” (Hr’g Tr. 20:12-13, Sept. 2, 2015.) If so, then it cannot stand, for no statute can be interpreted so as to render its specific terms superfluous or divorced from “the phrase in which it is embedded.” Betlach, 727 F.3d at 960. This Court’s duty “to give effect, if possible, to every . . . word of a statute” compels rejecting an interpretation that Defendant herself concedes makes Section 1396a(a)(23) either absurd or illogical. United States v. Menasche, 348 U.S. 528, 538, 75 S. Ct.
44 of 59

513, 520, 99 L. Ed. 615 (1955). Underlying Defendant’s argument that its interpretation of “qualified,” which would
leave Section 1396a(a)(23) as too “vague” and “amorphous” to satisfy the second Blessing prong, must be respected is a plea for deference under either Chevron or Skidmore. However, in cases of statutory interpretation, no deference is owed where the term in question is clear on its face. In determining the meaning of a statutory term, the rules of interpretation and construction are clear: a court must begin with the relevant language. Landreth Timber Co. v. Landreth, 471 U.S. 681, 685, 105 S. Ct. 2297, 2301, 85 L. Ed. 2d 692 (1985); see also Temp. Emp’t Servs. v. Trinity Marine Grp., 261 F.3d 456, 462 (5th Cir. 2001) (citing id.). If the meaning is plain and unambiguous and the statutory scheme is both “coherent and consistent,” Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S. Ct. 843, 846, 136 L. Ed. 2d 808 (1997); see also Salazar v. Maimon, 750 F.3d 514, 518 (5th Cir. 2014) (citing id.), “the sole function of the courts is to enforce it according to its terms,” Caminetti v. United States, 242 U.S. 470, 485, 37 S. Ct. 192, 194, 61 L. Ed. 442 (1917); see also, e.g., Meredith v. Time Ins. Co., 980 F.2d 352, 356 & n.18 (9th Cir. 1993) (quoting id.); In re McCarthy, 391 B.R. 372, 375 (Bankr. N.D. Tex. 2008) (same).
Under these rules, Section 1396a(a)(23) is no quandary. Linguistically, “qualified” means “[p]ossessing the necessary qualifications; capable and competent.” Qualified, BLACK’S LAW DICTIONARY (10th ed. 2014). Inputting this definition of “qualified” into § 1396a(a)(23), it is clear that a “qualified” provider is one who is “capable and competent” of “perform[ing]” the “service or services required” by the Medicaid eligible individual seeking “medical assistance.” 42 U.S.C. § 1396a(a)(23). To discern that Section 1396a(a)(23) requires that a state’s determination of a provider’s “qualified” be related to that provider’s ability to “perform the
45 of 59

service or services required” thus requires no specialized expertise, but follows naturally from this provision’s plain meaning, as illuminated by the surrounding text. To the extent that “qualified” is truly ambiguous, its context, both “specific” and “general,” clarifies its outer parameters, the Medicaid Act’s statutory scheme making clear that any analysis of “qualified” must relate to the relevant provider’s actual competence to undertake the services for which it has been contracted. See Betlach, 727 F.3d at 965. And, “if the intent of Congress is clear,” as evidenced by the use of an unambiguous word, “that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842–43. Accordingly, in asserting, as Defendant does, that “qualified” can be redefined at the agency’s discretion without regard to the whole of Section 1396a(a)(23), she has forfeited any right to a court’s deference. Chevron, 467 U.S. at 842–43 (“If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.”) Accordingly, in conceding that PPGC is qualified to provide the services required by the Agreements and by the Medicaid Act, (Hr’g Tr. 11:10–16, Sept. 2, 2015), Defendant has admitted that PPGC is “qualified” within the statute’s most minimal meaning. In concluding that Plaintiffs will likely show that Defendant has contravened Section 1396a(a)(23), this Court echoes the Ninth Circuit: “Nowhere in the Medicaid Act has Congress . . . indicated that each state is free to define . . . [‘qualified’] for purposes of its own Medicaid program however it sees fit.” Betlach, 727 F.3d at 970.
Even if this Court were to regard “qualified” as ambiguous, however, DHH’s interpretation would deserve no Chevron deference. As noted above, for Chevron to apply, an agency interpretation must concern an ambiguous statute, be imbued with precedential effect, and be reasonable. See supra Part V.A. Defendant contends that “qualified” is an ineradicably
46 of 59

ambiguous term, so unfettered in content that no outer bounds but her own opinion can be set, (Doc. 13 at 8; Doc. 53-1 at 21), so that this one word has become “an interpretive wormhole, whose supposed ambiguity leads to a galaxy of unfettered agency discretion,” Wheaton v. McCarthy, 800 F.3d 282, 288 (6th Cir. 2015). Not the product of considered rulemaking, DHH has yet to provide even one bit of evidence that it has ever so construed “qualified” to exclude a provider whose competence is not at issue. Her present position has not even “embodied in opinion letters, policy statements, agency manuals, and enforcement guidelines,” which though “lack the force of law,” but deserve some respect. Christensen v. Harris County, 529 U.S. 576, 587, 120 S. Ct. 1655, 146 L. Ed. 2d 621 (2000). Even in citing the various meanings that “qualified” may have, she gives no source to credit her unique interpretation. (Doc. 13 at 8; Doc. 53-1 at 21.) In fact, her lawyer called her denotation of “qualified” “circular,” (Hr’g Tr. 21:12– 13, Sept. 2, 2015), thereby rendering it unpersuasive. White v. Black, 190 F.3d 366, 368-69 (5th Cir. 1999); see also FAA v. Cooper, 132 S. Ct. 1441, 1449, 182 L. Ed. 2d 497 (2012) (rejecting the use of a “a general (and notably circular) definition). This decision to adopt such a definition, then, bears none of the marks of considered rulemaking or an exercise of some agency particular expertise, as the most minimal deference doctrines require. See Vigil v. Leavitt, 381 F.3d 826, 835 (9th Cir. 2004).
Finally, as a factual matter, this Court finds no merit in Defendant’s factual contentions regarding the recent nature of CMS’ interpretation. Before this Court, Defendant has claimed that CMS’ counsel provided her “with some contending views as to what qualified mean[s].” (Hr’g Tr. 19:2–7, Sept. 2, 2015.) In Defendant’s Reply, she accused CMS of advancing an interpretation of “qualified” in the Statement of Interest never before evidenced or proclaimed. (Doc. 31 at 4.) Both these statements, however, reek of disingenuousness, presumably
47 of 59

unintended. The first assertion appears to be based on the First (and Second and Third) Kennedy Declarations, yet in none did Ms. Kennedy so describe her conversation with CMS. Rather, per the First Kennedy Declaration, CMS did no more than “advise[]” DHH that it “has the authority to withhold federal Medicaid dollars from Louisiana or seek injunctive relief for failure to comply with the Medicaid Act.” Such language, even if it is most generously construed in Defendant’s favor, simply does not imply that CMS acceded to Defendant’s premise—that “qualified” as sufficiently “ambiguous” as to be indefinable—or acknowledged DHH’s authority to define it in a manner inconsistent with CMS’ understanding of § 1396a(a)(23).
Meanwhile, DHH has seemingly overlooked an Informational Bulletin, dated June 1, 2011, sent by CMS to every state Medicaid agency. In this short bulletin, a matter of public record, CMS addressed “some inquiries as to whether States may exclude certain providers from participating in Medicaid based on their scope of practice,” offering a cogent “review of longstanding federal law.” CMS, CMCS INFORMATIONAL BULLETIN 1 (June 1, 2011). As this bulletin continues, “[s]tates are not . . . permitted to exclude providers from the program solely on the basis of the range of medical services they provide”; a determination of the extent to which a Medicaid provider is “qualified” for purposes of § 1396a(a)(23), it explains, must be related to the actual “scope of services” offered by the relevant provider. Id. at 1–2. In other words, more than four years before DHH attempted to terminate the Agreements, CMS endorsed the interpretation of § 1396a(a)(23) that it has repeated in the Statement of Interest: “[T]erminating PPGC from . . . [Louisiana’s] Medicaid program without providing any justification related to PPGC’s qualifications to provide medical services would violate . . . § 1396a(a)(23),” (Doc. 24 at 2).
48 of 59

(d) Considering Defendants’ Reasons for Claiming PPGC is Unqualified Like the Selig and Herbert courts, this Court finds it likely that Plaintiffs will prevail on
their Section 1396a(a)(23) claim. This subsection awards a private cause of action, and Defendant has already conceded that PPGC is “qualified” as that term must be naturally (and plainly) defined, as the Seventh and Ninth Circuits concluded in Indiana and Betlach. For the purposes of a preliminary injunction, their likelihood of success has been established. They have provided more than enough precedent, evidence and argument to lead this Court to believe they have “a reasonable probability of success.” See 11A CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2948.3; see also Dine Citizens Against Ruining Our Env’t v. Jewell, No. CIV 15-0209 JB/SCY, 2015 U.S. Dist. LEXIS 109986, at *57 n.10, 2015 WL 4997207, at *21 n.10 (D.N.M. Aug. 14, 2015) (“It is not entirely clear what a preliminary-injunction movant’s burden of proof is vis-à-vis the case's merits, as [t]he courts use a bewildering variety of formulations of the need for showing some likelihood of success—the most common being that plaintiff must demonstrate a reasonable probability of success.” (alteration in original) (internal quotation marks omitted)).
Nonetheless, given Defendant’s recent invocation of Section 46:437.11(D)(2) and not Section 46:437.11(D)(1), this Court feels compelled to address the facial credibility of Defendant’s new grounds for termination. In the Second Termination Letters, Defendant gives three “violations” justifying its terminations: first, PPGC’s settlement of an FCA suit in Texas which it did not report to DHH; second, the involvement of a PPGC affiliate in a pending Texas case which survived a Rule 12(b)(6) dismissal and third, PPGC’s alleged misrepresentations in a letter responding to inquiries about the video tapes. (Doc. 39-1.) Having subjected these reasons to scrutiny, this Court concludes that, even if Defendant’s definition of “qualified” prevails,
49 of 59

DHH’s reasons for disqualifying PPGC likely will not. The first of Defendant’s reasons, the Reynolds Settlement, is likely to fail. The claim was
brought by an FCA plaintiff, not the government.22 The settlement expressly disavows PPGC’s liability. (Doc. 54-1 at 5.) It therefore falls into the exception set forth in Title 50 for certain FCA actions: “If a False Claims Act action or other similar civil action is brought by a Qui-Tam plaintiff, no violation of this provision has occurred until the defendant has been found liable in the action.” LA. ADMIN. CODE tit. 50, § 4147(12)(c) (emphasis added). Title 50 plainly and unambiguously requires that liability either be “found,” whether by admission or by some factfinder. Since Reynolds involved no such finding, Defendant’s first stated reason contradicts DHH’s own code. With no citation to authority, Defendant’s counsel asks the Court to reject the “literal” language, (Hr’g Tr. 36:7–8, Oct. 16, 2015), in defiance of every well-known rule of interpretation. Urging the Court to adopt what he “think[s] that means,” he asks this Court to rewrite a plain provision, a task far beyond a judge’s proper province and the Secretary’s actor’s prescribed powers. Beyond that fact, Plaintiffs have credibly shown that DHH was aware of the Reynolds Settlement long before October 14, 2015, with Defendant’s own emails suggesting that it did not find it sufficient to provide “credible evidence” of Medicaid fraud. (Doc. 46-3 at 2.) On these facts, Plaintiffs are likely to succeed on proving the irrelevance of the Reynolds Settlement.
Defendant’s second ground for alleging fraud—the Carroll case—rests on a quote drawn from a judge’s ruling on a motion to dismiss, as revealed by that opinion’s full text: per Rule 12(b), “[t]he court concludes that Carroll has adequately pleaded factual content that allows the court to draw the reasonable inference that Planned Parenthood knowingly filed false claims.”
22 That the government had to sign off on the agreement is a statutory requirement. It does not mean that the government was a proper party. See United States ex rel. Carter v. Bridgepoint Educ., Inc., 305 F.R.D. 225, 230–31 (S.D. Cal. 2014) (explaining the complex subtleties involved in the FCA).
50 of 59

Doc. 31 at 17, No. 12-cv-03505 (S.D. Tex. May 14, 2014.) Contrary to Defendant’s allegation that the court in Carroll found, “that the information already provided ‘allow the court to draw the reasonable inference” that fraud took place, (Doc. 39-1 at 2). Rather, as counsel for Defendant conceded in oral argument, for purposes of the motion before that court, the plaintiff’s allegations were only assumed to be true, as Rule 12(b) requires. (Hr’g Tr. 35:2–11, Oct. 16, 2015.) That court never made a factual finding of fraud. (Hr’g Tr. 35:8–11, Oct. 16, 2015.) Instead, it ruled only that the plaintiff had plead his case “adequate[ly].” Doc. 31 at 17, No. 12cv-03505. In fact, the Carroll case appears to still be in discovery. (Hr’g Tr. 26:5–8, Oct. 16, 2015.) In other words, the second ground in the Second Termination letters cannot satisfy the language of Title 50.
Finally, Defendant’s third asserted ground consists merely of untold and unspecified misrepresentations. Not one is substantiated in her letter or by her attorneys, and each, on the record now before the Court, has been credibly contradicted in PPGC’s August Letter. In this Court’s opinion, it is telling that the letter cites no “found” violation of licensure or certification requirements and any specific failure to meet any condition of enrollment. (Doc. 39-1 at 3.) It is too revealing that Defendant cites to the final clause of Section 46:437.11(D)(2), which allows for termination if a provider is “the subject of a sanction or of a criminal, civil, or departmental proceeding,” and deems an allusion to investigations by DHH and the Louisiana Office of Inspector General sufficient, (Doc. 39-1), a position rejected once before, New Orleans Home for Incurables, Inc. v. Greenstein, 911 F. Supp. 2d 410, 411–12 (E.D. La. 2012). When this Court asked him to substantiate these alleged misrepresentations, Defendant’s counsel could not. (Hr’g Tr. 33:3–8, Oct. 16, 2015.) In sum, Plaintiffs will likely be able to show that Defendant’s actions violated Louisiana’s Administrative Code.
51 of 59

In fact, the apparent fragility of the Second Termination Letters’ stated reasons raises another specter, for not one appears to be a supported factual allegation of the kind of fraud and ill-practice with which MAPIL is concerned. See Mortg. Elec. Registration Sys. v. Bynum, 879 So. 2d 807, 811 (La. Ct. App. 2004). Here, the facts matter, for as the Supreme Court of Louisiana explained in the spring of 2015, “[a]n agency exercising delegated authority is not free to pursue any and all ends, but can assert authority only over those ends which are connected with the task delegated by the legislative body.” Dep’t of Children & Family Servs. ex rel. A. L. v. Lowrie, 167 So. 3d 573, 587–88 (La. 2015); see also State v. Alfonso, 753 So. 2d 156, 161 (La. 1999) (“When the legislative body, in delegating powers, clearly expresses its policy and provides sufficient standards, judicial review of the exercise of the means chosen by the agency in exercising its delegated power provides a safeguard against abuse by the agency.”) Axiomatically, “[t]he open-ended discretion to choose ends is the essence of legislative power; it is this power that the legislative body possesses, but its agents lack.” Lowrie, 167 So.3d at 587. Section 46:437.11(D)(2) is but one part of a law directed towards narrow ills, and that the legislature logically expected the powers awarded by this provision to be employed so as “to combat and prevent fraud and abuse” and to secure the “fiscal and programmatic integrity” of a program otherwise endangered by “persons who engage in fraud, misrepresentation, abuse, or other ill practices” as expressly defined in MAPIL alone. See LA. R.S. § 46:437.2. Based on the evidence it has so far presented and if no actual evidence of a MAPIL-worthy-misdeed is adduced, Defendant has likely run afoul of this state’s statutory law.
C. SECOND ELEMENT: IRREPARABLE HARM In this regard, both the standard—“Irreparable in the injunction context means not
52 of 59

rectifiable by the entry of a final judgment,” Walgreen Co. v. Sara Creek Property Co., 966 F.2d 273, 275 (7th Cir. 1992)—and the record are clear.
Based on their uncontroverted affidavits, the Individual Plaintiffs greatly depend on PPGC, and if the Agreements are terminated, they will be unable to visit their Medicaid provider of choice. (Doc. 4-2, 4-3, 4-4.) Approximately, 5,200 other women visit BRHC and NOHC and likely depend upon it equally. (Doc. 41-1 ¶¶ 12 –18 at 4–5.) At this stage of the proceeding, the Court is persuaded that, absent this termination, the patients of PPGC in Louisiana will have their healthcare disrupted. Counsel for Defendant has already conceded this to be the case. (Hr’g Tr. 12:6–12.) Presented with similar facts, other courts have found irreparable harm. See, e.g., Doc. 45 at 22, Selig; Doc. 21 at 1–2, No. 15-cv-693; Planned Parenthood of Ind., Inc., 497 F. Supp. 2d at 912; Camacho, 325 F. Supp. 2d 794 at 802.
Based on its own unquestioned assertions, PPGC will also likely suffer irreparable harm. Regardless of the precise dollars in revenue it may receive from the state, PPGC has made clear that it may have to close BRHC upon the Agreements’ termination. (Doc. 46 at 27.) Often, such results have been considered irreparable. Planned Parenthood of Ind., Inc., 794 F. Supp 2d at 912; see also Canterbury Career School, Inc. v. Riley, 833 F. Supp. 1097, 1105 (D.N.J. 1993) (“Where the result of denying injunctive relief would be the destruction of an on-going business, such a result generally constitutes irreparable injury.”). The fact that the Eleventh Amendment forbids PPGC from ever collecting monetary damages, even if Defendant’s conduct is later found illegal, also militates in favor of deeming its likely harm to be irreparable, Green, 474 U.S. at 68, an allegation made by Plaintiffs, (Doc. 46 at 27 n.19), and never denied by Defendant. In addition, “potential reputational harm is present,” Doc. 12 at 1, No. 15-cv-693-CW, as Defendant’s termination may lead others to believe PPGC is not a competent provider despite
53 of 59

her own stated contrary belief, (Hr’g Tr. 11:12–16, Sept. 2, 2015). Cumulatively, these harms are irreparable. See, e.g., United Healthcare Ins. Co. v. Advance PCS, 316 F.3d 737, 741 (8th Cir. 2002); Glenwood Bridge, Inc. v. City of Minneapolis, 940 F.2d 367, 371 (8th Cir. 1991).
Defendant has sought to allay these concerns with the First, Second, and Third Kennedy Declarations. See supra Part II. Yet, these declarations’ manifold oversights and constant tinkering leave this Court with the decided impression that not even DHH can ensure that PPGC’s current patients will have some ready and convenient outlet. Indeed, even the most recent version contains a number of specialized providers who do not accept patients like PPGC’s own. See supra Part II.
D. THIRD ELEMENT: BALANCE OF HARMS Although the harms to Plaintiffs appear many, in her papers, Defendant gives the Court
only two: (1) “The granting of a TRO would prevent the LDHH from their ability to govern the Medicaid program under the authority granted by the Medicaid Act,” and, (2) “It would also contravene the Louisiana Legislature’s intent to give the LDHH a right to terminate a Medicaid provider agreement at-will when she chooses to do so.” (Doc. 13 at 20.) The second obviously bears no more relevance, as Section 46:436.11(D)(1) no longer applies. An injunction will have no financial effect, as DHH will still need to pay the Medicaid benefits of every PPGC Medicaid-eligible patient. See Doc. 12 at 1, No. 15-cv-693-CW, Marlo M. ex rel. Parris v. Cansler, 679 F. Supp. 2d 635, 638 (E.D.N.C. 2010). In dollars and cents, maintaining this status quo costs DHH nothing.
Furthermore, in terms of her ability to “govern the Medicaid program,” an injunction will not strip DHH of its statutory powers. It will not suddenly deprive of the ability to pursue
54 of 59

legitimate claims of Medicaid fraud or ensure that Louisiana citizens are obtaining “competent” medical care; she will still be able “to govern the Medical program.” At worst, it will halt its exercise of a particular power as to a single provider as to whose medical competency it has admitted. Indeed, at worst, such an injunction will do no more than convince DHH to invoke its powers under MAPIL more clearly and consistently in the future. New Orleans Home for Incurables, Inc., 911 F. Supp. 2d at 411–12. It would, in other words, force DHH to act as the statute implicitly demands. Other cases have so ruled. See, e.g., Doc. 45 at 30, No. 15-cv-00566KGB. With them, this Court agrees.
Nor is this Court persuaded by Defendant’s efforts to distinguish Plaintiffs’ cases. One case that Defendant had previously attempted to distinguish as being predicated on Section 46:437.11(D)(2), (Doc. 13 at 21), the very section she has now invoked, did so. New Orleans Home for Incurables, Inc., 911 F. Supp. 2d at 410–11. Taking her at her word, Defendant’s latest termination has now made this case particularly relevant. True, the second—Giovanni Carandola, Ltd. v. Bason, 303 F.3d 507 (4th Cir. 2002)—“involved a State that enforced restrictions likely to be found unconstitutional,” (Doc. 13 at 21.) Yet, the same can be said about an injunction intended to foreclose application of restrictions likely to be found contrary to preeminent federal statutory law designed to help the neediest of this state’s citizens.
In sum, even if Defendant’s criticism is given weight, the balance of harms would still favor Plaintiffs.
E. FINAL ELEMENT: PUBLIC INTEREST In light of Plaintiffs’ likely irreparable harm and the balanced equities, this final factor
favors an injunctive relief too. For decades, PPGC has served numerous at-risk individuals and
55 of 59

helped DHH combat a host of diseases, and, in the process, become the regular provider of over 5,000 women, including the Individual Plaintiff. Like its brethren, this Court “believes that . . . vulnerable population[s] should only be uprooted if practically necessary and legally warranted.” Greenstein, 911 F. Supp. 2d at 412. As the Ninth Circuit stated in considering this same factor in a Medicaid case, the public interest is most acute in regards to “ensuring access to health care” absent any misdeed’s demonstration. Indep. Living Ctr. of S. Cal, Inc. v. Maxwell-Jolly, 572 F.3d 644, 659 (9th Cir. 2002), vacated and remanded on other grounds 132 S. Ct. 1204 (2012). Defendant herself has urged this Court to employ this factor: “[I]t is certainly true that the public has an interest in the neediest of its members having access to healthcare.” (Doc. 13 at 21.) Like Selig and Herbert, this Court adopts this reasoning and finds the public interest favors Plaintiffs.
In contesting Plaintiffs’ public interest arguments, Defendant has offered up only the following statement of purported fact: “[T]here has been no evidence presented that shows Medicaid recipients in the New Orleans and Baton Rouge areas will not have access to family planning and related services.” (Doc. 13 at 21.) As support, she asked this Court to rely upon the First Kennedy Declaration. (Id.) As noted above, the Kennedy Declarations have been advanced, retracted, and again proposed, leaving this Court wary of relying on Defendant’s protean assertions of fact. It instead turns to the uncontested and unquestioned facts—PPGC serves 5,200 poor and needy women, and PPGC has repeatedly been deemed a “competent” provider by DHH—and honors the public interest in affording these women access to their provider of choice.
F. CONCLUSION Four elements are necessary before a court may issue an injunction. Every element has
56 of 59

been shown by Plaintiffs in this proceeding in regards to their Section 1396a(a)(23) claim. A TRO will therefore issue.
VI. FINAL ISSUES A. UNNECESSITY OF ANY SECURITY
Rule 65 allows a court to “issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” FED. R. CIV. P. 65(c). This requirement, however, may be waived where the gravity of interest is great and no proper showing of a harm’s likelihood or a probable loss is made. See, e.g., Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 628 (5th Cir. 1996); City of Atlanta v. Metro. Atlanta Rapid Transit Auth., 636 F.2d 1084, 1094 (5th Cir. Feb. 1981). Here, as in Selig, Defendant has neither requested a security were this Court to issue an injunction nor presented any evidence that it would be financially harmed if it were wrongfully enjoined. In addition, as Plaintiffs note, “[w]hether these individuals obtain these services at PPGC (their provider of choice) or elsewhere will have no effect on Louisiana’s budget.” (Doc. 46 at 28.) Based on these facts and on Defendant’s failure to ask for a bond or plead an economic harm, this Court sees no credible reason to force a bond’s execution.
B. CLASS INJUNCTION Plaintiffs argue that they have been singled out because of the alleged (but disputed)
conduct of a separate but connected company that appeared in one of CMP’s videos and that Plaintiffs played no role in that conduct. (Doc. 45-1 at 2–3.) Plaintiffs argue that Defendant has
57 of 59

attempted to terminate its contracts because of the personal animus against it. This animus, they contend, is unrelated to the admittedly competent services that it renders in Louisiana which are, in turn, unrelated to the conduct in the videos. In fact, the uncontradicted evidence in the record at this time is that PPGC does not perform abortions in Louisiana, is not involved in the sale of fetal tissue and none of the conduct in question occurred at the PPGC’s two Louisiana facilities. Based on the record before it, it appears likely that Plaintiff will be able to prove that the attempted terminations against it are motivated and driven, at least in large part, by reasons unrelated to its competence and unique to it. However, the Court finds it is not necessary and therefore it need not at this time rule on Plaintiffs’ equal protection argument. See, e.g., Lyng v. Nw. Indian Cemetry Protective Ass’n, 485 U.S. 439, 445, 108 S. Ct. 1319, 1323, 1323, 99 L. Ed. 2d 534 (1988) (“A fundamental and long-standing principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.”); cf. BRYAN A. GARNER & ANTONINA SCALIA, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 249–51 (2012) (discussing this rule’s bases).
Nonetheless, the uncontradicted evidence in the record is that BRHC relies to a significant degree on Medicaid reimbursements. The Court finds that if the Agreements are terminated, this facility would suffer significant financial loss and might have no choice but to close. In order to insure that meaningful relief is given to the Jane Doe Plaintiffs and that these Individual Plaintiffs have their free choice of provider, which claim they have established (at least at this preliminary stage), the Court’s temporary restraining order will extend to all DHHPPGC provider agreements applicable to all Medicaid-enrolled patients. The Court therefore defers action at this time on Plaintiffs’ alternative request for class certification to a more appropriate date and time.
58 of 59

VII. CONCLUSION For the foregoing reasons, PPGC and the Individual Plaintiffs have met their burden,
demonstrating every element necessary for the issuance of a temporary restraining order with credible evidence and persuasive precedent. Accordingly,
Defendant’s Motion to Dismiss (Doc. 53) is DENIED. Plaintiffs; Renewed Motion for Temporary Restraining Order and for Preliminary Injunction (Doc. 46) is GRANTED IN PART. Effective October 18, 2015, at 11:59 p.m., CST, Defendant is ENJOINED from terminating any of its Medicaid provider agreements with PPGC, including, but not limited to, Provider Numbers 91338, 133689, 45802, and 133673. The temporary restraining order will remain in force for fourteen (14) days from the date of its entry unless, pursuant to Rule 65(b)(2), the Court, for good cause shown or with the agreement of the Parties, extends it. A telephone status conference is set for Monday, October 19, 2015, at 2:30 p.m., for the purpose of discussing the extension of this order during discovery, setting a scheduling order for discovery, a hearing date for the preliminary injunction, and setting other appropriate cut-offs. The Plaintiffs will arrange for the conference call and circulate the number to the Court and counsel by 1:00 p.m., Central Standard Time, on October 19, 2015. Plaintiffs’ Motion for Preliminary Injunction will be DEFERRED but remain pending and will be set for a date that will allow the parties adequate time for discovery. Signed in Baton Rouge, Louisiana, on October 18, 2015
S
JUDGE JOHN W. deGRAVELLES UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA
59 of 59

 
 Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 1 of 80

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

PLANNED PARENTHOOD GULF COAST, INC.; JANE DOE #1; JANE DOE #2; and JANE DOE #3,
Plaintiffs,
VERSUS

CIVIL ACTION No. 3:15-cv-00565-JWD-SCR

KATHY KLIEBERT, Secretary, Louisiana Department of Health and Hospitals,
Defendant.
AMENDED RULING ON DEFENDANT’S MOTION TO DISMISS AND RULING ON PLAINTIFFS’ REQUEST FOR A PRELIMINARY INJUNCTION

I. INTRODUCTION Before the Court is the Renewed Motion for Temporary Restraining Order and
Preliminary Injunction filed by Planned Parenthood Gulf Coast, Inc. (“PPGC” or “Planned Parenthood”), appearing on behalf of both itself and three patients—Jane Does #1, 2, and 3 (“Individual Plaintiffs”)1 (collectively, “Plaintiffs”)—and based on Section 1396a(a)(23)(A) of the United States Code’s Forty-Second Title (“Medicaid Act”)2 and the First and Fourteenth

1 The Individual Plaintiffs “appear pseudonymously because of the private and personal nature of the medical care that they receive at PPGC, and their desire not to have that information become public in order for them to assert their legal rights.” (Doc. 1 at 5.) Plaintiffs’ unopposed motion seeking permission to use these pseudonyms was filed on August 25, 2015, (Doc. 5), and granted on August 26, 2015, (Doc. 11). 2 In this opinion, any reference to “Section 1396a(a)” or “§ 1396a(a)” is to this section of the Medicaid Act unless otherwise noted. Section 1396a(a)(23) will thus be referred to as “Section 1396a(a)(23)” or “§ 1396a(a)(23)” or by its oft-used title, “free-choice-of-provider” provision.
1 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 2 of 80
Amendments of the United States Constitution. (Doc. 46 at 17–26; Doc. 53 ¶¶ 62–67 at 19–20;
Doc. 45 at 1–2.) The arguments made in support of this motion appear in the Memorandum of
Law in Support of Plaintiffs’ Renewed Motion for Temporary Restraining Order and Preliminary
Injunction (“Plaintiffs’ Renewed Memorandum”), (Doc. 46), and Memorandum Regarding
Availability of State Remedy (“Plaintiffs’ Remedy Memorandum”), (Doc. 52). Plaintiffs’ request
is opposed by Louisiana’s Department of Health and Hospitals (“DHH”), whose head, Secretary
Kathy H. Kliebert, is being sued in her official capacity and is therefore this matter’s named
defendant (“Kliebert” or “Defendant”).3 Defendant’s arguments are put forth in the Motion to
Dismiss Complaint for Lack of Subject Matter Jurisdiction and Failure to State a Claim (“Motion
to Dismiss”), (Doc. 53), supported by the attached Memorandum in Support of Motion to
Dismiss Complaint for Lack of Subject Matter Jurisdiction and Failure to State a Claim
(“Defendant’s Memorandum”), (Doc. 53-1). Although no evidentiary hearing was held, the
matter was thoroughly briefed and argued. The Court has carefully considered the pleadings and briefings to date, which are discussed in more detail below.4 The Court also thoroughly
considered the oral arguments and representations of counsel at hearings held on September 2,
3 As permitted by precedent, Ex parte Young, 209 U.S. 123, 152, 28 S. Ct. 441, 451, 52 L. Ed. 714 (1908); accord Guillemard-Ginorio v. Contreras-Gomez, 585 F.3d 508, 530 n.24 (1st Cir. 2009), Plaintiffs sue for injunctive relief against Ms. Kliebert in her official capacity, (Doc. 1 at 5). To wit, the true defendant here is Louisiana, not Ms. Kliebert or even DHH. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989). In light of this duality, this Court will therefore alternate between feminine and third person pronouns throughout this opinion. 4 These motions include the first Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction (“Motion for TRO”), (Doc. 4); Memorandum of Law in Support of Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction (“Plaintiffs’ Memorandum”), (Doc. 4-1); Defendant’s Opposition to Plaintiffs’ Motion for Temporary Restraining Order (“Defendant’s Opposition”), (Doc. 13); Plaintiffs’ Reply Memorandum of Law in Support of Plaintiffs’ Motion for Temporary Restraining Order (“Plaintiffs’ Reply Memorandum”), (Doc. 22); the Statement of Interest of the United States (“Statement of Interest”), (Doc. 24); and Defendant’s Reply to the U.S. Department of Justice’s Statement of Interest (“Defendant’s Reply”), (Doc. 31).
2 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 3 of 80
2015 (“First Hearing”), and on October 16, 2015 (“Second Hearing”). On Sunday, October 18, this Court issued an order denying Defendant’s motion to
dismiss and granting Plaintiffs’ request for a temporary restraining order, (Doc. 55). It set a status conference for the following day. At that status conference, all parties agreed that no further discovery and no further argument was necessary for this Court to make its determination on whether to issue a preliminary injunction, (Doc. 58). Both parties expressed “no objection to converting the temporary restraining order to a preliminary injunction.” (Id.) This agreement was reaffirmed in a telephone status conference on October 28, 2015. (Doc. 62.) By the Parties’ express consent, the evidentiary record has therefore been finalized, and any factual allegations left uncontroverted must be accepted as true.
On October 28, 2015, by way of Notice of Supplemental Authority, Plaintiffs brought to the Court’s attention a case decided the same day which addresses the identical issue confronting this Court, in which the court granted a preliminary injunction enjoining the Governor of Alabama and others from suspending Medicaid payments to Planned Parenthood Southeast, Inc. and from failing to reinstate the State’s provider agreement with that entity. (Doc. 61 (attaching Doc. 63, Planned Parenthood Se., Inc. v. Bentley, No. 2:15-cv-620-MHT-TFM (M.D. Ala. October 28, 2015) (Opinion) (“Bentley”)).)5
For the reasons first set out in the Order on Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction, (Doc. 55), and more fully set forth below, the Court determines that Plaintiffs have met their burden for a preliminary injunction to maintain the status quo. The Court therefore enjoins from suspending Medicaid payments to PPGC for
5 In referencing these recent cases, this Court cites to the original decision and docket rather than its number, as an attachment, in this case’s docket. For example, the relevant decision in Bentley bears Docket Number 63 in its own docket, but it appears in this proceeding as Document Number 61. Both document numbers will be given when the decision is first cited.
3 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 4 of 80
services rendered to Medicaid beneficiaries, including but not limited to the Individual Plaintiffs pursuant to Federal Rule of Civil Procedure 65(b)(2).6 The preliminary injunction will remain in effect until it is revised, if at all, by this Court’s own further order or by a decision of the United States Court of Appeals for the Fifth Circuit (“Fifth Circuit”). For the reasons set forth hereinafter, the Court declines to require security under Rule 65(c) from PPGC or the Individual Plaintiffs.
II. FACTUAL AND STATUTORY BACKGROUND A. PARTIES
Defendant is sued in her official capacity, as she is the head of DHH, (Doc. 1 ¶ 19 at 4; Doc 43 ¶ 20 at 6; Doc. 53-1 at 1). DHH administers this state’s Medicaid Program, a dual statefederal assistance program for families and individuals with low income and limited resources encoded in 42 U.S.C. 1396 et seq.7 (See also, e.g., Doc. 1 ¶ 20 at 5; Doc. 13-1 ¶¶ 1–4 at 1–2; Doc. 43 ¶ 20 at 6; Doc. 53-1 at 1–4.) DHH does so by monitoring the allocation of federal-state funds in Louisiana and submitting a state plan for medical assistance for review and approval to the Centers for Medicare and Medicaid Services (“CMS”), operating under a delegation of
6 Any and all references to “Rule” or “Rules” in this order are to the Federal Rules of Civil Procedure unless otherwise noted. 7 Created by the addition of Title XIX to the Social Security Act, Social Security Amendments of 1965, Pub. L. No. 89-97, 79 Stat. 286 (codified as amended at 42 U.S.C. § 1396 et seq.), Medicaid “furnishes . . . medical assistance on behalf of families with dependent children and of aged, blind, or disabled individuals, whose income and resources are insufficient to meet the costs of necessary medical services,” 42 U.S.C. § 1396-1; see also John V. Jacobi, Multiple Medicaid Missions: Targeting, Universalism, or Both?, 15 YALE J. HEALTH POL’Y L. & ETHICS 89, 89, 91–92, 98 (2015) (discussing the Act’s manifold purposes). Medicaid offers the “States a bargain: Congress provides federal funds in exchange for the States’ agreement to spend them in accordance with congressionally imposed conditions” and the statute’s implementing regulations. Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1382, 191 L. Ed. 2d 471 (2015); 42 U.S.C. § 1396a; 42 C.F.R. § 430.15.
4 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 5 of 80
authority from the Secretary for the Department of Health and Human Services (“DHHS”). LA. R.S. §§ 46:437:2(B), 46:437.13;8 42 U.S.C. § 1396a(a); 42 C.F.R. 431.10. In accordance with the Louisiana Medical Assistance Programs Integrity Law (“MAPIL”), Medicaid providers must sign a contract with DHH and satisfy several requirements. LA. R.S. §§ 46:437:11, 46:437.13. (See also Doc. 13-1 ¶¶ 1–4 at 1–2.) DHH’s powers are circumscribed by statute while many of its relevant regulations appear in Title 50 of the Louisiana Administrative Code.9 (Doc. 53-1 at 2–4; see also Doc. 13-1 ¶ 3 at 1.) In this case, DHH initially invoked Section 46:437.11(D)(1), (Doc. 13 at 1–2, 13, 18; Doc. 53-1 at 1; Hr’g Tr. 11:25–12:8, Sept. 2, 2015), and presently relies upon Sections 46.437(D)(2) and 46:437.14(A) and Title 50, (Doc. 39-1 at 1–2, 5–6, 8–9, 11–12; Doc. 53-1 at 3–4, 24).
PPGC is a charitable organization, so classified under section 501(c)(3) of the Internal Revenue Code, 26 U.S.C. § 501(c)(1), U.S. DEP’T OF THE TREASURY, INTERNAL REVENUE SERV., FORM 990 at 1 (2012). (Doc. 43 ¶ 10 at 4; see also Doc. 4-2 ¶ 5 at 2.) Headquartered in Houston, Texas, it maintains its legal domicile in the Lone Star State, FORM 990 at 1, but is licensed to do business in Louisiana, (Doc. 43 ¶ 10 at 4; see also, e.g., Doc. 1 ¶ 9 at 3; Doc. 4-2 ¶ 5 at 2.) PPGC operates family planning centers and clinics in the Houston area of Texas and in Louisiana. (Doc. 43 ¶¶ 10–11 at 4; see also Doc. 1 ¶ 10 at 3–4.) Its first center founded in 1984, PPGC’s two Louisiana clinics—the Baton Rouge Health Center (“BRHC”) and the New Orleans Health Center (“NOHC”)—participate in Louisiana’s Medicaid Program, “providing medical services to low-income enrollees in both underserved communities.” (Doc. 1 ¶ 10 at 3–4; Doc. 43 ¶ 11 at 4; see also Hr’g Tr. 10:25–11:6, Sept. 2, 2015.)
8 In this opinion, any reference to “Section 46:437” or “§ 46:437” is to this statutory section unless otherwise noted. 9 In this opinion, any reference to “Title 50” is to this part of Louisiana’s administrative code.
5 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 6 of 80
In fiscal year 2014, the two facilities in Louisiana served over 5,200 Medicaid patients and were visited by over 10,000 women. (See, e.g., Doc. 43 ¶ 13 at 4; Doc. 1 ¶ 40 at 11; Hr’g Tr. 8:23–24, Sept. 2, 2015.) “Nearly 75%” of the visits to BRHC were by patients enrolled in Medicaid; “[n]early 40%” of appointments at NOHC were with similarly classified individuals. (Doc. 3 ¶¶ 9–10 at 3–4; Doc. 43 ¶ 11 at 4.) “[C]urrently, over 60% of PPGC’s Louisiana visits are for patients enrolled in the Medicaid program.” (Doc. ¶ 13 at 4.) The services offered by these two centers include “physical exams, contraception and contraceptive counseling, screening for breast cancer, screening and treatment for cervical cancer, testing and treating for certain sexually transmitted diseases . . ., pregnancy testing and counseling, and certain procedures[,] including colposcopy.” (Doc. 1 ¶ 10 at 3–4; Doc. 4-2 ¶ 8 at 3; Doc. 43 ¶ 11 at 4; Hr’g Tr. 7:24–8:7, 8:16–9:9, Sept. 2, 2015.)
Neither BRHC nor NOHC performs abortions. (Doc. 1 ¶ 11 at 4; Doc. 43 ¶ 12 at 4; Doc. 46-1 ¶ 5 at 2; Hr’g Tr. 21:22–25:3, Oct. 16, 2015.) Neither currently has or has ever had a fetal tissue donation program. (Doc. 46 at 11; Doc. 46-1 ¶ 21 at 6.)
The Individual Plaintiffs rely upon Medicaid and receive their medical care from one of PPGC’s two facilities. (Doc. 4-3, 4-4, 4-5.) They wish to continue to obtain their reproductive care from PPGC and do not know where they could elsewhere get the same kind of care. (Doc. 4-3 ¶¶ 6–7 at 2; Doc. 4-4 ¶ 8 at 2; Doc. 4-5 ¶ 6 at 2; Hr’g Tr. 8:23–9:9, Sept. 2, 2015.) Jane Doe #2 became a patient at NOHC after her former doctor refused to accept Medicaid, (Doc. 4-4 ¶ 3 at 1), and Jane Doe #2 has found it “very difficult to find doctors in Baton Rouge who will accept Medicaid,” (Doc. 4-5 ¶ 3 at 1). In this proceeding, they are intended to represent the interests of many of PPGC’s other Medicaid patients throughout the state of Louisiana. (See, e.g., Doc. 46 at 29–30; Doc. 49-1 at 10.)
6 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 7 of 80
B. PRECIPITATING EVENTS On February 19, 2014, pursuant to the concurrent resolutions of Louisiana’s House of
Representatives and Senate, the Louisiana Legislative Auditor (“Auditor”) reviewed “a sample of Medicaid payments DHH during calendar year 2012 to determine if they were appropriate and supported.” (Doc. 46-1 at 14 (LOUISIANA LEGISLATIVE AUDITOR, RESPONSE TO SENATE CONCURRENT RESOLUTION NO. 57 AND HOUSE RESOLUTION NO. 105, 2013 REGULAR SESSION 1 (Feb. 19, 2014)).10 “Overall,” the resulting report (“Legislative Audit”) “found that DHH [only] made payments to Planned Parenthood for allowable family planning procedure codes under Medicaid” and unearthed no “indication that Planned Parenthood recommended an abortion or performed an abortion for th[ose] patients.”11 (Id.) More specifically, having “extracted and analyzed claims data for all 25,936 claims DHH paid to Planned Parenthood for Medicaid reimbursements during calendar year 2012,” the Legislative Auditor “did not find any evidence that Medicaid payments to Planned Parenthood were not made . . . for allowable Family Planning procedure codes.” (Id. at 15 (emphasis added).) From these 25,936 claims, the Auditor “identified 22 patients that subsequently suffered a miscarriage” and failed to find “any indication that Planned Parenthood recommended an abortion or performed an abortion for these patients.” (Id.)12 Under Louisiana law, the Legislative Audit is “a public document” and was “distributed to appropriate public officials.” (Id.)
10 The Audit Report also appears as an attachment to the Motion for TRO. (Doc. 4-2 at 19–22.) 11 This report would be mentioned during the First Hearing. (Hr’g Tr. 4:21–5:2, Sept. 2, 2015.) 12 In essence, therefore, the Legislative Audit seems to ratify a statement made by a DHH official in an email sent on July 25, 2013: “At this point in time, we do not have credible evidence of Medicaid fraud by Planned Parenthood in Louisiana that would permit the Department from withholding or ceasing payment for Medicaid services.” (Doc. 46-3 at 2.)
7 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 8 of 80
In July 2015, the Center for Medical Progress (“CMP”) released a series of edited videos which purported to document discussions regarding the acquisition of tissue samples between various Planned Parenthood affiliates’ officials and disguised actors. See Kevin Litten, Bobby Jindal Announces Investigation into Planned Parenthood, THE TIMES-PICAYUNE, July 14, 2015; Planned Parenthood Exposed: Examining the Horrific Abortion Practices at the Nation’s Largest Abortion Provider: Hearing Before the H. Comm on Judiciary, 114th Cong. 192–201 (2015) (Analysis of CMP Video by Fusion GPS). Thereafter, DHH exercised its “oversight over all health facilities in the state” and requested that PPGC “answer some simple questions about . . . [its] current operations and planned operations in Louisiana.” (Doc. 46-1 at 51–52 (Letter from Kathy Kliebert, Sec’y, Dep’t of Health & Hosps., State of Louisiana, to Melaney Linton, Pres., Planned Parenthood Gulf Coast, Inc. (July 15, 2015)) (“Defendant’s July Letter”). DHH gave PPGC until July 24, 2015, to respond. (Id. at 51.)
On July 24, 2015, PPGC did so. (Doc. 46-1 at 54–58 (Letter from Melaney A. Linton, Pres. & CEO, Planned Parenthood Gulf Coast, Inc., to Kathy Kliebert, Sec’y, Dep’t of Health & Hosps., State of Louisiana (July 24, 2015)) (“PPGC’s July Letter”). This letter recaps PPGC’s history in Louisiana and denies the accusations made by CMP. (Id. at 54–55.) In it, Ms. Melaney A. Linton, PPGC’s President and Chief Executive Officer and this letter’s author (“Ms. Linton”), clarifies that PPGC “does not offer abortion services” in Louisiana. (Id. at 55.) PPGC acknowledged its link to Planned Parenthood Center for Choice, Inc. (“PPCFC”), a “standalone corporation” and a department of PPGC until 2005, and described itself as an “affiliate” of Planned Parenthood Federation of America (“PPFA”). (Id.) PPGC then responded to each of Defendant’s questions, emphasizing that neither PPGC nor PPCFC provide abortion services in Louisiana. (Id. at 55, 57.) To the question of whether any PPGC “facilities, or any affiliates,
8 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 9 of 80
subsidiaries, or associates thereof, sell or donate any unborn baby organs or body parts,”13 PPGC answered, “No.” (Id. at 56.) To another—“How many clinics operated by Planned Parenthood Gulf Coast, or any affiliates, subsidiaries, or associates thereof, do business with . . . any . . . organizations in the business of selling or donating the remains of unborn babies?”—PPGC answered, “None”. (Id.)
On August 4, 2015, Defendant sent a second letter to PPGC. (Id. at 60–61 (Letter from Kathy Kliebert, Sec’y, Dep’t of Health & Hosps., State of Louisiana, to Melaney Linton, Pres., Planned Parenthood Gulf Coast, Inc. (Aug. 4, 2015)) (“Defendant’s August Letter”). It zeroes in on three statements in PPGC’s July Letter: “PPCFC does not have a fetal tissue donation program in Texas currently”; “PPCFC disposes of Pathological Waste through an entity that is licensed for disposal of Special Waste from Health Care-Related Facilities”; and its “No” response to the question of whether “any Planned Parenthood Gulf Coast facilities, or any affiliates, subsidiaries, or associates thereof, sell or donate any unborn baby organs or body parts.” (Id. at 60.) Defendant characterized these answers as being “directly contradict[ed]” by another “recently released video made on April 9, 2015 at the Planned Parenthood facility in Houston, Texas, in which Melissa Farrell, Director of Research at Planned Parenthood Gulf Coast (PPGC), discusses existing contracts for fetal tissue donation for the purpose of research.” (Id.)
On August 14, 2015, PPGC responded. (Doc. 46-1 at 63 (Letter from Melaney A. Linton, Pres. & CEO, Planned Parenthood Gulf Coast, Inc., to Kathy Kliebert, Sec’y, Dep’t of Health & Hosps., State of Louisiana (Aug. 14, 2015) (“PPGC’s August Letter”)) (“PPGC’s August
13 Texas law apparently allows for the donation of the “products of spontaneous or induced human abortions, regardless of the period of gestation” to certain types of organizations and for particular purposes. 25 TEX. ADMIN. CODE §§ 1.132(40)(B), 1.133(a)(2)(B). In PPGC’s July Letter, it admitted that PPCFC disposes of such products in accordance with this law.
9 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 10 of 80
Letter”) On behalf of both PPGC and PPCFC, Ms. Linton denied the existence of any contradiction, as “neither PPCFC nor PPGC currently has a fetal tissue donation program in Texas, and neither sells nor donates fetal tissue.” (Id. at 63.) The letter proceeds to address each new question posed in Defendant’s August Letter. (Id. at 64–65.)
C. OVERVIEW OF THE FIRST AND SECOND TERMINATION ACTIONS 1. First Termination Letters, Kennedy Declarations, and CMS’ Statement of Interest
On August 3, 2015, Defendant notified PPGC of its intent to terminate the Agreements pursuant to § 46:137.11(D)(1) via four letters (“First Termination Letters”). (Doc. 1 ¶ 30 at 8; Doc. 13 at 1.) As this statute required, DHH gave PPGC 30-days’ notice from the relevant letters’ receipt. (Doc. 13 at 1–2.) The letters gave no reason for DHH’s decision. (Doc. 1 ¶ 32 at 8; see also Doc. 13 at 18, 20; Hr’g Tr. 14:6–8, Sept. 2, 2015.) In response, Plaintiffs filed their first complaint. (Doc. 1.)
On that day, the Honorable Piyush “Bobby” Jindal, governor of Louisiana (“Jindal” or “Governor”), published a press release announcing the Agreements’ looming terminations. Press Release, Hon. Bobby Jindal, Governor of Louisiana, Governor Jindal Announces the Termination of Medicaid Contract with Planned Parenthood (Aug. 3, 2015).14 This document states: “Governor Jindal and DHH decided to give the required 30-day notice to terminate the Planned Parenthood Medicaid provider contract because Planned Parenthood does not represent the values of the State of Louisiana in regards to respecting human life.” Id. It continues: “Planned Parenthood does not represent the values of the people of Louisiana and shows a fundamental disrespect for human life,” and, “It has become clear that this is not an organization 14 While never submitted as an exhibit, the press release was incorporated by reference in Plaintiffs’ first complaint. (Doc. 1 ¶¶ 32–33 at 8.)
10 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 11 of 80
that is worthy of receiving public assistance from the state.” Id. It refers to the possibility that PPGC “could be acting in violation of Louisiana law that states no person or group contracting with the state or receiving governmental assistance shall require or recommend that any women have an abortion.” Id. It concludes: “Pending the ongoing investigation, DHH reserves the right to amend the cancellation notice and terminate the provider agreement immediately should cause be determined.” Id.
During the First Termination Action, among the many documents docketed by the Parties, Defendant submitted a declaration by Ms. J. Ruth Kennedy (“Ms. Kennedy”), the Medicaid Director of DHH (“First Kennedy Declaration”), (Doc. 13-2 ¶¶ 1–5 at 1). (Doc. 13 at 21–22.) The First Kennedy Declaration’s sixth paragraph states: “There are no Medicaid services that only family planning clinics provide that could not be[ ]provided by other enrolled Medicaid providers in the State of Louisiana, including in New Orleans and Baton Rouge.” (Doc. 13-2 ¶ 6 at 2.) Its seventh further explains: “Any physician/physician extender and appropriately certified lab can provide family planning and related services as long as it is within their license and scope.” (Id. ¶ 7, at 2.) Per the next paragraph, “[t]here are 1,146 actively enrolled Medicaid providers in Region 1, covering the Greater New Orleans area, and 864 actively enrolled Medicaid providers in Region 2, covering the Greater Baton Rouge area, that can provide family planning and related services.” (Id. ¶ 8 at 2; see also Doc. 13 at 21.) A sorted provider list is attached; it includes dermatologists, dentists, audiologists, cosmetic surgeons, and orthopedic surgeons. (Doc. 13-2 at 5–41; see also Hr’g Tr. 23:18–25:2, Sept. 2, 2015.)
This First Kennedy Declaration also describes two telephonic conferences between CMS and DHH officials. According to Ms. Kennedy, on August 6, 2015, CMS advised DHH that the latter “has the authority to withhold federal Medicaid dollars from Louisiana or seek injunctive
11 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 12 of 80
relief for the failure to comply with the Medicaid Act.” (Doc. 13-2 ¶ 10 at 2.) CMS and DHH held a second conference call on August 21, 2015, in which CMS “advised” DHH “it would be sending a letter . . . confirming what CMS and HHS counsel had verbally conveyed to the Department during the August 6, 2015 conference call.” (Id. ¶ 11 at 2.) 15
On August 31, 2015, the United States Department of Justice, on behalf of CMS and DHHS, filed a Statement of Interest. (Doc. 24.) The United States did so due to “its strong interests in the proper operation of the Medicaid program . . . and in ensuring that the [s]tates administer their federally-subsidized Medicaid programs in a manner that is consistent with the Medicaid statute.” (Id. at 2.) Basically, the Statement of Interest makes three broad points.
First, because DHH has sought to terminate the Agreements “without providing any justification related to PPGC’s qualifications to provide medical services,” DHH’s proposed termination will run afoul of § 1396a(a)(23). (Id.; see also Doc. 22 at 2, 5, 6.) To read Section 1396a(a)(23) differently would both “strip the Medicaid Act’s free choice of provider provision of all meaning.” (Doc. 24 at 3.) It would simultaneously “contravene clear congressional intent to give Medicaid beneficiaries the right to receive covered services from any qualified and willing provider.” (Id.)
Second, the Statement of Interest declares that DHH’s interpretation is “inconsistent” with “the overwhelming weight of authority” and with DHHS’ own “considered and
15 A second declaration submitted by Ms. Kennedy (“Second Kennedy Declaration”) gives a somewhat different description of this call with CMS, offering up far more detail about the content of these conversations: “On the August 6, 2015, conference call . . . CMS and HHS told the Department that the any willing provider provisions under § 1396a(a)(23) was not all inclusive, but illustrative and that the Department could have other reasons to remove a provider from its program that were unrelated to the provider’s ability to perform the Medicaid-covered services or properly bill for those services.” (Doc. 31-1 ¶ 6 at 2.) The Second Kennedy Declaration continues: “CMS and HHS advised the Department that the validity of a state’s reasons for terminating a provider are made on a case by case basis.” (Id.)
12 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 13 of 80
longstanding views.” (Id. at 3, 4, 19–22.) It describes DHH’s interpretation of Section 1396a(a)(23) as “not even a plausible reading of the statute,” “certainly not compelled by the text of the provision,” and likely to “undermine[] the provision’s intent.” (Id. at 20.) Meanwhile, DHHS “has repeatedly and consistently interpreted the ‘qualified’ language in § 1396a(a)(23) to prohibit a State from denying 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.” (Id. at 3– 4.) Its view “is eminently reasonable,” verified by a dictionary, and recognizes “[a] role for States to set reasonable restrictions related to a provider’s ability to provide competent and skilled services” without “read[ing]” Section 1396a(a)(23) “out of the statute altogether, as Louisiana desires.” (Id. at 21.) It contends that this interpretation, made by CMS “under authority delegated to it by Congress,” merits deference. (Id.)
Finally, the Statement of Interest affirms CMS’ view that “Medicaid beneficiaries” like the Individual Plaintiffs “may enforce their statutory rights under § 1396a(a)(23) to their choice of a qualified provider through a private action under 42 U.S.C. § 1983” even after Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1382, 191 L. Ed. 2d 471 (2015) (“Armstrong”). (Doc. 24 at 2, 21; see also Doc. 22 at 2–5.)
2. First Hearing On September 2, 2015, the First Hearing was held. (Doc. 30.) During its course, the Parties’ positions on Section 1396a(a)(23) were clarified.
Plaintiffs’ counsel explained: “We’re here because the termination violates the Jane Doe Plaintiffs’ . . . right to free choice of provider under Section [1396]a(a)(23) of the Medicaid Act.” (Hr’g Tr. 4:10–12, Sept. 2, 2015.) Because PPGC is “competent to provide services,” it argued
13 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 14 of 80
that it was “qualified” within this subsection’s meaning. (Hr’g Tr. 4:16–5:12, Sept. 2, 2015.) The claim before the Court in the Motion for TRO was the Individual Plaintiffs’ claims under this provision of the “federal Medicaid act,” Plaintiffs’ counsel emphasized. (Hr’g Tr. 10:17–19, Sept. 2, 2015.) In Plaintiffs’’ view, whether or not PPGC held some administrative right was irrelevant, as the Individual Plaintiffs always lacked such prerogatives. (Hr’g Tr. 10:15–19, Sept. 2, 2015.) On the Individual Plaintiffs’ behalves, PPGC contested Defendant’s claim that Section 1396a(a)(23) creates no private cause of action. (Hr’g Tr. 4:10–15, 6:23–7:15, Sept. 2, 2015.) Specifically, it argued that it “clearly fulfills the standard set forth by the Supreme Court in Blessing [v. Freestone, 520 U.S. 329, 117 S. Ct. 1353, 137 L. Ed. 2d 569 (1997) (“Blessing”),] and then in the Gonzaga [University v. Doe, 536 U.S. 273, 153 L. Ed. 2d 309, 122 S. Ct. 2268 (2002) (“Gonzaga”),] . . . cases.”16 (Hr’g Tr. 6:13–19, Sept. 2, 2015.) In other words, this subsection uses “rights creating language that unambiguously confers a right on Medicaid patients” and is not “so vague and amorphous that . . . [it would] strain[] judicial competence to enforce.” (Hr’g Tr. 6:15–19, Sept. 2, 2015.) Plaintiffs sought to distinguish the more recent Armstrong from the body of law spawned by these cases by maintaining that it not only dealt with “a completely different section of the Medicaid Act,” one “without the same kind of rights creating language,” but also lacked any Section 1983 claim. (Hr’g Tr. 6:24–7:4, 7:7–15, Sept. 2, 2015.)
Defendant’s counsel countered that Section 1396a(a)(30) was substantially identical to Section 1396a(a)(23). These two subsections have “the exact same rights creating type of language”; both “say what the state plan should provide.” (Hr’g Tr. 16:17–22, Sept. 2, 2015.) He thus urged the Court to adopt the reasoning of the plurality in Armstrong. (Hr’g Tr. 14:10–15:8,
16 The relevant test is discussed later in this opinion. See infra Part V. 14 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 15 of 80
16:4–10, 16:13–14, 19:21–24, 22:24, 23:13 14, Sept. 2, 2015.) Defendant’s counsel also insisted that Section 1396a(a)(23)’s “qualified” requirement was “a very vague standard.” (Hr’g Tr. 18:1–2, Sept. 2, 2015.) Having proposed a number of denotations, (Doc. 13 at 8), Defendant’s counsel based this conclusion on his “conversations” with CMS and the supposed “[un]reasonabl[eness]” of CMS’ contrary interpretation, (Hr’g Tr. 16:24–17:10, 17:24–18:9, Sept. 2, 2015). Because “qualified” is inherently vague and ambiguous, Section 1396a(a)(23) cannot meet the Blessing test’s requirement that a right not be “so vague and amorphous as to be beyond the competence of the judiciary to enforce.”17 (Doc. 13 at 4, 8.) Defendant promised to “flesh out” her position in a response to the Statement of Interest. (Hr’g Tr. 17:1–2, Sept. 2, 2015.)
PPGC’s competence to provide the Medicaid services was also discussed. In response to this Court’s question regarding whether DHH had yet “raised any suggestion or made any suggestion that the reason for terminating the contract has anything to do with competency or the adequacy of the care that is given” by PPGC “to the patients who get their care at those facilities,” Plaintiffs’ counsel answered, “No.” (Hr’g Tr. 3:19–24, Sept. 2, 2015.) When this Court posed the same question to Defendant’s counsel—“There is no question . . . about the competency of these two facilities to provide Medicaid services and adequate care for the patients that they serve, would you agree with that?”—Defendant’s counsel answered, “At this time, I would agree with that.” (Hr’g Tr. 11:11–16, Sept. 2, 2015.) Additionally, when asked, “They’re not qualified because you’re terminating their contract?” Defendant’s counsel
17 It is unclear whether Defendant was also articulating a deference argument on her own behalf or simply trying to meet the second Blessing prong. Her statements can be read in both ways, as arguing that “qualified” is either so ambiguous as to confer interpretive discretion on DHH or so vague as to not satisfy Blessing. Either approach, however, fails to account for the statute’s plain language and much precedent. See infra Part V.B.1.
15 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 16 of 80
answered, “Exactly,” and admitted that DHH’s definition of “qualified” was “circular”: PPGC was no longer a “qualified” provider because DHH had made it so by terminating their contract, a mechanism he then stated had never before been utilized in quite this manner. (Hr’g Tr. 21:10– 13, 22–25, 22:10–13, Sept. 2, 2015.) He also acknowledged that the “current motive” or “the motive leading up to” the Agreements’ termination was CMP’s video tapes. (Hr’g Tr. 12:8–16, Sept. 2, 2015; see also Hr’g Tr. 35:12–19, Oct. 16, 2015.)
The Parties finally contested the capacity of this state’s other Medicaid providers to absorb PPGC’s patients. PPGC characterized the list included with the First Kennedy Declaration as containing “numerous examples of[,] on their face[,] providers that would not provide the care that Planned Parenthood provides, including dentists, radiologists, nursing homes, [and other] places that are not going to do breast cancer screening or give out birth control.” (Hr’g Tr. 8:18–22, Sept. 2, 2015.) PPGC maintained that “there’s no way that . . . other alternative providers have the capacity to absorb our patients.” (Hr’g Tr. 9:2–4, Sept. 2, 2015.)
Defendant’s counsel admitted that the Individual Plaintiffs would suffer “disruption of some kind,” being forced, “to get other doctors” and “seek out other places to get their health care.” (Hr’g Tr. 13:6–12, Sept. 2, 2105.) Defendant’s counsel also clarified the origins of the list of providers referenced in the Defendant’s Opposition and the First Kennedy Declaration. (Hr’g Tr. 23:18–25:9, Sept. 2, 2015.) It reflected “typically billed” codes, and was the result of “a code run” of providers that “can provide family planning services because they have billed for them” by Defendant. (Hr’g Tr. 24:4–6, 25:1–6, Sept. 2, 2015.)
3. Third Kennedy Declaration After the First Hearing, Defendant sought permission to amend its opposition and
16 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 17 of 80
substitute new papers “pursuant to . . . [its] duty to provide accurate information to the Court.” (Doc. 32 at 1.) Included in Defendant’s proposed amendments was a third declaration by Ms. Kennedy (“Third Kennedy Declaration”). This Third Kennedy Declaration corrects Defendant’s first list of providers, explaining: “I[, Ms. Kennedy,] ordered a comprehensive review of this exhibit and have since discovered that nursing facilities and dentists should not have been included.” (Doc. 34-2 ¶ 8a at 2; see also Doc. 34 at 2.) It adds: “The other provider types included in Exhibit 1 are appropriate due to what they are allowed to do under the scope of their license.” (Doc. 34-2 ¶ 8a at 2; see also Doc. 34 at 2.) It gives two other examples: “[A]nesthesiologists, who can be reimbursed for their role in sterilization procedures[,] and radiologists, who can be reimbursed for reading ultrasounds, etc. related to reproductive/women’s health issues.” (Id.)
This “review of the information in [the First Kennedy Declaration] also revealed a more precise description of Medicaid providers in the New Orleans and Baton Rouge areas other than PPGC who are available to patients seeking family planning and related services.” (Doc. 34 at 2.) Defendant’s staff had “gather[ed] information from available Medicaid providers in proximity to the two Planned Parenthood locations in New Orleans and Baton Rouge, Louisiana.” (Doc. 34-2 ¶ 8b at 2.)
As a result of this additional inquiry, Ms. Kennedy had decided to cull the list of relevant providers from over one-thousand (2,000) to twenty-nine (29), (Compare Doc. 13-2 ¶ 8 at 2, with Doc 34-2 at 5–6). This amended document includes two entries for the City of New Orleans Health Department, whose titles suggest one primarily serves and another mostly the homeless. (Id. at 5.) The Court also notes that the name of some of the other entities listed suggest that their patent base is similarly limited, e.g. “NO/Aids Task Force,” “New Orleans Musicians’ Clinic”.
17 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 18 of 80
(Id.) While five providers in the Baton Rouge area are identified in the corrected Declaration,
“LSU Health-OLOL” appears twice. (Id.) One location’s medical doctors do not accept new patients, and neither clinic provides contraception of any kind. (Id.) Finally, only one Baton Rouge center has an approximate wait time of less than one week (“1-3 days, same day for est. pt.”). (Id.)
4. Abandonment of First Termination Action and Commencement of the Second Termination Action On September 9, 2015, Defendant chose to “rescind” her earlier at-will terminations.
(Doc. 38 at 2.) On September 14, 2015, Defendant sent the First Termination Letters, one for each Agreement, to PPGC. (Doc. 38 at 4, 6, 8, 10; Doc. 46-1 at 18–36.) On September 15, 2015, Defendant followed these rescission letters with four new termination letters (“Second Termination Letters”). (Doc. 39 at 1; Doc. 46-1 at 37–49.) While the First Termination Letters had invoked Section 46:437.11(D)(1), (Doc. 38 at 4, 6, 8, 10), the Second Termination Letters rely on Sections 46:437.11(D)(2) and 46:437.14 and Title 50. (Doc. 39-1 at 2–3, 5–6, 8–9, 11– 12; Doc. 46-1 at 37–49). Both MAPIL sub-provisions, Section 46:436.11(D)(2) allows for “for cause” termination of a provider agreement, and Section 46:437.14 identifies a number of violations, LA. R.S. §§ 46:437:11(D)(2), 46:437.14. The Second Termination Letters specify several different grounds.
The first is a settlement in Reynolds v. Planned Parenthood Gulf Coast, Inc., Case Number 9:09-cv-124-RC (E.D. Tex.) (“Reynolds Settlement”), a lawsuit pursuant to the False Claims Act (“FCA”) in the Eastern District of Texas between PPGC and an FCA plaintiff. (Doc.
18 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 19 of 80
39-1 at 2, 5, 8, 11.) According to the letters, two violations of Title 50 were based on this settlement. First, simply by settling this action, PPGC had violated Title 50. (Id.) Second, since DHHS had not been informed “within ten (10) working days of when the provider knew or should have known of the violation,” another violation of Title 50 had occurred. (Id.)
A second (or third) ground consisted of “provider audits and federal false claims cases against PPFA . . . affiliates.” (Id.) Another Texas case, Carroll v. Planned Parenthood Gulf Coast, Case Number 4:12-cv-03505 (S.D. Tex.) (“Carroll”), fell within this description. According to the letters, in Carroll, “the presiding judge found that the information already provided allows the court to draw the reasonable inference that Planned Parenthood knowingly filed false claims.” (Doc. 39-1 at 2, 5, 8, 11; see also Hr’g Tr. 36:2–22, Oct. 16, 2015.) Relying on this interpretation of Carroll, the Second Terminations Letters cite Louisiana law— “Providers and providers-in-fact are required to ensure that all their agents and affiliates are in compliance with all federal and state laws as well as rules, policies and procedures of the Medicaid program”—and concluded: “PPGC and its parent organization PPFA has failed to do so and has failed to notify DHH of violations and misconduct by affiliates and providers-infact[,] . . . violations of . . . Title 50.” (Doc. 39-1 at 2, 5, 8, 11.)
The third basis for termination was Defendant’s determination that PPGC’s July and August Letters, see supra Part II.B, contained “misrepresentations” upon Defendant’s further review of CMP’s videos. (Doc. 39-1 at 3, 6, 9, 12.) These alleged misrepresentations were described as violations of Sections 46:437.11(D)(2) and 46:437.14(A)(1). (Id.) Although other grounds are referenced in these letters, including audits, noncompliance with various Title 50 conditions, and more, unidentified misrepresentations constitute the third effective category.18
18 For example, Defendant maintained that, as Section 46:437.11(D)(2) allows for termination “immediately and without notice if a health care provider is the subject of a sanction or of a
19 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 20 of 80
(Id.)
After receiving these Second Termination Letters, Plaintiffs filed an unopposed motion to
amend the complaint on October 7, 2015, (Doc. 41), a request granted on that same day, (Doc.
42). Already attached to the motion to amend, (Doc. 41-1), a new amended complaint (“Amended Complaint”) followed on October 7, 2015, (Doc. 43).19 Two days later, Plaintiffs
filed the Renewed Motion for TRO, (Doc. 45), and the Renewed Memorandum, (Doc. 46).
Simultaneously, Plaintiffs filed the Plaintiffs’ Motion for Limited Expedited Written Discovery,
(Doc. 47), and Plaintiffs’ Memorandum in Support of Plaintiffs’ Motion for Limited Expedited
Discovery, (Doc. 48). On October 14, 2015, Plaintiffs docketed the Memorandum Regarding
Availability of State Remedy. (Doc. 52 at 1.) Defendant filed the Motion to Dismiss, (Doc. 53),
and Defendant’s Memorandum on October 14, 2015, (Doc. 53-1). On October 16, 2015, this
Court held the Second Hearing. The Court orally denied Plaintiffs’ Motion for Limited
Expedited Written Discovery and took the remaining motions under advisement at the Second
Hearing’s conclusion. Late that day, Plaintiffs filed a copy of the Reynolds Settlement. (Doc. 54.)
On Sunday, October 18, 2015, this Court issued an order denying Defendant’s motion to
dismiss and granting Plaintiffs’ request for a temporary restraining order. (Doc. 55.) It set a
criminal, civil, or departmental proceeding,” it had determined “that PPGC currently fits within this statute due to the investigations of PPGC by both DHH and the Louisiana Office of Inspector General.” (Doc. 39-1 at 3, 6, 9, 12.) And finally, pursuant to Section 46:437.14(A)(l0) and (12), Defendant claimed that it “may move to revoke enrollment if a provider is found in violation of licensing or certification conditions or professional standards relating to the licensure or certification of health care providers or the required quality of goods, services, or supplies provided” as well as “for failure to meet any condition of enrollment.” (Id.) PPGC, however, has counted three, and Defendant has not yet contradicted this grouping in writing or during the Second Hearing. (Hr’g Tr. 25:16–29:10, Oct. 16, 2015.) 19 While many paragraphs in the Amended Complaint mirror exactly those in the First Complaint, (Doc. 4 ¶¶ 1, 2, 3, 4, 9–14, 18–33, 35, 37–49, with Doc. 43 ¶¶ 1, 2, 3, 5, 10–15, 19– 33, 41, 43–55), or underwent slight alteration (i.e. dates), (Doc. 4 ¶ 5, with Doc. 43 ¶ 6), Plaintiffs refined others so as to reflect this case’s latest posture and developments, (Doc. 43 ¶¶ 4, 6, 35–36), and class action claims, (Doc. 43 ¶¶ 16–19, 56–61, 68).
20 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 21 of 80
status conference for the following day. (Id. at 59.) At that status conference, all parties agreed that no further discovery and no further argument was necessary for this Court to make its determination on whether to issue a preliminary injunction. (Doc. 58.) The Parties expressed “no objection to converting the temporary restraining order to a preliminary injunction.” (Id.)
On October 28, 2015, Plaintiffs filed the Notice of Supplemental Authority. (Doc. 61.) The Notice includes as an attachment a copy of “a preliminary injunction,” issued by the Middle District of Alabama, “in a case substantially similar to the instant action.” (Id. at 1.) Later that same day, at Defendant’s request, this Court held a second telephonic status conference. (Doc. 62.) Once more, the Parties affirmed that they regarded the record as complete and sufficient for the issuance of a preliminary injunction. (Id.)
. D. OVERVIEW OF PARTIES’ ARGUMENTS 1. Plaintiffs’ Arguments
In their Motion for TRO and Renewed Motion for TRO, Plaintiffs have made four relevant arguments to why they are entitled to a temporary restraining order.
First, Plaintiffs contend that they will likely prove that Defendant’s efforts violate federal statutory and constitutional law. They begin by arguing that Defendant’s latest termination, like the first, is prohibited by the plain meaning of Section 1396a(a)(23) and are thus in violation of controlling federal law. (Doc. 46 at 17–22; see also Doc. 4-1 at 16.) This Free-Choice-ofProvider Provision bars Defendant from excluding PPGC from Medicaid for a reason unrelated to its fitness to provide medical services. (Doc. 46 at 18, 21, 22; Doc. 4-1 at 11.) Because “Defendant has nowhere suggested that PPGC is not ‘qualified to perform’ the Medicaid services it provides,” its action cannot be cohered with this subsection’s language and purpose. (Doc. 4-1
21 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 22 of 80
at 15, 16; see also Doc. 46 at 17.) Plaintiffs concurrently maintain that this particular subsection, in contrast with Section
1396a(a)(30), which was the focus in Armstrong, does afford the Individual Plaintiffs with a right enforceable via Section 1983. (Doc. 46 at 18–19 & n.9; Doc. 4-1 at 12–13 & n.9; see also Hr’g Tr. 6:23–7:4, Sept. 2, 2015.) Throughout their discussion in the Renewed Memorandum, Plaintiffs rely on many of the same cases, including Planned Parenthood Ariz. Inc. v. Betlach, 727 F.3d 960 (9th Cir. 2013), cert. denied, 134 S. Ct. 1283, 188 L. Ed. 2d 300 (2014) (“Betlach”); Planned Parenthood of Ind., Inc. v. Comm’r of Ind. State Dep’t of Health, 699 F.3d 962 (7th Cir. 2012), cert. denied, 133 S. Ct. 2738, 186 L. Ed. 2d 193 (2013), 133 S. Ct. 2736, 186 L. Ed. 2d 193 (2013 (“Indiana”); and Women’s Hospital Foundation v. Townsend, No. 07711-JJB-DLD, 2008 U.S. Dist. LEXIS 52549, 2008 WL 2743284 (M.D. La. July 10, 2008) (“Townsend”). (See, e.g., Doc. 46 at 17, 18 & 18 n.13.) Repeatedly, Plaintiffs emphasize that even if PPGC’s action would be barred by Armstrong the Individual Plaintiffs retain a viable cause of action under Section 1983.
In the Renewed Memorandum, Plaintiffs do abandon their procedural due process claim, (Hr’g Tr. 15:19–16:1, Oct. 16, 2015; compare Doc. 43 ¶¶ 62–67 at 19–20, with Doc. 1 ¶¶ 56–57 at 14), but do reiterate their two constitutional ones, (Doc. 1 ¶¶ 52–55 at 14; Doc. 43 ¶¶ 64–67 at 20). Now, Plaintiffs argue that Defendant, without sufficient justification, is singling them out for unfavorable treatment, violating the Equal Protection Clause of the Constitution’s Fourteenth Amendment, U.S. CONST. amend. XIV, § 2, and is attempting to penalize them for freely associating with other related Planned Parenthood entities, thereby contravening the freedom of association guaranteed by the First Amendment, see U.S. CONST. amends. I, IX, § 2; Nat’l Ass’n for Advancement of Colored People v. Ala. ex. rel Patterson, 357 U.S. 449, 460, 78 S. Ct. 1163,
22 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 23 of 80
1498, 2 L. Ed. 2d 1488 (1958); Arnaud v. Odom, 870 F.2d 304, 311 (5th Cir. 1989). (See, e.g., Doc. 46 at 22.)
Second, Plaintiffs insist that the harm to PPGC and the Individual Plaintiffs will be irreparable if the termination comes to pass. The Individual Plaintiffs will be deprived of their ability to exercise their federal statutory rights, and will suffer a disruption of their relationship with a preferred (and competent) provider and a reduction of their access to family planning services. (Doc. 46 at 26; see also Doc. 4-1 at 8–9, 17.) PPGC, in turn, will find its budget sharply curtailed, possibly forcing it to close down BRHC permanently, and will never be able to recover any monetary damages from DHH. (Doc. 46 at 27 & n.19; see also Doc. 4-1 at 17–18, 18 n.13.)
Third, Plaintiffs argue that the balance of harms favors them. “While PPGC and its patients will suffer serious irreparable harm in the absence of an injunction, the state will suffer no injury at all.” (Doc. 46 at 27; see also Doc. 4-1 at 18.) The reason, Plaintiffs contend, is because an injunction will do no more than “require the state to maintain the funding [it] ha[s] provided to . . . [PPGC] for years.” (Doc. 46 at 27 (internal quotation marks omitted) (alterations in original); see also Doc. 4-1 at 18.)
Finally, Plaintiffs assert that the public interest favors their injunctive request. The public has a “strong” interest “in ensuring continued public access to crucial health services, especially for the many underserved and low-income patients PPGC serves.” (Doc. 46 at 28; see also Doc. 4-1 at 18.) Such an interest is especially “acute with respect to the neediest . . . who depend on publicly funded programs.” (Doc. 46 at 28; see also Doc. 4-1 at 19.)
As to Defendant’s argument that PPGC’s failure to pursue a state administrative appeal of the termination renders the controversy not ripe and deprives all Plaintiffs of standing, Plaintiffs argue that PPGC is not required to pursue the state administrative appeal but can
23 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 24 of 80
instead pursue its rights under Section 1983. (Doc. 52 at 2–3; see also Hr’g Tr. 6:6–10, Sept. 2, 2015.) The Individual Plaintiffs argue that they have no right to administratively appeal the Agreements’ termination and thus could not do so if they wanted to. (Doc. 52 at 3; see also Hr’g Tr. 10:15–17, Sept. 2, 2015.) As such, regardless of whether or not PPGC’s claims are ripe, their claims are clearly so, and their standing just as much. (See Doc. 52 at 1.)
2. Defendant’s Arguments Invoking Rule 12(b)(1) and (6), Defendant makes essentially three arguments. First, Defendant contends that this Court lacks subject-matter jurisdiction over this
dispute because this case is not ripe and Plaintiffs lack prudential and constitutional standing. (Doc. 53-1 at 5–9.) Defendant insists on this case’s unripe state for three reasons: (1) “Plaintiffs have suffered no injury”; (2) “further procedural and factual development is required”; and (3) no hardship can be shown. (Id. at 6, 8.) As support for his first and second reason, Defendant argues that because PPGC may appeal this termination, during which the Agreements will remain enforce in accordance with Defendant’s wishes, this “suspensive” review process leaves all Plaintiffs without a cognizable injury. (Id. at 6–7 (injury), 8 (hardship), 9 (injury for standing purposes).) Defendant’s Memorandum further explains the reasons for a lack of ripeness and standing as such: “In the instant matter, PPGC is asserting a due process violation while simultaneously hinting that it may voluntarily elect not to participate in the process about which it complains.” (Id. at 8 (emphasis in original).)
Second, Defendant argues for abstention, emphasizing these doctrines’ purpose of “preserv[ing] the balance between state and federal sovereignty.” (Id. at 10.) Defendant cites to four abstention doctrine—Pullman, Younger, Burford, and Colorado River—and foregoes one—
24 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 25 of 80
Thibodaux. (Id. at 10–12.) When cumulatively considered, these doctrine’s “animating” principles have a “clear . . . application” to this proceeding: “Plaintiffs should not be indulged in their attempt to invoke the jurisdiction of this Court in the absence of State agency action against them that would delineate . . . [Defendant’s] interpretation of the challenged provision, and in the presence of adequate state administrative and judicial procedures if that eventuality were to occur.” (Id. at 12.)
Third, Defendant insists Plaintiffs cannot prevail on the merits for four reasons. First, “Plaintiffs have no property interest in the Medicaid provider contracts.” (Id. at 13; see also Doc 13 at 14–18.) Second, even if Plaintiffs have a property interest, Louisiana’s administrative appellate process “complies with the mandates of due process” and federal regulation, for “the essence of due process is notice plus an opportunity to be heard.” (Doc. 53-1 at 17.) Third, Defendant insists that Section 1396a(a)(23) does not afford the Individual Plaintiffs any private cause of action, (Compare Doc. 53-1 at 18–22, with Doc. 13 at 4–9), and is sufficiently ambiguous to permit Defendant to exercise her discretion to define “qualified” in accordance with her construction of state law, (Doc. 53-1 at 21; see also Doc. 4 at 8). Defendant thus insists that her authority under Section 46:437.11(D)(2) is not limited “to determining whether a provider is competent to provide . . . services.” (Doc. 53-1 at 22.) She can, instead, invoke any ground derived from state law, including, but not limited, the bases set forth in Section 46:437.12 and Title 50, to determine whether a provider is “competent” or not. (Doc. 53-1 at 23–24.)
25 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 26 of 80
IV. PRELIMINARY ISSUES: JURISDICTION AND ABSTENTION A. RIPENESS 1. Defendant’s Arguments
Defendant provides the correct standard by which to measure its argument that this case is not ripe: for the purposes of this doctrine, “a court must evaluate (1) the fitness of the issues for judicial resolution, and (2) the potential hardship to the parties by declining court consideration,” (Doc. 53-1 at 6 (quoting Lopez v. City of Houston, 617 F.3d 336, 342 (5th Cir. 2010)). Defendant maintains the case is not ripe for three reasons: (1) “Plaintiffs have suffered no injury”; (2) “[F]urther procedural and factual development is required, as demonstrated by Plaintiffs’ due process claim . . . and their request to conduct expedited discovery in this proceeding”; and (3) no hardship exists because “the review process is suspensive,” a third point substantively identical to its first (Doc. 53-1 at 6, 8). At the Second Hearing, her counsel stressed one aspect of the Constitution’s ripeness requirement: “There is absolutely no injury”; “[T]here is absolutely no harm to them at all”; “[T]hey have no injury”; and, “There’s no concrete injury to any of the Planned Parenthood or to any of the Jane Doe Plaintiffs because, again, there simply is no injury.” (Hr’g Tr. 4:21–23, 9:2, 17:18–21, Oct. 16, 2015.)
2. Analysis (a) Existence of Credible Threat of Concrete Harm
Drawn from Article III but incorporating various prudential elements, U.S. CONST. art. III, § 2; Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n. 18, 113 S. Ct. 2485, 2495 n.18, 125 L. Ed. 2d 38 (1993), ripeness is “a justiciability doctrine designed to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over
26 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 27 of 80
administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties,” Nat’l Park Hospitality Ass’n v. U.S. Dep’t of Interior, 538 U.S. 807–08, 123 S. Ct. 2026, 2030, 155 L. Ed. 2d 1017 (2003) (internal quotation marks omitted). It generally incorporates, as Defendant rightly notes, (Doc. 53-1 at 6), consideration of two elements: “(1) the fitness of the issues for judicial decision and (2) the hardship to the parties of withholding court consideration.” Nat’l Park Hospitality Ass’n, 538 U.S. at 808 (citing to Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S. Ct. 1507, 1515, 18 L. Ed. 2d 681 (1967) (“Abbott Labs.”), overruled on other grounds, Califano v. Sanders, 430 U.S. 99, 105, 97 S. Ct. 980, 984, 51 L. Ed. 2d 192 (1977))).20
Defendant argues that Plaintiff has suffered no injury sufficient for ripeness’ purposes. This argument fails for two reasons. The primary reason is well-rooted in ripeness jurisprudence: “In evaluating ripeness, the central focus is on whether the case involves uncertain or contingent future events that may not occur as anticipated, or indeed may not occur at all.” Tarrant Reg’l Water Dist. v. Herrmann, 656 F.3d 1222, 1250 (10th Cir. 2011) (quoting Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1097 (10th Cir. 2006)). However, an injury need not be actual in a physical sense for a plaintiff’s case to cross the ripeness threshold. Rather, if a plaintiff is “immediately in danger of sustaining some direct injury as the result of the challenged official conduct,” ripeness will often be found. Pearson v. Holder, 624 F.3d 682, 684 (5th Cir. 2010); see also Whole Woman’s Health v. Cole, 790 F.3d 563, 582 (5th Cir. 2015) (quoting id.). It is enough that “an injury that has not yet occurred is sufficiently likely to happen to justify judicial intervention” or “when the court would be in no better position to adjudicate the issues in 20 Abbott Labs.’ conclusion as to the Administrative Procedures Act was abrogated. It remains valid as to its ripeness’ analysis and continues to be cited in that limited regard.
27 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 28 of 80
the future than it is now.” Pearson, 624 F.3d at 684 (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 101–02, 103 S. Ct. 1660, 1665, 75 L. Ed. 2d 675 (1983)). A “future injury” will be deemed ripe (and establish standing) if either “the injury is certainly impending” or “there is substantial risk that the harm will occur.” Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341, 189 L. Ed. 2d 246 (2014) (emphasis added); see also Caprock Plains Fed. Bank Ass’n v. Farm Credit Admin., 843 F.2d 840, 845 (5th Cir. 1988) (concluding that “too many ifs” that render an injury a “mere potential[ity],” not just one or two that may render such a result into a substantial possibility or even a probability, will make a case unripe).
Thus, “ripeness is seldom an obstacle to a pre-enforcement challenge . . . where the plaintiff faces a credible threat of enforcement.” Consumer Data Indus. Ass’n v. King, 678 F.3d 898, 907 (10th Cir. 2012); cf. Babbitt v. UFW Nat’l Union, 442 U.S. 289, 298 99 S. Ct. 2301,2308, 60 L. Ed. 2d 895 (1979) (finding standing where “a realistic danger of sustaining a direct injury as a result of a statute’s operation or enforcement” existed (emphasis added)). In such cases, the plaintiff is typically “not . . . required to await and undergo [enforcement] as the sole means of seeking relief.” Consumer Data Indus. Ass’n, 678 F.3d at 907; see also, e.g., Barrick Goldstrike Mines, Inc. v. Browner, 215 F.3d 45, 49 (D.C. Cir. 2000) (holding that declaratory judgment action was ripe for judicial review under the Administrative Procedures Act where plaintiff’s “only alternative to obtaining judicial review now is to violate EPA’s directives . . . and then defend an enforcement proceeding on the grounds it raises here”). As the Supreme Court has recently written, an agency’s prospective, not yet consummated, action will be found ripe for review if “the scope of the controversy has been reduced to more manageable proportions . . . by some concrete action applying the regulation to the claimant’s situation in a fashion that harms or threatens to harm him.” Nat’l Park Hospitality Ass’n, 538 U.S. at 808
28 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 29 of 80
(emphasis added). Under this precedent, Defendant’s Second Termination Letters represent certain threats,
classifiable as “concrete action[s]” that “threaten to harm” Plaintiffs, id.; see also AlabamaCoushatta Tribe of Tex. v. United States, 757 F.3d 484, 491 (5th Cir. 2014). Here, the existing record amply supports this determination: Defendant has made it clear she intends to terminate the Agreements, the only thing changing since the initial termination letters being the reason. In effect, by her own actions, she has triggered the application of a general rule, federal courts having “consistently found a case or controversy in suits between state officials charged with enforcing a law and private parties potentially subject to enforcement,” Consumer Data Indus. Ass’n, 678 F.3d at 905. A case’s ripeness simply does not depend on whether the injury has already been inflicted; “specific threat[s] of enforcement” like those the Defendant has already made are typically more than enough to satisfy the constitutional minimum. Reynolds v. City of Valley Park, No. 4:06CV01487 ERW, 2006 U.S. Dist. LEXIS 83210, at *25, 2006 WL 3331082, at *6 (E.D. Mo. Nov. 15, 2006); see also, e.g., Cass Cnty. v. United States, 570 F.2d 737, 740 (8th Cir. 1978) (“Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” (quoting Maryland Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273, 61 S. Ct. 510, 512, 85 L. Ed. 826 (1941)).
In this analysis, Defendant’s own description of her actions is pivotal and telling. She has not proposed a new regulation or initiated a new round of rulemaking. (See, e.g., Hr’g Tr. 33:11– 14, Oct. 16, 2015; Doc. 53-1 at 1–2.) Instead, per her Second Terminations Letters, she intends to enforce what she perceives to be state law in accordance with her construction of federal
29 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 30 of 80
statutory law. (Doc. 39-1 at 2–3, 5–6, 8–9, 11–12.) In fact, as the First Termination Letters attest, the Agreements’ termination pursuant to a MAPIL section has been threatened since at least August 2015, and Defendant has now only swapped no reason for three. (Compare Doc. 13, with Doc. 39-1.) As such, in the Tenth Circuit’s words, “enforcement” has been “credib[ly] threat[ened],” her actions having made Plaintiffs’ case ripe by lending substance to their preOctober 18, 2015, allegations. Consumer Data Indus. Ass’n v. King, 678 F.3d at 907. In such a situation, “[o]ne does not have to await the consummation of threatened injury to obtain preventive relief,” for “the injury is certainly impending”—and “that is enough.” Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 201, 103 S. Ct. 1713, 1721, 75 L. Ed. 2d 752 (1983) (quoting Pennsylvania v. West Virginia, 262 U.S. 553, 593, 43 S. Ct. 658, 663, 67 L. Ed. 1117 (1923)). Based on these circumstances and the overwhelming weight of precedent, Plaintiffs’ threatened and certain injury is clear.
Two general admissions by Defendant’s counsel at the Second Hearing strengthen this conclusion. First, though only indirectly, he himself conceded that a kind of “harm” may have already come to pass: in arguing why no cognizable injury had yet transpired, he emphasized possible contingencies: “I think that one of the contingencies that could happen is their rights could be restored . . . . [The] suspension could be lifted.” (Hr’g Tr. 17:23–25, Oct. 16, 2015 (emphases added).) He characterized Defendant’s actions as, prior to October 18, 2015, being “suspensive” if PPGC chose to appeal, and “the final action” as “suspended.” (Hr’g Tr. 10:4–12, 6:1–6, Oct. 16, 2015.) Both the First and Second Termination Letters imply the same. (Doc. 38 at 4, 6, 8, 10 (informing PPGC that DHH “will be notifying you by separate communication of an exclusion/termination/revocation from the Louisiana Medicaid program for cause” and describing PPGC as possessing “rights to a suspensive appeal” of this
30 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 31 of 80
“exclusion/revocation/termination” (emphasis added)); Doc. 46-1 at 41, 44, 47, 51 (“[Y]ou are hereby notified that the Department of Health and Hospitals (DHH) is hereby terminating I revoking the PPGC provider agreement referenced above. This action will take effect . . . .” (emphases added)).)
This highlighted language implies that Plaintiffs’ rights have already been curtailed, a suspension already imposed, and the relevant action, i.e. the Agreements’ termination, already undertaken, its “effect” alone delayed.21 Any one of these imputations would constitute a sufficiently credible threat to render this case ripe. Later, moreover, Defendant’s counsel unambiguously confirmed these statements’ implications. To the Court’s question—“the Secretary has terminated the contract, but . . . has said that termination is suspended pending appeal?”—he answered: “That’s correct.” (Hr’g Tr. 19:16–19, Oct. 16, 2015; see also Doc. 53-1 at 9–10.) Thus, even if the termination is suspended, it will occur automatically but for this Court’s intervention. That its practical enforcement may be stayed does not change the key fact: using Pearson’s terms, Plaintiffs are in “danger of sustaining some direct injury as the result of the challenged official conduct,” Pearson, 624 F.3d at 684. A final exchange cinches this conclusion. When Plaintiffs’ counsel revealed PPGC’s intent “to proceed in federal court” and not “to pursue the administrative remedy,” and the Court observed, “Well, then it seems to me you’ve got a very, very ripe situation,” and asked Defendant’s counsel, “Am I missing something on that?” he answered, “No.” (Hr’g Tr. 20:18–23, Oct. 16, 2015.)
Equally worthy of note, Defendant quotes but dismisses the import of a principle embedded in ripeness case law: “[A] case is generally ripe if any remaining questions are purely
21 For something to be “restored” it must first have been taken, for something to be “lifted” it must first have been imposed, and for something to be “suspended” it must first have been determined.
31 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 32 of 80
legal ones,” Lopez, 617 F.3d at 341. This principle holds even if “the application of the disputed rule [or the ultimate decision] remains within the agency’s discretion.” Nat’l Ass’n of Home Builders v. U.S. Army Corps of Eng’rs, 417 F.3d 1272, 1282 (D.C. Cir. 2005); see also Nat’l Treasury Emps. Union v. Chertoff, 452 F.3d 839, 854 (D.C. Cir. 2006) (citing id. and finding ripeness when “waiting to observe” an agency’s final “actions would only exacerbate the . . . asserted injury while doing nothing to enable judicial review”). In this context, a truly non-legal question, notably, is often one whose resolution is necessarily “reliant on” and demands “agency expertise.” Marcum v . Salazar, 694 F.3d 123, 129 (D.C. Cir. 2012). As any fair reading of the complaint and motions filed in this case indicates, the issue involves at least one, if not three, “purely . . . legal question[s]”: the precise meaning of Section 1396a(a)(23) and the applicability of two constitutional clauses. (See, e.g., Doc. 1 at 1; Doc. 43 at 1.) In Abbott Labs., the seminal case in ripeness jurisprudence, the Court concluded that the issues presented were appropriate for judicial resolution because the facial challenge to the regulation involved the purely legal question of whether the regulation at issue exceeded the scope permitted by the underlying statute. See Abbott Labs., 387 U.S. at 149. This kind of challenge, found ripe in Abbott Labs., resembles the challenge that PPGC now makes, with “consideration of the underlying legal issues” not “necessarily be[ing] facilitated if they were raised in the context of a specific attempt to [apply and/or] enforce the regulations,” Gardner v. Toilet Goods Ass’n, 387 U.S. 167, 171, 87 S. Ct. 1526, 1528, 18 L. Ed. 2d 704 (1967). “Predominantly legal questions” like a statute’s plain meaning and whether a person’s conduct contravenes its unambiguous command are nearly always ripe. See, e.g., Fla. State Conf. of the NAACP v. Browning, 522 F.3d 1153, 1164 (11th Cir. 2008) (“The Supreme Court has long since held that where the enforcement of a statute is certain, a preenforcement challenge will not be rejected on ripeness grounds.”); Nat’l Ass’n of
32 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 33 of 80
Home Builders, 417 F.3d aat 1282 (“Claims that an agency’s action is arbitrary and capricious or contrary to law present purely legal issues.”); cf. LeClerc v. Webb, 419 F.3d 405, 414 (5th Cir. 2005) (noting that “actions for declaratory relief . . . by design permit pre-enforcement review” and applying two exceptions). Plaintiffs’ present action presents precisely such questions.
(b) Existence of Requisite Hardship The jurisprudence construing the hardship requirement is just as clear. The Fifth Circuit
“has found hardship to inhere in legal harms, such as the harmful creation of legal rights or obligations; practical harms on the interests advanced by the party seeking relief; and the harm of being force[d] . . . to modify [one’s] behavior in order to avoid future adverse consequence.” Choice Inc. v. Greenstein, 691 F.3d 710, 715 (5th Cir. 2012) (alteration in original) (internal quotation marks omitted). Discrete formulations, a plaintiff can meet the ripeness doctrine’s hardship prong by satisfying just one. Id. As the Court’s decisions clarify, the first test has been met when an agency proposes to “grant, withhold, or modify any formal legal license, power or authority,” Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 733, 118 S. Ct. 1665, 1670, 140 L. Ed. 2d 921 (1988), and the second is fulfilled when “the impact of the administrative action could be said to be felt immediately by those subject to it in conducting their day-to-day affairs,” Toilet Goods Ass’n v. Gardner, 387 U.S. 158, 164, 87 S. Ct. 1520, 1524, 18 L. Ed. 2d 697 (1967).
Quite simply, Defendant’s conduct here cannot be described in any different terms. Since a threat suffices to satisfy ripeness’ hardship requirement, to conclude differently would be to find no case ripe when an administrative option remains for one of many plaintiffs and a statutory right and remedy exists for all, a result contrary to the many opinions that have
33 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 34 of 80
confronted claims under Section 1396a(a)(23). See infra Part V; see also, e.g., Sabree v. Richman, 367 F.3d 180, 193 & n.29 (3d Cir. 2004) (“A] plaintiff’s ability to invoke § 1983 cannot be defeated simply by the availability of administrative mechanisms to protect the plaintiff’s interests.”); cf. Cathedral Rock of N. Coll. Hill, Inc. v. Shalala, 223 F.3d 354, 366 (6th Cir. 2000) (noting that “the Medicaid Act does not have a provision . . . incorporating § 405(h) and its exclusive jurisdiction limitation to channel legal challenges through the administrative procedures set forth”).
Defendant maintains that the mere suspensive quality of her decision somehow unripens a case in which an injury is reasonably foreseeable and certain. Considering ripeness jurisprudence, this Court disagrees. See, e.g., Legacy Cmty. Health Servs., Inc. v. Janek, No. 4:15-CV-25, 2015 U.S. Dist. LEXIS 8610, at *12–13, 2015 WL 4064270, at *5 (S.D Tex. July 2, 2015) (finding case ripe even when a party did not allege any actual instance of enforcement); see also Doc. 63 at 18–20, Bentley (finding that the fact of state administrative appeals process does not affect the right of the aggrieved individual party to pursue a Section 1983 claim).
(c) Insufficiency of Defendant’s Arguments Regarding Ripeness While a simple application of longstanding law leaves little doubt about this case’s
ripened state, Defendant’s arguments merit some comment. Having examined her reasoning, this Court finds her construction and extension of the ripeness doctrine to be predicated on a fundamental misunderstanding of Plaintiffs’ three claims. In its final paragraph, Defendant’s Memorandum summarizes DHH’s view of Plaintiffs’ case: “In the instant matter, PPGC is asserting a due process violation while simultaneously hinting that it may voluntarily elect not to participate in the process about which it complains.” (Doc. 53-1 at 8 (emphasis in original).) At
34 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 35 of 80
the Second Hearing, Defendant again reduces all of Plaintiffs’ claims to “a disguised due process challenge.” (Hr’g Tr. 8:3–4, Oct. 16, 2015.) This focus on procedural due process obscures at least three logical oversights.
First, this assertion ignores Plaintiffs’ withdrawal of their due process claim in their Amended Complaint. (See, e.g., Doc. 1 at 1; Doc. 43 at 1.) In fact, Plaintiffs’ counsel expressly confirmed this at the Second Hearing. (Hr’g Tr. 15:19–16:1, Oct. 16, 2015.) Despite this clear abandonment, however, Defendant argues that the claims of the Individual Plaintiffs are “derivative” of PPGC’s, (Hr’g Tr. 9:10–11, Oct. 16, 2015), based wholly on cases explicating the requirements of procedural due process. (Doc. 53-1 at 13 (citing Plaza Health Labs., Inc. v. Perales, 878 F.2d 577 (2d Cir. 1989); Kelly Kare, Ltd. v. O’Rourke, 930 F.2d 170, 177 (2d Cir. 1991); and Senape v. Constantino, 936 F.2d 687 (2d Cir. 1991)); see also Doc. 13 at 16–17). But when statutes like Section 1396a(a)(23) provide the case’s gravamen and no procedural due process claim is made, Defendant’s cases cannot be legally relevant. See Indiana, 699 F.3d at 977 (rejecting the relevance of Kelly Kare and similar cases because “[t]his is not a due-process case”). In other words, Defendant has reduced Plaintiffs’ complaint to one claim already abandoned and relied on case law thereby rendered irrelevant.
Second, Defendant’s emphasis on the existence of a “plan process” ignores an equally well-settled axiom when Section 1983 forms the basis of a party’s claims. Defendant argues that the administrative appellate process, having been accepted as generally valid by CMS, essentially forecloses both PPGC’s and the Individual Plaintiffs’ resort to this (and any other) court. (Hr’g Tr. 7:23–8:6, Oct. 16, 2015; see also Doc. 53-1 at 3.) The process offered to PPGC (but not to the Individual Plaintiffs) must not be disturbed, she maintains, as it “is a legitimate process that has been approved,” the states “required” under the Medicaid Act to “provide[]a
35 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 36 of 80
process for reviewing grievances by providers.” (Hr’g Tr. 8:7–17, Oct. 16, 2015; see also, e.g., Doc. 53-1 at 3–4.) Yet, as one court has observed, “[b]ecause § 1983 is intended to provide a federal forum, however, there will almost always be some sort of administrative or judicial avenue of relief at state law - whether compelled by federal statute or simply available under general state court jurisdiction.” Roach v. Morse, 440 F.3d 53, 57 (2d Cir. 2006), cited with approval in Romano v. Greenstein, 721 F.3d 373, 376 n.8 (5th Cir. 2013) (as to exhaustion only). Thus, a congressional requirement that states establish administrative review procedures, as exists here, rarely, if ever, implies that either § 1983 plaintiffs need exhaust them or a case is unripe when the process has not been invoked but an injury plainly looms. See Roach, 440 F.3d at 57; Doc. 63 at 18–19, Bentley.
Third, Defendant’s two “instructive” cases—Rush v. Barham, No. 14-30872, 2015 U.S. App. LEXIS 12886, 2015 WL 4467848 (5th Cir. July 22, 2015), and Monk v. Huston, 340 F.3d 279 (5th Cir. 2003) (Doc. 53-1 at 7–8)—do not support her ripeness argument.
Rush, for one, can be distinguished on both the facts and on the law. As a reading of the district court opinion there affirmed shows, “[t]he existence of parallel [‘pending’] state proceedings to render[ed] Plaintiffs’ cause of action unfit at each step of the fitness inquiry.” Rush v. Barham, No. 13-cv-00723-BAJ-RLB, 2014 U.S. Dist. LEXIS 97521, at *11 (M.D. La. July 17, 2014). Here, no state proceeding predated the initiation of this federal action, so that any state action would not post-date and thus cannot parallel this proceeding from its genesis.22
In addition, at issue in Rush was the propriety of a “administrative actions” within an agency’s state-based “authority—specifically, the agency’s enforcement of the Louisiana Scenic Rivers[] Act”; “a challenge to administrative regulations” was the one before that court. Rush,
22 This issue is also relevant to this Court’s abstention analysis. See infra Part IV.C.2. 36 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 37 of 80
2014 U.S. Dist. LEXIS 97521, at *11. The basis of the Individual Plaintiffs’ claim is the interpretation of Section 1396a(a)(23), a federal statute. More specifically, it is whether, independently of the state law basis of Defendant’s present actions, Section 1396a(a)(23)’s plain meaning establishes the outer parameters of Defendant’s discretion under state law to render a provider “unqualified.” (See Doc. 43 ¶¶ 62–63 at 19.) PPGC’s allegations, meanwhile, rest on federal constitutional provisions. (See id. ¶¶ 64–67 at 20.) This case is not a “challenge” to an “administrative regulation” by the one (and unquestioned) agency entitled to enforce it, but a challenge to the propriety of the secretary’s exercise of discretion within and under the constraints imposed by federal statutory law. As a practical and legal matter, it is almost surely not a regulation, cf. 5 U.S.C.§ 551, or a formal rule, LA. R.S. § 49:951(6).
In Rush, moreover, the Fifth Circuit thusly characterized the lower court’s opinion: “The court held that in the circumstances of this particular case, further factual development will result from the pending state court proceeding and will necessarily affect the claims in this suit.” Rush, 2015 U.S. App. LEXIS 12886, at *7, 2015 WL 4467848, at *3. As noted above, no factual development is necessary.23 Rather, the question before this Court is one of “congressional intent” as reflected in the text of Section 1396a(a)(23). Abbott Labs., 387 U.S. at 149. On the facts and the law, then, Rush does not fit.
The same can be said about Monk. As Monk itself states, “[a] case is generally ripe if any remaining questions are purely legal ones,” Monk, 340 F.3d at 282, and this Court, like others, see supra Part IV.A.2, considers the determination of whether a federal statute is unambiguous to be such a question. In addition, Monk discussed ripeness in a narrow context: procedural due
23 Had exhaustion been the issue, which Defendant explicitly denies, this factor may have some force. Defendant, however, has stipulated that no additional discovery is needed. (Doc. 58; Doc. 62.)
37 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 38 of 80
process. Thus, the opinion specifically found the case not ripe because “[t]he constitutional right to due process is not . . . an abstract right to hearings conducted according to fair procedural rules” but is “the right not to be deprived of life, liberty, or property without such procedural protection.” Id. at 282–83 (emphasis added). Because any such claims have been decidedly and clearly abandoned by Plaintiffs, Monk will not do.
As a final note, Defendant oversells the significance of the Plaintiffs’ own motion to expedite discovery, (Doc. 47). According to Defendant, this request attests to the need for factual development that proves ripeness’ absence, (Doc. 53-1 at 6); Plaintiffs disagree, (See Hr’g Tr. 41:8–19, Oct. 16, 2015). While the motion makes clear that such discovery is being sought for purposes of strengthening Plaintiffs’ animus allegations, (Doc. 48 at 2), the ripeness doctrine demands no more than a threatened injury to the plaintiff, not a complete evidentiary record. Indeed, Defendant’s logic would render any federal case unripe where discovery is requested, without any regard for the reason such discovery is needed. Even if Plaintiffs’ first amendment claims require, like almost all claims often do, more discovery, that possibility says nothing about the ripeness of their two other claims. In the vast majority of cases in which ripeness is not found, “additional factual development” is absolutely “necessary,” a feature wholly absent from a proceeding focused on the outer parameters of a statute’s meaning. See, e.g., John Corp. v. City of Houston, 214 F.3d 573, 586 (5th Cir. 2000).24
(d) Conclusion For all these reasons, this Court finds this case ripe for its review, joining the Eastern
District of Arkansas in Planned Parenthood Ark. & E. Okla. v. Selig, Doc. 45 (Amended and 24 Even in procedural due process cases, ripeness is not an issue when a facial attack is made. See, e.g., Cornell Cos. v. Borough of New Morgan, 512 F. Supp. 2d 238, 256 (E.D. Pa. 2007).
38 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 39 of 80
Substituted Preliminary Injunction Order), No. 15-cv-00566-KGB (“Selig”), (Doc. 46-9), and the District of Utah in Planned Parenthood Association of Utah v. Herbert, Doc. 12 (Temporary Restraining Order), No. 15-cv-693-CW (“Herbert”), (Doc. 46-10).25
B. STANDING 1. Defendant’s Arguments
In contesting standing, Defendant insists PPGC lacks it in full. In her words, “Plaintiffs have not suffered nor are they about to suffer ‘an injury in fact’ which is concrete and particularized, or actual or imminent.” (Doc. 53-1 at 9.) The reason given was that “[t]he termination of PPGC’s provider contracts ha[d] not gone into effect” prior to October 19, 2015. (Id.) At the Second Hearing, this point was emphasized: “There’s no concrete injury to . . . Planned Parenthood or to any of the . . . [Individual] Plaintiffs because, again, there simply is no injury.” (Hr’g Tr. 17:18–21, Oct. 16, 2015.)
2. Analysis Closely related to the ripeness inquiry, Choice Inc. v. Greenstein, 691 F.3d 710, 715 (5th
Cir. 2012), standing implicates a slightly different series of concerns. Ripeness is concerned with “when an action may be brought,” but “standing focuses on who may bring a ripe action.” Jt. Stock Soc’y v. UDV N. Am., Inc., 266 F.3d 164, 174 (3d Cir. 2001) (emphasis added); see also
25 In concurring with these courts, this Court finds it significant that Defendant has yet to comprehensively address either case. In attempting to distinguish only the former, Defendant offered one reason: “It’s my understanding that [the right to an administrative appeal] was not a suspensive process,” while “[t]his is a fully suspensive process,” (Hr’g Tr. 9:6–7, Oct. 16, 2015). This lone purported difference, however, is incorrect, as Arkansas law, like Louisiana law, apparently suspends a termination’s enforcement upon a provider’s proper appeal. See ARKANSAS MEDICAID PROVIDER MANUAL 161.500.
39 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 40 of 80
Ind. Right to Life, Inc. v. Shepard, 507 F.3d 545, 549 (7th Cir. 2007) (citing id.). The “irreducible [constitutional] minimum” of standing contains three elements”: “(1) an injury-in-fact,” defined as “an invasion of a legally protected interest which is (a) concrete and particularized” and “(b) actual or imminent, not conjectural or hypothetical,” that is (2) fairly traceable to the defendant’s allegedly unlawful conduct” and that is (3) likely to be redressed by the requested relief. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992). Having both evolved from Article III, “[s]tanding and ripeness are closely related doctrines that overlap most notably in the shared requirement that the plaintiff’s injury be imminent rather than conjectural or hypothetical.” New York Civil Liberties Union v. Grandeau, 528 F.3d 122, 130 n.8 (2d Cir. 2008).
Indeed, “in measuring whether the litigant has asserted an injury that is real and concrete rather than speculative and hypothetical, the ripeness inquiry merges almost completely with standing.” Jt. Stock Soc’y, 266 F.3d at 174. The injury need not be inflicted already; imminence will do. Warth v. Seldin, 422 U.S. 490, 499, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975). Naturally, therefore, as more than one court has found, the threat of future harm is sufficiently immediate to constitute a cognizable injury-in-fact for purposes of both the standing and the ripeness doctrines. E.g., Comsat Corp. v. FCC, 250 F.3d 931, 936 (5th Cir. 2001) (“A threatened injury satisfies the injury in fact requirement so long as that threat is real[.]”); Prestage Farms, Inc. v. Bd. of Supervisors of Noxubee Cnty., MS, 205 F.3d 265, 268 (5th Cir. 2000) (“[T]he risk of injury may be founded on a likely and credible chain of events.”); see also, e.g., Baur v. Veneman, 352 F.3d 625, 633 (2d Cir. 2003) (collecting cases standing for the proposition that “threatened harm in the form of an increased risk of future injury may serve as injury-in-fact for Article III standing purposes”); Employers Ass’n of New Jersey v. State of New Jersey, 601 F.
40 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 41 of 80
Supp. 232, 238 (D.N.J. 1985) (“[T]hreatened injury is sufficient for standing . . .without compelling litigants to await the consummation of threatened injury.”) (quoting Pac. Gas & Elec., 461 U.S. at 200))). While a truly “uncertain potentiality” may deprive a plaintiff of standing, Prestage, 205 F.3d at 268, a decent probability will confer it, see Walters v. Edgar, 163 F.3d 430, 434 (7th Cir. 1998) (collecting cases standing for the proposition that “[a] probabilistic harm, if nontrivial, can support standing”); cf. Loa-Herrera v. Trominski, 231 F.3d 984, 988 (5th Cir. 2000) (“Mere threatened injury is sufficient” if “the threat . . . is real.”).
Per this law, as with this Court’s ripeness inquiry, see supra Part IV.A.2, Defendant’s threat of harm is sufficiently clear to establish Plaintiff’s standing. In her motions, as at the First Hearing, Defendant has insisted that she can terminate the Medicaid provider agreement with PPGC for any reason, and she has repeatedly made clear that she intends and hopes to void every Agreement. There is thus no question that she has made a cognizable threat to Plaintiff’s interest, having already attempted to do via Section 46:437.11(D)(1) what she now seeks to do via Section 46:437.11(D)(2). (Doc. 38 at 2; Doc. 39-1 at 2 –13.) That she may not succeed concerns the precariousness of her own position, but has no bearing on whether the threat she poses is not real and the harm her action portends is not imminent. Precisely because it is, Plaintiffs’ minimal standing has been established.26 See, e.g., Susan J. v. Riley, 254 F.R.D. 439 (M.D. Ala. 2008) (rejecting a defendant’s standing challenge to a plaintiff proceeding under Section 1396a(a)(8)).
26 PPGC’s third-party standing may be a more complicated issue. Defendant, however, has raised no such objection, instead focusing on the doctrine’s “injury” prong, and PPGC and the Individual Plaintiffs allege discrete, albeit related, harms. (Doc. 1; Doc. 43.)
41 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 42 of 80
C. ABSTENTION 1. Defendant’s Arguments
Defendant urges this Court to abstain. (Doc. 53-1 at 10–12.) She argues for the applicability of the four main abstention doctrines—Pullman, Younger, Burford, and Colorado River. (Id.) Rather than applying the discrete elements of these varied doctrines, Defendant refers to their occasional “overlap to some degree in . . . scope and application” and reduces all four to a single formulation: (1) “where state administrative proceedings and judicial review afford claimants adequate opportunity to test the constitutionality of state law,” and (2) “the exercise of federal jurisdiction would jeopardize state efforts to establish state policy on matters of public concern,” abstention “should” follow. (Id. at 12.)
2. Analysis In general, “the circumstances in which federal courts should decline to exercise their
jurisdiction” and abstain “are carefully defined and remain the exception, not the rule.” Hoye v. City of Oakland, 653 F.3d 835, 844 (9th Cir. 2011) (Younger); see also, e.g., Colorado River Water Conservation Dist. v. U. S., 424 U.S. 800, 96 S. Ct. 1236, 47 L. Ed. 2d 483 (1976) (Colorado River); Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 728, 116 S. Ct. 1712, 135 L. Ed. 2d 1 (1996) (Burford). Due to this principle, each abstention doctrine must be carefully assessed, and every relevant element must be shown. Cf. Wilson v. Valley Elec. Membership Corp., 8 F.3d 311, 314 (5th Cir. 1993) (commenting that “[m]ultiple factor tests are difficult to apply”). In this case, when one examines the requirements of each of these doctrines, none clearly apply.
42 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 43 of 80
(a) Pullman Abstention Named after its founding decision, R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496,
61 S. Ct. 643, 85 L. Ed. 971 (1941), Pullman abstention is proper only when there is (1) a federal constitutional challenge to a state action and (2) an unclear issue of state law that if resolved would make it unnecessary to rule on the constitutional question. Nationwide Mut. Ins. Co. v. Unauth. Prac. of L. Comm., State Bar of Tex., 283 F.3d 650, 653 (5th Cir. 2002). The Fifth Circuit has also taken the stance that this doctrine should be invoked in only narrow and limited special circumstances and applied where the state court decision could avoid a federal question and would also avoid a possible strain of the federal and state relationship. Moore v. Tangipahoa Parish Sch. Bd., 507 F. App’x 389, 396 (5th Cir. 2013) (citing Reetz v. Bozanich, 397 U.S. 82, 86–87, 90 S. Ct. 788, 25 L. Ed. 2d 68 (1970)).
In essence, then, for Pullman to govern, an uncertain state law must be central to the federal proceeding. Here, however, there is no state statute central to this controversy. Rather, the Defendant’s interpretation of a federal statute and the extent to which her termination, regardless of its state law basis, violates the United States Constitution are the only issues. In addition, as Pullman requires that state law be confused and uncertain, Defendant’s failure to bring to this Court’s attention even one Louisiana case evidencing a persistent discord regarding the meaning of either Section 46:437.11(D)(1) or Section 46:437.11(D)(2) counsels against its invocation. On these bare facts, with no clarification of state law needed for this Court to determine whether Defendant’s “final action,” (Hr’g Tr. 6:2, Oct. 16, 2015), contravenes federal statutory and constitutional law, Pullman abstention is inappropriate. See, e.g., Planned Parenthood of Idaho, Inc. v. Wasden, 376 F. Supp. 2d 1012, 1021 (D. Idaho 2005); Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 932 (9th Cir. 2004), cert. denied, 544 U.S.
43 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 44 of 80
948, 125 S. Ct. 1694, 161 L. Ed. 2d 524 (2005).
(b) Younger Abstention Articulated in Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971),
Younger abstention applies if three circumstances arise: (1) there must be an ongoing state proceeding that is judicial in its nature, (2) the state must have an important interest in regulating the subject matter of that claim, and (3) there must be adequate opportunity in the state proceeding to raise constitutional challenge. Rickhoff v. Willing, 457 F. App’x 355, 358 (5th Cir. 2012) (citing Wightman v. Tex. Supreme Court, 84 F.3d 188, 189 (5th Cir. 1996)). First and foremost, Younger requires an ongoing state proceeding “judicial in nature.” Ohio Civil Rights Comm’n, 477 U.S. at 627–28.
In light of this key requirement and the suit’s present posture, Defendant’s own representations render Younger inapposite. As Defendant’s counsel has conceded, no administrative proceeding commences until or unless PPGC appeals, (Doc. 53-1 at 22; see also Hr’g Tr. 16:8–17:9, Oct. 16, 2015), and PPGC has foresworn that option, (Hr’g Tr. 19:6–10, Oct. 16, 2015). Meanwhile, the Individual Plaintiffs cannot possibly initiate such a proceeding as a matter of state law, as Defendant’s two lawyers have admitted. (Hr’g Tr. 8:10–9:1, Oct. 16, 2015; Hr’g Tr. 15:22–25, Sept. 2, 2015; Doc. 22 at 2–5; see also Doc. 46 at 18 n.13.) Regardless, no evidence has been adduced that any state quasi-judicial action predated the First Complaint’s filing; Younger requires as much. Indeed, as she has rescinded the First Termination Letters, Defendant’s prospective agency action will necessarily post-date the commencement of this federal proceeding. These facts alone render Younger inapplicable to this proceeding.27
27 Younger is also subject to three exceptions, at least two of which arguably apply. Bice v. Louisiana Pub. Defender Bd., 677 F.3d 712, 716 n.3 (5th Cir. 2012).
44 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 45 of 80
(c) Colorado River Abstention Colorado River abstention, derived from Colorado River Water Conservation Dist., 424
U.S. 800, is exceptionally narrow, Jackson-Platts v. GE Capital Corp., 727 F.3d 1127, 1140 (11th Cir. 2013). In the Fifth Circuit, six elements must be satisfied:
1) assumption by either court of jurisdiction over a res, 2) relative inconvenience of the forums, 3) avoidance of piecemeal litigation, 4) the order in which jurisdiction was obtained by the concurrent forums, 5) to what extent federal law provides the rules of decision on the merits, and 6) the adequacy of the state proceedings in protecting the rights of the party invoking federal jurisdiction. African Methodist Episcopal Church v. Lucien, 756 F.3d 788, 798 (5th Cir. 2014) (citing Stewart v. W. Heritage Ins. Co., 438 F.3d 488, 491 (5th Cir. 2006)). In general, the Fifth Circuit has found Colorado River abstention applicable when there is a parallel suit in the state court at the time of the federal suit also being brought with the same parties and the same issues. Stewart, 438 F.3d at 491. As such, as with Younger, the absence of any parallel proceeding in a state agency or a state court initiated before this federal suit’s filing must foreclose Colorado River’s application to the instant matter, with any modicum of doubt favoring the exercise of the federal jurisdiction conferred by Section 1396a(a)(23) and the Constitution. AAR Int’l, Inc. v. Nimelias Enters. S.A., 250 F.3d 510, 520 (7th Cir. 2001) (“[A]ny doubt regarding the parallel nature of the foreign suit should be resolved in favor of exercising jurisdiction[.]”); see also Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 28, 103 S. Ct. 927, 943, 74 L. Ed. 2d 765 (1983) (holding that “[i]f there is any substantial doubt” as to whether “the parallel state-court litigation will be an adequate vehicle for the complete and prompt resolution of the issues between the parties” it would “be a serious abuse of discretion to grant the stay or dismissal at all” pursuant to Colorado
45 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 46 of 80
River).
(d) Burford Abstention Traceable to Burford v. Sun Oil Co., 319 U.S. 315, 63 S. Ct. 1098, 87 L. Ed. 1424 (1943),
this final doctrine contemplates the presence of a state-created avenue of relief put where the state has a degree of specialized competence to hear such cases is present. See Romano, 721 F.3d at 380 (listing five factors). Put another way, Burford abstention is only appropriate when there is a danger that federal court review will “disrupt the [s]tate’s attempt to ensure uniformity in the treatment of an essentially local problem.” New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 362, 109 S. Ct. 2506, 2515, 105 L. Ed. 2d 298 (1989). Abstention is thus “not warranted, however, when a claim requires the federal court to decide predominating federal issues that do not require resolution of doubtful questions of local law and policy.” Vaqueria Tres Monjitas, Inc. v. Irizarry, 587 F.3d 464, 474 (1st Cir. 2009) (internal quotation marks omitted).
Such is not the case here. It is the meaning of Section 1396a(a)(23), a federal statute, and two constructional provisions which constitute the central controversies. In fact, in interpreting Section 1396a(a)(8), whose language perfectly mirrors Section 1396a(a)(23), the Fifth Circuit rejected this same Defendant’s request for Burford abstention in no uncertain terms:
None of these factors weighs in favor of abstention in this case. The cause of action arises under federal law, there are no apparent issues of state law or local facts, the interest in proper application of federal Medicaid law is paramount, and there is no special state forum for judicial review. Romano, 721 F.3d at 380; see also, e.g., Pub. Serv. Co. v. Patch, 167 F.3d 15, 24 (1st Cir. 1998) (“Burford abstention does not bar federal court injunctions against state administrative orders where there are predominating federal issues that do not require resolution of doubtful questions
46 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 47 of 80
of local law and policy.”) As with Colorado River, Younger, and Pullman, the prerequisites for Burford’s invocation are absent from this case. See New Orleans Pub. Serv., 491 U.S. at 361 (refusing to abstain under this doctrine when the federal claims were not “in any way entangled in a skein of state law that must be untangled before the federal case can proceed” (citing McNeese v. Bd. of Educ. for Cmty. Unit Sch. Dist. 187, Cahokia, 373 U.S. 668, 674, 83 S. Ct. 1433, 1437, 10 L. Ed. 2d 622 (1963))). It too is thus inapposite.
D. CONCLUSION Based on well-settled law, this Court therefore rejects Defendant’s jurisdictional
challenges and declines to abstain. For purposes of both ripeness and standing, there is an imminent threat of harm. In addition, applying the appropriate abstention factors to the facts of this case one-by-one, as the Fifth Circuit has long required, shows the impropriety of any one’s application. Instead, it is the Court’s “strict duty to exercise the jurisdiction conferred upon . . . [it] by Congress” via the Medicaid Act and, if later necessary, by the Constitution. Quakenbush, 517 U.S. at 716; see also Indep. Living Ctr. of S. Cal., Inc. v. Shewry, 543 F.3d 1050, 1056–57 (9th Cir. 2008) (“It is beyond dispute that federal courts have jurisdiction over suits to enjoin state officials from interfering with federal rights.”).
V. DISCUSSION: PRELIMINARY INJUNCTION A. APPLICABLE STANDARDS
A plaintiff must establish four elements to secure a preliminary injunction: (1) a substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury if the injunction is not issued, (3) that the threatened injury if the injunction is denied outweighs any
47 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 48 of 80
harm that will result if the injunction is granted, and (4) that the grant of an injunction will not disserve the public interest. Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir. 2009); accord, e.g., Wilson v. Office of Violent Sex Offender Mgmt., 584 F. App’x 210, 212 (5th Cir. 2014).28 Long deemed an extraordinary remedy, Douthit v. Dean, 568 F. App’x 336, 337 (5th Cir. 2014); see also Munaf v. Geren, 553 U.S. 674, 689, 128 S. Ct. 2207, 2219, 171 L. Ed. 2d 1 (2008); Anderson v. Jackson, 556 F.3d 351, 360 (5th Cir. 2009) (similarly characterizing a temporary restraining order), a preliminary injunction aims “to prevent irreparable injury so as to preserve . . . [a] court’s ability to render a meaningful decision on the merits,” Mississippi Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 627 (5th Cir. 1985) (citing to Canal Auth. of Fla. v. Callaway, 489 F.2d 567, 576 (5th Cir. 1975)); accord, e.g., United Food & Commercial Workers Union, Local 1099 v. Sw. Ohio Reg’l Transit Auth., 163 F.3d 341, 348 (6th Cir. 1998); United States v. Alabama, 791 F.2d 1450, 1460 (11th Cir. 1986) (adding that “[p]reliminary injunctive relief may be necessary to insure that a remedy will be available” at some future date); cf. Granny Goose Foods v. Bhd. of Teamsters & Auto Truck Drivers, 415 U.S. 423, 439, 94 S. Ct. 1113, 1124, 39 L. Ed. 2d 435 (1974) (“Ex parte temporary restraining orders . . . under federal law . . . should be restricted to serving their underlying purpose of preserving the status quo and preventing irreparable harm just so long as is necessary to hold a hearing, and no longer.”). By circumstance and necessity, in considering whether either a preliminary injunction or a temporary restraining order should issue, a court is “almost always” forced to rely upon “[an] abbreviated set of facts.” Klitzman, Klitzman & Gallagher v. Krut, 744 F.2d 955, 958 (3d Cir. 1984); accord Texas v. Seatrain Int’l, S. A., 518 F.2d 175, 180 (5th Cir. 1975); see also, e.g.,
28 The standard for granting a temporary restraining order is identical. See, e.g., Janvey v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011); Women’s Med. Ctr. of Nw. Houston v. Bell, 248 F.3d 411, 419, n. 15 (5th Cir. 2001).
48 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 49 of 80
ACLU of Fla., Inc. v. Miami-Dade Cnty. Sch. Bd., 557 F.3d 1177, 1231 (11th Cir. 2009) (quoting id.).
In applying the four factor test, “none 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.” Seatrain Int’l, S.A., 518 F.2d at 180. This often “requir[es] delicate balancing of the probabilities of ultimate success at final hearing with the consequences of immediate irreparable injury.” Klitzman, 744 F.3d at 958;
B. FIRST ELEMENT: LIKELY SUCCESS ON THE MERITS Plaintiffs bring this civil action pursuant to Section 1983 based on Defendant’s alleged
violation of rights secured by the Medicaid Act and the United States Constitution. Specifically, Plaintiffs claim that Defendant’s attempt to terminate the Agreements violates the rights of the Individual Plaintiffs under Section 1396a(a)(23)(A) and PPGC’s rights under both the Equal Protection Clause and the Freedom of Speech Clause of the United States Constitution. (Doc. 43 ¶¶ 62–67 at 19–20.) In relevant part,29 Defendant contends that Section 1396a(a)(23) does not create a private cause of action for either PPGC or the Individual Plaintiffs and relies primarily on Armstrong. (Doc. 53-1 at 18–24; see also Doc. 13 at 3–13.)
In this first element’s analysis, two overarching principles matter. First, if the Plaintiffs were to prevail on their Section 1396a(a)(23) claim and/or PPGC was to prevail on either of its two constitutional claims, the same remedy—a permanent injunction—would be due, and any potential action by Defendant would be similarly affected. Accordingly, this Court need not
29 Defendant’s argument s regarding Plaintiffs’ property interest and procedural due process, (Doc. 13 at 14–19; Doc. 53-1 at 13–18), are no longer viable in light of the Amended Complaint, (Doc. 43 ¶¶ 62–67 at 20–21).
49 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 50 of 80
conclude that all Plaintiffs have a substantial likelihood of prevailing on all claims advanced in the Amended Complaint for a preliminary injunction to issue at this time. If Plaintiffs satisfy the elements needed to show a substantial likelihood of success on the Individual Plaintiffs’ Section 1396a(a)(23) claim only, so long as the other factors are met, a preliminary injunction is appropriate. Girl Scouts of Manitou Council, Inc. v Girl Scouts of United States of America, 549 F.3d 1079, 1096 (7th Cir. 2008) (holding that plaintiff needed to show no more than “[a] chance of success on the merits of at least one of its claims” (internal quotation marks omitted)); see also, e.g., Jackson v. N’Genuity Enters. Co., No. 09 C 6010, 2011 U.S. Dist. LEXIS 113511, at *23, 2011 WL 4628683, at *7 (N.D. Ill. Oct. 3, 2011) (citing id.). Accordingly, because the Court finds that the Individual Plaintiffs have a private right of action, see infra Part V.B.1, it need (and will) not decide whether PPGC also has such a right, either on its own behalf or on behalf of its recipient patients. See also Doc. 63 at 12 n.3, Bentley.
Second, the Plaintiffs must establish a “substantial likelihood of success.” This phrase has been defined in different ways. Compare 11A CHARLES A. WRIGHT ET AL., FEDERAL PRAC. & PROC. § 2948.3 (3d ed.) (“reasonable probability of success”), with Terex Corp. v. Cubex, Ltd., No. 3:06-CV-1649-G ECF, 2006 U.S. Dist. LEXIS 88863, at *7–8, 2006 WL 3542706, at *2 (N.D. Tex. Dec. 7, 2006) (“more than negligible,” and noting the existence of a debate regarding this element’s extent among the various circuits and summarizing older Fifth Circuit case law); see also, e.g., Dine Citizens Against Ruining Our Env’t v. Jewell, No. CIV 15-0209 JB/SCY, 2015 U.S. Dist. LEXIS 109986, at *57 n.10, 2015 WL 4997207, at *21 n.10 (D.N.M. Aug. 14, 2015) (“It is not entirely clear what a preliminary-injunction movant’s burden of proof is vis-àvis the case’s merits, as [t]he courts use a bewildering variety of formulations of the need for showing some likelihood of success—the most common being that plaintiff must demonstrate a
50 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 51 of 80
reasonable probability of success.” (alteration in original) (internal quotation marks omitted)); Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (“Under . . . [the sliding scale] approach [employed in several circuits], the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another.”)
Still, at such an early stage, courts are not required “to draw the fine line between a mathematical probability and a substantial possibility of success.” Dataphase Sys. v. C L Sys., 640 F.2d 109, 113 (8th Cir. 1981); accord, e.g., KTM N. Am., Inc. v. Cycle Hutt, Inc., No. 135033-JLV, 2013 U.S. Dist. LEXIS 67209, at *14, 2013 WL 1932797, at *5 (D.S.D. May 8, 2013). And none of the prerequisites for a preliminary injunction have “a fixed quantitative value.” Seatrain Int’l, S. A., 518 F.2d at 180; see also, e.g., EnVerve, Inc. v. Unger Meat Co., 779 F. Supp. 2d 840, 843 (N.D. Ill. 2011) (“The sliding scale approach is not mathematical in nature, rather it is more properly characterized as subjective and intuitive, one which permits district courts to weigh the competing considerations and mold appropriate relief.” (internal quotation marks omitted) (citing Ty, Inc. v. Jones Grp., 237 F.3d 891, 895–96 (7th Cir. 2001))); Louis v. Meissner, 530 F. Supp. 924, 925 (S.D. Fla. 1981) (citing Seatrain Int’l, S. A., 518 F.2d at 180).
Regardless of what standard is applied to the record before it, and without regard to any “sliding scale,” this Court finds that Plaintiffs have established a high likelihood of success on the merits, far beyond the “more than negligible” standard discussed above.
1. Mandate of 1396a(a)(23) (a) Existence of a Private Right of Action under Section 1396a(a)(23)
51 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 52 of 80
Section 1396a(a)(23)30 reads: “A [s]tate plan for medical assistance must . . . provide . . . [that] any individual eligible for medical assistance (including drugs) 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) (emphasis added). Plaintiffs pursue their claim as a private right of action under § 1396a(a)(23). Defendant argues that this provision is not enforceable under §1983 because, she argues, § 1396a(a)(23) does not provide a private cause of action. For the reasons which follow, the Court finds that this provision does create a private right of action which can be pursued via §1983 by the Individual Plaintiffs. See, e.g., Doc. 63 at 12 –13, Bentley; Doc. 45 at 12–15, Selig; Betlach, 727 F.3d at 965–68; Indiana, 699 F.3d at 972–77; Harris v. Olszewski, 442 F.3d 456, 459 (6th Cir. 2006).
The seminal holdings which support the holding of these courts—Wilder v. Virginia Hospital Association, 496 U.S. 498, 110 S. Ct. 2510, 110 L. Ed. 2d 455 (1990); Blessing v. Freestone, 520 U.S. 329, 117 S. Ct. 1353, 137 L. Ed. 2d 569 (1997); and Gonzaga University v. Doe, 536 U.S. 273, 122 S. Ct. 2268, 153 L. Ed. 309 (2002)31—remain binding and undisturbed. This fact too has been recognized by multiple courts. See, e.g., Doc. 45 at 12, Selig (“The Court determines that the Jane Does are likely to succeed in arguing that . . . [Section 1396a(a)(23)]
30 Thus, in analyzing the Plaintiffs’ success on the merits on this claim, PPGC’s right to any administrative remedy cannot be relevant. As Defendant has twice conceded, the Individual Plaintiffs actually have no such remedy. (Hr’g Tr. 8:18–9:12, Oct. 16, 2015; Hr’g Tr. 15:22 –25, Sept. 2, 2015.) Whatever procedural due process rights afforded to PPGC under the state’s approved Medicaid plan, therefore, the Individual Plaintiffs demonstrably have none, as Plaintiffs’ counsel have emphasized, (Hr’g Tr. 14:17–24, Oct. 16, 2015; Hr’g Tr. 10:16–19, Sept. 2, 2015.) 31 Leaving Blessing unreversed, Gonzaga “clarified the application of the first ‘benefit’ factor [in Blessing] and underscored the central focus of this factor should be on whether the statutory provision creates ‘rights-creating’ language critical to showing the requisite congressional intent to create new rights.” Johnson v. City of Detroit, 446 F.3d 614, 621 (6th Cir. 2006).
52 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 53 of 80
satisfies the factors set forth in Gonzaga . . . and Blessing[.]”); see also Briggs v. Bremby, 792 F.3d 239, 245 (2d Cir. 2015) (applying the Blessing test to 7 U.S.C. § 2020(e)(3) and (9)); Emma C. v. Eastin, No. 96-cv-04179-TEH, 2015 U.S. Dist. LEXIS 113355, at *17, 2015 WL 5029283, at *5 (N.D. Cal. Aug. 25, 2015) (distinguishing Armstrong as “a Medicaid case wherein the Court considered whether there was an implied right of action under the Supremacy Clause”); cf. Tohono O’odham Nation v. Ducey, No. CV-15-01135-PHX-DGC, 2015 U.S. Dist. LEXIS 124979, at *30–31, 2015 WL 5475290, at *10–11 (D. Ariz. Sept. 17, 2015) (distinguishing Armstrong in a case not involving the Medicaid Act); J.E. v. Wong, No. 14-00399 HG-BMK, 2015 U.S. Dist. LEXIS 114094, at *21–22, 2015 WL 5116774, at *7 (D. Haw. Aug. 27, 2015) (reaching the same conclusion and adding that “[t]he Armstrong Court’s discussion regarding the lack of a private cause of action to enforce Section 1396a(a)(30) was not a departure from existing precedent”). Equally importantly, it has also been acknowledged by Defendant’s counsel. (Hr’g Tr. 14:21–15:14, Sept. 2, 2015.)
These precedents thus supply the three-part test that this Court must employ to determine whether Section 1396a(a)(23) awards the Individual Plaintiff with a right enforceable under § 1983. Equal Access for El Paso, Inc. v. Hawkins, 509 F.3d 697, 702 (5th Cir. 2007). Thus, if (1) Congress “intended” that Section 1396a(a)(23) “benefit the [individual] plaintiff[s],” (2) “the right assertedly protected by th[is] statute is not so vague and amorphous that its enforcement would strain judicial competence,” and (3) Section 1396a(a)(23) “unambiguously impose[s] a binding obligation on the [s]tates,” the Individual Plaintiffs, here represented by all Plaintiffs’ counsel, may proceed to sue Defendant for violating Section 1396a(a)(23) pursuant to § 1983, having “advanc[ed] a violation of a ‘federal law.’” Hood, 235 F.3d at 924–25 (quoting Blessing, 520 U.S. at 340–41), rev’d on other grounds, as observed in Hawkins, 509 F.3d at 701 n.4. Not
53 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 54 of 80
voidable by one decision’s dicta or a plurality’s construal of a different subsection, this Gonzaga and Blessing standard for unearthing congressional intent to create a private cause of action governs still.
Read plainly, § 1396a(a)(23) easily satisfies each prong. It contains rights-creating and mandatory language, and it has an unmistakable individual focus. 42 U.S.C. § 1396a(a)(23). Indeed, with its terms so comprehensive and clear, court after court forced to peruse this provision has reached the same conclusion: “[W]e hold that the Medicaid Act's free-choice-ofprovider requirement confers a private right of action under 42 U.S.C. § 1983.” Betlach, 727 F.3d at 963; accord, e.g., Doc. 63 at 12–19, Bentley; Doc. 45 at 12, Selig; Indiana, 699 F.3d at 968; Harris, 442 F.3d at 459. True, as Defendant notes, some of these courts applied § 1396a(a)(23) pre-Armstrong. Yet, their distinctive factual predicates do not affect the more uniform applicability (and cogency) of these courts’ interpretation of the unchanged statute at issue here in accordance with the standard laid out in Wilder and its progeny. Presented with the same exact subsection, they discerned a private cause of action within it. In following Betlach, Indiana, Harris, and Selig, this Court simply endorses a statutory construction predicated on venerable canons and jurisprudence founded on binding Supreme Court precedent, see Nicole Huberfeld, Where There is a Right, There Must be a Remedy (Even in Medicaid), 102 KY. L.J. 327, 343 (2013–14) (“When states agree to participate in the Medicaid program, they know that failure to comply with the terms of the Medicaid Act will result in either the Secretary [of DHHS] taking action to bring the state into alignment with the Act or private enforcement of the law . . . . [T]he private enforcement of the Medicaid Act is [therefore] not a surprise to the states, and it has not been for decades.”).
Crucially, this reading of § 1396a(a)(23) is consistent with the construction given to other
54 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 55 of 80
similar provisions of the Medicaid Act, a fact that triggers the application of another familiar canon of interpretation, see TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S. Ct. 441, 449, 151 L. Ed. 2d 339 (2001) (“[A] statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.” (internal quotation marks omitted)).
For instance, the Medicaid Act’s Reasonable Promptness Provision requires that a state plan for medical assistance “provide that all individuals wishing to make application for medical assistance under the plan shall have opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals.” 42 U.S.C. § 1396a(a)(8) (emphasis added). In the persuasive (and decisive) Romano, the Fifth Circuit itself applied Blessing’s three-part test as modified by Gonzaga and found that this section, linguistically identical to Section 1396a(a)(23), creates a private cause of action enforceable under § 1983. 721 F.3d at 375, 378–80; accord, e.g., Sabree v. Richman, 367 F.3d 180, 192 (3d Cir. 2003) (reaching the same conclusion as to Section 1396a(a)(10) and (a)(15)).
Similar in tone to Section 1396a(a)(8) and (a)(23), Section § 1396a(a)(3) reads: “A [s]tate plan for medical assistance must . . . provide for granting an opportunity for a fair hearing before the State agency to any individual whose claim for medical assistance under the plan is denied or is not acted upon with reasonable promptness.” 42 U.S.C. § 1396a(a)(3) (emphasis added); McCarthy v. Hawkins, 381 F.3d 407, 411 n.3 (5th Cir. 2004) (quoting id.). This section selfevidently contains the same words prominent in § 1396a(a)(23), including “individual” and “must.” 42 U.S.C. § 1396a(a)(3). Logically, therefore, another court similarly construed it: “[The] language is mandatory, the provision contains rights-creating language, and there is an individual focus.” Detgen v. Janek, 945 F. Supp. 2d 746, 754 (N.D. Tex. 2013); see also, e.g.,
55 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 56 of 80
Shakhnes v. Berlin, 689 F.3d 244, 247, 254, 256-57 (2d Cir. 2012) (concluding that private plaintiffs can sue under § 1983 to enforce Section 1396a(a)(3)).
In a final example, Section 1396a(bb)(5) states: “In the case of services furnished by a [FQHC] . . . pursuant to a contract between the center or clinic and a managed care entity . . ., the State plan shall provide for payment to the center or clinic by the State.” 42 U.S.C. § 1396a(bb)(5) (emphasis added). This subparagraph too, the First Circuit has observed, speaks in “individualistic terms, rather than at the aggregate level of institutional policy or practice,” refers to “specific, discrete beneficiary group,” and contains mandatory and “highly specific terms,” and therefore creates a right subject to enforcement under § 1983. Rio Grande Cmty. Health Ctr., Inc. v. Rullan, 397 F.3d 56, 74, 75 (1st Cir. 2005).
In sum, an overwhelming majority of courts confronted with language in the Medicaid Act identical to that before the Court now have found it to impart a right of action cognizable under § 1983. To read these identical terms differently, as Defendant now proposes, is insupportable pursuant to one “well established principle[] of statutory construction,” RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct. 2065, 2073, 182 L. Ed. 2d 967 (2012). To wit, “[t]he normal rule of statutory construction assumes that identical words used in different parts of the same act are intended to have the same meaning.” Sorenson v. Sec’y of Treasury, 475 U.S. 851, 860, 106 S. Ct. 1600, 1606, 89 L. Ed. 2d 855 (1986); see also, e.g., United States v. Marshall, 798 F.3d 296, 309 (5th Cir. 2015) (applying this canon). While this rule “readily yields to context,” Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2441, 189 L. Ed. 2d 372 (2014), nothing in the language of Section 1396a(a)(23) compels its abandonment.32
32 Crucially, Defendant has given no reason reflecting “distinct statutory objects calling for different implementation strategies” that would justify construing Section 1396a(a)(23) differently than 1396a(a)(8). She has pointed the Court to Armstrong alone, which, as shown below, will not do. See infra Part V.B.1.b.
56 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 57 of 80
(b) Defendant’s Misplaced Emphasis on Armstrong Defendant urges this Court to discard this consensus on the basis of the recent Armstrong
decision, (Hr’g Tr. 19:19–24, Sept. 2, 2015; Hr’g Tr. 8:4–5, Oct. 16, 2015). However, this decision cannot bear the weight placed upon it by Defendant. The Selig court said it well: Armstrong “does not overrule, or even significantly undermine, the precedent that informed the reasoning of the Sixth, Seventh, and Ninth Circuits in recognizing a private right of action under 42 U.S.C. § 1396a(a)(23).” Doc. 45 at 12, Selig. This Court agrees: by its own terms, Armstrong cannot control for four different reasons.
First, Armstrong is narrower than Defendant says. The Armstrong plurality did not dissect § 1396a(a)(23); it did not even delve into the meaning of a similarly worded provision like § 1396a(a)(3) or (a)(8). Instead, Armstrong focused on § 1396a(a)(30), which compels a state plan 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.” 42 U.S.C. § 1396a(a)(30). Armstrong stressed that this subparagraph, not every paragraph in Section 1396a(a), lacked the “rights-creating” language prominent in statutes in which a private right of action could be discerned. 135 S. Ct. at 1387 (Scalia, J., plurality). Further, the Court noted that it was not focused on the rights of an individual; instead, “[i]t is phrased as a directive to the federal agency charged with approving state Medicaid plans.” Id. Unlike Section 1396a(a)(30), whose precise text was examined so diligently in Armstrong, both “rights-creating” and individual-focused language are prominent in (a)(23). See supra Part V.B.1.a.
57 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 58 of 80
As a counter, Defendant claims that § 1396a(a)(23) and (a)(30) contain “the exact same rights creating type of language.” (Hr’g Tr. 16:17–22, Sept. 2, 2015; see also Doc. 53-1 at 20.) This contention is based purely and incorrectly on the introductory words of the overall section (“a [s]tate plan must . . .”), not the precise language of the controlling paragraph, i.e. Sections 1396a(a)(30). It thus ignores the specific reference to “individual” and the use of the word “may” in Section 1396a(a)(23): “[A]ny individual . . . may obtain from any institution . . . qualified to perform the service or services required . . . who undertakes to provide him [or her] such services.” 42 U.S.C. 1396a(a)(23). True, the state “must” provide a plan so permitting, but Section 1396a(a)(23) quite clearly empowers a Medicaid eligible “individual” to choose amongst a set of providers competent in their selected medical field. In essence, Defendant is urging this Court to rewrite a plain statute, a task at odds with its judicial duty “to ascertain — neither to add nor to subtract, neither to delete nor to distort” an enactment’s final terms. Ariz. State Bd. for Charter Sch. v. U.S. Dep’t of Educ., 464 F.3d 1003, 1007 (9th Cir. 2006).
Second, Defendant has extended Armstrong’s “rationale” far beyond its own stated limits. True, four justices went further, specifically dismissing respondents’ arguments for “a cause of action” predicated on “the Medicaid Act itself.” Armstrong, 135 S. Ct. at 1387 (Scalia, J., plurality). However, Armstrong’s next two paragraphs narrowly define the reference to “the Medicaid Act” to Section 1396a(a)(30) alone, and no majority coalesced around the broader proposition embraced by Justice Scalia, id. at 1387–88 (Scalia, J., plurality). Instead, Justice Breyer’s concurrence, the fifth vote in Armstrong, specifically concentrated on the unique text of Section 1396a(a)(30), describing it as “set[ting] forth a federal mandate that is broad and nonspecific” and “appl[ying] its broad standards to the setting of rates.” Id. at 1388 (Breyer, J., concurring in part and concurring in judgment). Continuing, Justice Breyer emphasized that “the
58 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 59 of 80
history of ratemaking demonstrates that administrative agencies are far better suited to this task than judges.” Id. As such, in accordance with the Fifth Circuit’s binding command that a “joint opinion is . . . considered the holding of the Court . . . [only] as [to] the narrowest position supporting the judgment,” Cole, 790 F.3d at 571, this Court refuses to take Armstrong beyond the confines of § 1396a(a)(30), the only provision upon whose interpretation a majority could agree. In fact, as Defendant conceded at the First Hearing, (Hr’g Tr. 15:9–14, Sept. 2, 2015), Armstrong did not overrule Gonzaga or Wilder, and it was Gonzaga that formed the basis of the Fifth Circuit’s interpretation of § 1396a(a)(8) in Romano, 721 F.3d at 378–80. Based on the actual majority’s “rationale,” (Hr’g Tr. 16:18, Sept. 2, 2015), Armstrong can be read as definitive as to the breadth of Section 1396a(a)(30) but of no other section, including the Free-Choice-ofProvider now before this Court.
Third, just because § 1396a(a)(30) and (a)(23) are subparts of one act does not make them identical in form and effect, as Defendant contends in seeking to expand Armstrong beyond its express ambit. (See, e.g., Doc. 53-1 at 18–20; Hr’g Tr. 16:17–22, Sept. 2, 2015.) Rather, “[t]he mere fact that all the Medicaid laws are embedded within the requirements for a state plan does not, by itself, make all of the Medicaid provisions into ones stating a mere institutional policy or practice rather than creating an individual right.” Rio Grande Cmty. Health Ctr., Inc., 397 F.3d at 74. This command, in fact, is rooted in a whole other subsection: “In an action brought to enforce a provision of this chapter [which includes the Medicaid statutes], such provision is not to be deemed unenforceable because of its inclusion in a section of this chapter requiring a State plan or specifying the required contents of a State plan.” 42 U.S.C. § 1320a-2; BK v. N.H. Dep’t of Health & Human Servs., 814 F. Supp. 2d 59, 68 (D.N.H. 2011) (citing id.); Watson v. Weeks, 436 F.3d 1152, 1158 (9th Cir. 2006) (“Congress responded to . . . [Wilder] by
59 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 60 of 80
enacting . . . 32 U.S.C. 1320a-2 which blocks any Medicaid Act provision from being deemed unenforceable by an individual merely because the provision contains state plan requirements.”) Based on this subsection’s implication, the fact that Section 1396a(a)(23), like Section 1396a(a)(30), commences with the same introductory phrase (“A State plan for medical assistance must . . . .”), 42 U.S.C. § 1396a(a), should not be dispositive here, as Defendant maintains, (Hr’g Tr. 16:17–22, Sept. 2, 2016; see also Hr’g Tr. 8:10–17, Oct. 16, 2015). Instead, the entire language of the former, consistently construed to award a private cause of action to Medicaid beneficiaries, see, e.g., supra Part V.B.1.a; see also Doc. 63 at 18, Bentley (finding itself persuaded by “these remarkably consistent holdings”), must be honored.
One final fact weighs against Armstrong’s extension. Neither revolutionary nor anomalous, Armstrong actually aligned with a majority of federal courts in its construction of Section 1396a(a)(30) as to Medicaid providers in Gonzaga’s aftermath. See, e.g., Equal Access for El Paso, 509 F.3d at 704; Mandy v. Owens, 464 F.3d 1139, 1148 (10th Cir. 2006); Westside Mothers v. Olszeqski, 454 F.3d 532, 542–43 (6th Cir. 2006); Sanchez v. Johnson, 416 F.3d 1051, 1059 (9th Cir. 2005); Long Term Pharmacy Alliance v. Ferguson, 362 F.3d 50, 57 (1st Cir. 2004); Bradley J. Sayles, Preemption or Bust: A Review of the Recent Trends in Medicaid Preemption Actions, 27 J. CONTEMP. HEALTH L. & POL’Y 120, 130 & nn. 66–67 (2010) (making this point); Nicole Huberfeld, Bizarre Life Triangle: The Spending Clause, Section 1983, and Medicaid Entitlements, 42 U.C. DAVIS L. REV. 413, 447–48 (2008) (same). In contrast, Defendant is now asking this Court to expand Armstrong not just beyond its limits but as contrary to precedent’s overwhelming weight. In its circumstances, not just its legal reasoning, Armstrong can therefore be distinguished from the case at bar. See , e.g., Townsend, 2008 U.S. Dist. LEXIS 52549, at *23–24, 2008 WL 2743284, at *12 (dismissing some claims under the
60 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 61 of 80
Medicaid Act but not plaintiffs’ Section 1396a(a)(23) one, among others).
(c) Defendant’s Misplaced Argument on Section 1396a(a)(23)’s Ambiguity and for
Deference
Defendant argues that, even if the Individual Plaintiffs have the right to choose a
qualified provider and enforce that right via Section 1983, PPGC is not “qualified” under Section
1396a(a)(23) because DHH can deem it so by exercising Section 46:437.11(D)(2). (Hr’g Tr.
11:3–7, Oct. 16, 2015; Doc. 53-1 at 21; Hr’g Tr. 9:18–10:5, Sept. 2, 2015.) In clear and
persuasive terms, the court in Selig rightly rejected that argument.
Here, the dispute is whether the Government, either through the Governor or through [Arkansas Department of Human Services’ (“ARDS”)] actions, impermissibly interfered with the Jane Does’ choice of a qualified provider when it terminated PHH as a provider in the manner and for the reason it articulates. If this right found in 42 U.S.C. § 1396a(a)(23) and conferred on Medicaid recipients is to have the meaning, and if it is to have the meaning ascribed to it by the Court in O’Bannon [v. Town Ct. Nursing Ctr., 447 U.S. 773, 787 (1980)], ADHS cannot be permitted to declare a provider unqualified and then to use that declaration to put out of reach any future challenges to its conduct by Medicaid recipients. Doc. 45 at 19, Selig.33 Based on the filings made, Defendant’s defense relies on one of two
assumptions: either “qualified” is so vague as to fail the Blessing test or so ambiguous as to
effectively award it discretion to define “qualified” according to a standard of competence
circumscribed by her own whims. Her success on this ground depends on showing first that
“qualified to perform the service or services required” in Section 1396a(a)(23) is inherently
33 Indeed, when she first relied on Section 46:437.11(D)(1), counsel for Defendant conceded her reading of Section 1396a(a)(23) is “circular.” (Hr’g Tr. 21:12-13, Sept. 2, 2015.) If so, then it cannot stand, for no statute can be interpreted so as to render its specific terms superfluous or divorced from “the phrase in which it is embedded.” Betlach, 727 F.3d at 960. This Court’s duty “to give effect, if possible, to every . . . word of a statute” compels rejecting an interpretation that Defendant herself concedes makes Section 1396a(a)(23) either absurd or illogical. United States v. Menasche, 348 U.S. 528, 538, 75 S. Ct. 513, 520, 99 L. Ed. 615 (1955).
61 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 62 of 80
ambiguous and, if so regarded, as an implicit grant of lexicographical discretion by Congress to DHH. Both her first premise and second inference, however, fall before the plain import of Section 1396a(a)(23).
In cases of statutory interpretation, no deference is owed where the term in question is clear on its face. In determining the meaning of a statutory term, the rules of interpretation and construction are clear: a court must begin with the relevant language. Landreth Timber Co. v. Landreth, 471 U.S. 681, 685, 105 S. Ct. 2297, 2301, 85 L. Ed. 2d 692 (1985); see also Temp. Emp’t Servs. v. Trinity Marine Grp., 261 F.3d 456, 462 (5th Cir. 2001) (citing id.). If the meaning is plain and unambiguous and the statutory scheme is both “coherent and consistent,” Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S. Ct. 843, 846, 136 L. Ed. 2d 808 (1997); see also Salazar v. Maimon, 750 F.3d 514, 518 (5th Cir. 2014) (citing id.), “the sole function of the courts is to enforce it according to its terms,” Caminetti v. United States, 242 U.S. 470, 485, 37 S. Ct. 192, 194, 61 L. Ed. 442 (1917); see also, e.g., Meredith v. Time Ins. Co., 980 F.2d 352, 356 & n.18 (9th Cir. 1993) (quoting id.); In re McCarthy, 391 B.R. 372, 375 (Bankr. N.D. Tex. 2008) (same).
Under these rules, Section 1396a(a)(23) is no quandary. Linguistically, “qualified” means “[p]ossessing the necessary qualifications; capable and competent.” Qualified, BLACK’S LAW DICTIONARY (10th ed. 2014). Inputting this definition of “qualified” into § 1396a(a)(23), it is clear that a provider “qualified to perform the service or services required” is one who is “capable and competent” of “perform[ing]” the “service or services” for which he, she, or it has been contracted by the Medicaid eligible individual seeking “medical assistance.” 42 U.S.C. § 1396a(a)(23). If it is competent to offer those services, an individual “may” choose them without a state intruding, and if a state attempts to render it unqualified based on activities that it does not
62 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 63 of 80
undertake, it has stripped “qualified” of its natural meaning and effectively removed the phrase “to perform the service or services required” from the explicit text of Section 1396a(a)(23). It requires no specialized agency expertise to reach this conclusion; no factual development is necessary for this language to be so understood. Rather, it follows naturally from this provision’s plain meaning, as illuminated by the surrounding text. See Betlach, 727 F.3d at 965. “[I]f the intent of Congress is clear,” as evidenced by the use of an unambiguous word so clarified, “that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 842–43, 104 S. Ct. 2778, 2781, 81 L. Ed. 2d 694 (1984).
With this law in mind, one fact matters greatly. On September 2, 2015, Defendant conceded that PPGC is competent to provide the services required by the Agreements and by the Medicaid Act. (Hr’g Tr. 12:17–20, Sept. 2, 2015.) Thereafter, this concession was never retracted. (Hr’g Tr. 22:4–23:5, Oct. 2, 2016.) In so doing, Defendant has admitted that PPGC is “qualified” within the statute’s most minimal and straightforward meaning. In concluding that Plaintiffs will likely show that Defendant has contravened Section 1396a(a)(23), this Court echoes the Ninth Circuit: “Nowhere in the Medicaid Act has Congress . . . indicated that each state is free to define . . . [‘qualified’] for purposes of its own Medicaid program however it sees fit.” Betlach, 727 F.3d at 970.
Even if this Court were to regard “qualified” as ambiguous, however, DHH’s interpretation would deserve no deference. In essence, Defendant contends that “qualified” is an ineradicably ambiguous term, so unfettered in content that no outer bounds but her own opinion can be set, (Doc. 13 at 8; Doc. 53-1 at 21), so that this one word has become “an interpretive wormhole, whose supposed ambiguity leads to a galaxy of unfettered agency discretion,”
63 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 64 of 80
Wheaton v. McCarthy, 800 F.3d 282, 288 (6th Cir. 2015). But, for deference to be extended under well-settled jurisprudence, certain prerequisites must be satisfied. Thus, “[a] precondition to deference under Chevron is a congressional delegation of administrative authority” to the particular agency. Adams Fruit Co. v. Barrett, 494 U.S. 638, 649, 110 S. Ct. 1384, 1391, 108 L. Ed. 2d 585 (1990), cited in, e.g., Alaska Wilderness League v. Jewell, 788 F.3d 1212, 1219 (9th Cir. 2015). In addition, that same interpretation must be precedential, carrying “the force of law.” Dhuka v. Holder, 716 F.3d 149, 155 (5th Cir. 2013). If not precedential, a lower form of deference applies, with the weight of an agency’s judgment “in a particular case” dependent “upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Id. at 154 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S. Ct. 161, 89 L. Ed. 124 (1944)); accord Rubio v. Lynch, 787 F.3d 288, 291 (5th Cir. 2015). Even if these requirements are satisfied, deference is only accorded if the statute is truly “ambiguous” regarding the precise “question at issue” and if the agency’s interpretation is a “reasonable” and hence “permissible construction of the statute” at hand. Orellana-Monson v. Holder, 685 F.3d 511, 517 (5th Cir. 2012); see also, e.g., Siew v. Holder, 742 F.3d 603, 607 n.27 (5th Cir. 2014) (citing id.); United States v. Baptiste, 34 F. Supp. 3d 662, 670 (W.D. Tex. 2014) (same); cf. Carl Sunstein, Law and Administration after Chevron, 90 COLUM. L. REV. 2071, 2087 (1990) (elaborating upon the reasons for deference to administrative agencies).
Assuming “qualified” is truly “ambiguous,” DHH’s interpretation does not meet these established predicates. Not the product of considered rulemaking or reflected in a history of enforcement, DHH has yet to provide even one bit of evidence that it has ever so construed “qualified” to exclude a provider whose competence is not at issue. For example, while Section
64 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 65 of 80
46:437(D)(1) had been used on “three prior distinguishable occasions,” (Doc. 34 at 3), all three involved overpayment that DHH allowed the offender to correct pre-termination, (Doc. 34-1 at 2, 4, 6). The limited case law available to this Court, meanwhile, suggests that Section 46:437.11(D)(2) has been limited to instances where criminal infractions have been credibly alleged and/or financial malfeasance has been plausibly evidenced. See, e.g., Midtown Med. v. Dep’t of Health & Hosps., 2012 La. App. Ct. Briefs LEXIS 1889 (La. Ct. App. Oct. 26, 2012) (termination predicated on DHH’s attempted “monetary recoupment” and assessment of a “monetary penalty”); Cmty. Care-Bossier, Inc. v. Foti, No. 5:06CV181, 2006 WL 811944 (W.D. La. Feb. 7, 2006) (“On or about January 24, 2006, DHH was notified that several employees and/or owners of CCB had been arrested, that bank accounts in the names of CCB and the arrested employees/owners had been frozen, and that medical records in the possession of CCB had been seized by agents of the Louisiana Department of Justice.”).
Additionally, Defendant’s present position is not even “embodied in opinion letters, policy statements, agency manuals, and enforcement guidelines,” which though “lack[ing] the force of law,” elicit some judicial respect. Christensen v. Harris Cnty., 529 U.S. 576, 587, 120 S. Ct. 1655, 146 L. Ed. 2d 621 (2000). Indeed, in citing the various meanings that “qualified” may have, she gives no source to credit her unique interpretation, (Doc. 13 at 8; Doc. 53-1 at 21), and her own lawyer admitted that at least her original denotation of “qualified” was “circular,” (Hr’g Tr. 21:12–13, Sept. 2, 2015), thereby rendering it unpersuasive and raising doubt about her present reasoning’s thoroughness. White v. Black, 190 F.3d 366, 368-69 (5th Cir. 1999); see also FAA v. Cooper, 132 S. Ct. 1441, 1449, 182 L. Ed. 2d 497 (2012) (rejecting the use of “a general (and notably circular) definition”). This decision to adopt a definition of “qualified” divorced from a provider’s “competence,” then, bears none of the marks of considered rulemaking or
65 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 66 of 80
evidence the exercise of some agency particular expertise, as the most minimal deference doctrines require. See Vigil v. Leavitt, 381 F.3d 826, 835 (9th Cir. 2004).
Lastly, this Court finds no merit in Defendant’s factual contentions regarding the recent nature of CMS’ interpretation. Before this Court, Defendant has claimed that her counsel’s conversation with CMS provided “some contending views . . . as to what qualified mean[s].” (Hr’g Tr. 19:2–7, Sept. 2, 2015.) In Defendant’s Reply, she adds an additional accusation, claiming that CMS has propounded an interpretation of “qualified” in the Statement of Interest never before evidenced or proclaimed. (Doc. 31 at 4.) Both these statements, however, are disingenuous.
The first assertion appears to be based on the First (and Second and Third) Kennedy Declarations, yet in none did Ms. Kennedy so describe her conversation with CMS. Rather, per the First Kennedy Declaration, CMS did no more than “advise[]” DHH that it “has the authority to withhold federal Medicaid dollars from Louisiana or seek injunctive relief for failure to comply with the Medicaid Act.” Such language, even if it is most generously construed in Defendant’s favor, simply does not imply that CMS acceded to Defendant’s premise (that “qualified” as sufficiently “ambiguous” as to be indefinable) or that CMS acknowledged DHH’s authority to define it in a manner inconsistent with CMS’ understanding of § 1396a(a)(23).
Meanwhile, DHH has seemingly overlooked an Informational Bulletin, dated June 1, 2011, sent by CMS to every state Medicaid agency.34 In this short bulletin, a matter of public
34 Pursuant to Federal Rule of Evidence 201(b), this Court may take judicial notice of “publically-available documents and transcripts” produced by a state or federal agency “which were matters of public record directly relevant to the issue at hand.” Funk v. Stryker Corp., 631 F.3d 777, 783 (5th Cir. 2011); see also, e.g., Norris v. Hearst Trust, 500 F.3d 454, 461 n.9 (5th Cir. 2007) (“[I]t is clearly proper in deciding a 12(b)(6) motion to take judicial notice of matters of public record.”); Benak v. Alliance Capital Mgmt. L.P., 435 F.3d 396, 401 n.15 (3d Cir. 2006) (noting that a court can take judicial notice of newspaper articles to “indicate what was in the public realm at the time”); Denius v. Dunlap, 330 F.3d 919, 926–27 (7th Cir. 2003) (taking
66 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 67 of 80
record, CENTER FOR MEDICAID, CHIP AND SURVEY & CERTIFICATIONS, CMS INFORMATIONAL BULLETIN (June 1, 2011), available at http://www.medicaid.gov/Federal-PolicyGuidance/downloads/6-1-11-Info-Bulletin.pdf (last visited on Oct. 28, 2015), CMS addressed “some inquiries as to whether States may exclude certain providers from participating in Medicaid based on their scope of practice,” offering a cogent “review of longstanding federal law.” CMS, CMCS INFORMATIONAL BULLETIN 1 (June 1, 2011). As this bulletin continues, “[s]tates are not . . . permitted to exclude providers from the program solely on the basis of the range of medical services they provide”; a determination of the extent to which a Medicaid provider is “qualified” for purposes of § 1396a(a)(23), it explains, must be related to the actual “scope of services” offered by the relevant provider. Id. at 1–2. In other words, more than four years before DHH attempted to terminate the Agreements, CMS endorsed the interpretation of § 1396a(a)(23) substantially echoed in the Statement of Interest: “[T]erminating PPGC from . . . [Louisiana’s] Medicaid program without providing any justification related to PPGC’s qualifications to provide medical services would violate . . . § 1396a(a)(23),” (Doc. 24 at 2). Because CMS, not DHH, is the agency charged with the Medicaid Act’s management and thus the implementation of, among many, Section 1396a(a)(23), any deference owed would more rightly given to CMS’ construction, not DHH’s newfangled one, assuming the existence of even minor statutory ambiguity.35 See Hood, 391 F.3d at 590–91 (citing to CMS’ interpretation of the Medicaid Act and rejecting a construction advanced by DHH); see, e.g., St. Mary’s Hosp. of judicial notice of information on official government website); Cali v. E. Coast Aviation Servs., Ltd., 178 F. Supp. 2d 276, 287 n. 6 (E.D.N.Y. 2001) (taking judicial notice of documents from Pennsylvania state agencies and the Federal Aviation Administration). CMS’ own informational bulletins surely qualify. 35 It is worth noting that Congress’ delegation to CMS does not necessarily and automatically imply a concurrent delegation to a state actor of the unfettered prerogative to promulgate official and binding interpretations of a federal statute superior to any advanced by the actual federal agency assigned this interpretive power. Defendant has offered no support for such a proposition.
67 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 68 of 80
Rochester v. Leavitt, 416 F.3d 906, 914 (8th Cir. 2005) (holding that CMS’ interpretation of the Medicaid Act respect, but not deference); Ctr. for Special Needs Trust Admin., Inc. v. Olson, 676 F.3d 688, 700–01 (8th Cir. 2012) (emphasizing that even if a CMS letter has persuasive power it cannot override the Medicaid Act’s plain language).
(d) Considering Defendants’ Reasons for Claiming PPGC is Unqualified Like the Selig, Herbert and Bentley courts, this Court finds it likely that Plaintiffs will
prevail on their Section 1396a(a)(23) claim. This subsection allows a private cause of action, and Defendant has already conceded that PPGC is competent to provide the services it renders in Louisiana. Thus, PPGC is “qualified” as that term must be naturally (and plainly) defined, as the Seventh and Ninth Circuits concluded in Indiana and Betlach. For the purposes of a preliminary injunction, their likelihood of success has been established. Plaintiffs have provided more than enough precedent, evidence and argument to lead this Court to believe they have a reasonable probability of success.
Nonetheless, given Defendant’s recent invocation of Section 46:437.11(D)(2) and not Section 46:437.11(D)(1), this Court feels compelled to address the facial credibility of Defendant’s new grounds for termination. In the Second Termination Letters, Defendant gives three “violations” justifying its terminations: first, PPGC’s settlement of an FCA suit in Texas which it did not report to DHH; second, the involvement of a PPGC affiliate in a pending Texas case which survived a Rule 12(b)(6) dismissal and third, PPGC’s alleged misrepresentations in a letter responding to inquiries about the video tapes. (Doc. 39-1.) Having subjected these reasons to scrutiny, this Court concludes that, even if Defendant’s definition of “qualified” prevails, DHH’s reasons for disqualifying PPGC likely will not.
68 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 69 of 80
The first of Defendant’s reasons, the Reynolds Settlement, is likely to fail. The claim was brought by an FCA plaintiff, not the government, which choose not to intervene.36 The settlement expressly disavows PPGC’s liability. (Doc. 54-1 at 5.) It therefore falls into the exception set forth in Title 50 for certain FCA actions: “If a False Claims Act action or other similar civil action is brought by a Qui-Tam plaintiff, no violation of this provision has occurred until the defendant has been found liable in the action.” LA. ADMIN. CODE tit. 50, § 4147(12)(c) (emphasis added). Title 50 plainly and unambiguously requires that liability be “found,” whether by admission or by some fact-finder. Since Reynolds involved no such finding, Defendant’s first stated reason contradicts DHH’s own code. With no citation to authority, Defendant’s counsel asks the Court to reject the “literal” language of § 4147(12)(c) , (Hr’g Tr. 37:12–14, Oct. 16, 2015), in defiance of every well-known rule of interpretation. Urging the Court to adopt what he “think[s] that means,” he asks this Court to revise a plain provision, a task far beyond a judge’s proper province and the Secretary’s prescribed powers.
One other fact undercuts the Reynolds Settlement’s significance. Plaintiffs have credibly shown that DHH was aware of the Reynolds Settlement long before October 14, 2015, with Defendant’s own emails suggesting that it did not find it sufficient to provide “credible evidence” of Medicaid fraud. (Doc. 46-3 at 2.) Thus, in spite of the Second Termination Letters’ implications to the contrary, (Doc. 39-1 at 2, 5, 8, 11), DHH knew, having been “notified,” of this settlement, (Doc. 46-3 at 2; Hr’g Tr. 41:23–42:11, Oct. 16, 2015). Based on Title 50’s simple terms and Defendant’s own words from 2013, Plaintiffs are likely to succeed on proving the irrelevance of the Reynolds Settlement.
36 That the government had to sign off on an agreement and the case’s dismissal is a statutory requirement. 31 USCS § 3730(b)(1). It does not mean that the government was an active party or litigant. See United States ex rel. Carter v. Bridgepoint Educ., Inc., 305 F.R.D. 225, 230–31 (S.D. Cal. 2014) (explaining the complex subtleties involved in the FCA).
69 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 70 of 80
Defendant’s second ground for alleging fraud—the Carroll case—rests on a quote drawn from a judge’s ruling on a motion to dismiss. As revealed by that opinion’s full text, per Rule 12(b), “[t]he court concludes that Carroll has adequately pleaded factual content that allows the court to draw the reasonable inference that Planned Parenthood knowingly filed false claims.” Doc. 31 at 17, Carroll. Defendant’s allegation that the court in Carroll found “that the information already provided allows the court to draw the reasonable inference” that fraud took place, (Doc. 39-1 at 2) is clearly wrong. Rather, as counsel for Defendant conceded in oral argument, for purposes of the motion before that court, the plaintiff’s allegations were only assumed to be true, as Rule 12(b) requires. (Hr’g Tr. 36:2–11, Oct. 16, 2015.) That court never made a factual finding of fraud, as the Second Termination Letters imply by citing to this opinion as proof of “violations and misconduct by affiliates and providers-in-fact” of PPGC, (Doc. 39-1 at 2, 5, 8, 11). Instead, this court ruled only that the plaintiff had plead his case “adequate[ly].” Doc. 31 at 17, Carroll. Even today, Carroll appears either to still be in discovery or to have not yet been tried, (Hr’g Tr. 27:15–20, Oct. 16, 2015), so that no liability—and no fraud or a violation of the Medicaid Act or relevant regulations—has actually been “found” by a single factfinder. In other words, the second ground in the Second Termination letters cannot satisfy the language of Title 50.
Defendant’s third asserted ground is that PPGC made unspecified misrepresentations in violation of Section 46:437.14(A)(1), in response to her letter inquiries. MAPIL defines “misrepresentation” with precision as “the knowing failure to truthfully or fully disclose any and all information required, or the concealment of any and all information required on a claim or a provider agreement or the making of a false or misleading statement to the department relative to the medical assistance programs.” LA. R.S. § 46:437.3(15); see also Caldwell ex rel. State v.
70 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 71 of 80
Janssen Pharmaceutica, Inc., 144 So. 3d 898, 910 (La. 2014) (citing id.). Not one misrepresentation is specified or substantiated in her letter or by her attorneys, and each, on the record now before the Court, has been credibly contradicted in PPGC’s August Letter, (Doc. 391 at 3, 6, 9, 12; Doc. 46-1 at 63–66.) If this plain statutory law, as interpreted by this state’s highest court, is to be respected, it impliedly demands that a misrepresentation be plausibly alleged. None has been so, Defendant merely asserting the existence of “clear violations” without either detail or substantiation. As the evidence is currently constituted, therefore, Defendant’s third ground will not likely stand.
In this Court’s opinion, two other facts are telling. First, the Second Termination Letters cite no “found” violation of licensure or certification requirements or any specific failure to meet any condition of enrollment. (Doc. 39-1 at 3, 6, 9, 12.) Second, Defendant cites to the final clause of Section 46:437.11(D)(2), which allows for termination if a provider is “the subject of a sanction or of a criminal, civil, or departmental proceeding,” and deems sufficient an allusion to investigations by DHH and the Louisiana Office of Inspector General. (Hr’g Tr. 34:8–15, Oct. 16, 2015; see also Doc. 39-1 at 3.) That an investigation by DHH can suffice under Section 46:436(D)(2) has been rejected once before. See New Orleans Home for Incurables, Inc. v. Greenstein, 911 F. Supp. 2d 410, 411–12 (E.D. La. 2012). As for the second, when this Court asked Defendant’s counsel to offer some detail regarding these alleged misrepresentations, he could not. (Hr’g Tr. 38:23–39:10, Oct. 16, 2015.) Considering her failure to articulate one relevant misrepresentation within MAPIL’s meaning, and on the record as it now stands, Plaintiffs will likely succeed on this issue.
In fact, the apparent fragility of the Second Termination Letters’ stated reasons raises another specter, for not one appears to be a supported factual allegation of the kind of fraud and
71 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 72 of 80
ill-practice with which MAPIL is concerned. See Mortg. Elec. Registration Sys. v. Bynum, 879 So. 2d 807, 811 (La. Ct. App. 2004). Here, this apparent vacuum cannot be ignored, for as the Supreme Court of Louisiana explained in the spring of 2015, “[a]n agency exercising delegated authority is not free to pursue any and all ends, but can assert authority only over those ends which are connected with the task delegated by the legislative body.” Dep’t of Children & Family Servs. ex rel. A. L. v. Lowrie, 167 So. 3d 573, 587–88 (La. 2015); see also State v. Alfonso, 753 So. 2d 156, 161 (La. 1999) (“When the legislative body, in delegating powers, clearly expresses its policy and provides sufficient standards, judicial review of the exercise of the means chosen by the agency in exercising its delegated power provides a safeguard against abuse by the agency.”) “The open-ended discretion to choose ends is the essence of legislative power; it is this power that the legislative body possesses, but its agents lack.” Lowrie, 167 So. 3d at 587.
Section 46:437.11(D)(2) is but one part of a law directed towards specific ills. It is reasonable to conclude that the legislature logically expected the powers awarded by this provision to be employed so as “to combat and prevent fraud and abuse” and to secure the “fiscal and programmatic integrity” of a program otherwise endangered by “persons who engage in fraud, misrepresentation, abuse, or other ill practices” as expressly defined in MAPIL alone. See LA. R.S. § 46:437.2.
But, based on the evidence so far presented, no actual evidence of a MAPIL-worthymisdeed has been presented. Indeed, no misconduct of any kind has been alleged, let alone shown, as it pertains to PPGC’s operations in Louisiana. The Parties have stipulated that, for purposes of the Court’s consideration of a preliminary injunction, no additional evidence need be offered and no additional argument need be made; consequently, evidentiary support for a single
72 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 73 of 80
one of Defendant’s contentions is absent by Defendant’s own volition. By highlighting the suspect underpinning the Second Termination Letters, Plaintiffs have therefore met their burden of showing a likely success on this issue, regardless and apart from the Individual Plaintiffs’ likely success on the other issues previously discussed. See supra Part V.B.1.a–c.
C. SECOND ELEMENT: IRREPARABLE HARM “‘Irreparable’ in the injunction context means not rectifiable by the entry of a final
judgment.” Walgreen Co. v. Sara Creek Prop. Co., 966 F.2d 273, 275 (7th Cir. 1992). On the record before the Court, Plaintiffs have met their burden of showing irreparable harm.
Based on their uncontroverted affidavits, the Individual Plaintiffs depend on PPGC. (Doc. 4-3, 4-4, 4-5.) And if the Agreements are terminated, they (and Jane Doe #3’s daughter) will be unable to visit their Medicaid provider of choice. (Doc. 4-3 ¶¶ 6–7 at 2; Doc. 4-4 ¶¶ 7–8 at 2; Doc. 4-5 ¶¶ 5–6 at 2.) Approximately, 5,200 other women visit BRHC and NOHC and likely depend upon to some degree. (Doc. 41-1 ¶¶ 12–18 at 4–5.) At this stage of the proceeding, the Court is persuaded that, absent this termination, the patients of PPGC in Louisiana will have their healthcare disrupted. Counsel for Defendant has already conceded this to be the case. (Hr’g Tr. 13:1–12, Sept. 2, 2015.) Like the court in Selig, this Court credits these women’s “statements in the form submitted.” Doc. 45 at 20, Selig. Presented with similar facts, other courts have found irreparable harm. See, e.g., Doc. 63 at 51–54, Bentley; Doc. 45 at 22, Selig; Doc. 12 at 1– 2, Herbert; Planned Parenthood of Ind., Inc. v. Comm’r of Ind. State Dep’t of Health, 794 F. Supp. 2d 892, 912–13 (S.D. Ind. 2012), aff’d in part and rev’d in part on other grounds, 699 F.3d 962; Camacho, 325 F. Supp. 2d 794 at 802.
Based on its own unquestioned assertions, PPGC will also likely suffer irreparable harm.
73 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 74 of 80
Regardless of the precise dollars in revenue it may receive from the state, PPGC has made clear that it may have to close BRHC upon the Agreements’ termination. (Doc. 46 at 27.) Often, such results have been considered irreparable. Planned Parenthood of Ind., Inc., 794 F. Supp. 2d at 912; see also Canterbury Career Sch., Inc. v. Riley, 833 F. Supp. 1097, 1105 (D.N.J. 1993) (“Where the result of denying injunctive relief would be the destruction of an on-going business, such a result generally constitutes irreparable injury.”). The fact that the Eleventh Amendment forbids PPGC from ever collecting monetary damages, even if Defendant’s conduct is later found illegal, also militates in favor of deeming its likely harm to be irreparable, Green, 474 U.S. at 68. In addition, “potential reputational harm is present,” Doc. 12 at 1, Herbert, as Defendant’s termination may lead others to believe PPGC is not a competent provider despite her own failure to offer up relevant and specific evidence to the contrary, (Hr’g Tr. 11:12–16, Sept. 2, 2015). Cumulatively, these harms are irreparable. See, e.g., United Healthcare Ins. Co. v. AdvancePCS, 316 F.3d 737, 741 (8th Cir. 2002); Pappan Enters., Inc. v. Hardee’s Food Sys., Inc., 143 F.3d 800, 805 (3d Cir. 1998). This conclusion is especially true when, as here, (Doc. 43 ¶¶ 64–67 at 20), a plaintiff asserts constitutional claims under the First and Fourteenth Amendment. See, e.g., Doc. 12 at 2, Herbert.
Defendant has sought to allay these concerns with the First, Second, and Third Kennedy Declarations. (Doc. 13-2 at 1–41; Doc. 31-1 at 1–2; Doc. 34 at 1–2; Doc. 34-2 ¶¶ 8a–8b at 2.) Yet, these declarations’ manifold oversights and constant tinkering leave this Court with the decided impression that not even DHH can ensure that PPGC’s current patients will have some ready and convenient outlet. Indeed, even the most recent version contains a number of specialized providers who do not accept patients like PPGC’s own. See supra Part II.C.3.
Furthermore, even if Individual Plaintiffs could get family planning and other comparable
74 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 75 of 80
care elsewhere (and that has not been convincingly shown), “this does not diminish the injury that will result from [their] inability to see the provider of their choice.” Doc. 63 at 54, Bentley (citing Doc. 45 at 22, Selig (“[D]enial of . . . freedom of choice is more likely than not exactly the injury Congress sought to provide when it enacted [the free-choice-of-provider provision].”)). On the record before it, the Court finds the second element for a preliminary injunction to have been sufficiently shown.
D. THIRD ELEMENT: BALANCE OF HARMS By contrast to the Plaintiffs’ enumerated harms, Defendant points the Court to only two
that it maintains it will suffer if the motion is granted: (1) “The granting of a TRO would prevent the []DHH from their ability to govern the Medicaid program under the authority granted by the Medicaid Act,” and, (2) “It would also contravene the Louisiana Legislature’s intent to give the []DHH a right to terminate a Medicaid provider agreement at-will when she chooses to do so.” (Doc. 13 at 20.) The second obviously bears no more relevance since Defendant has rescinded her letters of termination under Section 46:436.11(D)(1). An injunction will have no financial effect, as DHH will still need to pay the Medicaid benefits of every PPGC Medicaid-eligible patient. See Doc. 12 at 1, Herbert; Marlo M. ex rel. Parris v. Cansler, 679 F. Supp. 2d 635, 638 (E.D.N.C. 2010). In dollars and cents, maintaining this status quo costs DHH nothing.
Furthermore, in terms of her ability to “govern the Medicaid program,” an injunction will not strip DHH of its statutory powers. It will not suddenly deprive her of the ability to pursue legitimate claims of Medicaid fraud or ensure that Louisiana citizens are obtaining “competent” medical care; she will still be able “to govern the Medical program.” At worst, it will halt its exercise of a particular power as to a single provider as to whose medical competency it has
75 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 76 of 80
admitted. Indeed, at worst, such an injunction will do no more than convince DHH to invoke its powers under MAPIL more clearly and consistently in the future. See New Orleans Home for Incurables, Inc., 911 F. Supp. 2d at 411–12. It would, in other words, force DHH to act as the statute implicitly demands. Other cases have so ruled. See, e.g., Doc. 45 at 30, Selig. With them, this Court agrees.
At the same time, this Court is not persuaded by Defendant’s efforts to distinguish Plaintiffs’ cases. One case that Defendant previously attempted to distinguish as being predicated on Section 46:437.11(D)(2), (Doc. 13 at 21), involved the very section she has now invoked. New Orleans Home for Incurables, Inc., 911 F. Supp. 2d at 410–11. By now relying on this very section, Defendant’s latest termination has now made this case particularly relevant. It is true that Plaintiffs’ second cited case—Giovanni Carandola, Ltd. v. Bason, 303 F.3d 507 (4th Cir. 2002)—“involved a State that enforced restrictions likely to be found unconstitutional.” (Doc. 13 at 21.) But the balance still favors Plaintiffs where, as here, the injunction is intended to foreclose application of restrictions likely to be found contrary to preeminent federal statutory law designed to help the neediest of this state’s citizens.
In sum, even if Defendant’s criticism is given weight, the balance of harms would still favor Plaintiffs.
E. FINAL ELEMENT: PUBLIC INTEREST In light of Plaintiffs’ likely irreparable harm and the balanced equities, this final factor
favors an injunctive relief too. For decades, PPGC has served numerous at-risk individuals and helped DHH combat a host of diseases, and, in the process, become the regular provider of over 5,000 women, including the Individual Plaintiff. Like its brethren, this Court “believes that . . .
76 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 77 of 80
vulnerable population[s] should only be uprooted if practically necessary and legally warranted.” Greenstein, 911 F. Supp. 2d at 412. As the Ninth Circuit stated in considering this same factor in a Medicaid case, the public interest is most acute in regards to “ensuring access to health care” absent any misdeed’s demonstration. Indep. Living Ctr. of S. Cal, Inc. v. Maxwell-Jolly, 572 F.3d 644, 659 (9th Cir. 2002), vacated and remanded on other grounds, 132 S. Ct. 1204, 182 L. Ed. 2d 101 (2012). Defendant herself has urged this Court to employ this factor: “[I]t is certainly true that the public has an interest in the neediest of its members having access to healthcare.” (Doc. 13 at 21.) Like Selig and Herbert, this Court adopts this reasoning and finds the public interest favors Plaintiffs.
In contesting Plaintiffs’ public interest arguments, Defendant has offered up only the following statement of purported fact: “[T]here has been no evidence presented that shows Medicaid recipients in the New Orleans and Baton Rouge areas will not have access to family planning and related services.” (Doc. 13 at 21.) As support, she asked this Court to rely upon the First Kennedy Declaration. (Id. at 21–22.) As noted above, see supra Parts II.C.3, V.C, a Kennedy Declaration has been tendered, retracted, and again proposed, leaving this Court wary of relying on Defendant’s protean assertions of fact. It instead turns to the uncontested and unquestioned facts—PPGC serves 5,200 poor and needy women, and PPGC has repeatedly been deemed a “competent” provider by DHH—and honors the public interest in affording these women access to their provider of choice.
F. CONCLUSION Four elements are necessary before a court may issue an injunction. Every element has
been shown by Plaintiffs in this proceeding in regards to their Section 1396a(a)(23) claim. A
77 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 78 of 80
preliminary injunction will therefore issue.
VI. FINAL ISSUES A. NO NEED FOR SECURITY
Rule 65 allows a court to “issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” FED. R. CIV. P. 65(c). This requirement, however, may be waived where the gravity of interest is great and no proper showing of a harm’s likelihood or a probable loss is made. See, e.g., Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 628 (5th Cir. 1996) (“In holding that the amount of security required pursuant to Rule 65(c) is a matter for the discretion of the trial court, we have ruled that the court may elect to require no security at all.” (internal quotation marks omitted)); City of Atlanta v. Metro. Atlanta Rapid Transit Auth., 636 F.2d 1084, 1094 (5th Cir. 1981) (same). Here, as in other courts, see, e.g., Doc. 45 at 31, Selig, Defendant has neither requested a security were this Court to issue an injunction nor presented any evidence that it would be financially harmed if it were wrongfully enjoined. In addition, as Plaintiffs note, “[w]hether these individuals obtain these services at PPGC (their provider of choice) or elsewhere will have no effect on Louisiana’s budget.” (Doc. 46 at 28.) Based on these facts and on Defendant’s failure to ask for a bond or plead an economic harm, this Court sees no credible reason to force a bond’s execution.
B. CLASS INJUNCTION Plaintiffs argue that they have been singled out because of the alleged (but disputed)
conduct of a separate but connected company that appeared in one of CMP’s videos and that
78 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 79 of 80
Plaintiffs played no role in that conduct. (Doc. 46 at 1–3.) Plaintiffs argue that Defendant has attempted to terminate its contracts because of the personal animus against it. This animus, they contend, is unrelated to the admittedly competent services that it renders in Louisiana which are, in turn, unrelated to the conduct in the videos. It is, moreover, being punished for being associated with various other Planned Parenthood entities, though it itself has not been demonstrated to have engaged in a single proscribed or illegal action. In fact, the uncontradicted evidence in the record at this time is that PPGC does not perform abortions in Louisiana and is not involved in the sale of fetal tissue and that none of the conduct in question occurred at PPGC’s two Louisiana facilities. As such, based on this existing record, it appears likely that Plaintiff will be able to prove that the attempted terminations against it are motivated and driven, at least in large part, by reasons unrelated to its competence and unique to it. However, the Court finds it is not necessary and therefore it need not at this time rule on Plaintiffs’ equal protection argument. See, e.g., Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 445, 108 S. Ct. 1319, 1323, 1323, 99 L. Ed. 2d 534 (1988) (“A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.”); cf. BRYAN A. GARNER & ANTONINA SCALIA, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 249–51 (2012) (discussing this rule’s bases).
Nonetheless, the uncontradicted evidence in the record is that BRHC relies to a significant degree on Medicaid reimbursements. (See, e.g., Doc. 4-1 at 10; Doc. 46 at 2.) The Court therefore finds that if the Agreements are terminated, this facility would suffer significant financial loss and might have no choice but to close. In order to insure that meaningful relief is given to the Jane Doe Plaintiffs and that these Individual Plaintiffs have their free choice of provider, which claim they have established (at least at this preliminary stage), the Court’s
79 of 80

Case 3:15-cv-00565-JWD-SCR Document 63 10/29/15 Page 80 of 80
preliminary injunction will extend to all DHH-PPGC provider agreements applicable to all Medicaid-enrolled patients. In addition, the Court will defer action on Plaintiffs’ alternative request for class certification to a more appropriate date and time.
VII. CONCLUSION The Parties have agreed that no additional evidence or argument is necessary and that
there is no objection to converting the Court’s previous temporary restraining order to a preliminary objection. (Docs. 58, 62.) For the foregoing reasons, as corrected, supplemented and clarified herein, PPGC and the Individual Plaintiffs have met their burden, demonstrating every element necessary for the issuance of a preliminary injunction with credible evidence and persuasive precedent. Accordingly,
Defendant’s Motion to Dismiss Complaint for Lack of Subject Matter Jurisdiction and Failure to State a Claim (Doc. 53) is DENIED.
Plaintiffs’ Renewed Motion for Temporary Restraining Order and for Preliminary Injunction (Doc. 45) is GRANTED.
Defendant, and all those acting in concert with her, are PRELIMINARILY ENJOINED from terminating any of its Medicaid provider agreements with Planned Parenthood Gulf Coast Inc., including, but not limited to, Provider Numbers 91338, 133689, 45802, and 133673. The preliminary injunction will remain in force until notified by this Court.
Signed in Baton Rouge, Louisiana, on October 29, 2015
S
JUDGE JOHN W. deGRAVELLES UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA
80 of 80

 
 Case: 3:15-cv-565 As of: 03/06/2017 03:29 PM CST 1 of 12
APPEAL,STAYED
U.S. District Court Middle District of Louisiana (Baton Rouge) CIVIL DOCKET FOR CASE #: 3:15−cv−00565−JWD−RLB

Planned Parenthood Gulf Coast, Inc. et al v. Kliebert Assigned to: Judge John W. deGravelles Referred to: Magistrate Judge Richard L. Bourgeois, Jr Related Case: 3:16−cv−00444−BAJ−RLB
Case in other court: 5th Circuit, 15−30987 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 08/25/2015 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Planned Parenthood Gulf Coast, Inc.

represented by William E. Rittenberg Rittenberg & Samuel, LLC 715 Girod Street New Orleans, LA 70130−3505 504−524−5555 Fax: 524−0912 Email: rittenberg@rittenbergsamuel.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Melissa Cohen Planned Parenthood Federation of America 123 William St. 9th Floor New York, NY 10038 212−261−4649 Email: melissa.cohen@ppfa.org PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Jane Doe #1

represented by William E. Rittenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carrie Y. Flaxman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Melissa Cohen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Jane Doe #2

represented by

Case: 3:15-cv-565 As of: 03/06/2017 03:29 PM CST 2 of 12

William E. Rittenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carrie Y. Flaxman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Melissa Cohen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Jane Doe #3

represented by William E. Rittenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carrie Y. Flaxman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Melissa Cohen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

V.
Defendant
Kathy Kliebert Secretary, Louisiana Department of Health and Hospitals

represented by Stephen Robert Russo Louisiana Department of Health & Hospitals P.O. Box 3836 Baton Rouge, LA 70821−3836 225−342−1103 Fax: 225−342−2232 Email: stephen.russo@la.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brook L. Villa Faircloth Melton, LLC 301 Main St. Suite 920 Baton Rouge, LA 70801 225−205−7819 Fax: 225−343−9538 Email: bvilla@fairclothlaw.com ATTORNEY TO BE NOTICED
Jimmy Roy Faircloth , Jr. Faircloth Melton, LLC 105 Yorktown Drive Alexandria, LA 71303 318−619−7755 Email: jfaircloth@fairclothlaw.com ATTORNEY TO BE NOTICED

Case: 3:15-cv-565 As of: 03/06/2017 03:29 PM CST 3 of 12

Kimberly L. Humbles Louisiana Department of Health & Hospitals P.O. Box 3836 Baton Rouge, LA 70821−3836 225−342−2556 Fax: 225−342−2232 Email: kimberly.humbles@la.gov ATTORNEY TO BE NOTICED

Kimberly Lacour Sullivan Louisiana Department of Health & Hospitals P.O. Box 3836 Baton Rouge, LA 70821−3836 225−342−0207 Fax: 225−342−2232 Email: kimberly.sullivan@la.gov ATTORNEY TO BE NOTICED

Ryan Jude Romero Louisiana Department of Health and Hospitals 628 North 4th Street Post Office Box 3836 Baton Rouge, LA 70821 (225) 342−1108 Fax: (225) 342−2232 Email: ryan.romero@la.gov ATTORNEY TO BE NOTICED

Interested Party United States

represented by John Joseph Gaupp United States Attorney's Office − BR Middle District of Louisiana 777 Florida Street, Suite 208 Baton Rouge, LA 70801 225−389−0443 Fax: 225−389−0685 Email: john.gaupp@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Megan A Crowley United States DOJ, Civil Division 20 Massachusetts Ave, NW Room 7148 Washington, DC 20530 202−305−0754 Email: megan.a.crowley@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/25/2015

# Docket Text
1 COMPLAINT for Injunctive and Declaratory Relief against Kathy Kliebert (Filing fee $ 400 receipt number 053N−1279437.), filed by Planned Parenthood Gulf Coast, Inc.. (Attachments: # 1 Attachment Civil Cover Sheet, # 2 Attachment Corporate Disclosure Statement, # 3 Attachment Summons to Defendant Kathy Kliebert)(Rittenberg, William) Modified to edit text on 8/26/2015 (BCL). (Entered: 08/25/2015)

Case: 3:15-cv-565 As of: 03/06/2017 03:29 PM CST 4 of 12

08/25/2015 08/25/2015 08/25/2015
08/25/2015 08/25/2015
08/25/2015 08/25/2015
08/25/2015 08/26/2015 08/26/2015 08/26/2015 08/26/2015 08/26/2015 08/27/2015

2 MOTION for Carrie Y. Flaxman to Appear Pro Hac Vice (Filing fee $100.00, Receipt Number 053N−1279491) by Planned Parenthood Gulf Coast, Inc.. (Attachments: # 1 Attachment Declaration of Carrie Y. Flaxman, # 2 Attachment Certificate of Good Standing, # 3 Attachment Proposed order)(Rittenberg, William) (Entered: 08/25/2015)
3 MOTION for Melissa Cohen to Appear Pro Hac Vice (Filing fee $100.00, Receipt Number 053N−1279522) by Planned Parenthood Gulf Coast, Inc.. (Attachments: # 1 Attachment Declaration of Melissa Cohen, # 2 Attachment Certificate of Good Standing, # 3 Proposed Order)(Rittenberg, William) (Entered: 08/25/2015)
4 MOTION for Temporary Restraining Order and Preliminary Injunction by All Plaintiffs. (Attachments: # 1 Attachment Memorandum in Support, # 2 Attachment Declaration of Melaney Linton, # 3 Attachment Declaration of Jane Doe #1, # 4 Attachment Declaration of Jane Doe #2, # 5 Attachment Declaration of Jane Doe #3, # 6 Attachment Proposed Order Granting TRO, # 7 Attachment Proposed Order Granting PI)(Rittenberg, William) Modified to edit text on 8/26/2015 (BCL). Modified on 9/3/2015 to replace attachment 2 in accordance with record document 17 (NLT). (Entered: 08/25/2015)
5 MOTION for Protective Order by All Plaintiffs. (Attachments: # 1 Attachment Memorandum in Support, # 2 Attachment Declaration of Jane Doe #1, # 3 Attachment Declaration of Jane Doe #2, # 4 Attachment Declaration of Jane Doe #3, # 5 Attachment Proposed Order)(Rittenberg, William) (Entered: 08/25/2015)
6 ORDER granting 2 Motion to Admit Carrie Y. Flaxman Pro Hac Vice and granting 3 Motion to Admit Melissa Cohen Pro Hac Vice. Carrie Y. Flaxman and Melissa Cohen added as attorneys pro hac vice for Planned Parenthood Gulf Coast, Inc. Signed by Magistrate Judge Stephen C. Riedlinger on 8/25/2015. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Riedlinger, Stephen) Modified on 8/25/2015 to edit the text (NLT). (Entered: 08/25/2015)
MOTION(S) REFERRED: 5 MOTION for Protective Order . This motion is now pending before the USMJ. (NLT) (Entered: 08/25/2015)
7 Minute Entry for proceedings held before Judge John W. deGravelles: Telephone Status Conference held on 8/25/2015: Briefs shall be filed by Defendant in response to 4 Motion for Temporary Restraining Order on or before Thursday, August 27, 2015. Plaintiffs may file a reply brief on or before Monday, August 31, 2015. Motion Hearing set for 9/2/2015 at 01:30 PM in Courtroom 1 before Judge John W. deGravelles for 4 Motion for Temporary Restraining Order. (BCL) (Entered: 08/25/2015)
Set/Reset Deadlines (BCL) (Entered: 08/25/2015)
MOTION(S) REFERRED: 5 MOTION for Protective Order . This motion is now pending before the USMJ. (NLT) (Entered: 08/26/2015)
8 Letter to Attorney William Rittenberg regarding Charles M. Samuel who is Co−Counsel for party Planned Parenthood Gulf Coast, Inc., Jane Doe #1, Jane Doe #2, Jane Doe #3. Attorney is not admitted to practice in LAMD. (BCL) (Entered: 08/26/2015)
9 Summons Issued as to Kathy Kliebert. (NOTICE: Counsel shall print and serve both the summons and all attachments in accordance with Federal Rule of Civil Procedure 4.) (BCL) Modified to replace document on 8/28/2015 (BCL). (Entered: 08/26/2015)
10 MOTION for Leave of Court by All Defendants. (Attachments: # 1 Memorandum in Support, # 2 Proposed Order)(Romero, Ryan) Modified to edit text on 8/26/2015 (BCL). (Entered: 08/26/2015)
11 PROTECTIVE ORDER. Signed by Magistrate Judge Stephen C. Riedlinger on 8/26/2015. (BCL) (Entered: 08/26/2015)
12 ORDER granting 10 MOTION for Leave to file brief in excess of the 10 page length limitation set forth in Local Civil Rule 7(g). Signed by Judge John W. deGravelles on 08/27/2015. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (KDC) (Entered: 08/27/2015)

Case: 3:15-cv-565 As of: 03/06/2017 03:29 PM CST 5 of 12

08/27/2015
08/27/2015 08/28/2015 08/28/2015 08/31/2015
08/31/2015 08/31/2015
08/31/2015 08/31/2015
08/31/2015 08/31/2015 08/31/2015 09/01/2015
09/01/2015
09/01/2015

13 MEMORANDUM in Opposition 4 Motion for Temporary Restraining Order and Preliminary Injunction filed by Kathy Kliebert. (Attachments: # 1 Declaration, # 2 Declaration)(Sullivan, Kimberly) Modified to edit text on 8/28/2015 (BCL). (Entered: 08/27/2015)
14 SEALED Notice of Identities of Jane Doe Plaintiffs . (Rittenberg, William) Modified on 8/31/2015 to edit the text to match the document. (NLT). (Entered: 08/27/2015)
15 WAIVER OF SERVICE Returned Executed by Planned Parenthood Gulf Coast, Inc.. Kathy Kliebert waiver sent on 8/26/2015, answer due 10/26/2015. (Rittenberg, William) (Entered: 08/28/2015)
16 MOTION for Leave to File Substitution by All Plaintiffs. (Attachments: # 1 Proposed Pleading; Proposed Order Granting Motion for Substitution, # 2 Attachment Corrected Declaration of Melaney Linton)(Rittenberg, William) (Entered: 08/28/2015)
17 ORDER granting 16 MOTION for Leave to File Substitution of a corrected version of the Declaration ofMelaney Linton filed by Jane Doe #2, Jane Doe #1, Planned Parenthood Gulf Coast, Inc., Jane Doe #3. Signed by Judge John W. deGravelles on 08/31/2015. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (KDC) (Entered: 08/31/2015)
18 MOTION for Leave to file overlength memorandum. by All Plaintiffs. (Attachments: # 1 Attachment Memorandum in Support, # 2 Attachment Proposed Order)(Rittenberg, William) (Entered: 08/31/2015)
19 NOTICE to Counsel: In regard to the hearing on the merits of the Motion for TRO for September 2, 2015, at 2:00 p.m., this Court asks the Parties to be prepared not only to discuss any and all issues explicated therein but also to address the nonexclusive matters herein. (BCL) (Entered: 08/31/2015)
20 NOTICE of Appearance by United States (Gaupp, John) (Entered: 08/31/2015)
21 ORDER granting 18 MOTION for Leave to file overlength memorandum. Signed by Judge John W. deGravelles on 08/31/2015. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (KDC) (Entered: 08/31/2015)
22 REPLY MEMORANDUM in Support of 4 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by All Plaintiffs. (Rittenberg, William) Modified on 9/1/2015 to edit text (LLH). (Entered: 08/31/2015)
23 MOTION for Leave to File Excess Pages by United States. (Attachments: # 1 Memorandum in Support, # 2 Exhibit Proposed Order)(Crowley, Megan) (Entered: 08/31/2015)
24 Brief regarding Statement of Interest of the United States. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Crowley, Megan) (Entered: 08/31/2015)
25 Notice to Counsel: Telephone Conference set for 9/1/2015 at 12:30 PM Central Time before Judge John W. deGravelles. Counsel for Plaintiff shall coordinate the call to the Court with all parties on one phone line.(This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.)(KDC) (Entered: 09/01/2015)
26 ORDER granting 23 Motion for Leave to File a Statement of Interest that is in excess of the 10 page limitation set forth in Local Civil Rule 7(g). Signed by Judge John W. deGravelles on 09/01/2015. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (KDC) (Entered: 09/01/2015)
28 Minute Entry for proceedings held before Judge John W. deGravelles: Telephone Conference held on 9/1/2015. The Court called this conference to discuss an oral motion to continue Wednesday's hearing submitted by the Defendant. For oral reasons assigned, the Court will hear arguments as previously set on Wednesday, 9/2/2015 at 1:30pm. Briefs in response to Statement of Interest filed by the United States shall be filed on or before 5:00 pm on Friday, 9/4/2015. After agreement by all counsel, the Louisiana Department of Health and Hospitals agrees not terminate any of the Medicaid Provider agreements between Planned Parenthood Gulf Coast, Inc. and the State of Louisiana at issue in this matter until close of business on Tuesday 9/15/2015. This allows the Court until 9/15/2015 to isue a ruling on the pending 4 Motion for

Case: 3:15-cv-565 As of: 03/06/2017 03:29 PM CST 6 of 12

09/02/2015 09/02/2015
09/03/2015 09/04/2015 09/04/2015 09/08/2015
09/08/2015 09/09/2015 09/09/2015
09/10/2015

Temporary Restraining Order and Preliminary Injunction. (LLH) (Entered: 09/02/2015)
27 Letter dated 9/2/2015 from Stephen Russo to William E. Rittenberg Re: Telephone Status Conference 9/1/2015. (LLH) (Entered: 09/02/2015)
30 Minute Entry for proceedings held before Judge John W. deGravelles: Motion Hearing held on 9/2/2015 re 4 MOTION for Temporary Restraining Order and Preliminary Injunction. Counsel presented arguments. The brief deadline for Defendant to file a response to the Statement of Interest filed by the United States was previously set for 5:00 pm on Friday, September 4, 2015. The Plaintiff is now given until 5:00 pm on Wednesday, September 9, 2015 to file a reply. (Court Reporter Gina Delatte−Richard.) (BCL) (Entered: 09/03/2015)
29 TRANSCRIPT REQUEST by Jane Doe #1, Jane Doe #2, Jane Doe #3, Planned Parenthood Gulf Coast, Inc. for proceedings held on 9/2/2015 before Judge Judge John W. deGravelles.. (Flaxman, Carrie) Modified to flatten doucment on 9/4/2015 (BCL). (Entered: 09/03/2015)
31 Reply to U.S. Department of Justice's Statement of Interest filed by Kathy Kliebert. (Attachments: # 1 Declaration)(Sullivan, Kimberly) Modified to edit text on 9/8/2015 (BCL). (Entered: 09/04/2015)
32 MOTION of Leave of Court to Amend Papers 13 MEMORANDUM in Opposition TO PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING ORDER by Kathy Kliebert. (Attachments: # 1 Proposed Pleading; Proposed Order)(Romero, Ryan) Modified on 9/8/2015 to edit text (LLH). (Entered: 09/04/2015)
33 ORDER: as to 32 MOTION to Amend 13 MEMORANDUM in Opposition to Plaintiff's MOTION for TEMPORARY RESTRAINING ORDER filed by Kathy Kliebert. Because the motion is opposed in part and because the proposed substituted and amending pleadings are not attached to the motion, the matter is set for telephone conference on Wednesday, 9/9/2015 at 1:30 p.m. so that the Court and all parties may have the opportunity to view the proposed pleadings and argument can be heard. The Court directs the Defendant to file the proposed filings no later than 5 p.m. on 9/8/2015. Signed by Judge John W. deGravelles on 9/8/2015. (LLH) (Entered: 09/08/2015)
34 Amended MEMORANDUM in Opposition to 4 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by Kathy Kliebert. (Attachments: # 1 Redacted Exhibit, # 2 Declaration)(Sullivan, Kimberly) (Attachment 1 replaced on 9/10/2015 per Order #36) (JDL). (Additional attachment(s) added on 9/10/2015: # 3 Unredacted Exhibit) (JDL). (Entered: 09/08/2015)
35 MOTION for Leave to Seal Record and Substitute Paper by Kathy Kliebert. (Attachments: # 1 Attachment Redacted Attachment 1, # 2 Proposed Pleading; Proposed Order)(Romero, Ryan) (Entered: 09/09/2015)
37 Minute Entry for proceedings held before Judge John W. deGravelles: Hearing (by phone) held on 9/9/2015 re 32 Motion for Leave of Court to Amend Papers to Memorandum in Opposition to Plaintiffs Motion for Temporary Restraining Order. Counsel for the Defendant advised Court the Defendant will no longer seek toterminate the four Medicaid provider agreements with Planned Parenthood Gulf Coast, Inc. pursuant to Louisiana Revised Statues§ 46:437.11 (D)(1), and that it will file a formal document so declaring on or before Monday, September 14, 2015. For reasons stated on the record, Defendant's 32 Motion of Leave of Court to Amend Papers to Memorandum in Opposition to Plaintiff's Motion for Temporary Restraining Order is granted. As such, the Court permitted the Defendant to amend, but not to substitute the attachments included with record document 13. (BCL) (Entered: 09/11/2015)
36 ORDER granting 35 MOTION for Leave to Seal Record and Substitute Paper. CM/ECF Document 34−1 filed on 9/8/2015 be SEALED pursuant to FRCP 5.2(e)(2), prohibiting remote electronic access to the filing by a non−party. FURTHER ORDERED that leave of court for defendant to substitute a redacted version of CM/ECF Document 34−1 for the public record is GRANTED. Signed by Judge John W. deGravelles on 9/10/2015. (JDL) (Entered: 09/10/2015)

Case: 3:15-cv-565 As of: 03/06/2017 03:29 PM CST 7 of 12

09/15/2015 10/06/2015 10/07/2015 10/07/2015 10/07/2015
10/07/2015 10/07/2015
10/09/2015 10/09/2015
10/09/2015 10/09/2015 10/09/2015

38 NOTICE of Letter to Court by Kathy Kliebert dated 09/14/2015...The Court has received and files into the record Defendant's letter of September 14, 2015. In light of Defendant's representations made therein, Plaintiffs are given 21 days to respond and show cause, if any, why Plaintiffs' action should not be dismissed, without prejudice, as moot. (KDC) (Entered: 09/15/2015)
39 Memorandum in RESPONSE to 38 Notice, Showing Cause Why this Action is Not Moot filed by All Plaintiffs. (Attachments: # 1 Exhibit A − Termination Letters)(Flaxman, Carrie) Modified on 10/7/2015 to edit text (LLH). (Entered: 10/06/2015)
40 Notice to Counsel: Telephone Conference set for 10/7/2015 at 2:30 PM before Judge John W. deGravelles. Counsel for Plaintiff will circulate dial−in information for the conference call.(This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.)(KDC) (Entered: 10/07/2015)
41 Unopposed MOTION to Amend 1 Complaint, by All Plaintiffs. (Attachments: # 1 Proposed Pleading; First Amended Complaint, # 2 Attachment Proposed Order)(Flaxman, Carrie) (Entered: 10/07/2015)
42 ORDER granting 41 Plaintiffs' Unopposed Motion for Leave to File Amended Complaint. The clerk of court will file the [41−1] First Amended Complaint for Injunctive and Declaratory Relief −− Class Action submitted with the motion.Signed by Magistrate Judge Stephen C. Riedlinger on 10/7/2015. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Riedlinger, Stephen) (Entered: 10/07/2015)
43 First AMENDED COMPLAINT for Injunctive and Declaratory Relief−Class Action against Kathy Kliebert filed by Planned Parenthood Gulf Coast, Inc., Jane Doe #3, Jane Doe #2, Jane Doe #1.(BCL) (Entered: 10/08/2015)
44 Minute Entry for proceedings held before Judge John W. deGravelles: Telephone Conference held on 10/7/2015. Opposition to the 4 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction shall be filed on or before 5:0 pm on Wednesday, 10/14/2015. The Court granted leave to parties to not comply with LR 7(g) when filing briefs to motion. Motion Hearing set for 10/16/2015 at 08:30 AM in Courtroom 1 before Judge John W. deGravelles. (LLH) (Entered: 10/08/2015)
45 RENEWED MOTION for Temporary Restraining Order and Preliminary Injunction by All Plaintiffs. (Attachments: # 1 Attachment Proposed Order − Temporary Restraining Order, # 2 Attachment Proposed Order − Preliminary Injunction)(Flaxman, Carrie) Modified on 10/13/2015 (ELW). Added MOTION for Preliminary Injunction on 10/13/2015 (ELW). (Entered: 10/09/2015)
46 MEMORANDUM of Law in Support of 45 Renewed MOTION for Temporary Restraining Order and Preliminary Injunction filed by All Plaintiffs. (Attachments: # 1 Attachment Declaration of Melaney Linton, # 2 Exhibit A − Root Email 3/11/2014, # 3 Exhibit B − Watkins Email 7/25/2014, # 4 Exhibit C − Hearing Transcript, # 5 Exhibit D − Bordlee Email 3/15/2013, # 6 Exhibit E − Bordlee Emails 7/10/2013, # 7 Exhibit F − Bordlee Emails 7/24 − 7/25/2013, # 8 Exhibit G − Legislative Resolutions, # 9 Exhibit H − Arkansas Prelim. Inj. Order, # 10 Exhibit I − Utah Temporary Restraining Order)(Flaxman, Carrie) Modified on 10/13/2015 to edit text (ELW). (Entered: 10/09/2015)
47 MOTION for Limited Expedited Written Discovery by All Plaintiffs. (Attachments: # 1 Attachment Proposed Order Granting Mot. for Expedited Discovery)(Flaxman, Carrie) Modified on 10/13/2015 to edit text (ELW). (Entered: 10/09/2015)
48 MEMORANDUM in Support of 47 MOTION for Limited Expedited Written Discovery filed by All Plaintiffs. (Attachments: # 1 Exhibit A − Consolidated Discovery Requests, # 2 Exhibit B − Letter from Cohen to Hwang, # 3 Exhibit C − DHH Initial Response, # 4 Exhibit D − Letter Narrowing Requests 6−7)(Flaxman, Carrie) Modified on 10/13/2015 to edit text(ELW). (Entered: 10/09/2015)
49 MOTION to Certify Class by All Plaintiffs. (Attachments: # 1 Memorandum in Support, # 2 Attachment Proposed Order Granting Mot. to Certify Class)(Flaxman, Carrie) (Entered: 10/09/2015)

Case: 3:15-cv-565 As of: 03/06/2017 03:29 PM CST 8 of 12

10/09/2015 10/12/2015 10/13/2015 10/14/2015 10/14/2015 10/16/2015 10/16/2015
10/18/2015
10/18/2015 10/19/2015 10/19/2015

Set/Reset Deadlines as to 45 MOTION for Temporary Restraining Order and MOTION for Preliminary Injunction. Defendants response due by 5:00 PM on 10/14/2015. Motion Hearing set for 10/16/2015 at 08:30 AM in Courtroom 1 before Judge John W. deGravelles. (JDL) (Entered: 10/13/2015)
50 MOTION to Enroll Jimmy R. Faircloth, Jr. and Brook Landry Villa as Additional Attorney by All Defendants. (Attachments: # 1 Proposed Pleading; Order)(Romero, Ryan) (Entered: 10/12/2015)
51 ORDER granting 50 Motion to Enroll Co−Counsel. Added attorneys Jimmy R. Faircloth, Jr., and Brook L. Villa for Kathy Kliebert. Signed by Magistrate Judge Stephen C. Riedlinger on 10/13/2015. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Riedlinger, Stephen) (Entered: 10/13/2015)
52 Memorandum Regarding Availability of State Remedy (Attachments: # 1 Exhibit A, Russo Email 9/22/2015, # 2 Exhibit B, Louisiana State Medicaid Plan Section 4.2a)(Flaxman, Carrie) Modified to edit text on 10/15/2015 (BCL). (Entered: 10/14/2015)
53 MOTION to Dismiss Complaint for Lack of Subject Matter Jurisdiction and Failure to State a Claim by Kathy Kliebert. (Attachments: # 1 Memorandum in Support)(Faircloth, Jimmy) Modified on 10/15/2015 to edit text (ELW). (Entered: 10/14/2015)
54 NOTICE of Filing of Settlement Agreement by Jane Doe #1, Jane Doe #2, Jane Doe #3, Planned Parenthood Gulf Coast, Inc. (Attachments: # 1 Exhibit Exhibit A − Reynolds Settlement)(Cohen, Melissa) (Entered: 10/16/2015)
56 Minute Entry for proceedings held before Judge John W. deGravelles: Hearing (by Telephone) held on 10/16/2015. Counsel presented arguments. For oral reasons assigned, Plaintiffs' 47 Motion for Limited Expedited Written Discovery(Doc. 47) is DENIED. Court advised the parties that it will rule on this matter before Monday, October 19, 2015. Any additional briefing shall be filed on or before 5:00 p.m. today, October 16, 2015. Parties shall also provide the Court with a copy of the settlement agreement in Reynolds v. Planned Parenthood Gulf Coast, No. 9:09−cv−124 (E.D. TX, Lufkin Div.)(July 25, 2013) before 5:00 p.m. today, October 16, 2015. (BCL) Modified on 10/20/2015 (NLT). (Entered: 10/19/2015)
55 ORDER: Defendant's Motion to Dismiss 53 is DENIED. Plaintiffs' Renewed Motion for Temporary Restraining Order and for Preliminary Injunction 46 is GRANTED IN PART. The temporary restraining order will remain in force for fourteen (14) days from the date of its entry unless, pursuant to Rule 65(b)(2), the Court, for good cause shown or with the agreement of the Parties, extends it. A telephone status conference is set for Monday, October 19, 2015, at 2:30 p.m., for the purpose of discussing the extension of this order during discovery, setting a scheduling order for discovery, a hearing date for the preliminary injunction, and setting other appropriate cut−offs. Plaintiffs' Motion for Preliminary Injunction will be DEFERRED but remain pending and will be set for a date that will allow the parties adequate time for discovery. Signed by Judge John W. deGravelles on 10/18/2015. (KDC) (Entered: 10/18/2015)
Set/Reset Hearings: Telephone Conference set for 10/19/2015 at 2:30 PM before Judge John W. deGravelles. (KDC) (Entered: 10/18/2015)
57 TRANSCRIPT REQUEST by Jane Doe #1, Jane Doe #2, Jane Doe #3, Planned Parenthood Gulf Coast, Inc. for proceedings held on 10/16/2015 before Judge John W. deGravelles.. (Cohen, Melissa) Modified on 10/20/2015 to flatten and replace document (LLH). (Entered: 10/19/2015)
58 Minute Entry for proceedings held before Judge John W. deGravelles: Telephone Status Conference held on 10/19/2015. Both parties stated for the record that there is no need for the taking and submitting of any additional evidence and the making of further arguments. Both sides declined to supplement or amend their prior filings prior to this Court issuing a preliminary injunction. Both sides had no objection to converting the temporary restraining order to a preliminary injunction. Court will consider issuing a ruling converting the temporary restraining order to a preliminary injunction. Counsel for the Defendant requested Court stay this matter. Plaintiffs requested additional time to determine if they agree to a stay in this matter. Court

Case: 3:15-cv-565 As of: 03/06/2017 03:29 PM CST 9 of 12

10/19/2015
10/26/2015 10/28/2015 10/28/2015
10/29/2015 10/29/2015

agreed to Plaintiffs' request for time to consider Defendant's request for a stay. Court instructed the parties to submit their positions in writing and for Defendant to file a motion if the parties could not agree. (BCL) (Entered: 10/19/2015)
59 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion hearing before Judge John W. deGravelles held on 10/16/2015. Court Reporter: Gina Delatte−Richard.
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have five (5) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.lamd.uscourts.gov.
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.. Redaction Request due 11/6/2015. Redacted Transcript Deadline set for 11/16/2015. Release of Transcript Restriction set for 1/14/2016. (Delatte−Richard, Gina) (Entered: 10/19/2015)
60 Notice to Counsel:Telephone Conference set for 10/28/2015 at 2:30 PM (CENTRAL) before Judge John W. deGravelles. Counsel for Plaintiffs shall provide the parties and the Court with a call−in number for the conference call. Each party shall fax a letter to the Court by 5:00 PM on Tuesday, October 27, 2015, that summarizes what it believes the remaining issues to be, states its positions on each issue and specifies what it would like the Court do. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (KDC) (Entered: 10/26/2015)
61 NOTICE of Supplemental Authority by Jane Doe #1, Jane Doe #2, Jane Doe #3, Planned Parenthood Gulf Coast, Inc. (Attachments: # 1 Exhibit A − Bentley Preliminary Injunction Order, # 2 Exhibit B − Bentley Preliminary Injunction Opinion)(Cohen, Melissa) (Entered: 10/28/2015)
62 Minute Entry for proceedings held before Judge John W. deGravelles: Telephone Status Conference held on 10/28/2015. Parties agreed to: Neither side wants additional discovery, nor a hearing on the preliminary injunction. Parties agree that record is complete for issuance of a preliminary injunction. Court will issue preliminary injunction. Court addressed whether the Court needs to enter a separate judgment under Rule 58. Court addressed issues raised by Defendant for certification under 28 U.S.C. § 1292. Court advised parties that if Defendant wants certification under §1292, Defendant must file motion and notice and briefing schedule will be issued and the briefs would be considered before a ruling is issued. Defendants previously requested this matter be stayed to prevent the parties from moving forward with permanent injunction while case is on appeal. Should the Plaintiffs disagree with Defendants on issue, briefing schedule will be issued before a ruling is issued on the stay. If the parties agree, they are to submit a consent order. (BCL) (Entered: 10/29/2015)
63 ORDER: Defendant's Motion to Dismiss Complaint for Lack of Subject Matter Jurisdiction and Failure to State a Claim (Doc. 53) is DENIED.Plaintiffs' Renewed Motion for Temporary Restraining Order and for Preliminary Injunction (Doc. 45) is GRANTED. Defendant, and all those acting in concert with her, are PRELIMINARILY ENJOINED from terminating any of its Medicaid provider agreements with Planned Parenthood Gulf Coast Inc., including, but not limited to, Provider Numbers 91338, 133689, 45802, and 133673. The preliminary injunction will remain in force until notified by this Court. Signed by Judge John W. deGravelles on 10/29/2015. (KDC) (Entered: 10/29/2015)
64 ORDER ON DEFENDANTS MOTION TO DISMISS AND PLAINTIFFS' REQUEST FOR A PRELIMINARY INJUNCTION: In accordance with the opinion entered on this date, (Doc. 63), it is the ORDER of this Court as follows: (1) Defendant Kathy H. Kliebert's Motion to Dismiss (Doc. 53) is DENIED. (2) Plaintiffs' Renewed Motion for Temporary Restraining Order and for Preliminary Injunction (Doc. 45) is GRANTED. (3) Defendant, and all those acting in concert with her, are PRELIMINARILY ENJOINED from terminating any of its Medicaid provider agreements with Planned Parenthood Gulf Coast Inc., including, but not limited to, Provider Numbers 91338, 133689, 45802, and 133673. The preliminary injunction will remain in force until notified by this Court. Signed by Judge John W. deGravelles on

Case: 3:15-cv-565 As of: 03/06/2017 03:29 PM CST 10 of 12

11/02/2015 11/03/2015
11/04/2015 11/05/2015
11/06/2015 11/06/2015 11/09/2015 11/09/2015 11/24/2015 12/04/2015 12/08/2015 12/08/2015
12/14/2015

10/29/2015. (KDC) (Entered: 10/29/2015)
65 UNOPPOSED EX PARTE MOTION for Extension of Time Responsive pleadings by Kathy Kliebert. (Villa, Brook) Modified on 11/2/2015 to edit text (ELW). (Entered: 11/02/2015)
66 ORDER granting 65 Unopposed Ex Parte Motion for Extension to file Responsive Pleadings. Defendant's response to the 43 First Amended Complaint for Injunctive and Declaratory Relief − Class Action due by 12/2/2015. A response to the original 1 Complaint for Injunctive and Declaratory Relief is not needed as the First Amended Complaint superseded the original Complaint. Signed by Magistrate Judge Stephen C. Riedlinger on 11/3/2015. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Riedlinger, Stephen) (Entered: 11/03/2015)
67 NOTICE OF APPEAL to the USCA for the 5th Circuit of 64 Order,,, by Kathy Kliebert. Filing fee $ 505, receipt number 053N−1317265. (Villa, Brook) (Entered: 11/04/2015)
68 TRANSCRIPT REQUEST by Kathy Kliebert for proceedings held on October 16, 2015 before Judge John deGravelles, re 67 Notice of Appeal to the USCA for the 5th Circuit (Villa, Brook) TRANSCRIPT IS ALREADY ON FILE IN CLERK'S OFFICE (Main Document 68 replaced on 11/5/2015) (ELW). Modified on 11/5/2015 to flatten file (ELW). Modified on 11/6/2015 (ELW). (Entered: 11/05/2015)
69 Unopposed MOTION to Stay Proceedings by Kathy Kliebert. (Villa, Brook) Modified to edit text 11/6/2015 (BCL). Modified on 11/9/2015 to replace document as per Order #71 (LLH). (Entered: 11/06/2015)
70 MOTION for Substitution by Kathy Kliebert. (Attachments: # 1 Exhibit Unopposed Motion to Stay Proceedings)(Villa, Brook) (Entered: 11/06/2015)
71 ORDER granting 70 MOTION for Substitution. The corrected Unopposed Motion to Stay Proceedings shall be filed. Signed by Judge John W. deGravelles on 11/9/2015. (LLH) (Entered: 11/09/2015)
72 ORDER granting 69 Motion to Stay Proceedings. All proceedings before this Court are stayed until the Fifth Circuit's final disposition of the appeal pertaining to the Court's 10/29/2015 64 Order or until further orders of this Court. Signed by Judge John W. deGravelles on 11/9/2015. (LLH) (Entered: 11/09/2015)
73 USCA Case Number 15−30987 for 67 Notice of Appeal to the USCA for the 5th Circuit filed by Kathy Kliebert. (TMR) (Entered: 11/24/2015)
74 REQUEST by Kathy Kliebert for Record on Appeal regarding 67 Notice of Appeal to the USCA for the 5th Circuit. (Villa, Brook) (Entered: 12/04/2015)
Record on Appeal #15−30987 Electronically Certified regarding 67 Notice of Appeal to the USCA for the 5th Circuit. US Court of Appeals notified of certification. (TMR) (Entered: 12/08/2015)
75 Electronic Access to the Record on Appeal is now available through the Court of Appeals CM/ECF document filing system. Instructions for accessing the record can be found at www.ca5.uscourts.gov/attorneys/attorney−forms/eroa_downloads. Request for paper exhibits in addition to the record on appeal and shipping information should be faxed to the clerks office at 225−389−3501. The clerk of court will retain the responsibility of sending the record to the 5th Circuit upon their request. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (TMR) (Entered: 12/08/2015)
76 Electronic Access to the Record on Appeal is now available to William E. Rittenberg through the Court of Appeals CM/ECF document filing system. Instructions for accessing the record can be found at www.ca5.uscourts.gov/attorneys/attorney−forms/eroa_downloads. Request for paper exhibits in addition to the record on appeal and shipping information should be faxed to the clerks office at 225−389−3501. The clerk of court will retain the responsibility of sending the record to the 5th Circuit upon their request. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (TMR)

Case: 3:15-cv-565 As of: 03/06/2017 03:29 PM CST 11 of 12

01/07/2016 01/08/2016 02/16/2016 02/22/2016
03/08/2016
03/08/2016
03/10/2016 03/10/2016

(Entered: 12/14/2015)
77 NOTICE: Pursuant to General Order 2016−02, this case is reassigned from Magistrate Judge Stephen C. Riedlinger to Magistrate Judge Erin Wilder−Doomes. Signed by Chief Judge Brian A. Jackson on 1/4/2016. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.)(SGO) (Entered: 01/07/2016)
Case reassigned to Magistrate Judge Richard L. Bourgeois, Jr.. Magistrate Erin Wilder−Doomes no longer assigned to the case. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (NLT) (Entered: 01/11/2016)
78 Letter dated 2/12/2016 from Clerk of Court − USCA to Memorandum to Counsel or Parties Listed Re: The court has granted the motion to substitute Kathy Kliebert with Rebekah Gee in the above case. (LLH) (Entered: 02/16/2016)
79 Electronic Access to the Record on Appeal is now available to Alisa Beth Klein and Mark Bernard Stern through the Court of Appeals CM/ECF document filing system. Instructions for accessing the record can be found at www.ca5.uscourts.gov/attorneys/attorney−forms/eroa_downloads. Request for paper exhibits in addition to the record on appeal and shipping information should be faxed to the clerks office at 225−389−3501. The clerk of court will retain the responsibility of sending the record to the 5th Circuit upon their request. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (TMR) (Entered: 02/22/2016)
80 Electronic Access to the Record on Appeal is now available to Attorney Martha Jane Perkins through the Court of Appeals CM/ECF document filing system. Instructions for accessing the record can be found at www.ca5.uscourts.gov/attorneys/attorney−forms/eroa_downloads. Request for paper exhibits in addition to the record on appeal and shipping information should be faxed to the clerks office at 225−389−3501. The clerk of court will retain the responsibility of sending the record to the 5th Circuit upon their request. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (TMR) (Entered: 03/08/2016)
81 Electronic Access to the Record on Appeal is now available to Attorney Mary Patricia Jones through the Court of Appeals CM/ECF document filing system. Instructions for accessing the record can be found at www.ca5.uscourts.gov/attorneys/attorney−forms/eroa_downloads. Request for paper exhibits in addition to the record on appeal and shipping information should be faxed to the clerks office at 225−389−3501. The clerk of court will retain the responsibility of sending the record to the 5th Circuit upon their request. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (TMR) (Entered: 03/08/2016)
82 Electronic Access to the Record on Appeal is now available through the Court of Appeals CM/ECF document filing system. Instructions for accessing the record can be found at www.ca5.uscourts.gov/attorneys/attorney−forms/eroa_downloads. Request for paper exhibits in addition to the record on appeal and shipping information should be faxed to the clerks office at 225−389−3501. The clerk of court will retain the responsibility of sending the record to the 5th Circuit upon their request. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (TMR) (Entered: 03/10/2016)
83 Electronic Access to the Record on Appeal is now available to Attorney Erwin Chemerinsky through the Court of Appeals CM/ECF document filing system. Instructions for accessing the record can be found at www.ca5.uscourts.gov/attorneys/attorney−forms/eroa_downloads. Request for paper exhibits in addition to the record on appeal and shipping information should be faxed to the clerks office at 225−389−3501. The clerk of court will retain the responsibility of sending the record to the 5th Circuit upon their request. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (TMR) (Entered: 03/10/2016)

Case: 3:15-cv-565 As of: 03/06/2017 03:29 PM CST 12 of 12 04/07/2016 84 NOTICE of Receipt of Record. (BLR) (Entered: 04/08/2016)