     Case: 16-30875   Document: 00513888642        Page: 1   Date Filed: 02/24/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                       February 24, 2017
                                    No. 16-30875
                                                                         Lyle W. Cayce
                                                                              Clerk
JEFFERSON COMMUNITY HEALTH CARE CENTERS, INCORPORATED,

             Plaintiff - Appellee

v.

JEFFERSON PARISH GOVERNMENT; JEFFERSON PARISH COUNCIL;
RICKY J. TEMPLET, personally and in his official capacity as District 1
Parish Council member; PAUL D. JOHNSTON, personally and in his official
capacity as District 2 Parish Council member; MARK D. SPEARS, personally
and in his official capacity as District 3 Parish Council member; E. BEN
ZAHN, III, personally and in his official capacity as District 4 Parish Council
member; JENNIFER VAN VRANCKEN, personally and in her official
capacity as District 5 Parish Council member; CHRISTOPHER L. ROBERTS,
personally and in his official capacity as At-Large Division A Parish Council
member; CYNTHIA LEE-SHENG, personally and in her official capacity as
Chairwoman and Councilwoman-at-Large Division B Parish Council,

             Defendants - Appellants




                Appeal from the United States District Court
                   for the Eastern District of Louisiana


Before STEWART, Chief Judge, and SMITH and DENNIS, Circuit Judges.
JAMES L. DENNIS, Circuit Judge:
      This appeal concerns a preliminary injunction in Jefferson Community
Health Care Centers, Inc.’s (JCHCC) action against the Parish of Jefferson,
Louisiana, the parish council, and its councilmembers in their official and
     Case: 16-30875       Document: 00513888642          Page: 2     Date Filed: 02/24/2017


                                       No. 16-30875

individual capacities (collectively referred to as the “Parish” unless otherwise
noted). In the underlying action, JCHCC seeks to permanently enjoin the
Parish from evicting it from two Parish-owned facilities in which JCHCC
currently provides medical services to medically underserved populations.
JCHCC claims that the Parish wishes to evict it solely because JCHCC did not
allow one of the councilmembers to unlawfully influence JCHCC’s affairs. The
district court granted JCHCC’s motion for a preliminary injunction, enjoining
the Parish from evicting JCHCC but allowing it to terminate the injunction by
establishing that the medical needs of the population currently served by the
relevant JCHCC facilities would be met if JCHCC were evicted. The Parish
appeals, challenging both the issuance of the injunction and, alternatively, its
contents and scope. For the reasons that follow, we conclude that JCHCC has
not established a substantial likelihood of success on the merits of the only
claim that is properly before us. Accordingly, we reverse the district court’s
grant of the injunction.
             I. FACTUAL AND PROCEDURAL BACKGROUND 1
       JCHCC is a non-profit entity that receives federal funding under section
330 of the Public Health Service Act, 42 U.S.C. § 254b, to serve residents in
medically underserved communities, regardless of their ability to pay. In the
aftermath of Hurricanes Katrina and Rita, the Parish decided to allow JCHCC
to use facilities owned by the Parish to restore basic health services to an
underserved area of the Parish. Thus, in August 2006, JCHCC and the Parish
entered into a “Cooperative Endeavor Agreement” (CEA) that would provide



       1We describe the facts of the case in accordance with the findings of the district court,
which were not contested before us. These findings will not bind the district court at trial on
the merits. See Dennis Melancon, Inc. v. City of New Orleans, 703 F.3d 262, 268 (5th Cir.
2012).
                                               2
    Case: 16-30875     Document: 00513888642     Page: 3   Date Filed: 02/24/2017


                                  No. 16-30875

rent-free facilities to JCHCC in Marrero, Louisiana, for purposes of serving the
medically underserved population there for a ten-year period ending on July
31, 2016. The CEA also stated that the “Lease shall be renewed under the
same terms and conditions for an additional five year term, unless any of the
parties notify the other parties in writing of its intent not to renew at least 60
days prior to the expiration of the term then in effect.” In exchange for its
occupancy of the Marrero facility, JCHCC pledged to provide a full range of
primary care and clinical preventive services throughout Jefferson Parish.
      JCHCC took possession of the Marrero facility on August 1, 2006, and
renovated it for clinical purposes, investing nearly $1.5 million in federal grant
funds. Subsequently, JCHCC and the Parish entered into a separate CEA that
provided for JCHCC’s free occupancy of a Parish-owned facility in River Ridge,
Louisiana, on a month-by-month basis.
      Between 2009 and 2012, a series of federal and state audits found
widespread misconduct in JCHCC’s management, including commingling and
misappropriation of funds, improper lending to employees, and overpayments
to contractors. In the wake of the audits, JCHCC’s then-CEO resigned, and
the former CFO pleaded guilty to embezzlement. JCHCC nearly lost its federal
funding, and the Health Resources and Service Administration (HRSA) of the
Department of Health and Human Services imposed a corrective action plan
that, among other things, required JCHCC to seek recoupment of the
previously misspent funds.
      In September 2012, Dr. Shondra Williams began serving as JCHCC’s
CEO. Williams spearheaded JCHCC’s effort to implement a corrective action
plan, as required by HRSA as a condition for its continued receipt of federal
funding.   Williams sent demand letters to individuals identified in audit
reports as having received payments to which they were not entitled, including
                                        3
    Case: 16-30875    Document: 00513888642    Page: 4   Date Filed: 02/24/2017


                                No. 16-30875

JCHCC’s former CEO and its former attorney. Soon after sending the demand
letters, Williams received a fax message from the office of Parish Councilman
Spears with a proposed resolution to terminate the Marrero CEA. Williams
perceived the message as a threat precipitated by JCHCC’s corrective action
plan.
        Williams subsequently met with Spears, at which meeting the
councilman expressed to Williams that no one from JCHCC had reached out to
him in the eleven months since he took office and commented that several
entities were interested in occupying the Marrero space. Williams alleges that
Spears then requested that she appoint an acquaintance of his to the governing
board and terminate the CFO, who had participated in an audit that resulted
in negative findings. On another occasion, Spears suggested that JCHCC
should hire an attorney of his recommendation. Spears then told Williams that
he would be interested in modifying JCHCC’s CEAs to allow continued use of
the Marrero facility only if JCHCC satisfied his requests.
        In April 2015, Williams became aware that Councilman Spears
attempted to persuade several JCHCC board members to terminate her
employment as JCHCC’s CEO without providing a reason. One year later, on
April 5, 2016, JCHCC’s former CEO sent Williams a demand letter requesting
$184,000 in severance pay, but JCHCC denied this demand after reviewing it.
Shortly afterward, JCHCC received a letter dated April 14, 2016 from the
Office of the Parish Attorney, indicating that the Parish desired alternative
lease terms and attaching two resolutions that would, respectively, terminate
the Marrero CEA and replace it with a month-to-month arrangement. 2 The



        As previously noted, the Marrero Agreement was otherwise set to renew
        2

automatically for a five-year term after July 31, 2016.
                                      4
    Case: 16-30875    Document: 00513888642    Page: 5   Date Filed: 02/24/2017


                                No. 16-30875

proposed resolutions were included on the Jefferson Parish Council’s agenda
for April 20, 2016, but the vote was eventually deferred until May 11, 2016.
      On May 11, without having previously provided any notice that such a
resolution would be considered and without any discussion, the Parish Council
voted unanimously to terminate the CEA for JCHCC’s River Ridge facility.
The council then also unanimously voted to terminate the Marrero Agreement
as of July 31, 2016. The Parish subsequently adopted a resolution to authorize
the Parish Clerk to advertise for submissions of Statements of Qualifications
from prospective healthcare providers to offer full-time comprehensive medical
care to uninsured individuals at the River Ridge and Marrero locations.
JCHCC partnered with Ochsner Health System, which submitted a Statement
of Qualification, with JCHCC as its subcontractor. No other submissions were
received by the notice’s June 30 submission deadline, and thus Councilman
Spears unilaterally extended the deadline until July 14, 2016, and again to
August 4.
      On July 18, 2016, JCHCC filed this suit and a motion for a preliminary
injunction against the Parish, the Parish Council, and the councilmembers in
their official and individual capacities.   JCHCC asserted claims under 42
U.S.C. § 1983 for violations of the Medicaid Act, 42 U.S.C. § 1396a(a)(10), and
under section 330 of the Public Health Service Act, § 254b. In its response to
JCHCC’s motion for a preliminary injunction, the Parish did not address or
even mention JCHCC’s allegations under §§ 1983 or 254b and instead treated
the matter as a simple breach of contract claim.
      The district court held a hearing on the motion and, on July 26, granted
a preliminary injunction enjoining the Parish from evicting JCHCC from the
Marrero and River Ridge facilities but allowing the Parish to terminate the
injunction upon a showing that the medical needs of JCHCC’s Medicaid
                                      5
    Case: 16-30875    Document: 00513888642        Page: 6   Date Filed: 02/24/2017


                                 No. 16-30875

patients would be met if JCHCC were evicted. The Parish filed a timely notice
of appeal on the next day. Ultimately, after it filed its notice of appeal, JCHCC
filed a first amended complaint, adding two Medicaid-beneficiary patients as
plaintiffs and adding multiple causes of action.
                               II. DISCUSSION
 A. Subject Matter Jurisdiction
      As an initial matter, the Parish argues that JCHCC’s federal claims are
“so completely devoid of merit” that the district court did not have subject
matter jurisdiction to allow it to grant a preliminary injunction. While JCHCC
points out that the Parish did not make this contention below, “we must satisfy
ourselves that that the district court had jurisdiction to decide the case,”
regardless of whether the issue was raised below. See Passmore v. Baylor
Health Care Sys., 823 F.3d 292, 295 (5th Cir. 2016) (citing Union Planters Bank
Nat’l Ass’n v. Salih, 369 F.3d 457, 460 (5th Cir. 2004)).
      “Questions of subject-matter jurisdiction are reviewed de novo.” Houston
Ref., L.P. v. United Steel, Paper & Forestry, Rubber, Mfg., 765 F.3d 396, 400
(5th Cir. 2014). “[T]he absence of a valid (as opposed to arguable) cause of
action does not implicate subject-matter jurisdiction.” Steel Co. v. Citizens for
a Better Env’t, 523 U.S. 83, 89 (1998). Thus, a district court lacks jurisdiction
over a federal claim only if that claim “‘clearly appears to be immaterial and
made solely for the purpose of obtaining jurisdiction or where such a claim is
wholly insubstantial and frivolous.’” Id. (quoting Bell v. Hood, 327 U.S. 678,
682 (1946)).   Determining whether a claim is wholly insubstantial and
frivolous necessarily entails consideration of the merits, see, e.g., Stem v.
Gomez, 813 F.3d 205, 209-10 (5th Cir. 2016); Gilbert v. Donahoe, 751 F.3d 303,
311 (5th Cir. 2013); therefore, we proceed to discuss the merits of JCHCC’s
claim for a preliminary injunction. At this juncture, it suffices to say that,
                                        6
    Case: 16-30875     Document: 00513888642     Page: 7   Date Filed: 02/24/2017


                                  No. 16-30875

although we ultimately conclude that JCHCC has not carried its burden to
establish a substantial likelihood of success on the merits of the only claim that
is properly before us, we do not view its claim for a preliminary injunction as
“wholly insubstantial and frivolous” so as to deprive the federal courts of
jurisdiction to consider it.
 B. Burford Abstention
      Next, the Parish argues that, even if the district court had jurisdiction
to consider JCHCC’s claims, it should have abstained from exercising its
jurisdiction because “the grant of relief to JCHCC violates the balance of
powers between the federal government and local government and impedes the
Parish Council’s ability to regulate matters of local public concern.” In this
respect, the Parish highlights that state law governs its CEAs with JCHCC,
and it claims that the Parish’s termination of the CEAs was “subject to the
Parish’s local interests in providing effective government to its citizenry.”
      The Parish further contends that “the Medicaid Act established a
cooperative state-federal program wherein the states actually administer and
oversee the implementation of Medicaid assistance” and thus that “[h]ow
Louisiana implements its Medicaid program and whether the Parish is in
violation of the State’s Medicaid program . . . necessarily involve important
state interests.” Finally, the Parish argues that the district court’s exercise of
jurisdiction “intrudes into the Parish’s ability to govern and to enforce its
contractual rights” and “opens the floodgates for dissatisfied Parish
contractors who receive federal funding to file federal lawsuits seeking to
enjoin the Parish from amending or terminating those contracts.”
      The Parish does not expressly commit itself to any particular abstention
doctrine, but the only case it cites to actually support its argument deals with
abstention under Burford v. Sun Oil Co., 319 U.S. 315 (1943). Although the
                                        7
    Case: 16-30875    Document: 00513888642      Page: 8   Date Filed: 02/24/2017


                                 No. 16-30875

Parish did not raise this issue below, “Burford abstention may be raised at any
time.” Munich Am. Reinsurance Co. v. Crawford, 141 F.3d 585, 588 (5th Cir.
1998).
      “The federal courts have a virtually unflagging obligation . . . to exercise
the jurisdiction given them.” Aransas Project v. Shaw, 775 F.3d 641, 649 (5th
Cir. 2014) (quoting Colorado River Water Conservation Dist. v. United States,
424 U.S. 800, 817 (1976)). Nevertheless, under Burford, abstention is proper
“where the issues ‘so clearly involve basic problems of [State] policy’ that the
federal courts should avoid entanglement.” Id. at 649 (alteration in original)
(quoting Burford, 319 U.S. at 332). Thus, the Supreme Court explained:
      Where timely and adequate state-court review is available, a
      federal court sitting in equity must decline to interfere with the
      proceedings or orders of state administrative agencies: (1) when
      there are “difficult questions of state law bearing on policy
      problems of substantial public import whose importance
      transcends the result in the case then at bar”; or (2) where the
      “exercise of federal review of the question in a case and in similar
      cases would be disruptive of state efforts to establish a coherent
      policy with respect to a matter of substantial public concern.”
New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 361
(1989).
      In deciding whether to exercise Burford abstention, we weigh the
following factors:
      (1) whether the cause of action arises under federal or state law;
      (2) whether the case requires inquiry into unsettled issues of state
      law, or into local facts; (3) the importance of the state interest
      involved; (4) the state’s need for a coherent policy in that area; and
      (5) the presence of a special state forum for judicial review.
Romano v. Greenstein, 721 F.3d 373, 380 (5th Cir. 2013).          In Romano, a
Medicaid beneficiary sued the Louisiana Department of Health and Hospitals
under § 1983, alleging that its decisions, policies, and procedures resulted in
                                        8
    Case: 16-30875     Document: 00513888642     Page: 9   Date Filed: 02/24/2017


                                  No. 16-30875

an illegal termination of her benefits. Id. at 374-75. Applying the factors
described above, the Romano court stated:
      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. Accordingly, the district court did not
      abuse its discretion in declining to exercise Burford abstention.
Id. at 380.
      This statement applies with equal force in the instant case: JCHCC
asserts claims under federal law, and the Parish provides no meaningful
support for its contention that the federal courts should abstain from deciding
those claims. The Parish cites a single case, Bethpage Lutheran Service, Inc.
v. Weicker, 965 F.2d 1239 (2d Cir. 1992), which is plainly distinguishable. In
Bethpage, a provider of residential and day care services to disabled persons
sued state officials, contending they were paying for services at a lower level
than mandated by federal law. 965 F.2d at 1240. The Second Circuit ruled
that Burford abstention was proper because there was a specific state
regulatory procedure to challenge the service rates. Id. at 1244-45. Notably,
the plaintiff’s claims in Bethpage raised the specific question of what
constitutes reasonable payment for necessary services under the Home and
Community Based Services Waiver Act, which the court found “necessarily
invokes the expertise and best judgment of the [state’s] Commissioner of
Mental Retardation and does not lend itself to consistent judicial
interpretation.” Id. at 1243.
      In contrast, here, beyond making gestures at the importance of local
interests, the Parish does not explain what efforts to establish a coherent policy
on a matter of public concern would be disrupted by the exercise of federal

                                        9
    Case: 16-30875    Document: 00513888642       Page: 10   Date Filed: 02/24/2017


                                  No. 16-30875

review. Cf. BT Inv. Managers, Inc. v. Lewis, 559 F.2d 950, 955 (5th Cir. 1977)
(reversing dismissal on Burford abstention grounds because “[a]lthough the
challenged statutes [we]re part of a large and perhaps complex regulatory
scheme[,] i. e., the Florida Banking Code[,] . . . appellants focus[ed] their attack
upon a single statute whose possible invalidation could scarcely be expected to
disrupt Florida’s entire system of banking regulation” (footnote omitted)). Nor
does the Parish point to any difficult question of state law or a “special state
forum for judicial review” that exists in this case. See New Orleans Pub. Serv.,
491 U.S. at 361. Accordingly, Burford-abstention is inappropriate in this case.
 C. Legislative Immunity and Privilege
      The Parish contends that JCHCC’s claims are all barred by legislative
immunity and privilege. The Parish reasons that JCHCC’s claims are based
on the motivations and thought processes of the councilmembers who enacted
the resolutions at issue. It contends that the Parish councilmembers’ votes for
the resolutions were “inherently legislative acts” and thus that they are
immune from liability for their votes and their reasons for passing the
resolutions are privileged. JCHCC responds that it is seeking only equitable
relief, and it argues that the Parish’s termination of the CEAs was not a
legislative act and did not trigger legislative immunity.
      We need not consider, however, whether the councilmembers challenged
actions in this case are subject to their legislative immunity in their individual
capacity.   JCHCC has also sued the Parish, the Parish Council, and the
councilmembers in their official capacity. Local governing bodies, such as the
Parish and its council, “do not enjoy immunity from suit . . . under § 1983,”
Burge v. Parish of St. Tammany, 187 F.3d 452, 466 (5th Cir.1999), and “an
official-capacity suit is, in all respects other than name, to be treated as a suit
against the entity,” Goodman v. Harris Cty., 571 F.3d 388, 395 (5th Cir. 2009)
                                        10
    Case: 16-30875    Document: 00513888642      Page: 11   Date Filed: 02/24/2017


                                  No. 16-30875

(quoting Kentucky v. Graham, 473 U.S. 159, 166 (1985)). Thus, the Parish, the
council, and the councilmembers in their official capacity enjoy no immunity
from suit, and the action against those parties can serve as sufficient grounds
to sustain a preliminary injunction.
      Turning to the Parish councilmembers’ claim for legislative privilege, we
note that this is an evidentiary privilege, “governed by federal common law, as
applied through Rule 501 of the Federal Rules of Evidence.” Perez v. Perry, No.
SA-11-CV-360-OLG-JES, 2014 WL 106927, at *1 (W.D. Tex. Jan. 8, 2014)
(citing Rodriguez v. Pataki, 280 F.Supp.2d 89, 93-94 (S.D.N.Y.2003)). “While
the common-law legislative immunity for state legislators is absolute, the
legislative privilege for state lawmakers is, at best, one which is qualified.” Id.
at *2 (citation and internal quotation marks omitted). This privilege “must be
strictly construed and accepted only to the very limited extent that permitting
a refusal to testify or excluding relevant evidence has a public good
transcending the normally predominant principle of utilizing all rational
means for ascertaining the truth.”        Id. at *1 (internal quotation marks
omitted). At any rate, even assuming that the councilmembers’ reasons for
passing the resolutions are privileged in the sense that they cannot be directly
compelled to disclose them, this evidentiary privilege cannot bar the
adjudication of a claim.
 D. The Preliminary Injunction
      The district court granted a preliminary injunction based on JCHCC’s
§ 1983 Medicaid violation claim. This court reviews a district court’s ultimate
decision to grant a preliminary injunction for abuse of discretion, but the
district court’s findings of fact are reviewed for clear error and its conclusions
of law are reviewed de novo. See Dennis Melancon, Inc. v. City of New Orleans,
703 F.3d 262, 267 (5th Cir. 2012). To obtain a preliminary injunction, a movant
                                        11
    Case: 16-30875       Document: 00513888642         Page: 12     Date Filed: 02/24/2017


                                      No. 16-30875

must establish: (1) a substantial likelihood of success on the merits; (2) a
substantial threat of irreparable harm if the injunction is not granted; (3) that
the threatened injury to the movant outweighs the injury to the party to be
enjoined; and (4) that granting the injunction will not disserve the public
interest. Lake Charles Diesel, Inc. v. Gen. Motors Corp., 328 F.3d 192, 196 (5th
Cir. 2003). Our review ends with the first prong of this test, as neither of the
two JCHCC claims that is properly before us survives it.
       A. Section 1983 – Medicaid violation
       JCHCC argues that the Parish’s termination of the CEAs violated the
rights of Medicaid-beneficiary patients of JCHCC’s Marrero and River Ridge
sites to receive services under the Medicaid Act, 42 U.S.C. §§ 1396a(a)(10) and
1396d(a)(2)(C).     The district court opined that JCHCC’s arguments “may
stretch the limits of § 1983 relief” but concluded that it had made some showing
of a substantial likelihood of success on the merits of a claim that “the Parish
may not leave buildings vacant and deprive Medicaid recipients of their right
to have accessible medical services.” On appeal, the Parish argues that the
district court erred in so concluding and that JCHCC had failed to establish
that Medicaid beneficiaries have a right to obtain healthcare services on
particular premises owned by the Parish. 3
       The Medicaid Act, § 1396 et seq., provides for the allocation of federal
funds to states who submit a “State plan for medical assistance.” § 1396-1.
“States are not required to participate in Medicaid, but all of them do.”
Arkansas Dep’t of Health & Human Servs. v. Ahlborn, 547 U.S. 268, 275 (2006).



       3 The Parish does not question JCHCC’s standing to assert the rights of its Medicaid-
beneficiary patients, and any such argument is therefore forfeited. See Ensley v. Cody Res.,
Inc., 171 F.3d 315, 320 (5th Cir. 1999) (the limitation on third party standing is prudential
and subject to forfeiture).
                                             12
    Case: 16-30875      Document: 00513888642        Page: 13     Date Filed: 02/24/2017


                                     No. 16-30875

Section 1396a(a)(10) provides that “[a] State Plan must provide for making
medical assistance available, including at least the care and services listed in
paragraphs (1) through (5) . . . of section 1396d(a) of this title, to all individuals”
who meet certain eligibility criteria. We have held that § 1396a(a)(10) creates
a private right of action that is enforceable through § 1983. See S.D. ex rel.
Dickson v. Hood, 391 F.3d 581, 605-07 (5th Cir. 2004). 4
       Pursuant to § 1396d(a)(2)(C), the services required under § 1396a(a)(10)
include the services provided by JCHCC at its River Ridge and Marrero
facilities.     Until recently, the Medicaid Act defined the term “medical
assistance” merely as “payment of part or all of the cost of services.” § 1396d(a)
(2009).       However, Congress amended this definition through the Patient
Protection and Affordable Care Act, and the term “medical assistance” is now
defined as payment of part or all of the cost of the following care and services
or the care and services themselves, or both.” § 1386d(a) (2013) (emphasis
added).       The Seventh Circuit recently remarked that by amending this
definition, “Congress intended to clarify that where the Medicaid Act refers to
the provision of services, a participating State is required to provide (or ensure
the provision of) services, not merely to pay for them.” O.B. v. Norwood, 838
F.3d 837, 843 (7th Cir. 2016) (quoting A.H.R. v. Wash. State Health Care Auth.,
No. C15-5701JLR, 2016 WL 98513, at *11–12 (W.D. Wash. Jan. 7, 2016)).
       The problem with JCHCC’s theory that the Parish’s termination of the
CEAs would violate the Medicaid Act is that the Parish is not a state. While
Louisiana is a participating state that may be required to provide or ensure



       4In Dickson, we affirmed the district court’s grant of summary judgment against the
Louisiana Department of Health and Hospitals on a claim that the agency failed to provide
Medicaid beneficiaries with medical assistance for prescribed disposable incontinence
underwear. 391 F.3d at 603, 607.
                                           13
    Case: 16-30875      Document: 00513888642     Page: 14   Date Filed: 02/24/2017


                                   No. 16-30875

the availability of medical services to eligible individuals under the Medicaid
Act, the plain terms of the Medicaid Act impose no such obligation on the
Parish. JCHCC does not point to any authority suggesting that every local
government in every participating state must provide the relevant medical
services, nor does it point to authority establishing that the Parish has any
obligation under Louisiana state law to provide such services on behalf of the
state.
         Though there is no particular degree of likelihood of success that is
required in every case, the party seeking a preliminary injunction must
establish at least some likelihood of success on the merits before the court may
proceed to assess the remaining requirements. See State of Tex. v. Seatrain
Int’l, S. A., 518 F.2d 175, 180 (5th Cir. 1975). On the showing made, JCHCC’s
theory is unsustainable. It has not established a substantial likelihood of
success on the merits of its claim.
         B. Preemption under Section 330 of the Public Health Services Act
         JCHCC alleges that the Parish’s resolutions are preempted by Section
330 of the Public Health Services Act, § 254b, and its implementing
regulations. Section 330 makes federal funding available to qualified health
centers that provide primary healthcare services to medically underserved
populations, and it imposes certain obligation upon such healthcare providers.
See § 254b. JCHCC argues that the Parish’s resolutions unlawfully obstruct
JCHCC’s ability to fulfill its Section 330 obligations and are therefore
preempted by it.
         Before the district court, JCHCC contended that it has an implied right
of action under Section 330. The district court concluded that JCHCC had not
established a substantial likelihood of success on the merits of this claim,
primarily because it had not established that it had an implied right of action.
                                        14
    Case: 16-30875      Document: 00513888642        Page: 15     Date Filed: 02/24/2017


                                     No. 16-30875

The court appeared to have misinterpreted JCHCC’s argument as a contention
that the Supremacy Clause creates an implied cause of action. Rejecting such
a contention, the district court cited Armstrong v. Exceptional Child Center,
Inc., in which the Supreme Court held that “the Supremacy Clause is not the
source of any federal rights[ ] and certainly does not create a cause of action.”
135 S. Ct. 1378, 1383 (2015) (citation and internal quotation marks omitted).
         On appeal, JCHCC no longer asserts an implied right of action under
section 330, nor does it assert an implied right of action under the Supremacy
Clause; instead, it appeals to the power of federal courts of equity to enjoin
unlawful actions by public officers. See Armstrong, 135 S. Ct. at 1384 (“[I]n a
proper case, relief may be given in a court of equity . . . to prevent an injurious
act by a public officer.” (quoting Carroll v. Safford, 3 How. 441, 463 (1845)).
We decline to entertain this request, as JCHCC did not raise it before the
district court. See In re Paige, 610 F.3d 865, 871 (5th Cir. 2010) (this court
generally does not consider arguments raised for the first time on appeal). We
also do not reach the issue of whether the statute itself implies a private right
of action, as JCHCC has forfeited this contention on appeal. See United States
v. Jackson, 426 F.3d 301, 304 n.2 (5th Cir. 2005) (issue not raised in party’s
opening brief is generally forfeited). Accordingly, we cannot find any error in
the district court’s conclusion that JCHCC did not establish a substantial
likelihood of success on the merits of its claim under section 330 of the Medicaid
Act. 5




         We note that, to the extent otherwise permissible, our opinion does not prevent
         5

JCHCC from raising its arguments regarding section 330’s creation of a right of action and
the courts’ equitable power to enjoin unlawful action before the district court.
                                           15
    Case: 16-30875   Document: 00513888642      Page: 16   Date Filed: 02/24/2017


                                 No. 16-30875

      C. New Claims Asserted in JCHCC’s First Amended Complaint
      On August 12, 2016, after the district court issued its injunction, JCHCC
filed a first amended complaint, which introduced new claims, including a
breach of contract claim, a substantive due process claim, and an additional
§ 1983 claim asserting violations of JCHCC’s right to payment under
§ 1396a(bb).   JCHCC contends that we “should not review the injunction
through the lens of the original complaint only” and thus that we should
consider the claims introduced in its first amended complaint. We must reject
this invitation.
      We have refused to consider claims that were included in an amended
complaint filed subsequent to a district court order in an appeal of that order.
See, e.g., Charles v. Grief, 522 F.3d 508, 510 n.1 (5th Cir. 2008).        More
specifically, in the context of preliminary injunctions, we have said that
“appellate inquiry into the merits of an interlocutory decision on injunction
relief ordinarily seeks only to ascertain whether the lower court has abused its
discretion.” Martinez v. Mathews, 544 F.2d 1233, 1237 (5th Cir. 1976) (internal
quotation marks omitted). Here, there could be no abuse of discretion by the
district court in denying relief based on claims that the court did not have
before it. We therefore decline to consider JCHCC’s new claims as support for
the district court’s injunction. See id. Of course, JCHCC may raise these
claims before the district court in the first instance in a motion for a new
preliminary injunction.
                             III. CONCLUSION
       For the forgoing reasons, we REVERSE the district court’s grant of a
preliminary injunction.




                                      16
