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

                                      No. 16-20766                            FILED
                                                                        March 12, 2018
                                                                         Lyle W. Cayce
JOSEPH COTROPIA,                                                              Clerk

                                                 Plaintiff - Appellant
v.

MARY CHAPMAN, Only in her Individual Capacity; TEXAS MEDICAL
BOARD; MEMBERS OF THE TEXAS MEDICAL BOARD; MICHAEL
ARAMBULA; JULIE ATTEBURY; DAVID BAUCOM; FRANK DENTON;
JOHN D. ELLIS; CARLOS GALLARDO; JOHN R. GUERRA; SCOTT
HOLIDAY; MARGARET MCNEESE; ALLAN N. SHULKIN; ROBERT
SIMONSON; WYNNE SNOOTS; KARL SWANN; PAULETTE SOUTHARD;
SUVRENDA K. VARMA; STANLEY WANG; TIMOTHY WEBB; GEORGE
WILLEFORD, III, Only in his Official Capacity; MARI ROBINSON,
Executive Director, Texas Medical Board, Only in her Official Capacity,

                                                 Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:16-CV-742


Before KING, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                     No. 16-20766
      Plaintiff–Appellant Joseph Cotropia initiated this action under
42 U.S.C. § 1983 against Defendants–Appellees Texas Medical Board (“TMB”),
TMB members in their official capacities, TMB Executive Director Mari
Robinson in her official capacity, and TMB investigator Mary Chapman in her
individual capacity. He alleged that Chapman violated the Fourth Amendment
by conducting a warrantless search and seizure of records in his office. He also
alleged that TMB, TMB members, and Robinson violated the Fourth
Amendment by training TMB employees to conduct warrantless searches. The
defendants filed a motion to dismiss. The district court then dismissed all of
Cotropia’s claims with prejudice based on qualified immunity and sovereign
immunity. We AFFIRM with respect to the claims against TMB, TMB
members, and Robinson, but we REVERSE and REMAND with respect to the
claim against Chapman.
                                            I.
      On November 20, 2014, the Texas State Office of Administrative
Hearings (“SOAH”) issued findings against Cotropia. SOAH found that
Cotropia had violated numerous provisions of the Texas Administrative Code
applicable to the practice of medicine in Texas while working at two pain
management clinics. Based on this, TMB staff proposed a Final Order that
revoked Cotropia’s license to practice medicine. At a board meeting on
February 13, 2015, TMB adopted SOAH’s findings and the Final Order of
license revocation.
      Subsequently, on March 27, 2015, Chapman, a TMB investigator,
traveled to an office located at 779 Normandy Street, Houston, Texas, to serve
a TMB subpoena for Cotropia’s patients’ medical records. 1 Cotropia alleged the


      1 According to Cotropia’s complaint, Chapman was accompanied by an “unknown
male,” who was described by Cotropia’s attorney at the motion to dismiss hearing as “a DEA
agent.” Up to this point, no evidence has been offered to that effect.
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                                  No. 16-20766
following facts in his complaint: Betty Spaugh, the office’s receptionist, allowed
Chapman to enter. After entry, Chapman handed Spaugh the subpoena and
insisted that Spaugh give her the records. Spaugh refused and told Chapman
that she was not the custodian of the records. Over Spaugh’s objection,
Chapman then removed and copied documents from the front desk of the office.
Some of these documents were financial records; others contained patients’
names and telephone numbers. At some point, someone at the office contacted
a law enforcement officer. After the officer consulted his superiors and an
attorney, he directed Chapman to leave the office.
      On March 21, 2016, Cotropia initiated this action under 42 U.S.C. § 1983
against TMB, TMB members in their official capacities, TMB Executive
Director Robinson in her official capacity, and Chapman in her individual
capacity. Cotropia alleged that Chapman violated his rights under the Fourth
Amendment by conducting a warrantless search and seizure of documents. He
also alleged that TMB, TMB members, and Robinson violated his rights by
training TMB employees to conduct warrantless searches of medical offices.
      On June 9, 2016, the defendants filed a motion to dismiss under Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6). They argued, among other
things, that (1) Cotropia lacked standing to assert a claim for injunctive relief;
(2) sovereign immunity barred Cotropia’s claims against TMB and his official-
capacity claims; and (3) Chapman was entitled to qualified immunity.
Specifically, the defendants contended that Chapman was within the scope of
her authority to execute a TMB subpoena, citing Texas Occupations Code
§ 153.007 and 22 Texas Administrative Code § 179.4(a). On June 15, 2016,
Cotropia filed an amended complaint with no major changes. On June 28, 2016,
the defendants filed an amended motion to dismiss, making the same
arguments as in their June 9 motion to dismiss. The district court held a
hearing on November 16, 2016. It then dismissed all of Cotropia’s claims with
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                                  No. 16-20766
prejudice relying on the qualified and sovereign immunity defenses. Cotropia
timely appealed.
                                        II.
      As an initial matter, we note that Cotropia failed to raise any arguments
about the viability of his claims against TMB, TMB members in their official
capacities, and Robinson in her official capacity in his opening brief. Thus,
these arguments are forfeited. See CenturyTel of Chatham, LLC v. Sprint
Commc’ns Co., L.P., 861 F.3d 566, 573 (5th Cir. 2017), cert. denied, 138 S. Ct.
669 (2018). Accordingly, we address only whether the district court erred in
dismissing Cotropia’s claim against Chapman in her individual capacity based
on qualified immunity.
      We review a district court’s grant of a motion to dismiss based on
qualified immunity de novo. Whitley v. Hanna, 726 F.3d 631, 637 (5th Cir.
2013) (citing Brown v. Miller, 519 F.3d 231, 236 (5th Cir. 2008)). “We accept all
well-pleaded facts as true and view those facts in the light most favorable to
the plaintiff.” Id. at 638 (citing Bowlby v. City of Aberdeen, 681 F.3d 215, 219
(5th Cir. 2012)). Dismissal is appropriate when the plaintiff fails to plead
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007).
      Qualified immunity “is both a defense to liability and a limited
‘entitlement not to stand trial or face the other burdens of litigation.’” Ashcroft
v. Iqbal, 556 U.S. 662, 672 (2009) (quoting Mitchell v. Forsyth, 472 U.S. 511,
526 (1985)). “Once a defendant invokes qualified immunity, the burden shifts
to the plaintiff to show that the defense is not available.” Kovacic v. Villarreal,
628 F.3d 209, 211 (5th Cir. 2010) (citing McClendon v. City of Columbia, 305
F.3d 314, 323 (5th Cir. 2002) (en banc) (per curiam)). Qualified immunity
shields government officials from damages “unless a plaintiff pleads facts
showing (1) that the official violated a statutory or constitutional right, and
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(2) that the right was ‘clearly established’ at the time of the challenged
conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). For a constitutional right to be “clearly
established,” “[t]he contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing violates that right.”
Anderson v. Creighton, 483 U.S. 635, 640 (1987).
      Cotropia has met his qualified immunity burden here. He has alleged
sufficient facts to show that Chapman—by taking documents from his office
over Spaugh’s objection—violated the clearly established right to an
opportunity to obtain precompliance review of an administrative subpoena
before a neutral decisionmaker. “[S]earches conducted outside the judicial
process, without prior approval by judge or magistrate, are per se unreasonable
under the Fourth Amendment—subject only to a few specifically established
and well-delineated exceptions.” Arizona v. Gant, 556 U.S. 332, 338 (2009)
(quoting Katz v. United States, 389 U.S. 347, 357 (1967)). One of these
exceptions is the administrative search. See City of Los Angeles v. Patel, 135 S.
Ct. 2443, 2452 (2015); Camara v. Mun. Ct. of City & Cty. of S.F., 387 U.S. 523,
534 (1967). The administrative search is a search that serves a “‘special need’
other than conducting [a] criminal investigation[].” Patel, 135 S. Ct. at 2452.
For example, administrative searches may be used to “ensure compliance
with [] recordkeeping requirement[s].” Id.
      “[A]bsent consent, exigent circumstances, or the like, in order for an
administrative search to be constitutional, the subject of the search must be
afforded an opportunity to obtain precompliance review before a neutral
decisionmaker.” Id. (first citing See v. City of Seattle, 387 U.S. 541, 545 (1967);
then citing Donovan v. Lone Steer, Inc., 464 U.S. 408, 415 (1984)).
“[A]dministrative subpoenas are [] one way in which an opportunity for
precompliance review can be made available.” Id. at 2454. “[A]lthough
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[Supreme Court] cases make it clear that [an agency] may issue an
administrative subpoena without a warrant, they nonetheless provide
protection for a subpoenaed employer by allowing him to question the
reasonableness of the subpoena, before suffering any penalties for refusing to
comply with it . . . .” Lone Steer, 464 U.S. at 415. “[W]hile the demand to inspect
may be issued by the agency, in the form of an administrative subpoena, it may
not be made and enforced by the inspector in the field, and the subpoenaed
party may obtain judicial review of the reasonableness of the demand prior to
suffering penalties for refusing to comply.” See, 387 U.S. at 544–45.
       See and Lone Steer make it clear that, prior to compliance, Cotropia was
entitled to an opportunity to obtain review of the administrative subpoena
before a neutral decisionmaker. 2 Cotropia has pleaded facts that show no such
opportunity was provided here. Spaugh, who was on the premises, expressly
told Chapman that she was not the custodian of the records. Over Spaugh’s
objection, Chapman took and copied documents from the front desk of the
office. As Chapman immediately executed the subpoena after serving it,
Cotropia had no opportunity to obtain precompliance review. 3
       Chapman’s primary contention with respect to qualified immunity in her
briefing to the lower court and on appeal is that she was carrying out her duties




       2   Texas law contemplates the opportunity for precompliance review of an
administrative subpoena before a neutral decisionmaker. For example, Texas Occupations
Code § 153.007(e) states that if “a person fails to comply with a [TMB] subpoena,” then TMB
“may file suit to enforce the subpoena.” In this scenario, a court can, prior to compliance,
determine whether the subpoena is valid. We also note that Texas law has provisions
regarding compliance with subpoenas in urgent circumstances. See, e.g., 22 Tex. Admin. Code
§ 179.4(a).
        3 When TMB allows more time for compliance with a subpoena, the person to whom

the subpoena is directed can, for example, seek a protective order in Texas state court. See,
e.g., Allibone v. Freshour, No. 03-17-00357-CV, 2017 WL 5663607, at *2 (Tex. App.—Austin
Nov. 21, 2017, pet. filed). In this scenario, similar to a situation where TMB files suit to
enforce a subpoena, a court can determine whether the subpoena is valid prior to compliance.
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                                    No. 16-20766
by executing the subpoena in accordance with TMB’s subpoena authority. 4
This argument, at least in its present form, is unavailing. Chapman has
proffered only two sources of legal authority in support of TMB’s subpoena
power: Texas Occupations Code § 153.007 and 22 Texas Administrative Code
§ 179.4(a). TMB has the authority by statute to “issue a subpoena or a
subpoena duces tecum to compel the attendance of a witness and the
production of books, records, and documents.” Tex. Occ. Code § 153.007(a). The
implementing regulation states:
      Upon the request by the board or board representatives, a licensee
      shall furnish to the board copies of medical records or the original
      records within a reasonable time period, as prescribed at the time
      of the request. “Reasonable time,” as used in this section, shall
      mean fourteen calendar days or a shorter time if required by the
      urgency of the situation or the possibility that the records may be
      lost, damaged, or destroyed.
22 Tex. Admin. Code § 179.4(a). The authority that has been cited to us does
not expressly permit TMB investigators to take the subpoenaed records by
force. In fact, the cited statute states that if “a person fails to comply with a
[TMB] subpoena,” then TMB “may file suit to enforce the subpoena.” Tex. Occ.
Code § 153.007(e). Chapman points to § 179.4(a) as a source of authority that
requires licensees to furnish medical records on short notice, but that is
allowed only “if required by the urgency of the situation or the possibility that
the records may be lost, damaged, or destroyed.” 22 Tex. Admin. Code
§ 179.4(a). Chapman did not explain to the district court, and has not explained
to us, why the situation was urgent or why the records were unsafe. Moreover,
Chapman has not made clear (on the arguments that she has provided thus


      4  We recognize that there are statutory and regulatory provisions that grant TMB
inspection authority in certain circumstances (for example, Texas Occupations Code
§ 168.052 and 22 Texas Administrative Code § 195.3(b) for pain management clinics), but
Chapman has not argued that these provisions are sources of authority under which she
operated. Thus, we do not consider them.
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far) whether § 179.4(a) applies to this situation at all, as Cotropia was not a
“licensee” at the time of Chapman’s actions.
      Chapman attempts to distinguish See and Lone Steer by arguing that
Cotropia was not subject to penalties for refusing to comply with the subpoena.
This contention is unmeritorious. Generally, when “an administrative agency
subpoenas books or records, the agency itself may not force compliance by the
levy of a fine or imprisonment. . . . Rather, the agency petitions the court for
an order forcing compliance, which results in an adversary proceeding where
objections by the affected individual may be interposed.” 5 Wayne R. LaFave,
Search and Seizure: A Treatise on the Fourth Amendment § 10.1(d) (5th ed.
2012). The existence of penalties for noncompliance may be a condition
sufficient to “create[] an intolerable risk that [administrative inspections]
authorized . . . will exceed statutory limits, or be used as a pretext to harass”
business owners. Patel, 135 S. Ct. at 2452–53. But penalties for noncompliance
are not necessary for a constitutional violation.
      There are no automatic penalty provisions related to fines or jail time for
noncompliance with a TMB subpoena. See Allibone v. Freshour, No. 03-17-
00357-CV, 2017 WL 5663607, at *6–7 (Tex. App.—Austin Nov. 21, 2017, pet.
filed). However, TMB is the “primary means of licensing, regulating, and
disciplining physicians” in Texas. Tex. Occ. Code § 151.003(2). “The [Texas]
legislature has empowered the Board to make and execute public policy,
regulating the practice of medicine by means of rules, appointments, lawsuits,
examinations    and   investigations,   reports     and       publications,   licensing
practitioners, and disciplining them through informal proceedings and
contested-case adjudications.” Dolenz v. Tex. State Bd. of Med. Exam’rs, 981
S.W.2d 487, 489 (Tex. App.—Austin 1998, no pet.). TMB has considerable
authority effectively to penalize physicians if they do not comply when
subpoenas are served. See, e.g., Tex. Occ. Code § 160.009(b) (stating that failure
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to comply with a subpoena issued under Tex. Occ. Code § 153.007 “constitutes
grounds for disciplinary action against the person” subject to the subpoena).
At the time of Chapman’s actions, Cotropia was not a licensee. But, as
Chapman recognized at oral argument, Cotropia could challenge the
revocation of his license or reapply for his license. Both of these actions are
under the purview of TMB. See, e.g., Tex. Occ. Code § 151.003(2) (TMB is the
“primary means of licensing . . . physicians”); id. §§ 155.001–155.152
(provisions on licensure). The purpose of the “opportunity for precompliance
review” is to “alter[] the [power] dynamic” between the investigators and
individuals who are subject to administrative inspections, thereby “reduc[ing]
the risk” that investigators use these inspections “as a pretext to harass” these
individuals. Patel, 135 S. Ct. at 2454.
       At oral argument, Chapman contended that physicians’ medical
practices constitute a closely regulated industry and that the regulatory
scheme TMB has in place provides a constitutionally adequate substitute for a
warrant. See New York v. Burger, 482 U.S. 691 (1987); Beck v. Tex. State Bd.
of Dental Exam’rs, 204 F.3d 629 (5th Cir. 2000). 5 But she did not make this
argument in her appellate brief, or before the district court in her motion to
dismiss or at the hearing on that motion. As such, the district court did not
have an opportunity to make determinations as to whether physicians’ medical
practices indeed constitute a closely regulated industry and, if so, whether the
Burger test is met. Thus, we do not address these contentions today. 6 See Fed.


       5 In Beck, the inspection of a dentist’s office was conducted in conjunction with a
Department of Public Safety (“DPS”) agent and pursuant to the Texas Controlled Substances
Act (“TCSA”). 204 F.3d at 632, 638. The TCSA expressly gave the investigator and DPS agent
authority to conduct an on demand warrantless inspection of the dentist’s office. See id. at
639. Here, Chapman has not proffered the TCSA or another controlled substances statute as
a source of authority for her actions.
       6 We note that TMB and TMB employees implicated in other cases have made such

arguments. See, e.g., Brief of Respondent–Appellee at 21–33, Zadeh v. Robinson, No. 17-
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R. App. P. 28(b); CenturyTel, 861 F.3d at 572–73; Celanese Corp. v. Martin K.
Eby Const. Co., 620 F.3d 529, 531 (5th Cir. 2010).
       In her appellate brief, Chapman merely asserts that qualified immunity
should be granted because it was Cotropia’s burden to show that physicians’
offices are not closely regulated. We reject this assertion. While “we sometimes
short-handedly refer to only one party’s burden, the law [with respect to the
qualified immunity defense] is that both bear a burden.” Salas v. Carpenter,
980 F.2d 299, 306 (5th Cir. 1992). The defendant must first “plead his good
faith and establish that he was acting within the scope of his discretionary
authority.” Bazan ex rel. Bazan v. Hidalgo Cty., 246 F.3d 481, 489 (5th Cir.
2001) (quoting Salas, 980 F.2d at 306). Next, “the burden shifts to the plaintiff
to rebut this defense by establishing that the official’s allegedly wrongful
conduct violated clearly established law.” Id. (quoting Salas, 980 F.2d at 306).
In showing that the defendant’s actions violated clearly established law, the
plaintiff need not rebut every conceivable reason that the defendant would be
entitled to qualified immunity, including those not raised by the defendant.
       The parties dispute whether there was consent. A search is
constitutional if there is consent. See Patel, 135 S. Ct. at 2452. Under the
Fourth Amendment, consent must be given voluntarily and by a person who
has the ability to furnish valid consent. See United States v. Jenkins, 46 F.3d
447, 451 (5th Cir. 1995). Cotropia has alleged in his complaint that Spaugh
refused to give Chapman the records listed in the administrative subpoena and
told Chapman that she was not the custodian of the records. Thus, as we must
accept these pleaded facts as true, we cannot find the search constitutional
based on consent.



50518 (5th Cir. Nov. 9, 2017). As our decision does not address the closely regulated industry
issue, it does not speak to the merits of that issue in these other cases.
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                                No. 16-20766
      In sum, up to this point, Cotropia’s claim against Chapman in her
individual capacity is not barred by qualified immunity. We emphasize that
our holding is narrow, constrained by the alleged facts and proffered briefing.
The qualified immunity determination is made with respect to the “defendant’s
circumstances.” Thompson v. Upshur Cty., 245 F.3d 447, 457 (5th Cir. 2001)
(collecting cases). The circumstances, as alleged here, involve a TMB
investigator’s execution of an administrative subpoena—without consent—
which may be outside of the scope of the TMB’s subpoena authority. Finally,
we note that, on remand, discovery may reveal that the actual facts do not
amount to a constitutional violation.
                                        III.
      For the foregoing reasons, we AFFIRM with respect to claims against
TMB, TMB members, and Robinson. We REVERSE with respect to the claim
against Chapman and REMAND for further proceedings.




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