IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-30987

PLANNED PARENTHOOD OF GULF COAST, INCORPORATED; JANE 

DOE #1; JANE DOE #2; JANE DOE #3, 

 Plaintiffs - Appellees

v.

REBEKAH GEE, Secretary, Louisiana Department of Health and Hospitals, 

 Defendant - Appellant

Appeal from the United States District Court

for the Middle District of Louisiana 

(862 F.3d 445, June 29, 2017)

ON PETITION FOR REHEARING EN BANC

Before WIENER, PRADO, and OWEN, Circuit Judges.

PER CURIAM:

Treating the Petition for Rehearing En Banc as a Petition for Panel 

Rehearing, the Petition for Panel Rehearing is DENIED. The court having 

been polled at the request of one of the members of the court and a majority of 

the judges who are in regular active service and not disqualified not having 

voted in favor (FED. R. APP. P. and 5TH CIR. R. 35), the Petition for Rehearing 

En Banc is DENIED.
No. 15-30987

2

In the poll, 7 judges vote in favor of rehearing en banc, and 7 vote against. 

Voting in favor are Judges Jolly, Jones, Smith, Clement, Owen, Elrod, and 

Southwick. Voting against are Chief Judge Stewart, and Judges Dennis, 

Prado, Haynes, Graves, Higginson, and Costa.

ENTERED FOR THE COURT:

 /s/ Jacques L. Wiener, Jr.

United States Circuit Judge
No. 15-30987

3

JENNIFER WALKER ELROD, Circuit Judge, joined by JOLLY, JONES, 

SMITH, CLEMENT, OWEN, and SOUTHWICK, Circuit Judges, dissenting 

from the denial of rehearing en banc:

Today, an equally-divided court denies en banc rehearing of a divided 

panel opinion and deepens the division in the courts of appeals on an issue of 

great importance: whether a recipient of care can block a state’s 

disqualification of a single health care provider for the purposes of Medicaid. 

The discord is the result of our disregard for the Supreme Court’s binding 

precedent in O’Bannon v. Town Court Nursing Center, 447 U.S. 773 (1980). 

Louisiana, along with fifteen amici states, urged us to reconsider our decision 

because of the significant detrimental impact it would have on the states’ 

abilities to administer their own Medicaid plans. Our decision in equipoise to 

deny en banc rehearing is more than dismaying; it is a departure from our 

duty. In the ever-expanding Medicaid world in which we live, it is important 

that we get this decision right. 

The panel majority opinion disregards both O’Bannon’s discussion of 

whether 42 U.S.C. § 1396a(a)(23) confers a substantive property right and its 

ultimate decision that there is no process due where there is no property right 

to secure. O’Bannon addresses the question of “whether the patients have an 

interest in receiving benefits for care in a particular facility that entitles them, 

as a matter of constitutional law, to a hearing before the Government can 

decertify that facility.” Id. at 784. Decidedly, the answer is no, with the Court 

“hold[ing] that the enforcement by HEW and DPW of their valid regulations 

did not directly affect the patients’ legal rights or deprive them of any 

constitutionally protected interest in life, liberty, or property.” Id. at 790. 

Section 1396a(a)(23) does not create a substantive right because, as the Court 

explains, “while a patient has a right to continued benefits to pay for care in 

the qualified institution of his choice, he has no enforceable expectation of 
No. 15-30987

4

continued benefits to pay for care in an institution that has been determined 

to be unqualified.” Id. at 786. 

In its attempt to distinguish O’Bannon, the panel majority opinion 

determines that O’Bannon is inapplicable because the O’Bannon plaintiffs only 

asserted a violation of a due process right whereas the plaintiffs here “assert 

the violation of a substantive right.” Planned Parenthood of Gulf Coast, Inc. v. 

Gee, 862 F.3d 445, 460 (5th Cir. 2017). This is directly at odds with the 

Supreme Court’s holding in O’Bannon that § 1396a(a)(23) does not confer on 

an individual patient a constitutionally protected substantive property interest 

in receiving care from a disqualified Medicaid provider. 447 U.S. at 784–85. 

As Judge Owen’s careful dissenting opinion explains, this attempt to 

distinguish O’Bannon “reflect[s] a failure to appreciate that there is no right 

to due process unless there is a substantive right that may be vindicated if 

adequate process is afforded.” Id. at 475 (Owen, J. dissenting); accord Doe v. 

Gillespie, 867 F.3d 1034, 1046–49 (8th Cir. 2017) (Shepard, J. concurring) 

(explaining that a patient cannot collaterally attack a provider’s decertification 

because O’Bannon holds there is no substantive right to receive care from a 

decertified provider). The dissenting opinion is simply textbook reasoning. See

Erwin Chemerinsky, Constitutional Law: Principles and Policies, 588 (Erwin 

Chemerinsky et al. eds., 5th ed. 2015) (“. . . in O’Bannon v. Town Court Nursing 

Center, the Supreme Court held that residents in a nursing home had no 

property interest and thus no right to due process before a government agency 

revoked their home’s certification to receive payments from the government.”). 

Similarly dismaying is the panel majority opinion’s attempt to 

distinguish O’Bannon because the plaintiffs here are not challenging a 

decertification decision. There is, in fact, a decertification decision in this case, 

but the panel majority opinion just determined on the merits that none of the 
No. 15-30987

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reasons for decertification were valid. See Planned Parenthood, 862 F.3d at 

478 (Owen, J. dissenting) (noting the majority opinion’s circular reasoning, 

which concludes “that since the Individual Plaintiffs will likely prevail on their 

contention that [Planned Parenthood] is a qualified provider, the Individual 

Plaintiffs have the right to sue to obtain Medicaid services from that qualified 

provider”). The panel majority opinion’s determination that O’Bannon only 

bars an individual plaintiff from challenging a disqualification decision related 

to health and safety regulation enforcement that affects the provider’s ability 

to provide care to the general public does not fare any better. This limitation 

finds no support in O’Bannon’s text or record. As the dissenting opinion 

precisely states: “Whether the nursing home facility in O’Bannon was required 

to cease operations had no bearing on the Supreme Court’s holding that 42 

U.S.C. § 1396a(a)(23) is not a font of substantive rights flowing to Medicaid 

patients that permits them to sue to set aside the termination of a provider’s 

Medicaid or Medicare agreements on the basis that the provider failed to 

comply with certain statutory or regulatory requirements.” Id. at 482–83 

(Owen, J. dissenting). The panel majority opinion here makes the very same 

error that the Court saw fit to correct in O’Bannon: “In holding that 

[§ 1396a(a)(23)] create[s] a substantive right” it “fails to give proper weight to 

the contours of the right conferred by the statutes and regulations.” See 447 

U.S. at 786.

Importantly, the panel majority opinion’s reasoning is not only at odds 

with O’Bannon but also with the entirety of the statutory framework in 42 

U.S.C. § 1396a. Under the exclusionary provision in § 1396a(p)(1), a Medicaid 

provider can be disqualified for reasons unrelated to health and safety that 

would require the provider to cease dispensing care to the general public. See 

42 U.S.C. § 1396a(p)(1). Among the grounds for exclusion from Medicaid 
No. 15-30987

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participation are medically unnecessary charges and false claims for services 

that were not provided. Id. § 1396a(p)(1) (referencing 42 U.S.C. § 1320a-7 and 

§ 1320a-7a). Nowhere does the statute require that the disqualification of a 

Medicaid provider can occur only if the provider is deemed unfit to provide care 

for the general public, as the panel majority opinion holds. Moreover, to the 

extent § 1396a(a)(23) can be interpreted to secure any private right of action, 

such a right is surely limited to “qualified” providers and does not include 

providers who voluntarily choose not to contest their disqualification.1 Thus, 

even if O’Bannon did not control, and § 1396a(a)(23) were a blank statutory 

slate, the panel majority opinion’s interpretation would still be incorrect 

because it reads extratextual requirements into the statute and relies on an 

overbroad interpretation of the term “qualified.”

This disjointed reasoning of the panel majority opinion brings us to the 

procedural elephant in the case: Planned Parenthood Gulf Coast chose to 

forego its administrative remedies prior to filing this lawsuit. Compounding 

this procedural irregularity, the preliminary injunction below was issued on 

the claims of the individual Doe plaintiffs, not on Planned Parenthood’s claims. 

As a result of the majority opinion’s holding, a Medicaid provider can now make 

an end run around the administrative exhaustion requirements in a state’s 

statutory scheme.2 Disqualified providers can now circumvent state law 

 

1 Whether § 1396a(a)(23) even confers any private right of action under the framework 

in Gonzaga University v. Doe, 536 U.S. 273 (2002), makes the panel majority opinion further 

problematic. See Doe v. Gillespie, 867 F.3d 1034, 1046 (8th Cir. 2017) (holding that Congress 

did not unambiguously confer a right in § 1396a(a)(23) that could be enforced by an individual 

patient under 42 U.S.C. § 1983). Fifteen amici states filed a brief urging the en banc court 

to consider the issue of whether there was any private right of action in the statute. As 

Justice Scalia, writing for the Court, deftly put it, “Congress . . . does not . . . hide elephants 

in mouseholes.” Whitman v. Am. Trucking. Ass’n, 531 U.S. 457, 468 (2001). 

2 Here, under Louisiana law, a party seeking to appeal a termination decision by the 

Louisiana Department of Health and Hospitals has fifteen days from receipt of notice to 
No. 15-30987

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because the panel majority opinion deems it unnecessary to have a final 

administrative determination so long as there are patients to join a lawsuit 

filed in federal court. 

The fact that this case is still at the preliminary injunction stage does 

not excuse our decision to deny en banc rehearing. The panel majority opinion 

is binding precedent that will guide the development of the law in our circuit. 

Moreover, at least two other cases are already pending within the circuit and 

will be immediately impacted by the majority’s holding in this case—a holding 

that cannot be squared with Supreme Court precedent or the statutory text. 

The ability to correct our deviation from the Supreme Court’s precedent in time 

to prevent further damage remains a distant hope. Accordingly, I respectfully 

dissent from our denial of rehearing en banc.

 

 

request an informal hearing. La. Admin. Code § 50:4203. Following notice of the result of 

the informal hearing, the provider has thirty days to seek an appeal before the Division of 

Administrative Law. La. Admin. Code § 50:4211(B).